§ Further considered on Report.
§ Clause 20 [The Scottish Executive]:
§ 3.25 p.m.
Lord DRUMALBYN moved Amendment No. 53:
Page 9, line 33, after ("Secretary") insert ("another as Legal Secretary").
The noble Lord said: My Lords, perhaps I may start by saying what the drafting effect of these Amendments would be. Clause 20(1) would read:
There shall be a Scottish Executive one of whose members shall be known as the First Secretary another as Legal Secretary and the others as Secretaries of the Scottish Executive".
Subsection (2) would read:
Any reference in this Act or in any Act amended by or under this Act to a Scottish Secretary is a reference to the First Secretary the Legal Secretary or any of the other Secretaries of the Scottish Executive".
Under the Bill, the Scottish Executive is to consist of a First Secretary and an unknown, or at any rate an unstated, number of Scottish Secretaries. The question is whether the person appointed, to quote subsection (6) of this clause,
to perform functions corresponding to functions performed by a Law Officer of the Crown",
should be just another Scottish Secretary perhaps performing not only those functions but also other functions; for
example, those corresponding to Treasurer, or the Under-Secretary of State for the Home Department, or whatever, or, alternatively, whether he should be like the Lord Advocate and his assistant, the noble and learned Lord himself.
§ This is a much wider question than the one we considered in Committee, which was treated by the noble and learned Lord as little more than a drafting Amendment. If this Amendment is carried, it may be desirable to amend subsection (6), although, as every member of the Executive is called a Scottish Secretary, whether he is the First Secretary or another Secretary, and although powers in this Bill are, in the main, conferred upon a Scottish Secretary, this would not seem to be strictly necessary.
§ I recognise that it is unlikely that it will prove necessary to appoint as Law Officer, or as the assistant to a Law Officer, a person who had not been elected either as a constituency or an additional Member. I say that because it seems to me that one advantage of having a legislature in Edinburgh—and there are advantages and disadvantages—is that more advocates and solicitors will feel it both worthwhile and practicable to stand for election knowing that they will be spared the journeys to London which make it so difficult for them to continue earning a living at their professional careers and which interrupt those professional careers in many cases.
§ However, if it should be necessary to appoint a Legal Secretary from outside those who have been elected in one way or another, surely it would be wrong to assign to a non-elected person duties other than those corresponding to the functions of a Law Officer. Even if an elected person is appointed to perform these duties, should he perform other functions as well? The functions of a Law Officer of the Crown are, as I understand it, to advise the Cabinet on legal matters and also to represent the Crown in court where he thinks it desirable to do so. I believe that this is in his discretion. I am told that that has not always been so, and that up to a matter of 100 years ago an Attorney General was a practising barrister as well as a Law Officer of the Crown. He continued his private practice at the same time. However, that is another matter and does not seem to be envisaged in the Bill as drafted.1389
§ It would surely be anomalous if the Law Officer were to have another portfolio; indeed, I doubt whether, in United Kingdom terms at any rate, it would be constitutional. It seems highly desirable, if not essential, to have a distinct and distinguishable member of the Executive to perform the functions of a Law Officer of the Crown—or, rather, functions corresponding to those of a Law Officer of the Crown—that he should be appointed as such and that he should be performing those functions alone. I appreciate that the Amendments do not cover that last point—about performing those functions alone—but if this were accepted, it would be desirable to move such an Amendment at a later stage.
My Lords, my noble friend Lord Drumalbyn has an important point here, because under the Bill as drafted there will be a number of Scottish Secretaries and one of them can have the powers of a Law Officer as well as having other powers for a Department for which he is responsible. It would appear wrong that a person who is in the nature of a Law Officer should also be in the position of having a Department. The practice in Westminster is that a Law Officer is separate from all Departments and his duty is to advise the Government; presumably a Law Officer in the Scottish Executive should advise the Scottish Executive, and it would seem wrong to confuse the two.
The noble and learned Lord, Lord McCluskey, will no doubt tell us whether we are correct in the assumption that, as the Bill is at present drafted, a Scottish Secretary can be responsible for a Department and can also be responsible for advising the Scottish Executive on matters of law. If that were the case, it would almost be akin in the Westminster Parliament to a Departmental Minister finding himself with the responsibility of law, and of course a Law Officer can prosecute in the courts. To take the analogy of Westminster, one could have the situation where a Government Minister could be prosecuting in the courts. If that were to happen in the Scottish Assembly, a Scottish Secretary responsible for a Department could also possibly be prosecuting in the courts. I should be delighted to know whether I am wrong about that, but as the Bill is drafted that would appear to be the situation.
My Lords, I support my noble friend Lord Drumalbyn, and the House will see that my name is added to the Amendment. In Committee, Lord Drumalbyn moved for me an Amendment directed to this point and somebody observed to me afterwards that I had invited him to go fishing for a trout and he had caught a whale. The discussions which flowed from his moving my Amendment on that occasion raised many issues which I freely admit I had not envisaged when I drafted my Amendment, which was designed to deal with a drafting point which I claimed would, if unamended, make the subsection in question inoperable. In view of the many points that were raised in Committee and the number of difficulties noble Lords foresaw arising from this unique person within the Scottish Executive, it is important that we should come to a more exact way of dealing with his involvement with the Executive.
§ The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey)
My Lords, these Amendments stem from a point which was made in Committee when I think the noble Lord, Lord Drumalbyn, was a little surprised to discover what the clause contained. I do not know why he was surprised, because if one looks at subsection (6) it is plain that the person who would be awarded functions corresponding to functions performed by a Law Officer of the Crown might receive other functions because the words in brackets are:…whether or not he is to perform also other functions".It has, therefore, always been quite plain on the face of the Bill that a person falling into this category might get other functions which were not traditionally functions performed by a Law Officer of the Crown.
I should, in the light of the remarks that fell from the lips of the noble Earl, Lord Ferrers, say that the Scottish Law Officer could not prosecute because the prosecution function is reserved under the Bill; the only person who will be able to prosecute in Scotland, as now, after devolution, will be the Lord Advocate, and the prosecution function is not devolved. The Scottish Law Officer will not have any prosecution function. I am also given to understand that English 1391 Ministers with Departments sometimes prosecute because in England there is private prosecution and a Minister may —as a Minister, but really by reason of being a private individual—bring a prosecution if he has an interest to do so.
§ Lord DRUMALBYN
I certainly confirm that, my Lords, but of course the Minister does not himself appear in court. I said the Scottish Legal Secretary might from time to time have to appear in court; that is, in civil actions in which the Government are involved. He would appear personally and not through his Department.
§ Lord McCLUSKEY
My Lords, I was not disputing anything the noble Lord, Lord Drumalbyn, said. I was answering the point raised by the noble Earl, Lord Ferrers, and I agree that the Scottish Law Officer would be likely to appear in court in person on behalf of the Scottish Executive or one of its Departments. Nor do I think it particularly surprising that a Law Officer should have a Department because at present the Lord Advocate, who is a Scottish Law Officer, has a Department; it is called, not surprisingly, the Lord Advocate's Department. Within that Department he has people who do drafting and he has legal secretaries. He exercises his prosecution function, but he has other functions. Indeed his functions were enlarged under the previous Administration and the noble Lord, Lord Campbell of Croy, will recall signing a transfer of functions order in 1972, under which the Prime Minister transferred additional responsibilities from the Secretary of State for Scotland to the Lord Advocate. Thus, the functions of a Law Officer are not fixed. In fact, they are not the same in Scotland as they are in England, and there is no set constitutional pattern to determine what the functions of a Law Officer are.
§ Lord DRUMALBYN
My Lords, I am sorry to interrupt the noble and learned Lord again, but I wonder whether he can make the point quite clear. Were these functions which were transferred similar to those performed by a Law Officer of the Crown in Scotland? Obviously they were additional functions, but were they of that character?
§ Lord McCLUSKEY
My Lords, I have sent for a copy of the Transfer of Functions Order, because it is quite complicated. As I recall it, it contained a number of different matters. No doubt the noble Lord, Lord Campbell of Croy, will correct me if I am wrong, but I believe that one of them was a rule-making power in relation to certain tribunals. Another related to certain responsibilities regarding the law of criminal procedure. These are matters which might properly be transferred to a Law Officer, and thus become functions of a Law Officer, although they were not so before. If the copy of the Transfer of Functions Order arrives before the end of this debate, I may be able to enlarge upon this point.
The whole scheme of the clause is that, technically, any one Scottish Secretary is able to perform any of the functions of any other Scottish Secretary. I believe that that has always been plain on the face of the Bill. Under this clause the office of Scottish Secretary is a unitary office, in the same sense as at present at Westminster the office of Secretary of State is a unitary office, and the great majority of functions which are exercised by any one Secretary of State can, technically, be exercised by another. Technically I think that in law it would be possible for the Secretary of State for Wales, for example, to do things which, in fact, daily are done by the Secretary of State for Scotland. It is only in relation to certain property rights that one commonly finds that the title "Secretary of State for Scotland", as distinct from the title "Secretary of State", appears in legislation.
The kind of scheme which obtains at Westminster greatly facilitates the arrangement of responsibilities as circumstances may require, and it enables the Prime Minister to reorganise the allocation of responsibilities in the light of his view of how the machinery of government ought to operate. That does not mean, and this clause does not mean, for example, that the Scottish Secretary responsible for education will normally undertake any functions or duties ascribed to the Scottish Secretary who is to perform Law Officer functions, but there is to be no statutory barrier against a sensible distribution of functions within an ordered departmental type of organisation.
1393 The Government do not consider it necessary, therefore, for the Scottish Secretary who will be appointed to perform Law Officer functions to be given, in the Bill itself, a title different from that of the other Scottish Secretaries, though it seems likely that each Scottish Secretary will be identified according to the particular portfolio that the First Secretary decides to give him. The Secretary performing legal functions might come to be known as the Scottish Secretary for Legal Affairs, or some such title; but it would not be a title contained in the Act. After all, as I have indicated, the Secretary of State for Scotland discharges in Scotland some of the functions which are exercisable in other countries by a Minister of Justice; and I think that the noble Lord, Lord Campbell of Croy, will be able to confirm that.
For example, the Secretary of State for Scotland has oversight of the whole criminal law. He has oversight of the law of evidence. Indeed, he has oversight of the law generally. He also has oversight of the prison services. I do not suggest that it is desirable that a person who is appointed Scottish Law Officer should start to run the prisons, or run the criminal law, but it might make sense that he should be given a certain oversight over parts of the law, and in particular over parts of the criminal law. For example, I have in mind in particular the law of procedure, whether civil or criminal.
So these matters are not fixed and set. I do not think that any deep constitutional principle is at issue here. I should add as a technical matter that at the present time we have someone called a Legal Secretary. In fact, careful readers of the Birthday Honours List will have observed that the holder of this office was the other day awarded the honour of Companion of the Bath. We have a Legal Secretary, and we also have an Assistant Legal Secretary, and it would be rather a pity if these titles came to be confused by this Amendment to the Bill.
There are a number of Amendments at which we have to look, so I should take this opportunity of explaining the position. What the clause is intended to achieve—and we believe does achieve—is to make provision for a situation in which the Assembly does not have among its elected Members, or among its additional Members 1394 if that is the system which obtains, any lawyer suitably qualified to discharge the Law Officer functions. The Scottish Executive will still need legal advice of the kind that a Law Officer commonly gives, and unless the adviser can be given the status of a Scottish Secretary, and the powers and duties that go with such a status, he would have no higher standing than that of, say, standing counsel to any Government Department.
Clause 20(7) enables a Scottish Secretary, or Assistant, to perform Law Officer functions, albeit he is not an elected Member of the Assembly. We have looked carefully at the drafting in the light of the criticisms made at the Committee stage, and I propose to advise the House that we are content to accept two Amendments standing in the name of the noble Lord, Lord Gray. I think that these are Amendments Nos. 59 and 61. We are content with these Amendments.
I undertook to refer to the Transfer of Functions Order, and now I can say that it is No. 2002 of 1972. As I indicated, it transferred a number of functions from the Secretary of State to the Lord Advocate. In order to give the flavour of the document, I should like to read paragraph 2 to your Lordships:There are hereby transferred to the Lord Advocate the functions conferred on the Secretary of State by the following enactments; namely, Sections 27 and 29 of the Crofters Holdings (Scotland) Act 1886".That is described as the making of regulations and the approval of forms of procedure in connection with applications to the Scottish Land Court. There were similar matters in relation to the Lands Tribunal and the Iron and Steel Arbitration Tribunal. The Lord Advocate was also given responsibility for the appointment of members of the Scottish Law Commission and the Council on Tribunals, as well as the Scottish Committee of the Council.
There were also transferred to the Lord Advocate certain functions of the Secretary of State for Scotland under the Transport Act 1962. Those, too, related to the approval of procedural rules. I am looking at the explanatory note to the document now, and I see that he was also given the function of laying before Parliament memoranda proposing corrections and minor improvements in any 1395 enactments in order to facilitate the consolidation of those enactments. That was a function which I think somewhat corresponds to one which the Lord Chancellor has in relation to the law at Westminster. I believe that those points make good my case, and we consider that this clause is properly drafted, subject to the Amendments that I am prepared to accept. I think that we can live with them, and perhaps they make things a little clearer.
§ 3.47 p.m.
Lord CAMPBELL of CROY
My Lords, perhaps it would be convenient if I were to speak next, as the noble and learned Lord has been referring to a transfer which was very much a brainchild of mine. It was worked out, and the Prime Minister of the day then put it into effect. As the noble and learned Lord has said, the reason for that transfer was that the Secretary of State for Scotland is already responsible for so much in relation to courts and Home Office affairs, and indeed has a number of the functions which the Lord Chancellor exercises in England and Wales. I am perhaps one of those rare people in public life—or certainly in politics—who were happy to relinquish powers, rather than to try to get more. It certainly seemed to me that the Secretary of State had an enormous amount for which he was responsible in the legal field, whereas the Lord Advocate, though a busy man, when it came to actual responsibilities was very restricted at that time.
The noble and learned Lord, and my noble friend Lord Drumalbyn are of course both right in saying that immense care had to be taken in that operation to ensure that the kind of function that was transferred was the kind for which Law Officers are normally responsible, and the kind of function which would preserve the independent position of a Law Officer. I am speaking from memory, and I am not a lawyer, as I believe all noble Lords in the House know, but I was very much made aware at that time that the position of the Law Officers in England and Wales is different from that of the Lord Advocate and the Solicitor-General for Scotland. Their functions are similar, yet they are different. For example, there is no 1396 Director of Public Prosecutions operating north of the Border, and therefore the Lord Advocate is the initiator of prosecutions, operating through gentlemen known as procurator fiscals, and so far as I know, there is no counterpart to that south of the Border.
My Lords, we shall shortly be coming to an Amendment, Amendment No. 58, in the name of myself and of my noble friends. But I wanted to say at this point that it looks as though the Bill as drafted could produce a situation in which a Scottish Secretary who was the Legal Secretary and had these functions known as Law Officer functions (no matter exactly what they are at this stage) could also be in charge of education or of health; because it is apparent that the Scottish Secretaries, unless there are going to be 20 or 25 of them, which we all agreed was far too many, are going to have to share subjects in the same way as junior Ministers at the Scottish Office now are responsible for a combination of subjects; so that you get a junior Minister who is responsible for roads, local government, electricity and water supplies, and who may indeed be responsible for health or education as well. But the noble and learned Lord, if I understood him right, said that this is not the intention of the Government: the intention of the Government is that the Legal Secretary should be someone who does not have an administrative Department. However, I think the noble and learned Lord must agree that, as the Bill is drafted, it is possible for this to happen. We therefore thought that this was one of the flaws in the Bill as drafted; and at the Committee stage I thought the noble and learned Lord had accepted that.
Now he has said that he is prepared to accept two Amendments in the name of my noble friend Lord Gray. Word of this had already reached me; but I had understood it was Nos. 59 and 60 that he was accepting, whereas I think he said Nos. 59 and 61. I will give way if he will let us know.
