Lords Sitting of 29 June 1978

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Newcastle):
The LORD CHANCELLOR On the Woolsack.

CONSUMER COUNCILS: FINANCING
Baroness BURTON of COVENTRY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is their policy for the financing of consumer councils.
Baroness STEDMAN: My Lords, the Government believe that all public service consumer councils should be independent of the industries that it is their duty to consider. This is why the Government took over from the industries the responsibility for financing such councils in 1975.
Baroness BURTON of COVENTRY: My Lords, I wonder whether the Minister could take us a little further into the Government's thinking on this matter. As they have stated that, in order to be seen to be independent, consumer councils should be financed from Government funds, without impugning in any way the integrity of the Civil Aviation Authority, could the Minister tell me why it is satisfactory that the Airline Users' Committee should be financed by the Civil Aviation Authority and not by the Government, particularly as the Civil Aviation Authority—despite all its impartiality—is connected with the aircraft industry?
Baroness STEDMAN: My Lords, the position of the AUC is, of course, different, as it is not financed by the industry but, as the noble Baroness has said, by an intermediate and in itself independent organisation, the Civil Aviation Authority. Nevertheless, we welcome the new arrangements worked out between the Civil Aviation Authority and the AUC, which give the AUC the independence of a separate annual grant.
Baroness BURTON of COVENTRY: My Lords, while appreciating what the Minister says, may I ask whether she realises that, I hope, the House and, certainly, I are getting rather tired of the same excuses being dredged up time and again because the Government have no case to put forward on this matter? Where is the pressure coming from upon the Government to single out the Airline Users' Committee from all the other consumer councils with regard to this financial aspect? Does the pressure come from the British Airports Authority, British Airways or the Civil Aviation Authority?
Baroness STEDMAN: My Lords, I know of no points of pressure on the Government from the Civil Aviation Authority or any other body. The Government's line is that the Civil Aviation Authority is, as I have said, an independent, intermediate organisation and, therefore, it is not for the Government to finance the AUC, as they have done the other consumer councils which work directly in relation to the industry and not through an intermediate body.
Baroness BURTON of COVENTRY: My Lords, lastly, does the Minister realise that there is grave disquiet about this matter among the consumer movement in general? Does she not feel that there would be equal disquiet if any of the other consumer councils recognised by the Government were treated in a similar manner?
Baroness STEDMAN: My Lords, I am sure that there would be disquiet if other consumer councils lost the powers which they have at the moment, because they are working in relation to the industry and not through the intermediate body. I hope that this is, perhaps, one of the points that my noble friend will take up with the Parliamentary Under-Secretary of State when we meet him next week.

PROTECTION OF WILD BIRDS: EEC DIRECTIVE
3.4 p.m.
Lord CHELWOOD: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a Statement on the outcome of the recent meeting of the Environment Council when further efforts were made to reach agreement on the draft EEC Directive on the protection of wild birds.
Baroness STEDMAN: My Lords, at the Council of Ministers of the Environment on 30th May general agreement was reached on the text of the EEC Birds Directive. However, the French Government felt unable to accept the lists of birds included in the Annexes and agreed by the other eight Member States. The French wanted a substantial reduction in the list of birds that may be sold having been shot and they wanted the inclusion of the ortolan bunting and the skylark in the list of birds that may be shot. Despite a number of proposals, a compromise acceptable to all nine countries has not yet been found.
Lord CHELWOOD: My Lords, that is very disappointing, and I am not at all critical of the way in which the Government have handled this matter. However, I should like to put two short questions to the Minister. First, does she agree that the French stance is not only illogical but flies in the face of the whole principle on which this Directive is based?—in that it would enable small brown birds of almost any variety to be shot without any restriction whatever, because they are very difficult indeed to tell from each other, many of them, incidentally, migrating to or from this country.
Secondly, does she agree that the problem which she mentioned in her Answer about Annexe III, which deals with the sale of dead birds, is really quite simple to solve, as the Directive quite clearly lays down that any country which wishes to impose greater restrictions than are provided for in the Directive can do so? Surely, there is no need at all for this to be a negotiating matter.
Baroness STEDMAN: My Lords, the nine Members of the EEC are anxious to come to a general acceptance on this Directive. The other seven Members and ourselves are standing firm and are trying to get France to accept the Directive.
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Our position on this is that the skylark and ortolan birds are indistinguishable from other small brown birds, which are endangered by large-scale slaughter in Italy and France as the birds migrate, as the noble Lord, Lord Chelwood, said. Unless they, too, are protected, it will not be possible even to protect the more vulnerable species. The French proposed hunting list is already 53, in contrast with the United Kingdom's 34, and it contains species like the thrush and the blackbird which rather horrifies us in this country. We are working towards an agreement, but we do not feel that we can act when our other seven European colleagues are standing firm. We must stand firm with them against the French attitude.
Lord BROCKWAY: My Lords, would it not be possible for us to adopt this Directive ourselves, because although the French may eat skylarks, we do not?
Baroness STEDMAN: My Lords, we are prepared to protect the birds, and in fact a much greater number of birds are protected in this country than in other countries. We do not anticipate that we shall be any less rigorous in our protection of them than we are at the moment.
Lord CHELWOOD: My Lords, is it correct that the environment Ministers are not likely to meet again until November next? If that is the case—and it is quite a long way ahead—do the Government have it in mind to take some initiative between now and then? Would it not be rather intolerable if the French were to be so obstinate as to try to wreck this widely-wanted Directive? Would it not be rather uncivilised of them to do so simply on the ground that they want carte blanche to shoot any small brown bird that passes through their country? Incidentally, is the Minister able to say offhand how many larks' tongues are required to make one kilogramme of paté?
Baroness STEDMAN: My Lords, I am not an expert on why the French take the attitude they do or, indeed, on how many larks' tongues they use in their various dishes. We deplore it, but this is a matter for the French Government and we must hope to persuade them that they are wrong, as the other seven countries are hoping as well. Negotiations are still continuing informally at this

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point in time. My information is that there is likely to be another Ministers' meeting later on in the autumn, but a date has not yet been fixed.
Lord WYNNE-JONES: My Lords, as my noble friend will remember, this House has consistently pressed for the strongest possible legislation with regard to the protection of species. Will my noble friend bear this in mind and remember that she will have the full support of this House, independent of Party, in ensuring that steps are taken to stop this destruction of wild life?
Baroness STEDMAN: My Lords, I am grateful to my noble friend for emphasising that, but knowing the feeling of this House on the many occasions that we have discussed endangered species, I was in no doubt that I would have its full backing.

DOCK WORK LEGISLATION
3.9 p.m.
Lord ORR-EWING: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in the interest of not discouraging new firms and new jobs in areas near to London docks, they will state that they have no intention of reintroducing the Dock Work Regulation Bill.
Lord WALLACE of COSLANY: My Lords, the Dock Work Regulation Act received the Royal Assent on 22nd November 1976. Its outstanding provisions relating to the classification of dock work will be brought into effect when a new Dock Labour Scheme has been approved by both Houses of Parliament. A draft new scheme was laid before both Houses of Parliament yesterday. There is nothing in the Act or the draft new scheme which should discourage new firms from establishing themselves or new jobs being created near to London docks or any other dock area.
Lord ORR-EWING: My Lords, is the noble Lord aware that I know of
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firms whi e h have refused to take warehouses and factories in the dock area in the belief that the measures will be e ome increasingly restrictive and will force them to employ dock labour within five miles of docks? This may be a misapprehension, and I should be glad if the Government would make it clear that they are not intending to make it difficult to employ ordinary labour and compulsory to employ dockers of the Transport and General Workers. This is an effective discouragement at the moment, and I know of instances where it has discouraged people from moving into these areas.
Lord WALLACE of COSLANY: My Lords, the noble Lord is, or his friends are, under a complete misapprehension. The limit is now half a mile. The limit of live miles was the bone of contention, but it has now been adjusted to half a mile. There is no reason whatever for firms to be afraid of coming in, because there are no restrictions except those of which the noble Lord is aware. Firms should forget their fears and come in because these areas need them to come in, and the nation needs them.
Lord ORR-EWING: My Lords, I am grateful to the noble Lord for having made it clear. I hope he will go on making the position clear because it certainly is not widely known at present.

LAND FUND: POLICY
3.11 p.m.
Lord SANDYS: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what progress is being made towards implementing a coherent and effective policy for using the Land Fund; and whether they will make a statement.
The PARLIAMENTARY UNDERSECRETARY of STATE, DEPARTMENT of the ENVIRONMENT (Baroness Birk): My Lords, as the noble Lord will know, the Expenditure Committee published on 14th June a report on the National Land Fund prepared by its Environment Sub-Committee. The

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Government welcome the opportunity afforded by this report to examine current and future policies on the National Land Fund and on other matters affecting the national heritage. The Government are considering the recommendations made in the report and they will be making their reply in due course.
Lord SANDYS: My Lords, I thank the Government for that reply. I wonder whether the noble Baroness can inform the House whether her right honourable friend the Chancellor of the Exchequer will be putting this in the form of a White Paper, or in the form of a Green Paper for consultation?
Baroness BIRK: My Lords, I am afraid I cannot give the noble Lord any further information on this. I would just point out that the report has only been out for two weeks. It raises substantial issues and they will take some time to be considered. There is really nothing more I can say about it.
Lord REIGATE: My Lords, are the issues raised by this report any more substantial now than they were a year ago when I introduced a Bill to implement what the Select Committee has now recommended? The Government's attitude at that time was hostile and obdurate.
Baroness BIRK: My Lords, this is a report by a Sub-Committee of the Expenditure Committee of another place, and the Government are now considering it. It would be rather unfortunate if the noble Lord—I am sure he does not want to do it—produced a sour note about it before anything has been said. There is nothing I can add to that, except that I hope that noble Lords will give the Government time to consider this question and go into all the recommendations that have been made by the Sub-Committee.
Lord DAVIES of LEEK: My Lords, is my noble friend aware that some of us are of the belief that the Land Fund was established as a war memorial? The whole purpose and direction of this Land Fund seems to have gone awry since those days. Some of us believe that it would be worth while, if the Governent could find the time, to have a full dress debate and obtain opinions from
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all sides of the House on this important problem.
Baroness BIRK: My Lords, I am sure that my colleagues in another place will note with great interest everything that has been said by my noble friend and noble Lords opposite on this subject, and will certainly take it into consideration when considering the whole report.
Lord HARMAR-NICHOLLS: My Lords, does the noble Baroness appreciate that her reply, while soothing, does not reflect any urgency? It would seem that a White Paper, or some further indication of what the Government's thinking might be, would be very worthwhile in preventing damage.
Baroness BIRK: My Lords, I am sorry if my replies do not give the feeling of urgency, because I do have that feeling. They give no information, but that is absolutely intentional because there is none to give.

DINNERS
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, with the leave of the House, may I remind noble Lords that House dinners will be available this evening.

EUROPEAN PARLIAMENT
3.15 p.m.
The LORD PRIVY SEAL (Lord Peart): My Lords, I beg to move the Motion standing in my name on the Order Paper. Its main purpose is to effect the replacement of Lord Brimelow in the delegation to the European Parliament with Lord Murray of Gravesend. This part of the Motion is absolutely routine and is in a form with which the House is familiar. I would, however, explain that the second part of the Motion is included for the avoidance of doubt. It could be argued that it is not strictly necessary as the Motions which effect changes in the delegation to the European Parliament are in the nature of amendments to the original Motion of 3rd July 1975, which included the provision that the designations remain in

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force and effect notwithstanding Prorogation or Dissolution of Parliament. However, I think it is desirable, as I said earlier, for the avoidance of doubt, that it should be absolutely clear to all that the designation of Lords replacing those named in the original Motion is on exactly the same terms as the designation of the original membership. Due no doubt to an oversight, these words were not included in the Motion designating Lord Kennet a Member of the European Parliament. This is why his name is included with Lord Murray of Gravesend's in the present Motion. I beg to move.
Moved, That with effect from 30th June 1978, the Lord Murray of Gravesend be designated a Member of the European Parliament in the place of the Lord Brimelow; and that this order and that of 21st February last designating the Lord Kennet a Member of the European Parliament shall remain in force and effect, notwithstanding the Prorogation or Dissolution of Parliament, until this House otherwise orders.—(Lord Peart.)
On Question, Motion agreed to.

WAGES COUNCIL BILL [H.L.]
The LORD CHANCELLOR (Lord Elwyn-Jones): My Lords, I beg to move that this Bill be now read a second time. The Bill is pure consolidation of parts of the Wages Councils Act 1959, the Industrial Relations Act 1971, the Trade Union and Labour Relations Act 1974, and the Employment Protection Act 1975. It makes no changes in the present law. If it is given a Second Reading by your Lordships it will be referred to the Joint Committee on Consolidation Bills in the usual way. I beg to move.
Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
On Question, Bill read 2a, and referred to the Joint Committee on Consolidation Bills.

