§ Further considered on Report.
Lord CAMPBELL of CROY moved Amendment No. 111A:
Page 53, line 32, leave out ("Provision of") and insert ("Policy for").
§ The noble Lord said: My Lords, we discussed in Committee why the Government had introduced the words "Provision of", and as a result of that discussion my Amendment now suggests 101 substituting in their place "policy for". In the Scotland and Wales Bill of the last Session the equivalent provision did not contain the words which the Government have introduced into this Bill and the Government's replies have not convinced my noble friend and I that they are necessary. I say "replies" in the plural because since those which we received in Committee I have received somewhat different replies in correspondence with Ministers, as I shall reveal.
§ Now I am proposing alternative wording, rather than the deletion of the words "Provision of", and my noble friend Lord Morris, in Amendment No. 112, has another suggestion, other words for the Government to consider; so they have the choice. I remind noble Lords that the concern about the words "Provision of" is that they could be interpreted as enabling the Executive to nationalise and then operate buses themselves—that is, to carry out further nationalisation—and we do not think that is something which should be devolved to an Assembly or its Executive. The Government, for their part, have said that there is no such intention.
§ The body who have been making representations to us, and I understand have been in touch with the Government about this, are the Confederation of British Road Passenger Transport and they are worried about this wording for the reason I have given. I mention them because they represent no less than 98 per cent. of the operators of buses in England and Wales and virtually 100 per cent. of operators in Scotland. I am not talking about independents. These are all the operators—local authorities, the Scottish transport group, everyone who runs passenger buses. Thus, this confederation represents all the operators, to all intents and purposes, and they feel very strongly about the introduction of these words.
In the Committee debate the noble and learned Lord, Lord McCluskey, said that Schedule 10 defined the matters which fell within the legislative competence of the Assembly. He said:
We are not concerned with having the Scottish Executive running buses, but we are concerned with defining what it is that the Scottish Assembly may legislate about.
But Schedule 10 relates not only to matters within the legislative competence
of the Assembly but also to powers of the Scottish Executive. One need only look at the heading to Schedule 10 to see that it covers both. There is therefore a power, as the provision is now worded, for the Executive to provide public passenger transport services; in other words, to run buses themselves. That is now accepted, and that brings me to the further reply which I received from the noble Lord, Lord Kirkhill, in correspondence. In a letter to me he wrote:
Among the wide range of options open to the Scottish Assembly for future legislation, as they are at present open to the Government, would be consideration of the further nationalisation of the road passenger services.
He has accepted that the wording is open to that interpretation.
Again, Lord McCluskey said in our previous debate, speaking of the words "Provision of" which we were seeking to leave out:
The significance of the words derives not directly from their inclusion in this particular group but from the derogation from it in Part II of Schedule 10.".
>Lord McCluskey has helped us greatly with describing the construction of the Bill and particularly of the Schedules and the parts of Schedule 10, and so far, since his description, in my interpretations I have been proved to be right; I understand what he has told us. But in that statement he must have overlooked his previous words, because so far as public passenger transport services by road are concerned, there are in Part II of the Schedule no derogations whatever; there are derogations in paragraphs 8 and 10 on railways and freight by road, but there are no derogations on passenger transport. Thus, Lord McCluskey in that passage I quoted was again helping us by describing the intentions in the way in which Schedule 10 is constructed, but he overlooked the fact that there are no derogations concerning road passenger transport in Part II. On studying the comments made in Committee and on receiving this further correspondence from Lord Kirkhill, I must point out that the arguments which Ministers used in Committee are not sound.
Another point to bear in mind is the Government's White Paper issued in June, 1977, on transport policy, Cmnd. 6836, in which the Government used the words:
…a rational and consistent framework of policy for planning and consumer choice
as the Government's aim for the powers they should have. As a result, Lord Morris has taken those words out of the White Paper, from paragraph 42, and put them in his alternative Amendment, No. 112. Again, he is trying to help the Government by using their own words, to describe what I think we are both trying to achieve in this Schedule. I believe there is little, probably nothing, between the two sides of the House on the question of intention. It is the difficulty of getting the wording right in the Bill to ensure that there are no misunderstandings or wrong interpretations, made in good faith, by the courts later if there are arguments. We think the wording and its later interpretation matter.
§ Lord Kirkhill has agreed in the passage I read from his letter to me that further nationalisation is possible under the wording as it stands—he added that of course denationalisation is also possible—but our point is that it is not the intention, and the Government agree, that that should be a devolved matter. We therefore believe that some alternative wording is required and we have put forward these suggestions. I hope the Government have been doing some thinking on this subject, even though they have not put down an Amendment, and that it will be possible to achieve what we both want without the danger of causing even more anxiety to the Confederation of British Road Passenger Transport—who, as I have said, represent virtually every operator in the land, including all the local authorities who run buses—and trouble later on generally in interpreting the Bill.
My Lords, I rise to support my noble friend Lord Campbell of Croy in his Amendment. He has argued the case very well, and I do not want to delay your Lordships longer than necessary, other than to remind you of what the noble and learned Lord said at the Committee stage, as reported at column 819 of the Official Report of 9th May. I entirely agree with this. He said that the words "provision of" are important. He went on:they make it clear that we are concerned with transport as a service, or rather an aggregation of services, and not as an industry".104 I do not believe that the words do that. All we are trying to do is to help the noble and learned Lord to specify precisely the Government's intention, which was very clearly stated in their excellent White Paper of June 1977. This is the sole intention of the Amendment.
§ 8.31 p.m.
§ Lord KIRKHILL
My Lords, would it be convenient to the House if I were to speak to both of the Amendments; namely, the Amendment in the name of the noble Lord, Lord Campbell of Croy, and the Amendment in the name of the noble Lord, Lord Morris? They appear to be interrelated.
Lord CAMPBELL of CROY
My Lords, I agree with that suggestion, provided the second Amendment can be moved separately, which would then enable any noble Lord to speak again if he wishes; otherwise a noble Lord who does not move an Amendment can speak only once in the debate.
§ Lord KIRKHILL
My Lords, I should like to proceed on that basis if it meets with the agreement of the noble Lord, Lord Morris.
§ Lord KIRKHILL
My Lords, Amendment No. 112 seeks to change the same words as Amendment No. 111A and, as I have just said, I should like to take these Amendments together because they are interrelated. They have to be read together with Amendments Nos. 117, 118, and 118A, which concern Part II of Schedule 10. Therefore, if I have the permission of your Lordships, I may perhaps refer to these Amendments in my speech.
Concern has been expressed about the wording of the first sentence of Group 10, of Part I of Schedule 10 and, in particular, about the words "provision of". I would agree that they are not words of particular elegance; but our task is to put this Bill on the Statute Book with as precise a legal effect as can be achieved. It is with this in mind that we have used the words "provision of". I shall try to explain to your Lordships the legal effect we are seeking to achieve, and why we believe that the words "provision of" achieve it.
105 As the noble Lord, Lord Campbell of Croy, has clearly pointed out, we wish to devolve in Group 10 legislative and executive competence in respect of the integration of transport services and the balance between different modes of transport, the frequency and location of services, the organisational structure of services, and the financial support for services. We do not wish to devolve any competence in respect of safety and other standards, or in respect of working conditions. How do we express this? First, we must bear in mind that we wish to devolve more in respect of some modes of transport than others, and more in respect of subsidies than other aspects. For this reason, some derogations in Part II of Schedule 10 are required. But to narrow the range of competence by derogation in Part II is always a second best. If the narrowing can be achieved by precision of language in the Groups in Part I, then that is what we must aim for. However, for such detailed matters as the Scottish Transport Group freight services, for example, Part II treatment is the best way. The position for safety and other standards, and working conditions, is simpler because these are not to be devolved for any mode of transport. There is, therefore, no purpose in including them in Part I, only to take them out in their entirety in Part II. We should not do so, provided we can express in plain words in Part I what we wish to devolve in a way which does not embrace matters which we wish to reserve.
In the Government's view, the use of the words "provision of", taken together with "subsidies", achieves precisely that. I know that there is some concern that the words "provision of" carry a suggestion that the Scottish Executive will provide transport services at its own hand. I would suggest that this is misconceived. Throughout Part I of Schedule 10 there are similar expressions. Group I (Health) refers to "investigation of maladministration", but there is of course no suggestion that the Scottish Executive will investigate the maladministration of the Health Service. Group II refers to the provision of roads, but there is no suggestion that the Scottish Executive will itself build roads, except to the extent that the Government presently do so.
106 The groups are phrased in terms which are suitable for legislative competence. The Scottish Assembly will therefore be able to legislate about the provision of transport, whether by local authorities, by passenger transport executives, by private operators, or by the Scottish Transport Group. The Scottish Executive will have only such powers as are given it by legislation. A Scottish Secretary, therefore, will initially have the powers currently exercised by the Secretary of State—which include certain powers in respect of the public sector services of local authorities and the Scottish Transport Group—and may subsequently have additional powers, or lesser powers, as a result of Assembly legislation. That point was touched upon by the noble Lord, Lord Campbell of Croy. It seems highly improbable that the Assembly would wish to give the Scottish Executive direct powers to provide transport services, but it might perhaps wish—as have Parliaments of both colours in recent years—to legislate in respect of provision by public sector operators, such as the Scottish Transport Group or local authorities. This seems perfectly reasonable to the Government, and we would not wish to exclude this possibility.
I believe, therefore, that both Amendments before us are unnecessary. The Bill at present achieves with precision what is required. I would also suggest to your Lordships that the Amendments would also be positively damaging. Amendment No. 112 would, I suggest, be especially so. It introduces a subjective word: "consistent". This would mean that the courts, in considering the vires of Assembly legislation, would have to determine whether it provided for a consistent framework for transport policy. I am sure that this is a task quite unsuitable for the courts. Amendment No. 111A does not have this difficulty, but it has others. It widens the scope of Group 10 of Part I so that it extends beyond "provision". I could not tell you the precise extent to which it is widened because the words "policy for" have less precision than "provision of". However my advice is that it is likely that it would widen the group to a greater extent than the Amendments offered to Part II of Schedule 10 would derogate from it. The Part II Amendments would successfully derogate safety standards of vehicles, but not other 107 standards of vehicles; and they would not derogate safety standards relating to drivers, or to the number of passengers. It is true that the Part III reservations for the Road Traffic Act 1960 exclude some of these matters specifically, but only in respect of buses, and not in respect of other modes covered by Group 10. I would, for instance, have to advise the House that the Amendments, taken together, would appear to devolve matters in respect of drivers and passengers of trains. I am sure that this is not the intention of their sponsors.
I hope, therefore, that neither Amendment No. 111A nor No. 112 will be pressed. I suggest that their effect is less certain than that of the present entries and, most probably, more devolutionary in an unclear and undesirable way. I can assure the noble Lords, Lord Campbell of Croy and Lord Morris, that the Amendments have led us to re-examine the existing wording of the Bill with great care, but my advice is that the Bill is precise; and it is more precise than the alternative formula which has been suggested.
§ The Earl of ONSLOW
My Lords, I must say, with the greatest respect, that it was very depressing to listen to the noble Lord, Lord Kirkhill, because he totally failed to answer my noble friend Lord Campbell's main point regarding the letter from the noble Lord, Lord Kirkhill, to my noble friend. The letter stated:It cannot be denied that among the wide range of options open to the Scottish Assembly is that they can consider further nationalisation of road passenger services.The noble Lord did not answer that point at all.
§ Lord KIRKHILL
My Lords, with the leave of the House, I do not wish to get into a Committee debate but I replied to that point. I am accepting the point that the noble Lord, Lord Campbell of Croy, has made. I am not seeking to deny it.
§ The Earl of ONSLOW
My Lords, if I am wrong I do not hesitate to apologise to the House. Perhaps I should not have spoken at all, and I shall stop.
§ The Earl of MINTO
My Lords, the noble Lord, Lord Kirkhill, will know that I have a two-sided interest in this, 108 one as a traffic commissioner for Scotland and another as a regional councillor responsible for providing public transport. I think I should like to hear from the noble Lord that this in no way affects the transport policy and programme if it is left as it reads, because if it does then I think this would be going away from a guarantee that we were given at an earlier stage that the formation of the Assembly is not going to take away from regional authorities powers that they already have.
Lord CAMPBELL of CROY
My Lords, we may get an opportunity on the second Amendment, when it is moved, to speak again if any noble Lords wish to, but on this one, which I moved, I should like to make two points. First of all, I agree that I think the noble Lord, Lord Kirkhill, very briefly said that he did not contest the point about the option being open for further nationalisation. I am sorry my noble friend did not register that, but I believe the noble Lord dealt with it very quickly because I do not think that it is a matter of argument between us.
However, what he has said brings us back to the Committee stage: really it would be much better to leave the words "Provision of" out altogether, as was the case when the Bill originally appeared during the last Session. They are not really necessary; the subjects are then clearly spelt out, and any derogations appear in Part II. Incidentally, because there are derogations in Part II which take railways out, I cannot see how my Amendment putting in "Policy for", would bring in railways; but I shall not pursue that one at this stage.
I would ask the Government to look again at this, because we have made a serious attempt, with the help of the outside bodies, who are the people who are more worried than anybody about this, to find other words to take the place of "Provision of" arising from what Ministers themselves have said. Apparently there are objections to them, but I still think that the Government would be well advised to take the words "Provision of" out and to leave it as "public passenger and freight transport services", et cetera. Everybody will know what we are talking about then, and there is no 109 fear that the Executive would start trying to run bus services themselves.