Lord CAMPBELL of CROY
I thank the noble and learned Lord very much. It makes quite a difference because No. 61 1397 is considerably longer. But I know that at the Committee stage the noble and learned Lord, Lord McCluskey, was unhappy about this clause in respect of the Legal Secretary, and I do not blame him because it is exceedingly difficult in a Bill to draft for the kind of person we have in mind—a Law Officer who would be part of a new Scottish Administration and operating in relation to the Assembly in the way that the four Law Officers operate in relation to Parliament at Westminster here. Recent cases over the last two years (without naming any of them) have indicated how difficult it is for many people, not just the general public but people inside Parliament, to follow exactly the independence which the Law Officers have. They have a certain independence in order to leave them free to carry out the kind of tasks to which my noble friend Lord Drumalbyn referred. Therefore, it is exceedingly difficult to try to reproduce in a Bill something which is understood here at Westminster; it is very difficult, I think, to put it into words in a Bill.
However, I think that both sides of your Lordships' House are aiming at the same thing, which is to have a Legal Secretary, if there is to be an Assembly and an Executive, in the Executive, but we must he clear what his duties are; and we on this side feel that if he is to be a Law Officer in the same way as the noble and learned Lord is, then he should not also be in charge of a Department and, therefore, be concerned with the administration and government in the way that a Minister or a Scottish Secretary would be.
§ Lord DRUMALBYN
My Lords, I thought that we might get assistance from the Cross-Benches on this clause, but perhaps not. I entirely agree with what my noble friend Lord Campbell of Croy has said. I do not think I would wish to press this Amendment, but I wonder whether the noble and learned Lord would look again at the sentence in brackets, "(whether or not he is to perform also other functions)", because it is quite plain that it has misled some of us regarding the intentions of the Government. Also, it could leave the way open for a First Secretary to do something in his appointment which I think we would not wish; that is, as my noble friend has said, to, as the French 1398 say, "cumulate" functions which are not akin. For example, if the noble and learned Lord were to put in the word "comparable" before the word "functions"—"whether or not he is to perform also other comparable functions "—or something of that kind, that would be fine; but the examples which the noble and learned Lord has given seem to be totally irrelevant to what I was driving at in this Amendment.
The fact that you extend the functions in certain comparable ways to matters in the sense that they all have to do with tribunals, courts and the like, whether by arranging procedure for them or by making appointments towards them, has nothing to do with what the words say here, which is "other functions". The noble and learned Lord really must try to see the thing from points of view other than those of a Government which know clearly, I hope, what their intentions are and therefore may not quite make their intentions plain. I thought the noble and learned Lord was going to intervene, and I was about to give way to him.
§ Lord McCLUSKEY
My Lords, I am reluctant to speak more than once, but with the leave of the House let me make this clear. The purpose, and the whole purpose, of subsection (6) is to permit a person to be appointed a Law Officer although he is not an elected or additional Member of the Assembly. That is its whole purpose. Now let us suppose that there was no such clause or subsection in the Bill. Then, a lawyer who was elected to the Assembly could be appointed a Law Officer with any number of other functions. There is nothing in the Bill to prevent that at all. So the noble Lord's concern does not derive at all from subsection (6); it derives from something that is inherent in the Bill. There is nothing in the Bill to prevent a Law Officer who is an elected or additional Member of the Assembly being given any functions at all. The noble Lord is really shooting at quite the wrong target.
§ Lord SHINWELL
My Lords, I asked a question. Is it not customary, at Report stage, to make only one speech unless you ask the leave of the House?
§ Lord DRUMALBYN
I understood it was the custom of this House that the person who moved the Amendment could wind it up.
Several noble Lords: Hear, hear!
§ Lord DRUMALBYN
And we welcomed the intervention of the noble and learned Lord to clarify a point. My Lords, the noble and learned Lord says that I have been shooting at the wrong target. I do not think that exactly conveyed his meaning; but, if it was the wrong target, would he get a hold of the target that we ought to have been shooting at and make certain he gets a hull's-eye? I invite him, between now and the final stages of the Bill, to do just that; I hope he will do so, and at the present time I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 54 not moved.]
§ 3.59 p.m.
Lord DRUMALBYN moved Amendment No. 55:
Page 10, line 3, leave out ("If") and insert ("Whenever").
The noble Lord said: My Lords, this is Amendment No. 55, which is on page 10, line 3, to leave out "If" and insert "Whenever", with which, perhaps, your Lordships would agree to take Amendment No. 56, which is on page 10, line 4, after the word "be" insert the word "forthwith". My Lords, this would mean that the subsection would read:
Whenever the Assembly has nominated one of its members for appointment as First Secretary that member shall be forthwith so appointed; and in appointing the other Scottish Secretaries the Secretary of State shall act on the advice of the First Secretary".
I appreciate the compressed nature of the drafting here, but compression can go to a point beyond which it can be positively misleading, and certainly can give the impression, even, through compression, of casual drafting.
§ There is no statement in this Bill that it should be the right or the duty of the Assembly to nominate a Member as First Secretary. All subsection (4) says, in effect, is that if the Assembly sees lit to do so the Secretary of State must appoint the person nominated First Secretary. After that the Secretary of State must appoint the other Scottish Secretaries whom the First Secretary may nominate, and any other Scottish Secretaries I suggest, and on that point I recall the view expressed by the noble Baroness, Lady Stedman, that the Secretary of State has no discretion whatever. Also the Secretary of State must appoint as many Scottish Secretaries as the First Secretary cares to nominate. The nomination by the Assembly of the First Secretary is not unimportant.
§ At the Committee stage I suggested that there should be a firm obligation placed on the Assembly to choose the first Secretary for appointment by the Secretary of State. I also feel that that has come very well in the initial standing orders: that the first thing an Assembly should do is to appoint a presiding officer and next to appoint a First Secretary. In those particular circumstances the wording would be quite perfect, but it goes further than that.
§ I also suggested at the Committee stage that there should be a prescribed procedure for getting rid of the First Secretary. The noble and learned Lord argued that it was unnecessary to lay down such procedure because, as the subsection now stands, all the Assembly has to do as often as it cares to is to nominate another First Secretary. The word "if" therefore has not one-case application but is a continuity of possibility. As it now stands, if the Assembly then nominates another First Secretary, you have two First Secretaries, one of whom the Secretary of State must—just wait; the noble Lord shakes his head violently —one of whom the First Secretary must appoint in replacement of the other, because the other will he told that he has ceased to enjoy Her Majesty's pleasure. I do not think this is a very good way of drafting even though I suppose it could be supported, as I said, on the case of the first occasion.
§ The least we ought to do, in order to make the matter tolerably clear, is instead 1401 of "if", to echo the sense of what the noble and learned Lord himself said, to put in the word "whenever". As the Secretary of State has no discretion as to whether or not to appoint a Scottish Secretary whom the First Secretary has nominated, and as all he could do in that case would be to delay the appointment, let us also put in the word "forthwith". At the moment there is no reason why lie should make the appointment at once; the provision merely says he must appoint him. I bee to move.
§ Lord McCLUSKEY
My Lords, I am really rather puzzled by the concern expressed by the noble Lord. He seems to believe that it would be possible to have more than one First Secretary, but Clause 20(1) reads:There shall be a Scottish Executive one of whose members shall be known as the First Secretary…",so one really could not have that. All I was suggesting was that, under subsection (5), a Scottish Secretary, which of course includes the First Secretary,shall hold office at Her Majesty's pleasure".So he may be removed from office instantly. The way f envisage that this would work would be that, if he ceased to command the confidence of the Assembly, he would resign or be removed from office. At the limit, if he stubbornly clung to office, then the Assembly would proceed to nominate one of its Members as First Secretary, and under subsection (4),that member shall be so appointed".Accordingly, that member would be appointed First Secretary. I really do not follow the difference between "if" and "whenever" in this context. I am sure that the wording is quite mandatory and the Member shall be appointed under the terms of subsection (4) following the resolution and nomination by the Assembly.
In relation to the question of delay which the noble Lord also mentioned, suggest that it is difficult to see how any unreasonable delay could arise under the Bill as it now stands. The terms of subsection (4) give the Secretary of State no freedom of action in the matter. When or if the Assembly nominated, the Secretary of State would then appoint. There would be nothing whatever to he gained from delaying an appointment, and any 1402 attempt to do so would surely create quite unnecessary friction between the Government and the Assembly. It is difficult to see what interest there would be not to appoint as First Secretary the person nominated by the Assembly to hold that office.
On another level, if one puts in the word "forthwith" that could create practical difficulties. As I understand it, the word "forthwith" means immediately, without delay, and it might not in every circumstance be possible, even with the best will in the world, for this requirement to be met. The First Secretary might be nominated by the Assembly late before a break of some kind, at a time when the Secretary of State could not be available to make an appointment, and accordingly if a gap of that kind opened up there could be difficulties in complying with the strict terms of the Statute. I believe that, reasonably and properly read, this subsection fulfils the function which I described it as having. I would urge the noble Lord not to press this drafting Amendment, which he would otherwise be pressing not only against my advice—to which I attach no weight—but against the advice of counsel to whom we have put all these points and who are quite firm in advising us that the Bill as it stands will work.
§ Lord DRUMALBYN
My Lords, the noble and learned Lord might have said again that I am shooting at the wrong target, but I did mention the target I was shooting at; namely, that I think the Bill could have been more explicit. If it had been more explicit it would not have given rise to the misunderstanding to which it has given rise. I have never seen a constitution—if this is a constitution—drafted in this way, and I have seen a great many constitutions. The "if" was intended to meet particular argument which the noble and learned Lord put forward at an earlier stage when he said in effect that the Assembly could do this again and again if it wanted to whenever it was not satisfied with the First Secretary. The fact remains that I was perhaps exaggerating a little in saying that there could be two First Secretaries. But there is this curious point and nothing whatever is said as to how the Assembly is going to get rid of the First Secretary. He just appears to lose Her Majesty's 1403 pleasure. Again, I am not aware of any laws regarding appointments where things were expressed in this way, let alone Governments and Ministers.
I feel that this is unsatisfactory. The noble Lord assures me that from the legal point of view it is satisfactory and that his advisers are unwilling to change it. All I can say is that I hope that the explanatory literature which will no doubt come out explaining how the Bill will work will make this clear and that they will get good legal advice from the noble and learned Lord and his advisers as to how it is all intended to work, and how the interpretations put upon the Bill will work. I myself regard it as unsatisfactory. Nevertheless, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 56 and 57 not moved.]
§ 4.11 p.m.
Lord CAMPBELL of CROY moved Amendment No. 58:
Page 10, line 10, leave out from first ("A") to end of line and insert ("person").
§ The noble Lord said: My Lords; I beg to move Amendment No. 58 in the name of my noble friends and myself. I tabled this in order to ensure that this subject would be raised at Report stage following our discussion at the Committee stage. At the end of the debate at the Committee stage, the noble and learned Lord, Lord McCluskey, seemed to agree with us that the drafting in this area of the Bill was unsatisfactory. I think it can be said that this is the target area of this Amendment because this was the part of the Bill about which the noble and learned Lord himself said he was unhappy and which he was good enough to say he was going to go away and consider. He has indicated that he will accept two Amendments of my noble friend Lord Gray and we are grateful to him for that. But we shall not know until we reach them how significant is his acceptance. Therefore, I must spell out at this stage the point of my Amendment No. 58.
§ We have already been ranging over this subject and I think it is clear that the Legal Secretary can be outside the proposed Assembly, as indeed Scottish Law Officers can be outside Westminster, and 1404 have been so in recent years. Then there are also arrangements so that, in that case, the Legal Secretary can take part in the proceedings of the Assembly though he is not to vote. That is somewhat similar to the Standing Orders in another place where Standing Committees are concerned. A Lord Advocate, if he is a Member of Parliament, can attend a Scottish Standing Committee even though he is not a Member of it and can speak but not vote. So, again, one can see that it is not exactly the same hut that the experience at Westminster is being drawn upon in outlining the functions and the kind of person the Legal Secretary can be.
§ This Bill also enables the Legal Secretary to be in charge of part of the administrative side of Government as well; and the noble and learned Lord said just now that there is nothing in the Bill to stop a Scottish Secretary who is a Member of the Assembly from being also the Scottish Secretary in charge of Health or Education or, perhaps, the Home Affairs side. What I want to ask the Government to make clear is whether they think that that is right. I believe the noble and learned Lord indicated that he thinks it unlikely and probably inadvisable, but in that case should it not be written into the Bill? Does the noble and learned Lord really see a situation in which it would be wise for the person who has this very special status as the equivalent of a Law Officer also to run part of the Government administration? Could there not be a clash?
§ I should like to have a definite answer from the noble and learned Lord on that point. If it cannot be given now then perhaps he may be able to give it on the subsequent Amendments of my noble friends.
§ The noble and learned Lord has also indicated that the Legal Secretary can be in the House or in the Assembly. It is quite clear to me that he ought not to be in charge of a Department if he is not in the Assembly; but if he is in the Assembly it seems that he can be. My Amendment is a straighforward one, somewhat similar to an Amendment which was put down at the Committee stage, and it would enable a person to he appointed who was not a Member of the Assembly in the first place—somebody who had all the qualifications to he a Legal Secretary 1405 and part of the Administration—whereas the Bill, as it is at the moment, appears to provide only for the situation of an existing Member of the Assembly being appointed in the first instance.
§ This may be a matter of interpretation. If the noble and learned Lord can indicate that that is not so, then I think I should be satisfied on that score. I think that this is one point that he was unhappy about at the Committee Stage: the Bill provides in one place that the Legal Secretary need not he a member of the Assembly or that if he has lost his seat or for some other reason has left the Assembly he can continue to he Legal Secretary although he is not a Member. On the other hand, it looks as though he has to be a Member of the Assembly on appointment. That is the second point on which I would seek clarification. I beg to move.
My Lords, I wonder whether, when the noble and learned Lord, Lord McCluskey, comes to reply to my noble friend Lord Campbell of Croy, he could comment on what I believe to he the situation—namely, that, since the person who is appointed under this subsection does not surrender office on the dissolution of the Assembly because he is not a Member of the Assembly, he could—and this is the point raised in Committee—perhaps carry out all executive functions on behalf of the Executive during any interregnum, whether this arose for technical reasons or over difficulties in appointing a new Executive following an election of the Assembly.
§ 4.17 p.m.
§ Lord McCLUSKEY
My Lords, may I take the last point first. I think that under the Bill the answer is, Yes. He becomes so for a moment, reflecting the great history of the office of Lord Advocate, in which the Lord Advocate was for a long time very much the Government of Scotland. This is not to suggest that that is a good thing or that we should endeavour to return to it; but the history helps to demonstrate that perhaps there are no fixed functions attaching to Law Officers. There was a time—long before the Secretary of State came in and gradually enlarged his empire, diminishing that of the Lord Advocate—when the 1406 Lord Advocate ran the Government of Scotland.
There has been reference, and rightly, to the very special position of the Law Officer. I think that one of the most important features of the Law Officer in Scotland, which gives him a special position, is that he is the public prosecutor. In his other functions he is slightly less special. In so far as he is an adviser to the Government on constitutional matters or on legal matters, he is special and he is advising on the borderline between policy and law. His emphasis, of course, is on law, but it is not always possible to draw a sharp line between policy and law. The Law Officer looks at it as a lawyer from a legal angle, but he must he given access to the policy considerations, not with a view to influencing his legal judgment but in order that he might know the context in which he is called upon to exercise it. That is rather special.
What is important is that he should be able to preserve his independence. When it conies to functions of the kind that were transferred in 1971 and other similar functions, he is getting more like an ordinary departmental Minister—not entirely so, but more like one. I would remind the House that the Scottish Law Commission itself which submitted a very interesting memorandum—and there was a second one as well, but I am thinking of the first one—on the whole subject of devolution, I think, in 1975, recommended the setting up of a Department of Legal Affairs in Scotland. That was analogous to the kind of Ministry of Justice or Department of Justice that one finds in many other countries, particularly on the Continent. If the Scottish Assembly appoints a Scottish Law Officer who does not have a prosecution function, it may be that it would be seen by them as a sensible and convenient arrangement to give that Law Officer certain functions of that kind that would properly come under the heading of the Department of Legal Affairs and give a rather wider responsibility in relation to the law and to procedural matters than the present Law Officers now have.