ADOPTION (SCOTLAND) BILL [H.L.]
Report received.

SCOTLAND BILL
3.17 p.m.
Read 3a, with the Amendments.
Clause 1 [The Scottish Assembly]:
The MINISTER OF STATE, SCOTTISH OFFICE (Lord Kirkhill)The MINISTER OF STATE, SCOTTISH OFFICE (Lord Kirkhill) moved Amendment No. 1:
Page 2, line 1, leave out ("Subject to section 87(3) below".
The noble Lord said: My Lords, this Amendment is purely a drafting one. The words proposed to be left out made sense when they were inserted during the Committee stage, since at that time the clause equivalent to Clause 87(3) provided for a separate outcome of the referendum in Orkney and Shetland. As a result of Amendments relating to Orkney and Shetland which were made on Report in your Lordships' House, there is no longer any interaction between Clause 1(3) and Clause 87(3), and the words proposed to be left out should therefore clearly be deleted. I beg to move.
On Question, Amendment agreed to.
[Amendment No. 2 not moved.]
Clause 12 [Judicial proceedings as to disqualification]:
The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey)The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey) moved Amendment No. 3:
Page 7, line 24, leave out ("costs") and insert ("expenses").
The noble and learned Lord said: My Lords, this Amendment seeks to correct a solecism that crept in and which I certainly ought to have spotted. The correct term in this context for the equivalent of "costs" in England is "expenses" in Scotland. That is what the Amendment does; it substitutes "expenses" for "costs". I beg to move.
On Question, Amendment agreed to.
Clause 16 [Defamatory statements in Assembly proceedings]:
The Earl of SELKIRK The Earl of SELKIRK moved Amendment No. 4:
Page 8, line 18, leave out from ("statement") to ("in").
The noble Earl said: My Lords, this Amendment deals with the extent to which absolute privileges will apply to the Scottish Assembly. I am glad to say that I think I am in full agreement with the Government, in that this extent of absolute privileges should be the same as it is in Parliament. There were various ways of achieving this, and I for one am sorry that the draftsman did not take the course which has normally been taken with members of the Commonwealth; that is, to refer the question of privilege to that which is prevailing in the Commons House of Parliament at the present time.
However, that course was not pursued. A much bolder course was followed, and I admire the courage of the draftsman in that I think he tried to rewrite the terms of Article IX of the Bill of Rights 1688. That provision originally did not deal with defamation at all; it was intended to prevent Members of Parliament from being arrested by the King and put in the Tower of London, though in due course it has come to be the basis of Parliamentary privilege. The trouble is that, as it is a 17th century document, it is not clear what is meant by "proceedings in Parliament". Accordingly, in the last 40 years there have been six or more reports dealing with the subject of absolute privilege. Those reports have now been brought to a head, partly by the late Lord Donovan and partly by Mr. Justice Cooke, in a report which came out in 1975. It is important to reflect that that report sought a definition of two unknown factors; first, what is a proceeding in Parliament, and, secondly, what writings could be included? The Bill as drafted specifically includes the word "writing". I take my source from Sir Barnett Cox, Clerk of the other House, who said of the existing position:
"Freedom of speech is limited to speeches in the House or in a Committee of the House".
If one looks at Erskine May one finds absolutely no reference whatever to "writing". I must therefore say that we are introducing, as it were by a side wind, a change—I have absolutely no doubt about this—in the extent of absolute privilege, applying it in the wrong place (by means of a single clause in the Scotland Bill); and not only are we doing that, but we are getting it wrong.
I feel I must point out why it is wrong,
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because this is important. There is a draft Bill on the subject of defamation which Parliament will no doubt consider in due course; it has not yet been considered by Parliament although it has been before us for some three years. In dealing with absolute privilege, particularly in Parliament, the draft Bill says, in Clause 7(6)(b):
"All things said, done or written between Members and Officers of either House of Parliament, between Members and Ministers of the Crown, for the purpose of enabling any Member or any such Officer to carry out his function as such providing that the publication is not wider than is absolutely necessary".
This Bill puts in "writing" without that qualification, and I therefore have no hesitation whatever in saying that it is in fact an extension of absolute privilege which—I believe the Lord Chancellor agrees with me on this—should not take place. I have no doubt that this is an extension, and I am equally certain that there should not be such an extension in this measure. As I say, we shall have the Defamation Bill coming before Parliament and that will be discussed. No doubt it will be controversial in parts, but it has been completed and it is ready for consideration in Parliament. I believe it is wrong to introduce "writing" totally unqualified, as this Bill does, and pretend that it is on the same level as the absolute privilege we have in Parliament.
The late Lord Morrison of Lambeth, who was a tremendous stickler on these matters and something of an authority, said in 1957 in the Strauss case:
"I do not think that we should elevate privilege to the level of denying normal rights to ordinary citizens".
He added this to emphasise the point of keeping privilege to speeches, at least at that time:
"If we speak we can be answered".
That is true, whereas with a written communication no immediate answer is available. For this reason it would be wrong to bring a change of this character into a Bill of this kind. There are plenty of controversial subjects in the measure which we have to discuss, but this is not the place to bring this in. It should be considered as part of the Defamation Bill which eventually will come before Parliament. As I see it, we are bouncing Parliament by a side wind. I believe that is being done quite improperly and for that reason I move the Amendment.
Lord BALLANTRAE: My Lords, I was one of the two Scots members of the Faulks Committee and I rise simply to testify that this matter was kicked around a great deal in our deliberations and that the conclusions we came to were exactly those put forward by the noble Earl, Lord Selkirk.
Lord LEATHERLAND: My Lords, I was interested in the remarks of the noble Earl, Lord Selkirk, and they seemed sensible, but in my old age I cast my mind back 55 years to the days when I used to work in the Press Gallery and Lobby of the House of Commons. I recall that while some Members asked Questions orally and received oral Answers and were therefore fully protected, and would be by the Bill, some Members sometimes asked Questions for Written Answer. Those Questions would appear in print on the Order Paper—and that no doubt was protected; I do not know—but the Written Answer would appear in this way. In a little room at the back of the Commons Press Gallery were some shelves containing a number of trays, and at about 4 o'clock each afternoon a messenger appeared with Written Answers to the appropriate Questions which had been put down by Members and he placed them in the trays. Reporters were in the habit of picking up those Written Answers and basing their stories on those typescripts.
According to the Amendment, those Written Answers would not be protected in any way. It might be said that such Written Answers would be quite harmless, but I can conceive of a Written Answer in reply to a Question in which perhaps some suspicion was cast on, say, the financial activities of a company in the City of London. That Written Answer might say that the Minister was causing an investigation to be made into the financial affairs of that company. Hitherto, and under the present law and procedure, the reporter would be protected in taking that Written Answer from the tray and inserting it in his story. If the Amendment were carried, that protection would no longer exist and Written Answers would not be protected in any way. I am not attempting to argue against the general merits of what Lord Selkirk said; I am simply pointing out a practical difficulty that might arise.
The Earl of SELKIRK: My Lords, a Written Answer would be covered by Clause 15(1)(b):
"… publication under the authority of the Assembly of any document".
The noble Lord need not have any anxiety on that point.
Viscount COLVILLE of CULROSS: My Lords, I suppose there is another way by which the noble Lord, Lord Leatherland, may be comforted, in that I do not think it is clear that a Written Answer is not part of the proceedings of Parliament or of the Assembly; if it is, it is also protected under Clause 15(1)(a). However, I do not think that is the problem. The problem seems to fall within a very small ambit.
Having discussed this matter with my noble friend and with the noble and learned Lords, the Lord Chancellor and Lord McCluskey—and I express my gratitude to them—I am still not convinced that the Bill is free from trouble in a different respect. As I understand it, we are all at one in the intention to reproduce exactly and precisely the same ambit of privilege for proceedings in the Scottish Assembly as at present apply at Westminster. Certainly my noble friend does not intend to do anything other than that. That is, as I understand it, what is intended by the Government in the Bill. Until one or more of the learned reports that have been referred to, whereby clarification of the extent of this privilege is put into effect, either by a series of judicial decisions, or, I suppose, by some statutory measure which comes into force, then we must depend upon what is in the written law as it is, for all its imperfections, and for all the fact that it was not intended to deal with this at all in the first place. We have the Petition of Rights in the southern part of the country and the Scottish equivalent in the northern part of the country. I am sorry to say that they do not quite say the same things. That is bad enough for the courts. However, what we are doing in the Bill—and I know that it is being done with an intention to be helpful and to be clear, and to give good guidance to the courts—is to produce yet a third form of words.
My concern is this. If we put in words which do not appear in the existing Statutes—albeit that they are old, and

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albeit that they have had to be adapted from the prime purpose of preventive impeachment to use in connection with the law of defamation—what are the courts going to say that Parliament was intending to do? If Parliament now uses totally different words from those which have been the basis of the law all along, are the courts not going to be inclined to say, "Parliament must have intended a change"? That is what I am afraid of, because it is perfectly plain that Parliament does not intend to change.
The courts cannot look at Hansard either in England, or, I believe, in Scotland. Therefore, they cannot see the words of the noble and learned Lord, Lord McCluskey, who will rise in a moment to say that there is no intention to change the law. They may neither read that nor can they pay heed to what he says; they can only look at what we put in the Bill. That is different from the statutory wording now. My noble friend's Amendment has done its best to restore the wording to what it is in the existing law.
3.34 p.m.
Lord McCLUSKEY: My Lords, may I first say that I confirm what the noble Viscount has said. We did meet, following an undertaking I gave when we discussed this matter on Report. Unfortunately, although we discussed the matter at some length, we could not reach agreement. We could not convince the noble Earl, Lord Selkirk, and he could convince neither us nor our Parliamentary Counsel. Let me also confirm that we are at one on the aim here, which is to confer, in respect of statements made in the course of proceedings of the Assembly, no greater privilege than is available in respect of statements made in proceedings of the Westminster Parliament.
I should first like to remark upon the suggestion by the noble Earl, Lord Selkirk, that we should have followed the precedent which he described in relation to certain other Commonwealth countries. That precedent is not a good one, because it is concerned with conferring upon new Parliaments the whole gamut of Parliamentary privilege, whereas this clause in the Bill is limited to defamation and one limited kind of privilege—privilege in the course of a defamation action,
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or privilege in respect of defamation. This is a limited exercise. To have taken that precedent would have been to have taken a bad precedent. That was why we did not take it. We looked at the matter again, after it was raised in Committee and on Report, and have confirmed our view that it would not be desirable to follow such a precedent.
One should look at the wording of the Bill. I agree with the noble Viscount, Lord Colville, that that is what the courts have to do. They look not at Hansard, but at the wording of the statute which comes before them for construction. What we are protecting is to be found in Clause 16(1)(a). We are protecting by absolute privilege,
"any statement (whether oral or written) made in proceedings of the Assembly.
Those words are absolutely crucial. The statement must be one which is made in proceedings of the Assembly. We believe that such a statement should be privileged. The reasons for that were given earlier. I do not think that they were disputed by the noble Earl or the noble Viscount.
This is what I want to know. I had always understood that the noble Earl, Lord Selkirk, accepted that, for example, a Written Answer to a Question, should be accorded absolute privilege. That would be a written statement,
"made in proceedings of the Assembly".
I understood, therefore, that his objection was not to the fact that 'a statement was made in writing. He wants to ensure that statements should not be accorded privilege on the spurious basis that they are said to be made in proceedings of the Assembly. I cannot tell the House or the noble Earl precisely how these words would be construed in a court of law. The reason for that is this. We start off with a model—the model of the Westminster Parliament. We tried to copy that in respect of the Assembly in relation to this one limited matter. The model itself is somewhat blurred and vague, the reason being that the courts have not had to consider this matter. If we make a copy of a blurred model, it is hardly surprising that we end up with a slightly blurred copy. That must be so. The only alternative is to depart from the model and perhaps lay down some very precise definition of what privileges are

