SCOTLAND BILL

HL Deb 13 June 1978 vol 393 cc180-277

3.7 p.m.

Further considered on Report.

Schedule 10 [Matters within legislative competence of Assembly, and within powers of Scottish Executive]:

Lord CAMPBELL of CROY moved Amendment No. 123A: Page 57, line 40, leave out ("reserved") and insert ("scheduled").

The noble Lord said: My Lords, this and the following Amendment have already been discussed, and I am glad to say that the Government are prepared to accept them. I beg to move.

On Question, Amendment agreed to.

Lord CAMPBELL of CROY moved Amendment 123B: Page 58, line 9, leave out ("reserved") and insert ("scheduled").

On Question, Amendment agreed to.

The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey) moved Amendment No. 123C: Page 58, leave out lines 21 and 22.

The noble and learned Lord said: My Lords, this is an Amendment for which we are grateful to the noble Viscount, Lord Thurso. During Committee, the noble Viscount proposed that the Scottish Assembly and Executive should be able to alter estuarial limits provided that they did so within what might be called "devolved" waters; that is, the waters defined in Group 14 of Part I of Schedule 10. The Government have looked into this matter and agree that the movement of estuarial limits can be a useful tool in fisheries management and that it would be appropriate to devolve this matter as part of the wider devolution of salmon and fresh water fisheries. May I express our gratitude to the noble Viscount for raising this matter and enabling us to improve the Bill. I beg to move.

On Question, Amendment agreed to.

3.10 p.m.

The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill) moved Amendment No. 124:

Page 59, leave out lines 24 to 28 and insert—

("The Radioactive Substances Act 1948 (c. 37), sections 5(1)(b) and 7.

The power under section 5(1)(b) is not included so far as it relates to sites and premises mentioned in section 2(1) and (2) of the Radioactive Substances Act 1960 (c. 34) and the matters dealt with in section 7 are included only in relation to offences under regulations made by a Scottish Secretary.").

The noble Lord said: My Lords, this is a very technical Amendment, which involves no change of policy. Section 5(1)(b) of the Radioactive Substances Act 1948 concerns the disposal of radioactive waste. However, we are required to amend the entry for the 1948 Act to express the policy more precisely. The Amendment does three things: it turns round the entry in such a way as to reflect more closely the terms of the legislation to which it relates. Secondly, it makes clear that Section 7 of the Act, which concerns enforcement, is devolved only in relation to regulations under the Act by a Scottish Secretary. Thirdly, it removes the previous mention of Section 9; this is an ancillary procedural provision and there is no need to deal with it explicitly in the Bill because it is automatically devolved or reserved depending on whether it relates to devolved or reserved matters. I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 125:

Page 59, leave out lines 35 and 36 and insert—

("The Civil Aviation Act 1949 (c. 67),section 28.

Not included.")

The noble and learned Lord said: My Lords, this Amendment, like 120 others which we have already discussed and others yet to come, is consequential upon the removal of aerodromes from Part I of Schedule 10. Like that earlier Amendment and others I have yet to move, this one is moved by the Government without prejudice to any action which it may be decided to take in another place to restore aerodromes to Part I of Schedule 10. At the moment, it is an essential tidying up Amendment. I beg to move.

On Question, Amendment, agreed to.

Lord KIRKHILL moved Amendment No. 126:

Page 60, leave out lines 46 and 47 and insert—

("The Clean Air Act 1956 (c. 52), section 22.

Not included, except so far as relating to property vested in the First Secretary or held for the purposes of a Scottish Secretary")

The noble Lord said: My Lords, again this is a technical Amendment relating to a point raised by the noble Earl, Lord Selkirk, at Committee stage. The Government are grateful to the noble Earl for directing our attention to this matter. Section 22 of the Clean Air Act 1956 relates to smoke pollution from Crown premises including ships of the Royal Navy. Where a local authority report such pollution to the Minister concerned, he must conduct an inquiry and—if there is cause for complaint—take action to rectify the matter. After devolution both the Scottish Executive and the Government will hold Crown premises in Scotland. It is the Government's intention that Section 22 should be devolved only in relation to property held by the First Secretary; for example office buildings occupied by civil servants working on devolved matters, hospitals and prisons. For all other Crown premises it should be reserved since it is the Minister concerned—and not a Scottish Secretary—who will be in a position to put matters right. The present entry in the Bill for the Clean Air Act did not achieve this policy satisfactorily, and this Amendment now puts the matter right. I beg to move.

The Earl of SELKIRK

My Lords, I am grateful to the noble Lord for this clarification. However, may I be clear on this point? The Amendment reads: The Clean Air Act…section 22…Not included,…". Does that mean that Section 22 is not included or does it mean that the whole Act is not included? I am never quite clear on this point. There is a reference in Amendment No. 169 in which the noble Lord I think deals with this point. So far as I can understand this, there are certain responsibilities which deal with pollution which are devolved in so far as premises, motor vehicles, aircraft, hovercraft or vessels are concerned. Also the control of emissions of noxious or offensive substances otherwise than from motor vehicles, aircraft or hovercraft. That I think goes with it, if I understand it correctly. Perhaps the noble Lord can answer this simple question: who is really responsible for clean air in Scotland? Is it still the Secretary of State—that is to say, with the exception of property belonging to the Scottish Executive? Does the responsibility for clean air rest entirely with the Secretary of State?

Lord KIRKHILL

My Lords, with the leave of the House, may I say that it is Section 22 of the Act which will be devolved only in relation to property held by the Scottish Executive. That is the key point of this Amendment and it is the point to which the Government are responding in the light of the noble Earl's earlier remarks in Committee. As to responsibility for clean air, it is the responsibility of a Scottish Secretary.

The Earl of SELKIRK

My Lords, may I ask this question? I apologise for speaking again, but the words say that Section 22 is not included. What about the rest of the Act? Do those words not apply there or are we to say that the Bill is silent in respect of the rest of the Act and therefore it does not devolve?

Lord KIRKHILL

My Lords, the Bill is silent.

Lord CAMPBELL of CROY

My Lords, I know that we can speak only once at Report stage and so it might be helpful if I indicated my reading of this Amendment. It is that where the Bill is silent it means that the subject is not devolved, so this should mean that the rest of the Bill is not devolved.

Lord McCLUSKEY

My Lords, subject to this qualification: that the subject matter of the Clean Air Act may be devolved by reason of its inclusion in one of the groups in Part 1 of Schedule 10.

On Question, Amendment agreed to.

3.16 p.m.

Lord KIRKHILL moved Amendment No. 126A:

Page 61, column 2, leave out lines 16 to 20 and insert— ("The following matters are not included:—

1. (a) the provisions of section 120 relating to the establishment of traffic commissioners and their power and duty of issuing licences;
2. (b) the provisoins of section 135(1) relating to the authority having power to grant a road service licence;
3. (c) the provisions of section 137(1);
4. (d) the other provisions of Part III, except so far as they relate to the two traffic commissioners other 185 than the chairman and to road service licences or permits under section 30 of the Transport Act 1968; and
5. (e) the matters dealt with otherwise than in Part III.").

The noble Lord said: I spoke at some length during our discussions yesterday evening on the road transport Amendments put down by the noble Lord, Lord Campbell of Croy, and the noble Lord, Lord Morris, on the subject of road service licensing. I explained that this Amendment is proffered by the Government as a response to points made in debate during Committee stage. We had a lengthy discussion about this subject last night. In the light of all that we said then, I hope that your Lordships will feel able to accept the Government Amendment. I beg to move.

Lord CAMPBELL of CROY

My Lords, I am grateful to the noble Lord, Lord Kirkhill, for not repeating what he said last night. He gave us more than a "trailer" when he spoke on an earlier Amendment. I did not speak on that occasion on this Amendment because I thought that I would wait until it was reached. It is clearly the Government's intention now to restrict the extent to which changes in the system of passenger transport licensing North and South of the Border can be made or different systems introduced within Scotland. That is a move in the right direction. The Amendment, however, does not go very far. As the Minister said last night, it ensures a uniform system within Scotland, but that system could become different from the system in England and Wales, and that is what would make life more difficult and confusing for bus operators North and South of the Border. That is a point which is not covered by the Amendment. None the less, I suggest to your Lordships that we should accept the Amendment.

I must make it clear also that we are not raising or challenging the question of the taking of local decisions about licensing services in different areas. They are taken now locally and, as we understand it, those decisions will be taken locally under the Bill. That is not something which we are trying to change. What we are trying to do is to ensure that the system of licensing under which those decisions are taken is uniform, because otherwise many operators who run services all over Britain will find it confusing.

I will repeat something which I said last night: strong representations have been made to us, and, we believe, to the Government from the Confederation of British Passenger Transport. They represent almost every bus operator in the country: 98 per cent. of all the operators South of the Border and nearly 100 per cent. of operators North of the Border. I am not talking about the private sector, the independents: they represent them all, the local authorities, the Scottish Transport Group, everybody who is operating buses. They have strongly represented that the system should be kept uniform. Decisions can then be taken locally in the light of local circumstances, but under that system.

The noble Lord has also indicated that the Government in their Amendment are making arrangements for the present expedited procedure for traffic commissions in different parts of the country to support the recommendations speedily of their neighbours. The Government say that they are "entrenching" this—to use their word—in the Bill. That is again welcome, and this Amendment goes in the right direction, although not as far as the bus operators or we on these Benches would wish. However, I suggest that the House should accept this Amendment.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 127:

Page 61, line 26, leave out from ("are") to end of line 31 and insert— ("not included so far as they relate to site and premises mentioned in section 2(1) and (2); (bb) the powers under section 10 are not included so far as they relate to such sites and premises;").

The noble Lord said: My Lords, this is a technical Amendment to the entry in the Bill for the Radioactive Substances Act 1960. It is indeed similar to the earlier Amendment No. 124 for the Act of 1948, which I moved earlier, and again it involves no change of policy. The provisions of the 1960 Act affected by the Amendment concern radioactive waste. As with the 1948 Act, the policy is that this matter should be devolved only so far as it relates to waste other than from United Kingdom Atomic Energy Authority premises and licensed nuclear sites. The Amendment to head (b) of the entry for the 1960 Act expresses this in a way which achieves this intention more precisely than does the present wording. Section 10 of the 1960 Act concerns the provision of facilities for the disposal and accumulation of radioactive waste. The present entry in the Bill devolves this section in respect of all waste, but this is not the Government's intention. As with other related provisions, the policy is to reserve the powers under this section in relation to waste from United Kingdom Atomic Energy Authority premises and licensed nuclear sites, and to devolve powers in all other respects. The new head (bb) created by the Amendment ensures that this intention is achieved, and I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendments Nos. 128 and 129:

Page 62, leave out lines 7 to 9.

Page 62, leave out lines 17 to 27.

The noble Lord said: My Lords, with the permission of the House, I would take Nos. 128 and 129 together. They are consequential to the removal of inland waterways from the groups of devolved matters from Part I of Schedule 10. These Amendments delete from Part III of Schedule 10 the entries relating to the provisions of the Transport Act 1962 which were devolved as part of the devolution of responsibility for inland waterways. Of course, I move these Amendments without prejudice to the attitude the Government may adopt on the matter of inland waterways when the Bill returns to another place. These are tidying-up Amendments, and I beg to move.

On Question, Amendments agreed to.

Lord KIRKHILL moved Amendment No. 130:

Page 63, line 12, at end insert—

("The Local Government (Development and Finance) (Scotland) Act 1964 (c. 67),

Not included, so far as relating to the erection of industrial buildings, within the meaning of section 64 of the Town

section 7.

and Country Planning (Scotland Act 1972 (c. 52).").

The noble Lord said: My Lords, this is a minor Amendment concerning local authority powers in respect of industry. At present the Local Government (Development and Finance) (Scotland) Act 1964 is devolved by virtue of the general competence provided by Group 5 of Part I of Schedule 10 to the Bill. However, Section 7 of that Act enables local authorities to make advances in respect of the erection of buildings, including industrial buildings. This section should not be devolved in respect o industrial buildings because it has implications for regional industrial policy, which is reserved in all other contexts. The Amendment puts the matter right by specific exclusion in Part III of Schedule 10. I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 131:

Page 63, line 37, at end insert—

("The Forestry Act 1967 (c. 10), section 15.

Included.")

The noble and learned Lord said: My Lords, this Amendment is consequential upon the deletion of forestry in the course of the Committee stage. I beg to move.

On Question, Amendment agreed to.

3.26 p.m.

Lord McCLUSKEY moved Amendment No. 131A: Page 64, leave out lines 6 to 10.

The noble and learned Lord said: My Lords, this is a technical Amendment in respect of fisheries. The Amendment deletes the entry in Part III of Schedule 10 for the Sea Fish (Conservation) Act 1967. The result is that this Act will now be devolved to the extent of the general competence set out in Group 14 of Part I of Schedule 10; that is, it will be devolved in respect of salmon and migratory trout (but not sea fish proper) within the waters defined in that Group. It is essential to freshwater fisheries management that there is also competence in coastal waters in respect of salmon and migratory trout.

The only reason for inclusion of the entry in the first place was a doubt as to whether Group 14 would, in itself, have been sufficient to devolve matters in respect of migratory trout. However, this doubt has now been removed by an earlier Government Amendment to Group 14 which was made yesterday, which made clear that migratory trout came within its scope. I beg to move.

Viscount THURSO

My Lords, this Amendment gives me an opportunity to make up for being so slow in rising on the previous Amendment, 123C, to thank the noble and learned Lord, Lord McCluskey, for the very kind terms in which he spoke of my intervention in the matter of fish, estuarial limits and so on. In turn, I should like to thank the Government for the way in which they have considered this matter so carefully and have listened to various words from different parts of your Lordships' House on these matters so that they have now greatly improved the wording of the Bill in relation to salmon and migratory trout matters. I do thank the noble and learned Lord McCluskey, and the noble Lord, Lord Kirkhill, for their help in these matters, and I support the Government in their Amendment.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 132:

Page 64, line 16, at end insert ("and the matters dealt with in section 58 are not included").

The noble and learned Lord said: My Lords, this is a minor technical Amendment. I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 132A:

Page 64, line 16, at end insert—

("The Abortion Act 1967 (c. 87).

Not included")

The noble Lord said: My Lords, during the Committee stage, on a Division, the Committee removed the word "abortion" from Group 1 of Part 1 of Schedule 10. From the tenor of the debate it was apparent that the Committee wished to ensure that the criminal law with regard to abortion should be the same North and South of the Border. However, it is doubtful whether the Amendment carried in fact achieves that effect. The Government are consequently moving this Amendment to put the matter beyond all doubt. I must make it clear that this is without prejudice to the Government's position on the further consideration of the Bill in another place. I might just add that Group 24 and Group 25 of Schedule 10 devolve to the Assembly a legislative competence for a wide range of matters in relation to both the civil and criminal law. These groups carry with them aspects of the law relating to abortion.

Given the sensitive nature of the matter, the Government believe it is essential that there should be no possible doubt about what the Bill provides. Consequently, this Amendment would add the Abortion Act 1967 to Part III of Schedule 10, to make it clear that the matters contained in it are not devolved. I trust the House will acknowledge the need for the Amendment as a consequence of your Lordships' previous decision. I should further add that the exclusion of matters in the Abortion Act 1967 carries with it executive powers in the field exercised by Ministers as well as legislative reservation. In the Government's view, these executive powers need to be devolved even though the law on abortion is reserved. The Government have accordingly tabled an appropriate Amendment to Schedule 11 which we shall come to later, but I thought it appropriate to mention that at this stage.

Lord CAMPBELL of CROY

My Lords, as the mover of the original Amendment to remove abortion from the devolved subject, which was successful in your Lordships' Committee, I would say that I think it was perfectly clear what your Lordships intended in that original Amendment. What the Government are now doing in their further Amendments in the Bill appears to me to be carrying out that intention. I am sure it is right that the Bill should go to another place complete in all respects. As I said yesterday, Schedule 10 is so complicated, taking pieces of the statutes and referring to individual sections of them, that only the Government draftsmen who prepared this Bill could carry out the consequentials that were required. I am grateful to the noble Lord for having explained this, and also for having proposed the later Amendment in order to tidy up this part of the Bill.

On Question, Amendment agreed to.

3.31 p.m.

Lord KIRKHILL moved Amendment No. 133: Page 64, leave out lines 17 to 19.

The noble Lord said: My Lords, Amendment No. 133 is another consequential Amendment, following upon the deletion of the provision concerning aerodromes during the Committee stage. I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 134: Page 64, line 22, column 2, leave out ("18") and insert ("14(2), 18, 19(1) (proviso), 24, 28"),

The noble Lord said: My Lords, I should just point out that the Amendment is wrongly printed on the Marshalled List. It is to page 64, line 22 at column 2. Of course we intend to correct the printing error. This Amendment concerns excepted statutory undertakers. It is the first of several such Amendments to Schedule 10. The others will be Nos. 135, 136, 144, 147 to 151. Earlier we had a number of similar Amendments to Schedule 4. In the debate on the first of these (that was Amendment No. 68) I explained in general terms the approach of the Bill to excepted statutory undertakers. I also explained that these Amendments have a common purpose, which is to make such additions and corrections to the Bill as are necessary to ensure that following devolution existing rights of excepted statutory undertakers are safeguarded. This particular statutory Amendment has the effect of reserving four additional provisions of the New Towns (Scotland) Act 1968. These are: Section 14(2), the proviso to Section 19(1), Section 24 and Section 28. I beg to move this technical Amendment.

Lord CAMPBELL of CROY

My Lords, I rise only to say that the noble Lord is working from yesterday's Marshalled List. I can tell him that in to-day's, the fourth Marshalled List, the two corrections have already been made so that what was yesterday line 21, col. 1, has now become line 22, col. 2.

Lord KIRKHILL

My Lords, I acknowledge it was not a list; it was a note that I had. I fully acknowledge that today's Marshalled List makes it correct.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 135:

Page 64, line 26, leave out ("and") and insert— ("(aa) those dealt with in section 28 are excluded only so far as they relate to representations made by excepted statutory undertakers;").

The noble Lord said: My Lords, this is a technical Amendment consequential on the Amendment we have just discussed. It ensures that Section 28 of the New Towns (Scotland) Act 1968 is reserved only where it relates to orders made at the behest of excepted statutory undertakers. The provision is otherwise devolved. My Lords, I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 136: Page 64, line 29, after ("(5)") insert (",47(4)").

The noble Lord said: My Lords, this is another Amendment tidying up the entry for the New Towns (Scotland) Act 1968 in relation to excepted statutory undertakers. Section 47(4) of the 1968 Act contains two powers: the power of the Treasury to decide who is the "appropriate Minister" in respect of a statutory undertaker, and the power of the appropriate Minister to determine whether the land of a statutory undertaker is operational. The Bill as it stands reserves both powers outright. However, they should only be reserved in respect of excepted statutory undertakers. The Amendment corrects the anomaly. I beg to move.

On Question, Amendment agreed to.

[Amendment No. 137 not moved.]

Lord KIRKHILL moved Amendment No. 138: Page 64, line 47, leave out ("34") and insert ("31, 34, 36, 37").

The noble Lord said: My Lords, this Amendment is concerned with local authority bus services. It is entirely consistent with the policy on related matters throughout the Bill. The effect of the Amendment is to devolve Sections 31, 36 and 37 of the Transport Act 1968. I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 139:

Page 64, hue 48, at end insert— ("( ) the power to make regulations under section 135, by virtue of subsection (1)(d) of that section, is included;").

The noble Lord said: My Lords, this is a minor technical Amendment concerning Section 135(1)(d) of the Transport Act 1968. This provision concerns regulations for the payment of compensation where a passenger transport executive revokes consent for the continuation of an existing bus service in its area. At present Section 135(1)(d) is reserved by the entry at head (f) for the 1968 Act, and then it deals with the Scottish Transport Group. This is wrong in two respects. First, Section 135(1)(d) has nothing to do with the Scottish Transport Group; it has to do with passenger transport executives. Second, it should be devolved. This is in line with the general devolution of matters relating to passenger transport executives achieved by the entry at head (a) for the 1968 Act at the foot of page 64. The Amendment accordingly devolves outright the making of compensation regulations in respect of Section 135(1)(d). My Lords, I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 140: Page 65, leave out lines 17 to 22.