The Amendment put down by the noble Lord, Lord Campbell of Croy, is basically designed to elicit this type of explanation. I hope that I have answered 1407 all the points. I am afraid that I was concentrating on one of them when the noble Lord asked me a question which I did not quite catch. With the leave of the House, perhaps he would remind me what it was.
Lord CAMPBELL of CROY
My Lords, the second question was whether the Law Officer would have such functions if he was outside the Assembly; whether it would be right for him to have an administrative Department if he was not a Member of the Assembly. But the noble and learned Lord may need more time to answer that.
§ Lord McCLUSKEY
My Lords, the context in which we are discussing this matter allows the Law Officer to be a Member of the Assembly, albeit not an elected or additional Member of the Assembly. So I do not see that that difficulty would arise. I think that I am advising the House correctly if I say that the purpose of Clause 20, and this provision contained in subsection (6), is to ensure that the Assembly will not be deprived of the opportunity to appoint the best available person to be a Scottish Law Officer by the mere fact that he is not a person elected to the Assembly. Accordingly, that is what subsection (6) allows. It is envisaged that he would become a Scottish Secretary and would have a Department, but that Department would not be given functions which were not suitable to be exercised by such a person.
I may add something that I think is of some force: it was certainly a point made to me by Members of another place who were rather concerned about the notion that there should be a non-elected Member of the Assembly. I believe that the political control would be such that elected Members would not readily tolerate a First Secretary according to a non-elected lawyer—albeit a Member of the Assembly—functions of a kind not really appropriate to be handled by a lawyer. It is not just the Bill itself; it is the whole political context which would ensure that this lawyer did not become an overweening presence.
§ 4.23 p.m.
§ Lord HARMAR-NICHOLLS
My Lords, in giving an explanation, the noble 1408 and learned Lord has opened up a very interesting line of thought which I think will be relevant to the Amendment. It is important that one should make this point because, with the noble and learned Lord's proved ability and expertise, he is going to be more and more important so long as this Government remain in power. So the noble and learned Lord is going to be a very important person to lobby if one thinks that certain things are happening hick are not in the general good.
The part that interested me in the explanation that he has given was the apparent acceptance by him that he could see Law Officers merging into being ordinary Ministers. There is a danger there, and we should try to remove this point from the noble and learned Lord's mind. If a Law Officer is appointed as a Law Officer—for example, like the Attorney-General in the other place—it should be known that he is there as a lawyer, as a Law Officer, that he is going to give advice, as an attorney should, on the basis of the law and the words in the Act as he sees it.
If he is going to merge into viewing these things not only as a lawyer but as a Minister too, with all the generalities of thought that go with that, I can see a danger. I am alerted to it because it has already happened. When he had the Attorney-General giving advice recently on a matter of some considerable concern which looked as though it was likely to develop into industrial conflict—I think I paraphrase him correctly—he virtually said that the law as he saw it would be this, but he said that he had to take into account the social circumstances surrounding what would flow if he merely gave the legal advice as he saw it as a lawyer. In doing that recently—and the instance may well be in the minds of your Lordships—I think it caused Government action to be taken which I do not think was in the general good.
The one Law Officer—if he can be called that—who is entitled to he something wider than a legal thinker for the Government is the Lord Chancellor. He sits in the Cabinet as a lawyer but also as a Member of the Cabinet forming the policy of a Government. A Law Officer, as distinct from the Lord Chancellor, is quite different. I personally would not like to think that the noble and learned 1409 Lord was suggesting that one could have a Law Officer being rather more than a legal thinker and adviser. Was the noble and learned Lord saying that? I do not know whether the noble and learned Lord can answer under the rules of the House; but it does not really matter if he keeps in mind what I have said. The noble and learned Lord is going to be important and have a lot of influence. He has shown ability and he ought to have responsibilities. I hope that he will not be advising the Government but will be advising an Opposition, which is just as important on some occasions. I should like to keep him a pure lawyer when thinking in terms of a Law Officer, and not merging his position over this wider field which, as I have been trying to explain, I think carries dangers.
§ Lord DRUMALBYN
My Lords, may I raise a point that I raised on the Committee stage and which is still relevant? One does not like to criticise drafting which has been carried out by experts; but I should have thought that by far and away the best way of expressing this subsection would have been to say, as this Amendment does:A person"—then we come to the next Amendment—who is to perform functions corresponding to functions performed by a Law Officer of the Crown may (whether or not he is to perform also other functions) be appointed a Scottish Secretary or Assistant to a Scottish Secretary notwithstanding…".I should have thought that that was the natural way in our language to express this thought.
Lord CAMPBELL of CROY
My Lords, this Amendment has enabled the noble and learned Lord to explain what the Government have in mind in the provisions of Clause 20 as they stand at the moment. It was of interest to me to know that the Government were thinking that the Legal Secretary would have only additional administrative tasks, limited to a kind of Department of Justice or Department of Legal Affairs. This would be following practice in some countries abroad, but it would be something of a departure for this country. I am not raising objections to it for that reason, but I should like to draw attention to it.
1410 May I also say that the idea of a Law Officer being outside Parliament is something which has developed in Scotland. Up until 10 or 15 years ago the Law Officers of Scotland were always in Parliament. Certainly it was 10 or 15 years ago that the number dropped to one. It was about then that it was recognised that it might not be possible for a Scottish Queen's Counsel to be elected to Parliament in the Party which at that time was in power, and also that it might be required to have only one Law Officer in your Lordships' House if there were none in the other place.
At present both the Law Officers are in Parliament, one in another place and one here; but there was a period when both were outside the House. It happened under a Labour Government when qualified lawyers were not available in Parliament. At other times there has been only one in Parliament. It is a very good reflection on the way they carried out their functions that, so far as I know, no criticism was ever levelled at the way they were carrying out their duties, in view of the fact that they could not be Members of either House of Parliament. So the system has been carried on and has worked in Scotland, even though the Law Officers were not in Parliament. Again, I recognise that this should be possible in a new Assembly.
My noble friend Lord Harmar-Nicholls has drawn attention to the dangers of the Legal Secretary accumulating administrative tasks, and to the possible conflict that might arise. I hope the Government will heed what he has said and that any future Administration, if it is set up under this Bill, will bear it in mind. However, we have the Government's clear intention that any administrative section which is attached to this Legal Secretary should be limited to legal affairs.
My noble friend Lord Drumalbyn has dictated what he thinks—and when I say "dictated" I mean that he spoke the words slowly: I am not suggesting that he was instructing us in dictatorial terms —to be the best drafting of this in order to carry out the purpose that the Government have in mind. That should appear in Hansard and I hope the Government will take note of what my noble friend said, because he is trying to make it easier for 1411 those who are to carry out the purposes of the Bill. I think that the wording he suggested is better than the wording of the Bill, but this is a drafting question and at this stage I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.33 p.m.
Lord GRAY moved Amendment No. 59:
Page 10, line 11, leave out ("appointed").
§ The noble Lord said: My Lords, I beg to move Amendment No. 59. Your Lordships have already heard the noble and learned Lord, Lord McCluskey, indicate that this Amendment and Amendment No. 60, which is associated with it, are acceptable to Her Majesty's Government. It is perhaps ironic that, were they not going to accept these Amendments now, it is my view that the appointments about which my noble friends have been so concerned this afternoon could not take place.
§ Clause 20(6) has certainly lived up to the reputation it acquired in Committee. These two Amendments of mine to leave out the word "appointed" on page 10, line 11, and to leave out "so" on page 10, line 13, derive from a concern that I had that the subsection as written would be inoperable. I saw, and still see, dubiety in the wording, because the words "so appointed" in line 13 can only refer to the words "who is appointed to" in line 11; and that phrase can only refer to the words which immediately follow it. Hence, in the sentence as written, the individual concerned has to be a Scottish Secretary or an asssitant to a Scottish Secretary before his appointment can be made.
§ That is impossible in view of Clause 20(3)(c) which lays down that any person appointed as a Scottish Secretary or an assistant to a Scottish Secretary must be drawn from within the membership of the Assembly. Since we have heard that these Amendments are to he accepted, I shall not extend these arguments further, but I thought it proper to remind the House at this stage of my reasons for tabling these Amendments. I shall be quite happy to see them taken up in a new Amendment perhaps, along the lines which my noble 1412 friend Lord Drumalbyn has just suggested. Before I sit down, I should like to acknowledge that it was he who in Committee moved an Amendment on my behalf which has led to this small success today. I should like also to thank in advance the noble and learned Lord who is to reply.
§ Lord McCLUSKEY
My Lords, had I been opposing the Amendments, I would have sought to demonstrate that the reasons given by the noble Lord for putting them forward were not sound; but as I am not, I will not. I will merely confine myself to thanking him for giving us the opportunity to make the clause, as I read it, a little simpler to understand and to operate.
§ On Question, Amendment agreed to.
Lord GRAY moved Amendment No. 60:
Page 10, line 13, leave out ("so").
§ On Question, Amendment agreed to.
§ Lord GRAY moved Amendment No. 61:
§ Page 10, line 21, leave out from ("Assembly") to end of line 23 and insert ("who is a Scottish Secretary or an assistant to a Scottish Secretary on the dissolution of the Assembly—
- (a) shall continue in office until the declaration of the election next following; and
- (b) shall not be treated as having ceased to be a member of the Assembly if he is again elected at the election following the dissolution of the Assembly.").
§ The noble Lord said: My Lords, I beg to move Amendment No. 61. This Amendment follows one which, again, was moved on my behalf by my noble friend Lord Drumalbyn in Committee on the one day when I was unable to be present. I sought then, and seek now, to cover a point which I will endeavour to explain as briefly as I can. It deals with my concern about the drafting and whether that drafting in fact will stand the test of practical application.
§ I fully understand, and am in agreement with, the continuity objective of this subsection. The subsection, as noble Lords will see, deals with what is to happen when the Assembly is dissolved and, because of the scheme in the Bill, the Members of the Executive cease to be Members of the Assembly and therefore would have to be reappointed if they were re-elected. That is basically the Government's case for having this Amendment.1413
§ I was concerned with the subsection as written because it did not and does not secure this continuity of office. The only reason I was worried about this was the possibility that the validity of Executive actions might be challenged in certain circumstances. I was thinking not simply of the extreme case which I think the noble and learned Lord, Lord McCluskey, referred to in Committee: that of an outgoing Scottish Executive which had none of its Members re-elected. Nor was I thinking particularly or especially of the few hours that will elapse between the dissolution of the Assembly and the election of the next Assembly. I thought, and I still think, that there is the possibility of an interregnum considerably longer than those few hours between dissolution and the election, which could arise in certain circumstances.
§ The noble and learned Lord, Lord McCluskey, may say that my point is too obscure for us to concern ourselves with. But when we were discussing Clause 2 yesterday, and in particular subsection (2), I withdrew my Amendment at the end of our debate, although I was still unconvinced that the postponement of election provisions in that subsection do not contain several rather strange features which could lead to difficulties here. Also, I am worried that I was told that, in an emergency, United Kingdom emergency powers legislation would probably be used to deal with a Scottish emergency which might immediately precede and span the day of an election for the Assembly. In that case, the day of the election would have arrived, the Assembly would stand dissolved—I do not want to go into the difficulties which we had last night with "stand" and "eve"—and I see a possibility here that in an emergency situation the Members of the Scottish Executive would not legally be entitled to carry out the duties which the Assembly expects.
§ My starting point for looking at this whole question was comparison with the Westminster model, and I am sure that all our problems have arisen from the difficulties that we have had in getting to know and understand the Government's basic scheme for the Assembly—its structure, election, life and so on—which is in the Bill. The status and tenure of office of the various different grades of 1414 Scottish Secretary depend on the interrelation of quite a number of different subsections. I shall not quote to your Lordships, but in writing to the noble and learned Lord, Lord McCluskey I have explained my point here.
§ As I was considering this matter, I was puzzled by something else. Scottish Secretaries are to hold office at Her Majesty's pleasure, and this point has already been referred to this afternoon. Therefore, it strikes me that the first part of subsection (7) of Clause 20 is, perhaps, what is creating the difficulty here. If that first part referred only to assistants to Scottish Secretaries, then the Scottish Secretaries could go on at Her Majesty's pleasure and the matter could be dealt with along Westminster lines. What my Amendments seek to do is to insert, in place of those words in the Bill, words which I believe put beyond doubt the matter which I have been discussing.
I am asking the House to accept that, at the end of line 23, we should insert,
who is a Scottish Secretary or an assistant to a Scottish Secretary on the dissolution of the Assembly".
§ The Amendment then goes on in two paragraphs to say that he,
- "(a) shall continue in office until the declaration of the election next following; and
- (b) shall not be treated as having ceased to be a member of the Assembly if he is again elected at the election following the dissolution of the Assembly ".
§ I had a special reason for choosing the words "having ceased" in paragraph (b) of my Amendment, as opposed to the Government's choice of "as ceasing", because I still have a feeling that the person in question is, pre-election, being asked to speculate on what will be the outcome of his election. I beg to move.
§ 4.45 p.m.
§ Lord McCLUSKEY
My Lords, in my submission, this Amendment is quite unnecessary. Subsection (7) provides that Scottish Secretaries and assistants, other than those appointed under subsection (6), relinquish appointment on ceasing to be Members of the Assembly. Assembly Members cease to be Members on the eve of an election, but a Scottish Secretary who is re-elected will be regarded as having continued in office during the period of the election.
Continuity of office of Scottish Secretary is thus provided for by these provisions. 1415 Like the office of Secretary of State, the office of Scottish Secretary is, as I explained earlier, a unitary office and any Scottish Secretary can perform the duties of another Scottish Secretary. This has the effect that, during a period when the Assembly is dissolved and until such time as a new Administration and new Scottish Secretaries are in office, all actions of any Scottish Secretary are carried out under the proper authority conferred by this Statute. In the unlikely event that no Secretary is re-elected, then a new team will have to be appointed as soon as possible under Clause 20(3).
Certainly, therefore, there is the possibility of a modest gap, but we manage to live with such a gap at Westminster. As we know, when one Prime Minister resigns there is, at least, a short gap before another Prime Minister is appointed. Accordingly, we can live with such a gap. In fact, if there is a Scottish Law Officer appointed under subsection (7) then, as I said earlier, he will be a Scottish Secretary and he does not relinquish his appointment. Accordingly, he could continue the executive authority until other Scottish Secretaries were duly appointed.
I think that the noble Lord's concern is carried to an extreme here. We are content and, again, I ask the House to accept the advice of Parliamentary Counsel, whose attention was drawn to all these matters when they were properly discussed in Committee. The letters which the noble Lord was good enough to write to me have also been placed before Parliamentary Counsel. They have advised me—and I am satisfied with their advice and urge the House to accept it—that these clauses work perfectly well as they stand.
The Amendments themselves make a bit of a nonsense of the Bill, because, first, No. 61 contains the expression "the declaration of the election". That does not mean anything. There is really no such animal as "the declaration of the election". Secondly, if one put this Amendment into the Bill, the poor Scottish Secretary who wanted to resign would not be allowed to do so because, by Statute passed by Westminster, he,shall continue in office until the declaration of the electionwhatever that may be. So that, in drafting terms, these Amendments are a nonsense. 1416 Given the advice of Parliamentary Counsel and these criticisms, I urge the noble Lord not to press these Amendments.