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to be accorded. That is not what the Amendment seeks to do. It is certainly not what the Bill seeks to do.
We seek to use words which are similar to—though for perfectly understandable reasons they cannot be exactly the same as—the words from the two documents mentioned by the noble Viscount. However, we fasten upon the words, "made in proceedings of the Assembly". We have, of course, consulted the Parliamentary Counsel, who attended the meeting. We asked him to reconsider the matter. He advised us. I am simply asking the House to accept the advice not only of the Government Ministers in charge of the Bill, but also of the senior Parliamentary Counsel who has had his attention directed to this matter, who has discussed it with us and who has advised us on it.
In so far as your Lordships feel that they must make their own judgments, as distinct from advice offered by senior Parliamentary Counsel in the light of all our debates, I invite your Lordships' attention to the wording in Clause 16. I contend that there is no extension here because the statement is accorded no privilege unless it is one made in the proceedings of the Assembly.
There is one other matter. The noble Viscount is right in saying that the courts cannot look at Hansard. They must look at the wording of the Bill. That is why I have directed attention to the wording. However, given that we have used wording which is modelled as near as maybe upon the earlier precedents, is it in the least likely that a court, seeing the language we have used, and coming to construe this clause or section, as it will then be, will make the leap and assume that we have attempted to confer upon the subordinate Assembly in Scotland greater privileges than are accorded by similar words in respect of the Westminster Parliament? I simply do not believe that. I ask the House to accept the advice which I offer, and to which I have referred, and not to accept the Amendment.
3.40 p.m.
The Earl of PERTH: My Lords, I am no lawyer, and I have listened to the debate with the greatest interest, but I must confess that I am not entirely happy
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with the explanation of the noble and learned Lord, Lord McCluskey. He told us that eminent Parliamentary Counsel says that what is proposed is all right. However, I gather from the noble Earl, Lord Selkirk, that the word "written" is new in terms of what prevails at present. Further, I heard what the noble Viscount, Lord Colville of Culross, said, and I was impressed by that, too. It seems to me that we want a direct answer to the question: Is this changing the meaning of privilege by a side wind? If so, clearly it is wholly wrong, more especially as we have heard from the noble Earl, Lord Selkirk, that a Bill on defamation is to be brought forward very shortly. If that is the case, and if I understand the situation aright, why not wait until that Bill comes forward, and in the meantime let us carry on as things are now?
The Earl of SELKIRK: My Lords, I should like your Lordships to take note of three points arising from the speech of the noble and learned Solicitor-General. First, he has quoted no authority whatever for the proposed wording. I have already told your Lordships that there have been about six different reports on this matter, and none has used these words. The noble and learned Lord told us that he cannot say precisely what the words mean. I do not blame him for that because no one else can; no one knows what either of the words mean. The words are defined in the report of Lord Donovan. The draftsmen have deliberately ignored the words which have been used. There have been definitions of both "proceedings in Parliament" and of the limited use of "written words". These have been completely ignored, and different words have been inserted.
I must draw particular attention to the reservation in the phrase "no wider than necessary". I was on Lord Donovan's Committee and I should like to explain what was in mind here. Let us suppose that one wrote out a Question and talked about it with someone; it might be defamatory. However, if it was intended to cover only a certain area that would not be defamatory, provided the question was "no wider than necessary". Those words have been conspicuously omitted, and I believe it to be quite wrong that we should go ahead and do something which I have no doubt would go wider than the

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existing law. If my Amendment is approved the subsection would read:
"any statement in proceedings of the Assembly … shall be absolutely privileged".
That is as near as may be to the existing position—
Lord McCLUSKEY: My Lords, before he sits down, can the noble Earl tell us whether the wording which he proposes is intended to cover a Question for Written Answer; and, if so, how are the courts supposed to know that?
The Earl of SELKIRK: My Lords, the answer to that is extremely simple—so simple that I am astonished the noble and learned Lord should ask it. Part of the subsection states:
"the publication under the authority of the Assembly of any document shall be absolutely privileged".
That means that all Questions for Written
Answer which appear in the Official Report are absolutely privileged.
I believe that there is nothing we can do other than divide on this question. This is a matter of importance. If the other place thinks that we are wrong, they can correct our decision. I have looked at the reports fairly closely and, on the evidence I have from them, I think that it is wrong to take a step in this direction, unless we have authority, which in this case we have not. To take such a step would misrepresent the words which I believe will be used one day in the Defamation Bill which is to come before us.
3.44 p.m.
On Question, Whether the said Amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 119; Not-Contents, 76.

CONTENTS

Aberdeen and Temair, M.

Elles, B.

Moyne, L.

Adeane, L.

Elliot of Harwood, B.

Newall, L.

Alexander of Tunis, E.

Elton, L.

O'Hagan, L.

Alport, L.

Emmet of Amberley, B.

Onslow, E.

Atholl, D.

Evans of Hungershall, L.

Orr-Ewing, L.

Auckland, L.

Exeter, M.

Pender, L.

Balerno, L.

Faithfull, B.

Perth, E. [Teller.]

Balfour of Inchrye, L.

Ferrers, E.

Porritt, L.

Ballantrae, L.

Ferrier, L.

Powis, E.

Barnby, L.

Forbes, L.

Rankeillour, L.

Berkeley, B.

Fortescue, E.

Rathcreedan, L.

Bessborough, E.

Fraser of Kilmorack, L.

Reigate, L.

Bradford, E.

Gisborough, L.

Rochdale, V.

Braye, L.

Gray, L.

Romney, E.

Bridgeman, V.

Gridley, L.

Salisbury, M.

Buckinghamshire, E.

Hankey, L.

Sandford, L.

Caccia, L.

Harcourt, V.

Sandys, L.

Carrington, L.

Harvington, L.

Selkirk, E. [Teller.]

Cathcart, E.

Home of the Hirsel, L.

Sempill, Ly.

Chelwood, L.

Hunt, L.

Sligo, M.

Chesham, L.

Hylton-Foster, B.

Somers, L.

Chitnis, L.

Ilchester, E.

Spens, L.

Clancarty, E.

Kilmarnock, L.

Stamp, L.

Clifford of Chudleigh, L

Kinloss, Ly.

Strathcarron, L.

Clitheroe, L.

Kinross, L.

Stratchlyde, L.

Clwyd, L.

Kintore, E.

Strathcona and Mount Royal, L.

Cockfield, L.

Linlithgow, M.

Swansea, L.

Colville of Culross, V.

Long, V.

Tenby, V.

Craigavon, V.

Loudoun, C.

Teynham, L.

Crathorne, L.

Lyell, L.

Torpichen, L.

Cromartie, E.

Macclesfield, E.

Trefgarne, L.

Cullen of Ashbourne, L.

Malmesbury, E.

Tweeddale, M.

Daventry, V.

Mancroft, L.

Tweedsmuir, L.

De Freyne, L.

Mersey, V.

Vickers, B.

Denham, L.

Minto, E.

Vivian, L.

Derwent, L.

Molson, L.

Wakefield of Kendal, L.

Digby, L.

Monson, L.

Ward of North Tyneside, B.

Drumalbyn, L.

Morris, L.

Westbury, L.

Eccles, V.

Mottistone, L.

Wilson of Langside, L.

Ellenborough, L.

Mowbray and Stourton, L.

NOT-CONTENTS

Airedale, L.

Hampton, L.

Pargiter, L.

Amherst, E.

Hatch of Lusby, L.

Peart, L. (L. Privy Seal.)

Amulree, L.

Henderson, L.

Phillips, B.

Aylestone, L.

Houghton of Sowerby, L.

Ponsonby of Shulbrede, L.

Balogh, L.

Howie of Troon, L.

Ritchie-Calder, L.

Banks, L.

Hughes, L.

Rochester, L.

Birk, B.

Jacobson, L.

Sainsbury, L.

Blyton, L.

Jacques, L.

Samuel, V.

Boston of Faversham, L.

Kaldor, L.

Segal, L.

Bourne, L.

Kirkhill, L.

Shepherd, L.

Brock,L.

Leatherland, L.

Stedman, B.

Brockway, L.

Leonard, L.

Stewart of Alvechurch, B.

Byers, L.

Listowel, E.

Stone, L.

Collison, L.

Llewelyn-Davies of Hastoe, B.

Strabolgi, L. [Teller.]

Crook, L.

Lloyd of Hampstead, L.

Swaythling, L.

Davies of Leek, L.

Lovell-Davis, L.

Tanlaw, L.

Davies of Penrhys, L.

McCluskey, L.

Taylor of Blackburn, L.

Donaldson of Kingsbridge, L.

McGregor of Durris, L.

Wallace of Coslany, L.

Elwyn-Jones, L. (L. Chancellor.)

Mackie of Benshie, L.

Wedderburn of Charlton, L.

Foot, L.

McNair, L.

Wells-Pestell, L. [Teller.]

Gaitskell, B.

Maybray-King, L.

Wigg, L.

Gardiner, L.

Morris of Borth-y-Gest, L.

Wigoder, L.

Gordon-Walker, L.

Murray of Gravesend, L.

Willis, L.

Goronwy-Roberts, L.

Paget of Northampton, L.

Wootton of Abinger, B.

Hale, L.

Pannell, L.

Wynne-Jones, L.

Halsbury, E.

On Question, Amendments agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
Clause 20 [Scrutiny of Assembly Bills]:
3.54 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 5:
Page 9, line 25, leave out ("in") and insert ("by or under").
The noble and learned Lord said: My Lords, this is an Amendment to Clause 20. In the course of re-examining this clause as it was after the Amendments which were initiated by the noble Viscount, Lord Colville, were made at Report stage, we discovered a matter which we felt ought to be corrected. The Scottish Assembly can pass a Bill to implement a Community obligation, and the Secretary of State might form the view that implementation should be effected in Westminster legislation. In these circumstances, under the second part of Clause 20(2), he can decline to submit the Assembly Bill for Royal Assent. However, he might form the view that the Community obligation could equally well be effected by subordinate instrument made under Section 2(2) of the European Communities Act 1972, just as well as by primary legislation at Westminster. The clause should therefore provide for this alternative method of implementation, and that is what the Amendment achieves. I beg to move.
Viscount COLVILLE of CULROSS: My Lords, I think I should like to ask the noble and learned Lord just one question. Does he confirm that it would be right to have this Amendment to provide for subordinate legislation whether or not you have my Amendments about directly applicable legislation in subsection (1)? I think it is right in any event.
Lord McCLUSKEY: Yes, my Lords, I confirm that.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendments Nos. 6 and 7:
Page 9, line 34, at end insert ("or is not compatible with any enforceable Community right, power, liability, obligation or restriction")
Page 9, line 34, line 38, after ("Assembly") insert ("or is so compatible").
The noble Viscount said: My Lords, this Amendment, No. 6, and the next one, are consequential upon the acceptance by this House at the Report stage of the Amendments that I suggested about directly applicable European legislation. I do not think I need say anything more than that. I beg to move.
Lord McCLUSKEY: My Lords, I accept that these two Amendments, Nos. 6 and 7, are both consequential.
Clause 22 [Executive powers]:
3.57 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 8:
Page 11, line 1, leave out subsection (1).
The noble Viscount said: My Lords, this Amendment is, I am afraid, nothing much less than a constitutional blockbuster; and I hope the House will forgive me, but it is really a very difficult subject indeed. May I say that in attempting to rewrite this clause of the Bill I am not proposing that there should be any change from what the Government are at present proposing should be done under Clause 22, although whether or not one likes that is another matter. What I am proposing is merely that it should be done in a different way, and I shall seek to explain what different way and why I suggest that that should be done.
The reasons why I suggest that the granting of Her Majesty's executive powers, so far as they relate to matters devolved on to Scottish Secretaries, should not be done by means of a statute are several. The first of them is that, according to all the advice that I have been able to obtain from learned sources and, indeed, from text-books, if one takes the prerogative (which is what this is) in Clause 22(1) and, by means of this provision in the Bill, actually hands it over to the Scottish Secretaries, then the source of their power to act in realms that are at the present moment purely non-statutory prerogative will, instead, be the Bill itself. In other words, by doing what subsection (1) does we are making statutory those parts of the prerogative which we are seeking to devolve although at the present moment they are not statutory. That means that in the case of doubt the courts will have to interpret what Parliament meant by this Bill, and not what the prerogative consists of other than in terms of statutory declaration; and there is no doubt that, by doing what we are doing in this subsection, we open up the possibilities of challenges in the courts against executive acts by Scottish Secretaries on the grounds that they are outside the powers and the legality of what has been conferred on those Scottish Secretaries by the Bill.
The courts will be in a difficulty. The primary difficulty they will be in, I think, is perhaps one which is very obscure but
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which, nevertheless, goes to the root of the prerogative itself. There is, so far as I am aware, no other statute or provision in any part of this country or the Commonwealth in respect of which the powers of the prerogative are exercisable by people who do not have access, either to the Crown or, in Colonies or Dominions, to the Governor or the Governor-General, who is the Crown's representative in those territories. Scottish Secretaries are to have no direct access to the Crown and therefore they cannot advise the Queen; they can only do it, if at all, at second hand. There is at least this to be said: if Parliament so provides, it does not help the courts to say what is the extent of the provision that Parliament has made when it is done in this way which is wholly unique in the history of our constitutional legislation.
I believe that the first thing that we are doing is to invite the possibility of litigation, and of course if one does that one invites delay. But I would go further than that, and in order not to make too long a speech I should like to take an example of an hypothesis that may happen. I cannot look into the future to see what prerogative Acts may come to be used in the future which have no precedent, but perhaps I could suggest to the House that we take the example of the first time (I know it is in the past) that somebody had to decide whether or not to blow up a wrecked oil tanker that was leaking its cargo on to the beaches. Let us suppose that this had never been done before. That tanker was on its way to Rosyth and it went aground in the Forth Estuary, the Firth of Forth, and the oil started coming ashore on both sides.
The Scottish Secretary has the power under this Bill to control pollution; therefore, it is a devolved matter. There is no doubt, after what happened at Lowestoft which nearly blew in my windows 25 miles inland, that the prerogative extends to blowing up tankers; but as this would be the first time it happened nobody might be exactly clear whether or not this was so. There is judicial authority for this, but it is not necessarily clear.
The first question that would arise when the Scottish Secretary sought to decide whether or not to exercise his powers would be this: Parliament could not have known when it passed the