The second point is that I would ask the Government again to speak to the Confederation of British Passenger Transport, and to make contact with them. As I said, they represent 98 per cent. of all the operators of buses South of the Border, which includes all the public ones, the local authorities, and virtually 100 per cent. North of the Border. They represent the whole lot, and they are the people who are worried about these words. So I ask the Government to make contact with them again. This is something which really needs to be settled outside this House between those who are most concerned; but I must register that at the moment the Confederation are concerned. They represent virtually every bus operator, public and independent, in the land, and they are concerned about these words. I would have thought that the Government really ought to go back and see whether they cannot meet what seemed to me to be very respectful apprehensions by public bodies as well as private bodies. But at this stage I beg leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
Lord MORRIS had given Notice of his intention to move Amendment No. 112:
Page 53, line 32, after ("of") insert ("a consistent framework of policy for").
The noble Lord said: My Lords, my noble friend Lord Campbell of Croy referred to my Amendment No. 112 and quite rightly observed that I took this wording from the Government White Paper on Transport Policy, Cmnd. 6836, of June 1977, which read:
The Government will use its powers to provide a rational and consistent framework of policy for planning and consumer choice.".
I entirely accept what the noble Lord, Lord Kirkhill, implied, that this wording reads rather like a Barbara Cartland novel, and that it is not exactly suitable, but it raises again the most important point, which was so eloquently argued by my noble friend Lord Campbell of Croy, that the change in wording by the inclusion of the words "Provision of" puts a great deal of fear into the hearts of those people who are interested in public
transport, not only in Scotland but in the whole of the United Kingdom. Similarly, as my noble friend Lord Campbell of Croy did, I would ask the Government to have a very close look at this again, because I feel it to be extremely important. However, in light of the observations made by my noble friend Lord Campbell on the previous Amendment, I do not propose to move this one.
§ 8.48 p.m.
Lord KIRKHILL moved Amendment No. 113:
Page 54, line 6, leave out ("Crofting") and insert ("Grants, loans and subsidies payable in relation to landholders. Crofting, including grants, loans and subsidies payable primarily in relation to crofters, cottars and persons of substantially the same economic status.").
§ The noble Lord said: My Lords, this is a technical Amendment which the Government propose in order to lend greater precision to what is devolved by the "matter" of crofting. The previous wording in Group 13 of Part I of this Schedule referred merely to "crofting". Although this had the merit of brevity, I fear that it was at the expense of precision. It left an unacceptable degree of doubt as to whether it embraced all that we wish to devolve. We wish to devolve the law relating to crofting as a form of tenure, and there is no doubt that the present entry achieves this. But we also wish to devolve a range of grants and subsidies which are currently paid to crofters, especially in the Island areas. An example is a scheme whereby an artificial insemination service is provided at a subsidised rate for cattle in Lewis and the Uists.
§ The difficulty is that, while all these schemes are aimed primarily at crofters, they are not necessarily confined exclusively to them. The new formula therefore covers not only crofters but also cottars and persons of substantially the same economic status. The words "substantially the same economic status", I should point out, are a term of art to be found in other legislation—or so I am advised. The formula also includes the word "primarily", as it would be unduly restrictive if a scheme subsidised by the Scottish Executive was to be found ultra vires because not all its beneficiaries were strictly of the description used in the group. I should also explain the term 111 "landholders", used in the new formula. This, again, is a term of art. It covers certain types of smallholders, and derives from the Landholders Act, where it is defined. Landholders are akin to crofters, and it is intended that grants to them should similarly be devolved. But they are a distinct legal category with their own statutory grant system, and it is therefore necessary to mention them separately in Group 13.
§ I hope the House will agree that grants to crofters, landholders and similar categories are a suitable subject for devolution. I should stress that we are devolving only grants paid in relation to their special circumstances. The general agricultural support system is reserved in relation to crofters, as it is to other farmers. The formula we are proposing for Group 13 might appear long and complex, but the Government are anxious that it should be wide enough to allow the full range of current schemes for crofters and similar categories to be devolved, so that they are not fragmented between the Scottish Executive and the Government. I hope the proposition is acceptable to your Lordships. I beg to move.
Lord CAMPBELL of CROY
My Lords, since the debate that we had at the Committee stage, the Government have certainly filled out this part of the Schedule. There was the single word "crofting" and the Government have decided to spell it out in this way. I have listened to what the noble Lord has said and I see no reason to dissent from his explanation, but I do find some of the wording in this proposed Amendment unusual; that is, the few words at the end. "Crofters" and "cottars" are words which are well known in crofting legislation. One comes across the word "cottar" and various other specialist words in the crofting Acts. But it is the additional words:and persons of substantially the same economic statuswhich is an inexact category of persons. It is not the kind of description that one expects to find in legislation.
I wonder whether the noble Lord had himself seen this and had made enquiries to find out whether it was a term that had been used previously in crofting legislation 112 or in any legislation; because it may be difficult to draw any sort of precise line around that group of persons. I may be bowling a fast ball at the noble Lord but, on the other hand, I suspect that he thought the same as I thought on looking at these words. I should be grateful if he could say more about that description of persons in addition to crofters and cottars. He does not need to speak about them, for they are terms and groups which we do encounter in the legislation. But perhaps he could tell us more about this mysteriously described group whom, I think, it would be difficult to identify unless it is a group that has already been referred to in past legislation, is widely recognised and is not going to cause difficulty in interpretation.
§ Viscount THURSO
My Lords, I do not find this wording particularly surprising. Until the most recent of the crofting Acts was passed there were a number of different categories of small holding in Scotland. There were land holders, statutory small tenants, crofters and so on. At the time when the crofting legislation was passed, it was given as an option to these people to apply for registration as crofts. In Caithness, for instance, whole hordes of statutory small tenants, land holders and so on suddenly became crofters. They became curious crofters because unlike the normal crofter they did not own their own houses. Some of them failed to become crofters but instead bought from their previous landlords.
As a result of all this moving around of status and caregories, there were people side by side with crofters who were on the "same economic status" as crofters and who had holdings of the same size and sort as crofters but who, because they had either bought their holdings or had not opted to register as crofters, were unable to get the same grants as their crofter neighbours. This was put right at a later stage—I forget when—when it was decided that the Crofters Commission would give grants to people who were of "substantially the same economic status" as crofters; in other words, they were merely making it so that somebody who had bought at the time when the crofting Act came in was not disadvantaged unfairly in the matter of grants as compared with his neighbour who had not at that time bought. In fact, I think that the 113 noble Lord, Lord Kirkhill, and the Government are perfectly correct in using this description. It is one very familiar to people in crofting areas and particularly in areas where there were a lot of holdings similar to crofts such as land holdings and statutory small tenancies mixed up in a crofting community.
§ Lord BURTON
My Lords, I am disappointed with this Amendment. I had the impression on Committee that the Government appreciated the difficulty which would arise for agriculture if this Bill became law. There were hints and good reason to believe that improvements would be forthcoming on this matter. Alas, it seems that this Amendment will only further confuse the issue. Group 13 would read:Tenure and management of agricultural land. Grants, loans and subsidies payable in relation to landholders.The group then goes on to crofting. There is no definition of "landholder". Would the noble Lord tell us what, in fact, is a landholder? I reckon that I am a landholder but I do not think that this Amendment applies to me. I think there is nothing in the Bill which describes this. As far as tenure and management are concerned, there must inevitably be confusion on Third Reading if we do not move from the current position. On Committee, no noble Lord considered it necessary to make any alteration so far as the group referred specifically to as crofting; now the Government have seen fit to add what is really nothing more than quite unnecessary verbiage.
However, the Government Amendment has had one effect. Several noble Lords have asked me today about the wording, "persons of substantially the same economic status", to which my noble friend and the noble Viscount on the Liberal Benches referred. Alas, I have had to disillusion them; they were not eligible for these grants and loans themselves. I know that a number of us may well have been on the same economic status, but this was not what was required. These words have merely been taken from the atrocious crofting legislation and just to allow the Crofters Commission to pay grants and loans to those whom they consider fit to receive them. They can also give crofts to those whom they consider to be of similar economic status. 114 It is very widely defined wording and it is left to the Crofters Commission to decide whom they think fit to get loans or crofts. It is a little wider than the noble Viscount said, for it is not only on grants and loans; it is also those entitled to receive crofts. This is only one example of crofting legislation which ought to be abolished, but it is nothing like as bad as other parts of that legislation which give unwarranted discretion to Scottish landlords. The Amendment is not a good one but I feel that we should approve it at this stage so as to ensure further discussion on the subject elsewhere.
§ Lord KIRKHILL
My Lords, may I say, with the leave of the House, that the noble Lord, Lord Campbell of Croy, asked me two direct questions. I refer him to Section 14(1)(a) of the Crofters (Scotland) Act 1961, Chapter 58, and also to Section 31(2)(c) of the Crofters (Scotland) Act 1955, Chapter 21. That is the reference. If I may respond to Lord Burton's question, may I say that the phrase "land holders" derives from the Landholders Act, where it is defined. If he has difficulty in locating it, I shall be able to put him in touch.
§ On Question, Amendment agreed to.
§ 9 p.m.
Lord KIRKHILL moved Amendment No. 113A:
Page 54, line 8, after ("salmon") insert ("migratory trout").
§ The noble Lord said: My Lords, the effect of this Amendment is to remove any ambiguity as to whether migratory trout are freshwater fish and thus come within the devolved competence of Group 14 of Part I of Schedule 10. As their name siggests migratory trout, like salmon, migrate to and from the sea but nevertheless they are associated more with freshwater than sea fisheries. It is therefore sensible that the devolved competence for freshwater fisheries should include migratory trout and the Amendment puts this beyond doubt. As with other fish, devolved competence is limited to the waters defined in Group 14. A side effect of this Amendment, which I shall explain more fully later, is that it is no longer necessary to have a specific entry in Part III of Schedule 10 for the Sea Fish (Conservation) Act 1967. I beg to move.115
§ The Marquess of LINLITHGOW
My, Lords, if I were a migratory trout I should prefer to be called what I am, which is a sea trout. "Sea" is also a shorter word. I should not like to he devolved anyhow.
§ On Question, Amendment agreed to.
Lord McCLUSKEY moved Amendment No. 113B:
Page 54, line 14, at end insert ("or, in the case of the mouth or entrance of the River Tweed, up to the limit fixed under the Tweed Fisheries Amendment Act 1859 and the Salmon Fisheries (Scotland) Act 1863.").
§ The noble and learned Lord said: My Lords, now we come to the comparatively simple matter of the Tweed Box. This is a minor Amendment to tidy up the definition in Group 14 of Part I of Schedule 10 of the seaward limits of devolved fisheries competence. I explained in response to Amendments on Committee stage that the Government's approach to seaward limits is that they should follow existing administrative limits. Thus the limit presently in Group 14 is that which currently applies to the district fisheries boards. However, the area off the mouth of the Tweed known as the Tweed Box is not administered by fisheries boards but by the Tweed Commissioners. The seaward limit of the Commissioners is established under separate legislation—the Tweed Fisheries Amendment Act 1859 and the Salmon Fisheries (Scotland) Act 1863—and is not three but five miles. The Amendment has the effect of extending devolved seaward competence to the full five miles of that part of the Tweed Box which is North of the Border. We are proposing the Amendment after consulting with, and securing the agreement of, the Northumbrian Water Authority, and others closely concerned. I beg to move.
Lord CAMPBELL of CROY
My Lords, I understand this Amendment is necessary, and presumably this matter was overlooked when the Bill was first drafted. Is the noble and learned Lord able to tell us that he also has the agreement of the Tweed Commissioners?
§ Lord BURTON
My Lords, may I thank the noble and learned Lord for the trouble that he has taken over this Amendment understand that the Tweed Commissioners are quite happy with this now, thanks largely to the noble and learned Lord. This was something which was obviously either not discussed or was overlooked in another place.
§ Lord McCLUSKEY
My Lords, any Bill may improve as a result of close scrutiny. This House has given this Bill very close scrutiny so far. That has enabled us to identify this point and make this Amendment. Perhaps the Tweed Commissioners are content partly because the Assembly cannot abolish them, since, as your Lordships know, this body operates in England as well as Scotland, and I can confirm what the noble Lord, Lord Burton, has said.
§ On Question, Amendment agreed to.
§ 9.4 p.m.
Lord WIGG moved Amendment No. 114:
Page 54, line 30, leave out ("Betting, gaming and").
§ The noble Lord said: My Lords, I beg to move the Amendment standing in the name of the noble Lord, Lord Kilmany, the noble Earl, Lord Onslow, and myself. It may be for the convenience of the House if at the same time I speak to Amendments Nos. 158 and 184 which are consequential upon the passing of Amendment No. 114, if that be the case. The points I want to put to the House start with Command Paper 6348, "Our Changing Democracy". As a result of that White Paper, the Home Office sent out a circular on 27th November 1975 to the Gaming Board for Great Britain, the Horserace Betting Levy Board and the Horserace Totalisator Board. At this point I am referring to statutory boards.
The Gaming Board gave very careful consideration to the proposals in the Government's White Paper. I invite your Lordships' attention to the fact that the Gaming Board, as a statutory Board, issues its annual report to both Houses. It is tabled in both Houses and it can be debated either in House. Copies are available to noble Lords from the Printed Paper Office. I am not going to trouble
your Lordships with reading the extract from the 1975 annual report, except for this sentence, which says:
We also believe that it would be more appropriate to consider possible devolution of gaining and lotterie? after the publication of the report of the Royal Commission on gambling".