§ Lord WILSON of LANGSIDE
My Lords, I have a great deal of sympathy with the Amendment spoken to by the noble Lord, Lord Gray. I rise not to comment upon the Amendment, which was covered so ably and fully in his address to your Lordships, but to comment on the reference by the noble and learned Lord to the advice of Parliamentary Counsel. I may be quite wrong about this—the noble and learned Lord will correct me if I am and your Lordships will agree with his correction—but I should have thought that the advice of Parliamentary Counsel was of no real significance to us; what matters 'is what the noble and learned Lord says. I should have thought that anyone behind the scenes was largely a matter of indifference to your Lordships. I have been puzzled on a number of occasions by this commendation of the advice of Parliamentary Counsel, those mysterious figures whose language is esoteric and who loom in the background and for whom all of us who have had any experience of them have the most tremendous respect; their knowledge of the law is second to none. But surely their advice to the noble and learned Lord should not be urged upon your Lordships as a reason for rejecting any Amendment which is put before the House by one of your Lordships.
My Lords, I am grateful to the noble and learned Lord, Lord McCluskey, for answering and also for the letters in which, very reasonably, he has sought in the past few weeks to show me why I should agree with him and why he should not agree with me. I am uneasy about this. The noble and learned Lord has certainly pointed out to me that my drafting is defective, and I am not at all surprised about that. In the circumstances, I think that it would be appropriate for me to accept the reasoning which the noble and learned Lord has advanced. Therefore, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.52 p.m.
§ Lord CAMPBELL of CROY moved Amendment No. 62:1417
Page 10, line 27, at end insert—
("Provided that he has obtained the consent of the First Secretary and the Minister for the Civil Service for those appointments").
§ The noble Lord said: My Lords, I beg to move Amendment No. 62 which stands in my name and in the names of my noble friends Lord Ferrers and Lord Strathcona. This Amendment would require the consent of the First Secretary in the Scottish Executive and the Minister for the Civil Service at Westminster to set up Departments and to appoint those who would be responsible for manning them.
§ This clause was not discussed at all in another place—nor was Clause 65, as it now is, which outlines the role and functions of the civil servants who will man the new Executive. At the Committee stage, therefore, I put down a probing Amendment to take out this passage. As a result, we received an explanation from the noble Baroness, Lady Stedman, of what the Government had in mind and what these parts of the Bill are supposed to do. It was the first explanation which had been given in Parliament.
§ We learned that subsection (8), together with Clause 65, are designed to create an unknown number of Departments which will be manned by an unknown number of home civil servants who would be employed on the same basis as the home Civil Service. The number of Departments is unknown because the number of Scottish Secretaries and their Assistants is unknown. We had a debate about whether it was wise to put in a limit or to put in a specific number. Your Lordships recognised that there is a problem, but the Bill still does not contain any number. Therefore, this innocent looking passage in the Bill is the trigger for the setting up of a mini-Whitehall in Scotland.
§ Under the terms of the Bill, each Scottish Secretary can build up from scratch his own empire—apparently, as the Bill is now worded, on his own judgment alone. The only curb and safeguard—as explained by the noble Baroness at the Committee stage—is financial. The money for salaries, pensions and the other expenses of staff, including accommodation and offices, must come from the Scottish Consolidated Fund. The Scottish Assembly will therefore have to decide how much of the 1418 block grant is to be allotted to Departments and to the civil servants working in them.
§ The argument of the noble Baroness— see that another Minister is due to reply today and I make no complaint about that, but naturally I must refer to what the noble Baroness said—was that the Scottish Executive will have a proper sense of priorities in deciding how to allocate the block grant. She argued that the Scottish Executive will not employ extra, unnecessary civil servants at the expense of expenditure on, say, health, education or housing. However, the only curb is this financial curb, and it is not specific. If there are to be more civil servants, then there will he less money to spend on services—and vice versa. That, apparently, is the thinking behind this clause.
§ There are two special features about the proposed Assembly which I submit the Government and your Lordships must have in mind when considering this clause. First, the new Assembly will have money which has been granted by Westminster. Not a penny of the money which is available to it will be raised by the Assembly by way of taxation or local rates. Secondly, in those circumstances the Assembly is almost bound to be complaining continuously that it is not being allotted enough money by Westminster. It must be part of the role of many of those who are elected to the Assembly to urge that more should be done in particular fields, and if that money is not made available they will say that Westminster has not allotted sufficient to the Assembly.
§ Therefore, this Assembly will be a spending institution, arguing within its own forum about the priorities upon which the money is to be spent. It will be considering the allocation of the available finance to many subjects which are thought to be desirable. No doubt there will be Assemblymen who will think that not enough money can ever be spent on, for example, new schools, hospitals and the expansion of social services. The Assemblymen are bound to have particular interests, many of them admirable, and to suggest that perhaps enormous amounts of money ought to be spent on, for example, pensioners and the disabled.
§ The noble Baroness and her colleagues on the Front Bench opposite, and I am 1419 sure their Government colleagues in another place, would no doubt be responsible in such circumstances and would not continuously be asking for more money from Westminster. However, I must ask them to visualise the kind of situation which could arise in Scotland. If over-large Departments were to be set up, without any control from Westminster over their size, a large hole would be made in the block grant. In that situation, a majority of the Assemblymen are likely to say that what is left is too little for the other subjects—education, housing, roads, or whatever they may think are the principal devolved matters. The Assembly's idea of the number and size of Departments in the new Executive could be very different from our idea here at Westminster.
§ During the Committee stage debate, my noble friend Lord Drumalbyn pointed out that at Westminster United Kingdom Ministers must have the consent of the Minister for the Civil Service about the size of their Departments, and also if they wish to increase the size of their Departments. If there is a difference of opinion with the Minister for the Civil Service, the matter goes to the Prime Minister. It is something which is controlled within Westminster.
§ The noble Baroness, Lady Stedman, said at col. 1282 on 19th April that the intention is to give to the Scottish Administration as a whole power to control the number and deployment of its staff. That is why I have proposed in this Amendment that the assent of the First Secretary should be required. At least it seems that the First Secretary, the head of the Executive, should give his consent to the size of the Department and the numbers to be employed.
§ I ask the Government and your Lordships to consider also another situation which can arise in Scotland, and it is a special one for Scotland at the present time. The Scottish Nationalist Party had about 30 per cent, of the support of the Scottish electorate at the 1974 Election, and according to the opinion polls they still have support of that order. The percentage goes up and down a little but it is roughly of that order. We all know that there could be a situation in which they could gain control of this Assembly. 1420 It may not be within its first five years but at some time, with the swings of politics, this could be so.
I draw attention to the fact that the SNP had their annual conference last month. The first part of that conference was to consider in detail what they would do upon independence, and I am now quoting from a newspaper report:
In the opening sessions delegates had solemnly to consider the draft articles for a Scottish Constitution. Come the day, Caledonia stern and wild would keep the Queen but be a separate sovereign State within the United Nations with its own navy, army and air force".
That was an article by a well-known, experienced and distinguished Parliamentary correspondent, Mr. Robert Carvel, himself a Scot. It was in the Evening Standard; I am only sorry that it was in a newspaper which does not circulate in Scotland, because he went on as follows:
Tomorrow, having settled the shape of a Scottish Cabinet, the Nationalists will get down to post-independence economic strategy. And a right cartload of nonsense that is".
§ There is somebody who knows Scotland, who is a Scot and was writing about the first sessions of the SNP conference.
§ We have, however, to recognise that that Party has as its only reason for existence the aim of secession, of breaking away from the rest of Britain; and if they were to be the Party in control in a new Assembly of course they would be getting down to Departments on the scale of a Scottish Cabinet or to consider economic strategy. They would be Departments far bigger and on a quite different scale from what the Government have in mind. So I ask the Government to bear in mind that a Scottish Administration could be controlled by the SNP, who have said that they regard this Assembly only as a stepping stone to secession, only as a means on the way to breaking away from, and breaking up, Britain.
§ It seems that the Departments as set up initially under this clause can then be expanded at any time, so it is not only a question of the Initial size of the Departments when an Assembly and Executive are first being established, but also there is nothing to indicate that the size of the Department could not be doubled if a Scottish Secretary decided that this was necessary, even though perhaps everyone 1421 else in the country thought it was unnecessary. It is a formula for empire building. Because it is necessary in the United Kingdom Parliament at Westminster for the Minister for the Civil Service to be consulted and to give his assent to the size increase of departments, all the more should it be necessary for this to be done when Departments are being set up in the first instance, as under this Bill—Departments employing, as we have already heard, the very same kind of home civil servants as are to be employed South of the Border for the Secretary of State, in his continuing office, and completely interchangeable with other home civil servants. So I ask the Government to accept that it is necessary to have added to this clause the safeguards contained in my Amendment. I beg to move.
The Earl of SELKIRK
My Lords, before the noble Lord, Lord Kirkhill, answers I should like to ask him one question: can he tell me whether Clause 28 is in fact governed by Clause 65(1), which says,Service as an officer or servant of a Scottish Secretary or of the Scottish Comptroller and Auditor General shall be service in the home civil service …"?I should like the noble Lord to answer that question specifically because it answers some of the points which my noble friend Lord Campbell of Croy has made so strongly.
§ 5.6 p.m.
§ The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill)
My Lords, in moving this Amendment the noble Lord, Lord Campbell of Croy, has made perfectly clear the two main concerns which seem to underly it. First, it is feared that there would be insufficient control over the selection of individuals for appointment by Scottish Secretaries. Secondly, and more important, there is expressed a fear that there will not be control over the total number of civil servants to be employed by the Executive. In the Government's view, by requiring the consent of both the Minister for the Civil Service and the First Secretary, for appointments, the Amendment would lead to confusion and a conflict between Whitehall and Edinburgh.
So far as control over individual appointments is concerned, the Amendment provides for consent by the Minister for 1422 the Civil Service. This is unnecessary. The Bill provides that offices and servants of Scottish Secretaries shall be civil servants and as such they will need to have been certificated by the Civil Service Commissioners. Individuals who work for the Scottish Executive will be part of a unified Home Civil Service and will be recruited according to the standard procedure. That is a very plain statement, and I hope it is a clear reply to the point put to me by the noble Earl, Lord Selkirk. Temporary appointments will also be possible—as is now the case—subject to a maximum of a five-year term. After appointment, all officers and servants of Scottish Secretaries will be subject to whatever controls the Government may apply to the terms and conditions of civil servants generally. This seems to the Government to provide adequate safeguards against the possibility of the appointment of a totally unsuitable individual as a civil servant of the Executive.
But the Amendment also provides for consent to individual appointments by the First Secretary. What is the purpose of this? Is it to ensure that there can be no question of an individual Scottish Secretary having an individual forced upon him by the Civil Service Department against his wishes? I doubt this because the noble Lord, Lord Campbell of Croy, has not emphasised that point, but it occurred to me before he rose to speak. I can say to the House that a Scottish Secretary will be free to accept any individual for an appointment so long as he fulfils the civil service requirements, or he can reject him.
The Amendment can give the First Secretary the right to veto the appointment of an individual but, in the view of the Government, that should not only be a matter for the Executive itself to determine. The noble Lord, Lord Campbell of Croy, argued that the consent of the Prime Minister is required for the appointment of senior civil servants in Government Departments—or at least he touched on the point. It may be that the Scottish Executive will wish to follow that practice by making appointments subject to the consent of the First Secretary, and of course there is nothing in the Bill to prevent them from doing so. But the Government do not think it right to impose a requirement of this kind. The Government think that this is a matter which the 1423 Executive itself should properly be left to decide. As to the control over the total numbers of civil servants employed in the service of the Scottish Executive, the Bill deliberately does not provide for any kind of direct Government control.
The noble Lord, Lord Campbell of Croy, made reference to statements made earlier in Committee by my noble friend Lady Stedman and I think she made this point clear at Committee stage. In the Government's view, the Assembly would no doubt regard such control as an unwarranted interference in their affairs. They are being given substantial powers, and it is surely up to the Assembly and the Executive to decide how many staff the Executive needs to carry out its powers. The manpower implications of that policy, as the Government mentioned very clearly at Committee stage—and the point was touched upon by the noble Lord, Lord Campbell of Croy, a moment ago—will have to be weighed against the staff costs which will have to be contained within the block fund.
The noble Lord, Lord Campbell of Croy, made much play of an excess of numbers and a scale of Departments which might be of a kind not known within the Westminster syndrome at the moment. My reply to that point is that the Assembly will be working within the ambiance of Scottish public opinion. The media will have a very clear lead to the Assembly; the Assembly will be well reported and its deliberations will be the concern of most of those who live in Scotland. I believe that the Assembly will behave in an entirely responsible manner in this regard.
The Amendment also provides that the number of individuals appointed should be subject to the consent of the First Secretary. Again in the Government's view this is something which the Scottish Executive should be left to work out for itself. So it comes down, does it not, to a point which we have made on certain other Amendments, particularly at Committee Stage. In the Government's view, the line is being drawn at a point where the Assembly will have maximum freedom within the devolved powers allocated to it. It is worth reflecting that Government do not act today in the field of local government in such a manner as the noble Lord is proposing. There is no suggestion 1424 in the field of local government that an individual authority is not free to determine its staff numbers, and I think your Lordships should at least reflect that the Assembly will have a more important status than in some aspects does our local government structure at the moment. For these reasons I would ask your Lordships not to press this Amendment.
Lord CAMPBELL of CROY
My Lords, I must first make it clear that I was not in this Amendment raising the question of the suitability of individuals. That was what the noble Lord, Lord Kirkhill, replied to first. It was the question of the size and shape of the new Departments. Where individuals are concerned, I would expect simply the normal process which happens at Westminster; that is to say, Ministerial consultation where the appointment of a Minister's Private Secretary is concerned, or the head of a Department. Clearly, the Civil Service Department and the head officials give Ministers a certain amount of choice and consultation where such appointments are concerned. I was not expecting anything different in that field. What I was referring to was the establishment. There is no establishment; that is the point. For Whitehall Departments there is an establishment, hut under this Bill there is going to he no establishment for this new Executive. I would expect the Minister for the Civil Service to approve that a Department should be a certain size, it having been suggested to him that there should be so many undersecretaries, assistant secretaries, principals and so on. That would produce a scale, and that is the way it is done at Westminster.
The noble Lord then said that this would be controlled by public opinion; and he also made what I thought was an unfortunate reference to local government, because the one thing that is quite clear to many of us in Scotland is that public opinion in some areas of Scotland has been outraged by the empire building of some of the new councils in the reorganisation of local government. At the cost of repeating what I said at an earlier stage, before I left office in 1974 I had made certain preparations to try to ensure that when the new councils were established they would not be set up on a large scale. In fact I had set up 1425 a staff commission with the special task of trying to find good alternative jobs for the local government officials who were going to be made redundant. What happened in fact after I departed from office—the Government that succeeded were no doubt very preoccupied with other matters—was that some of the new local councils did enormous empire building, and that has been greatly complained about in different parts of Scotland. But it has not had very much effect so far in causing them to change their minds or to reduce their empires. So this has been within our recent experience in Scotland with the reorganisation of local government. It is a real problem. The reference the noble Lord made to this in fact underlines and reinforces the case I am making.
Those concerned in local government at least are accountable to the ratepayers for how they use the money. If they are spending what the ratepayers think is too much money, or certain councillors are recommending that their empires be expanded, at least they have to be accountable to those who elect them. In the case of this Assembly it is spending money which has been raised by United Kingdom taxpayers and not directly by its electorate. Therefore, they need have no feeling of direct responsibility for setting up overlarge empires. Individual Scottish Secretaries may be carried away by enthusiasm for their individual tasks, as often happens with Ministers in Government who think they have been given some particularly important tasks to carry out and need a staff and resources with which to do it. This is a human characteristic. Scottish Secretaries could come in feeling that they had some great reform or some great task to carry out which required a large Department and considerable resources, but this might not be the opinion of most of the people in Scotland. As the Bill is drafted, there is no control over an individual Scottish Secretary; he can set up his own empire. So I do not think that the example of local government is a felicitous one at all where Scotland is concerned.
The noble Lord, Lord Kirkhill, has not answered my point about the Minister for the Civil Service. This was raised by my noble friend Lord Drumalbyn at Committee stage. Ministers at Westminster cannot expand their Departments 1426 or set up new Departments without the assent of the Minister for the Civil Service or the Prime Minister. But Scottish Secretaries are apparently going to be specially privileged persons who can do this. No answer has been given to that question at all. Surely what applies to a Minister at Westminster must also apply to this new form of Scottish Secretary.