393
Scotland Bill that the prerogative might be said to include this sort of action, so did Parliament devolve this part of the prerogative on the Scottish Secretary? It would be a matter of construction, not of the prerogative but of the statute; that is, the Bill which is now before us. That is the first point.
There is a subsidiary point. Supposing that the Scottish Secretary was minded to go ahead despite this difficulty, would he be able on his own to exercise the right to blow up the tanker? Although it is perfectly true that under the legislation that we have before us he is in charge of the control of pollution—and pollution was undoubtedly in my hypothesis—nevertheless he is not in charge of the Forces of the Crown, nor is he in charge of foreign affairs. Supposing that the only people available to blow up the tanker were the Royal Navy and the tanker was a Russian one, involving matters definitely not devolved upon the Scottish Secretary. Supposing that the Scottish Secretary, wishing to blow it up, found that the Secretary of State, who presumably still exercises anything that is left of the prerogative so far as it is not devolved, decides that he does not wish to advise the Queen to use the Royal Navy to blow it up. Who wins?
There are parallels to this situation. In Canada there was the situation where provincial leigslation had, as it were, taken over the old prerogative task of allowing a company to operate by charter, and there was provincial legislation which limited the extent of a company's operation to the confines of the province in which the legislation was passed. But the company wished to mine outside the limits of that province. Incidentally, it was a company called the Bonanza Gold Creek Goldmining Company—a good name for a goldmining company. It obtained a charter from the Federal Government which allowed it to operate outside the province. Somebody wished to see whether that was in order.
The argument ran like this: the prerogative has been taken over in the province by the legislation, therefore there is no further room for a federal prerogative to go beyond legislation. The matter went to the Privy Council. I have not looked to see how long it took to get there. The Privy Council said, "No, in fact
394
there remains a federal prerogative which has not been taken over by the provincial legislation, and it is perfectly all right for the Governor-General to grant a charter for the company to mine outside the province". Think of the trouble that this would cause; think of the litigation, think of the delay; what is going to happen to the tanker meanwhile?
Supposing the courts came to the opposite conclusion that there was no power, or something of this kind, and the tanker had been blown up, does that mean that the owners are to claim damages for something that turns out under this statute to have been ultra vires? I am very concerned about this. If one seeks to put entirely unspecified prerogatives into statutory form—and I accept that they cannot be listed, although I asked at the Committee stage that they should be listed—then I think we are in trouble. I wish to go as far as I possibly can to assist the Government, because I know that they do not want to do anything that is out of order or out of the ordinary.
There are ways in which it could be done. If the Government must have something in the Bill, perhaps they could adapt Section 61 of the Commonwealth of Australia Constitution Act 1900 and say something like this: "The executive power of the Crown is vested in the Queen and is exercisable by the Scottish Secretary in so far as it relates to devolved matters or is exercised in or as regards Scotland as the Queen's representative (one may not wish to have as the Queen's representative'; that is optional) and extends to the execution and maintenance of the laws of Scotland and the United Kingdom."
I put it forward as a suggestion which might fill a gap in the Bill if the Government must do it. Alternatively, your Lordships might be interested to look at the end of each yearly set of Statutory Instruments which are in the Library, because in addition to the Statutory Instruments there are printed a selection of items of law which are non-statutory Instruments and are, at any rate, in very large part the exercise of the Crown's prerogative pure and simple devoid of any statutory authorisation.
Therefore, if one wished to do what subsection (1) of this Bill does by other means, there are a number of Instruments

395
available to do it. There is an Order in Council which can be made without statutory authority just by the Royal prerogative itself. There are Royal Instructions which tend to start off: "We do hereby direct and enjoin and declare our will and pleasure" as follows. There is a proclamation: "Whereas by grant, usage, sufferance and other lawful means we have power …". And there are Letters Patent which usually say something or other which ends with the words, "greetings". Despite these archaic words, these, as I understand it, are all backed by the law of the United Kingdom under the Sovereign, and there is nothing wrong with any of them. Although I do not know which would be the correct vehicle to convey the conferment of the executive or prerogative powers upon the Scottish Secretaries, I am quite sure that one of them would.
If it were done that way, or if it were done in the way I suggested by declaratory provisions similar to those of the Australian Constitution Act, the nature of those prerogative powers would not be affected. You would not make them statutory. You would not cause the courts to interpret statutes and you would not divide them up so that some of them reposed in the Scottish Secretaries and some of them in the Secretary of State, but in different forms: one being purely prerogative and the other statutory so as to lead to the kind of difficulties that I suggested about my tanker. Although I appreciate the Government's gesture in accepting my earlier Amendment about removing the words "prerogative or other", I am persuaded by my noble friend Lord Selkirk and by others to whom I have spoken, that in the form in which it now appears in the Bill this is a legislative monstrosity; and that is the last thing that we should wish to have.
I was invited on the last occasion by the noble and learned Lord, Lord McCluskey, to tell him what mischief it did. I hope that I have succeeded in making clear and not too far-fetched a sketch of some of the mischiefs which might ensue. I hope that we will take it out. I hope that the Government will reproduce the same effect by one of the other means that I have suggested. If I may say this in passing, my second Amendment merely reproduces in a re-drafted form (I hope) the exact
396
contents of what are already subsection (2) of this clause.
The Earl of SELKIRK: My Lords, perhaps I might say a word on this. I admired the ingenious and very practical proposals put forward by my noble friend Lord Colville of Culross. I must admit that I go perhaps rather more deeply into the principle of this. There is plenty of evidence, and I do not want to bore your Lordships with quoting it; but to take a recent book, of 1977, by Mr. Wade, the Master of Caius College, Cambridge, he says:
"The Crown's legal power, whether prerogative or statutory, must be exercised by the Sovereign personally as a matter of law".
It cannot be devolved except by the Sovereign personally in something of the way referred to by my noble friend. If you do not do this, you are doing something quite outside the constitutional procedure of this country. The importance of this lies, I think, in the evolution of constitutional government in this country. The word "Monarch" means sole rule. We have become a constitutional monarchy and, bit by bit, the powers that were once in the one hand have been transferred by statute and taken away; and, alternatively, the Monarch now exercises her remaining powers through Ministers, through their advice. They take the responsibility for the advice. If you start devolving prerogative powers to other people, you break this down and nobody is then responsible personally for what may be done.
The noble and learned Lord, Lord McCluskey, said that there are some things done by the Departments which are not referred to the Queen. This is true. Mr. Berridale Keith in King and Empire deals specifically with that. He says:
"The Ministers in charge of these Departments are appointed by the King"—
as was then the case—
"and they owe him the duty of bringing to his notice matters of … first-class importance".
This means that they can do many things without necessarily referring in every case to the Monarch personally. I think it is important, if these are the results that are wanted to be achieved, that they should be achieved in a manner which lies within the flexible Constitution which we have. It is clear that if you once start putting them into statutory form, as my noble

397
friend has said, it is the statutory form which is the origin and not the prerogative. I hope that the Government will think hard about this. I am certain it is wrong.
My Lords, there is one other point. This clause has taken the extraordinary course—one which has never been taken before—of trying to distinguish between the prerogative, on the one hand, and executive duties on the other. This is totally without precedent anywhere. There is ample evidence. I take the great Dicey who says:
"Every act which the Executive Government can lawfully do without the authority of the Act of Parliament is done by virtue of the prerogative".
That means that there is no division. This division which has been drawn is artificial and totally without precedent. I hope that the Government will agree that there are better and more effective ways of doing it than they have suggested here.
Lord McCLUSKEY: My Lords, I thought that the last point of the noble Earl, Lord Selkirk, had already been met by deleting the words "prerogative and other" from Clause 22(1). I do not understand that point. He says that there is no precedent for this kind of distinction. Of course, there was a precedent. It was in an Act promoted by the previous Government to which I have previously drawn attention. It is in Section 7(2) of the Northern Ireland Constitution Act 1973 which reads:
"As respects transferred matters the Secretary of State shall, as Her Majesty's principal officer in Northern Ireland, exercise on Her Majesty's behalf such prerogative or other executive powers of Her Majesty in relation to Northern Ireland as may be delegated to him by Her Majesty".
The Earl of SELKIRK: My Lords, he is a Minister of the Crown and would have prerogative powers in any case.
Lord McCLUSKEY: My Lords, I have given my answer. There is a precedent for the wording with which we started off. We have removed that wording in order to meet the objections that were taken at the time, and we are content with the wording we now have. If one is judging whether the Amendment should be moved into the Bill, one has to see what effect the Amendment would have in the context of the Bill.
398
These Amendments proposed to Clause 22 would confine the Scottish Secretaries to the executive powers conferred on Ministers under existing enactments in the devolved areas. I think that the noble Viscount agrees with that proposition. They would not be able to exercise any of the common law powers of Ministers in devolved areas. The Amendments would create considerable doubt about the extent to which Scottish Secretaries could initiate new policies. They radically change the scheme of the Bill, which is based on the devolution of powers in relation to matters; and that is central to the whole scheme of this Bill.
It is not based on existing statutory powers; although, for the purpose of elucidating what matters are devolved and what are not devolved, it has been necessary to refer from time to time to certain specific statutes. The common law powers of Ministers are essential in a scheme of executive and legislative devolution. They include such well-established powers as the power of the Lord Advocate to intervene in litigation in relation to such matters as charitable trusts, and the power to initiate pilot projects such as the trial scheme of registration of title which has been operated in anticipation of future legislation; as well as the power, for example, to set up advisory bodies such as the Advisory Council on the Treatment of Offenders, the Arts Council, the Sports Council and—an example which has been given before—the Criminal Injuries Compensation Board. The powers also include the setting up of Departmental and other non-statutory inquiries which may be the necessary preliminaries to legislation.
These powers must be available to Scottish Secretaries. They would not be available under the Act (if it became an Act) if these Amendments were moved successfully to Clause 22. Whether or not you choose to call them prerogative powers is, in my view, to a large extent academic—as the House acknowledged by accepting the deletion of the express reference to prerogative powers when that was done at an earlier stage.
My Lords, I go back to the argument I used earlier. I invite your Lordships to look at the specific wording. We are here talking about certain powers; because

399
we start with the word "such". We are talking about:
"Such of Her Majesty's powers as would otherwise be exercisable … by a Minister of the Crown …"
falling to be exercisable by a Scottish Secretary. In the sense that they may include powers which could properly be described as prerogative powers, Clause 22(1) does not seek to alter them or to limit them, but merely says who is to exercise them on behalf of Her Majesty. No limitation of scope is imposed upon them. Given that it is necessary for the Scottish Secretaries to have these powers, it is quite proper to confer them, as Clause 22(1) does. The suggestion that they should somehow be conferred by one of the instruments which the noble Viscount described is, we think, inappropriate. This would either involve picking out particular powers and listing them, as it were, which would be insufficient, or would involve conferring blanket powers in devolved fields, as in Northern Ireland. That would involve the interposition of some Governor-General type of figure, as I think the noble Viscount would not dispute. It would also require a specific derogation for powers not to be transferred.
In the course of the speech which the noble Viscount delivered supporting his Amendment mention was made of the example of the tanker. I do not know that he would say that there is a prerogative for blowing up tankers. Certainly when the theory of the prerogative first came into existence, there was no oil and there were no tankers. I should not like to offer what would appear to be an authoritative view about what is the nature of that particular power. But one cannot say that there is a prerogative for blowing up tankers. To that extent, the example he gives is somewhat suspect.
In any event, if it be the case that the Scottish Secretary has the power to blow up tankers because of the wording of Clause 22(1), and if the situation were that the only men available were men of the Royal Navy but they were under the jurisdiction not of Scottish Secretaries but of the Secretary of State for Defence, and if the tanker were Russian and, accordingly, the Secretary of State for Foreign Affairs did not want it blown up,
400
then surely one could properly say that Clause 39 would apply here. The action would under Clause 39(1)(b) be one capable of being taken by a Scottish Secretary. If failure to take it would or might affect a reserved matter, then the Secretary of State may use certain powers. So Clause 39 entitles him to intervene if he wants the tanker to be blown up. Alternatively, if he does not want it to be blown up, he simply has to qualify a public interest and an effect upon a reserved matter. As foreign affairs are a reserved matter there would be an effect upon a reserved matter and there would be material upon which the Secretary of State could judge the public interest was involved and so he could intervene under Clause 39.
I do not think that I can add to this debate; we have had it several times. It is extremely difficult at this stage when we sought to meet the objections that were first made at an earlier stage. We are now in a position that this is the last occasion upon which the Government may seek to move Amendments in this House, and we are not satisfied with the Amendment proposed by the noble Viscount. We believe it is contrary to the whole scheme of the Bill and that this whole question of the prerogative is substantially an academic one. I should like to remind your Lordships of the remarks of the noble and learned Lord, Lord Reid, in the Burmah Oil case in 1965. Looking at previous cases of the prerogative he said:
"There have been no cases directly raising the matter for some centuries, and obiter dicta and the views of institutional writers and text writers are not always very helpful".
I certainly think I could endorse the latter part of that. I submit that the Bill is satisfactory as it stands, that we are not doing anything other than indicating who should exercise certain powers which would otherwise be exercisable by a Minister. We are now saying they should be exercisable by a Scottish Secretary. That is modest enough, and I ask your Lordships not to accept this Amendment.
4.25 p.m.
Viscount COLVILLE of CULROSS: My Lords, the main point that the noble and learned Lord makes is that if we were to remove the first subsection, then we