The noble Lord said: My Lords, this is the first of two Amendments. The other is Amendment No. 143 which deletes from Part III of Schedule 10 entries relating to provisions of the Transport Act 1968 which were included as part of the devolution of responsibility for inland waterways. This is a tidying up Amendment. I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 141:

Page 65, line 28, at end insert— ("( ) the powers under sections 7, 8 and 29 are included so far as they relate to schemes or orders tranferring property to or from the Scottish Transport Group or any of its subsidiaries; ( ) the powers under section 135(6) are included in cases where the Scottish Transport Group is the compensating authority;").

The noble Lord said: My Lords, this is a technical Amendment linked with Amendments numbers 69 and 74 to Schedules 4 and 5 which have already been discussed. It concerns Sections 7, 8, 29 and 135(6) of the Transport Act 1968, which in turn concern relations,—for example the transfer of property—between the Scottish Transport Group and other nationalised industries. The effect of this particular Amendment is to ensure that the provisions are devolved where the Scottish Transport Group is concerned. I beg to move.

On Question, Amendment agreed to.

3.40 p.m.

Lord KIRKHILL moved Amendment No. 142: Page 65, line 31, leave out from ("Act") to ("are") in line 33.

The noble Lord said: My Lords, this is a minor technical and consequential Amendment which has two distinct purposes. First, it deletes the reservation of Sections 7 and 8 of the Transport Act 1968. This is part of the wider package, to which I referred in proposing the last Amendment and which we have now encountered on several occasions, dealing with the Scottish Transport Group's relations with other nationalised transport industries. Secondly, it deletes the reservation of Section 135(1)(d) of the 1968 Act, which deals with the payment of compensation by passenger transport executives. I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 143: Page 65, leave out lines 38 to 43.

The noble Lord said: My Lords, this Amendment, like Amendment No. 140, is consequential upon the removal of inland waterways from Part I of Schedule 10 at the Committee stage. I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 144: Page 65, column 2, leave out lines 46 to 51 and insert ("Not included").

The noble Lord said: My Lords, this is another in the series of technical Amendments relating to excepted statutory undertakers which I introduced in Amendment No. 68. This Amendment relates to one specific excepted statutory undertaker—the Post Office. Paragraph 93(4) of Schedule 4 to the Post Office Act 1969 empowers the Secretary of State to make regulations as to the definition of "operational land" for the purposes of various planning enactments. At present, this power is partially devolved by the entry for the Act in the Scotland Bill. This is in error. The approach of the Bill elsewhere is to reserve powers to define the operational land of excepted statutory undertakers, as this is something which a Scottish Secretary is not in a position to assess. The Amendment puts the matter right. I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 145:

Page 66, line 17, at end insert—

("The Roads (Scotland) Act 1970 (c. 20), section 44.

The power of the Treasury under subsection (4) is not included and the other matters dealt with are included only so far as relating to land vested in the First Secretary or held for the purposes of a Scottish Secretary").

The noble Lord said: My Lords, this Amendment corrects a minor omission in the Bill in respect of the Roads (Scotland) Act 1970. This Act concerns the acquisition of land for, and construction of, highways. As such, it is devolved by virtue of Group 11 of Part I of Schedule 10 to the Bill. But Section 44 requires express provision in Part III of Schedule 10, because it concerns the application of the Act to Crown land. The Government's policy on provisions such as this is to devolve in respect of devolved Crown land and otherwise to reserve. The Amendment carries through the same approach in respect of Section 44 of the Roads (Scotland) Act 1970. The Amendment additionally reserves the power of the Treasury to determine who is the "appropriate authority" in respect of Crown land. I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 146: Page 66, column 2, leave out lines 32 to 41 and insert ("The matters dealt with in section 29A and those dealt with in section 29, so far as it relates to section 29A, are included.").

The noble and learned Lord said: My Lords, like other Amendments already considered, this one is consequential upon the removal of aerodromes from Part I of Schedule 10. I should simply add that Section 29A of the Civil Aviation Act 1971 (added by the Airports Authority Act 1975) is concerned with the mitigation of the effects of noise and vibration from aircraft. Section 29 of the 1971 Act contains general powers in relation to noise pollution, and to make sense of the devolution of the matters in Section 29A it is necessary that these general powers should be devolved in so far as they relate to the matter covered by Section 29A.

I should say that this Amendment will not entitle the Assembly to control the operation of aircraft to reduce noise levels. This is not a devolved matter. The devolution proposed is purely to enable the effects of noise near airfields to be mitigated by the Scottish Administration, to the extent that they may think fit. I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 147: Page 67, line 20, leave out ("121(1)") and insert ("108(2), 117(1) (proviso), 121(1), 209,").

The noble Lord said: My Lords, this is another in the series of Amendments relating to statutory undertakers. It provides for three additional safeguards in respect of the Town and Country Planning (Scotland) Act 1972, similar to those which an earlier Amendment, No. 134, incorporated in respect of the New Towns (Scotland) Act 1968. The Amendment has the effect of reserving the following provisions Section 108(2), the proviso to Section 117(1) and Section 209. I beg to move.

On Question, Amendment agreed to.

3.45 p.m.

Lord KIRKHILL moved Amendment No. 148: Page 67, line 21, leave out ("and 241") and insert (", 240 and 241 and paragraph 70 of Schedule 22").

The noble Lord said: My Lords, this is a further Amendment in respect of the entry in Schedule 10 for the Town and Country Planning (Scotland) Act 1972. It has two purposes. First, it adds a reservation of legislative competence in respect of Section 240, which concerns grants for research and education in connection with planning and the design of the physical environment; the entry in Schedule 11 at the foot of page 73 already devolves executive competence in respect of Section 240. Secondly, it reserves paragraph 70 of Schedule 22, which provides a special saving for the Post Office's position under the Telegraph Acts. This was another omission from the original entry which the Government now seek to correct. I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 149: Page 67, line 50, leave out ("section") and insert ("sections 222 and").

The noble Lord said: My Lords, this is a further technical Amendment to the entry for the Town and Country Planning (Scotland) Act 1972 relating to excepted statutory undertakers. Section 222 of the 1972 Act concerns the making of orders to modify or extend the functions of statutory undertakers. The Amendment provides for reservation of this provision where the orders are made at the behest of excepted statutory undertakers. Where the order is made at the behest of a local authority, but nevertheless affects the functions of an excepted statutory undertaker, Schedule 4 provides that Ministerial consent is required. I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 150:

Page 68, leave out lines 23 to 30 and insert— ("(i) the powers under section 275(2), so far as exercisable in relation to excepted statutory undertakers;").

The noble Lord said: My Lords, again, this is a further technical Amendment to to the entry for the Town and Country Planning (Scotland) Act 1972, as it relates to excepted statutory undertakers. Section 275(2) of the 1972 Act contains two powers: the power of the Treasury to determine who is the appropriate Minister in respect of a statutory undertaker, and the power of the appropriate Minister to determine whether the land of a statutory undertaker is operational land. The Gov- ernment's intention is to reserve both these powers in respect of excepted statutory undertakers, but to devolve them in respect of other undertakers. The present entry in the Bill achieves this intention for the second power, but it erroneously reserves the first power in respect of all undertakers. The effect of the Amendment is to put this right. I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 151: Page 68, line 24, after ("to") insert ("excepted")

The noble Lord said: My Lords, your Lordships may well be, as I am, glad to know that this is the last in the series of Amendments dealing with the Town and Country Planning (Scotland) Act 1972 and excepted statutory undertakers. Paragraph 4 of Schedule 18 to the 1972 Act concerns the extinguishment of rights of way over land on which there is the apparatus of statutory undertakers. This should be reserved only in respect of excepted statutory undertakers. The present entry mistakenly reserves it for all statutory undertakers. Therefore, the Amendment puts the matter right. I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 151C: Page 69, line 14, after ("sections") insert ("14 and").

The noble Lord said: My Lords, if it be for the convenience of the House, as I believe it to be, I should like to speak to Amendments Nos. 152 and 153 en bloc. Both concern the application of the Control of Pollution Act 1974 to radioactive waste. Part I of the Control of Pollution Act 1974 establishes a code for waste disposal. Section 30(5) provides that its provisions shall not apply to radioactive waste, but enables the Secretary of State to make regulations to apply them with any necessary modifications. At present, the entry in the Bill for the 1974 Act reserves this power to apply the waste code to radioactive waste.

The Government's approach to radioactive waste which we have set out in earlier Amendments, is that matters relating to United Kingdom Atomic Energy Authority premises and licensed nuclear sites should be reserved. This reservation takes in all of the important producers of waste, such as nuclear power stations, reprocessing plants and research establishments. However, waste from other minor sites, such as hospitals, is devolved, because the same considerations relating to national safety and energy policy do not apply. The purpose of the Amendments is to carry this policy through in respect of Section 30(5) of the Control of Pollution Act 1974. I beg to move.

Lord CAMPBELL of CROY

My Lords, the noble Lord was speaking to Amendments Nos. 152 and 153, which deal with the control of pollution. I think that we are still on Amendment No. 151C which deals with the Land Compensation (Scotland) Act. Unless there is a direct connection, we seem to have skipped my two Amendments. I wonder whether the noble Lord could explain if there is a connection between Amendment No. 151C and Amendments Nos. 152 and 153.

Lord KIRKHILL

My Lords, I apologise to the House. I turned over two pages of my brief. I quite forgot that we had not discussed Amendment No. 151C, so at this stage perhaps I had better resume my seat.

Lord CAMPBELL of CROY

My Lords, I should like to give the Minister an opportunity to tell us about Amendment No. 15IC, because I do not think that he has yet spoken to it.

Lord KIRKHILL

My Lords, this is a tidying up Amendment in respect of Section 14 of the Land Compensation (Scotland) Act 1973, which concerns the Lands Tribunal for Scotland. At present, 'his provision is reserved, although all other matters in respect of the Tribunal are devolved by the general competence set out in Group 22 of Part I of Schedule 10. I am advised that the Amendment removes this inconsistency by listing Section 14 of the 1973 Act as included. I beg to move.

On Question, Amendment agreed to.

3.52 p.m.

Lord CAMPBELL of CROY moved Amendment No. 151A: Page 69, line 35, leave out ("reserved") and insert ("scheduled").

The noble Lord said: My Lords, I beg to move this Amendment. May I take this opportunity to say that, as we are trying to facilitate the speed of business and because so many of these Amendments are consequential or are technical points, it is absolutely understandable that the noble Lord, Lord Kirkhill, should be having to go at some pace in moving from Amendment to Amendment. I entirely understand how it happened that he turned over two pages. Amendment No. 15IA and the immediately following Amendment, Amendment No. 151B, are both Amendments of mine which have been discussed and, I am glad to say, accepted in principle by the Government. Therefore, I beg to move.

Lord KIRKHILL

My Lords, yesterday the noble Lord, Lord Campbell of Croy, pointed out that there had been some difficulty in discovering what was the role of Schedule 15 because it had not been very easy to trace the words "reserved functions" throughout the Bill. However, I am happy to say that the noble Lord has very successfully tracked down all of the entries and that these two Amendments, like a number of others that we have looked at, put the Bill right in this respect. Therefore, we are very grateful to the noble Lord.

On Question, Amendment agreed to.

Lord CAMPBELL of CROY moved Amendment No. 151B: Page 69, line 39, leave out ("reserved") and insert ("scheduled").

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendments Nos. 152 and 153:

Page 70, line 34, leave out ("30(5)").

Page 70, line 35, at end insert— ("(d) those dealt with in section 30(5), so far as they relate to sites and premises mentioned in section 2(1) and (2) of the Radioactive Substances Act 1960 (c. 34).")

The noble Lord said: My Lords, I have already put on the record my observations on Amendments Nos. 152 and 153. Therefore, I beg to move.

Lord CAMPBELL of CROY

My Lords, I accept that the noble Lord, Lord Kirkhill, spoke earlier on these two Amendments. I was listening to his remarks in the light of this part of the Bill, and these Amendments certainly seem to be acceptable.

On Question, Amendments agreed to.

Lord McCLUSKEY moved Amendment No. 154: Page 70, leave out lines 36 and 37.

The noble and learned Lord said: My Lords, this Amendment is consequential upon the removal of aerodromes from Part I of Schedule 10. I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 155: Page 72, line 6, leave out ("3(1), 7 and 9") and insert ("3 to 5 and 7 to 9").

The noble Lord said: My Lords, this Amendment corrects a minor error in respect of the environmental functions of the Scottish Development Agency. The Government's approach, which was explained at length during the Committee stage, is that legislative devolution of matters included in the Scottish Development Agency Act 1975 should generally relate only to those functions of the Scottish Development Agency that are of an environmental nature.

This Amendment concerns paragraphs 3(2), 4, 5 and 8 of Schedule 2 to the Scottish Development Agency Act. These provisions deal with miscellaneous financial matters—the Agency's borrowing, Government loans to the Agency, the Agency's debts and accounts. These are all executively devolved in Schedule 11 in respect of the Agency's industrial functions, but Schedule 10 omits to devolve them legislatively and executively in respect of the Agency's environmental functions. This has the unfortunate result, for example, that the Secretary of State rather than a Scottish Secretary would be responsible for the Agency's borrowing on matters otherwise devolved. This is an omission which the Amendment seeks to put right. I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 156: Page 72, line 21, at end inert ("so far as it relates to administrative expenses and to functions other than those to which public dividend capital relates").

The noble Lord said: My Lords, this is a technical Amendment in respect of the financing of the Scottish Development Agency.

Paragraph 2 of Schedule 2 of the Scottish Development Agency Act 1975 is the provision under which the administrative expenses of the SDA are financed, and all those of their functions to which public dividend capital does not apply. At present, the Bill devolves the provision both legislatively and executively. But this might enable the Assembly to extend the scope of paragraph 2 so that it applied also to the finance of the public dividend capital functions of the SDA. The Amendment removes this possibility. I beg to move.

Lord DRUMALBYN

My Lords, may I ask the noble Lord whether, as it is excluded from these functions here, that means that public dividend capital continues to be provided by the Secretary of State and not by a Scottish Secretary, and that the administrative side of public dividend capital—that is, how much public dividend is to be paid, when it is to be paid and how much is to be ploughed back—still rests with the Secretary of State?

Lord KIRKHILL

Yes, it does, my Lords.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 157: Page 72, leave out lines 28 and 29.

The noble and learned Lord said: My Lords, as noble Lords can see, this is an Amendment which is consequential upon the removal of aerodromes from Part I of Schedule 10. Section 7 of the Airports Authority Act 1975, which is listed in Part III of Schedule 10 as not included within the competence of the Assembly, deals with certain matters, and it is not necessary specifically to exclude these matters if the aerodromes themselves no longer appear in Part I of Schedule 10. Accordingly, we can remove this section from Part III, and I beg to move Amendment No. 157, which achieves that purpose.

On Question, Amendment agreed to.

Lord WIGG moved Amendment No. 158:

Page 72, line 29, at end insert—

("The Lotteries and Amusements Act 1976 (c. 32), section 3, 4 and 5.

Included, except in relation to lotteries registered in accordance with section 53(d)(ii).").

The noble Lord said: My Lords, the Amendment standing in my name on the Marshalled List is consequential upon the satisfactory inclusion last night by your Lordships of the Amendment which I moved then, Amendment No. 114. I beg to move.

Lord McCLUSKEY

My Lords, I agree entirely with my noble friend Lord Wigg that the Amendment is consequential but I disagree entirely that it is satisfactory.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 159:

Page 72, line 50, at end insert—

("The Refuse Disposal (Amenity) Act 1978 (c. 3), section 4(2).

Not included.")

The noble Lord said: My Lords, this is a minor Amendment to take account of the recent Refuse Disposal Amenity Act 1978. This Act is a consolidating measure which brings together certain waste disposal provisions, derived primarily from the Control of Pollution Act 1974, and provisions in respect of abandoned vehicles, derived primarily from the Civic Amenities Act 1967. The provisions derived from these two Acts are all devolved by virtue of the general competence in respect of pollution provided by Group 7 of Part I of Schedule 10 to the Bill.

However, the Refuse Disposal (Amenity) Act also contains a provision (Section 4(2)) derived from the Vehicle and Driving Licences Act 1969, which relates to the basis on which a licence on an abandoned vehicle is considered to be current. It is necessary therefore to exclude this specifically in Part III of Schedule 10 to ensure that it is reserved along with other matters relating to driver and vehicle licensing. I beg to move.

On Question, Amendment agreed to.

Schedule 11 [Matters within powers of Scottish Executive but not within legislative competence of Assembly]:

4 p.m.

Lord KIRKHILL moved Amendment No. 159B:

Page 73, line 3, at end insert—

("GROUP AA (Abortion) The powers under the Abortion Act 1967").

The noble Lord said: My Lords, during our discussion on Amendment No. 132A, I gave notice that I would return to the subject of abortion when we reached Schedule 11. I think that I would not represent the feeling of the House if I were to say that what concerned your Lordships most when the decision was taken to remove abortion from Group 1 of Part 1 of Schedule 10 to the Bill was the law on abortion and the feeling that in this area of the law there should be a uniform policy throughout the United Kingdom.

We have, without commitment on the part of the Government as to what will happen in another place, sought by our Amendment No. 132A to Part III of Schedule 10 to give effect to your Lordships' wishes. The entry for the Abortion Act 1967 in Part III of Schedule 10 reserves legislative competence over the matters dealt with in the Act. But it does more than that and perhaps more, I suggest, than your Lordships intended, because the Schedule 10 Part III entry also has the effect of reserving the executive and ministerial powers contained within the Act. These powers relate to the approval of places for the termination of pregnancy and to regulations concerning the certification of opinions on grounds for abortion, notification to the chief medical officer of termination of pregnancy and prohibitions on disclosure of information relating to abortion.

If the Bill were left so that these executive powers were reserved these functions would have to be carried out by the Secretary of State for Scotland who, of course, exercises those powers in respect of Scotland at present. The Scottish Assembly and Executive are of course to have very wide-ranging powers in relation to health. Full responsibilities in that field reserved to the Secretary of State relate to the control of drugs, medical products and other similar matters and to the regulation of the medical professions.

If, therefore, the executive powers in the 1967 Act were to be reserved, this would separate those aspects of health administration from all others of the National Health Service and the private health sector which would otherwise be the responsibility of the Scottish Executive. The Government do not consider that to be a sensible practical solution and it would give rise to difficulties. The Government feel that the Amendment to Schedule 11 overcomes this difficulty, but at the same time it does not infringe the intention of the Amendment previously carried by your Lordships. The strictly limited purpose of the Amendment to Schedule 11 which is now before your Lordships is to provide for the exercise of executive powers in the Abortion Act 1967 by a Scottish Secretary. Under the Amendment a Scottish Administration would not be able to alter in any way the provisions at present contained in the 1967 Abortion Act. I beg to move.

Lord CAMPBELL of CROY

My Lords, when earlier today the noble Lord spoke on a previous Amendment, which he said was consequential upon the decision taken by your Lordships in Committee about abortion, I said that in my view it was necessary for expert Parliamentary draftsmen to decide what changes were necessary in order to fulfil the intention of your Lordships contained in that decision. But, when the original decision was taken in Committee, I immediately got into touch with the Scottish Committee of the British Medical Association in Edinburgh, who, as I said at the time, were completely in favour of the Amendment. I suggested to them that they ought to consider what they thought were the necessary consequential Amendments in other parts of the Bill, because the matters which the noble Lord has just been discussing are matters of great concern to the medical profession. So I should like to ask the noble Lord whether he has been in contact with the BMA—or whether the Scottish Office has been in touch with them—about this and whether they also agree that this is a necessary consequential Amendment. If the notice is too short, perhaps the noble Lord can let me know later, but I should like to make that reservation.