My Lords, as I mentioned, another place has not had an opportunity to consider this clause at all, and this question of the setting up of new Departments and the money to be expended on it is very much their business. I feel it is important that we should give them an opportunity, which they have not had so far, to discuss this. They have not been able to discuss Clause 65, which goes with it, which sets out how the Home Civil Service are to be found for the new Departments. If we send this Amendment to the other place they can change the wording, if it is not perfect in carrying out my intention, and return it to us. I certainly believe that we ought to send this Amendment to them, and I think the Bill does need something of this kind to ensure that there is proper control over the number and size of the new Departments of the Scottish Executive.
Lord HOME of the HIRSEL
My Lords, I rather hope that the noble Lord, Lord Kirkhill, could think again about this matter. T find his reply on the situation of the individual civil servants to be convincing, but that was not my noble friend's real anxiety. I could not help thinking that the noble Lord, Lord Kirkhill, rather belittled the possibility of the Executive of the Assembly seeking to proliferate Departments, although perhaps not on purpose. But the temptation for a new and inexperienced Assembly to do so would be, in my view, quite large because it would feel that it wanted to assert its importance and so on. I hope that the noble Lord will think about this matter because it is, after all, a discipline of reference to the Minister for the Civil Service which is accepted by the Westminster Parliament and it helps to keep the Government economic. Therefore, I hope that the Minister will think again, otherwise, as this is an important point, I hope that my noble friend will divide the House.
§ 5.21 p.m.
§ On Question, Whether the said Amendment (No. 62) shall be agreed to?
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ Clause 21 [Executive powers]:
§ 5.30 p.m.1428
§ Their Lordships divided: Contents, 104: Not-Contents, 55.1427
|Alexander of Tunis, E.||Ellenborough, L.||Monk Bretton, L.|
|Alport, L.||Elles, B.||Monson, L.|
|Amherst of Hackney, L.||Elliot of Harwood, B.||Montgomery of Alamein, V.|
|Amory, V.||Elton, L.||Mowbray and Sourton, L. [Teller]|
|Ampthill, L.||Emmet of Amberley, B.|
|Auckland, L.||Faithfull, B.||Newall, L.|
|Avon, E.||Falkland, V.||Northchurch, B.|
|Balerno, L.||Ferrers, E.||Nugent of Guildford, L.|
|Balfour of Inchrye, L.||Ferrier, L.||O'Hagan, L.|
|Berkeley, B.||Forbes, L.||Perth, E.|
|Birdwood, L.||Fortescue, E.||Platt, L.|
|Campbell of Croy, L.||Fraser of Kilmorack, L.||Robbins, L.|
|Carrington, L.||Garner, L.||Rochdale, V.|
|Cathcart, E.||Glasgow, E.||Romney, E.|
|Chesham, L.||Glendevon, L.||Ruthven of Freeland, Ly.|
|Clancarty, E.||Gray, L.||Saint Oswald, L.|
|Clitheroe, L.||Greenway, L.||Sandford, L.|
|Cockfield, L.||Haig, E.||Sandys, L.|
|Colville of Culross, V.||Harmar-Nicholls, L.||Selkirk, E.|
|Colwyn, L.||Hawke, L.||Sempill, Ly.|
|Cork and Orrery, E.||Henley, L.||Sharples, B.|
|Cottesloe, L.||Home of the Hirsel, L.||Somers, L.|
|Craigavon, V.||Hylton, L.||Spens, L.|
|Craigmyle, L.||Killearn, L.||Stamp, L.|
|Crathorne, L.||Kimberley, E.||Stradbroke, E.|
|Cromartie, E.||Kinloss, Ly.||Strathclyde, L.|
|Cullen of Ashbourne, L.||Kinross, L.||Strathcona and Mount Royal, L.|
|Daventry, V.||Lauderdale, E.||Swansea, L.|
|de Clifford, L.||Long, V.||Tenby, V.|
|De Freyne, L.||Loudoun, C.||Terrington, L.|
|Denham, L.||Luke, L.||Torphichen, L.|
|Drumalbyn, L.||Lyell, L. [Teller]||Tweeddale, M.|
|Dulverton, L.||Mancroft, L.||Vivian, L.|
|Duncan-Sandys, L.||Margadale, L.||Ward of North Tyneside, B.|
|Dundee, E.||Merrivale, L.||Wilson of Langside, L.|
|Aylestone, E.||Gordon-Walker, L.||Shepherd, L.|
|Balogh, L.||Gregson, L.||Shinwell, L.|
|Banks, L.||Harris of Greenwich, L.||Simon, V.|
|Beaumont of Whitley, L.||Henderson, L.||Stedman, B.|
|Birk, B.||Houghton of Sowerby, L.||Stewart of Alvechurch, B.|
|Blyton, L.||Jacques, L.||Stone, L.|
|Boston of Faversham, L.||Janner, L.||Strabolgi, L. [Teller.]|
|Brockway, L.||Kaldor, L.||Tanlaw, L.|
|Bruce of Donington, L.||Kirkhill, L.||Taylor of Gryfe, L.|
|Collison, L.||Leatherland, L.||Thomson of Monifieth, L.|
|Crook, L.||Llewelyn-Davies of Hastoe, B.||Wallace of Coslany, L.|
|Darling of Hillsborough, L.||Lloyd of Hampstead, L.||Wells-Pestell, L.|
|David, B.||Lloyd of Kilgerran, L.||White, B.|
|Davies of Leek, L.||McCluskey, L.||Wigg, L.|
|Donaldson of Kingsbridge, L.||Ogmore, L.||Winterbottom, L. [Teller.]|
|Dowding, L.||Pargiter, L.||Wootton of Abinger, B.|
|Elwyn-Jones, L. (L. Chancellor.)||Parry, L.||Wynne-Jones, L.|
|Foot, L.||Ritchie-Calder, L.|
|Gaitskell, B.||Rochester, L.|
§ to call the Committee's attention to the fact that if Amendment No. 63 is agreed to, I shall not be able to call Amendment No. 64.
The Earl of SELKIRK moved Amendment No. 63:
Page 10, line 33, leave out subsection (1).
§ The noble Earl said: My Lords, we had a discussion on this point during the Committee stage, and I should like to take this opportunity to thank the noble and learned Lord the Lord Chancellor for agreeing to the next Amendment which stands in the Marshalled List, in which the word "prerogative" is omitted. I should like to thank him very much for that step. I think that he had an overwhelming authority of the highest character in taking that decision. In fact, I think that he had very little option, but had to do so.
§ He is now trying to distinguish in Clause 21(1) between the prerogative and the executive powers. Curiously enough, this was one of the first questions which my noble friend Lord Colville of Culross raised when he spoke in Committee. He asked whether there is a difference. Of course, he received no answer; in my opinion there is no difference, and I think it will become quite clear that there is no answer at all to that question.
§ My noble friend asked another question: can the Government say what is included in "executive powers"? Again, he received no reply, because to all intents and purposes there is no answer. I should like to remind the Committee of this because this is one of the occasions when one is entitled to do so. In his great work, The Law on the Constitution, Dicey gave a warning about the danger of not paying sufficient attention to the law of the constitution. He said that the danger is now of greater importance today than it was before.
§ In this country we have a Constitution on which no one can put his hand. It is written nowhere. It is composed of statutes, common law, prerogative and I suppose I must add, to some extent, custom. No attempt has ever been made to define it properly, except I believe in the Law on the Constitution. This is the point which I want to put clearly, as I have before. Dicey has said that the prerogative consists of the residue of arbitrary and discretionary powers remaining with the Sovereign. That is every power that the Sovereign has. The noble and learned Lord has to make up his mind, whether he says that the executive power is part of the prerogative, or whether he says it is separate. I think that he will have difficulty in justifying either 1430 of those, but it is quite clear that anything to do with arbitrary or discretionary power, by or on behalf of the Sovereign, comes under that heading.
§ Is there a halfway house between statute law, on the one hand, and prerogative on the other? That is what the noble and learned Lord has to argue. Somewhere there is a halfway house which is not prerogative but which somehow comes into the category of executive. This is really fundamental to the whole evolution of constitutional Monarchy. The story is the gradual extension of statute law which has taken over from the time when we had a Monarch—a sole ruler—to a time when we have a constitutional rule. Just as soon as prerogative is taken over by statute, it ceases to be prerogative—just as darkness disappears when one turns on the light; one cannot have the two together.
I am supported in this by some remarks made by the late Lord Reid who said:
Prerogative is only available for a case not covered by statute".
That I think is the basis. When anything is put on the Statute Book it ceases to be prerogative, and therefore, one cannot use it. I contend that the executive power is contained in the prerogative. I shall take it one step further. Let me examine Dicey's second rule of the Law on the Constitution, which is refusal of the courts to recognise any Act as done by the Crown which is not done in a particular form—in general, the affixing of a particular Seal by a Minister; that is part of the Constitution which is not there.
§ Therefore, I should like to summarise. This is the residue of the power of the Monarch which cannot be devolved and which cannot be touched by statute. It cannot be recognised, except when it is done in a particular form. I very much suspect that the Government seek a degree of solace in this rather difficult country in the Nothern Ireland Constitution Act 1973. That, of course, was a peculiar Act; it was the institution of direct rule into Northern Ireland. The first subsection of Section 7 says that the executive power shall be vested in Her Majesty. That is quite enough. The remainder of that section, in effect, is no more than declaratory. There, I think, for the first time the Government find the words "perogative and other executive powers" put together. 1431 However, it is a complete distortion to pretend that that has anything whatever to do with what we are doing now. First, as one of the Queen's advisers, naturally the Secretary of State has the perfect right to use the prerogative power. Secondly, it is specifically delegated to him. Whether or not it is good constitutional practice, it is unnecessary; but it is delegated, whereas in this Bill there is no question at all of delegation. In the 1973 Act there is no attempt to divide between what is prerogative and what is executive.
§ Therefore, with great respect, there is really no kind of precedent which could justify it. If I may say so. I doubt whether there is much in Ireland which would constitute a very good precedent for anything. We always regard Ireland as very sui generis and not to be compared with other parts. Last time the noble and learned Lord the Lord Chancellor acknowledged that it was a very poor precedent, and so it is. Indeed, it is no precedent at all. Even if it was, the present Act distorts it completely. Perhaps I could remind the Committee of what it does. It seeks to pass, by statute—which I contend is wrong—to an unknown temporary occupant of an office, the powers of the Queen. By definition that man has no access to the Sovereign whatever. He may not even tell the Sovereign what he is doing in her name. That is what stands in the statute. Quite frankly, I think that it is a constitutional abomination. This is carrying it too far. We have a duty to see that we do not do this. Nothing of this kind has ever been done by statute in this country. I shall go further and say that in point of fact it is totally unnecessary and, I believe, undesirable. Every one of the things that is needed to be done can be done perfectly well already, or can be arranged to he done.
§ The noble and learned Lord the Lord Chancellor quoted two things, one of which was the compensation of the victims of crimes. We have already been told that if the Scottish Assembly wishes to take that up it can pass an Act of the Assembly. There is no difficulty about that. It can equip itself with the powers in order to exercise its function on these matters contained in Schedule 10. There is no difficulty about that. So it can get all the powers it wants from doing 1432 that. The same applies to the arts. The third question he mentioned was disabled war personnel, which does not count because it is not devolved. However, all the powers required for the other two can perfectly well be done by statute under Schedule 10. Further—and I am not altogether sure that it is wise to do it, even if it is appropriate and even if it is possible—is it really desirable to give the Scottish Secretaries unknown powers which they do not derive from the Assembly at all—the Assembly to which they are responsible? Is it a wise thing to do, even if we could do it? I must therefore say that I think this proposal in the Bill is inappropriate. It is not necessary and it is unwise. Until we have a written Constitution in this country I would say that we have, as Dicey told us, a high duty to conserve the Constitution of what we have got.
§ Lord McCLUSKEY
My Lords, before the noble Earl sits down, may I ask one question for my information? Are these criticisms directed to subsection (1) as it stands, or to subsection (1) upon the basis that we accept Amendment No. 64, which deletes the words "prerogative and other"?
The Earl of SELKIRK
My Lords, it is directed entirely to subsection (1), after having accepted the prerogative. I say this. I may not have made myself adequately clear. If so, I apologise. The noble Lord must say that executive power is separate from the prerogative. Is executive power part of the prerogative, or is it outside the prerogative? I do not think it matters which side we take it. Those executive powers, apart from prerogative, do not exist. Therefore, the criticism of the prerogative applies with equal force to the executive powers which remain in subsection (1). If we take the executive powers out, then subsection (1) inevitably falls.
§ 5.43 p.m.
Viscount COLVILLE of CULROSS
My Lords, I think that I should add a word on this. I had rather hoped that some noble and learned Lords might add their voices to this, because it is clearly a very difficult matter. I am grateful to the Government for having indicated that they would he prepared to accept the next 1433 Amendment. They have indicated that privately. I do not think that is any secret. However, my noble friend has gone further.
As I have attempted to do on previous occasions, I shall seek to tell the Government that we are not, in raising this matter again, trying to achieve anything different from what the Government are trying to achieve. It is perfectly plain to me that there must be granted, by some means, to the Scottish Secretary the necessary powers to act in relation to devolved matters in the same way as United Kingdom Ministers at the present moment act. There is no dispute about that. It must be done. The question is how to do it. Although I am not able to lay down precisely what are the right ways of doing these things, I believe that in this area of constitutional law there are dangers in writing provisions into Statutes which do not have to be written in.
I would not go so far as to say that, merely by mentioning "prerogative" or "executive powers" in an Act, that thereby translates them into statutory powers and removes them from the realm of the prerogative or the executive. I do not think that one needs to go as far as that. But this particular provision does not just declare that what may be done, anyway, is something that is sanctioned by the Statute. It actually has, as I understand it, an effective action. It transfers, in so far as devolved matters are concerned, the exercise of those matters from the Ministers of the Crown, who have them at the moment. At least they have the ability directly to advise the Sovereign how she shall act in this particular respect. That ability to advise the Sovereign is being devolved, in its turn, and transferred to the Scottish Secretaries, who have not got the ability directly to advise the Sovereign how she shall act, except, I suppose, through the Secretary of State.
It has been suggested to me that one way whereby we could do this is to take it out of the Bill. There is nothing wrong with subsection (2). We are only dealing with subsection (1). We could take it out of the Bill and make it a matter in itself of executive statement—formal, definitive, executive statement; not a matter of legislation, but in itself an exercise of the prerogative by United Kingdom Ministers. 1434 They would be setting up a new convention, as I understand it. They would say "We are now about to make a pronouncement about the way in which we the United Kingdom Ministers who have access to the Sovereign, will in future advise the Sovereign to act. When it is a matter that is devolved under the Scotland Bill, and is a matter of prerogative or executive power that we have hitherto exercised, we shall in future advise Her Majesty to act upon the basis of what the Scottish Secretary says should be done." That will produce a convention which will have exactly the same effect as Clause 21(1) of this Bill. But what it will not do is to enshrine in a Statute something which may in some way undermine or vitiate the pure existence of the prerogative and executive powers themselves.
This is where I think we are all in doubt about this matter. Certainly I am not enlightened by what the noble and learned Lord the Lord Chancellor said last time. We are not quite sure of what we might he doing by virtue of subsection (1). If we can do it another way, which is bound to do no harm—whereas this procedure in the Bill could conceivably have a deleterious effect—would we not be wiser to use the method which is bound to he harmless?
I would not expect the Government to be able to give a complete answer to this today. They would no doubt need to look at some precedents—I think there are some—whereby they might make the kind of definitive statement about which I have spoken. For all I know they will come to the conclusion that they cannot. My personal inclination would be to ask whether my noble friend Lord Selkirk might be persuaded, today at least, to leave this matter over so that we could at least take out the reference to the prerogative under the Amendment that I know the Government will accept, and perhaps give the Government an opportunity to listen to what must have been conceded by all to be a weighty speech coming from my noble friend, who, after all, exercised the prerogative himself, as a Governor-General, as well as being a distinguished Scottish lawyer. That is a good combination to form the basis from which to talk about this particular matter. I hope that the noble and learned Lord has not finally made up his mind on this point. It must be too difficult ever for anyone finally to make up his mind upon it. I 1435 hope that what I have suggested might give us further opportunity for thought, and perhaps a way of resolving this difficulty.