401
would deprive the Scottish Secretaries of a whole range of executive powers of which he gave an example. I thought that I had made it perfectly clear—and I certainly made it clear in correspondence with the Government some week or so ago—that I was not proposing to remove this subsection in a vacuum. I think I made it clear that there were a whole range of methods whereby exactly the same powers—and they are as general in the Bill as they would be in any of the suggested instruments that I put forward—could be conferred on the Scottish Secretaries without bringing about matters of litigation, delay and uncertainty such as I have mentioned.
I do not accept what the noble and learned Lord says about any of those instruments necessarily having to bring in a Governor-General figure. The Bill does something which is unprecedented in terms of conferring upon those who have no direct access to the Crown the direct powers of the prerogative, the Executive or whatever one wishes. This is something that has attracted a great deal of criticism among those whom I do not think can be written off as pure academics. They are concerned with the living Constitution of this country, and just because it is not written that does not mean to say it is not important. They are intensely concerned with this. The Government pay no attention to that concern. If they can do it by statute, I see no earthly reason why the Queen should not be able to do with her prerogative just as much as Parliament can do with it. Why should she not do the same under one of the instruments that I suggest?
The noble and learned Lord cannot escape from the logic of what I say merely by insisting upon inserting a "Governor-General" who is not in the Bill. No,
my Lords! I have not only given notice to the Government of my unhappiness over this issue—which I may say is a matter of conversion because I listened to what other noble Lords said in earlier speeches—but I gave notice of the specific questions that I asked about uncertainty and delay. They have not been answered by the noble and learned Lord, either because he does not consider that they are worth answering—as to which I suppose I am entitled to my own opinion and noble Lords can make up their own minds—or because there is no answer. It is the latter which I think is the case. Once this matter gets into the realms of possible litigation and interpretation by the courts, then indeed we shall get the situation that the noble and learned Lord talks about, whereby the Scottish Secretaries will not have these former common law executive powers because they will not be able to exercise them until the outcome of the litigation. Why do it like that? I have set out what I think is a perfectly respectable, responsible and well precedented alternative which will come to exactly the same thing and avoid all the difficulties.
I cannot think that in this House we wish to violate the Constitution or should set our seal on something which responsible people who have looked carefully at this issue—learned men in the universities and the legal profession—say is wrong. I do not think that we should let the Bill go from this House containing that flaw. I am afraid that I am not convinced by what the noble and learned Lord says.
4.29 p.m.
On Question, Whether the said Amendment (No. 8) shall be agreed to?
Their Lordships divided: Contents, 105; Not-Contents, 83

CONTENTS

Abinger, L.

Bridgeman, V.

De Freyne, L.

Adeane, L.

Caccia, L.

Denham, L. [Teller.]

Alexander of Tunis, E.

Carr of Hadley, L.

Derwent, L.

Alport, L.

Cathcart, E.

Digby, L.

Atholl, D.

Chesham, L.

Drumalbyn, L.

Auckland, L.

Clancarty, E.

Eccles, V.

Avon, E.

Clitheroe, L.

Ellenborough, L.

Balerno, L.

Clwyd, L.

Elles, B.

Balfour of Inchyre, L.

Cockfield, L.

Elton, L.

Barnby, L.

Colville of Culross, V.

Emmet of Amberley, B

Berkeley, B.

Crathorne, L.

Faithfull, B.

Bessborough, E.

Cromartie, E.

Ferrers, E.

Boothby, L.

Cullen of Ashbourne, L.

Ferrier, L.

Braye, L.

Daventry, V.

Forbes, L.

Fortescue, E.

Lyell, L.

Sandford, L.

Fraser of Tullybelton, L.

Malmesbury, E.

Sandys, L.

Gainford, L.

Mancroft, L.

Selkirk, E.

Gisborough, L.

Massereene and Ferrard, V.

Sempill, Ly.

Gray, L.

Melville, V.

Somers, L.

Hailsham of Saint Marylebone, L.

Mersey, V.

Spens, L.

Minto, E.

Stamp, L.

Hankey, L.

Monson, L.

Strathcarron, L.

Harcourt, V.

Mottistone, L.

Strathclyde, L.

Home of the Hirsel, L.

Mountgarret, V.

Strathcona and Mount Royal, L.

Hunt, L.

Mowbray and Stourton, L. [Teller.]

Hylton-Foster, B.

Swansea, L.

Ilchester, E.

Newall, L.

Tenby, V.

Inglewood, L.

O'Hagan, L.

Teynham, L.

Killearn, L.

Onslow, E.

Torphichen, L.

Kinross, L.

Orr-Ewing, L.

Trefgarne, L.

Kintore, E.

Pender, L.

Tweeddale, M.

Lauderdale, E.

Rankeillour, L.

Tweedsmuir, L.

Leathers, V.

Reigate, L.

Vickers, B.

Linlithgow, M.

Rochdale, V.

Vivian, L.

Long, V.

Romney, E.

Ward of North Tyneside, B.

Loudoun, C.

Saint Oswald, L.

Westbury, L.

NOT-CONTENTS

Aberdeen and Temair, M.

Harris of Greenwich, L.

Ritchie-Calder, L.

Airedale, L.

Hatch of Lusby, L.

Rochester, L.

Amherst, E.

Henderson, L.

Sainsbury, L.

Aylestone, L.

Houghton of Sowerby, L.

Samuel, V.

Balogh, L.

Howie of Troon, L.

Seear, B.

Banks, L.

Hughes, L.

Sefton of Garston, L.

Bernstein, L.

Jacobson, L.

Segal, L.

Birk, B.

Jacques, L.

Shepherd, L.

Blyton, L.

Kaldor, L.

Shinwell, L.

Boston of Faversham, L.

Kilbrandon, L.

Stedman, B.

Brockway, L.

Kirkhill, L.

Stewart of Alvechurch, B.

Buckinghamshire, E.

Leatherland, L.

Stone, L.

Byers, L.

Lee of Asheridge, B.

Strabolgi, L.[Teller.]

Collison, L.

Leonard, L.

Swaythling, L.

Crook, L.

Listowel, E.

Tanlaw, L.

Davies of Leek, L.

Llewelyn-Davies of Hastoe, B.

Wade, L.

Davies of Penryhs, L.

Lovell-Davis, L.

Wallace of Coslany, L.

Donaldson of Kingsbridge, L.

McCluskey, L.

Wedderburn of Charlton, L.

Douglas of Barloch, L.

McGregor of Durris, L.

Wells-Pestell, L.[Teller.]

Elwyn-Jones, L.(L. Chancellor.)

Mackie of Benshie, L.

Wigg, L.

Evans of Hungershall, L.

Maybray-King, L.

Wigoder, L.

Foot, L.

Morris of Borth-y-Gest L.

Willis, L.

Gaitskell, B.

Murray of Gravesend, L.

Wilson of Radcliffe, L.

Gardiner, L.

Pannell, L.

Winterbottom, L.

George-Brown, L.

Peart, L. (L. Privy Seal.)

Wise, L.

Gordon-Walker, L.

Perth, E.

Wootton of Abinger, B.

Grey, E.

Phillips, B.

Wynne-Jones, L.

Hale, L.

Ponsonby of Shulbrede, L.

On Question, Amendments agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly
4.36 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 9:
Page 11, line 6, leave out from beginning to ("and:") in line 9 and insert—
("Such executive powes as have been conferred on a Minister of the Crown by an enactment passed or made before the passing of this Act shall, if they relate to devolved matters and are exercisable in or as regards Scotland, be exercised by a Scottish Secretary;").
The noble Viscount said: My Lords, this Amendment merely puts into what I hope is reasonable English the devolved
404
statutory executive powers that are going to the Scottish Secretaries. It is necessary to make this Amendment because of the removal of subsection (1) and the necessity to set the words out again. I beg to move.
Lord McCLUSKEY: My Lords, the Government regard this as consequential and accept it on that basis, without prejudice to any other steps we may seek to take in relation to it on another occasion.
Clause 28 [Members' pecuniary interests]:
Lord McCLUSKEY Lord McCLUSKEY moved Amendments Nos. 10 and 11:
Page 13, line 27, after ("orders") insert ("or such other interests (if any) as may be specified in the standing orders")
Page 13, line 30, at end insert—
("(2) Standing orders made in pursuance of subsection (1) above may include provison for excluding members contravening them from the proceedngs of the Assembly.")
The noble and learned Lord said: My Lords, during our discussion of this rather difficult subject, dealt with in Clause 28 at the Report stage, my noble friend Lady Stedman stressed that the Government sympathised with the Opposition's worries on this whole matter and agreed to look again at the suggestion from the noble Earl, Lord Selkirk, that the Assembly should be required to cover pecuniary and other interests, and at the suggestion made by the noble Viscount, Lord Colville, that the Assembly should be able to suspend or exclude Members who failed to comply with standing orders on interests. The Government have considered these matters carefully and the two present Amendments are the result.
With your Lordships' permission, I should like to speak to Amendments Nos. 10 and 11 at the same time. Amendment No. 10 makes it clear beyond doubt that the Assembly may include in its standing orders provision for the disclosure of interests other than pecuniary interests. Without it, there might have been room to argue that the particularity of the provision on pecuniary interests was intended to exclude the provision on other interests. We believe that the second Amendment, No. 11, meets the point raised by the noble Viscount, Lord Colville, and enables the Assembly to provide for the exclusion from its proceedings of a Member who contravenes the standing orders relating to interests. Exclusion is not the same as expulsion. Of course, to expel a duly-elected Member would be a step of major constitutional significance requiring, we think, primary legislation. It certainly should not be done under standing orders. I hope the House will agree with both these Amendments, and that they meet the worries expressed by the two noble Lords. I beg to move Amendments Nos. 10 and 11.
Viscount COLVILLE of CULROSS: My Lords, in strict chronological order, it ought to be my noble friend Lord Selkirk who first says "thank you". But as he
406
is engaged in deep deliberations, perhaps I may say that Amendment No. 11 exactly meets my point, and I am very pleased indeed that the Government should have put it forward. I hope that it will never have to be used, but it is just as well to make sure that it could be, if necessary. May I also say "thank you" for Amendment No. 10, because although I did not move the point in earlier stages of the Bill, I very much agreed with what my noble friend said and it is extremely useful to have this clarified as well.
The Earl of SELKIRK: My Lords, if we are speaking on Amendment No. 10, may I just express my very sincere thanks to the noble and learned Lord and the Government for putting this in. I think that it is an improvement and I am sure that the Government will never regret having done it.
Clause 29 [Committees]:
4.42 p.m.
Earl FERRERS Earl FERRERS moved Amendment No. 12:
Page 13, line 35, leave out ("may") and insert ("shall").
The noble Earl said: My Lords, we had quite a lot of discussion, at both the Committee stage and the Report stage, about the types of committees which the Assembly can set up and what functions and powers they can have. Various Amendments were put down at both stages, from which we elicited a lot of information from the Government. We entirely accept that the Assembly should have powers to set up committees, and the Government's answer has invariably been—it has become rather like a record—let the Assembly be free to set up what committees it likes, on whatever matters it likes.
It was only at the Committee stage that we discovered that it was the Government's intention to let the Assembly set up committees even on matters that were not devolved to it. This concerned some of us, and at Report stage my noble friend Lord Gray tried to reshape this clause. This was done on the assumption that the committees could have legislative powers. But it was only in response to Amendments