§ It may have escaped your Lordships' memory that the Royal Commission on Gambling has been considering this vast subject—and vast it is—for some time and its report is expected next month. Perhaps it might be as well that your Lordships take into account that if they consult the annual report of the Commissioners of Customs and Excise, which give figures showing the extent of gambling in this country, for the current financial year the sum wagered will not be less than £3,250 million. That is perhaps the largest of the activities in which the citizens of this island engage. There is a by-product of the revenue—if "by-product" is the right word—of not less than £315 million.
§ I remind your Lordships that the Gaming Board is a particularly powerful institution. Its chairman for many years was Sir Stanley Raymond, who was appointed by a Conservative Administration. His appointment was subsequently renewed by a Labour Administration and he followed me as chairman of the Horse-care Betting Levy Board. The evidence prepared by his board was under dealt with under his chairmanship. He was followed in that post by a very distinguished former civil servant—now a member of your Lordships' House—the noble Lord, Lord Allen of Abbeydale. As Philip Allen he was a very influential and distinguished Permanent Secretary of the Home Office. It was the Home Office which sent out this invitation. So the judgment of these men and these boards, answerable to both Houses, should not be taken lightly into account—at least, that is my submission.
The Gaming Board gave evidence to the Royal Commission and I am going to weary your Lordships by reading that evidence. I repeat that the Royal Commission's Report is due to be published probably within the next month. The Report reads:
As to lotteries, the law and order issue does not arise in the same acute way"—
as betting and gaming
but it must be recognised that any sensible system of control must apply both where a lottery
is organised and where the tickets are sold. Otherwise there are the kind of difficulties encountered with the Irish Sweepstake and the Malta Lottery, which involve wholesale breaches of Section 42 of the Betting, Gaming and Lotteries Act 1963. Internal borders constitute no obstacle to the transmission of lottery tickets and there is every prospect that regional prohibitions would be confusing, and wasteful if not impossible to enforce".
I ask your Lordships to take that into account and then to go back, if you will, and read the speech of the noble Baroness, Lady Stedman, to which I shall refer on more than one occasion.
In the debate which took place on 16th May, the noble Baroness said that the Government had in mind to introduce an amendment to this Bill to enable a national lottery to be run in Scotland—and that in the face of the recommendation of the Gaming Board. The Gaming Board's evidence went on:
The Board see no substantial arguments specific to gambling in favour of devolution, but appreciate that there is a general contention for the devolution of control. Against this, the Board would say that, as regards gaming, local interests are cared for in the present system of licensing arrangements and the Board would see no substantial advantage, but considerable danger, in departing from the concept of a single Gaining Board for Great Britain.
In the general considerations set out above, the Board would see a host of practical difficulties in the way of any new arrangements which provided for instance, that the Board would continue to have responsibility for Great Britain but would act as an agent of the Welsh Assembly and would have an indeterminate relationship with a new Scottish Administration which would, in the words of the Government White Paper, be free to make quite new arrangements and terminate a particular body's responsibility in Scotland.
§ Coming from the source it did, one would have thought it a very powerful consideration indeed; and yet the Government propose that that evidence is completely ignored. The noble Baroness when she replied said that the Totalisator Board did not reply. The Horserace Betting Levy Board did reply and it is clear that they were opposed to devolution, so that the two statutory bodies are opposed to the concept of devolution.
Now I turn to the speech of the noble Baroness which caused me to divide the House on a previous occasion. And may I say that I will not be in any way less
generous than the noble Earl, Lord Perth, when he acquitted the noble Baroness of any sinister intent or indeed of any responsibility whatever for the parts of the speech to which I am going to refer. I have referred to her comments about a national lottery. I have no doubt that was in her brief. She then went on to say:
The levy is collected by a sub-committee of the Levy Board, the Bookmakers' Committee, and although that Committee is not listed in Part II of Schedule 13, it should not be assumed that it is in any way unaffected by devolution. It is not there because its parent body, the Levy Board, is, and any Clause 64 order about the Board would take into account the Bookmakers' Committee "—[Official Report, 16/5/78; col. 234.]
If one tried all night one could not crowd more mis-statements into that statement. Every single point made here is wrong. The Bookmakers' Committee is itself a statutory body functioning under Section 27 of the Betting Gaming and Lotteries Act. It does not collect the levy.
§ When I came to reply to the debate I was somewhat amazed at what the noble Baroness had said, and I said so. I ventured to say that my opinion of her brief was such that originally I would have given the author seven days CB, but having listened to the reply of the noble Baroness I would certainly have given the author detention. Clearly he or she had never read the Act. As I said the Bookmakers' Committee is a statutory body functioning under Section 27; it does not collect the levy; it is not a subcommittee of the Levy Board; the Levy Board is not its parent. Its role is that once a year, or as often as may be, at the invitation of the Levy Board it makes recommendations for the levy. Either there is agreement, in which case the agreement has the force of law or, if there is disagreement, the matter is referred to the Secretary of State to determine, and he operates under the Act.
§ The noble Baroness was kind enough to write to me subsequently because I wondered what had happened, although I had a pretty shrewd idea. She said she fully accepted my explanation of how the Committee goes about its duty in practice, but she said that what she described was the statutory basis for activities. She then went on to say that she accepted that, in order to curtail a rather long explanation, she might have 120 created ambiguity about the Committee's rôle.
§ There was no dichotomy between the theory and practice in this case. What I described was what is in the Act, and it was not a question of a difference between practice and a statutory basis; nor was there any question here of curtailment. The statements made were wrong. I telephoned to the noble Baroness's office and said that the statements were incorrect, and she wrote to me again—for which I am grateful—to the effect that the Bookmakers' Committee collects a levy. She said she now understood that the statement was wrong and that she would be making a correction in the course of her speech tonight.
§ On this point, let me again repeat what I have already said: I completely acquit the noble Baroness of any intention to mislead the House. I am indeed sorry that she should have been put in the position that she has. It comes about from the very simple fact that the original circular was sent out by the Home Office, and Ministers and civil servants in the Home Office just do not understand the operation of the Act upon which they were commenting. Thus your Lordships were put into the position of "dead-heating" on the Vote, when I am sure that if they had been fully aware of the facts there would have been a majority in favour.
§ I want to keep what I have to say as short as possible and I have only one or two things more to add. I was interrupted by the noble Viscount, Lord Masseerene and Ferrard—and I do not complain about it—who asked about the position of the Jockey Club. I replied that the Jockey Club were not involved in this and that I was dealing with the statutory bodies. That is so. I am in no position, either then or now, to speak for the Jockey Club: that is not my intention.
However, the Jockey Club's position is indeed an invidious one. They were sent a copy of the circular, and one of their secretariat was kind enough to telephone me and make it clear that they did reply. They replied on the issue of devolution and naturally—I say "naturally" because it seems to me logical—were opposed to the splitting up of racing in a way which would inevitably result if the Government's devolution proposals go through.
Subsequently, they were kind enough to send me a copy of the circular letter which had been sent out and which perhaps I may read, just to make it quite certain that I fully endorse what has been said. They said:
In view of the fact that the betting market knows no frontiers, the Jockey Club are concerned at the considerable dangers which might arise if betting legislation is not uniform throughout Great Britain. Unless the Levy, on which racing depends so heavily, is applied uniformly throughout Great Britain an inequitable and difficult situation will occur which will be to the detriment of British racing as a whole.
§ That point made by the Jockey Club leads me to deal with a point which was made from the Liberal Benches by, I think, the noble Lord, Lord Mackie of Benshie, who, if I may 'say so, operates at such an elevated level that one of his activities is clearly not going into a betting shop and having a bet. I congratulate him and I sympathise with him, too, because he has missed some of the goods things of life. He rather thought, so I gathered from his interruption, that it was quite a simple matter to have a second levy and for someone to lay down, I think the word he used was a "lien", upon the levy. It never seems to have occurred to his Lordship that some people bet in cash and others be on credit. If, for example, a punter in Glasgow went into a shop such as Ladbroke's, William Hill, or any bookmaker for that matter, and had a cash bet, it would be a simple matter for the Assembly, if they had the power, to say that there should be an additional levy for Scotland. But of course the same firms operate by telephone, and this is one of the things that happens in countries other than our own; so that, if an additional levy operated, all one would do would be to telephone to Berwick or wherever it happened to be, across the Border; and there could be no possible check at all on that—as indeed there is no check in other countries. The idea, therefore, that you can have a levy and enforce it merely by, as it were, publishing an edict is to completely leave out of account the fact that countries have no frontiers when it comes to betting.
§ It may even surprise your Lordships to know that one of the reasons for the weakness of the on-course market in this country is the considerable amounts that are wagered in South Africa and 122 Jamaica. For a brief period I advised the Jamaican Government and had an opportunity to watch this on the spot. It was quite astonishing to go into a betting shop in Jamaica at 10 o'clock in the morning—allowing for the difference in time—and listen to racing being conducted at Ascot, and to realise that very considerable sums of money were telephoned through from England to Jamaica, which meant that both tax and levy were avoided.
§ But, of course, there is one other factor to take into account, which goes to the heart of the Jockey Club's views. Whether it is racing in Scotland or in England, Scottish horses come South of the Border, Scottish jockeys come South of the Border and Scottish owners come South of the Border; while, conversely, English horses go to Scotland and English jockeys go to Scotland. The whole concept of betting and gaming in this country is on the basis of the United Kingdom. It has been organised very painfully, brick by brick and step by step, and I should have thought that there was now a very good system of control.
§ Ever since I was accidentally drawn into this field many years ago, I have always felt that it is part of our national genius that, faced with human frailty and weakness—certainly, this would be a weakness so far as those on the Liberal Benches are concerned—what we seek to do is not to suppress, because if we seek to suppress we must fail, but to control and, if we take public opinion with us, that control can be successful. That is what has happened through the functioning of the Gaming Board, which has taken on a very difficult task indeed, and has built up a system of licensing and supervision which ought to be a matter of national congratulation. Certainly, we should not smash and fragment it by putting it at risk of breaking into three pieces, which is what could result if the Government's proposals went forward unchanged.
§ Indeed, what we should be doing is destroying that which has worked effectively and entering into a no-man's-land, because I do not believe that the Government—and this certainly applies to the Home Office—have thought this out. That is one of the reasons why, with some reluctance, I mentioned the difficulties in which the noble Baroness found 123 herself. Her brief was bad, as the Home Office had not thought it out. I go further. I believe that any competent person, thinking dispassionately, would agree that the Government's proposals are a nonsense.
§ The Government are standing on them for one reason only; and I am aware of this because it is something which I remember from my brief experience as a Minister. The Home Office will not give up some of the powers which they possess, even though those powers have been handled very badly indeed. Indeed, the evidence which I gave in my personal capacity to the Royal Commission was on the lines that one of the things which the Royal Commission should recommend is that the duties at present discharged by the Home Office, under the Betting, Gaming and Lotteries Act, should be transferred to the Department of the noble Baroness, Lady Stedman—the Department of the Environment. That is what I believe ought to happen.
§ But that is not before your Lordships' tonight. What I am putting is that the proposals have not been thought out; that the statutory boards, which have a responsibility to your Lordships' House and to another place, have recommended in the strongest possible terms that devolution should not be accepted. It is unnecessary; indeed, the word "dangerous" is attached to it. Your Lordships have the evidence of the statement that I read from the Jockey Club which I introduced because I was asked a question and did not answer it then, as I was dealing with statutory boards. But I believe that there are present members of the Jockey Club who would be able to express the Jockey Club's views with an authority which I certainly do not possess. But I recommend this Amendment as being carefully considered, and as having the support and authority—and that does not mean me —of statutory boards of impeccable integrity and very great experience. My Lords, I beg to move.
§ 9.25 p.m.
§ The Earl of ONSLOW
My Lords, I think I have said before to your Lordships' House that I have most vices but gambling is not one of them. It was not until I 124 heard this or a similar Amendment moved at the Committee stage—and I was so unimpressed by the reply of the noble Baroness, Lady Stedman, though I promise your Lordships that I have nothing against her, for my impression was that it was a bad brief, and I think that the noble Lord, Lord Wigg, dealt with this point—that I got myself worked up about this situation. Now we have got ourselves into the position where, if this matter is devolved and similar devolution is allowed in the Wales Bill, we could have three Totalisator Boards and three Levy Boards. Who, then, will pay the tax and the levy when there is a Welshman betting on an English horse at Ayr?
This seems to me to be a proposal for pure Gilbertian muddle. That is one side of it. The other side is that when we get this Gilbertian muddle, crime, illegal gaming and everything else will move in because of the large sums of money involved when one is betting on horses. If there are to he different levies, different odds and different tax levels, then I would submit to your Lordships that this will be a very well prepared seed bed for the ungodly to move into and flourish. Therefore, may I suggest to your Lordships that we ought to keep one Tote Board and one Levy Board for one Kingdom.
§ Lord KILMANY
My Lords, I should like, if I may, to support the Amendment moved by the noble Lord, Lord Wigg. In doing so, I hope that I shall not take up too much of your Lordships' time; we have, after all, debated this matter before. We debated it on 10th May. I recollect that on that occasion I saw fit to put two or three questions to the noble Baroness who, I understand, was then in charge of the Bill at the Home Office. I do not know about the Home Office, but I think that the noble Baroness is, happily, still largely in charge of the Bill.
The questions which I put to the noble Baroness were whether she had consulted the Levy Board, the Tote Board and the Gaming Goard. Also, I think I made mention of the Royal Commission on Gambling. Of course, I received a very easy answer because it was rather a simple question. The answer in every case was, Yes. But what I should have asked, and what, if I may, I should like to ask now, 125 is whether any one of those four bodies had in fact intimated to the noble Baroness that they would like the contents of this Bill to be introduced?