§ Lord HARMAR-NICHOLLS
My Lords, before my noble friend sits down, is lie saying to the House that he accepts the offer by the Government to accept Amendment No. 64, but he reserves his freedom later on to ask for the whole subsection to be removed?
Viscount COLVILLE of CULROSS
My Lords, yes. That was exactly what I was going to suggest. But it is not for me to say anything much about it. The matter is in the hands of my noble friend Lord Selkirk, whose Amendment it is.
§ 5.49 p.m.
§ Lord FRASER of TULLYBELTON
My Lords, I feel that I must take part in this discussion again. I find myself a little embarrassed because the noble and learned Lord the Lord Chancellor was kind enough to inform me that the Government were likely to accept Amendment No. 64. When I received that information I accepted it and did not make any further objection. I feel therefore that I am morally barred from pressing any objection very strongly. At the same time, having heard the noble Earl, Lord Selkirk, I find myself so in agreement with what he said that I should like to associate myself with what the noble Viscount, Lord Colville of Culross, has just said, and ask whether the Government might not, even yet, be persuaded to think about this further.
The noble Earl was clearly right when he said that there is no intermediate power which could be caught by what is going to be left of this clause after Amendment No. 64. Clause 21(1) refers to,Such of Her Majesty's prerogative and other executive powers …".If the Amendment is agreed, "prerogative and other" will be left out. That would leave standing:Such of Her Majesty's … executive powers…".I think that, as a matter of law, it is not open to argument that Her Majesty has only two sorts of executive power. One is the common law power derived from 1436 the prerogative; that is the residue of what was the King's autocratic power to govern the country at his will long ago. The only other source is statute. The Crown has a lot of statutory powers. If we take out the words "prerogative powers" and then leave in "executive powers" that seems to imply that there is a power which is neither statutory nor prerogative. I do not believe that there is any such power. If the noble and learned Lord can tell me of one, I should be interested to hear it, but I doubt whether he can.
I suspect that the distinction which he will try to draw is between those prerogative powers which involve the personal intervention of the Sovereign and those prerogative powers which do not involve her personal intervention. That may be a practical distinction, but it is not a legal distinction. Therefore, it seems to me to be an unsound distinction on which to base leaving Clause 21 standing as it would stand after being amended. I think that the Government ought to think about this further.
From a practical point of view it seems to be dangerous to delegate to unknown people powers which, so far as I am aware, nobody can define: the executive powers of the Crown, which are presumably not to include the prerogative powers—at any rate not to include those which involve any personal intervention by the Sovereign. If one could have any sort of intelligible list of them, one might not view this with so much apprehension, but there is no list available.
I believe—and I think that the noble Viscount, Lord Colville of Culross, was quite right about this—that this is really unnecessary. This could all be done better—and I have already made my view known to the noble and learned Lord—by a formal statement from the Government. That was how it was done in somewhat similar circumstances when prerogative powers were, in effect, being delegated to the Dominions. In 1930 this kind of thing arose. The question was how Governor Generals of Dominions were to be appointed. That is done by the Crown as an act of prerogative.
At the Imperial Conference 1930 a statement was made that in future the appointments should be made on the advice of the Dominion Government 1437 concerned and not through, or in any way with the support of, the United Kingdom Government. That was made as a statement of what in fact would in future be the practice. Something on those lines would be the appropriate way of dealing with this problem. I wonder whether the noble and learned Lord might not be willing yet to take this matter further into consideration.
§ 5.53 p.m.
§ Lord HARMAR-NICHOLLS
My Lords, may I say that I do not think that this is just a lawyers' point. We have had distinguished lawyers who have put a strong case to the Government, but there is something wider than the strict legal points they have been arguing on this. It is similar to my Amendment which will come after this. When you upgrade the Scottish Secretary you are downgrading the Secretary of State for Scotland, in the sense that the prerogative and the devolved powers that are being talked about at the present time rest in the hands of the Secretary of State for Scotland.
I am relieved that my noble friend on the Front Bench made it clear that, while he will be accepting the offer to remove "prerogative and other", he still reserves the right, subject to the reply of the noble and learned Lord and perhaps further consideration before we get to Third Reading, to do something about the whole subsection. I think that my noble friend Lord Selkirk was right in wanting to remove the whole of the subsection. This puts the Assembly on the level of a Parliament. I have made this point before. Before we know where we are we shall be having the case that our gracious Queen is the Queen of Canada, Australia, the United Kingdom, and the Assembly of Scotland. That is what it is almost upgrading the Scottish Secretary to, and, as has been pointed out, upgrading a Scottish Secretary who is not known and with powers that have never been tried. Most of this Bill is designed to placate extreme feeling in Scotland and we must be careful indeed that in placating the immoderates we are not downgrading Parliament, which has passed the test of centuries and which flows from both the Constitution and statute law which has been tried and well tested.
1438 I make the point, as I shall later on argue, that we must not downgrade the powers of Members of Parliament—that is what my Amendment to follow is all about. In this case we must not downgrade the Secretary of State for Scotland. The whole of the results that will flow from it, and particularly from this subsection being discussed now, can give the impression that in building up the one you are putting down the other. That cannot be good.
§ Lord McCLUSKEY
My Lords, I must confess myself somewhat dismayed at the dissatisfaction which noble and learned Lords, and the noble Viscount, have displayed at the subsection as it would be if the Government accepted Amendment No. 64. The noble and learned Lord. Lord Fraser of Tullybelton, kindly referred to the fact that he himself had not raised the point which he now supports for the reasons that he has explained, and I had understood that the noble Viscount was pleased with Amendment No. 64 and satisfied with subsection (1). It may be that I am being unfair.
Viscount COLVILLE of CULROSS
My Lords, may I just say that nobody is ungrateful for Amendment No. 64. It is just that, after having heard what my, noble friend Lord Selkirk said, it seemed to me—and I think perhaps it also seemed to the noble and learned Lord, Lord Fraser of Tullybelton—that there was still an area to explore. We are not being tiresome or inconsistent. It is just that we think there is still something left that needs looking at. I hope it is not too much to ask the Government to do so.
§ Lord McCLUSKEY
My Lords, I was not suggesting that anybody was being tiresome. I was merely suggesting that I was dismayed. I am sure that the House will understand that. I believe that it is important to look at the precise wording of subsection (1), and I shall do so, leaving out the words in Amendment No. 64, which we propose to accept. What is left begins with words which are important; the words "Such of". That wording makes it clear that Her Majesty has certain powers, and we only refer to such of them as fulfil a certain qualification.
1439 We go on to the next important words:Such of Her Majesty's … executive powers as would otherwise be exercisable on behalf of Her Majesty …".There is an important distinction there in the words, "on behalf of", because there are powers which Her Majesty herself exercises on the advice of Ministers; for example, she may appoint a judge, she may sign a Royal pardon, and she will do either of these things, or similar things, on the advice of Ministers. But we are not talking about that kind of power, but executive powers now exercisable on behalf of Her Majesty by a Minister of the Crown.
Then the further qualifications that appear from the subsequent words are:… shall, if they relate to devolved matters and are exercisable in or as regards Scotland …".If all these qualifications are fulfilled, then they may be "exercisable on behalf of Her Majesty"—again the words "on behalf of" are important—"by a Scottish Secretary". All the words in the clause deserve attention and also weight. I suggest that, if one looks at the clause in that sense, the difficulties are not real.
I make that point forcefully because I listened with great care to the noble Viscount, who specifically referred to the dangers and possibility of undermining something. I waited to be told what the danger was; I wanted some specification and I wanted to know what it was that was being undermined, but he did not tell us. I understand exactly why, namely, because he does not know; he cannot point to anything that this subsection would achieve that would somehow undermine the position of the Crown, the Constitution or anything else.
§ Lord HARMAR-NICHOLLS
My Lords, surely it undermines the powers of the Secretary of State. If he were having given to him only the powers that the Secretary of State has, willingly given by the Secretary of State, that would be one thing, but it is being given directly from the Queen without coming through the Secretary of State, so the one being injured is the Secretary of State, and he is answerable to Parliament.
§ Lord McCLUSKEY
I do not want to give way too often on Report, my Lords, 1440 and I do not think that would be the answer which the noble Viscount would offer me. I am saying that in the speeches to which we have listened, no noble Lords put their finger on a precise danger or possibility that they can identify and say, "That is made good"—or, "That is made bad," if you like—by the wording of the clause with Amendment No. 64.
Let me approach the matter quite generally. The subject matter of the clause is the devolution of executive powers of a certain kind and of a certain limited character to Scottish Secretaries. The Bill can be specific in identifying those powers only to a limited extent. That is because so many of them lie within the generalised wording of the groups in Part I of Schedule 10. Our object in proceeding with this subsection is to pick up the whole corpus of ministerial executive powers lying in the field of the devolved matters specified by Clause 61(3) and devolve them to Scottish Secretaries. As I have indicated, these powers are exercised now on behalf of the Crown by Ministers. They will continue to be exercised on behalf of the Crown and I believe this, as a critical proposition, is properly stated as a matter of constitutional law.
The powers in question are not limited to those conferred directly by any existing enactment. I am conscious of the weight of the speech of the noble and learned Lord, Lord Fraser of Tullybelton, when he said he thought there were only two kinds of power, the residue of the King's autocratic power and statutory powers, but I believe that every noble Lord who has held ministerial office will know how often a Minister relies not on a statutory power but on a general executive capacity; that is to say, in a sense, his capacity to do as a Minister anything that he as an individual can do.
Consider, for example, the position when a Minister sets up an advisory committee; if a Minister decides to promote an exhibition; if he intervenes to conciliate in a dispute; if he promotes an advertising campaign, although for that matter he might need funds and might therefore have to go to his legislative authority or somewhere else to obtain those funds. Those are all matters which are not specified in a Statute, and if they fall to be described as coming within the category of the residue of the King's autocratic 1441 power, then I should have to accept that, but I believe that would be to give them a title and dignity which they perhaps do not properly deserve.
I believe that the Amendments here offered—and I am considering both Amendments standing in the name of the noble Earl—would produce a radically different picture. They would simply devolve on to Scottish Secretaries ministerial powers derived from any enactment; that would be the effect of deleting subsection (1) and of the other Amendment. That would be much closer to the pattern to be seen in the Wales Bill. But of course that Bill is quite different from the Scotland Bill in its whole conception, the principal point of difference being that there is no legislative devolution. In this sphere, that Bill only transfers to the Welsh Assembly a long list of specified ministerial powers, each of which can be, and is, identified with precision. There is therefore no room for doubt or ambiguity; one simply looks at the list. Above all, there is no reason to doubt that the powers remain exercisable by the Welsh Assembly on behalf of the Crown, and it is as unnecessary to spell that out as it would be if powers were being transferred from one United Kingdom Minister to another.
In Scotland and, as I have tried to explain, under this Bill, the devolution of executive power is in wider and much more general terms. We cannot list all the powers. Certainly we can identify some powers—and we do so in Schedule 11; they exist already in Statute—because there we achieve executive devolution only, and to that extent we follow the pattern of the Wales Bill. But we must think also of those powers covered by, and inherent in, Part I of Schedule 10 and the general executive powers and other powers which are to be found, for example, in Royal Charters. The Bill would not achieve its purpose if it referred only to those powers which are derived from enactment, though that is precisely what Amendment No. 65 would do.
Therefore in the Scotland Bill, in this clause as it stands, we have the more elaborate formulation which the Amendment would have us drop. And because the exercise is more elaborate than that in Wales and because it results in the devolution of this wide spread of powers, we 1442 emphasise—the wording does that in the way I have drawn attention to—that the powers will remain exercisable on behalf of the Crown. I would perhaps seek to take a slightly different approach to the matter, but I do not think I am saying anything very different. Clause 21(1) as amended seeks to devolve those non-statutory powers which are exercised by Ministers, and I have drawn attention to the wording. It does not seek to devolve any powers exercised by Her Majesty on the advice of Ministers—that is the point I sought to make earlier—and there is no question of access being provided to her Majesty by Scottish Secretaries.
I believe it is wrong to over-dignify the powers I am talking about by describing them as part of the traditional and historical powers of the King; they represent in substance a general executive competence Which these Scottish Secretaries should have if they choose to do the kind of thing of which I gave instances in advance of specific legislation passed by the Assembly in the exercise of its legislative competence under Part 1 of Schedule 10.
The Assembly, as the noble Earl rightly pointed out in relation to the example of compensation for victims of crime, will be able—because it has the legislative competence to deal with that—to give powers in that field statutory form, and in doing so to elaborate, codify and restrict them in any particular area. But until it does so, some gaps might arise in the necessary authority of Scottish Secretaries within the devolved fields and within Scotland, and they could be handicapped in dealing with devolved matters in a way which Ministers at Westminster are not handicapped. We believe, therefore, that it is prudent and sensible to provide for the transfer of those, which are in practice limited, powers which Ministers now have and which have no precise statutory basis, notably those, which were instanced in Committee, to give public support and encouragement to certain public activities; an example was given then and the noble Earl referred to it.
It is true that Her Majesty's executive powers which are now exercised on her behalf by Ministers are nowhere precisely defined, but that is because they are incapable of definition, just as nobody could define what a private individual can do; one can assert the negative and say 1443 that an individual cannot do this or that. An individual, for example, cannot impose regulations or make some kind of penal sanction. One can say what he cannot do, but to provide a list of the things that he can do would be impossible.
In this field we are simply seeking to ensure that when the Scottish Secretaries exercise their functions in Scotland in relation to devolved matters, and in advance of any legislation passed to give them precise powers, they may do this kind of thing which at the moment may be done in the same fields in Scotland by Ministers on behalf of the Crown. That is all. I do not believe that this clause as worded—subsequent to accepting Amendment No. 64, which we propose to accept—creates constitutional problems of an insoluble kind.
I have been asked to say what attitude the Government would take to the suggestion which the noble and learned Lord, Lord Fraser of Tullybelton, made at the Committee stage, and which was repeated by the noble Viscount and by the noble and learned Lord himself today. The Government have given this matter very careful consideration. The noble Viscount said that there can be no finality in these matters, but there has to be finality in the context of a Bill of this kind. We have to reach a conclusion. The Government have reached their conclusion, and that conclusion is subsection (1) with the three words deleted from the first line. I have to rest on that answer, and I invite the noble Earl not to press the Amendments.
§ The Earl of PERTH
My Lords, I am no lawyer, and I am very much out of my depth. However, I have listened to the noble and learned Lord speaking, and the first point that occurs to me is that everybody is trying to arrive at a right answer. This is not a Party point. This is a case where those who have spoken in favour of the noble Earl's Amendment have done so from the standpoint of genuine worry about what kind of result may follow what is proposed by the Government at the present time. We heard from the noble Viscount, Lord Colville of Culross, and from the noble and learned Lord, Lord Fraser of Tullybelton, that they are worried. The noble and learned Lord, Lord McCluskey, said that they have not 1444 been specific on what their worries may be. All right—they have not at this time. However, very often the very fact that someone who has the experience of these noble Lords is worried means that there is a point which should be looked at. If I am right in that, it seems to me that it would be wise for the Government once more to weigh up what has been said today: not to undertake to accept any change, but to see whether, for example, the solution put forward by the noble and learned Lord, Lord Fraser, has some merit in it, and in that way at least give comfort that this question is not being decided too quickly.
Therefore, I hope that the noble and learned Lord, by using the phrase "with the leave of the House", will make it clear that this matter is to be thought about some more. Of course that would in no way commit him to accepting anything different. As I said, I do not understand this fully, but I am impressed by the arguments and the anxiety of those who want to do the right thing as much as the noble and learned Lord on the Government Benches does.