407
of my noble friend and other noble Lords, that it became clear at the Report stage that it was the Government's intention that the committees should not have legislative powers. Therefore, the Amendments which I moved, which sought to curtail the Assembly from setting up committees on non-devolved matters, fell because they were designed to fit in with the Amendments of my noble friend Lord Gray.
So that we have tried again, and I venture to suggest that it is not right for the Assembly to set up committees on matters which do not relate to devolved subjects. This is all that these Amendments seek to cover. If they are accepted, the Assembly will, for example, be able to set up committees to service the Assembly and discuss the quality of the Brussels sprouts served in the dining room. It can set up committees to discuss health or education, which are both devolved matters, and in so doing, if these Amendments are accepted, they can discuss health and education in England and compare the two. It can set up committees on transport, which is devolved, and—I know that this will satisfy my noble friend Lady Elliot, who expressed some concern about the matter—in talking about transport they can discuss the effect of British Rail on the transport system and, inevitably, can consider the effect of British Rail on the United Kingdom and, in particular, on Scotland.
However, what the Assembly will not be able to do is to set up a committee specifically on foreign affairs, which is a reserved matter. It will not be able to set up a committee with functions to discuss, for example, United Kingdom aid to Chile. Nor, as the noble and learned Lord, Lord Wilson of Langside, suggested, will it be able to set up committees to consider the Polaris submarines in Holy Loch. Those are reserved matters and, in my judgment, it would be wholly inappropriate for the Assembly to set up committees which could challenge Westminster on matters for which Westminster is responsible. If that were done, it could provide a potential focus of conflict on sensitive or emotional problems.
If I may give one example, industrial relations is a reserved matter and it could be that there was a large strike in some
408
factory where people were demanding a wage increase of, say, 20 per cent., but the Government of the day had a pay policy restricting wages to 10 per cent. Imagine, my Lords, the situation which would arise if the Assembly decided to set up a committee to discuss that matter, on which it had no powers. If the Assembly, having a Party majority that was different from that at Westminster, declared that its sympathies lay with those who demanded 20 per cent., as against the Government's pay policy restrictions of 10 per cent., it would be wrong to permit the Assembly to set up committees which could deliberately and directly embarrass Westminster. This would be highly undesirable. So I hope the Government will agree that, while committees can be set up to consider and discuss most subjects, they should not be set up and be given functions which do not relate to devolved matters. My Lords, I beg to move.
4.47 p.m.
Lord GRAY: My Lords, may I support my noble friend on this Amendment, since he has referred to the fact that his Amendment No. 14 fell at Report stage, because it had been attached to an attempt that I made to redraft this clause at that time. Not only do I support my noble friend in all that he has said, but I should like to point to an argument within an argument about whether the word "shall" should be substituted for the word, "may".
It is a narrow but important point. It turns not on the usual arguments about "may" versus "shall", but has other connotations. As the sentence in the first part of this clause is written with the word "may", surely the construction can be placed upon it that the Assembly may make standing orders to govern the setting up of the committees referred to. But there is nothing in the clause, or in the Bill, to stop the Assembly from setting up committees without having the standing orders. Hence, without the protection of the word "shall", I can see nothing in the Bill which says that if the committees which the Government want to see set up are to he protected by standing orders, this clause should be mandatory.
Lord MACKIE of BENSHIE: My Lords, this Amendment is one in a long series of niggles and misunderstandings,

409
which the Opposition have consistently put up throughout the passage of this Bill. The Bill started off with a reasonably narrow selection of powers and, one by one, they have been whittled away, until a substantial difference has been made in the powers of the Assembly from what was originally envisaged.
In this Amendment, we are trying to prevent the Assembly from discussing matters which it has no power to alter but about which it has power to make representations. We are trying to prevent the Assembly from studying agriculture, for instance, which, particularly in Scotland, stands in close relationship to forestry, which I trust will come back into the Bill. It is ludicrous to expect that a committee will not study the effects on agriculture. One could mention many other related subjects. If we say that the Assembly cannot set up committees to study problems which are not devolved, we are making the whole matter quite ridiculous. I hope that this Amendment will not be carried.
4.51 p.m.
Lord DRUMALBYN: My Lords, the noble Lord, Lord Mackie of Benshie, inevitably speaks from a rather lofty position. He takes a lofty attitude, as though the Liberal Party and the noble Lord himself had never misunderstood anything in this Bill, from beginning to end. The fact of the matter is that at each stage of the Bill we have been trying to elicit what this clause is intended to do. I say quite freely to the noble Lord that I have never really understood what the effect of the clause will be. I think that we ought to be grateful to my noble friend—and I hope that the noble Lord will be grateful to him—for trying to elicit from the Government, once and for all, what the clause is intended to do.
At the moment, the clause is in exactly the same form as when it was introduced into this House. The difficulty about the clause is that if we say that we may include provisions for the appointment of committees with functions extending to any matter which is devolved, by implication we are saying that we may not include provisions for the setting up of committees to deal with non-devolved matters. I do not see how we can logically avoid that conclusion.
410
In this Amendment my noble friend is spelling out what should be done. Without any doubt it is absolutely right that the new Assembly should set up committees to deal with devolved matters. Indeed, it is its duty to do so, and I should have thought that the word "shall" was appropriate. In any case, we could not very well say that the standing orders of the Assembly may include provisions for the appointment of committees to deal with devolved matters and then go on to say that they shall not do so in the case of matters which are not devolved. In the circumstances, it is a good deal more elegant to say "shall" in both cases.
Will the noble Lord now tell us what the clause is intended to do? It is absolutely in vacuo. Does the noble Lord think that I am right in saying that the standing orders of the Assembly may include provisions to set up committees to deal with devolved matters, which automatically implies that they may not include provisions for setting up committees to deal with matters which are not devolved? If that is not so, why on earth should we have the clause? There is nothing to stop the Assembly from having the powers that are given in the clause, and it is unnecessary to state this. The only reason for stating it is if we are going to say that the Assembly must appoint such committees and that it must not, by the same token, appoint committees which deal with non-devolved matters.
I hope, therefore, that the noble Lord will be able to tell us at last what this clause is intended to do, and so put our minds at rest.
Lord WIGG: My Lords, I support the Amendment that the noble Earl, Lord Ferrers, has moved. It seems to me to be absolutely right that the word "may" should go and that the word "shall" should take its place. This is such an important matter that it should not be left to the pressures which will be generated inside the Assembly to do this or that. It is a matter upon which Parliament should take a decision, and I hope very much that the Government will accept the Amendment.
4.56 p.m.
Lord KIRKHILL: My Lords, at the outset I must say to the noble Earl,

411
Lord Ferrers, the noble Lord, Lord Drumalbyn, and the noble Lord, Lord Gray, that I thought that I had explained very carefully on a previous occasion what is the Government's position in relation to this clause, but if noble Lords will bear with me I shall attempt yet again to spell out the Government's view.
Clause 29 began life in your Lordships' House as a very simple provision about committees—so simple, indeed, that if it had been taken out of the Bill it would have made almost no substantive difference. The Assembly could have claimed an inherent power to appoint committees. All that would have been lost, had we taken out the clause, would have been the gentle steer that it gave to the Assembly to bring all matters within the purview of one committee or another. This provision replaced the more rigid provision in the Scotland and Wales Bill and reflects the Government's view that the Assembly should settle its own internal arrangements—a fact which the noble Lord, Lord Mackie of Benshie, never fails to remind your Lordships' House is important, and one with which I agree entirely. The proposal now before your Lordships' House is that, were the Amendment to be carried, this gentle steer should become an absolute requirement. The Assembly must have committees covering all devolved matters. The Government can only say—and not for the first time—that there is no need for mandatory, legislative provision to this effect. The Government's view is: let the Assembly decide.
The sting is really in the tail. The noble Lords opposite want to stop the Assembly from appointing committees with functions relating to matters which are not devolved, but it has already been accepted that nothing can prevent discussion of non-devolved matters. In my view, noble Lords opposite are attempting to attain their objective by way of a provision as to committee structure.
Let us consider how the clause, as amended, would look. It becomes:
"The standing orders shall include provisions … for ensuring that no committee shall be appointed with functions not relating to devolved matters".
Wending our way through the double negative, we discover that the effect is
412
that standing orders must prevent the appointment of any committee with functions not relating to devolved matters. What does this mean? To take the example which we used last time, if the Assembly were to set up the transport committee about which we spoke then, is it realistic to suggest that such a committee must not consider and scrutinise the relationship between devolved and reserved transport matters? Must the remit of every committee be specifically tied down to matters which, upon the face of it, are devolved? In that case, how could the Assembly ensure that its committees are able to discuss reserved matters, which I thought the noble Earl, Lord Ferrers, had earlier agreed was not an unreasonable proposition? I thought that the noble Earl accepted that point during the Committee stage.
Perhaps some of the difficulty derives from the word "functions", which can bear a variety of meanings. In relation to Ministers, "functions" means powers and duties. Thus, Scottish Secretaries will inherit from Ministers functions in relation to devolved matters. In relation to Assembly committees, "functions" means much less, because the committees will not be executive bodies. Neither the Assembly nor Scottish Secretaries will have "functions", meaning powers or duties, in relation to reserved matters. There is nothing that they can do about defence policy or, as the noble Earl, Lord Ferrers, has just mentioned, foreign policy, or about the question of industrial relations, which he also touched upon. There is nothing to stop them discussing these matters, of course, but there is nothing that they can do about them, and that is the point which I wish to emphasise to your Lordships. In the view of the Government many difficulties flow from these Amendments and the Government do not consider that those difficulties can be cured. They are founded on mistrust and a misapprehension of the functions, and indeed the whole operation of the Assembly as it is likely to be. I do not consider that this Amendment has merit and I certainly recommend its rejection by your Lordships.
The Earl of PERTH: My Lords, I do not think that the noble Lord, Lord Kirkhill, answered the question put by the noble Lord, Lord Drumalbyn, on the

413
point that if the Amendment is not put to a Division the Assembly will have no power to set up committees on non-devolved matters. I wish the noble Lord would answer that point and say whether in fact they can do both. Apart from that, I feel that if the Assembly is to be allowed to discuss, it can discuss much more intelligently and much more wisely if it is allowed to have a select committee on such a matter as the economic situation in Scotland, which otherwise, because it is not a devolved matter, would be forbidden to it. So there would be a discussion which was not intelligent, which would not be able to be followed in a regular way. Therefore, if that is the effect of this Amendment, I feel that it would not be good from any point of view.
Earl FERRERS: My Lords, I thought we might have had a little meeting of the ways over this Amendment, but evidently not from the noble Lord, Lord Kirkhill, who shakes his head in despair. It did not surprise me that the noble Lord, Lord Mackie of Benshie, would not agree with this Amendment because he has shown an uncharacteristic obduracy over every single Amendment which we have tabled and has resisted them constantly. Indeed, I think if I were even to offer him an invitation to come to dinner he would probably reject that as well.
A noble Lord: Never!
Lord MACKIE of BENSHIE: That is accepted.
Earl FERRERS: My Lords, the noble Lord says that he accepts it, but I might say it has not been offered! The noble Lord, Lord Kirkhill, said that he has explained carefully through the various stages what it is anticipated will be the structure of the committee. We have learned a lot from that. He has said that the purpose of putting this into the Bill was to give a gentle steer. I accept that. What we are trying to do—to use
414
a phrase with which he will not be unfamiliar—is to give a gentle touch on the tiller, because what concerns us, as the Bill is now drafted, is not to prevent the Assembly from discussing anything. It can discuss anything it likes. One cannot stop people from discussing things—but actually to set up committees whose sole function is to refer to matters which are not devolved, and matters over which they have no control, in our view is likely to cause conflict.
One of the disasters that we see all the way through in this Bill is that there is likely to be a conflict between the Assembly and Westminster. While of course when it sets up its committees on matters which are devolved they can discuss those things and therefore all other matters, including non-devolved matters which relate to the subject matter of the committee, we think it would be wrong for the Assembly to set up committees which specifically and only refer to matters which are not devolved.
Lord WIGG: My Lords, the noble Earl mentioned that the Assembly would be able to set up committees on matters over which it has no control. Surely it is not control that matters, but responsibility. The Assembly has no responsibility; the committees become debating societies.
Earl FERRERS: My Lords, I accept the noble Lord's correction; responsibility is right. This is obviously something upon which, however hard we try to persuade the Government to change their minds, they take a different view from ours. We feel it is important and I hope that your Lordships will agree to this Amendment.
5.5 p.m.
On Question, Whether the said Amendment (No. 12) shall be agreed to?
Their Lordships divided: Contents, 90; Not-Contents, 85.

CONTENTS

Abinger, L.

Elles, B.

Mottistone, L.

Alexander of Tunis, E.

Elliot of Harwood, B.

Mowbray and Stourton, L. [Teller.]

Alport, L.

Elton, L.

Atholl, D.

Emmet of Amberley, B.

Newall, L.

Auckland, L.

Ferrers, E.

O'Hagan, L.

Avon, E.

Ferrier, L.

Onslow, E.

Balerno, L.

Forbes, L.

Orr-Ewing, L.

Balfour of Inchrye, L.

Fortescue, E.

Rankeillour, L.

Berkeley, B.

Gisborough, L.

Reigate, L.

Boothby, L.

Glendevon, L.

Rochdale, V.

Bridgeman, V.