The Earl of SELKIRK

My Lords, personally I think this is right. I had my name down to the original Amendment, and it seems to me perfectly correct that the administration arising from the Act should rest with the Scottish Health Service.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 159C:

Page 73, line 18, at end insert— ("1. The powers under the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947, in cases where the compulsory purchase order is or would be made or confirmed by a Scottish Secretary, except—

1. (a) in cases where the apparatus belongs to excepted statutory undertakers, those under section 3(4); and
2. (b) those under paragraph 18 of Schedule 1.")

The noble and learned Lord said: My Lords, this Amendment is linked with Amendment No. 159E. They are both Amendments designed to achieve the same put pose in Schedule 11, and with the leave of your Lordships I will speak to them both at the same time. Both Amendments concern the procedural provisions under which compulsory purchase orders are made and confirmed. The Government's approach is that there should continue to be a common procedural code throughout Great Britain so that parties to cases will have the same rights, regardless of where the land to be acquired might be.

For this reason the provisions of the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 and the analogous provisions of Schedules 3 and 4 of the New Towns (Scotland) Act 1968 are legislatively reserved by entries in Part III of Schedule 10 to this Bill. However, Scottish Secretaries will themselves have powers under various enactments to make compulsory purchase orders for devolved purposes and also to confirm the compulsory purchase orders of other bodies, such as local authorities, where the acquisition is for devolved purposes. It is therefore necessary to ensure that the procedural provisions of the 1947 Act, and of Schedules 3 and 4 to the 1968 Act, apply to Scottish Secretaries. This is achieved by the entries which we propose by these two Amendments to put into Schedule 11.

The entries also give to the Scottish Executive certain substantive powers in respect of matters which are devolved. An example is the function under paragraph 12 of Schedule 1 to the 1947 Act of granting certificates in respect of compulsory purchase orders on the sites of ancient monuments. The entry does not, however, devolve any powers to make or alter procedures. That is the important point that I want to make. In line with this policy the power to make regulations under paragraph 18 of Schedule 1 to the 1947 Act is specifically reserved. Uniform procedures will therefore continue to apply throughout Great Britain. I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 159D:

Page 73, line 26, at end insert— (" 1A. The powers under paragraphs 2 and 5 to 7 of Schedule 3 to the Gas Act 1965.")

The noble Lord said: My Lords, this is a minor Amendment to devolve executively but not legislatively certain powers under the Gas Act 1965. Almost all the provisions of this Act will be entirely reserved, but paragraph 2 and also paragraphs 5 to 7 of Schedule 3 contain powers currently exercised by the Secretary of State for Scotland as part of his water and planning responsibilities, and these are suitable for executive devolution. I beg to move.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 159E:

Page 73, line 29, at end insert— ("2A. The powers under Schedules 3 and 4 to that Act.").

The noble and learned Lord said: My Lords, I spoke to this Amendment along with Amendment No. 159C. I beg to move.

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 159A: Page 73, leave Out lines 30 to 32.

The noble Lord said: My Lords, this Amendment is one of two paving Amendments for a later technical Amendment in Schedule 16 relating to Section 7 of the Local Employment Act 1972. I beg I to move.

On Question, Amendment agreed to.

4.10 p.m.

Lord DRUMALBYN moved Amendment No. 159F: Page 74, line 1, leave out paragraph 7.

The noble Lord said: My Lords, we now revert, perhaps, as I hope, for the last time, to the difficult question of the Scottish Development Agency and whether the Secretary of State should continue to exercise supervision over the Agency in respect of their investment functions or whether those functions should be transferred to a Scottish Secretary. Perhaps I ought to explain first of all why I have put this Amendment down here. I thought when I first put down the series of Amendments from No. 160 onwards that they would have the effect of removing from the Scottish Executive the powers to supervise investment activities of the Scottish Development Agency while at the same time not removing from them the powers over the industrial estate functions of the Scottish Development Agency.

The noble Lord the Minister of State was so kind as to see me this morning with some of his advisers, and it now transpires that that series of Amendments would not by itself have had the desired effect —the effect desired from my point of view. The only way to achieve it would be by the Amendment that I have down here. No. 159F, which is to leave out paragraph 7. This is the paragraph which transfers from the Secretary of State to the Scottish Executive the power to supervise the industrial investment functions of the Scottish Development Agency which the Agency performs under the Scottish Development Agency Act 1975. In particular it transfers the power to give the Agency directions of a general or specific character as to the exercise of their functions mentioned in sub paragraphs (iv), (v) and (vi) of this paragraph 7.

The Scottish Development Agency Act created the Agency in 1975 and gave it new powers or extended powers for further economic development by investment, long term as well as short term, in industry, and in addition power to make loans and grants in Scotland. At the same time it combined with those investment functions the Scottish industrial estates functions which then were the subject of subsequent legislation. These two broad groups of functions are dealt with separately in this Bill because of the nature of the functions. That is to say, the Scottish industrial estates functions are transferred in Schedule 10, Part III, which sets out in detail those provisions of the Scottish Development Agency Act which relate to matters included in groups of devolved matters contained in Part I of Schedule 10.

In paragraph 7, to which this Amendment refers, the powers in relation to industrial investment are transferred; that is to say, powers relating to matters which will come within the powers of the Scottish Executive but not within the legislative competence of the Assembly, powers to give directions, to give consent to Scottish Development Agency proposals where consent is needed, powers to determine financial duties of the Agency, and so forth. This, therefore, is the point at which your Lordships have to decide whether the first thoughts of the Government or their second thoughts were right. The first thoughts were reflected in the Scotland and Wales Bill. Under that Bill the investment functions were retained by the Secretary of State while the Scottish industrial estates functions were transferred to the Scottish Executive. There followed second thoughts, and they are reflected in the Bill, and they put both the Scottish industrial estates and the industrial investment functions under the Scottish Executive.

No doubt the noble Lord the Minister of State will explain that the first thoughts were severely criticised in Scotland. Well, clearly there must have been advantages in those first thoughts or they would not have appeared to start with. Equally there are disadvantages, as there generally are in most proposals. I would say that the main advantage of the Government's second thoughts—the ones reflected in the Bill as it is now—is that the Scottish Development Agency would he answerable only to one master instead of two, which would happen if the functions were divided with the Secretary of State in accordance with the nature of the functions.

Undoubtedly there are cases where the Scottish Development Agency help companies by taking shares or making loans, and also by providing them with a factory or extending a factory which already exists. There are other ways in which both of the two broad groups of functions may be called into play in regard to a particular company. But the functions relating to factory building—whether it is a question of advance factories or tailor made factories—are really quite different in character from the financing functions. The former are a matter of planning in advance. Those of us who have been connected with this in the Board of Trade, as it then was, and through its various mutations since then, know that this is a very difficult operation indeed, depending on the availability of finance, the needs for the future, the number of factories that are vacant and available at the time and so on. That is one form of function. It is a matter of planning in advance.

But the second lot of functions, investment functions, are largely concerned with meeting a need or an opportunity in the present or even in the future. Clearly it is for the convenience of the customer, as well as of the organisation itself no doubt, if the customer can deal with the same organisation on both matters. But that is a convenience that has to be weighed up together with other considerations which perhaps were less obvious and less taken into consideration at the time when the criticisms were made. Time and again we have reverted to the need to maintain the economic unity of the United Kingdom as a whole, and this is appreciated on both sides of the House; the noble Lord, Lord Kirkhill himself has laid stress on it.

Of course, it looks all calm and plain sailing, or fairly calm and plain sailing, when the Secretary of State who prepares the guidelines for the Scottish Executive belongs to the same Party as the Scottish Secretary to whom he gives them. But even if they do belong to the same Party it is not just the Scottish Executive which will know about the guidelines. You cannot exclude them from the consideration of the Assembly, even though the Assembly has no legislative responsibility in regard to them. And it may well be that the Assembly, even the majority Party in the Assembly, may take exception to the guidelines when they discuss them. Of course, if a different Party comes into power at Westminster and revised guidelines are prepared to meet a change of national policy, then in those circumstances difficulties can obviously arise. It may be that the majority Party severely criticises the action taken by its own Scottish Secretary in regard to the guidelines. It will certainly strongly criticise the guidelines. That is one of the places where the rift may come, a rift that may be exploited and very much enlarged for political purposes in Scotland, particularly by those who are aiming at a separate country altogether for Scotland.

Therefore one must balance the advantages and disadvantages. My own strong belief is that it is much wiser not to insert an extra link in a chain of control if it can be avoided. After all, one of the greatest assets—and this has always been recognised—for Scotland in the government of the United Kingdom is the institution of the Secretary of State for Scotland who is in the Cabinet. He is expected to know at first hand what is going on in Scotland, what is needed and so forth. He is not expected to know at second hand. However, under the present scheme he will only hear from the Scottish Secretary what is going on; he will be less able to contribute to the debates in the Cabinet; and I should think that he would command less confidence in the Cabinet as regards knowing exactly what Scotland needs.

Therefore I believe that it would be very much to Scotland's advantage for the Secretary of State to retain control over the investment side of the Scottish Development Agency's activities. Of course, one must form a personal judgment. Whatever we do in this Bill there will be conflicts. However, I should have thought that it would be better to avoid increasing the possibility of conflict, as I believe second thoughts do as compared to the first. For that reason I personally am in favour of leaving out paragraph 7, and I hope that many of your Lordships will share my view. I beg to move.

The Earl of PERTH

My Lords, in my view this is a very crucial Amendment. As the noble Lord, Lord Drumalbyn, has said, it is a matter of opinion whether the Scottish Assembly and its Officers are to have some, even if it is very minor, influence on the economic happenings in Scotland or not. For my part, I think that the more the better, but I recognise that as things are at present there is a considerable reluctance to go too far. However, the Assembly is pretty restricted in what it is allowed to do under the present clause. It is true that there might he a difference between the Government in Whitehall and the Assembly in Scotland, in the sense that they might be of different Parties, but that is something which can arise all the way through the Acts of the Assembly or the Acts of Westminster.

However, when we look at Clause 39, as the noble Lord, Lord Drumalbyn, said, we see that it states: The Secretary of State shall with the approval of the Treasury prepare guidelines". So, all the initiative comes from Whitehall —indeed, not only the initiative, but the financial power which is really what counts. Not to allow within those guidelines or within that power for the Scottish Development Agency to operate with the Assembly seems to me to go to a point where the Assembly will have no sort of function to perform in what is really a key factor in the whole of Scottish progress and Scottish development. After all, the Assembly is on the spot and the Secretary of State for Scotland is quite a long way away. I am sure that it would be and should be easily arranged between the two—indeed, I am not sure that it is not already a necessary part of the whole—that what is happening in the Scottish Development Agency is known to the Secretary of State.

I think that the noble Lord, Lord Drumalbyn said that he would have to know the situation through the Scottish Secretary, but I am sure that for matters of convenience and of practice there would be an arrangement whereby it would be perfectly normal that they should both be informed of what is going on; otherwise there would he a situation where the guidelines, as it were, would he in a vacuum in relation to the activities. Therefore I very much hope that this limited power or limited function of the Assembly will be acceptable to your Lordships and that accordingly you will not accept the Amendment.

Lord TANLAW

My Lords, if I understood the noble Lord, Lord Drumalbyn, correctly, it would appear that the Scottish Development Agency is to be hemmed in even more than it is already by directives, possibly cross directives, from Whitehall that conflict with its own investment policy. It appears to my noble friends on these Benches and to myself that if the Scottish Development Agency is to work effectively to provide employment and investment in Scotland that is soundly based for the future, then the management expertise that is available in the Agency should make these decisions as unencumbered as possible. I may need some help from the noble Lord, Lord Drumalbyn, because I do not see how directives from the Secretary of State will assist what is basically executive and investment decisions by those responsible for the investment programme of the Scottish Development Agency.

Lord DRUMALBYN

My Lords, I intervene to point out that someone will have to give those directions. The only question is whether it should be the Secretary of State or the Scottish Secretary who should give directions when they are required. I am thinking of grants and so forth.

Lord TANLAW

My Lords, if the noble Lord is talking about grants, then I am prepared to concede a point. What is worrying me—and I do not think that the noble Lord has taken this worry away—is that I cannot see how the investment decisions can he in any way enhanced by the Secretary of State or representatives from Whitehall trying to assist or interfere with them. It is my belief that those who are paid and employed as the directors and managing directors of the Scottish Development Agency carry the burden of their decisions and they must be proved for the future. I think that in any investment banking decision interference from an Assembly, albeit Parliament or another place, can only be deterimental.

It worries me considerably that those in charge of the Scottish Development Agency will, if I have understood the noble Lord correctly, to put it crudely be hen pecked from time to time by the Secretary of State or by members of the Assembly on the wisdom of those decisions. I believe that if that is the situation and if I have understood the noble Lord correctly, it will seriously weaken the operations of the Scottish Development Agency which I and my colleagues on these Benches have supported from the outset. At this stage I am certainly not at all in favour of the Amendment, if it will have the effect which I am certain it will have if the noble Lord is successful.

Lord KIRKHILL

My Lords, let me at the outset acknowledge the close interest which the noble Lord, Lord Drumalbyn, has taken in the proposals concerning the Scottish Development Agency; the impressive degree of knowledge he has displayed about the provisions of the Scottish Development Agency Act, which is indeed complex; and the assistance which I believe he has given to your Lordships' House on what is now a number of occasions when we have been discussing the relevant provisions in the Bill, I am only sorry that the noble Lord's researches have led him to what is, I believe, an unduly pessimistic conclusion. I hope that what I shall now say may convince him that he should not, after all, press his Amendment.

The Scottish Development Agency was established with the purpose of bringing together under the same public corporation responsibility for furthering economic development and furthering the improvement of the environment in Scotland. Broadly speaking, the powers conferred on the Agency are available to it for both these purposes. When we came to consider devolution of the matters dealt with in the Scottish Development Agency Act, we were faced with the dilemma that the functions related to furthering the improvement of the environment, and matters which very closely related to the area of devolution; whereas the functions for furthering economic development were more closely related to regional and industrial policies, for which overall responsibility will remain with central Government.

From the first the Government have believed that it was essential to grant full devolution over the Agency's environmental functions, which include the provision of industrial sites and industrial estates. So far as I am aware, there has been no dissent from that conclusion, at least in your Lordships' House. However, full devolution was not an appropriate solution for the economic development function and the Government at no time contemplated it. We started where the Amendment of the noble Lord, Lord Drumalbyn, would take us, by proposing no devolution in relation to the economic and industrial functions. That proposal was included in the Government's White Paper of November 1975. It met—and the noble Lord, Lord Drumalbyn, acknowledged this in his earlier remarks—with a great deal of criticism from a wide variety of responsible sources in Scotland and elsewhere.

These took the view that the Agency would be placed in an impossible position if it were to be separately responsible for different areas of its functions, the exercise of which might well he closely interlocked —indeed, inevitably so in particular cases—to two different masters. The view was very strongly urged that the Agency should be put entirely under the control of the devolved Administration. Accordingly, the Government looked at their proposals again in the light of this consultation. They decided that their special concern with the maintenance of consistent regional and industrial policies could be met if powers were devolved in relation to the non environmental functions, but subject to two provisos.

The first was that this devolution should he executive only. The second was that the exercise of the powers should be subject to guidelines laid down by, and variable by, the Secretary of State. As the researches of the noble Lord, Lord Drumalbyn, have demonstrated—at least, I think this is probably true—the drafting of the Scottish Development Agency Act is particularly closely knit. In order to implement their policy, therefore, the Government have had to do some very detailed and precise sorting out of the strands so as to be able to indicate in Schedule 10 to the Bill the extent to which matters dealt with in the various provisions of the Act are to he subject to the Assembly's legislative competence: and to indicate in Schedule 11 the particular ministerial powers which will pass to a Scottish Secretary but which the Assembly will have no power to modify. It is to the exercise of these latter powers that the guidelines will apply.

I have explained how the Government's original proposals of 1975 were widely criticised. On the other hand, the present proposals in the Bill have been generally welcomed: indeed, it might be fair for me to say that the noble Earl, Lord Perth, would go rather further than the Government at this point. But at least he welcomes the general lines which the Government are taking as does the noble Lord, Lord Tanlaw. The Scottish Development Agency itself has indicated that it regards them as being entirely workable. From the Agency's point of view they have the great advantage that it will deal with the Scottish Administration alone. The Government are satisfied that the proposals provide an efficacious way of safeguarding reserved United Kingdom interests and s that they involve much less risk of friction and unco-ordinated action than does the divided responsibility which the noble Lord's Amendment would produce.

I hope that in the light of what I have said the noble Lord will consider whether the best interests of Scotland and the best interests of achieving a satisfactory devolution settlement will be served by the changes which he proposes. I would seriously say to your Lordships' House that the very reverse would be the case.

The Earl of LAUDERDALE

My Lords, since we last met in Committee I have done what homework I could, particularly as I had to absent myself from the latter stages of that last debate owing—as the noble Lord, Lord Kirkhill, is aware—to the arrival of some Lauder dales from America who required to be wined, dined and made welcome. Having read the report of that debate and having listened both to the noble Lord, Lord Kirkhill, and to my noble friend Lord Drumalbyn just now, I cannot help feeling that this matter is still in an awful muddle.

The noble Lord, Lord Kirkhill, has himself said, in effect, that the Scottish Development Agency Act is so tightly knit—I think that that was his phrase—so closely drawn, that it was (and he did not use this phrase, but I use it) almost a surgical operation to separate one lot of its activities from another. It may be that in all the circumstances there was no alternative—given the Government's intention of proceeding with this kind of Act and this kind of masquerade so far as economic powers are concerned—but for the Government to act in this way. The noble Lord has just said that the SDA now say that they think this arrangement is workable. Those who hold offices of profit under the Crown are often wellattuned—I shall not put it any higher than that to the kind of answer which, in all the circumstances, it is best to give their masters. Frankly, I do not take too seriously the fact that they think the matter will work as it stands.

Surely what is quite clear is that the Secretary of State will continue to represent the economy of the United Kingdom as a whole, and do so by issuing guidelines. Those guidelines will be mandatory upon the Scottish Secretary—who may or may not be of the same political Party, but perhaps that is not as important a difference as it may seem—for practical purposes working the Scottish Development Agency Act under his new conditions. There will be divided responsibility; there will be division of opportunity as between Parliament, where Questions can certainly be put to the Secretary of State, and the Assembly, where Questions certainly will be put to the Scottish Secretary, even though these matters are out with the responsibility of the Assembly itself.

I think that the solution chosen by the Government encapsulates the dilemma of the whole Bill, which is how to give Scotland the appearance of control over its own affairs without in fact doing so. That is the heart of the matter. That is why I think that this Amendment is very important. At this moment I am not saying that I would urge my noble friend to press it, because I think that whatever one does in this matter is almost certain to be wrong. However, one thing that emerges is that surely the role of the Secretary of State for Scotland in Cabinet is somewhat diminished by all this. At the end of the day it is he who must always provide the ultimate influence on the Scottish economy. Therefore, I only hope that perhaps when the noble Lord, Lord Kirkhill, winds up by leave of the House, he will he able to make the matter a little clearer than he has done already. But it may be that mud cannot be made clear anyway.

4.40 p.m.

Lord DRUMALBYN

My Lords, I find that it is difficult indeed for me to reply to what has been said for the reason that I myself am to blame because, in order to shorten the debate as much as possible, I did not go through what the paragraph provides. If anybody would like to rise now, other than the Minister from the Front Bench, and say exactly what the paragraph provides I should be very interested to listen to them.

I tried to make some kind of digest of it. The paragraph provides first of all that the appointment of the Agency itself will rest with the Scottish Secretary. That, for my part, I should not object to in the slightest. The second point is the requirement for the Secretary of State's consent in the exercise of the power to acquire, hold, and dispose of securities, form bodies corporate, form partnerships and make loans to guarantee obligations.

The third deals with the requirement for the Secretary of State's consent in the exercise of the power to make grants. The fourth point is the power to give directions in relation to the functions to which the noble Lord, Lord Kirkhill, referred in his speech—I think it was on 25th April—which are the central provisions in the Scottish Development Agency Act. These are the functions of the Agency in providing or assisting in the provision of finance, and so on. That is in Section 2(2)(a). The power to give these directions is obviously a matter of importance.