On that subject we have already heard from the noble Lord, Lord Wigg, a statement of the Gaming Board regarding devolution, the chairman of the Board, Sir Stanley Rayhmond, had said in 1975, and indeed in his report in 1976 had published the words, "For goodness' sake do not devolve this subject". It is not for me to invent what advice in favour of this suggestion the noble Baroness or the Government received either from the Levy Board or from the Tote Board, but I should be astonished to hear that she had had any encouragement whatever from those two knowledgeable bodies. I speak for nobody except myself. I do not represent the Jockey Club; I do not represent the trainers or owners or anybody; just my humble self. I go to the races sometimes, and naturally on those occasions one discusses racing politics. From the experience that I have had I can truthfully say that I have not met a single owner who was in favour of splitting the Levy Board and splitting gambling legislation and the control of the Tote Board. Not a single trainer have I found in favour of that; not a single jockey; not a single employee of the race course—starter, handicapper, judge, or what you will—and certainly no clerk of the course has spoken to me in favour of splitting.
So I hope that the Government will take note of the fact that in introducing this they are introducing something that is unpopular with all the people on both sides of the Border who are interested in the sport (or one can call it the industry) of racing. Do they really want to go against what everyone concerned with racing believes to be good for racing? If so, why? What is the motive? It may be an unpopular Tory doctrine to the other side if one says that when a thing is functioning well one should leave well alone, but why not leave well alone? In fact there is not a ha'pennyworth of politics in this at all. Surely what we want is legislation for the good of the people for whom we are legislating.
On the previous occasion that an Amendment was proposed by the noble Lord this matter went to a Division. In that Division there was a dead heat— 126 an appropriate term where racing is concerned. There were 50 votes on one side and 50 on the other, and by the casting vote of the Lord Chairman—who had no option—the voting went against the noble Lord, Lord Wigg. Tonight I should like to hear the Government agreeing with our point of view without a Division; but if they feel that they cannot do so, then I hope that those noble Lords in this House who are keen to see racing get a "fair do" will not hesitate to vote for the Amendment.
§ 9.33 p.m.
§ Viscount MASSEREENE and FERRARD
My Lords, I should like to say a few words to support the noble Lord, Lord Wigg, although after his good exposition of his Amendment it is not really necessary to say anything. The noble Lord is quite right when he says that betting knows no frontiers. I bet, and I used to breed horses in a small way; I go racing quite a lot and I consider it would be madness to split up the Betting Levy Board. As the noble Lord said, the two statutory bodies are opposed to it; the Jockey Club and everybody in racing who is known to me are opposed to it. I imagine that most punters are opposed to it because, as the noble Lord has said, there might he a horse running in Scotland, but that does not mean to say that you will back it in Scotland; you will not put your money on in Scotland: you might put it on in London, in Manchester or anywhere. If there were three Levy Boards, one for Scotland, one for Wales and one for England, it would be impossible for the system to work.
I cannot understand the reason for this action. The only reason I can think of is that the individuals who have advised the Government in drafting this Bill cannot have any experience regarding betting and gaining. Of course they may be the better off for that in practical terms! If the betting levy was not spread uniformly throughout racing in the United Kingdom, racing would suffer very badly. What would happen to Scottish racing, Heaven knows! I think it would probably have to close down. I think I have said enough, but I do heartily support the noble Lord, Lord Wigg, in his Amendment.
§ Lord MANTON
My Lords, I have come here tonight to support the noble 127 Lord, Lord Wigg, in his Amendment. It is very seldom I speak to your Lordships' House, but I have been for five and a half years or so a member of the Horserace Betting Levy Board, and I am currently a Steward of the Jockey Club, so I am very closely involved in any potential legislation on this point. In fact, it is by no means a racing certainty that any Amendment suggested by Lord Wigg would always be thoroughly endorsed in every case by the Stewards of the Jockey Club, but on this occasion I am very happy to say that the Stewards do thoroughly support these Amendments.
The Stewards of the Jockey Club have the day-to-day responsibility of running and organising the horseracing industry. They do this by agreeing various criteria with the Horserace Betting Levy Board, who then provide the necessary finance. The Stewards' task, in my opinion, would be made immeasurably more difficult were they to have to deal with two, or possibly, as has been suggested, even three, different bodies, who may well possibly have different criteria. The task of administering racing would be made almost impossible if the income arising from the two levies could not be accurately assessed in advance. The Levy Board have to project about 18 months in advance, and if you have two differing rates between Scotland and England, and you do not know if the punter is going to be ringing up the country where the rate is cheaper, any estimates are pure "guesstimates". If betting were switched from one country to the other to take advantage of the lower rates of duty, the chances of developing meaningful long-term plans for the whole British racing industry would be diminished.
Furthermore, two separate levy boards would obviously be far more expensive to run and to administer; the overheads would be greater, and therefore the ultimate beneficiaries, namely the British horseracing industry, would suffer. The Jockey Club is responsible, among other things, for discipline and the proper conduct of racing on racecourses, where, as has already been said, there are very many temptations. I am extremely concerned that should the levy be devolved the opportunities for malpractice would be increased.
128 My Lords, racing in the United Kingdom is indivisible. There is a constant flow of horses, owners, jockeys, trainers, race-goers and punters over the borders. The noble Lord, Lord Wigg, has already referred to the imminent report of the Royal Commission, so I do not intend to say anything further about that, except that in the face of this report, which is very imminent and should come out before the Recess, it seems quite extraordinary to be talking about these measures today. The Levy Board in 1976 were invited to submit to the Home Office their written observations on devolution. They urged most strongly that betting should not be devolved. They made the point that taxpayers in Scotland would continue to be taxed at United Kingdom rates and that the same philosophy should apply to the betting levy. Furthermore, they considered that the application of the levy must be uniform—and I stress the word "uniform"—throughout Great Britain. If not, an inequitable and difficult situation would arise, which would be to the detriment of British racing as a whole. I wholeheartedly support that view and hence the noble Lord, Lord Wigg and his Amendment.
§ Viscount THURSO
My Lords, I do not quite see why the noble Lord, Lord Wigg and his supporters are sweating up so much. It seems to me that the enabling powers which are included in the Scotland Bill merely enable the Assembly to legislate, if it considers it necessary or desirable, on matters to do with gaming, betting and lotteries. It may well be that it would be willing to legislate in a manner that would be helpful to racing in Scotland. I do not see why one must assume that any legislation it would carry out would automatically wish to be harmful to racing in Scotland.
It is extraordinary that it should be assumed right away that any act of the new projected Assembly would immediately harm the interests of the matters which have been put under the legislative competence of the Assembly. I do not believe that that would be true and it does not really follow the normal pattern in Scotland. If we give people in Scotland some control over their own affairs they will try to make them even better than they 129 are in other countries. I am not mentioning any particular country but they feel an element of competition and try to meet the challenge.
If we deny this to the Assembly we may well be denying people in Scotland control over a facet of life whith they would wish to control in a slightly different way from other parts of the Kingdom, especially when it comes to the matter of gaming rather than of horseracing. Gaming includes such things as casinos and other establishments in which betting takes place. It might very well he that Scotland would wish to have regulations for those sorts of places different from the regulations which exist in other parts of the United Kingdom. I think that it is only right that the competence should be in the hands of the Assembly.
Therefore, it would be a great pity to agree to the Amendment of the noble Lord, Lord Wigg. I think that he is worried about something which is not necessarily likely to happen and which certainly the racing folk of Scotland would not want to happen. They would not want their Assembly to harm their sport and nor, for that matter, would an Assembly wish to upset the Scottish punters. I am sure that there are a very large number of them and I do not think that it would wish to upset them unnecessarily or unwisely and spoil the sport of racing North of the Border. Therefore, I shall certainly resist the Amendment.
My Lords, the noble Viscount, Lord Thurso, as I understood him, was trying to suggest that it would be quite unthinkable for a Scottish Assemly to act unreasonably. It must therefore flow from that that it would be perfectly reasonable to assume the obverse of the case—that the Scottish Assembly could well behave unreasonably on this matter and it is that fear which I believe lies behind the Amendment.
§ Lord HUGHES
My Lords, I should like to follow up the point made by the noble Lord, Lord Morris, in answer to the noble Viscount, Lord Thurso who raised the very, at first sight, reasonable question why, in this area, the Scots, if they want to take their own line should not take it. That kind of argument, of course, in the context of the Bill has, superficially, many attractions. However, 130 is not the point which perhaps the noble Viscount overlooked that what the noble Lord, Lord Wigg and the other noble Lords who have spoken in support of the Amendment are saying is that here is an area which knows no national boundaries into which it is undesirable to introduce an element of uncertainty which would make things worse rather than better.
§ 9.45 p.m.
§ Baroness STEDMAN
My Lords, we have debated this subject several times before, and I am sure that the House will not thank me at this time of the night, if I repeat at length the Government's reasons for including betting and gaming within the devolved matters. Nor do I think that my noble friend Lord Wigg will be persuaded to support our proposals. But perhaps I might try to convince him that they are not so ill-considered as he imagines.
Initially, may I endorse publicly what I said in the letter to my noble friend when he said on Second Reading that the Bookmakers' Committee did not collect the levy. He was quite right and I was wrong. I shall come to that point later. Before proceeding further, I think that it is worthwhile to remind the House of what I said before —namely, that social control, unless it broadly reflects the morals and standing of a society, is likely to be difficult to enforce, and Scottish opinions are not necessarily those of London. This is not to say that the Government do not recognise the essential law and order aspects of the subject we are discussing; but this in itself is not enough to deprive the Assembly of the responsibility of looking after these subjects.
If noble Lords turn to page 55 of the Bill, they will see the much wider-ranging powers the Assembly will have over the law in Scotland including a large measure of control over the criminal law. It will not be dealing in isolation with the criminal aspects of betting and gaming. I should perhaps remind the House that there are already differences between the law in England and that in Scotland, and I am not aware of any complaint that this has lead to a breakdown of law and order. I think that it is unreasonable to believe that an elected Assembly in Scotland would wish to create such a situation.
131 There has also been the suggestion that our proposals could lead to chaos in the betting field because of the cross-Border problems which could be caused by the differing levies in Scotland and England. I have already pointed out that the law differs in many respects North and South of the Border and chaos does not ensue because the law of one country takes account of that in the other. Our devolution proposals are not for the creation of a separatist Scotland, and within a continuing, unified United Kingdom there is every reason to suppose that commonsense and goodwill will prevail.
By devolving betting and gaming to the Assembly, we are not requiring them as the noble Viscount, Lord Thurso, said, to produce different laws or practice, or necessarily even expecting that they will. We are only providing the ability for them to do so if this was looked for by the Scots, if they wanted it and if they judged improvements could be made. We are accused of not putting forward a concrete scheme for the post-devolution situation, but to do so would destroy the concept of devolution. The Assembly must be free to decide for itself what it wants to do. The Bill provides the framework and also includes, I would remind the House, the checks on its powers.
My noble friend referred to the question of a national lottery, but it is not the Government who plan to introduce legislation for a national lottery. However, it would be possible—and this is what I said earlier—for the Scottish Assembly to do so in respect of Scotland if that was what it wanted to do. Much of our discussion has centred on the bodies that operate in this field—the Horserace Betting Levy Board, the Horserace Totalisator Board and the Gaming Board, and tonight we have also had opinions expressed from the Jockey Club. Their existence is central to the whole concept of betting and gaming as it has developed in this country. To exclude them from our proposals would leave a very great gap in the Assembly's competence over the subject. It is essential that the structure should exist in the Bill to allow for their constitution and their functions to be altered. But surely the Assembly will take into account all relevant factors before it makes any move towards requesting a change in the existing arrange- 132 ments. It is a statutory requirement that it consults the bodies concerned. There is also the other safeguard in the Bill that a Clause 67 order is made by the Secretary of State and has to be approved by an Affirmative Resolution of both Houses of Parliament.
I should mention the two points raised in an earlier debate about the public bodies by my noble friend Lord Wigg. As we have accepted, he admonishes me for inaccurately describing the function of the Bookmakers' Committee. Having re-read my words, as noble Lords have heard, I have written to the noble Lord and endeavoured to give the reasons behind it. My noble friend none the less was quite right at the Committee stage when he said that the Bookmakers' Committee does not collect the levy. He was right, and I was wrong.
Secondly, and rather more importantly, the noble Lord gave the impression that he thought the Government had not given due consideration to the views expressed by the Gaming Board and the Horserace Betting Levy Board against devolution of betting and gaming. I believe the phrase he used implied that their views had been consigned to the wastepaper basket. This was not, of course, the case, and I hope noble Lords will believe me. The Government carefully considered all the representations made to them both following the publication of the November 1975 White Paper and subsequently, including those made in Parliament. Modifications to the devolution proposals have resulted including, for example, the proposal to change from Negative to Affirmative Resolution in respect of a Clause 67 order. The views of the Gaming Board and Horserace Betting Levy Board were carefully considered, but for the reasons already given the Government decided that it was better for the original proposals to stand. The fact that the Government decided to stick by their original plans should not be misread as evidence that the views of those bodies were ignored.
My noble friend referred to the fact that a Royal Commission is sitting. That Royal Commission has not yet reported. It would be quite wrong for me to speculate or hypothesise about the Government's attitude towards a report which is not yet published, and I have no 133 intention of trying to do so. But the Royal Commission is aware of the Government's devolution proposals, and obviously its conclusions will take these into account.