Gray, L.

Romney, E.

Carr of Hadley, L.

Hailsham of Saint Marylebone, L.

Ruthven of Freeland, Ly.

Carrington, L.

Sandford, L.

Cathcart, E.

Harcourt, V.

Sandys, L.

Chesham, L.

Home of the Hirsel, L.

Selkirk, E.

Clancarty, E.

Ilchester, E.

Sempill, Ly.

Clitheroe, L.

Inglewood, L.

Strathclyde, L.

Cockfield, L.

Killearn, L.

Strathcona and Mount Royal, L.

Colville of Culross, V.

Kinnoull, E.

Cork and Orrery, E.

Kinross, L.

Tenby, V.

Craigavon, V.

Kintore, E.

Teviot, L.

Crathorne, L.

Lauderdale, E.

Torphichen, L.

Cromartie, E.

Linlithgow, M.

Trefgarne, L. [Teller.]

Cullen of Ashbourne, L.

Long, V.

Tweeddale, M.

Daventry, V.

Lyell, L.

Tweedsmuir, L.

de Clifford, L.

Mancroft, L.

Vickers, B.

De Freyne, L.

Massereene and Ferrard, V.

Vivian, L.

Denham, L.

Middleton, L.

Ward of North Tyneside, B.

Digby, L.

Minto, E.

Westbury, L.

Drumalbyn, L.

Monson, L.

Wigg, L.

Ellenborough, L.

Morris, L.

Wise, L.

NOT-CONTENTS

Aberdeen and Temair, M.

Hale, L.

Peart, L. (L. Privy Seal.)

Airedale, L.

Hankey, L.

Perth, E.

Allen of Abbeydale, L.

Harris of Greenwich, L.

Phillips, B.

Amberst, E.

Hatch of Lusby, L.

Plant, L.

Aylestone, L.

Henderson, L.

Ponsonby of Shulbrede, L.

Balogh, L.

Hood, V.

Ritchie-Calder, L.

Banks, L.

Houghton of Sowerby, L.

Rochester, L.

Bernstein, L.

Howie of Troon, L.

Sainsbury, L.

Birk, B.

Hughes, L.

Seear, B.

Blyton, L.

Hunt, L.

Sefton of Garston, L.

Boston of Faversham, L.

Hylton-Foster, B.

Segal, L.

Brockway, L.

Jacques, L.

Shepherd, L.

Byers, L.

Kaldor, L.

Shinwell, L.

Caccia, L.

Kilbrandon, L.

Somers, L.

Collison, L.

Kilmarnock, L.

Stedman, B. [Teller.]

Crook, L.

Kirkhill, L.

Stewart of Alvechurch, B.

Davies of Leek, L.

Leatherland, L.

Stone, L.

Davies of Penrhys, L.

Leonard, L.

Strabolgi, L.

Donaldson of Kingsbridge, L.

Llewelyn-Davies of Hastoe, B.

Swaythling, L.

Douglas of Barloch, L.

Longford, E.

Tanlaw, L.

Elwyn-Jones, L. (L. Chancellor.)

Loudoun, C.

Wallace of Coslany, L.

Evans of Claughton, L.

Lovell-Davis, L.

Wedderburn of Charlton, L.

Evans of Hungershall, L.

McCluskey, L.

Whaddon, L.

Fisher of Camden, L.

McGregor of Durris, L.

Willis, L.

Foot, L.

Mackie of Benshie, L.

Wilson of Radcliffe, L.

Gaitskell, B.

Meston, L.

Winterbottom, L. [Teller.]

Gardiner, L.

Murray of Gravesend, L.

Wootton of Abinger, B.

George-Brown, L.

Pannell, L.

Wynne-Jones, L.

Gordon-Walker, L.

Resolved in the affirmative, and Amendment agreed to accordingly.
5.13 p.m.
Earl FERRERS Earl FERRERS moved Amendment No. 13:
416
Page 13, line 36, after ("provisions") insert ("(a)").
The noble Earl said: My Lords, I beg to move Amendment No. 13, which is consequential.
On Question, Amendment agreed to.
Earl FERRERS Earl FERRERS moved Amendments Nos. 14 and 15:
Page 13, line 38, at end insert—
("(b) for ensuring that no committee shall be appointed with functions not relating to devolved matters")
Page 13, line 39, at end insert ("referred to in paragraph (a) above").
The noble Earl said: My Lords, Amendments Nos. 14 and 15 are consequential. Perhaps it would be convenient if I moved them en bloc. I beg to move.
On Question, Amendments agreed to.
Lord GRAY Lord GRAY moved Amendment No. 16:
After Clause 29, insert the following new clause:
Reporting and publishing of proceedings of the Assembly
(".The standing orders of the Assembly shall include provision for the reporting of the proceedings of the Assembly and for the publication of the reports of such proceedings.").
The noble Lord said: My Lords, I beg to move Amendment No. 16. The Amendment is in the form of a new clause as printed in the Marshalled List. This is the repeat of an Amendment which I moved on Report but which was dealt with only briefly then, not because it was a quarter past eleven at night but because the noble Lord, Lord Kirkhill, intervened at an early stage to say:
"I have been reflecting upon its content and I want to give it some thought".
He gave an undertaking to communicate with me, but I accept that it was not an unequivocal undertaking to go further than that. The noble Lord and I have since been in communication. At one time I thought there was a good chance that the Government would accept the inclusion of this new clause in that part of the Bill which deals with the standing orders of the Assembly, because I believe that the Government are sympathetic to the spirit of this Amendment. However, on Monday I am afraid I got a written thumbs down from the noble Lord, Lord Kirkhill, and I must now come to the House for a verdict on this point.
I wish to do so because it is a subject upon which I feel very strongly and a subject which has not been explored. Were I to have my true wish, I would seek to write into the Bill a detailed provision requiring parity of reporting standards with Westminster whenever and wherever the proposed Assembly was
418
legislating in areas which currently are legislated for in this Parliament. I have this feeling since surely this is what we in this Parliament, and those for whom this Assembly, if it comes into being, will be legislating, have a right to expect.
I am, however, mindful of the repeated entreaties from the Front Bench team opposite not to tie the Assembly down in too detailed a fashion on procedural matters, and I have therefore opted for what I see as the minimum on which this House should insist; namely, that the standing orders of the Assembly shall lay down provisions governing the reporting of proceedings and the publishing of reports of those proceedings. Then we shall at least know what we are getting; with the necessity to make prior provision, and perhaps with a generous nudge from the Secretary of State when he conies to make directions governing the initial procedure of the Assembly, the result will secure standards commensurate with the Assembly's functions.
My Lords, if my Amendment is made then perhaps when another place come to look at the wording of the new clause they might feel it appropriate to insert "legislative" before the word "proceedings" in the new clause which forms the substance of my Amendment. I trust that they will have the opportunity to consider this point. It is a point that has been suggested to me and it is certainly worth considering although for my part I would sooner not so restrict the wording since such a narrowing of the effect touches the next point that I wish to make which is this. Surely quality of reporting touches questions of privilege which have been referred to this afternoon matters relating to accountability for statements made and answers given and questions for instance concerned with declaration of interest. Along with legislative proceedings surely these are all matters calling for accurate verbatim reports and totally unsuited to any paraphrase or minute type of reporting.
At Report stage I also referred to the fact that there might be occasions when the Assembly for reasons similar to those that enable this House to close its doors to the public and to outsiders, might also have to consider this at some time and without a standing order of this type they might have difficulty in

419
securing that situation. It may he a fair assumption to expect the Assembly to make the kind of provision that I want to see, but an assumption is just not good enough. All too frequently over the past few weeks we have been asked to make assumptions as to the probable or possible conduct of the Assembly. In this instance we shall be assuming how that body will deal with the matter and even that it will deal with it at all.
I believe that my formula will secure what I earlier termed "the minimum condition" that we who are proposing to devolve and the electorate, in respect of whom we are proposing to devolve, have a right to expect. Surely it is our duty to protect that right. I beg to move.
The Marquess of TWEEDDALE: My Lords, I should like to say a few words in support of my noble friend Lord Gray. I believe that his Amendment to insert a new clause is extremely good and should find favour with Members of the Government, because it is merely carrying out the continuous exhortations of the Prime Minister for more open government.
The Earl of CROMARTIE: My Lords, I, too, should like to support my noble friend Lord Gray. I was in local government for a long time and as has been mentioned by my noble friend, the reports were in the form of minutes. Minutes are satisfactory up to a point and they are probably satisfactory for local government. However, the Assembly is not a tier of local government. The Assembly is a very important body and, along with my noble friend, I believe that there should be proper reporting of everything that takes place—perhaps not to the same extent as happens in Westminster; but certainly there should be a very full report of all that is said and done in the Assembly because in that way there can be no argument. What is more the people of Scotland will know what is going on.
Lord TANLAW: My Lords, I should like to make one point on the Amendment of the noble Lord, Lord Gray. He seemed to spend some time saying that he was worried about the possibility of a lack of quality of reporting. I cannot see, from reading the words of his
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Amendment, how that matter is covered. A simple minute, about which he seems to be concerned, would be perfectly all right under the terms of his Amendment.
However, there is a wider issue. I cannot see how it is possible that Members of the Assembly will not wish their words to be recorded, and recorded in detail. If the Assembly is to deal with on-going situations of the kind that we envisage, it is extremely necessary for its proceeding to be recorded. However, it is only right that the Assembly should make its own decisions on what methods should be used—whether radio, television or the method that is used in this House. I feel that the Bill, as it stands, gives the Assembly the latitude that it requires to enable it to make its own decisions on this matter and it is not for us to interfere.
Lord PONSONBY of SHULBREDE: My Lords, I should like to support the noble Lord, Lord Tanlaw. It is for the Assembly and not for us to decide how its proceedings will be recorded. Like the noble Earl, Lord Cromartie, I have been in local government for about 20 years. Indeed, the Greater London Council considered at length whether it should publish a Hansard of the proceedings of the Council, which, of course, is a very large local authority. We came to the view that the expense of producing a verbatim Hansard was such that the local authority could not countenance. That is a factor which no doubt the Assembly will wish to bear in mind and it may wish to indulge in some cheaper forms of recording its proceedings. Therefore, I believe that the House would be wise to reject the Amendment of the noble Lord, Lord Gray.
Lord DRUMALBYN: My Lords, when the Minister replies, I should be grateful if he would tell us whether the Government have included in their estimates of the cost of running the Assembly provision for the reporting? The noble Lord, Lord Kirkhill, nods his head in assent; I am very glad to know that. However, I should like to emphasise a special point which it is important to bear in mind particularly where there are legislative procedures similar to those in this House. We all know that it is necessary to be able to refer to what has been said at previous

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stages of a Bill and therefore that is a very good reason for requiring the preparation of such reports.
Lord MONSON: My Lords, I should like briefly to support the Amendment. The Assembly will be given quasi-Parliamentary privileges so should it not also have quasi-Parliamentary obligations?
The Earl of KINTORE: My Lords, I too, should like to support the Amendment. From my experience of local government, and in particular, during the last four years, of regional government, a minute can be challenged and frequently is challenged. If there is a proper recording, people cannot get away with challenging it because it will show the actual facts of the matter. A summary can be challenged and it is most unsatisfactory.
Lord KIRKHILL: My Lords, at the outset I should like to affirm verbally to the noble Lord, Lord Drumalbyn, that provision has been made. As he saw, I indicated by nodding that provision had been made and therefore I make the point verbally so that there cannot be the slightest doubt about it.
I entirely agree with the description by the noble Lord, Lord Gray, of the history of events up until the present time, and I confirm that he and I have had amicable discussion without entirely resolving the difficulty which he sees and which he expresses in the form of his Amendment.
Of course, I direct your Lordships' attention to the fact that already from the contributions made in this short debate there is a division of opinion in your Lordships' House as to the efficacy of the noble Lord's Amendment, and essentially it is a question of judgment. The Government's attitude is that the Assembly will be a responsible elected body and that it will behave accordingly. It is for the Assembly to decide the extent to which the reports of its proceedings should be published in the same way as we do here.
As the Government are confident that the Assembly will duly publish, we see no point in legislating to say that the Assembly shall publish. However, it is on a matter of principle that the Government's objection to the clause is founded. The principle is one which I, for my part,
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have been enunciating at many points of our discussion of the Bill; it is the essential freedom which should be permitted to the Assembly to decide these matters for itself. The Government are confident that the Assembly will make publicly available a report of its proceedings. This will be expected both by the Members of the Assembly and by the public of Scotland. But the exact form of this report and the extent to which it should be made available—I think that the noble Lord, Lord Tanlaw, emphasised this point as did my noble friend Lord Ponsonby of Shulbrede—can only be decided in the light of, and in parallel with, decisions on the Assembly's procedures. The Government keep saying—and I am saying it again now—that it should be left to the Assembly to decide its own procedures. It is in the light of that, as I believe, consistent view that we have taken on many issues throughout the Bill, that I must ask your Lordships to reject the Amendment.
The Earl of LAUDERDALE: My Lords, before we dispose of this matter, I point out that, as regards the issue whether there should be a report of the proceedings in the form of a minute or a verbatim report of the proceedings, there is all the difference between the Minutes of Proceedings of this House and the verbatim report of proceedings of this House. The latter is intelligible to anybody; the former is intelligible only to those with special knowledge. It is common experience that the local authority's minutes of proceedings are unsatisfactory to the general public.
I should like to raise one other point. We do not, of course, know what another place will do to this Bill when it goes back to them. But if it should happen that at the end of the day measures are used to push this Bill through in such a way that committees of the Scottish Assembly are not representative of all parts of that House, and if it should happen that committees of the Scottish Assembly are of the kind that are now common in local government, where the majority Party controls the whole thing, then the need for a verbatim report becomes overriding. Therefore, I should like to add those words in support of this Amendment.
Lord GRAY: My Lords, first, I should like to thank those noble Lords who have supported me in this Amendment. I should perhaps say to the noble Lords, Lord Tanlaw and Lord Ponsonby of Shulbrede, that my Amendment does not interfere in the detailed way which they suggest with the right of the Assembly to make its decision. The noble Lord, Lord Kirkhill, said that the Assembly ought to have the right to decide the exact form. I am not laying down the exact form. I am simply saying that we here, who currently legislate on matters which in future are to be legislated on by the Assembly—if it comes into being—should surely insist on parity of the
reporting of their proceedings with the reporting of proceedings of this House. In view of what has been said in this debate and views that may be taken in another place if the Amendment goes there, I should have thought that this new clause goes as far as we can, without being too interfering, to secure that. I beg to move.
5.32 p.m.
On Question, Whether the said Amendment (No. 16) shall be agreed to?
Their Lordships divided: Contents, 101; Not-Contents, 77.