I was somewhat surprised at the line that the noble Lord, Lord Tanlaw, took on this. I should have thought it was obvious that the Scottish Secretary in Edinburgh is much more likely to interfere with the investment functions than the Secretary of State for Scotland has proved to do. However, we shall see. This is a question of judgment. It certainly was not my intention in any way to increase the amount of interference. Far from it. I entirely agree with him that investment decisions should be left to those people who are appointed to make them, and should be interfered with as little as possible. Still, the fact remains that there are these powers in the Scottish Development Agency Act to give directions in the exercise of those functions for the promotion of industry.

There is another power to give directions in relation to the power to acquire and hold securities, and so forth, and also grants. There is the power to give directions on the charging for services, accepting gifts or grants, carrying out or commissioning investigations and inquiries in relation to the three principal functions of the Scottish Development Agency. One could go through the whole list. I think that those are the main points, although I should refer to the power to give consent, or a general authority, if the acquisition of shares in a company would carry with it 30 per cent. or more of the votes, or if the cost of the acquisition of the shares would exceed £2 million.

These are the kinds of powers involved and they do, under the Act, require consent. In the course of obtaining that consent the activities of the Scottish Development Agency are brought to the attention of whoever has to exercise those powers. I maintain that this is the best way of enabling the Secretary of State to see what is going on. It is extremely important that he should know what is going on and what are the capacities, powers, and so forth, of the people handling these things.

I do not think I need go further in describing the rest of the powers, because obviously if I am not going to press this paragraph there is not much point in our considering the detail of it. I got a little lost in following the noble Earl, Lord Perth, because we are not talking here about the Assembly at all except its incidental capacity, rather than function or power, to discuss anything it likes. It will most certainly discuss the guidelines that it receives and the activities of the Scottish Development Agency, and indeed reports of the Scottish Development Agency will be laid before the Assembly as the Bill already stands. Therefore, I do not think that, on balance, there is any reason to suppose that the Secretary of State would be more restrictive: indeed, I think exactly the contrary.

The noble Lord, Lord Kirkhill, referred to my researches. I was privileged, if that is the word, to take part in the debates on the passing of the Scottish Development Agency Act. I think that my noble friend Lord Campbell of Croy, took the leading part on that occasion. Therefore, this is a matter which is obviously of great interest to us all. I do not feel that I should set up my judgment in this before the House and ask the House to express an opinion on it because, with the exception of my noble friend Lord Lauderdale—and I think that he rightly diagnosed what I felt about this—I do not seem to have received a great deal of support from this side of the House. But I must say again that that is because of the incredible complication of the way the Bill is drawn. If ever there was a case for a Keeling Schedule it should have applied in the case of the activities of the Scottish Development Agency.

Lord CAMPBELL of CROY

My Lords, will my noble friend give way? I would say to my noble friend that we have regarded him as the absolute expert on this complicated subject of the Scottish Development Agency. He and I were very much concerned with the Bill in 1975 when it went through. He has, in his most penetrating way, put all the points to the Government, and we have been listening to the reply. I do not think that there is an easy solution to it, but I would certainly back his judgment in these matters, although I agree with him that it may not be right to press this Amendment.

Lord DRUMALBYN

My Lords, apart from anything else, my own inclination in matters of this kind is rather to leave well alone. By that I mean that the system is working quite well under the Secretary of State at the moment and it is not necessary to make this change to bring into effect the second thoughts. It certainly is not necessary. It may be a convenience to the Scottish Development Agency to do so; it may even be a convenience to their customers in certain cases, but I should have thought that the best solution would have been for the Government to stick to their first thoughts on the broad grounds and not on the particular, narrow ground of the criticisms of this that have been expressed in Scotland. I have done what I can on this. I have expressed my opinion, and all I can do is to sit down and await the verdict of the House.

On Question, Amendment negatived.

[Amendments Nos. 159G and 160 to 165 not moved.]

Lord KIRKHILL moved Amendment No. 166: Page 74, line 21, at end insert (" and (f)").

The noble Lord said: My Lords, if it is for the convenience of your Lordships' House, as I believe it to be, I shall speak to Amendments Nos. 166 and 168 together. Both are technical Amendments in respect of the finances of the Scottish Development Agency and both deal with the same point. They close a gap in the devolution of Ministerial powers relating to the exercise of functions by the Scottish Development Agency. The gap occurs in the application of the power under Section 12 to determine financial duties of the Agency and of the powers in Schedule 2, which is concerned with financial arrangements. I beg to move.

On Question, Amendment agreed to.

[Amendment No. 167 not moved.]

4.50 p.m.

Lord KIRKHILL moved Amendment No. 168: Page 74, line 28, at end insert ("and (f)").

The noble Lord said: My Lords, this is consequential on Amendment No. 166, to which I have spoken.

On Question, Amendment agreed to.

Lords KIRKHILL moved amendment No.169:

Page 75, leave out lines 10 to 18 and insert — ("2. The power under section 1(1)(d) of the Health and Safety at Work etc. Act 1974 to prescribe classes of premises, except so far as exercisable in relation to motor vehicles, aircraft, hovercraft or vessels. 3. The powers under sections 3(3), 5(1), 11, 12, 14(1) to (6), 15, 16, 18(2), 20(3), 27(1), 44, 45, 50 and 80 of that Act so far as exercisable in relation to the control of emissions into the atmosphere of noxious or offensive substances otherwise than from motor vehicles, aircraft or hovercraft.").

The noble Lord said: My Lords, this Amendment relates to the entry in Schedule 11 for the Health and Safety at Work etc. Act 1974. The policy is that this Act should, subject to certain exceptions, be devolved executively in respect of atmospheric pollution. The Amendment changes the existing entry in two respects. First, it reserves the Act entirely in respect of motor vehicles, aircraft and hovercraft; pollution from all of these is closely connected with manufacturing standards, and is already reserved in other contexts in the Bill. Secondly, while atmospheric pollution from ships in territorial waters is generally to be devolved, the Amendment reserves the power under Section 1(1)(d) to prescribe classes of ships as being premises to which the provisions of that Act apply. Thus it will be for the Secretary of State to apply the Act to ships, but for the Scottish Executive to make subsequent regulations.

Lord GRAY

My Lords, I have a technical question about the wording of the Amendment. I have frequently been surprised and sometimes concerned about the uses to which the word "premises" can be put. Today my concern is with the words used for the exclusions here. In the Amendment we find exclusions in relation to motor vehicles, aircraft, hovercraft or vessels. In the Health and Safety at Work etc. Act 1974 the relevant provision reads: …any vehicle, vessel, aircraft or hovercraft". Is there any significance in the use of the word "motor" to qualify "vehicles" in this case? I ask this question only because we had considerable difficulty almost a year ago today with the use of the word "vehicle".

Lord KIRKHILL

My Lords, off the cuff I am unable to give the kind of expert reply to which the noble Lord is entitled, but I will consult my advisers and communicate with him

On Question, Amendment agreed to.

Lord KIRKHILL moved Amendment No. 170:

Page 75, line 18, at end insert— ("3A. So far as they relate to vessels other than those in inland waters, the powers under:—

1. (a) sections 32(1) to (3) and 36(1) of the Public Health (Scotland) Act 1897;
2. (b) sections 6, 8, 146(1) 148, 149 and 178 of that Act (so far as they relate to sections 16 to 27, 29 to 32 and 36 of that Act);
3. (c) section 1(2) of the Clean Air Act 1956; and
4. (d) the Control of Pollution Act 1974 (other than those under sections 30(5), 75 to 77 and 100 to 103).")

The noble Lord said: My Lords, this Amendment which concerns pollution from ships in territorial waters, follows on the earlier Government Amendment, No. 116, to paragraph 8 of Part II to Schedule 10. It involves no change of policy, but seeks to achieve more clearly what the Bill previously sought to achieve by means of paragraph 8.

On Question, Amendment agreed to.

Clause 62 [Reservations]:

The Earl of SELKIRK moved Amendment No. 171:

Page 30, line 26, leave out subsection (1) and insert— ("(1) It is hereby declared that the power of clemency is not devolved.")

The noble Earl said: My Lords, subsection (1) of this clause states: The prerogative of mercy is not a devolved matter".

I should have thought that the rule of silence, which we have been told, I will not say ad nauseam but certainly on a number of occasions, means that a matter is reserved, in turn means that this subsection need not appear at all. It would be quite sufficient to leave it out because it is obvious that unless the power of clemency is devolved, it remains where it is now.

However, there is objection to the use of the words as drafted. We have already discussed the subject of prerogative and it has been left out of Clause 21(1) because it is inappropriate to devolve a matter of prerogative, and for the very good reason that these are powers which cannot be made subject to law by devolution. We are substantially agreed on that. If, therefore, the Minister wishes to make a declaratory statement—I do not think it is necessary for him to do so, but if he wants to make such a statement—I suggest he uses words on the lines of those in my Amendment. I have used the words: It is hereby declared that the power of clemency is not devolved". I am not saying they are necessarily the only words, but I believe they are sufficient for the purpose the Government have in mind. I believe it would be better to leave out subsection (1) altogether, but it is objectionable in the form in which it is drafted now.

Lord McCLUSKEY: My Lords, the first matter to which I should address myself is the remark of the noble Earl, Lord Selkirk, that the rule of silence applying here would mean that one does not need to have any such provision as is now contained in subsection (1) of this clause. I invite the noble Earl to look with me at the group in Schedule 10 relating to the criminal law generally, Group 25, where he will see that legislative competence is devolved in relation to a number of subjects included in that group and he will find that it includes in line 18, criminal penalties; in line 19, the treatment of offenders; and in line 23, the enforcement of court orders.

In relation to one or other, I believe to all, of these subjects it would be possible to say that, if there were no reservation then legislative, not executive, competence in relation to what is embraced in the prerogative of mercy would in fact be devolved. I refer particularly of course to the treatment of offenders and criminal penalties. If legislative competence in relation to criminal penalties were devolved and there were no reservation, then surely it would be competent for the Assembly to legislate in order to allow the remission of criminal penalties; one would think that would be included. It would apply equally, I would say, to the enforcement of court orders; if a court orders that a person shall be imprisoned or that a fine shall be paid or that it shall be paid within a specific time, then the remission of the fine or the alteration of the time might be a matter which could be regarded as an exercise of the prerogative of mercy. I believe therefore that, unless there were some reservation, legislative competence would be devolved.

I do not think there would be any devolution of executive competence because here we would be looking at Clause 2I—we had a detailed look at that on an earlier occasion—and that clause is concerned with the devolution to Scottish Secretaries of powers which would be exercisable on behalf of Her Majesty by a Minister of the Crown. Lord Selkirk and I are agreed that, so far as the prerogative of mercy is concerned, the power there is exercised by Her Majesty on the advice of Ministers, so that is not included in Clause 21. But the reason for a reservation is that legislative competence would appear to be devolved by the words to which I have drawn attention.

The noble Earl then drew attention to the use of the words, and we have had a number of debates about that; but I invite attention to how the words are used in Clause 62. We say: The prerogative of mercy is not a devolved matter". In other words, we are not purporting to make the prerogative of mercy a devolved matter; we are not proposing to legislate about it. We are proposing not to legislate about it, so it is the very reverse of including it in the statute. I believe that that is the correct way to do it.

I have looked into the matter to see whether this has been done before, and the best example to which I can draw attention is in Section 263 of the Criminal Procedure (Scotland) Act 1975, which was a consolidation Act. Section 263 is a section which is specifically reserved in Part III of Schedule 10 of this Bill. The opening words of Section 263 are: Nothing in this Part of this Act shall affect the prerogative of mercy". I believe that that is a very similar kind of provision to the one that we have here. In that Act it is stated that nothing, shall affect the prerogative of mercy", and in this Bill it is stated that, The prerogative of mercy is not a devolved matter". I think that the difference in wording derives from the different concept of the Bill, but in substance it is the same kind of provision.

I come now to the next matter. The noble Earl suggested that, if we wished to make a declaratory statement, we might do so in the terms of his Amendment, but I fear that that would not do. I do not believe that the phrase "power of clemency" in the Amendment can properly be described as a term of art. First, I believe that it is possibly too wide. The first definition of clemency as given in the Shorter Oxford English Dictionaryis: Mildness or gentleness of temper in the exercise of authority or power; mercy; leniency". I believe that clemency could therefore properly include, for example, the exercise of a power to grant parole. Equally, I believe that it might include the exercise of a power to allow a reduction in a fine, or a delay in the payment of a fine, which is the kind of thing which is done daily in the means inquiry courts in Scotland, as the noble Earl will know. Indeed, I suppose that a remission to a prisoner for good conduct would be regarded as an exercise of leniency, and therefore of the power of clemency. Therefore, I must criticise the wording in the Amendment as being not sufficiently precise. I defend the wording in the Bill upon the basis that I have outlined, and I invite the noble Earl not to press the Amendment.

The Earl of SELKIRK: My Lords, I was saying that the Bill says that it will not devolve the prerogative, and so, as there is not power to devolve the prerogative by Statute, one is saying that one will not do what one cannot do. I believe that that is silly, and that is the reason why I raised this matter. Would the noble and learned Lord agree to include what is stated in the Criminal Procedure (Scotland) Act 1975? Would he agree to the words: Nothing in this Act shall affect the prerogative of mercy"? Those are the words used in the Act to which he referred. I hope that he would agree to include those words, because I believe that they would be more apt, and they would meet precisely what he is trying to say. I am not arguing about the merits of this matter—I am in agreement with the Government—but I think that the words are inappropriate. I shall not press the noble and learned Lord for an immediate decision, though possibly he would like to give one. However, if he would consider my suggestion, it would give me great pleasure. Perhaps that is not a good enough reason, but I leave the matter at that, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.4 p.m.

Lord HARMAR NICHOLLS moved Amendment No. 171A: Page 30, line 28, after ("country") insert ("or group of countries").

The noble Lord said: My Lords, I think that we can take Amendments Nos. 171A and 171B together. If I am able to persuade the noble and learned Lord on this occasion, then it will be the first time that he has agreed with me. It will be rather pleasant if he is prepared to say that he accepts the Amendments. That would be quite different from what we have had for days and clays, during which it has been a case of, "No, No." If on this occasion the noble and learned Lord is prepared to accept what I propose, he may save the State and many people much money.

The words as they stand in the Bill here are all right, but they leave room for doubt. There could be doubt if there is a reference to Lords of Appeal for a decision on what the Bill means, if it ever becomes a Statute. Clause 62(2) states: To the extent that a matter involves the conduct of relations with any country outside the United Kingdom it is not a devolved matter". I suggest that, if the provision is left as it stands, the words "any country" may not cover a group of countries. I have in mind, for example, the European Community. It could well be submitted that in this context a group of countries—perhaps this might arise in connection with laws coming from the Community—would not be deemed to be the same as any one country in terms of the conduct of relations. I want to try to make it crystal clear that this matter is not devolved to the Assembly, but remains a matter absolutely for Westminster. If the words proposed in my Amendment were inserted, the subsection would begin: To the extent that a matter involves the conduct of relations with any country or group of countries and, if the words proposed in Amendment No. 171B were included, the subsection would continue, outside the United Kingdom or with the European Community That would put beyond any doubt what exactly is meant.

I would not argue with any strength that the present words, if challenged, would not be deemed to mean what I am trying to make them mean by the addition of the words that I propose, but by leaving this matter in the singular—by referring to relations "with any country"—and by leaving the reference to "outside the United Kingdom" as it stands, there really is a doubt. Someone who wanted to push a point to the ultimate could perhaps get round the wording as it stands, and that could be very expensive.

What I propose does not affect the sense of what the noble and learned Lord already has in the clause. I merely wish to add a few words which would remove a doubt which I have, as do one or two people with whom I have discussed the matter. I hope, in view of the fact that on this occasion we are so close to agreeing that the present wording is more or less right, that the noble and learned Lord will accept the additional words, and thereby create a precedent, in that for the first time in these long and weary debates he will have said "Yes" to me. I beg to move.

Lord McCLUSKEY

My Lords, I agree entirely with what the noble Lord, Lord Harmar-Nicholls, said at the start of his speech, when he said that the words as they stand are all right. I am afraid that beyond that I have to say "No" to him. The words which the noble Lord seeks to add to Clause 62 (2) are unnecessary. The subsection as it stands, by debarring the devolved Administration from the conduct of relations with any country outside the United Kingdom—I draw attention to the word "any"—is already entirely adequate to debar the conduct of relations with the European Community, or with any group of countries such as may be found within an international organisation.

I believe that my noble and learned friend the Lord Chancellor dealt fully in Committee with the relationship between the devolved Administration and the organs of the European Community. He said, as reported at column 1097 of theOfficial Reportof 10th May, that he could not emphasise too much that participation in meetings of the Commission and of the Council of Ministers, where the decisions will be made, is a matter for Member States, and so far as this country is concerned will be a matter for the United Kingdom Government". We believe that that is adequately secured by the subsection as it stands, and it is unnecessary to insert the words in order to remove the doubt which lingers in the mind of the noble Lord. I am not quite clear in what circumstances he envisages that the matter would come to be resolved by Lords of Appeal, but I am advised—and I agree with the advice offered to me—that, should that happen, the present wording makes it quite clear that any attempt by the devolved Administration to conduct relations with a country, or a group of countries, or an organisation including a number of countries (such as the EEC, or the like), would be debarred. That is the plain sense of subsection (2), and therefore I believe that it would be better to leave the words as they stand.

Lord HARMAR NICHOLLS

My Lords, the noble and learned Lord, on this occasion as on any other occasion, has taken cognisance of what his senior in Government has said. The Foreign Secretary is on the record as using words which more than imply that the Assembly may well be taken along to the European Community. We have also had the Secretary of State for Scotland, who has said that he can well see that direct contact will be made with the Assembly in Scotland. The noble and learned Lord, Lord McCluskey, quotes the noble and learned Lord the Lord Chancellor giving his view, but in terms of political precedence the Foreign Secretary and the Secretary of State for Scotland are the ones who have left this doubt in my mind.

My Lords, if my extra words did anything more than strengthen what the noble and learned Lord has said that he wants, I would not have bothered him with them. They can do no harm, and could do good. The ideal bet to be on, as the noble Lord, Lord Wigg, will tell your Lordships, is a bet where you can win and cannot lose; and my words put the noble and learned Lord and this statute in precisely that position. Accept my words and there is no shadow of a doubt at all, Foreign Secretary or no Foreign Secretary, Secretary of State or no Secretary of State. Why my Amendment is not accepted I do not know, but I am obviously not going to get anywhere on it. I do not know whether any other noble Lord feels that the point is worthy of pursuit, but, if not, then I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 171B not moved.]

Schedule 12 [Legal proceedings involving devolution issues]:

5.12 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 172: Page 76, line 30, after (" Act ") insert (" or instrument ").

The noble Viscount said: My Lords, I hope that the House will allow me to set the context of this Amendment, and indeed Amendment No. 173, because it is a fairly complicated Schedule and it evoked from noble and learned Lords sitting on the Cross Benches a good deal of debate at Committee stage. The point of the Schedule, as I understand it —and the noble and learned Lord will at once tell me if I am wrong—is that, where one has in an ordinary action what is called a devolution issue, the Schedule provides an optional course whereby one can have an accelerated appeal without going through all the ordinary stages right from the bottom of the judicial system to the top. As the Bill now stands after discussion in debate, the appeal by that accelerated method will still go to the Judicial Committee of the Privy Council.

Of course, the advantage of an accelerated appeal procedure is that the unfortunate litigants do not have to fight the point out in court after court, none of which has anything much to go on and all of which know that, in the end, it is very probable that the matter will have to be decided by the final court of appeal, which will be either the House of Lords in ordinary cases or the Judicial Committee if it is done in that way. So it is a great saving; and, of course, it is not only a saving for the private purse but, if the matter is legally aided, it is a saving on the public purse as well. So I thoroughly approve of the accelerated procedure.