My Lords, throughout these debates the charge has been made that the Government have not thought through their proposals. I hope that I have perhaps been able to assuage some anxieties tonight. I hope that the House will appreciate that if the devolution of betting and gaming is seen in the context of the whole structure of the Bill—with all the checks and balances it contains—it makes sense. In spite of the appeal by the noble Lord opposite for unity with the Jockey Club, the Levy Board, and the support which we know my noble friend has in this House for his Amendment, I hope that the House will not accept it.
§ 9.53 p.m.
§ Lord WIGG
My Lords, I think I can answer the noble Baroness and the noble Viscount on the Liberal Benches quite simply by reading two more short extracts from the opinions of the Gaming Board. When one looks at the composition of the Gaming Board, and the stature of its chairman, I think it is quite right to put those opinions in the balance against the opinions the noble Baroness has repeated tonight, which obviously had their origins in the Home Office—and I am sure that anybody making a book would certainly not start them favourites with their record on form. These are not my words, they are the words of the Gaming Board:Over the seven years of our existence, and in co-operation with the police forces of England and Wales and Scotland, we have built up a system of control for an activity in which the real dangers of infiltration by unwelcome elements are never very remote. We have heeded the lessons of countries where similar elements have become more than a threat to their social fabric. We believe that to dissipate that system could lead to the recrudescence of the evils that the Gaming Act 1968 was designed to halt.I would commend those words to your Lordships as being worthy of consideration before any one of you, on either side of the House, goes into the Lobby against this Amendment. In their evidence to the Royal Commission, they said:At the heart of the Board's views is the conviction that gaming control is a matter of law and order which must be handled with consistent firmness throughout Great Britain if the present orderly system is not to be put in jeopardy. 134 As the Board have tried to indicate earlier in this evidence, the gaming interests are wealthy and powerful and would be quick to take advantage of any slackening of control in one part of Great Britain.Let us consider what is in the balance. On the one hand there is the work, over the better part of 20 years, of the Horse-race Betting Levy Board, the Gaming Board and the Totalisator Board, and the work over two centuries of the Jockey Club and its system of control. Your Lordships have heard the statements of one of the senior stewards of the Jockey Club as to what the view is of the Jockey Club. I tender my evidence and opinion for what it is worth.
For over 20 years I have been involved, first as a member of the Racecourse Betting Control Board, and I was there appointed by a Conservative Minister and my appointment was renewed by a Conservative Minister, and as chairman of the Horserace Betting Levy Board and, more recently, I do what I can to help. We have the evidence here of the Gaming Board and the views, which we know are similar, of the Levy Board.
On the other hand, we have the views, expressed with grace, by the Minister, the views of civil servants, whose record in this matter, even on the evidence the noble Baroness has given tonight, leaves at any rate a little to be desired. I will not make any personal plea because it is for each noble Lord to make up his mind. I would only add that the issues are not minor. The turnover here is fantastically high and is growing; £3,250 million is wagered in betting and gaming and bingo and we in this country have chosen the path, rightly in my view, not to suppress. It is clear from this report that if you suppress, if you make a mistake, then as sure as night follows day there will be a recrudescence of illegal gambling, protection rackets and the like.
We in this country have been exempted from that and we are largely exempted—I say this as a member of the Labour Party—because it was a Conservative Minister, the noble Lord, Lord Butler of Saffron Walden, who had the courage to introduce this legislation following the 1959 Election. It has worked. If it wishes, the Labour Party can claim credit for one simple fact; namely, that when it took power in 1964 the total amount obtained 135 by way of revenue was £33 million; today it is £315 million, no low sum. Indeed, I would go further. The only 100 per cent. successful policy that Labour Governments have introduced in raising revenue is in the field of betting and gaming. Is all of it to be thrown on one side in the pursuit of some nameless hope that perhaps, according to the words of the Liberal Party spokesman, if you just let the control go, throw all this experience to the wind, perhaps nobody will do any harm and, anyway, they mean well?
§ Resolved in the affirmative, and Amendment agreed to accordingly.136
§ 10 p.m.
§ On Question, Whether the said Amendment (No. 114) shall be agreed to?
§ Their Lordships divided: Contents, 63: Not-Contents,40.135
|Balerno, L.||Feversham, L.||Mottistone, L.|
|Belstead, L.||Fortescue, E.||Mowbray and Stourton, L.|
|Bridgeman, V.||Gray, L.||Newall, L.|
|Burton, L.||Greenway, L.||Onslow, E.|
|Campbell of Croy, L.||Haig, E.||Perth, E.|
|Carrington, L.||Hanworth, V.||Rankeillour, L.|
|Cathcart, E.||Harvey of Tasburgh, L.||Romney, E.|
|Colville of Culross, V.||Hylton, L.||Sandford, L.|
|Cottesloe, L.||Inglewood, L.||Sandys, L.|
|Craigavon, V.||Killearn, L.||Selkirk, E.|
|Craigmyle, L.||Kilmany, L. [Teller]||Sharples, B.|
|de Clifford, L.||Kinross, L.||Strathclyde, L.|
|Denham, L.||Lauderdale, E.||Strathcona and Mount Royal, L.|
|Devonshire, D.||Linlithgow, M.||Swinton, E.|
|Digby, L.||Long, V.||Trevethin and Oaksey, L.|
|Drumalbyn, L.||Manton, L.||Vickers, B.|
|Dundee, E.||Margadale, L.||Vivian, L.|
|Elles, B.||Massereene and Ferrard, V.||Ward of North Tyneside, B.|
|Elliot of Harwood, B.||Minto, E.||Wigg, L. [Teller]|
|Elton, L.||Monson, L.||Wilson of Langside, L.|
|Ferrers, E.||Morris, L.||Young, B.|
|Balogh, L.||Janner, L.||Stewart of Alvechurch, B.|
|Birk, B.||Kirkhill, L.||Stone, L.|
|Boston of Faversham, L.||Llewelyn-Davies of Hastoe, B.||Strabolgi, L. [Teller]|
|Collison, L.||Lovell-Davis, L.||Tanlaw, L.|
|Davies of Leek, L.||McCluskey, L.||Thomson of Monifieth, L.|
|Davies of Penrhys, L.||McGregor of Durris, L.||Thurso, V.|
|Elwyn-Jones, L. (L. Chancellor.)||Northfield, L.||Wallace of Coslany, L.|
|Gaitskell, B.||Oram, L.||Wedderburn of Charlton, L.|
|Goronwy-Roberts, L.||Peart, L. (L. Privy Seal)||Wells-Pestell, L.|
|Gregson, L.||Sainsbury, L.||Wigoder, L.|
|Hale, L.||Samuel, V.||Winterbottom, L. [Teller]|
|Harris of Greenwich, L.||Seear, B.||Wynne-Jones, L.|
|Hatch of Cosby, L.||Segal, L.|
|Hood, V.||Stedman, B.|
§ 10.7 p.m.
Lord DE CLIFFORD moved Amendment No. 114A:
Page 54, line 32, leave out ("Licensing of dogs and keepers of dogs").
§ The noble Lord said: My Lords, during consideration at Committee stage of the Motion, That Schedule 10 be a Schedule to the Bill, I raised this matter before your Lordships, and the noble and learned Lord kindly said that he would write to me, which he did, and I am most grateful. However, I still feel that the answers which he gave in his letter are not satisfactory. It is admitted that under the Local Government (Scotland) Act 1966 the equivalent of county councils and borough councils can alter the licence fee charged for dogs, but Schedule 10, Group 20, the licensing of dogs and keepers, introduces a totally new principle. In 1974 the Government set up a Working Party on Dogs, which reported in 1975; and the principle about which I am asking was not changed by that Working Party on Dogs.
§ At the moment there is not a single dog licensed in the United Kingdom—not one. There are keepers who are licensed to keep dogs, but there is not a single dog licensed. Under this Schedule, powers are given to the Assembly to alter the principle of the whole business of licensing dogs. I feel that this is something which is a United Kingdom responsibility, and should not be the responsibility of the Scottish Assembly. I am rather reinforced in this matter because I have perused the Wales Bill, and these powers are not to be given to the Welsh Assembly. I fail to see why Scotland should be given the power to change the principle under which all the dogs in this country are licensed.
§ The noble and learned Lord pointed out to me that it was intended that the Assembly should have powers to amend the provisions relating to the keeping of dogs under the Guard Dogs Act and the Breeding of Dogs Act. I have no objection to that at all. What I have an objection to is the fact that a devolved Assembly should have the power to alter the basic principle under which dogs are licensed in this country, which the report of the Working Party on Dogs never suggested should be altered. I beg to move.138
§ Lord McCLUSKEY
My Lords, the words, "licensing of dogs" are included in this Schedule in order to devolve the matters mentioned by the noble Lord, Lord de Clifford, in the Dog Licences Act 1959 as amended by the Local Government (Scotland) Act 1966. The provisions in that Act deal with the charges to be levied by local authorities for licences for dogs. I am not quite sure what the noble Lord meant, but I see that the Long Title of the Act is:An Act to consolidate certain enactments and Orders in Council relating to the licensing of dogs kept in Great Britainand Section 1(1) reads:There shall be charged in respect of any dog kept in Great Britain a duty of 7s. 6d. which shall be paid annually.The reference to "keepers of dogs" which the noble Lord also mentioned is intended to devolve to the Assembly the licensing of guard dogs and of breeding kennels; that is to say, the matters contained in the Guard Dogs Act 1975 and the Breeding of Dogs Act 1973.
The noble Lord, Lord de Clifford, asked me on 10th May whether the matters in the Animals Act 1971 were devolved. As I explained in my letter to him, that Act does not apply to Scotland, but certain matters covered by that legislation are devolved by virtue of being included elsewhere in other parts of Schedule 10. Thus, the matter of civil liability for damage caused by dogs is within the legislative competence of the Assembly by virtue of Group 24, which deals with civil law matters in Part I of Schedule 10.
The substance of the matter, in my submission, is that these are all essentially matters of local concern which should become the responsibility of the Assembly. Indeed, it is difficult to understand a view which suggests that somehow dogs is a United Kingdom matter and that the Scottish Administration cannot be trusted to deal with dogs; although they have been given wide-ranging powers in relation to health, education and the like. I know that dogs cross borders but I do not think that that is a reason for retaining these matters as United Kingdom matters only. Nothing in here relates to matters of rabies and the like which are reserved by other entries in Schedule 10. I hope that 139 the House will take what I believe to be the sensible view, that the matters here referred to are essentially matters of local concern. If the Assembly is not to be trusted to deal with these matters, they surely cannot be trusted to deal with anything at all.
The Earl of SELKIRK
My Lords, the wording is peculiar. You are not licensing a dog. We are constantly being told that if there is any expression used in an Act of Parliament it can be used again; so that one must be careful with the precise wording used. You are issuing a dog licence or you are issuing a car licence. You do not license a car; you are licensing someone to have a car. I would not have raised this matter, but we are constantly being told that somebody on a previous occasion has used what is not a clever expression. I only wonder whether, even in this Bill, we could not, perhaps, use words which mean what they say. I should like also to have an assurance about what happens to a dog licensed in Scotland which you have in the South of England. How do we know that the Scots will recognise an English licence or the English will recognise a Scots licence? I know that this is a silly point, but these things ought to be thought out. I wonder whether that matter could be considered.
Lord DE CLIFFORD
My Lords, the noble and learned Lord, as the last noble Earl who has spoken said, has missed the point. Nowhere else in the United Kingdom can you license a dog; you can only license the keeper of a dog. To ask, "Why should the Scottish Assembly not be able to do this? "to my mind is rather foolish. The present Government set up the Working Party on Dogs which recommended no such power to do these things, and Scotland was included. I fail to see why this devolved Assembly should be able to change the principle on which dogs are licensed. I can see why they can change the principle of how one alters the licensing of keepers of dogs, but I cannot see why one should enable one Assembly in Scotland to license dogs but not one in Wales.
§ Lord McCLUSKEY
With the leave of the House, my Lords, may I say this: 140 there is nothing to stop the United Kingdom Parliament from licensing dogs if it chooses to do so. It so happens that the Acts which are consolidated in the 1959 Act do not do precisely that. The United Kingdom Parliament can license dogs if it so wishes. Why should the devolved Assembly be deprived of the same competence? I do not understand that there is some great, profound theological difficulty about licensing dogs just because it has not been done. The argument against one seems to be that just because it has not been done it should not ever be done.
Lord DE CLIFFORD
I am not convinced by the noble and learned Lord; but at this hour I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 10.17 p.m.
Lord McCLUSKEY moved Amendment No. 115:
Page 55, line 4, leave out ("Schedule") and insert ("Group").
§ The noble and learned Lord said: My Lords, this Amendment is a highly technical Amendment and involves no change in policy. It takes into account the remote possibility that some special circumstance might lead to need to delay the devolution of particular functions in Schedule 10 for a short period in the exercise of powers under Clause 81 (which deals with commencement) as read with Clause 77(2) (which deals with variations of orders). It has always been the intention of the Government to bring devolution of all the main functions in Schedule 10 into force on the same day. It is conceivable, however, that because of some particular circumstance it may be desirable to hold back the transfer of a group temporarily.
§ This Amendment makes clear that a flexible approach can be adopted to the implementation of Schedule 10 if circumstances make it desirable. It has no implications for the content of Group 23 itself. There is a corresponding Amendment, No. 201, to Schedule 16 on page 84 of the Bill which deals with the entry for the Public Records (Scotland) Act 1937. In the meantime, I beg to move this technical Amendment, No. 115.141
§ On Question, Amendment agreed to.
Lord CAMPBELL of CROY moved Amendment No. 115A:
Page 55, line 33, leave out ("reserved") and insert ("scheduled").