§ Lord McCLUSKEY
My Lords, at the invitation of the noble Earl, and with the leave of the House, I wish to say that we have given this matter immense consideration. I cannot say to the House that we will give it further consideration in the light of the debate, because nothing has been said in the debate that was not already brought to our attention by the noble and learned Lord, Lord Fraser of Tullybelton, and the others who have spoken, and by the correspondence to which the noble Earl, Lord Selkirk, referred. All these points have been before us, and they have been considered with great care. We have to reach a conclusion, and, as I have said, we have reached this conclusion—it is in the Bill—and I will not undertake to take the matter back for a further examination.
The Earl of SELKIRK
My Lords, the noble and learned Lord is simply challenging me to divide the House, and I must think it over as to whether I should. He made a reply which does not meet the point at all. Let us he quite frank about this. This is one of the most complicated Bills that we have had before this House for a long time. We have had this appalling 1445 Schedule 10, and the Government say that this is not enough. We are told that we must have many more undefined, utterly unspecified powers handed over to the Assembly, because it cannot work otherwise; there might be a gap in its legislation.
Let us ask the noble and learned Lord a question. Let us suppose that we were in America, or in Australia, where there is not a Queen. How would one handle a matter like this? How would one get on without a Queen? Many countries do get on without a Queen, and they seem to run very satisfactorily. Are we really saying that we must have undefined powers in order to carry on the limited government of Scotland? This is nonsense—just nonsense.
Despite all that the Government say, we must ask them to think about this matter. I know that there are very real disadvantages in dividing at such a stage of a Bill, and I do not like doing it if I can possibly help it. I consider that the noble and learned Lord the Lord Chancellor should read the speech of the noble and learned Lord, Lord Fraser of Tullybelton. We should leave the matter at that for the moment. I do not want to make this question a division between Parties. I believe that this is a profoundly important constitutional change. It is something that has never been attempted in the Parliament of this country in 700 years, and I think we should have a little opportunity to think about this again. I believe it is a matter on which we can come to agreement, despite the rather dogmatic views which the noble and learned Lord has expressed—I will not put it higher than that. I must warn the noble and learned Lord that I am not going to leave the matter at this, but I am quite prepared to withdraw the Amendment now. I always believe that there may be a chance that sinners will repent, and on those lines I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
Viscount COLVILLE of CULROSS moved Amendment No. 64:
Page 10, line 33, leave out ("prerogative and other").
§ The noble Viscount said: My Lords, I do not think that I need say very much about this Amendment—except that I beg to move.1446
§ Lord McCLUSKEY
My Lords, before the question is formally put, I should say that I have made it plain that we accept this proposal, and we are happy that the noble Viscount has persuaded us of the wisdom of doing so.
§ On Question, Amendment agreed to.
§ [Amendment No. 65 not moved.]
§ 6.17 p.m.
§ Lord HARMAR-NICHOLLS moved Amendment No. 65A:
Page 11, line 3, at end insert—
("(3) No powers, rights or duties, whether legislative, executive or representative, and whether formal or informal, shall be exercisable by a Scottish Secretary or by any member of the Assembly if they relate to matters which are not devolved or which are properly the province of a Minister of the Crown or of Members of Parliament representing Scottish constituencies.")
§ The noble Lord said: My Lords, I want to say a few words before the noble and learned Lord leaves. I had reason to compliment the noble and learned Lord on his manner—and I meant it—but on this occasion I have to offer serious criticism of his manner of a few minutes ago. He seemed to show that superiority of the lawyer which is not in keeping with the general manner he has shown in the past. I refer to that superiority of the lawyer which has caused the lawyer Members of Parliament to be the most unpopular Members of Parliament in the past. I say this because of the way that he seemed to suggest that on matters which he deems to be legal matters only comments from legal luminaries in your Lordships' House ought to be listened to. The noble and learned Lord, in dealing with a point which I still think has some substance in it, said that the answer given was not the kind that the noble Viscount, Lord Colville of Culross, would have given. I hope that if, in our consideration of this Bill, a certain matter is deemed in the minds of some to be a legal matter, this place will not be a playground, or a debating chamber, for only the lawyers themselves—
§ Lord McCLUSKEY
My Lords, will the noble Lord give way? I was not suggesting that the noble Lord's opinion upon these matters is any less valuable than anyone else's. If he reads very care- 1447 fully what I was saying before he intervened, and what I said afterwards, he will see that no offence was intended, and I hope none was given. If some offence was taken, then plainly I have not expressed myself with the clarity that a lawyer ought to have, and I would apologise for that. I was simply saying that I was endeavouring to answer a point that the noble Viscount, Lord Colville of Culross, had made, and the answer which the noble Lord, Lord Harmar-Nicholls, offered to me was not the answer that the noble Viscount, Lord Colville, would have offered. That is all.
§ Lord HARMAR-NICHOLLS
We do not know, my Lords. When he reads it, perhaps he will try to make the same point with all the force of his legal training behind him. I naturally accept what the noble and learned Lord says, but it was out of keeping; and as one of those who sometimes feel that we pay the lawyers and then at the end of the day have to pay the price of the mistakes of some of the lawyers, I do not feel I have to how down to them with quite the same alacrity as is sometimes expected by some lawyers, although I do not suggest that the noble and learned Lord is one of those.
However, I tie my own Amendment to that because they are not dissimilar. The arguments that we have just had are a denigration of the powers of the Secretary of State, and I want to preserve the powers of the Westminster Parliament. If the powers are to be taken from the Secretary of State and given to a Scottish Secretary, then he is being downgraded. My Amendment flows on from that. I want to make certain—and if the words which I have on the Marshalled List are accepted, then my Amendment will go some way towards doing it—that the Members of Parliament who are elected in Scotland to the Westminster Parliament are not downgraded. I do not want the powers and the facilities that they have by being Members of Parliament, and the privileges and the perks that go with it, to be removed from the elected Members at Westminster and given to the elected Members of the Scottish Assembly. I do not say that with any denigration of what the status and standing of the Scottish Assembly will be if ever it comes into being, but, even with this, I believe it is vital as well as right that we should not 1448 remove the responsibilities, the powers and the privileges that go with that great compliment that is paid to anybody who is elected to sit in the Westminster Parliament, which rules over the country.
There is some doubt at the minute whether or not that is going to happen, and the thing that puts the doubt in my mind, if I may quote it, is that we had a very interesting episode in another place when Mr. Tam Dalyell, who is an expert on these matters and who has really gone well below the surface to understand what they are all about, said that he was very disturbed when he heard a comment made by the Foreign Secretary, when, in Edinburgh on 25th November 1977, the Foreign Secretary said, in effect, that the Assembly should be consulted as an Assembly in respect of the United Kingdom's relations with the European Community. I do not believe we ought to run even the slightest risk that the Assembly is going to have a contact with the European Community without it going through Parliament itself; and if any elected Members go to the Community to further Scottish points, they ought to be the Westminster Members of Parliament, who have always done it. My words, if this Amendment is accepted, would make certain that that indeed will happen.
I give your Lordships another quote which caused me to put this Amendment down. We had Mr. John Smith, the Minister of State at the Scottish Office, saying on 11th January 1978, as officially reported:If we devolve agriculture, the Minister of Agriculture would be representing the Scottish Assembly's interests when matters were discussed in the European Community".That is all right; but then he went on:He might take with him a representative from the Scottish Administration. That would be on a grace and favour basis, rather than because the Scottish Administration had a right to be represented".I do not believe that he ought to take Member from the Assembly. I believe that if he needs the support and advice of any elected Member, it should be the elected Member of Parliament at Westminster.
When the noble and learned Lord the Lord Chancellor was dealing with a point similar to this which I made at the Committee stage, he said: 1449I think we have got round this dubious problem",as he called it.
In fact, there is nothing in the Amendments to stop anyone being consulted on matters which are devolved or which impinge on matters devolved".I accept that; I do not think there ought to be anything. Indeed, in part of the noble and learned Lord's speech he said that I was nodding agreement with him when he was making that point. Indeed I was. I do not believe the Secretary of State or the Assembly ought to be prevented from consulting with anybody who they think has some contribution to make in arriving at what they hope will eventually be the right decision. I would not want that; but what the noble and learned Lord the Lord Chancellor did not say, and what disturbs me, is that it is one thing to be consulted but it is another thing to he taken as part of the official team outside the boundaries of this country to arrive at a decision which is going to affect us.
I believe that that is upgrading the Assemblyman, to the detriment of the elected Member of Parliament, to a degree which can be, I believe, unhealthy and, indeed, dangerous at the end of the day, because there is a risk of causing conflict between the elected Members of the Assembly and the elected Members of the Westminster Parliament. Those of us who have had a little experience of this matter of one's jealous feeling towards one's own constituency will know exactly what I mean. If, in another place, someone asks questions or deals with matters affecting your constituency, you are very concerned about it and you go to great lengths to put him in his place and to see that he does not step into what is your field of authority. If you are going to run the risk, even, of the Assemblyman impinging on the territory which has for centuries been the territory of the elected Member of Parliament at Westminster, then you may well affect the good working of this Bill, if it ever becomes an Act, by bringing about that sort of conflict between the elected Assemblyman and the elected Member of Parliament.
I have no doubt that the noble and learned Lord will say that there are other parts of the Bill which will perhaps answer this point, and that it is very clearly laid out. There are some parts of it which, I agree, do to some extent try to deal with 1450 the point that I am making; but, having read them in some detail and tried to look at them from a reasonably impartial point of view, I do not think that what is in the Bill really does that. But even if the noble and learned Lord himself feels that there is enough in the Bill to prevent the conflict that I am talking about, it would not do any harm to accept my words in order to make sure. It is common now, if one has a valuable jewel, not to rely on the pin of the jewel to keep it safe; you attach an extra safety chain, because the jewel is valuable enough for you to go to that sort of trouble to make sure that you do not lose something which is of great value. I believe that this power of the elected Member to Westminster, his privileges and his rights and his special recognition as being the only spokesman for his electorate, is a jewel which deserves the extra chain which my words would give to it.
This is not a matter, perhaps, which will be understood to the same extent by people who have not experienced, if you like, the feelings of responsibility that go with being elected to another place along the corridor; but I believe it is that feeling of jealousy, that feeling that it is your responsibility and a responsibility which you feel deeply, which makes being a Member of Parliament the really worth while job that it is, as compared with the boredom and the very unsatisfactory other points that go with it. I do not think we ought to disturb that, and so this Amendment runs very closely to the one with which we have just dealt. Do not undermine the value of the Secretary of State, because in doing that you are undermining the value of the Ministers in the Westminster Parliament. Do not run even the most minimal risk that you are undermining the standing and the powers of the ordinary Members of Parliament. My words are designed to ensure that, and I believe this extra chain is one which ought to be accepted.
If this Amendment is not accepted by the noble and learned Lord I shall not want to push this to a vote on my own calling, because I know jolly well that if any individual Member of any Parliament gets the reputation of always wanting to push to a vote his special point of view without having the support of his leaders—and I am talking about the two Front Benches on this occasion—then he soon becomes a bore and one who is not listened 1451 to. But if it is that other Members of your Lordships' House think that there is enough in this to warrant this safety chain that I am recommending, if it is that they call for it when the Question is put I shall not withdraw it—then I would welcome joining them in the Lobby; and I hope that that is how some will feel about it. But if they do not, then it will merely be negatived without the necessity of us tramping through the Lobbies. But with that as a recommendation—based upon, as I say, an experience which is not shared by all, but which is shared by many in this House—I commend the Amendment to your Lordships in the hope that you will give it serious consideration. I beg to move.
§ Lord SOMERS
My Lords, only yesterday an attempt to limit the number of Scottish MPs in another place was defeated in this House. I presume therefore that your Lordships feel that they are to be there for some purpose. I feel that the Amendment moved by the noble Lord, Lord Harmar-Nicholls, is very necessary in order to preserve their right to deal with the matters which are not devolved. During the preliminary years of the Assembly there is bound to be a certain amount of confusion as to what the Assembly may deal with and what remains the right of Scottish Members in Parliament, and I think it is an excellent thing that those matters which are not devolved—and that is clearly laid out in the Bill—should remain in the hands of the Members of the British Parliament.
§ 6.32 p.m.
§ Lord WIGG
My Lords, if the purpose of the noble Lord, Lord Harmar-Nicholls, is to preserve the right of Members of another place, of course he is battling on behalf of a lost cause, because over the years the other place, through Parliament and through its functions by Members of Parliament and its work outside, has given that power away. The power to govern these Islands rests now not in Westminster but in Whitehall. What is done is decided by the mandarins in Whitehall. For a very brief period—and we are coming up to such a period—there will be the preliminaries to a General Election. Before the Election is over a number of sets of papers will have 1452 been written by the mandarins. One will have a blue tab on it in the unlikely event of the Conservatives winning; another set will be written in the event that the Labour Party remains the Government, and then there will be subsidiary sets, on perhaps half a sheet of paper, against the widly improbable happening that the Liberal Party may get more than ten votes. This is broadly the situation. The day that Sir Alec Douglas-Home ceased to be Prime Minister, when he knew the result and went to the Palace, all his papers were put on one side and a new lot were produced. That was the Queen's Speech, the basis on which the Government would be run.
The heart of the noble Lord, Lord Harmar-Nicholls, is in the right place, despite the fact that his body is in the Tory Party. He comes from the Midlands and, because he comes from the Midlands, he talks blunt, plain English and he is trying to limit the erosion. He does not want it to spread to this new Assembly. I am entirely at one with him as long as we recognise what we are doing.
I should like to tell your Lordships a little story. I wish the noble Lord, Lord Shinwell, were here because it concerns him. I became his Parliamentary Private Secretary while still serving in the Army in 1945. In my innocence I thought that of all the subjects upon which the Labour Party had come to power it was on the nationalisation of mines. So when I went to see Manny Shinwell, as he then was, he told me that the Prime Minister had asked him to nationalise the mines. In my innocence I thought—after all, I had been a member of the Labour Party since I was 18—that there were libraries, rooms stacked out as the result of the thinking of the late Harold Laski and others—all worked out in detail. The only document that existed was a pamphlet in Welsh written by Jim Griffiths. The truth is that the basis upon which the mines were nationalised in this country was not as a result of work in the backroom by the Labour Party, but as the result of decisions worked out in Smith Square, not across the other side but in the offices of the Ministry of Fuel and Power. It was worked out by the civil servants. And what is true of the mines is true of every other subject. When we discussed the defence policy and we attacked Mr. Mulley, that was nonsense; what we were 1453 attacking was some obscure person in the Civil Service.
Next week I am going to deal, I hope, with an Amendment which I have got down in connection with betting, gaming and lotteries. The Minister came to the Dispatch Box and was hopelessly briefed. I was aghast at what he said and I had some sympathy with him. But who made the mistakes? Not the Minister; this was the utter nonsense written in the Home Office. It was passed to him and nobody noticed what was wrong. That is what is happening. The Government have now come along with this Bill. It has not been thought out.
The noble Earl, Lord Selkirk, tonight is obviously very upset at what he sees as a possibility of this Bill going through because of the passing of power into realms which have not previously, as it were, been defined. What the poor man is up against is the fact that the Government have produced a Bill—or it has been produced for them—which is just so much thinking. It has been worked out to deal with a specific political situation. The noble Lord, Lord Shinwell, speaking yesterday afternoon, said,I wonder what would have happened if we had waited until after the Hamilton by-election".Noble Lords may ponder on that. Of course we would not have seen either this Bill or the Wales Bill, because there would have been no need for them.
All of us need to be more careful. We may do one thing and then somebody wakes up a generation later on and sees as the result of our actions all sorts of consequences which we never thought about. Those of us who object to this Bill in principle, I believe are objecting to the fact that we see this Bill ill-thought out, cutting into the concept upon which for the last 1,000 years these Islands have been able to stand the strains and stresses and hold their position in the world.