Now, my Lords, what are the devolution issues which can be taken up by means of this procedure? There are two in paragraph 1 of the Schedule. First of all, there is the straight issue of whether either the whole or any part of a Scottish Assembly Act is within the legislative competence of the Assembly; in other words, this is the issue of whether they have gone outside the powers given them by the Scotland Bill. The exception will be if it is a matter which has been looked at on a pre Assent reference to the Privy Council, where we have now slightly altered this, but normally speaking that will all be open for debate. Secondly, there is a matter with respect to which a Scottish Secretary has purported to exercise or proposes to exercise a power which is given him under this Bill.

Now, if one looks back for a moment to the three provisions which provide for political override, which are Clauses 36, 37 and 38, one sees that, instead of there being two matters set out—that is, the straight legislative ability in an Act and the powers of the Scottish Secretary—we find a third category which relates to Statutory Instruments. That is not reproduced in Schedule 12, and the question therefore arises whether Statutory Instruments can ever be the subject of the accelerated procedure under Schedule 12.

This, again, requires a little thought, because I should have anticipated that not all matters which give rise to vires—to the question whether a Statutory instrument is within the powers of the maker of it—would necessarily be devolution issues, even if they arose under the Scotland Bill. For instance, if the Scottish Assembly or the Scottish Secretary is given powers to make a Statutory Instrument —as indeed is the case, by virtue of pre existing United Kingdom legislation which we already have on the Statute Book—but the power to implement it, to amend it or to do something by way of subordinate legislation under it so far as concerns Scotland is merely transferred to the Scottish Assembly under this Bill, then, if there is any question whether the subordinate instrument so made goes beyond the powers of the enabling United Kingdom legislation, that would not, as I understand it, be a devolution issue in any event. It would fall to be dealt with by the ordinary methods of the courts, and it could not be the subject of the accelerated procedure even if one wanted it to be.

The next sort of Statutory Instrument would be one which was made under a Scottish Assembly Act which was in itself perfectly infra vires—nothing whatever wrong with the Act—but where the citizen in Scotland wished to complain about the Scottish subordinate legislation on the grounds that if fell outside the powers granted by the Scottish Assembly Act. That also would not give rise to a devolution issue in any way, and that, too, would have to be taken up the court structure in Scotland in the course of normal litigation.

However, there is a third sort of Statutory Instrument which could, I think, occur. It is a case where a Scottish Assembly Act has been passed and there is nothing whatsoever wrong with the Act itself; where nobody can question that it goes beyond the powers given to the Scottish Assembly under the Scotland Act 1978. In order to illustrate this, let us take for a moment an example from Schedule 2, paragraph 4, as I think an illustration helps in this argument. Suppose that the Assembly indeed wished to pass legislation altering the form of the local property tax from a rate as everybody knows it now to some other local tax substantially of the same character. In other words, though I do not know what sort of tax they might substitute for the present system, they might have something which is slightly different from rates as we now know them.

There would be nothing whatsoever wrong in the Scottish Assembly passing a Bill to do that, because they are expressly told in Schedule 2 that they can. However, one of the difficulties about laying down the details of local property taxation is that it is all right for houses, factories and all the other ordinary sorts of building that everyone is familiar with; but when you get on to difficult things like gasworks, water undertakings, the railways and things which do not happen in only one place but spread themselves across the country, and you have to apportion the amount of local property tax that is going to be paid in any local authority area—and, indeed, the Coal Board comes into the same category as well—you rather tend to have formulae. You certainly have them under the rating enactments, and it would not wholly surprise me if, under some substitute system of local taxation, the Scottish Assembly decided that they would not try to make their legislation completely consistent but would also be prepared to adopt formulae for certain specialised hereditaments of that sort in Scotland.

Very often when this sort of exercise is being carried out it is much too cumbersome to put into the legislation itself. One has only to look at the Schedules to the General Rate Act 1967 for England and Wales to see what happens when you start putting cumulo valuations on water undertakings, and all the fractions and things, into the primary legislation. So provision is very often made to deal with this by Statutory Instrument. In due course, therefore, along may come a Scottish Secretary presenting to the Assembly a piece of subordinate legislation which sets out how to rate the water undertakings. At that point, the water undertakings wish to challenge the Statutory Instrument, not on the grounds that the Act from which it derived went beyond what was within the legislative competence of the Scottish Assembly but on the grounds that the subordinate legislation falls outside what is contemplated by Schedule 2, paragraph 4, to the Scotland Bill.

It seems to me that one could say that that would also be outwith the competence of the Assembly under the Scotland Bill itself, so that one could certainly deal with it in the courts in the ordinary way. But if the main complaint is not that, but that it goes outside what has been devolved under the Scotland Bill itself, it is the sort of thing that ought to be a devolution issue and subject to the accelerated appeal procedure. In order to cover this, I have put down these Amendments. I hope that they are in the right form but I dare say that I shall be told that they are not.

My Lords, those who look at Statutory Instruments, I think, are in some doubt whether they are, indeed, subordinate legislation or whether they are the exercise by a Scottish Secretary of a power. Let us suppose, for instance, that we take the ordinary case of the Affirmative Resolution procedure in this House. A Minister comes along and presents a draft order; he speaks to it and the Opposition or anybody else may make a speech on the Motion eventually put to this House: That, the order be made. Is that legislation or is it the exercise of a power by a Secretary of State or a Minister in this country under the Constitution as it now exists?

I am not sure even that the Statutory Instruments Act 1946 entirely clears this up. If there is any doubt about it, then I wish to make sure that we set the doubt at rest by including the necessary words in the Bill. At the moment, I am not sure that paragraph 1(b) of this Schedule goes wide enough to deal with all sorts of Statutory Instrument which might be made by the Scottish Assembly, perhaps under procedure similar to our own Affirmative Resolution procedure, and which it might then be wished to challenge along the third line of the argument which I mentioned. I hope that that is not too involved or too far fetched. I think that it could easily happen, and if it did happen I should like the quicker, cheaper accelerated procedure to be able to apply, to save everybody a great deal of time and trouble. I beg to move.

5.24 p.m.

Lord McCLUSKEY

My Lords, the Government believe that this Amendment is unnecessary. We have corresponded with the noble Viscount but so far have been unable to persuade him. What the Amendment seeks to do is to extend paragraph 1(a) of Schedule 12; and paragraph 1(a) of Schedule 12 is the paragraph which brings within the general expression "devolution issue" the question whether a Scottish Assembly Act or any provision thereof is within the legislative competence of the Assembly.

We rely, in relation to subordinate Instruments, upon paragraph (b) which is concerned with the exercise, or the purported exercise, of a power by a Scottish Secretary. I was asked a moment ago in relation to the making of some kinds of subordinate Instrument whether it is legislation or the exercise of a power. In a sense, that is a question that one does not need to answer; because if it is legislation it is caught by paragraph 1(a) and if it is the exercise of a power it is caught by 1(b). In either case it is a devolution issue within the meaning of that term as defined in Schedule 12.

Viscount COLVILLE of CULROSS

My Lords, I do not think that I am quite as dim as that. Paragraph 1(a) talks about a Scottish Assembly Act and not Scottish Assembly legislation.

Lord McCLUSKEY

My Lords, I really must be very dim to miss altogether that distinction between a Scottish Assembly Act and Scottish Assembly legislation.

Viscount COLVILLE of CULROSS

My Lords, I must make this plain. The noble and learned Lord said that if the subordinate Instrument is legislation it is caught by 1(a). What I am saying is that it is not. Paragraph 1(a) refers to a Scottish Assembly Act and not to a piece of Scottish Assembly legislation.

Lord McCLUSKEY

My Lords, is there a distinction? It does not exist. Surely the point is that either the Scottish Assembly passes legislation in the form of an Act or else it passes an enabling Act under which the Scottish Secretary makes a subordinate Instrument. That is the only kind of subordinate Instrument that we are concerned with in this Bill.

If one looks at Clause 38(1) that becomes absolutely plain. It is the kind of thing we are talking about because Clause 38(1) is concerned with such Instruments. It reads: If it appears to the Secretary of State that an instrument made by a Scottish Secretary under any Act of Parliament or Scottish Assembly Act affects a reserved matter "— then he (the Secretary of State)— may by order revoke the instrument". I do not see that there is anything in between Assembly legislation, on the one hand, and a subordinate Instrument made by the Scottish Secretary and approved by, or not disapproved by, the Assembly in terms of the powers conferred by a Scottish Assembly Act. With the concept which is involved here in paragraph 1 of this Schedule is the concept of a power; and we believe that that is wide enough to cover any power to make a subordinate Instrument and, at the same time, the power to undertake executive action—although the noble Viscount does not challenge that that is covered by this provision.

He is concerned, as he has explained, with an Instrument which strays outside the limits of the legislative competence of the Assembly. He certainly offered us certain examples. Let me illustrate this in relation to one which is very plain, I think, on the face of the Bill itself. Under Schedule 10, Group 3 gives a power to give grants to educational institutions.Prima facie, therefore, if a Scottish Assembly Act were to be passed empowering a Scottish Secretary to make such a grant, that would, on the face of it, be intra vires. Paragraph 3 of Part II of the same Schedule, in effect, says that he cannot make a grant to a university. If, in a purported exercise of the power conferred by the enabling Act, he decided to make a grant to a university to set up a Faculty of Building, or whatever, that would be an exercise of a power to make a subordinate Instrument which would be caught by paragraph 1(b). I do not think that the noble Viscount would dispute that. That is how we see the thing working.

We believe that the kind of case he is figuring—and he figured it in relation to altering a rate into a local tax—is covered. The other example he gave was formula rating. I accept what he says that this would not be done normally by primary legislation but by the making of some order. Unless he is right in his suggestion that that order is somehow not legislation as an Act (which it would not be) and is not either a subordinate Instrument made by the Scottish Secretary and that there is some halfway house between the two, his proposition falls. I do not see that this halfway house exists under the Bill. If the noble Viscount thinks that it exists, then I should be indebted if he would demonstrate it by reference to some provision in the Bill which entitles this kind of Instrument to be made which is made not by the Scottish Secretary and does not fall under the general description of legislation, "Scottish Assembly Act" being the wording contained in paragraph 1(a).

My Lords, I was going to criticise the precise wording contained in the Amendment because I could not see how an Instrument could be within the legislative competence of the Assembly. I thought that that was not proper. I see now that it derives from the noble Viscount's understanding that there may be some halfway house between a Statutory Instrument made by the Scottish Secretary, on the one hand, and a Scottish Assembly Act. I cannot follow him in discovering that "creature". Accordingly, it is for that reason that I reject the Amendment. I believe that this is an unnecessary Amendment and one liable to cause confusion. I have sought and obtained advice from Parliamentary counsel of course and, in the circumstances, I would recommend the House not to accept this Amendment.

Viscount COLVILLE of CULROSS

My Lords, I sought to give the noble and learned Lord exactly the example for which he asked: the case of the draft order which was brought forward under the Affirmative Resolution procedure. One will not find such a thing in the Bill, because a system of that kind would be a matter that the Scottish Assembly would organise for themselves and it would be perfectly within their competence to do so as part of either their standing orders, or, I suppose, if necessary, by means of some Act to provide for it as we have at present in the United Kingdom.

The point is this: if the noble and learned Lord is absolutely satisfied—and he says he is—that there is no gap here and that the case either he gave or I gave by way of example is covered, then there is no need to pursue the matter. I do not want to put unnecessary words in the Bill which the Government do not approve and which will not add in any way to the coverage which we provide.

Since the noble and learned Lord is plainly convinced that we will be able to use the accelerated appeal procedure in either of the cases that have now been quoted, there is nothing further to go on, and I just hope that the courts interpret the legislation in the same way that he and I have done because unfortunately they are not allowed to look at Hansard.We hope that the drafting will stand up. I should like to thank the noble and learned Lord for the full explanation. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 173 not moved.]

5.32 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 174:

Page 79, line 19, at end insert—

(" Institution of proceedings

(18A) Without prejudice to any power exercisable apart from this paragraph, proceedings for the determination of a devolution issue may be instituted by the Attorney General for Northern Ireland and defended by any person who, as a Scottish Secretary or assistant to a Scottish Secretary, performs functions corresponding to those performed by a Law Officer of the Crown.").

The noble Viscount said: My Lords, this is a very short point and it is one which we raised before. The Government were good enough to say that they would look once more at that matter to see whether they would like to change their minds. It is almost entirely upon their own head if they do not do so, although some unfortunate citizen may possibly be disadvantaged. The proposition is simply this: if a point about the vires of a Scottish Assembly Act or the exercise of a power —whatever that may now be—by a Scottish Secretary is raised in the ordinary litigation, of course there is no very great difficulty and the Law Officers may intervene. They may also institute the proceedings themselves if they wish to do so even in advance of anybody else taking the point before the courts.

That is so in England and Wales and it is so in Scotland; but it is not so in Northern Ireland for one simple reason: that the Government have said so far that they cannot conceive of any situation arising whereby the Law Officers would wish to raise the question of the viresof Scottish legislation,et cetera—if I may put it that way—in a Northern Irish court.

I agree—and I think the noble and learned Lord argued this—that it is improbable; I do not think that it is going to happen very often in either English or Welsh courts so far as that goes. The fact of the matter is that the law in various parts of the United Kingdom is not exactly the same, and the law in Northern Ireland is not exactly the same as the law on this side of the Irish Sea. I can conceive that it is possible that an occasion will arise when the Law Officers will wish to pre-empt any further argument and take a point in front of the Northern Irish courts.

If they are not allowed to do that the expense is bound to fall upon the private citizen, if one can be found to be sufficiently concerned with the matter to raise it at all in the courts and to have the locus to raise it in the courts, or it will simply remain unresolved and the Government will not know where anyone is and will have no method of testing it. I cannot see what harm it would do to provide exactly the same provisions for the Northern Irish Attorney General as is provided for him in England; it is the same person. In Wales it is the same person, and it is the Lord Advocate in Scotland. That is all I am trying to do. I hope that the Government might round the circle and make this complete. I beg to move.

Lord HYLTON

My Lords, the kind of issue which my noble friend has in mind might arise in connection with the Stranraer to Larne ferry or in general with the commerce which goes on between Scotland and Northern Ireland.

Lord McCLUSKEY

My Lords, I do not think that anyone would dispute that there could be a situation in which a problem would arise involving a question of the competence of an instrument made under the Scotland Bill on the one hand, and some issue elsewhere in the United Kingdom relating to that. The proposed paragraph to this Schedule is concerned with the bringing of proceedings by the Government Minister. However, our argument has always been that it would not do any good to put this in; but we have to accept that it cannot do any harm and, rather than take up time in arguing, I propose to accept the Amendment.

Viscount COLVILLE of CULROSS

My Lords, for once the noble and learned Lord did not write and tell me that, so I am extremely grateful and surprised.

On Question, Amendment agreed to.

Lord McCLUSKEY moved Amendment No. 175:

Page 80, line 7, at end insert—

("Effect of decision of Judicial Committee on subsequent proceedings

. A decision of the Judicial Committee of the Privy Council in proceedings under this Schedule shall be binding in all subsequent legal proceedings.").

The noble and learned Lord said: I referred to this Amendment when dealing with earlier Amendments (I think Amendment No. 38 and others) and it is simply to make the decision of the Judicial Committee of the Privy Council binding in post Assent cases as well as—as we have already secured by the other Amendments—in pre Assent cases. I beg to move.

Viscount COLVILLE of CULROSS

Again, I should like to thank the Government. They have taken a great deal of trouble in meeting noble and learned Lords and myself and trying to produce an agreed solution to this matter. As the noble and learned Lord said, this is part of the overall solution which I am very happy to see now in the Bill.

Lord WEDDERBURN of CHARLTON

My Lords, perhaps my noble and learned friend has already dealt with this matter and, if he has, I apologise. But is it the intention of the Amendment that the Judicial Committee should always be bound by its own decisions? When the Appellate Committee of the House of Lords gave themselves permission in 1966 to depart from their own precedents, on reflection, I wonder whether there might not arise an occasion when the Judicial Committee of the Privy Council will wish to reconsider a precedent of their own, and the words "binding in all subsequent legal proceedings" appear to mean that the Judicial Committee bind themselves. I may be wrong in that and no doubt my noble and learned friend will tell me if that is so.

Lord McCLUSKEY

My Lords, my noble friend may recall that we debated this matter along with the other Amendments to which I have referred. The equivalent Amendment was No. 52 and that was to the effect that a decision of the Judicial Committee in pre assent proceedings was to be binding in all legal proceedings. I agree with him in the construction of this: it means that the Judicial Committee decision binds the Judicial Committee in future. Of course we know that the House of Lords have declared themselves unshackled by precedent; but in this particular context where the Judicial Committee have, either pre Assent or post Assent, considered a particular provision and declared that that provision of the Scottish Assembly Act is intra viresand therefore the provision can stand, we agreed after discussion with the noble and learned Viscount, Lord Dilhorne, and the noble Viscount, Lord Colville of Culross, that on balance this was a compromise that we could properly accept.

Those in favour of post assent review and preserving the rights of the citizen and the development of the law achieved most of what they wanted. There was a slight retreat from complete equivalence to what is done in the House of Lords and in ordinary proceedings, and that was enshrined in Amendments Nos. 52 and 175. It was justified on the basis that they were talking about validity of legislation which was to apply in Scotland and upon which people in Scotland should like to place reliance. That is the justification, but my noble friend's understanding of the provision is correct.

On Question, Amendment agreed to.

5.40 p.m.

Earl FERRERS moved Amendment No. 176: Before Clause 64, insert the following new clause:

Voting of Scottish Members of Parliament

(".—(1) Subject to subsection (2) of this section, if, following the first meeting of the Scottish Assembly, a Bill to which this section applies has been passed by the House of Commons but there would not have been a majority in support of the Bill if there had been excluded from the members who voted in the division of that House on the question that the Bill be read the Third time all those representing parliamentary constituencies in Scotland, that Bill shall be deemed not to have been read the Third time unless after the next fourteen days on which that House has sat after the division took place that House confirms its decision that the Bill be read the Third time.

(2) Subsection (I) of this section shall not come into operation unless it has been approved by a resolution of the House of Commons.

(3) This section applies to any Bill which does not relate to or concern Scotland or any part of Scotland.").

The noble Earl said: My Lords, the noble and learned Lord is evidently in an accommodating state of mind: he has met my noble friend over the last Amendment and he accepted the one before. I hope that this entente cordiale will continue and that he will feel disposed to accept my Amendment.

Your Lordships will recall that at the Committee stage my noble friend Lord Selkirk moved an Amendment standing not only in his name but in the names of the noble Lords, Lord Duncan Sandys, Lord Houghton of Sowerby and Lord Shinwell. That Amendment sought to meet the problem which has become known as "the West Lothian Question". After the passing of this Bill, as at present drafted, the domestic affairs of Scotland will be devolved to the Assembly and so will no longer be the direct responsibility of Members of Parliament at Westminster. Yet the domestic affairs of England and the remainder of the United Kingdom will still remain the responsibility of the Westminster Parliament and therefore will continue to be affected by the views and votes of Scottish Members of Parliament. So we get the curious, inequitable and, to some, intolerable situation that Scottish Members of Parliament, while not being able to control the domestic destinies of their own country, will be able to have an influence, and possibly have a controlling influence, over the domestic destinies of England, while the English Members, in turn, are denied the equivalent influence over the same matters when they affect Scotland.

This is a fundamental inequity, and indeed injustice, which this Bill has constructed. Whatever our views on devolution may be, I think it is universally recognised that this is an inequity. It has constantly been referred to, and yet the Government have made no attempt to resolve it. However, I feel that I owe the noble and learned Lord, Lord McCluskey, an apology because during the Committee stage when the Amendment to which I have referred was being discussed, the noble and learned Lord said that I called this a "blessed" Bill. I remonstrated and said that what I had called it was a "bizarre" Bill. However, the noble and learned Lord was, for once, quite right and I apologise for having corrected him. I feel I should add that, although I did call this a "bizarre" Bill, the record shows quite clearly that I also called it a "blessed" Bill—though I hasten to add not in the gracious sense to which the noble and learnd Lord was tempted to attribute it but more in a sense of frustration rather than of a beatification. Nevertheless, I unreservedly apologise for having been wrong on that occasion and having corrected the noble and learned Lord in that fashion.