§ The noble Lord said: My Lords, this is one of several Amendments related to Schedule 15. Noble Lords who have been following our investigations into this Schedule can be reassured that these Amendments now represent agreement reached with the Government about changes to the Bill. Indeed, the Government have already subsumed my earlier similar Amendments where they were replacing whole passages in the Bill. What they have done is to use the new term "scheduled function" instead of "reserved function".
§ Two questions arose at Committee stage. First: Why was Schedule 15 there at all? In the margin to the Schedule is a reference to Clause 79, but Clause 79 is only a definition clause and there was the definition of "reserved function", which is in the heading of Schedule 15. It seemed to be in limbo with no apparent direct connection with the Bill.
§ The second question which arose was how can one avoid ambiguity, because those matters which were not to be devolved were, in the terminology of the Bill, called "reserved matters". Yet here we have a term "reserved functions" and in the few places where one finds it in the Bill one might not have realised that it had a different and a special meaning. In correspondence with the noble and learned Lord and during the exchanges we have had in debates on the Bill, agreement has been reached to change the word "reserved" to "scheduled". This requires a change in the heading of Schedule 15 because it has been suggested that it should now be called "Local Government Bodies—Scheduled Functions". As your Lordships know, it is not possible to put down an Amendment actually to change the heading of a Schedule, so that I hope the Clerks of the House who make these changes will recognise that as a suggestion which has been agreed by the Government.
§ As regards the necessity for Schedule 15, the noble and learned Lord, Lord McCluskey, has written to me and said 142 that because the Bill is concerned primarily with identifying devolved matters Schedule 15 is essentially the residue of matters dealt with by local authorities which are not devolved matters in relation to either a Scottish Secretary or the Assembly. That is one of the reasons why we can now restrict the Schedule to local government bodies—not local authorities because it covers other local government bodies such as joint boards. It is the residue of matters which are not devolved to a Scottish Secretary or the Assembly.
The question then arises, how are the grants to be paid, and by whom, for these services in Schedule 15? On this I gave the noble and learned Lord notice some days ago, and I received a letter from him today and I think I can save the time of the Committee by giving the gist of the letter—
In so far as those services are funded by specific grants"—
the main example of this is the police service—
these grants will continue to be made directly to local authorities by the Government under the existing statutory provisions. The Bill leaves things exactly as they are.
He goes on to say:
In so far as the cost of scheduled functions is not met by a specific grant"—
and "scheduled functions" is the new term for functions in Schedule 15—
it forms part of the residual expenditure of local authorities which falls to be supported under the rate support grant system.
So the noble and learned Lord has already given me an answer to the question of how the grants to these services are to be dealt with in future. I know that this, as well as the whole question as to why Schedule 15 should be in the Bill at all, was a matter puzzling several noble Lords.
§ There are subsequent Amendments. I have made the point about the need to alter the heading to Schedule 15 and I think this is a convenient point to make an explanation of the serious Amendments. Others will crop up later on but I think they can be taken formally.
§ 10.25 p.m.
The Earl of SELKIRK
My Lords, I congratulate the noble Lord, Lord Campbell of Croy, on elucidating this extremely 143 obscure point to which I must confess I have been trying to find a solution for some time. I take it that Schedule 15 contains the only subjects which will be funded by specific grants. That is one question—I do not know whether there are any others. I imagine these will all be funded by specific grants.
I should like to ask one other question: can the Secretary of State fund by specific grant other subjects which are not in this Schedule? I think he ought to be able to do so, but if you lay down the subjects in the Schedules to a statute obviously you cannot change them about very quickly. If this is a fixed number of subjects which will be funded by specific grant, then I wonder why they are not called "scheduled subjects funded by specific grants" so that people will know where they are. This is quite important because local authorities receive grants from a quite different source and they will get those quite separately from the Assembly. I should have thought it would be worthwhile making clear whether this is a permanent division or whether it is merely one of convenience for the time being.
Lord CAMPBELL of CROY
My Lords, may I interrupt the noble Earl? In fact, in case I may have misled him, it is not all these functions which are financed by specific grants, but only some of them. Some of the other functions are covered by the rate support grant.
The Earl of SELKIRK
My Lords, it is all very well to say that, but it is not quite good enough. Many of the subjects are funded by the rate support grant, but that is through the Assembly. They are not specific grants which cannot he altered. Assembly grants can be handled exactly as the Assembly likes, and that is a quite fundamental distinction. A grant made by Parliament through the Assembly need not be paid by the local authority at all. That is quite an important point.
§ Lord McCLUSKEY
My Lords, perhaps I might deal with these points while they are fresh in our minds. All the matters which are covered by specific grant are included in Schedule 15, but Schedule 15 goes a little wider than that because it includes matters which are not 144 the subject of specific grant. That is how I think the noble Lord, Lord Campbell of Croy, understood it, and that is absolutely correct. There is nothing in the Bill to prevent the Secretary of State, should he so choose, from making a specific grant in relation to matters not under this heading. The Bill does not restrict his capacity in that respect.
Regarding the points made by the noble Lord, Lord Campbell of Croy, first, I think that in Committee we managed to make clearer what the connection was between the rest of the Bill and the term "reserved functions" as it then was. Now it is "scheduled functions" and the ambiguity has been removed. In both these regards I acknowledge with gratitude what was said by the noble Lords, Lord Campbell and Lord Drumalbyn. I think they have helped us to make the Bill clearer, though we may not have satisfied entirely the noble Earl, Lord Selkirk.
We agree with what the noble Lord, Lord Campbell of Croy, said about the heading of Schedule 15, and no doubt that will be taken note of in the proper quarters. He was also right in pointing out that the heading should refer to local government bodies. We agree with him on that. With regard to the payments of grants, that has been covered by what I said earlier; but I would also confirm what the noble Lord, Lord Campbell of Croy, said by paraphrasing what I said to him in my letter, which he received today. One other matter I am asked to bring to your Lordships' attention is that it would be possible for a Scottish Secretary who has access to funds which form part of the rate support grant to make specific grants from the funds available to him.
§ On Question, Amendment agreed to.
§ 10.28 p.m.
Lord McCLUSKEY moved Amendment No. 116:
Page 55, line 40, leave out from second ("and") to ("other") in line 42 and insert ("as respects vessels").
§ The noble and learned Lord said: My Lords, this again is a technical Amendment concerned with pollution from ships at sea. It paves the way for related Amendments to Schedule 11. 145 The Government's intention is that the Scottish Executive should exercise powers under legislation relating to pollution from ships in territorial waters but that the Assembly should not be able to alter those powers. Indeed, to allow alteration would be undesirable because of the wider international implications of sea pollution.
§ At present, the Bill seeks to achieve this policy by means of paragraph 7 of Part II of Schedule 10. The paragraph seeks to constrain devolved competence to such an extent that only executive powers will, in practice, be devolved. However, on reflection the Government consider that paragraph 7 is not the appropriate means of achieving what is required. It necessitates such tortuous wording that the meaning is not entirely clear. Instead, it is now proposed that paragraph 7 itself should be phrased in terms which reserve pollution from ships at sea. So it will be clear, on the face of it, that the Scottish Assembly's legislative competence in respect of pollution from ships will extend only to inland waterways. The Scottish Executive will then, as a result of an Amendment to Schedule 11 which we shall in due course propose, be given executive powers under enactments in relation to pollution from ships at sea. We believe that this Amendment leaves paragraph 7 in a more intelligible form, and I shall return to this matter when I come to the Amendment to Schedule 11. My Lords, I beg to move.
The Earl of SELKIRK
My Lords, I think that this arose from a remark that I made about clean air, and this is a very great improvement.
§ Lord McCLUSKEY
My Lords, I should have acknowledged that. I was not, as your Lordships will recall, heavily in the middle of the clean air at the time. I think that it was my noble friend Lady Stedman who dealt with that. But I am happy to acknowledge the noble Earl's contribution.
§ On Question, Amendment agreed to.
§ 10.32 p.m.
§ Lord MORRIS had given Notice of his intention to move Amendment No. 117:
§ The noble Lord said: My Lords, before speaking to this Amendment, may I ask the noble Lord, Lord Kirkhill, whether I may refer to his rebuttal to Amendment No. 111A of my noble friend Lord Campbell of Croy? He will recall that he spoke to this Amendment while speaking to No. 111A, and he also referred to Amendments Nos. 112, 117, 118 and 118A, with our leave. I see that the noble Lord nods his head and I am most grateful to him. In his rebuttal on No. 111A, he specifically stated—and may I ask him to look back—that the words "provision of" were tidy phrasing with regard to the payment of subsidies. But, of course, "provision of" in Group 10 does not refer to the payment of subsidies, which comes in a separate sentence, and the words refer only to the first sentence. Will the noble Lord be good enough to bear that in mind when he makes his later observations?
§ Your Lordships will observe that the wording of Amendments Nos. 117 and 118 is precisely the same as that of No. 118A by my noble friend Lord Campbell of Croy, except that it is upside down and split into two. In the light of that, and not wishing to delay your Lordships, I think that I should not move my Amendment and await the contribution of my noble friend on the Front Bench.
§ [Amendment No. 118 not moved.]
§ Lord CAMPBELL of CROY moved Amendment No. 118A:
Page 55, line 42, at end insert—
("7A. Licensing or other authorisation of public passenger transport services by road. Requirements as to the construction and safety of motor vehicles and working conditions in them.").
§ The noble Lord said: My Lords, I was a little surprised that my noble friend withdrew at that moment, because I could have spoken on his Amendment and drawn attention at the same time to mine, No. 118A, which I now move. Mine is simply bringing together the two parts which he had divided into two, offering the Government a choice. I put down mine independently, but the result was that if the Government did not like one part of my Amendment, they could have dropped it and chosen the 147 other part by selecting one of my noble friend's Amendments. But my noble friend has explained the reasons for these Amendments. My object was the same, but I put them together in one. I think it would help if it were made quite clear that these matters are not to be devolved, but I should be interested to hear what the Government have to say. I beg to move.
§ Lord KIRKHILL
My Lords, the Government would aver this evening to your Lordships' House that the Amendment is inconsistent with the type of devolution to which the House agreed on Second Reading. I would also suggest that the effect of the Amendment carried earlier in Committee was itself inconsistent with a real degree of devolution.
I do not think it is reasonable that a Member of the Assembly should have to tell his constituents, for example, that he is unable to do anything about the frequency of the local bus service because it is such a weighty matter that only Parliament can legislate upon it and only Ministers of the Crown can exercise executive powers. The Government's view is that if we are to have a responsible Assembly, we must first give it responsibilities.
The effect of both of these Amendments, although we are discussing at the moment only Amendment No. 118A, is to reserve equally matters in respect of long distance routes—I shall return to this question—and in respect of local bus services from one part of a town to another. Hence I suggest to your Lordships that Assemblymen should be able to respond to constituency pressure, at least at that point.
I put it to your Lordships' House in this form: is it really right that the Secretary of State for Scotland, who will have no other transport responsibilities, should have to concern himself with whether or not some local community organisation should run a minibus service? These are some of the difficulties that on a reading of the Amendment are suggested to the Government. But the Government have given careful consideration to what was said during the debate at 148 Committee stage, and I wish to respond positively.
First, it was suggested that the original entry for the Road Traffic Act 1960 devolved matters in respect of public service vehicle licensing as well as in respect of road service licensing. At Amendment No. 126A the Government want to lead in an Amendment as it relates to these matters, and it is convenient for me just to link through at this stage. It seems to me to be the reasonable thing to do, as we speak at this time.
I think that we are all agreed that public service vehicle licensing should be reserved. I have, therefore, had this matter checked, and I can assure the House that there is absolutely no way in which either the original entry or the modified version, which the Government will propose at Amendment No. 126A, devolves any aspect of public service vehicle licensing. If it did, we should have no hesitation in putting the matter right.
Secondly, concern was expressed about cross-Border services. I can fully understand the wish that the existing arrangements for the operation of cross-Border services should not be disrupted by devolution, but perhaps I could explain what the existing arrangements are, because there might be some misconceptions about them. The Road Traffic Act divides Great Britain into traffic areas, each with its own traffic commissioners. Scotland is a separate traffic area, so if a bus operator wishes to run a service across the Border today he needs the approval of at least two different sets of traffic commissioners. But it is true that he at least knows that he is dealing with traffic commissioners on both sides of the Border, not with different types of organisation. And he also knows that if he receives a road service licence from one set of commissioners, Section 137(1) of the Act enables that licence to be backed by other traffic commissioners without the need for an entirely separate application.
What the Government therefore propose, as we lead into Amendment No. 126A, as a direct response to the Committee stage debate, is to entrench the present administrative framework for road service licensing. Our proposed 149 Amendment would prevent the Assembly from giving the task of road service licensing to a body other than the traffic commissioners, and would prevent them from abolishing the present procedure of backing licences granted on the other side of the Border. I hope your Lordships will find that eventual Government approach to be helpful. I am anxious that we should resolve this in your Lordships' House rather than leave it until the Bill returns to another place. If we can do this it will enable us to give more constructive consideration to related transport provisions in the Bill, some of which concern other aspects of bus services, and it will allow us to consider how far we should devolve the road licensing provisions of the Transport Bill which was given a Second Reading by your Lordships last Friday. In fact I believe we should be returning a more coherent Bill to the other place were we to do so.
I have strayed ahead to a Government Amendment, but I thought it was appropriate to do so in the light of the interrelationship as I saw it between Amendment No. 118A and indeed Amendment No. 118, although it was not moved, and the Government Amendment which will subsequently be before your Lordships.