The noble Earl, Lord Perth, made a remark yesterday which was inaccurate. It was not very generous. He introduced as an argument that all those of us who supported a certain Amendment were opponents of the Bill. We are none the worse for that. But he is not a better man for taking an opposite view, and because we are opposed in principle to the Bill it does not mean that we have put our thinking 1454 out and that we should not seek to amend it. After all, the noble Earl, Lord Perth, can produce exactly the same argument against the noble Lord, Lord Hamar-Nicholls, in relation to this Amendment and in relation to myself for supporting it, because my name is on it.
But it is unfair. We are pointing out, and we shall be failing in our duty if we do not continue to point out, the dangers which may flow from the fact that Members of another place and of your Lordships' House have given away at every stage our effective control of the Executive. Having given it away, what the noble Lord, Lord Harmar-Nicholls, is afraid of is that somebody may come along and take it for grabs. Before you know where you are you will find that the Assemblies, because they are new to it and it is something new to public opinion, have grabbed hold of powers that another place and this House have surrendered.
§ 6.30 p.m.
§ The Earl of PERTH
My Lords, I want to say to the noble Lord, Lord Wigg, that in a sense I was not critical. I recognised their honesty of purpose, though I do not have to agree with it, but perhaps it is worthwhile pointing out that all those who spoke last evening on that Amendment were of a particular opinion. I think it is right for the House to know that.
§ Lord WIGG
My Lords, if that is to be used in argument then let us put a cross on our foreheads that we are against it; and I will preface all I say by saying, "Yes, I am opposed to the principle on which this Bill is based." But, on its merits, I want to point out through my words that I support the noble Lord, Lord Harmar-Nicholls, but for reasons which go wider than this. Let me refer to the functions of this House. Why is it that this House lacks effective power? It is because by its own actions it has ceased to control the Executive. Every time a Member of this place puts down a Question for which a Minister is not responsible, by that action the authority of this House has been diminished. Day after day it goes on. Hardly a day goes by when there are not Questions put on the Order Paper, supplementary questions asked, and Ministers replying—on subjects utterly irrelevant to and nothing to do with their responsibility.
1455 Indeed, the whole function of a Member of another place or of this House is to check the Executive when it is wrong or when we think, either as individuals or collectively, that a Member of this place or of another place is exceeding his authority or is not acting as we think he should act in the public interest. What the noble Lord, Lord Harmar-Nicholls, is worried about, if I read his Amendment aright and I have caught his meaning, is that this new Assembly—because its purpose is ill-defined, because its purpose has not been thought out, where you have new Members coming along—before we know where we are, and before they know where they are, for the most innocent reasons will have started to discuss and bring pressure to bear on Ministers far beyond those which are being exercised in another place or in this House, because neither House is doing its job in controlling the Executive.
If we do not control the Executive and do not bring them to account, we have completely failed to understand our British system. Our British system is not a talking shop; it is to elect a dictatorship for a period of five years and to give it sufficient power to carry through a programme during its life until it returns its mandate to those who gave it, to the electorate. During that time, in the way it operates, through debates on Supply, Questions and Answers, through the exercise of a Vote, and all the other paraphernalia and procedures of both Houses, we can call the Executive to account.
Now you are going to have a hydra-headed monster which is going to operate in another way—not by calling Ministers to account in another place or here, but through a new force in British public life, through the exercise of an uninformed public opinion expressing itself through the media. This is really a dictatorship of the worst possible kind; it will be a dictatorship without purpose, without a brain and without a head. All that it would have is power and no purpose. That is the kind of society which, if we have not got it, we are well on the way to getting. For that reason, I think that the noble Lord, Lord Harmar-Nicholls, whether he presses this Amendment to a Division or withdraws it, has performed a very useful service in saying that this new Assembly, whatever it does, should 1456 do nothing to weaken the authority of either House of Parliament.
§ 6.45 p.m.
§ The Earl of LAUDERDALE
My Lords, following the noble Lord, Lord Wigg, I am left wondering whether he would like this House abolished or would like its powers reinforced, the better to check the Executive. If the latter, we are in agreement. Checking the Executive is clearly a function of Parliament all the time, every day, day and night, Sundays and weekdays. But perhaps he rather overlooks one feature of a House which has influence rather than power; and that is that when we make speeches in this House, we are not only addressing the empty Benches opposite and the uncomprehending Front Benches of either side, but addressing the civil servants who find much to read and ponder and who are always athirst for a new idea and watching for something which can be pushed and which is practical. However inadequately we may check the Executive, speaking in this House, a House of influence not power, we do, in fact, perform a useful function. I hope that we shall have more of Lord Wigg's support in the future when endeavours are made to abolish or cut down this House even further.
This is wide of the Amendment, which relates to the position of Members of the Commons. Members of the British Parliament are, I think, different from Members of any other Parliament in the world. When I was a Member in another place and travelled to other countries on Parliamentary delegations, I never observed the same relationship between MPs and their constituents that we know here. In France, perhaps a local mayor who has a position of great local eminence certainly does not have the intimate connection with people that our MPs have. He does not hold regular "surgeries" and carry out all the other undertakings which form a link, a kind of pastoral link, almost like a mini-bishop between the Member of Parliament and his constituents.
We all know that the work of the Member of Parliament—and it is most interesting work; when I was an MP it was interesting—among other things, is to go about knocking at anybody's door and 1457 saying, "Any complaints? What can I do for you?" That is a function which is peculiar to the British system of Parliament and the position of Members of Parliament, and it is one that we must safeguard. With regard to going back to the mandarins of Whitehall, the MP has the right of access at any time, without notice, to the Minister relevant to his problem. He knocks on the door of, say, the Minister of Transport. The man is busy, but he sees his senior Under-Secretary. The effect is the same. The MP has access to the mandarins of Whitehall and any MP worth his salt knows how successful, very often, those interventions at that level can be on behalf of some individual. It is because the MP has this special position in the United Kingdom that I believe it is very, very important to make sure that it is not eroded.
Here the anxieties of the noble Lord, Lord Wigg, about the loss of power of this Parliament to the Parliament of Europe is a very serious one. I believe that it is exaggerated, but it is there. The very fact that the Scrutiny Committees—of this House, certainly; I do not know about the other one—have given much attention to the problem of the relationship between Westminster and the European Parliament is an indication of the concern that Parliamenteers must properly have to make sure that our essential functions are preserved.
If this arises, and is seen to arise, in relation to the European Parliament, equally it arises with regard to the Scottish Convention—as I still wish it called itself; but "Assembly" is what is is called meantime. Whether this particular Amendment goes very far to secure the preservation of the position that I want, I do not know; but I think it is a valuable contribution to the debate and I hope that the noble Lord, Lord Kirkhill, replying with all his experience of local authority government, will be able to express some generous sentiments. He will know, and we all know, how jealous local authorities are of MPs intervening in their area. I think I see a slight smile of reminiscence playing about the lips of the noble Lord, the distinguished Provost of Aberdeen, who has suffered more than once under the lash of local Members. But, just as local authorities are jealous of their own prerogative and sensitive when MPs attempt to interfere, so, with that 1458 background and experience, I hope that the noble Lord, Lord Kirkhill, will see that there is a point here in the opposite direction which needs to be secured. Whether this is the way to secure it, I do not know; but the point needs to be made and I agree that the noble Lord, Lord Harmar-Nicholls, has served all our interests in bringing this matter forward.
§ 6.50 p.m.
§ Lord KIRKHILL
My Lords, it is some time since I have been able to agree with a sentiment expressed by the noble Earl, Lord Lauderdale; but I agree with the sentiment which he expressed, which was to the effect that although the speeches of both the noble Lord, Lord Harmar-Nicholls, and my noble friend Lord Wigg were indeed interesting, they were nevertheless somewhat wide of the mark of the main point of the Amendment. It is my responsibility from this side of the House to direct your Lordships to the object of the Amendment, which is to keep Members of the Assembly and Scottish Secretaries out of matters with which they should not, as the mover of the Amendment sees it, be concerned. I submit that the Bill already does all that is required and that the terms of the Amendment would simply cause confusion. Clause 22(3) provides that, subject to exceptions provided for in Schedule 3, where power to make or confirm an order is transferred to a Scottish Secretary and that order would otherwise have been subject to the Westminster procedure, the order will be subject to such special procedure as may be established by the Scottish Assembly in its own standing orders.
In the Government's view this is entirely appropriate. It would be inconsistent with the whole approach to devolution incorporated in the Bill to preserve special Parliamentary procedure to Westminster in relation to matters which are to be fully devolved as the Amendment proposes. At present this is done in Schedule 3 by reference to specific enactments. But the Government are introducing Amendments (these are numbered 66 and 67) to alter the form of Schedule 3 so that it is expressed in more general terms applicable to any enactment providing for special Parliamentary procedure.
1459 The policy I have already described is unchanged by these Amendments, though we believe the new approach will have advantages over the existing Schedule 3 and we will remark upon that when we get to that stage in the Bill. I have attempted to make it clear that the Government believe it appropriate that where orders at present subject to special Parliamentary procedure fall entirely within the range of devolved matters, and the objections to them do not involve the special United Kingdom interests protected by Schedule 3, they should be subject solely to such procedures as are applied by the devolved Administration. The Government also believe that the Bill provides adequate safeguards to protect the reserved interests. For those reasons, it would be impossible for me to accept Lord Harmar-Nicholls' jewel, or indeed an additional chain which might attach to it. I ask your Lordships not to press the Amendment.
My Lords, my noble friend Lord Harmar-Nicholls has done a great service in putting this Amendment down, because he has highlighted the fears that many people have over the powers and influences of the Scottish Assembly, the Members of the Scottish Assembly, and how they may conflict with Members Parliament's powers and indeed the powers of the Ministers of the Crown. Underneath all our fears and worries, whatever we may feel about devolution, is the fact that in the end this is going to provide conflict of one nature or another, and the difficulty is how best in the passage of a Bill like this to minimise that conflict. My noble friend has put down this Amendment and it has raised the very spectre which many of us feel worried about.
I should have thought that my noble friend's Amendment, while trying to make it crystal clear that there shall be no involvement by Members of the Scottish Assembly over things which do not affect them, is almost so wholly embracing that it would make it difficult for Members of the Scottish Assembly to do anything at all. If one looks at his Amendment, where he says:No powers, rights or duties, whether legislative, executive or representative … shall be exercisable by a Scottish Secretary or by any 1460 Member of the Assembly … which are properly the province of a Minister of the Crown,there I think he is absolute right. Where he goes on to say:or of Members of Parliament representing Scottish constituencies,I do not see how one could include those words.
One of the great problems of this Bill is that there are going to be occasions where the conflicts of Members of the Assembly and the conflicts of Members of Parliament are going to meet. What happens if a constituent in Scotland is concerned about health, education or the state of his roads? To whom does he go? Does he go to the Member of the Assembly or his Member of Parliament? One might well say that Members of the United Kingdom Parliament have total authority over subordinate Assemblies. But is it really right to say that this should be so compartmentalised that Members of the Scottish Assembly cannot do anything which might conflict with a Member of Parliament? This is one of the real dangers and I think that this may well be so. My noble friend has done a great service in raising this matter.
§ Lord KIRKHILL
My Lords, with the leave of the House, I must apologise to your Lordships for a gross oversight on my part. In responding to the noble Lord, Lord Harmar-Nicholls, I inadvertently replied in the main to an Amendment which we have not yet reached but which we are just about to slip into, although probably that will happen after dinner, so it is entirely correct that I should express my apology. The matter arises because there is a division of labour on this side and pieces of paper occasionally circulate in not quite such an effective manner as one would wish. Although I do not wish to detain your Lordships at the dinner hour, it is only right that I should respond more formally for the sake of the record and out of courtesy to the noble Lord, Lord Harmar-Nicholls.
There is an old maxim that nothing creates more doubt than a provision designed to avoid doubt. I understand the motives which underlie this Amendment. The Bill is constructed in the Government's view on a series of positive propositions. In particular, it describes devolved matters with as much precision as the subject matter allows. I do not 1461 think that I should treat the House to another discourse on devolved matters, and I pass on to the main point: the noble Lord, Lord Harmar-Nicholls, now seeks to write into the Bill a negative proposition, or so the Government aver. My contention is that that proposition will give rise to considerable doubt.
I can understand the position on powers, rights, and duties, and I refer to them together as "functions". Now let me take a further classification. What legislative functions are exercisable by a Scottish Secretary? Or by a Member of the Assembly? I see none. But they must exist, or the noble Lord would not have referred to them. Then there are executive functions. A Scottish Secretary has no executive functions in relation to matters which are not devolved. I ask the noble Lord why he thinks otherwise on that point?
Then we come to the question of representative functions. I doubt whether the courts could make anything of that. I do not think a court could make much of the words "whether formal or informal". What is an informal representative function exercisable by a Member of the Assembly relating to a matter which is not devolved? There are more points which I could make but I will not do so on this occasion. I think the Amendment would make readers look in the Bill for things which simply are not there, and I think I might rest my reply, with a further apology to the noble Lord on that point.
My Lords, may I make just one remark to the noble Lord; that is, that we entirely understand the complexities of people working on different Amendments. Periodically, papers do get muddled up, on our side as well as on the Government side. When the noble Lord was making his original speech, I wondered whether he was on the right Amendment. The idea did cross my mind, but when he rose to speak so quickly after I had been speaking, I thought that I had been speaking on the wrong Amendment!
§ Lord KIRKHILL
My Lords, with the leave of the House, I may say that for the 1462 very first time during my membership of your Lordships' House I felt completely in control of my brief. I thought: "What a superb mind I have got on this occasion." It was not to be!
§ Lord HYLTON
My Lords, I should say that I speak as one who favours a Scottish Assembly and who would like to see a measure of devolution, though not necessarily this one. It may also be that my noble friend's Amendment is couched in terms that are far too wide-ranging. Nevertheless, I thought it was very disappointing that the noble Lord the Minister in replying for the Government, in whichever of his speeches, was not able to show that the Government are more concerned about Scottish Members of Parliament at Westminster being to a very large extent emasculated, if one may use that word.
§ Lord HARMAR-NICHOLLS
My Lords, I should like to say that I have every sympathy with the noble Lord and I understand his mistake with the brief. I must confess that when I sat in a position similar to his, with about the same amount of authority, I did exactly that. It is an experience that, providing you admit it, is accepted and I am sure that we all wish him the best of luck. However, I must say to your Lordships that it really was not an answer either to the Amendment or to the speeches in support of it. At the end of the day, I think the decision should be left to those of your Lordships who have listened to the arguments. I think it ought to be left to them as to whether or not these words should be included in the Bill.
There is one last point to which I should like to refer, which really came from my noble friend. Perhaps the most damaging argument against accepting my Amendment came from my noble friend. He seemed to suggest that administratively the words I have got down could not operate—how could these things informally be done? This has not been put down without a little thought, and what I think would flow from this is exactly the situation which flows from the setting up of the Ombudsman. You cannot have a matter put to the Ombudsman as to whether or not a citizen is being treated against the statute without its going through a Member of Parliament. Anybody who 1463 feels that he has been injured by any misdemeanour in the operation of an Act cannot go direct to the Ombudsman. I am certain that, if an Assemblyman has any points he thinks should be taken into account, instead of his having direct contact either with the Queen, as was discussed in connection with the last Amendment, or with the senior Ministers who are responsible, the matter ought to go through the local Member of Parliament, as with the Ombudsman.
This would have a double effect: it would keep the Member of Parliament informed of what was going on in his constituency and it would also allow the Member of Parliament, who has a better understanding of the Westminster procedures than the Assemblyman can have, to sort out the matter before it was eventually dealt with. I think that, if the noble Lord will look at the words in that light, he will find that that administratively they are not only workable but indeed desirable. I do not want to add to the arguments that were adduced at Committee stage. I am not going to withdraw the Amendment, but mine will not be the voice which calls for a vote. If any of your Lordships feels that the argument is strong enough for it to be tested by the House, although it was not acceptable to the noble Lord speaking for the Government, I should be happy to join him in the Lobby. So it would be the voices of your Lordships and not my own which would decide whether the Amendment is pressed or not.
§ On Question, Amendment negatived.
§ Moved accordingly, and, on Question, Motion agreed to.