At Committee stage the Amendment moved by my noble friend Lord Selkirk was considered defective, and I undertook to try to produce an Amendment which sought to meet not only the principle of the Amendment but also the objections to it. It is this Amendment which I venture to put before your Lordships today. I might say that it has been particularly difficult to draft, because the way in which the Bill is drawn up makes it almost, but fortunately not totally, un-amendable in this respect.

Perhaps I might explain what the Amendment does, why it does it, and why it does it in the fashion in which it does it. Your Lordships will be await that over all reserved matters such as the economy, taxation, foreign affairs and defence, to mention just a few, the United Kingdom Parliament at Westminster retains authority for all parts of the United Kingdom, including Scotland. Devolved matters such as education, health, transport and so on, as they effect Scotland, will be the responsibility of the Assembly and will be the subject of Assembly Bills. They will thus be outside the normal purview of Westminster because they will have been devolved. It follows that those same subjects, when they refer to England, Wales or Northern Ireland, will still be the responsibility of Westminster. This Amendment provides that where Bills do—and here I quote the words of the Amendment: not relate to or concern Scotland or any part of Scotland", a certain course of action should apply. When such a Bill is read a third time in another place, and if it receives a majority in favour of it but it is determined that without the intervention of those Members of Parliament representing Scottish constituencies the Bill would not have received a majority in favour of it, then the Bill shall be deemed not to have had a Third Reading unless another place confirms its decision by a second vote taken at least 14 days after the original vote. I hasten to add that there is nothing magic about 14 days. What the Amendment does, therefore, is simply to delay the Third Reading by 14 days and I suggest that the reasons for this course of action are good.

If the Scots, by their Assembly, are to determine their own affairs, I venture to suggest it is right that the English, the Welsh and the Northern Irish should determine their own affairs; but it is not right that they should be superior to the United Kingdom Parliament. If, for instance, the Amendment had said that where on the Third Reading of a Bill which did not relate to or concern Scotland at all, there was a majority of English, Welsh and Northern Irish Members of Parliament against it, then that Bill should be deemed not to have had a Third Reading at all, that would be putting the English, Welsh and Northern Irish Members of Parliament in a superior position as regards both the Assembly and the United Kingdom Parliament; because although certain matters are devolved to the Assembly, the United Kingdom Parliament has the right to override the Assembly. In the same way, the United Kingdom Parliament must have the right to overrule the views of the English, Welsh and Northern Irish Members of Parliament. This Amendment permits that.

Therefore, the effect of the Amendment is to provide that when a Bill which, for instance, may refer to education in England is read a third time and is voted upon, and if it is shown that although it may have a Parliamentary majority it would not have had that majority if the Scots Members of Parliament had not voted, and that the combined votes of the English, Welsh and Northern Irish Members of Parliament indicated that they did not want the Bill, then the Bill should have another vote 14 days later.

That delay of 14 days will he the effect of that vote. It will give time for people to think again; it will give time for the Whips to think again; it will give time for people to digest the effect of the Scots Members of Parliament. by their vote, imposing on England that which the English Members of Parliament, by their vote, have indicated that they do not want. It will give the Scottish Members of Parliament time to digest the impact both of their first vote and of their second vote which will follow. The second vote, 14 days later, will have all the force and authority of the United Kingdom Parliament. If in the second vote the Scottish Members of Parliament determine to vote in the same way and in a manner which imposes upon England that which the English Members of Parliament have indicated by their first vote that they do not want, then so be it. That is the just and right authority of the United Kingdom Members of Parliament acting with an equal vote as between one and the other.

In all the propositions which have been canvassed to get over this West Lothian question a host of difficulties has arisen. I do not seek to obscure those difficulties this evening but I venture to suggest that my Amendment meets most of them. It it agreed that you cannot have two classes of Members of Parliament, some who vote on some matters but not on others whilst some Members can vote on all of them. This is unacceptable to the principle that once elected a Member of Parliament shares an equal common voice and vote on all matters with fellow Members, irrespective of the constituency he represents. This Amendment does not make two classes of Members of Parliament; all Members will have an equal voice and vote and no one is debarred from voting.

To those who would say that this Amendment ensures that the Scots vote does not count, I would reply that it does not have that effect. The Scots Members of Parliament have votes precisely the same way on the second occasion as they did on the first, and their vote will have the full Parliamentary force. I have been acutely conscious, as I hope your Lordships would expect, of the precious convention which prevents one House from interfering with the procedures of another House. Oddly enough, this Amendment does not do that. Whilst it would be quite wrong and impertinent for your Lordships to seek to dictate to another place the procedures that it should follow, I respectfully suggest that there is nothing improper in your Lordships suggesting to another place a possible scheme for getting over a very real difficulty—a difficulty which was constantly expressed in another place and which their rules of procedure prevented them from rectifying but which our rules of procedure permit us to do—and then inviting another place to consider such a scheme and, if they think fit, to approve it or improve it for incorporation into an Act of Parliament.

The Amendment does not of itself alter the procedure of another place. Even if your Lordships' House and another place agree to this Amendment that fact will not alter the procedures of another place. The alterations which subsection (1) of this Amendment propose will only come into effect if, after the Bill becomes an Act, another place determines that they should come into effect. They will determine that by approving a resolution under subsection' (2). This is subject to approval by another place, and by another place only. If another place rejects such a resolution, even if this Amendment becomes part of the Act, the provisions of the Amendment will not take effect. The proceedings of another place will therefore, as they should be, be entirely in the hands of and the responsibility of another place.

It may be asked by some, "Who determines, under subsection (3), what Bills do not relate to or concern Scotland?". Some may feel that the Speaker would be the obvious choice; others may think that it should be the Government, or possibly a committee. This Amendment deliberately seeks to avoid making a suggestion. That is a matter strictly for another place, and if another place seeks to amend this Amendment to indicate their preference, that is a matter for them. It might be suggested by some that if the Scots are to be denied involvement in English affairs under this Amendment why should the Welsh and Northern Irish Members of Parliament be still entitled to be involved? The answer is that at the moment all affairs of the United Kingdom, in the ultimate, are the responsibility of Parliament at Westminster, where each Member of Parliament has an equal vote to that of his fellow Members and carries his share of corporate responsibility. It is only Scotland, after the passage of this Bill, which is to have the privilege of an Assembly with legislative powers, and when this Bill becomes law it will be to the Assembly and no longer to Westminster that the people of Scotland will look for the solution of their domestic affairs. It is, therefore, only reasonable that the domestic affairs of the remainder of the United Kingdom, where they refer only to the remainder of the United Kingdom, should be determined by the Parliamentary representatives of the remainder of the United Kingdom, subject, of course, to the overriding authority of Parliament. This is what this Amendment achieves.

I do not claim that in a perfect world this is a perfect solution, but I do suggest that it is a genuine attempt to seek to alleviate a real problem, a problem which was constantly recognised in another place and which the Government must, in their heart of hearts, acknowledge even if they publicly and constantly refuse to admit it. If there is a fault, I venture to suggest that it is not with the Amendment that the fault lies but with the Bill. It is the Bill which has produced this inequity which everyone sees, which most people acknowledge but which up to now has remained unresolved. There are those who feel that if such an inequity is left unresolved the long term consequences can be very serious. This Amendment seeks in the best way possible to find a solution to this problem. I venture to suggest that it is a satisfactory route out of a minefield of difficulties. Much better if the minefield were not there, and, if it were, that Parliament had not been placed in the middle of it. But it is there and we are in the middle of it. This is what the Government by this Bill have done.

I would suggest that it is better for us to get out of the difficulty by a carefully mapped route rather than to sit in the middle and wait for the fireworks to start up. I hope that the state of euphoria which, despite the Scotland Bill, must have surrounded the noble and learned Lord, Lord McCluskey, on his birthday yesterday will not yet have subsided and that on reflection he will see the wisdom of accepting this solution. I beg to move.

The Earl of PERTH

My Lords, before the noble Earl sits down, I wonder if I could ask one question. I think he said that Scotland alone would have legislative powers. Did not Northern Ireland until recently have legislative powers as well?

Earl FERRERS

My Lords, yes, but it has not now.

5.58 p.m.

Lord RAGLAN

My Lords, we have been over some of this ground before. Your Lordships will remember that the same problem arose in respect of Stormont. The solution that was operating for a long time I thought was an extremely unsatisfactory one; it was to reduce the number of representatives from Northern Ireland. The same solution, or a similar kind of solution, was proposed earlier in Committee in your Lordships' House and I spoke and voted against the reduction of the number of representatives from Scotland because I do not think that that is the right or relevant way of tackling the problem. I put my name to this Amendment although I do not think it has got it quite right. I think that it should include also Peers from Scotland, as their votes would continue to have influence on policy and legislation in England in respect of those matters which have been devolved to the Scottish Parliament. I am sure that noble Lords from Scotland would think that fair, and this would allay some of the anxieties to which the noble Earl, Lord Ferrers, alluded earlier. The votes of Peers are not as important in their effect upon legislation as those of elected Members but I think that what is right in the Lower House should, where relevant, apply in the Upper House. If your Lordships accept this Amendment, perhaps the other place will make an appropriate adjustment to it.

I believe that, within the constraints of the system, the House of Commons did magnificent work on this Bill. But, despite the eloquent efforts of my honourable friend Mr. Tam Dalyell, after whom the problem is named, the anomaly which this Amendment seeks to correct somehow was not attended to. I am not an expert on the Constitution, or on the workings of the Scottish Office, though I have been learning a lot, and my noble and learned friend on the Front Bench will correct me if I have not got it quite right, but I believe the situation now to be that, although many things are devolved to the Scottish Office—and there are many more things than a lot of people realize—they are matters which can be squeezed in under the heading of Administration. However, when it comes to the making of policy, the United Kingdom is still treated as if it were a United Kingdom, and Members of the Westminster Parliament, wherever they come from, have a hand in the forming of policy. When policy is translated into law, the Members of the Westminster Parliament have the right to vote on that law.

There is, at present, a convention, which was alluded to by my noble friend Lord Hughes on Second Reading, that when the United Kingdom policy is translated into Scottish law, to take account of Scotland's different legal system and jargon, the Scottish law in its application does not differ in too great a respect from the English law; and, moreover, all Members of Parliament also have a right to vote on that Scottish law. As the noble Earl said, this Bill changes that. First, it changes the responsibility of representatives to Westminster from Scotland with respect to all devolved matters; and, secondly, it alters the right or competence of representatives from England to vote on, or probably even to discuss, matters devolved to the Assembly. One must pity the Scottish Member of Parliament. He is to be kept out of things in Scotland, and is to be told to go away and play in England. In turn, Members from England are expected to welcome him, although they have no reciprocal rights on matters devolved to Scotland.

I believe that this will not work, even allowing for the, as I see it, mixture of paternalism and condescension with which London is wont to deal with a Scottish question. Furthermore, I do not see why it should he expected to work. It is obviously unfair and undemocratic, and if we are to pass this Bill it is best to recognise the position which it would create. We should deal with it realistically, without pretending that the anomaly is not there, and make provision as well as possible to meet the situation when it arrives, as it surely will. Some people do not think that this Amendment will do the job that it is intended to do. They would prefer the Amendment moved in Committee by the noble Earl, Lord Selkirk, which I also supported. However, I have been persuaded that this approach may provide a better way of dealing with a potentially explosive situation, and I hope that it commends itself to your Lordships.

Baroness BACON

My Lords, this is the first time that I have intervened during the passage of this Bill, and I must confess that I am not one of its most enthusiastic supporters. But I have taken the point of view that the Bill is with us and that we have to make it the best possible Bill, so that the Scots can have their referendum and decide what they want to do. I am not against some form of devolution for Scotland, but where I think we have made a mistake is in dealing with Scotland and Wales in isolation from the rest of the United Kingdom. I believe that it would have been much better if we had had some form of regionalisation for the whole of the United Kingdom. As a good Yorkshirewoman, I must say that in Yorkshire and Humberside—and the same is true of the North of England and of the conurbation of the North-West—they feel that they are equally important as Wales, and indeed as much entities as Wales, and there is something in that.

The effect of dealing with parts of the United Kingdom, and not the whole of the United Kingdom, is that we have the anomaly which this Amendment seeks to rectify. It is that Scottish MPs will have no say in, for instance, what happens to education in Scotland, but they will have a say in what happens to education in Yorkshire. As I say, this Amendment seeks to remedy the position, but I believe that it is an inept and rather clumsy Amendment, and I do not think that it will do what the supporters think it will.

For instance, there are the 14 days which the noble Earl mentioned. So far as I can see, all this Amendment does is to say that there will be one vote on the Third Reading in another place, and a fortnight later there will be another vote on the Third Reading, the hope being, I suppose, that by some magic between those two dates the Members of Parliament who come from Scotland will have a change of heart, and decide that they will not exercise the right which they have by law to vote on that Bill. I have spent a long time in another place, and I must say that I have never found Scottish Members of Parliament as accommodating as that. So I do not see what this Amendment will do. I think that we shall have two votes, with a 14-day interval in between, and precisely the same people will vote for exactly the same thing.

There are two reasons why I feel that I cannot support this Amendment. One is that I think it is clumsy and inept and will make no difference; the other is the relationship between this House and another place. The noble Earl said that we are not telling another place what to do. There is a fine distinction here between what he said and this Amendment. I know that this Amendment states that there shall be a Resolution of the House of Commons before this comes into effect. But we are, in fact, suggesting to another place that they should take this line.

My noble friend Lord Raglan mentioned this House, and I feel that it ill becomes us to suggest what another place should do about voting in their House, when we are doing nothing about those Members of this House who happen to come from Scotland. We are apparently going to leave every Scottish Member of this House to vote on everything in England, while suggesting to another place that the Scottish Members there should not vote on those matters which are solely concerned with England.

Let me repeat that I have a good deal of sympathy with what is at the back of this Amendment, because I feel that there is an anomaly here. But I cannot agree to vote for this Amendment because I do not believe that it at all deals with the anomaly. I think that it will be unsuccessful, and when we are not prepared to take any steps about your Lordships' House, I do not believe that we should be telling another place what to do.

6.9 p.m.

Lord HOUGHTON of SOWERBY

My Lords, I shall support this Amendment. I believe that it is the least objectionable remedy for an almost insoluble problem. I think that the only alternative to this Amendment would be to leave it to the good sense of Scottish Members of another place to decide their own course of action, having regard to all the circumstances of the matter, and it may be that it will come to that in the end.

This is not a new problem. It was discussed in connection with the Irish Home Rule Bills towards the end of the last century. I was at the Round Table Conference over 20 years ago on the future constitution of Malta. There we discussed the matter at great length and proposed the integration, believe it or not, of Malta with Britain and the representation at Westminster of Malta on conditions similar to those which obtained for Northern Ireland. We found no solution then to the problem. Of course, we have had the full participation in the other place of the Members for Northern Ireland in all matters relating to the Westminster Parliament.

Probably the difference between the past and this Bill is the size of the representation from Scotland compared with the size of representation from other parts of the United Kingdom where similar conditions would apply. When I sat on the Royal Commission on the Constitution, I supported the retention by Scotland of its disproportionately favourable representation at Westminster, on the ground that Scotland was a minority part of the United Kingdom and, because of her minority position, was entitled to have rather more than average representation at Westminster. It is not easy to argue that logically, perhaps, but it seemed to me to be undesirable to attempt to cut down the representation of Scotland at Westminster as part of the arrangement for devolution to an Assembly in Scotland. Therefore, I was in favour of Scotland retaining its present favourable representation at Westminster. If Scotland is to retain its present favourable representation at Westminster, what Scottish Members of Parliament do at Westminster becomes even more important, because they will be using disproportionate Parliamentary strength on matters which may relate exclusively to England.

My noble friend Lady Bacon has just spoken, and I was very interested in what she had to say. So far as this House is concerned, some of us are hoping that it will be reformed, while others are perhaps fearing that it may be abolished. Perhaps it would be wise to proceed on the assumption that this House will not remain composed as it is indefinitely, and that when that time comes there will be an opportunity to deal with the matter in relation to this House. However, I do not believe that to leave the matter as it is will for very long be either satisfactory or tolerable to the people of England.

One of the advantages of this Amendment is that if the House of Commons so determines, it may draw attention to the fact that a particular Bill was given its Third Reading by the weight of Scottish Members of Parliament which it would not otherwise have had. There is perhaps some virtue in drawing particular attention to a situation and giving another place a reasonable period in which to reconsider the action already taken; otherwise the fact that a Bill may be passed by the House of Commons because of the weight of the votes cast by Scottish Members of Parliament may go unnoticed—unless there is a row about it, unless there is some objection by the people of England to the determination of the law of England by the weight of Scottish representation at Westminster.

I think that it would be damaging indeed if there were no remedy in our Parliamentary system for the cry that would go up that Parliament was unrepresentative when deciding matters affecting England and, therefore, that respect for Parliamentary decisions was not justified. There are already sufficient challenges to the unrepresentativeness of Parliament as it is, and I think that it would be a mistake to add to the indictment against Parliament that it fails to be representative of public opinion.

There are matters of acute controversy upon which feelings go very deep indeed and upon which the weight of Scottish representation might determine the law of England. The action of the Scottish Members of Parliament in such circumstances may be designed to stop something happening in England which they do not want to happen in Scotland. One can speculate upon the motives which may govern the action of Scottish Members of Parliament at Westminster in deciding, as they would, to vote one way or another on matters affecting England. These are serious difficulties. The dismemberment of the body politic is a messy business, and there is no getting away from it. All of the matters relating to what is to be devolved, wholly or partially, and to the retention of the supremacy of the Westminster Parliament are complicated and provide difficulties.

Of course, the essential difference between what we are doing in this Bill and other federal Constitutions is that federal Constitutions have mostly come about by the yielding up of power to the centre—not the other way round. That is certainly the case in the United States. It is certainly the cast in Canada that the decision was taken to yield up to the centre those powers which it seemed to be desirable and even necessary to exercise on behalf of the federation or the federal body as a whole. We, on the other hand, are devolving from the centre, and our situation is completely different, both historically and constitutionally.

Constitutionally, all power in this country is vested in the Crown. It is from the Crown that all power devolves. The history of Parliament was the struggle to wrest power from the hands of the Crown and to establish the right of Parliament to advise the Crown in a constitutional and at the same time democratic way. Therefore, we are constantly devolving power. Whether it is the Royal Prerogative or anything else, all power is devolved from the centre to the periphery. This is bound to give rise to an extremely difficult problem of amputation and to these many difficulties. Quite understandably, central power desires to retain a fairly high degree of central control, and that is quite different from the yielding up of power from the periphery.

I see no other way of dealing with this problem in a way which would be satisfactory or acceptable to Parliament, and that is why this is the best that can be made, so far as I can tell, of this difficult problem. As the noble Earl pointed out in moving so ably this Amendment, this Amendment does no more, however much more we should like to do, than say to another place, Pause. Look at what you have done. This matter may evoke strong objection from the people of England, and we do not want to recreate antagonism between England and Scotland by the thoughtless action of Scottish Members of Parliament at Westminster". So this Amendment says, "Pause; think again. Decide whether you wish to pass the Bill in this way, even though it is not acceptable to the people of England and, in some cases, the people of England and Wales".

Therefore, I support the Amendment, because I have nothing to put in its place. There has been much correspondence, I may say, between various interests in this country and the Lord President of the Council—I have a bundle of it in my hand at present—in an endeavour to resolve problems, admittedly of an acute and controversial nature, having regard to the overriding power which, in certain circumstances, Scottish Members of Parliament might exercise. I find no other way. Therefore I support the Amendment.

6.20 p.m.