My Lords, I support the Amendment moved by the noble Lord, Lord Campbell of Croy—although now that the penny has dropped I think he will regret not keeping it in its original form. Like the noble Lord, Lord Kirk-hill, I considered this point and read the report of the Committee stage most carefully. I was anxious to assist the noble and learned Lord, Lord McCluskey, in specifically stating in that part of the Bill which covers matters not included in the groups, namely, Part 2 of Schedule 10, what the Government require. In the Official Report at column 819 of 9th May, 1978, he said:There will be no devolution as to, for example, construction requirements for vehicles. … There is no devolution in relation to safety requirements or working conditions, which relate to transport as an industry rather than the provision of transport services".This Amendment would specifically state that policy as stated by the noble and learned Lord, Lord McCluskey. In the light of that, I do not quite understand why the Government are objecting to this Amendment.
Lord CAMPBELL of CROY
My Lords, I had hoped that this would be regarded as a consequential Amendment following the decision which this House took in Committee and the way in which the Government themselves have been tabling consequential Amendments in order to enable the Bill to be complete when it goes to another place. To a great extent that has to be done by the Government because of the complicated way in which Schedule 10 is drafted. I had hoped that the Government would either table something like this or else accept this Amendment.
The most important point is that there is confusion arising from what was said in Committee by the noble Baroness, Lady Stedman, and what has been said again today by the noble Lord, Lord Kirkhill. The noble Lord spoke about the local bus services: it is not the local decisions which are at issue, it is having a uniform licensing system. Those are quite different matters. At present, it is a matter for local decision whether or not to grant a licence or a permit. Decisions can be taken locally in Scotland now and that would continue under our Amendments; but what we are trying to preserve is a uniform licensing system within which those decisions are taken, so that the whole passenger transport industry has a uniform system which it can understand and follow and where everybody knows where they stand.
So I must draw attention to the confusion which has occurred in Government thinking and which was repeated again today. We are not trying to take away local decisions; we are just trying to prevent a different system developing North of the Border, thereby making life far more difficult and possibly causing muddle and confusion, not only to the people operating the bus services but also to the passengers. I do not know whether the noble Lord wishes to reply.
§ Lord KIRKHILL
My Lords, with the leave of the House, perhaps I might intervene. I am grateful to the noble Lord for giving way. I was perhaps not quite as logically explicit in reply to the noble Lord, Lord Morris, as I might have been, because I spoke mainly to the Government proposition, which I considered to be, as it were, a halfway house 151 between us. I am at one with the noble Lord that the construction and safety of motor vehicles and working conditions should be reserved, but I would point out that there are three reasons why the Amendment should not be pressed.
First, it is unnecessary in that there is nothing in Part I of Schedule 10 to devolve these matters. Secondly, to insert in Part II an unnecessary derogation would be damaging in its effect on the structure of Schedule 10; it would inevitably cast doubt on the efficacy of other derogations. Thirdly, the Amendment does not, I am advised, cover the range of matters which I assume the noble Lord, Lord Morris, has in mind. For example, it does not mention safety standards for drivers and passengers. I should perhaps have made that point more explicit; I failed to mention it earlier. I am further advised that the Government's Amendment No. 126A guarantees a uniform licensing system. The Amendment of the noble Lord, Lord Campbell, does take away local decisions from the Scottish Secretary, but of course I made that point earlier.
Lord CAMPBELL of CROY
My Lords, the noble Lord has given us more than a trailer for the Government Amendment No. 126A. I hope that means that he does not feel he has to repeat it all when we reach that Amendment. The Amendments we thought would be consequential and helpful to clarify the Bill have not been accepted by the Government. I am not proposing to argue the matter further at this point. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
Lord McCLUSKEY moved Amendment No. 119:
Page 55, line 43, after first ("services") insert "provision of inland waterway services,").
§ The noble and learned Lord said: My Lords, this Amendment is one which adds the provision of inland waterway services to the matters listed in paragraph 8 of Part II of Schedule 10 as matters not included in the groups in Part I of the Schedule. This is necessary to complete the reservation of inland waterway matters on which an Amendment was carried in Committee against the advice of the Government. Provision 152 of inland waterway services might otherwise be held to be included in Group 10. This Amendment is brought forward without prejudice to the attitude which the Government might think it right to adopt on the matter of inland waterways when the Bill returns to another place. I beg to move.
§ On Question, Amendment agreed to.
Lord McCLUSKEY moved Amendment No. 120:
Page 56, line 8, leave out paragraph 9.
§ The noble and learned Lord said: My Lords, I think those who are interested in the matter of aerodromes will recognise that this is simply a consequential Amendment following upon the decision taken in Committee to remove aerodromes from the devolved matters in Part I of Schedule 10. As I said in regard to the previous Amendment, this Amendment is made without prejudice to the Government's ultimate position on that. I beg to move.
Lord CAMPBELL of CROY
My Lords, I would only say that this and the previous Amendment are the kind to which I was referring, where the Government, I know, are trying to make the Bill complete without prejudice to their position when it gets to another place. We accept this, and we are grateful that the Government draftsmen have done what would otherwise be a very complicated task for us.
§ Lord McCLUSKEY
My Lord, with your Lordships' leave, may I say that it is of course essential to tidy up the Bill so that if the ultimate decision is taken in another place to leave matters as they are in relation to the deletion of aerodromes, then at least the Bill will be workable and not confusing.
§ On Question, Amendment agreed to.
§ 10.50 p.m.
Lord KIRKHILL moved Amendment No. 121:
Page 56, line 20, at end insert ("other than those mentioned in Group 13 and those relating to arterial drainage works").
§ The noble Lord said: My Lords, this is a technical Amendment, which in part is related to the Amendment concerning 153 crofting (No. 113) which we have earlier discussed. Paragraph 11 of Part II of Schedule 10 derogates principally from Group 13 in Part 1 of that Schedule. Its purpose is to ensure that the devolution of agricultural land in Group 13 does not carry with it grants in relation to agricultural land which are part of the wider agricultural support system. This paragraph 11 does successfully, but I am afraid that it also goes further by reserving two other types of grant which should be devolved.
§ First, there are the grants and subsidies in relation to crofters, land-holders and similar categories which are to be devolved by virtue of Group 13, the wording of which has been expanded by the Government's earlier Amendment. These are grants payable in relation to the special circumstances of those concerned, and should be devolved. Most of these grants are in relation to livestock rather than land and are not affected by paragraph II. But those which are in relation to land are reserved at present by paragraph 11, and this is not the Government's intention.
§ Secondly, there are grants in relation to arterial drainage. At present paragraph 11 reserves all grants in relation to agricultural land drainage. The Government intend that grants for field drainage and farm flood protection works under the Farm Capital Grants Scheme should indeed be reserved. But paragraph 11 would at present also reserve grants for protective works under the Land Drainage (Scotland) Act 1958. This is not the intention. Both these matters are put right by the proposed Amendment to paragraph 11. I beg to move.
§ On Question. Amendment agreed to.
Lord CAMPBELL of CROY moved Amendment No. 122:
Page 56, leave out line 22.
§ The noble Lord said: My Lords, I beg to move Amendment No. 122 which proposes that a subject be devolved which the Government at present are not devolving; namely, the taking of censuses of the population. Therefore, it is not a one-way traffic as has sometimes been suggested, that our Amendments are taking away subjects from the proposed Assembly. Indeed, already in at least 154 two cases we have suggested that the Assembly might take on functions which we thought suitable but the Government opposed them. However, on this occasion I hope that the Government will agree to this Amendment, because the Bill allocates population statistics as a devolved matter to the Assembly and the Executive. The reference is page 54, line 24 in Group 19.
§ Population statistics and the taking of censuses of the population are very similar subjects which surely could go together and in our estimate could both be devolved. I realise that this might cause some inconvenience for the Central Statistical Office, but there is inconvenience in devolving almost every subject in the Bill. It is my recollection that the Secretary of State and the Scottish Office now have functions concerning the taking of censuses, separate from England and Wales. They can decide when to have a census in Scotland and my recollection is that they can decide on the points to be registered—for example, how many people have Gaelic as their first language, which is a matter of considerable interest on the West Coast and in the Western Isles and which may affect school curricula. Therefore, this is a subject which is, in any case, already dealt with separately in Scotland, and I should have thought that it was very appropriate to be devolved. I beg to move.
§ The Earl of LAUDERDALE
My Lords, I should like to add a few words in support of my noble friend. There are all sorts of aspects of a possible census in Scotland which would not be appropriate to the United Kingdom. As my noble friend said, in Scotland we might want to know how many people speak Gaelic or even Lallans; we might want to know how many attend schools of this or that religion; we might want to know all sorts of things that are peculiar to Scotland and not to the United Kingdom. I am sure that the noble and learned Lord, Lord McCluskey, will appreciate this. This is what I call an "anti-apron strings" Amendment.
§ Lord TANLAW
My Lords, I should add a few words of my own bewilderment at finding that this subject is not devolved. As the Central Statistical Office has been mentioned, it is worth recording that it 155 might need all the help it can get. I recall that not so long ago it was able to produce the total population of the United Kingdom, but on the same table was unable to produce the number of deaths or births in the same period. On my inquiring how it could reach the total without actually knowing the number of births or deaths, it said that this was the best it could do, and that if I wanted any further details it would need more civil servants in order to produce such statistics.
There is a certain sort of mania about statistics which could perhaps be rationalised—as is done in the Amendment in the name of the noble Lord, Lord Campbell of Croy—to the extent that if you are devolving population statistics, in pure logic you should also devolve at least the responsibility of the Census. It would be helpful to hear the Government's view as to why this particular item is being reserved.
§ Lord KIRKHILL
My Lords, I can assure the noble Lord, Lord Tanlaw, that there is no mania on my part anent statistics. Indeed, I am usually totally confused by them. However, I think that it is agreed between us all that as much as possible in the realm of statistics should be devolved to the Scottish Assembly and Executive, and this is achieved by Group 10 in Part I of Schedule 10. However, in the Government's view, the Census is a different matter. It is the most important and comprehensive national population survey conducted by central Government. Much of the information derived from it is required for the exercise of what will be non-devolved functions, and validity of the Census for that purpose depends upon its being conducted at the same time and on the same basis and coverage for the whole of the United Kingdom. Without the entry in paragraph 22 of Part II of Schedule 10 the wording of Group 19 in Part I of the Schedule would include the Census. The exclusion will not preclude questions related only to Scotland from being included in the Census questionnaire. This will be able to be arranged at the request of the Executive where it is considered to be desirable and practical.
However, the Executive will have the power to collect statistics about the population in the period between censuses 156 on the basis of the Registrar for Scotland's other activities; for example, in registering births and deaths. That is a short but, I hope, cogent case which I put to noble Lords on behalf of the Government.
Lord CAMPBELL of CROY
My Lords, my interpretation of that case is that it is just inconvenient for the bureaucrats not to do it in a centralised way. I think that that applies even more to many of the other devolved subjects. I must point out that when the Government opposed our Amendment on uniformity in passenger transport licensing, if the Bill had stayed as it was it would have made life very inconvenient for the operators of buses, both in the public and in the private sectors. When the Government opposed our successful Amendment to take the administration of aerodromes out of the devolved matters, again, if that had stayed in the Bill it would have made life very inconvenient and almost impossible for those administering aerodromes and the airlines. But no, that does not matter.
Then when we come to the salaries and conditions of service of doctors and dentists, I can tell noble Lords that it is not just a question of inconvenience. It was alarming to many of them when that was in the Bill; but, not at all; they appeared not to matter. When it comes to the bureaucrats and those in the Central Statistical Office, then, of course, it is inconvenient if this matter is devolved; it all has to be kept central. I do not accept the arguments advanced by the Government, but this is not a major point and I should not wish to press it at this hour of the night. I would only say that others, who will be put to a great deal of trouble over subjects being devolved and systems being upset, will think that it is really not a very good argument to try. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 11 p.m.
§ Lord WILSON of LANGSIDE moved Amendment No. 123:
Page 56, line 22, at end insert—
(". The initiation or holding of referenda.")
§ The noble and learned Lord said: My Lords, on the 9th May I occupied, at 11.29 p.m., three minutes of your Lordships' time in moving an identical Amendment. It is designed, of course, to prevent 157 the Assembly from holding, or initiating the holding, of referenda on any subjects, be they devolved subjects or undevolved subjects. After the noble Baroness, Lady Stedman, had replied, I see from the Official Report at column 960 that the noble Earl, Lord Ferrers, commented that the answer given by the noble Baroness he had found rather disturbing.
§ Thereafter, after a number of your Lordships had expressed some sympathy with the aims and objects of this Amendment, with the exception—surprise, surprise—of the noble Lord, Lord Mackie of Benshie, the noble Earl, Lord Ferrers, at the conclusion of the debate said that many noble Lords on his side of the House had a great deal of sympathy with what I had said. I have opened the matter in that way and I shall be as brief and speedy as I can because again, alas, it is 11 o'clock at night.
§ I make no secret of the fact that I regard the referendum as an alien and a wholly undesirable intrusion into our constitutional arrangements. We have not had a great deal of discussion about this, surprisingly enough, in the course of the debates on this Bill. There was some reference to it. Some exchanges occurred between the noble Earl, Lord Ferrers, and the noble Lord, Lord Shinwell, at one stage which were quite exciting. We had an interesting academic exploration of the matter by the noble Lord, Lord Kaldor. I am sorry he is not here tonight. He called in aid the late Arthur Balfour and Dicey on the Constitution. It was an academic exploration of the subject. But I must say that in the real world in which, as a lawyer, I have had my life, while the referendum is perhaps a useful instrument for seeking the approval or otherwise of amendments to federal constitutions, it does not contribute significantly to the better conduct of affairs under a constitution such as the British Constitution.