Lord SHINWELL

My Lords, my name was included on the original Amendment that has been modified, but it has now been excluded, about which I make no complaint whatever. Indeed, there is an advantage: the Amendment might be carried and the Government defeated, and if I were included as one of the sponsors that would not be to my advantage; therefore it is just as well that I am not one of the sponsors. However, if at the end of the debate there is a Division I shall vote for the Amendment—not that the Amendment is really any good. Neither was the original one because in point of fact we are on the horns of a dilemma and undoubtedly we are already impaled on both.

Various solutions to this intricate and difficult problem have been suggested. One of my noble friends, Lady Bacon, said "Do not deal with it at all. Leave it to the other people. It is not our business". That is not a solution to the problem; that is passing the buck. So we need not say any more about that.

Baroness BACON

My Lords, I did not say that.

Lord SHINWELL

My Lords, the other possible solution is the one suggested by my noble friend Lord Houghton of Sowerby, who said that he supports the Amendment because we should leave it to the Scots to fight it out when it goes to the House of Commons. That is precisely the problem; that is what it is all about.

We had better start at the beginning. That is always the right place to start. What is the proposition contained in the Bill? It is a simple one: there is to be an Assembly. That is an assumption which we all hope will he fulfilled, although we are somewhat doubtful about their functions when the creation occurs. After a period of between six months and 12 months that Assembly will have to face up to a proposed Speaker's Conference, decided upon by the Prime Minister of the day. That is not a political allusion, by the way. I just say "of the day" in passing. One never can tell who is likely to have to face the problem. So there will be an attempt to promote a Speaker's Conference, and a number of Members will be appointed by the Speaker, perhaps after consultation with the Prime Minister, as Members of that Speaker's Conference. There will be a reasonable balance of Members representing all Parties, but one section of course will be excluded—the people who are perhaps more interested than any others, the Members who are elected to the Scottish Assembly. They will be completely excluded because that is in the Bill. It comes in, in an ambiguous and equivocal kind of way in the Amendment, but we will come to that later if there is time.

Meanwhile the Scottish Members appointed in Scotland to attend the Assembly will be excluded. It is important to take note of that because they are intensely interested in the work in competition against the proposed Scottish Members elected to go to Westminster. Whether we like it or not—and we can argue about it until we are blue in the face, and so can the other place—the fact that those Members who are elected (and numbers do not matter very much; it might be 60, 63, or 71, which is the present number), simply because they have been elected by their Scottish constituents, will be intensely interested in Scottish affairs. How can one prevent it? It is quite impossible. Those who are elected to the Assembly will be there also, both sections dealing with Scottish affairs, whether they are devolved or reserved—in the case of the Scottish Assembly Members, dealing with devolved questions, the others dealing with reserved questions.

If a person represents a particular constituency when elected to go to Westminster, can that person ignore the demands of his constituents, the letters he receives from day to day, the questions he will be asked and the demands that will be nude upon him? It would be nonsense to expect that. There will be intense rivalry and, obviously, to exclude the Members who are elected to go to the Scottish Assembly from engaging in consultation and discussion with both the English Members and the Scottish Members elected to Westminster would simply mean a great deal of trouble.

The purpose of the Amendment is to deal with Scottish Members elected to go to Westminster not voting. Why should they refuse to vote? Because there may be a proposition coming all the way from Scotland and suggested by the Members who are elected to the Scottish Assembly that, instead of the 71 Members, there should be only 50, or perhaps 40, and no more than are elected to go to the Scottish Assembly. That is why there will be trouble in another place, because those who want the same representation, say 71, will continually demand it and it must not be forgotten that they will already have been elected as Members. If there is no other election before then they will still be Members from Scottish constituencies. That is what is called the West Lothian question. By the way, I have some qualifications for talking about this matter because many long years ago I was myself a Member of the West Lothian.

What is the solution? The plain fact of the matter is that there is not any solution, so why do we not face it? There is no solution in the Government's proposition because that will cause the trouble. There is no solution in the Amendment, and indeed the noble Earl, Lord Ferrers, recognised that. He made a most elegant speech but he himself created more problems. My noble friend Lord Houghton of Sowerby created more problems, too, and my noble friend Lady Bacon created some problems. My noble friend Lord Raglan did not speak for very long so he avoided creating problems.

Why should we support the Amendment? I will tell your Lordships why. You may regard me as sinister, almost mischievous, Machiavellian. Call me what you like; I can provide you with any number of adjectives. Support the Amendment and—I use the term that was suggested by the noble Baroness, Lady Bacon—pass the buck. Pass it back to them; let them fight it out. The Bill is a had Bill; it was a bad Bill from the start, full of complications. I think that even my noble and learned friend the Solicitor-General for Scotland will agree to that. It was full of complications. Look at the vast number of Amendments that have been tabled. Of course, the other place disposed of the Amendments by imposing the guillotine. We did not do that.

Here we have a proliferation of Amendments creating more problems. The fact of the matter is that there can be no solution of the problem as long as there are two sets of Scottish Members. I happen to know Scotland, and I know the kind of jealousies, animosities, hostilities, quarrels and envious activities that will emerge as a result of having the two sets. For example, if you have in a particular constituency one Member elected to the Scottish Assembly in Edinburgh and the other, elected by a similar constituency, going to Westminster, what do you think is going to happen when they meet? Are they not going to argue about it? Are they not going to confront each other with different ideas and different concepts as to what should happen either at Westminster or Edinburgh? Of course they are. That is the trouble about this Bill.

My Lords, when we had our Second Reading I ventured to say—and I hope your Lordships will forgive me for repeating myself—that, of course, there should be some measure of devolution. There was a demand made for that when I myself was elected for the first time, indeed before I was elected. In 1918 it was in our Election Addresses: Scottish Home Rule—nothing to do with separation, nothing to do with independence; it was about employment and impoverishment and slums and not getting enough money from Westminster. That is what it was all about. There was no Marxism in it either, nothing of that sort. I ventured to say, in the course of the Second Reading, that of course some measure of autonomy is essential; but it depends on the content, on the form of it, on the attitude of mind. This is what is required. We are not going to have it.

So I suggest we pass the Amendment for the sole purpose of sending it back to the House of Commons. That is what we should do. They never discussed the matter adequately. Give them an opportunity of doing it. I wish I could say otherwise but I cannot, despite all the eloquence we have heard from my noble friends, my notable colleagues, and there will be a great deal more of it. At the end of the day neither shall we discover in the Government's proposition a solution. I do not regard that as a complaint against them. It so happens that they could not find a solution; they created a proposition instead of finding a solution. It was a natural course of events. If that is the situation, surely the best course of action is to pass it back and say, "There is an Amendment; make the best of it or the worst of it", and see what happens.

6.43 p.m.

Lord DUNCAN-SANDYS

My Lords, I do not propose to take up all the stimulating points raised by the noble Lord, Lord Shinwell. All I wish to do is very briefly to express my wholehearted support for the Amendment which is before us. I was in fact one of the sponsors of an earlier Amendment which was put forward by my noble friend Lord Selkirk and which was withdrawn. I regard this Amendment as a second best, but nonetheless I whole-heartedly support this Amendment.

It would, I think, be a constitutional nonsense for the people of Scotland to be given the right to take decisions on their own in respect of Scotland while retaining the right to exercise possibly a decisive vote on similar matters affecting only England. It would not only be an absurdity; it would be a totally indefensible injustice. As I have said, I should have preferred the much simpler Amendment proposed by my noble friend, which would have provided that Scottish Members of another place should not be entitled to vote on matters which have been devolved to Scotland, but, as explained by the noble Lord, Lord Houghton of Sowerby, this Amendment would, when the situation occurs, clearly draw the attention of this House to the fact that a Bill sent to us from another place affecting only England did not command the support of a majority of the representatives of English constituencies. I will not go so far as to say that in all such cases your Lordships' House should feel that it had a constitutional duty to protect the people of England against unwarranted interference from across the Border, but this Amendment would undoubtedly make this House feel much freer than usual to reject such a Bill if it wished to do so; and for that reason I wholeheartedly support this Amendment.

Lord GLENKINGLAS

My Lords, I think perhaps it might be a good thing for one Scotsman, at least, to speak on this. I should like to say to my noble friend that I entirely support his Amendment but, like the noble Lord, Lord Shinwell, I do not believe for a moment it will work. All the experience I have had of the other place tells me that it does not really matter whether you wait two weeks, three weeks or two months. If the Chief Whip says to his Members, "You will vote", there are jolly few of them who will change their mind. I have at least some experience of it. But I agree that this is morally right. I think it is a good thing that we should pass an Amendment of this sort, making it quite clear that not only the English but also the Scottish Members of the House of Lords would feel embarrassed at having an advantage, which would be quite clear, over the English Members in another place.

The Earl of PERTH

My Lords, the more I listen to the debate this evening the more I am clear that the only proper solution of this problem is the federal solution. All of these problems of unfairness or difficulties of one kind or another would disappear if we had a federal solution. It might almost be said that if these anomalies and unfairnesses and difficulties remain, it might ultimately accelerate the move to a federal solution, which I believe is the right one. To that extent I am not entirely sure that the very ingenious proposal put forward by the noble Earl, Lord Ferrers, should go through—and it is a very ingenious solution.

It also creates many difficulties. I do not know whether anybody has given thought to how often this particular method of delay might occur in Bills in the other place. Would it be once a month, once a week? The whole legislative programme could be very seriously affected, and it might be a very tiresome thing for anybody who is trying to run the business in another place. However, perhaps that is for them to think about. But it is not necessarily something which will make for easier work. We all know how short of legislative time the other place is.

The noble Lord, Lord Houghton of Sowerby, recalled the days when he was on the round table conference for Malta. I was with him, and we debated this at great length, We decided that we could not make Maltese Members of Parliament any different from any other, and that, I think, on the whole was probably a question of size. I wonder where does size bite? What happens if, as I hope and we all probably hope, in a short while Northern Ireland is given back Stormont and its own legislative powers. Would we propose at that time that the M.P.s of Northern Ireland should be in the same position as Scots ones? The other place is going to become rather a funny place, with various Members being able to vote but having all sorts of pressures put on them not to exercise their votes under certain conditions.

I think that we should consider for a moment what that means. It is potentially a recipe for ill-feeling between England and Scotland. I know the risk the other way round, but I assume that its aim would be to put pressure on the Scottish MPs not to do what they consider is their duty. If I know anything of my fellow Scots, the more the pressure the more they will be obstinate and stick to what they think is right. Therefore, much as I find it by far the best solution that we have had to deal with the West Lothian problem, I feel, along with the noble Lord, Lord Shinwell, that it is not really any good; and if it does not do any good then we should not go for the Amendment.

Lord WEDDERBURN of CHARLTON

My Lords, I should like to follow the noble Earl, Lord Perth. I have many objections to the Amendment but I shall address myself to only one. In my submission the insoluble problems that have been described are not solved by the Amendment even within its own logic. It is ingenious, but it is not good enough. Legislation is only as strong as its weakest link. In this clause the weak link is surely the definition issue—that is to say, who is to decide, and how, whether a Bill relates or concerns Scotland or any part of Scotland.

The noble Earl who moved the Amendment dealt with that matter in a particular way. Of course, it is a phrase which is so replete with the possibilities of ambiguity and lawyers' argument that it would make the antennae of any good clerk of a barrister quiver in anticipation of the fees to be earned. However, as I understood the noble Earl, it is not in his view to be a justiciable issue before any court. The definition issue is not to go to a court. I shall pause for a moment on that point. I understand why that is so. To make it a justiciable issue before a court would, indeed, make the powers and procedures of the other place subject to judicial decision in a wholly novel way which would, indeed, invade its privilege.

Of course, the consequence for the noble Earl that the matter is not to be justiciable is that the symmetry of his argument is upset. A devolution isssue, in many instances at least, will be decided by the Judicial Committee of the Privy Council in regard to Assembly Bills. The definition issue under this Amendment, or this clause as the noble Earl would have it, would not be dealt with by a court, for very good reason. By whom, then, would it be decided? As I understood him, the noble Earl suggested that the definition issue would be for the other place to deal with. He made three suggestions; namely, that it might be decided by the Speaker; that it might be decided through a Committee; or that it might be for the Government to decide.

There are, of course, many other possibilities of machinery that the other place might wish to adapt to the problem of the definition issue. However, whichever machinery the other place devise the matter could always be one which ultimately came to the Floor of the other place. There could be a challenge to a decision of a Committee; the Government's view could be challenged, and as I apprehend it, even a decision of the Speaker could be challenged on the Floor. In that case the noble Earl faces the following problem: are Scottish Members to have a vote on the definition issue? If they are not, what procedure is to be devised? If he has a special procedure for that, who is to decide when to use it and are Scottish Members to have a vote on that? In my submission the noble Earl is in a position of infinite regression and the sands shift below him because he has not given us the missing link in the clause.

Moreover, because there is a missing link, in my submission the Amendment could cause very bad feeling in the other place. In fact, the noble Lord, Lord Houghton of Sowerby, suggested that in the end it will all depend on the good sense of Scottish Members; and because there is no answer to the definition issue in this Amendment the matter will depend on the good sense of Scottish Members in deciding whether it relates to or concerns any part of Scotland. So if that is the end of the road, why not leave it to the good sense of Scottish Members in the other place, without the Amendment?

Lord BANKS

My Lords, I should like to make a brief comment and in doing so say that I agree wholeheartedly with what was said by the noble Baroness, Lady Bacon, who regretted the fact that we were not attempting to deal with the problem for the United Kingdom as a whole, that we were not producing a scheme of devolution which would cover the United Kingdom as a whole, but that we were, in fact, trying to deal with Scotland and Wales on their own, leaving or causing this problem which we are discussing this afternoon.

I certainly see a problem, but, as the noble Earl, Lord Perth, has said, the solution lies in a devolution scheme or a federal system for the whole of the United Kingdom, and we delude ourselves if we suppose that we can solve the problem along the lines of this Amendment. The problem will be most acute when there is a Government in power which depends on a majority of Scottish Members in order to get their own majority. When in such a situation, it is, in my view, rather far-fetched to suppose that having another vote a fortnight later will make any difference to the way in which Members vote.

The noble Lord, Lord Shinwell, spoke about the pressures which are on Members, the pressures to support their own particular political point of view and the pressure of those who sent them to Parliament to do so. It is difficult to see them changing their point of view within 14 days. Therefore this procedure would not, in my view, make any difference at all, but it might delude us at this time into thinking that we had solved the problem when in fact we had not. It is much better to face the fact that as yet we have not had before us a solution and perhaps we should look along the lines of an extension of devolution for the whole of the United Kingdom as the way in which the problem can eventually be solved.

6.47 p.m.

Lord SEFTON of GARSTON

My Lords, I feel that as a new Member of the House of Lords I may well step outside the boundaries within which I should confine myself when discussing this Amendment. If I do so, I hope that your Lordships will forgive me. I did not prepare a speech as I did not originally intend to speak. However, I have been rather encouraged to speak by remarks that have been made in the debate, one of which concerned real power and the other that the movers of the Amendment seem to believe that there is credibility in the idea that domestic matters can, in fact, be discussed and resolved properly on the basis of devolution to Scotland, Wales or England. I wish to dispute that completely.

I do not believe that it is possible in a tight island such as ours to divide Government into areas based upon land boundaries. First, I believe that we should pose the question to those who want devolution for Wales or Scotland: where is Wales; where is Scotland; where does Wales begin and England finish? I should like to give an example to demonstrate what I think are the weaknesses of the whole devolution Bill to which I am utterly opposed. One could say that the strategic land use plan for an area such as Merseyside would be a domestic matter. However, is anyone in this House or elsewhere prepared to say that the domestic problems of planning a region like Merseyside could be solved without taking into consideration the whole of North Wales, of which Merseyside is a part? It is quite evident that one could not plan the transportation system, the hospital system, the water system or any other economic organisation that is spread over boundaries in that part of the world without some very close cooperation between the people who live in Wales and the people who live on Merseyside.

I believe that this Amendment enshrines that idea. While my heart is with it, my reason tells me that it should be turned down. If once we subscribe to the point of view that devolution is the answer to the discontent that has been felt in the United Kingdom long before Plaid Cymru or the Scottish National Party ever came into existence, we are sadly mistaken. The discontent that was felt inside local government circles in the United Kingdom has been felt for over half a century, and there is a great need for the decentralisation of the power-making machines in this country.

While the other place and this Chamber continue to debate the question as to whether or not we are devolving power to people in the localities, all the while real power, which was referred to by a noble Lord, is slipping out of the hands of the democratically-elected bodies of this country. It slips out because someone has proposed the idea that real economic power can be devolved to people on the basis of land boundaries that do not represent the economic region over which the elected representatives are supposed to have some control. Even the debate on Wales led to a situation where a serious report was produced which showed that because of the inability of a Welsh Assembly to control the electricity industry, what would be required was the removal of the autonomy of the already appointed regional boards which should be placed in the hands of a central electricity council. Will that central electricity council be responsible to an elected body or will it—as we all know—be responsible for perhaps one day's debate in the House of Commons during a year, and responsible to a Secretary of State?

Is that the devolution of real power? The noble Lord said that real power rested in the Parliamentary institutions and the Monarchy of this country. It may, by tradition. But real power rests in the hands of those who administer our economy, whether they are the State boards or private companies; that is where the power will be determined and that is the power that will decide the standard of living of our people. It is in that field that any devolution of power should be concentrated.

Lord KINNAIRD

My Lords, may I interrupt the noble Lord?

Several noble Lords: No!

Lord SEFTON of GARSTON

My Lords, I was about to conclude with this point, and I am sorry if I have offended any noble Lords. The North West Economic Planning Council, of which I am proud to be the chairman, took a decision that it would be opposed to the devolution proposals because it would lead to the disintegration of the United Kingdom. It did that because once we step along the slippery path of saying to a certain land area of the United Kingdom that there is a solution to its problems in devolution, that area will begin to believe it and will absorb the idea that if at the first attempt of devolution its discontent is not satisfied and it does not appear to have obtained the power that it requires—and it will not—the demand will not be to go back, but will be for more devolution. That is the path which the United Kingdom has, in fact, set itself to tread with the devolution power.

A previous noble Lord who spoke said that there is no real solution. There is a real solution; it is that we should forget the boundaries that are thrown up by some people to divide us and that we should all go into the referendum in order to ensure that the Scotland Bill is thrown out lock, stock and barrel; we should not try to amend a Bill that is a positively bad Bill.

Lord HOME of the HIRSEL

My Lords, the House will be filled with admiration for the noble Lord, Lord Sefton of Garston, who has chosen to make his maiden speech in the middle of this very complex and difficult Scottish Bill. We listened with great interest to what he had to say and shall look forward to other contributions from him at other times. I congratulate the noble Lord on his maiden speech.

As my noble friend indicated when he introduced this new clause, the language of it is tortuous. I am bound to say that I should find it extremely difficult to vote for it were it not for the fact that no one has been able to devise anything better or anything simpler. If this Amendment goes to another place, that may come in time, but nothing simpler or better has yet emerged.

However, I return again and again to the speech of the noble Lord, Lord Houghton of Sowerby. Unless some Amendment of this kind goes into the Bill, friction between England and Scotland is a certainty, and it will happen very often. Therefore, I think that there is an obligation on this House to put something into the Bill which another place can consider and amend if it likes; but something ought to go into the Bill, either from this House or from another place.

Therefore, although I think that the Amendment is open to some of the doubts expressed by the noble Earl, Lord Perth, it would be very serious indeed if nothing were put into the Bill. It would simply be a recipe for continual friction between England and Scotland. Accordingly, I support the Amendment moved by my noble friend.

Lord WIGG

My Lords, before the noble Lord sits down, will he be good enough to address himself to this point? Earlier on in the debates on the Bill some of us made an attempt to face this problem and to do so in terms which were clearly recognisable; that is to say, to reduce the actual number of Scottish Members of Parliament in another place. As my noble friend Lord Houghton of Sowerby said, that was a signal to another place that once we start tinkering around with authority, the question of the representation of Scotland at Westminster is bound ultimately to arise—it will arise sooner or later.

It seems to me that the noble Lord, Lord Home, is rather less than fair in saying that this is the only alternative. It may be that it is an alternative that does not draw blood, but our attempt at an earlier stage was to do the same thing. I wonder whether the noble Lord will be kind enough to say why he rejects that concept.

Lord HOME of the HIRSEL

My Lords, I do not think that I should because this is the Report stage. However, the noble Lord has asked me a question so perhaps I may reply. I thought that his earlier Amendment modified the West Lothian difficulty, but did not remove it.

Lord MORRIS of BORTH-Y-GEST

My Lords, may I in a sentence or two, and I hope with the utmost brevity, state why I have very considerable misgivings about this Amendment. Ever since I had the honour of becoming a Member of your Lordships' House—and I can assure your Lordships that I do regard it as an honour—I have always felt that if an Amendment was proposed, I ought to consider—and I speak only for myself—whether I think the Amendment will improve the Bill and whether it is right for the Amendment to go into the Bill. I cannot believe that it would be right for this Amendment to become a part of the Act.

I thought that the noble Lord, Lord Houghton of Sowerby, whose speeches I always much enjoy—they are always so persuasive—was really saying, "Well, pass this Amendment and you pass the matter to another place and you will be able to tell them that there is a problem called the West Lothian problem". Do we really need to pass an Amendment and send it to another place in order to inform that other place that there is a problem—and, of course, there is a problem—to which they ought to direct their attention? Surely they can take the matter up without the spur of the passing of this Amendment.

I respectfully believe that we ought not to pass the Amendment unless we think it is right. I, myself, am reluctant to appear to be interfering in the affairs of another House. But apart from all those other matters I find my views coinciding very largely with those expressed by the noble Baroness, Lady Bacon. What does this Amendment propose? It proposes that a Bill passed by the votes of Scottish Members should be deemed not to have been passed, but some days later they can all vote again and the Bill will be passed. If it is wrong for the Bill to be passed with the voting of some Scottish Members, surely it is wrong at the end of 10 days just as it was at the start. I recognise that there are points here to be considered but, with the best will in the world, I cannot think that it would be helpful to pass this Amendment.

7.1 p.m.

Lord ELLENBOROUGH

My Lords, I should like to support this Amendment because I am sure that it will bring home to another place and to the electorate as a whole the hopelessly difficult, if not ludicrous, problem arising from what has become known as the West Lothian anomaly which is highlighted by this Amendment. Many noble Lords, including myself, feel that an appropriate reduction in Scottish representation at Westminster is inevitable—if, and when, an Assembly is set up—bringing Scotland into line with the rest of the United Kingdom. That may be the best way, but certainly I think that this Amendment will help.

There was an article in The Scotsman only last week entitled "Let us be fair", which makes it quite clear that Scotsmen generally, as one would expect, wish only for fair play and expect only fair and equal representation. Many Scots are fearful of independence and are only too aware that if devolution is to have a chance of succeeding it must be fair or it will fail. Of course one can pick holes in this Amendment. That is not the fault of the movers of the Amendment; it is the fault of this Government for producing this unworkable Bill. In the last resort it may be that the only solution is either to drop devolution or to have independence for Scotland. Then the West Lothian anomaly will go away.

There may be some sort of convention that can be established whereby Scottish Members of Parliament will absent themselves on Third Reading, if not the first time, as it were, at any rate on the replay, after 14 days, or whatever period is thought to be appropriate. There must be some doubt about it, particularly in these days of three line whips and tight majorities of one or two, but the moral pressure will I be there. After all, one cannot forget that the present Government, when they had a majority of only one, or even were in a minority of one, railroaded highly controversial legislation through Parliament despite the fact that they had only received some 30 per cent. of the votes of the electorate, and some 40 per cent. of the votes actually cast.

The crunch question will be, "Will the Celtic troops hold back". Some have even visualised the ridiculous spectacle of Mrs. Thatcher occupying the Treasury Bench on Mondays and Wednesdays, and Mr. Callaghan on Tuesdays and Thursdays. One thing is clear, and that is that if unpalatable legislation is going to be thrust down the unwilling throats of the English because of the votes of Scottish Members of Parliament, who will have their own Assembly, it will be a recipe for disaster and there will be an English backlash.

It really is no good some saying that because Scotland and Wales, who usually return a majority of Labour Members of Parliament, and still have to lump it—or "thole", it, as was said in a previous debate: a good Scottish word, so I am told—during periods of Conservative Government, England must lump it when there is a Labour Government because of Scottish and Welsh Members of Parliament pushing through controversial legislation contrary to the wishes of England, which may have a majority of Conservative Members of Parliament, and at a time when such matters are devolved to Scotland and Wales. The point is that Wales has only 5 per cent. of the electorate and Scotland only 9 per cent. of the electorate, and they must therefore expect to some extent to fall into line with the opinions and wishes of the predominant members of the United Kingdom that is to say, England, which has some 83 per cent. of the total electorate.

Lord HARMAR-NICHOLLS

My Lords, there is one comment on a point made by the noble Lord that I think ought to be on the record. He was perhaps being too much of a purist on this. All this Amendment can do is to keep the matter open. The other place cannot give any thought to it in the sort of detail that they ought to unless we give them the hook on which to hang their debate. The noble Lord, as a purist, may well have seen some difficulty in approving words he did not think ought in the end to appear in an Act, but the only way we can get further thought given to the matter is to send the Amendment to another place so that they can have further thoughts on it. This is all the Amendment does.

The noble Earl, Lord Perth, described my noble friend's Amendment as an ingenious solution. Of course, it is not a solution at all. All that it does is to keep the matter open for further thought to be given to it. Anyone who understands the procedures in another place, or indeed in your Lordships' House, knows that very few people, if any, will change their minds in a fortnight. But if this Amendment is passed it will give the ultimate power to your Lordships' House to give an even longer period of thought for a change of mind to come about.

The importance of passing this Amendment, even though one may not agree with the words or the effect it will have if it appears in the Act, is to keep the matter open in order for second thoughts to be given to it. The only way that we can do that is to send it back along the corridor with words that will allow the other place to go into it in the sort of detail the subject warrants.

Lord HYLTON

My Lords, I am conscious of the impending dinner hour, and I shall be brief. It is an interesting Amendment if only for the considerable interest it has drawn from the Government Back-Benches, who seem so far to be in favour of it by about two to one. I feel that the Government have drawn this Amendment on to their own head. They have so far steadfastly refused to admit that if you bring in a form of devolution such as the one we are considering, you are bound to affect the balance of the rest of what is an unwritten Constitution.

The Government have further resisted any limitation on the present number of Scottish Members of Parliament in Westminster, and they have not favoured in any way the suggestion that has been made at least twice that there ought to be a constitutional convention limiting the ability, and the right, of Scottish Members of Parliament to vote on purely English matters. I would only ask my noble friend who moved the Amendment, whether it would not be better that his proposal should bite at Second Reading rather than at Third Reading. Apart from that, I entirely support his Amendment.

7.8 p.m.

Lord McCLUSKEY

My Lords, this debate has lasted for the best part of an hour and a half, and I trust that the House will grant me a few minutes to seek to reply to it. May I begin by joining the noble Lord, Lord Home of the Hirsel, in congratulating my noble friend Lord Sefton on his maiden speech. I may say that it has been my experience on a previous occasion here to stand up with the somewhat difficult task of congratulating one of my noble friends for making a maiden speech attacking a Bill that I was seeking to defend, but at least, although his heart does not seem to be in the right place so far as devolution is concerned, he will apparently end up in the right Lobby, and that at least welcome.

I should like also to congratulate the noble Earl on producing this extraordinary new clause. I say that because the problem has existed since devolution first began to enter the currency of political discussion. I refer particularly of course to 1973 when the report of the Commission sitting under the noble and learned Lord, Lord Kilbrandon, identified the so-called West Lothian question very clearly, and the problem then began to be discussed. I should he interested to hear, when the noble Earl replies, when it was that he and his noble friends, and indeed his right honourable and honourable friends in another place, thought up this extraordinary solution which no one commends and everyone condemns but which I understand all will nonetheless support through the Lobbies.

It was said not to be a perfect solution; that was the understatement of the debate. The noble Earl said the House of Commons could amend it, and I emphasise that remark of his. He does not say this is the final form of the thing but that the House of Commons can amend it. Would he kindly tell us in his reply what Amendment he has discussed with the right honourable gentleman Mr. Pym or with his honourable friends, otherwise we do not know what we are voting for? We should be told what it is that the official Opposition hope to move into the Bill in the Commons. He says this is not the solution, that it is not perfect and that they can amend it. Would he kindly tell us what ultimately we shall get? This is a pig well concealed in a poke.

We have also been subjected to some extraordinary logic from one Peer after another. My noble friend Lord Shinwell, who always lends a great deal of humour to the debate, said, "The Amendment is not very good, so I will vote for it" The noble Lord, Lord Glenkinglas, who I think spoke for many, said, "I do not believe it will work, but we should vote for it". In my view, the most responsible question asked in this debate was put from the Cross-Benches by the noble and learned Lord, Lord Morris of Borth-y-Gest, when he said: "I ask myself one question: Will it improve the Bill?"

Nobody who supports the Amendment supports it on the ground that it will improve the Bill. It is apologised for because it is a kind of interference once removed with the procedures of another place. It is said not to be a perfect solution, and somebody else will magically transform it, but who says that it improves the Bill? I have heard nobody say it will do that, and this House must think very carefully indeed before it seeks to move into the Bill a clause of this kind which no one says will improve the measure. If the question posed by Lord Morris of Borth-y-Gest cannot be answered responsibly, then those who cannot answer it in the correct way should not support the Amendment in the Lobby.

The noble Earl, Lord Ferrers, said, rightly, and I agreed with him, that it is for the other place to determine its own procedures. There is nothing to stop the other place from determining a matter of this kind in a way that is suitable for them, and I believe it is important that it should be left to the other place. What is worrying about this is the point I need not labour because it was made so clearly by my noble friend Lord Wedderburn; we are, after all, talking about legislation, about something that is to go on the Statute Book, and when one looks at the extraordinarily woolly wording of the Amendment—the use of the word "concerns" in this context—there is here a problem of definition. I do not know how it will be resolved, indeed we do not know who will resolve it, and again the noble Earl will not tell us that. Will he tell us that when he replies?

Many noble Lords have asked what is the effect of the Amendment. The answer is that it has no effect other than to delay the Bill for some 14 days. We are bound to wonder what will happen in those 14 days. Indeed, we can ask a preliminary question: what Bill is it likely to be? It is likely to be a Bill promoted by the Government, so the Government seek a Second Reading of the Bill, and get it using the majority in the situation in which this clause is designed; they take it through Committee and Report, using that majority, and then they get a Third Reading using that majority. Then, in 14 days, do the Government change their mind, does the Chief Whip change his mind, do the Scottish Members who voted for the Second Reading, for Committee and for Report and for the first run of the Third Reading change their minds? It is wholly unrealistic and I say that it is quite wrong to make a problem disappear by a kind of conjuring trick, a sleight of hand, which is all this is. We do not solve the problem, indeed we do not even shift the problem.

Other noble Lords have suggested that we should write this clause into the Bill in order to send the matter back so that the other place may discuss it. I do not know how many of your Lordships joined me on the lonely front seat upstairs listening to Mr. Tam Dalyell raising this question—all credit to him because he made his point—not once but dozens upon dozens of times. The other place knows about the West Lothian question; there will not be a great clap of thunder when they pick up their Times tomorrow morning and discover that someone here has identified the West Lothian problem. They have heard about it, and more than once.

I do not think anything I say will stop noble Lords opposite, who have a determined look on their faces, from trooping into the Lobby to support this extraord- inary new clause. I will not therefore continue much longer, but I stress the important point that if one cannot improve the Bill, one should not support an Amendment which simply conceals the problem.

I must deal with the point raised by the noble Lord, Lord Home of the Hirsel; it was an important one and, coming from him, I must reply to it. He said that unless something of this kind—it is very late in the day to be talking about "something of this kind—was put in the Bill, friction between England and Scotland would be certain. I urge noble Lords to think about it. If something of this kind—and, more particularly, if this something—goes into the Bill, what will happen? Every time a Government Bill comes forward on which this clause would bite the media will focus on the Third Reading vote, identify the Scots who have had the temerity to vote on a matter which does not relate to or concern Scotland, and during that period of 14 days, which I suppose may be 14 Sitting days, the media will concentrate in some cases their venom and in some cases their support, and a tremendous extra amount of Parliamentary pressure will be brought on those Members. If at the end of the day the Scottish Members solemnly go through the same Lobby and vote the same way, what will that do for friction between England and Scotland? That does not seem to take us any further at all.

I conclude by again pointing out that nobody says that this is a solution; nobody in his right mind believes that the other place needs to be told that the West Lothian question exists; and it is irresponsible not to face up to the question which Lord Morris of Borth-y-Gest asked. I beg your Lordships not to chase after this will-o'-the-wisp, and not to support the Amendment.

Lord MONSON

My Lords, the noble and learned Lord challenged those of us who support the Amendment to say exactly, in a responsible way, how it would improve the Bill. I can answer in about a dozen words: it will improve the Bill by helping to ensure indirectly the unity of the United Kingdom.

Earl FERRERS

My Lords, I have no doubt that one day I shall do something wrong, that it will be my fault and that I shall land up in the courts, and if I do there will be nobody I shall turn to quicker than to the noble and learned Lord, Lord McCluskey, to try to get me out of a hole. He displayed this evening—I do not blame him and I knew it would happen—a wonderful ream of arguments against the Amendment. I thought somebody would see fit to try to blast the thing out of the water and it fell to Lord McCluskey to seek to do it, though I thought he removed every shot in the locker, squibs and all, to do it.

The problem is a very real one, though I do not propose to continue the debate for long because noble Lords have heard the arguments both for and against. I did not think Lord McCluskey was quite fair when he said there was some sinister motive whereby the Conservative Front Bench in the House of Commons would put down an Amendment, so what would we get? That was an extraordinary comment and I thought that the noble and learned Lord must have forgotten that at present his Party controls the House of Commons. If he feels there is some sinister motive in this, I can assure him it does not come from us. This is a genuine attempt to meet a problem which has been referred to time and again. The noble Earl, Lord Perth, said in a rather Machiavellian way, "I do not want to vote for this because I think federation is the best thing, and if we do not vote for this Amendment we all know there will be chaos and then, out of chaos, will come federation". With great respect to the noble Earl, that was a rather disreputable argument for voting against the Amendment.

The noble and learned Lord, Lord Morris of Borth-y-Gest, hit on a very important point. I do not think that I

have ever before crossed swords with a law Lord, and I would fluff only a little feather at him. He asked why on earth we have to teach the House of Commons that there is a West Lothian question. Of course the West Lothian question was referred to in another place, but the trouble was that due to their procedures they were unable to put down an Amendment to overcome it. It is because of the procedures which are available to your Lordships, and which are different from those in another place, and because of the alteration, in a very modest way, to the Long Title which will come in the last Amendment, that it is possible for us to give back to another place the Amendment which they wished to have. That does not apply only to Conservative Members there, and I dare say that there lies the reason why the noble and learned Lord was so agitated, because many of the people who were in favour of trying to get over the West Lothian question were supporters of his own side in another place.

That is the reason I suggest that your Lordships should pass the Amendment. At least it would give another place the opportunity of discussing this matter. My noble friend Lord Home of the Hirsel said that the wording of the Amendment was tortuous. I will confess to him that I had a tiny bit of help over the drafting of the Amendment. If he thinks that this wording is tortuous, then all I can say is that he ought to have seen the original.

7.21 p.m.

On Question, Whether the said Amendment (No. 176) shall be agreed to?

Their Lordships divided: Contents, 99; Not-Contents, 72.

CONTENTS
Alexander of Tunis, E.	Craigavon, V.	Elles, B.
Allerton, L.	Craigmyle, L.	Elliot of Harwood, B.
Ampthill, L.	Crathorne, L.	Emmet of Amberley, B.
Bearsted, V.	Crawford and Balcarres, E.	Falkland, V.
Belstead, L.	Crawshaw, L.	Falmouth, V.
Bledisloe, V.	Cromartie, E.	Ferrers, E.
Broadbridge, L.	Cullen of Ashbourne, L.	Ferrier, L.
Burton, L.	De Freyne, L.	Fortescue, E.
Campbell of Croy, L.	Denham, L.[Teller.]	George-Brown, L.
Carr of Hadley, L.	Donegall, M.	Glenkinglas, L.
Clifford of Chudleigh, L.	Drumalbyn, L.	Gowrie, E.
Clitheroe, L.	Duncan-Sandys, L.	Gray, L.
Colville of Culross, V.	Dundee, E.	Greenway, L.
Cork and Orrery, E.	Dundonald, E.	Haig, E.
Cottesloe, L.	Ellenborough, L.	Hanworth, V.
Harmar-Nicholls, L.	Minto, E.	Selkirk, E.
Hatherton, L.	Monk Bretton, L.	Sharples, B.
Henley, L.	Monson, L.	Shinwell, L.
Home of the Hirsel, L.	Morris, L.	Soames, L.
Houghton of Sowerby, L.	Mountgarret, V.	Spens, L.
Hylton, L.	Mowbray and Stourton, L.[Teller]	Strathclyde, L.
Hylton-Foster, B.		Strathcona and Mount Royal, L.
Kinnaird, L.	Moyne, L.	Sudeley, L.
Kinnoull, E.	Northchurch, B.	Swinfen, L.
Kinross, L.	O'Hagan, L.	Swinton, E.
Lauderdale, E.	Onslow, E.	Tranmire, L.
Lindsey and Abingdon, E.	Pender, L.	Trefgarne, L.
Linlithgow, M.	Raglan, L.	Tweeddale, M.
Long, V.	Rankeillour, L.	Vickers, B.
Luke, L.	Reigate, L.	Ward of North Tyneside, B.
Lyell, L.	Rochdale, V.	Wigg, L.
Margadale, L.	Ruthven of Freeland, Ly.	Wilson of Langside, L.
Massereene and Ferrard, V.	Sandford, L.	Young, B.
Middleton, L.	Sandys, L.
NOT-CONTENTS
Allen of Fallowfield, L.	Gregson, L.	Perth, E.
Aylestone, L.	Hale, L.	Phillips, B.
Bacon, B.	Harris of Greenwich, L.	Plant, L.
Balerno, L.	Hatch of Lusby, L.	Ritchie-Calder, L.
Balogh, L.	Henderson, L.	Samuel, V.
Banks, L.	Hirshfield, L.	Seear, B.
Birk, B.	Hughes, L.	Sefton of Garston, L.
Blyton, L.	Jacques, L.	Shepherd, L.
Boston of Faversham, L.	Janner, L.	Somers, L.
Champion, L.	Kaldor, L.	Stewart of Alvechurch, B.
Chitnis, L.	Kirkhill, L.	Stone, L.
Collison, L.	Leatherland, L.	Tanlaw, L.
Croham, L.	Lee of Newton, L.	Taylor of Gryfe, L.
David, B.	Llewelyn-Davies of Hastoe, B.	Taylor of Mansfield, L.
Davies of Leek, L.	Lloyd of Kilgerran, L.	Thurso, V.
Davies of Penrhys, L.	McCarthy, L.	Wade, L.
Donaldson of Kingsbridge, L.	McCluskey, L.	Wallace of Coslany, L.[Teller]
Elwyn-Jones, L. [L. Chancellor.]	McGregor of Durris, L.
Fisher of Camden, L.	Maelor, L.	Wedderburn of Charlton, L.
Gaitskell, B.	Milner of Leeds, L.	Wells-Pestell, L. [Teller]
Gardiner, L.	Morris of Borth-y-Gest, L.	Whaddon, L.
Garner, L.	Northfield, L.	Winterbottom, L.
Glenamara, L.	Oram, L.	Young of Dartington, L.
Gordon-Walker, L.	Parry, L.
Goronwy-Roberts, L.	Peart, L. (L. Privy Seal.)

Moved accordingly, and, on Question, Motion agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.

7.30 p.m.

Lord WELLS-PESTELL

My Lords, I beg to move that further consideration on Report be now adjourned.