§ So far as this Assembly is concerned, if it were left with the right to conduct referenda—and as I read the Bill, and consider what has been said about the Bill in the debates we have had in this House—it would seem to have the right to initiate referenda on either devolved or undevolved subjects. As I regard this I think this would be a dangerous innovation, although I shall not weary your 158 Lordships by the kind of instances I fear. I outlined them on 9th May. The danger is that a subordinate Legislature of this kind might be tempted—and it is not an unlikely thing; it is not a bogeyman conjured up from the imagination of an opponent of the Bill—to use the weapon of the referendum, as it were, to twist the arm of the Government at Westminster to achieve its objects in regard to such matters as the oil revenue from the North Sea, and so on. However, I shall not at this hour detain your Lordships longer.
My Lords, this is not a bogey conjured up by an opponent of the Bill, as the noble and learned Lord, Lord Wilson of Langside, suggested some people might think; it is an important point and it is bad luck on his part that in Committee the subject came up at 11.29 p.m. and now, on Report, at 11 o'clock at night, because the attention paid to it is obviously of lesser impact at this late hour.
I share the noble and learned Lord's view that the institution of the referendum is an alien and undesirable intrusion into our constitutional affairs. I expressed my views on this in Committee and, as he said, that seemed to irritate, I thought infuriate, the noble Lord, Lord Shinwell, much to my surprise. I tried to point out that in my view the institution of the principle of the referendum was putting into the hands of individuals that which was the responsibility of Parliament, and that is the view I hold, though I accept that others hold a different view. The fact remains that we have had only one referendum and it is a constitutional innovation. Admittedly there may be others. If we are to devolve affairs, are we right to devolve the principle of the extension of the referendum to the Assembly? I should have thought not. If the referendum is to be extended, surely Westminster, not the Assembly, should determine whether the principle should be extended.
It would be possible for us to reach a collision course as between the Assembly and Westminster over the provision of a referendum, and so often we have said we want to avoid collision. The Assembly might pass an Act which was offensive to Westminster, and one can think of all sorts of examples. Supposing there were an Act an abortion and supposing 159 Westminstei took offence at that measure. Westminster would be entitled to use its reserve powers to repeal that Act. What, then, if the Assembly said, "Very well, we will have a referendum on the subject. This is a devolved subject, it is within our competence, and we will see what result comes out of a referendum". The inference is that the Assembly would seek to gain the support of the people of Scotland for a measure by referendum and the result, indeed the intention, could be a conflict with Westminster.
I suggest it is bad to devolve this newfound power of the right to hold a referendum to the Assembly. I hope the Government will, on reflection, agree that it would be an undesirable move and that if referenda are to be held, it should be up to Westminster to decide on what subjects they should be held.
§ 11.10 p.m.
§ Baroness ELLIOT of HARWOOD
My Lords, I should like to support my noble friend Lord Campbell of Croy, and the noble and learned Lord, Lord Wilson of Langside. I suppose that I have taken part in more General Elections than almost anyone else in your Lordships' House over more years than I should like to say. I think that it would be a great mistake if this new elected Assembly did not put the power into the hands of its Members. I did not oppose the referendum on the EEC. I did not like it very much, but the suggestion was made, and I think that on the whole it worked very well.
I do not want referenda to be regarded as forming part of the Constitution, to be held when it is felt that Parliament or elected representatives are not likely to take the kind of decision which some people may want, or may not take the decision quickly enough. I believe that, where there is Parliamentary government, it is much better for Parliament to take the decisions. If there are to be referenda, they should be on a United Kingdom basis. I hope that a provision for holding referenda would be used only very sparingly. The elected representatives—whether they be in the United Kingdom Parliament, in an Assembly, or in local government—are the people who should take the decisions on these matters. We 160 should use the referendum method only very sparingly, and indeed I should be glad if it was not to be used again.
§ The Earl of PERTH
My Lords, I was a little puzzled by what the last three speakers—particularly the noble Baroness who has just sat down—said about the question of a referendum. We are not at the moment debating the constitutional value of a referendum, yet we must remember that there is to be one on the terms of this very Bill, and that referendum is to be for Scotland, and for Scotland only. Therefore, it seems to me that the principle is broken by virtue of the very fact that we are considering this Bill at the present time, and that the referendum is to be only for one part of the country. The noble Earl, Lord Ferrers, was worried that the Assembly might pass a Bill which was repugnant to Westminster, and Westminster would then seek to defeat it or would defeat it. Surely, if it was a matter of real importance, it would be proper for the Assembly to show Westminster what was the opinion of the Scots on the matter in question. If it was shown that there were, say, 70 per cent. of the Scots who felt so strongly that they wanted to support whatever proposal had been passed by the Assembly, surely it would be useful for Westminster to know just that. Therefore, while I am not in favour necessarily of the frequent holding of referenda, there could be times when they would be useful not only for the Assembly but for Westminster as well.
§ Lord McCLUSKEY
My Lords, I entirely agree with what the noble Earl, Lord Perth, has said, to the effect that we are not debating the wisdom of having, or not having, a referendum, or of using this kind of instrument frequently in our Constitution. I believe that that question is wholly irrelevant at the moment. The United Kingdom Parliament undoubtedly has the competence to pass legislation allowing for a referendum, or for more than one referendum. The only question is whether that competence ought to be accorded to the Scottish Assembly.
Some strange arguments have been used. I commented last time on the "in and out" attitude of the official opposition on this matter. I have read 161 reports of their Leader talking about having a referendum for the purpose of answering questions about closed shops in the trade union movement. I have recently read in the newspapers stories of members of the Opposition Party advocating a referendum on capital punishment. That seems to accord with the wishes of many in that Party, and so I am not quite sure where the noble Earl on the Opposition Front Bench stands on this matter.
To turn to the particular matter in question, let us suppose that some noble Lords object to the referendum on principle. What we are considering here is the question whether the Scottish Assembly should have the legislative competence to hold a referendum. In my view, it would be quite wrong to deprive the Scottish Assembly of such a competence. First, I believe that, in relation to non-devolved matters, it would be of great doubt whether the Scottish Assembly could pass legislation allowing for a referendum on a non-devolved matter, because I believe that that would be plainly open to challenge on vires grounds. Indeed, if it were not it would be plainly open to policy override under Clause 6, where the Government could invoke Clause 6 and, with Parliamentary approval, stop a referendum taking place on a non-devolved matter. In relation to a referendum on a devolved matter, in the instance figured by the noble Earl I think the answer given to him by the noble Earl, Lord Perth, is exact, and I need not repeat it.
We oppose this Amendment really upon the ground that it is an unreasonable constraint upon the Scottish Administration in devolved matters. I listened to the noble Baroness, Lady Elliot, saying that she did not approve of this way of doing things; but, with respect, it is arrogant of this House and this Parliament to suppose that we do things perfectly. There are many countries in the world which use the referendum as an instrument of government, constitutional or otherwise, all the time. Why on earth should not other instruments be employed, and why on earth should not the Scots use such an instrument if they choose to do so? The noble Baroness said that it was a kind of abdication of responsibility by Members of Parliament. If they want to consult the electorate, let them do so. How do 162 we consult the electorate at the present time?
§ Lord McCLUSKEY
Indeed; that is just the point. The only way in which the Assembly can consult their electorate is once every four years, by means of a General Election. The alternatives to that are to read the newspapers, to read the correspondence columns in the newspapers, to listen to the representations of minority groups and pressure groups, or perhaps to watch the opinion polls; and I should have thought that it was at least arguable that within Scotland, a fairly compact and homogeneous society, it would be possible for the Scottish Assembly to use the referendum quite sensibly, as it is used in many other countries. We have seen an example of the use of it quite recently in the United States. So we do not believe that the Assembly should be deprived of this competence, the competence to take the advice of the electorate on a specific question —and there are all kinds of questions which I could instance.
There is one matter of the drafting which occurs to me. I have been looking at the definition of "referendum". looked at it merely in order to determine what was the plural, because this is a matter which is hotly contended. I did not find the answer to that, but the definition of "referendum" is:… referring of questions at issue to electorate for direct decision by a general vote".That is the Oxford Illustrated Dictionary. I do not know whether the noble and learned Lord, Lord Wilson of Langside, has it in mind to prevent a referendum where the matter is decided by the consulted electorate, or whether he is also seeking to ban a consultative referendum. If that is his intention, the wider intention, it may well be that this Amendment does not achieve it; but it is not at all clear to me, from the wording he has chosen to use, what is his intention.
I suggest that it is wrong and quite arrogant of this Parliament to suggest that the Scots should not be able to use a different constitutional instrument if they choose to do so. It is not one which we have wholly neglected. We 163 used it in the case of the European Economic Community in 1975; it is intended to be used in relation to this Bill and the Wales Bill; and local referendums have been held in Northern Ireland. It is by no means a stranger to our Constitution. Why should we debar the Scots from employing it?
My Lords, may I ask the noble and learned Lord for a point of clarification? Do I understand him aright that, as the Bill is constructed at the moment, there is the possibility, even if it is not a certainty, that the Assembly could hold a referendum on a reserved subject, one which is not devolved?
§ Lord McCLUSKEY
My Lords, first, as the Bill is constructed, the Assembly can legislate about any matter within its legislative competence. Of course, it may enact a measure in order to allow a referendum in relation to one of these matters. If, for example, the Assembly were to say, "We will have a referendum in relation to the neutron bomb"—which is not a devolved matter—then, as a matter of vires, that provision would be seen to be ultra vires and, accordingly, would be outwith their legislative competence. In other words, the constitutional instrument of the referendum adheres to the subject; and if it does not do so, it is ultra vires.
§ The Earl of LAUDERDALE
My Lords, one would not wish to be prolix, but the noble Lord focuses on vires. What worries some of us is that the referendum might be a handy instrument of mischief, should a group of people in control of the Assembly be so minded as to try to tackle Westminster on an issue which was ultimately one of vires. The noble and learned Lord has said that Parliament could stop them exceeding their own powers. How? By passing a law? With great respect, I know that legally Westminster could do that; but, in fact, there might be a mock referendum, there might be a referendum which for practical purposes would be an extended public opinion poll. Here is an instrument of mischief with all kinds of variations.
164 It is that elongation of mischief which alarms some of us. All that we are trying to do is to say: "Don't do it!" think that the noble and learned Lord is falling back on the "ifs and strings" argument. I do not want to be prolix. This is a cause of genuine apprehension; it is appearing to head straight for confrontation. It appears to put in the hands of the Assembly an instrument of confrontation which none of us wants. Therefore, surely it is better to keep it out.
§ Lord WILSON of LANGSIDE
My Lords, I have listened with great interest to what has been said both for and against what is proposed in the Amendment. At this hour I am in great difficulty as to know what I ought to do. May I comment on some of the remarks that the noble and learned Lord, Lord McCluskey, made. It is true that we are not debating the general principle of whether or not referenda are appropriate within our constitutional arrangements. It is not quite right to say that to raise that issue is wholly irrelevant to the Amendment. The noble and learned Lord seemed to suggest there was a touch of arrogance behind all this. It surprised me that those of us who feel strongly about the supremacy of Parliament should be accused of arrogance when the supremacy of Parliament has been one of the cornerstones of our Constitution for so many years.
It is true that many other countries use the referendum as an instrument for all kinds of purposes. I am not myself aware—the noble and learned Lord may be aware—of any country, whose constitutional arrangements approximate to our own, who make regular use of the referendum in that way. I think that, on balance, I shall not withdraw the Amendment but test the feeling of your Lordships' House on the matter.
§ 11.24 p.m.
§ On Question, Whether the said Amendment (No. 123) shall be agreed to?
§ Their Lordships divided: Contents, 31; Not-Contents, 28.165
|Balerno, L.||Ferrers, E.||Mowbray and Stourton, L.|
|Belstead, L.||Fortescue, E.||Newall, L.|
|Burton, L.||Gray, L.||Rankeillour, L.|
|Carrington, L.||Haig, E.||Sandford, L.|
|Cathcart, E.||Kinross, L.||Selkirk, E.|
|Colville of Culross, V.||Lauderdale, E. [Teller.]||Sharples, B.|
|Craigmyle, L.||Linlithgow, M.||Strathcona and Mount Royal, L.|
|Denham, L.||Long, V.||Swinton, E.|
|Drumalbyn, L.||Lyell, L.||Vickers, B.|
|Elles, B.||Morris, L.||Wilson of Langside, L. [Teller.]|
|Elliot of Harwood, B.|
|Birk, B.||Kirkhill, L.||Stedman, B.|
|Boston of Faversham, L.||Llewelyn-Davies of Hastoe, B.||Stewart of Alvechurch, B.|
|Davies of Penrhys, L.||McCluskey, L.||Stone, L.|
|Elwyn-Joncs, L. (L. Chancellor.)||McGregor of Durris, L.||Strabolgi, L. [Teller.]|
|Ely, M.||Northfield, L.||Tanlaw, L.|
|Gaitskell, B.||Peart, L. (L. Privy Seal.)||Thurso, V.|
|Goronwy-Roberts, L.||Perth, E.||Wallace of Coslany, L. [Teller.]|
|Harris of Greenwich, L.||Raglan, L.||Wells-Pestell, L.|
|Houghton of Sowerby, L.||Sainsbury, L.||Winterbottom, L.|
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ Baroness LLEWELYN-DAVIES of HASTOE
I beg to move that further consideration on Report be now adjourned.
§ Moved accordingly, and, on Question, Motion agreed to.