CONTENTS

Abinger, L.

Ferrers, E.

Mottistone, L.

Alport, L.

Ferrier, L.

Mowbray and Stourton, L.

Amherst of Hackney, L.

Forbes, L.

Newall, L.

Atholl, D.

Fortescue, E.

O'Hagan, L.

Auckland, L.

George-Brown, L.

Onslow, E.

Avon, E.

Gisborough, L.

Orr-Ewing, L.

Balerno, L.

Glendevon, L.

Perth, E.

Balfour of Inchrye, L.

Gray, L. [Teller,]

Rankeillour, L.

Bledisloe, V.

Hailsham of Saint Marylebone, L.

Reigate, L.

Boothby, L.

Rochdale, V.

Bridgeman, V.

Hankey, L.

Romney, E.

Caccia, L.

Harcourt, V.

Ruthven of Freeland, Ly.

Carr of Hadley, L.

Home of the Hirsel, L.

St. Aldwyn, E.

Carrington, L.

Hylton-Foster, B.

Sandford, L.

Cathcart, E.

Ilchester, E.

Sandys, L.

Chesham, L.

Inglewood, L.

Selkirk, E.

Clitheroe, L.

Killearn, L.

Sempill, Ly.

Colville of Culross, V.

Kilmarnock, L.

Somers, L.

Cork and Orrery, E.

Kinnoull, E.

Stamp, L.

Crathorne, L.

Kinross, L.

Strathcarron, L.

Cromartie, E. [Teller.]

Kintore, E.

Strathcona and Mount Royal, L.

Cullen of Ashbourne, L.

Lauderdale, E

Daventry, V.

Leathers, V.

Tenby, V.

DE Clifford, L.

Linlithgow, M.

Thorneycroft, L.

De Freyne, L.

Long, V.

Torphichen, L.

Denham, L.

Loudoun, C.

Trefgarne, L.

Digby, L.

Lyell, L.

Tweeddale, M.

Drumalbyn, L.

Mancroft, L.

Tweedsmuir, L.

Ellenborough, L.

Massereene and Ferrard, V.

Vickers, B.

Elles, B.

Middleton, L.

Vivian, L.

Elliot of Harwood, B.

Minto, E.

Ward of North Tyneside, B.

Elton, L.

Monk Bretton, L.

Westbury, L.

Emmet of Amberley, B.

Monson, L.

Wilson of Langside, L.

Faithfull, B.

Morris, L.

Wise, L.

Falmouth, V.

NOT-CONTENTS

Aberdeen and Temair, M.

Collison, L.

Gaitskell, B.

Airedale, L.

Crook, L.

Gardiner, L.

Allen of Abbeydale, L.

Davies of Leek, L.

Gordon-Walker, L.

Amherst, E.

Davies of Penrhys, L.

Hale, L.

Aylestone, L.

Donaldson of Kingsbridge, L.

Harris of Greenwich, L.

Balogh, L.

Douglas of Barloch, L.

Hatch of Lusby, L.

Banks, L.

Dowding, L.

Henderson, L.

Birk, B.

Elwyn-Jones, L. (L. Chancellor.)

Hood, V.

Blyton, L.

Evans of Claughton, L.

Houghton of Sowerby, L.

Boston of Faversham, L.

Evans of Hungershall, L.

Howie of Troon, L.

Brockway, L.

Fisher of Camden, L.

Hughes, L.

Byers, L.

Foot, L.

Jacques, L.

Kaldor, L.

Peart, L. (L. Privy Seal.)

Strabolgi, L. [Teller.]

Kilbrandon, L.

Phillips, B.

Swaythling, L.

Kirkhill, L.

Plant, L.

Tanlaw, L.

Leatherland, L.

Ponsonby of Shulbrede, L.

Wallace of Coslany, L.

Llewelyn-Davies of Hastoe, B.

Ritchie-Calder, L.

Wedderburn of Chalrton, L.

Lovell-Davis, L.

Rochester, L.

Whaddon, L.

McGluskey, L.

Sainsbury, L.

Wigg, L.

McGregor of Durris, L.

Sefton of Garston, L.

Willis, L.

Maekie of Benshie, L.

Segal, L.

Wilson of Radcliffe, L.

Mais, L.

Shepherd, L.

Winstanley, L.

Morris of Borth-y-Gest, L.

Shinwell, L.

Winterbottom, L. [Teller.]

Murray of Gravesend, L.

Stedman, B.

Wootton of Abinger, B.

Ogmore, L.

Stewart of Alvechurch, B.

Wynne-Jones, L.

Paget of Northampton, L.

Stone, L.

On Question Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
Clause 41 [Industrial and economic guidelines]:
5.41 p.m.
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 17:
Page 21, line 16, leave out subsection (6) and insert—
("(6) No order under this section shall be made unless a draft of it has been laid before and approved by resolution of the House of Commons.").
The noble Lord said: My Lords, we now turn again to the question of guidelines. The purpose of this Amendment is to substitute the Affirmative Resolution Procedure for the Negative Procedure in regard to the orders that are to be laid before Parliament. When we discussed this clause about guidelines on the Question whether the clause stand part, the noble Lord, Lord Kirkhill, gave us a full and interesting explanation of how it would work as he saw it. Your Lordships seem to me to be particularly concerned with the Scottish Development Agency in this matter and with the Highlands and Islands Development Board, although to a lesser extent only in the latter case because it gave rise to fewer problems.
On two occasions the noble Lord, Lord Kirkhill, responded fully to our search for information about the guidelines. On 25th April—although it appears in the Hansard for the next day—he said at column 1782:
"The aim of the guidelines is to avoid unfair distortions of competition by ensuring that assistance to industries is provided on comparable terms throughout Great Britain, having regard to the different needs and problems of different parts".
The "aim of the guidelines" of course relates to those who are to receive the
426
guidelines; the Scottish Development Agency, the Highlands and Islands Development Board, and the upper tier local authorities and new town development corporations. The guidelines are to be transmitted to the Scottish Administration, and they are to translate those guidelines into directions, approvals, et cetera, to use the noble Lord's words, to the various bodies, as in their opinion the need arises.
As the clause now stands, the guidelines will be subject to Negative Procedure; that is to say, they will take effect immediately, or on a specified date, and will continue in effect unless a motion to annul them is passed. But the main guidelines—that is, those not subject to adjustment at irregular intervals; for example, as the noble Lord explained, the rate of interest to he charged would be subject to such alterations—would remain in force presumably for a year or many years. It is not at all clear from the way the clause is drafted whether the guidelines are there for good or whether they are to be capable of frequent change.
For those reasons, it seems to me that they should be debated before they are brought into effect, or at least that an opportunity to debate them should be afforded through a Mortion to approve them. As I drafted this Amendment, I had to consider whether an equal opportunity should be given to both Houses of Parliament. At most times of the year we in this House have normally more time available but, on the other hand, the guidelines will presumably deal mainly with financial limits, and it may be thought more appropriate for them to be considered by the Commons. It is for that reason that I am suggesting in this Amendment that it should be subject to Affirmative Resolution Procedure of the Commons.
The noble Lord said on the same date at column 1787—and I think in the same debate:
"The guidelines will, in practice, delineate the boundaries of the executive discretion to be available to the Scottish Administration on matters of great political sensitivity. The form of the guidelines, and the manner in which they operate, will be closely watched by those concerned with industrial development in the English regions and other countries of the United Kingdom. It should, therefore, be clear, without scope for misunderstanding, that they are in a statutory sense the responsibility of the Government and Parliament and of no one else".
This was on a different point made by my noble friend Lord Lauderdale, but the noble Lord clearly expressed what is intended.
In view of the great political sensitivity and interest in other parts of the country—and this has been amply demonstrated from various parts of the House; I see my noble friend Lady Ward in her place—it seems to me that the guidelines are indeed worthy of an Affirmative Resolution. The passage I have read from the noble Lord seems to me to have made the case for the guidelines to be subject to Affirmative Resolution rather than the Negative Procedure, and I feel that I need say no more. I am confident that the noble Lord will accept my Amendment. I beg to move.
5.47 p.m.
Lord KIRKHILL: My Lords, I have to say that Lord Drumalbyn's confidence is misplaced on this occasion, because I shall be unable to accept his Amendment. Your Lordships may feel, as I certainly do, if I may express a quite personal view for a moment, that we have considered at considerable length the arrangements for the laying down of statutory guidelines concerning the industrial activities of the Scottish Development Agency, the economic development activities of the Highlands and Islands Development Board, and the disposal of industrial land by a number of public bodies. Of course, I agree that Lord Drumalbyn's Amendment on this occasion does not relate to the extent of the powers to be devolved but solely to the procedure for parliamentary scrutiny of the Statutory Instruments in which the Secretary of State's guidelines will be contained.
428
On this I have to say that the Government prefer the provisions in the Bill to those in the Amendment, and I shall say why. In the first place, it seems to us that the matters to be dealt with in the orders are not of a kind for which it is customary to provide for Affirmative Resolution. For example, the guidelines prescribed for the National Enterprise Board are contained in directions issued by the Secretary of State and laid before Parliament without provision for any further parliamentary procedures at all.
Secondly, the Government take the view that as the matters concerned are not of a fiscal or a solely financial character—and indeed, the noble Lord, Lord Drumalbyn, indicated that he himself considered that there were at least political overtones involved—and that the character of the guidelines involves wider issues concerning industrial and regional policies, the Government's view is that they are properly the concern of your Lordships' House as well as of the other place. The Bill unlike the Amendment, accordingly provides that a Statutory Instrument made under Clause 41 should be subject to Negative Resolution in both Houses. There is the divergence of view between the Government and the noble Lord. I do not think I can add anything to the Government's position. I have explained it, I think, as competently as is open to me.
Lord DRUMALBYN: My Lords, I am delighted to learn that the noble Lord, Lord Kirkhill, thinks that this is a matter which should be considered by this House as well as by the House of Commons. In view of another provision, it seemed to me that this was probably the sort of thing that at any rate the House of Commons would prefer to have reserved to itself. However, as Lord Kirkhill's opinion is that it should be examined by your Lordships' House, I would only say that this House will have very heavy responsibilities in overseeing the relationship between Parliament at Westminster and the Scottish Administration and the Scottish Assembly. As the noble Lord said this is a matter which should be considered by this House, we will probably have to develop machinery for examining and monitoring these relations, and this kind of subject will no doubt come up quite frequently.

429
Lord Kirkhill did not answer my question as to whether the guidelines are to be more or less once and for all; whether they are to be like standing orders, so to speak, or whether they are to be issued ad hoc.
Lord KIRKHILL: My Lords, I apologise for not dealing with that point. I indicated when we discussed this point at great length in Committee that the guidelines will not differ significantly from the kind of guidelines which are available for inspection now in your Lordships' Library. That will be the kind of model, and along those lines we shall proceed.
Lord DRUMALBYN: My Lords, in that case, the noble Lord is implying that they will not be altered frequently, that they will be standing orders and will be on the record, rather like the requirements for companies. In those circumstances, I do not think it would he right to press the Amendment and I therefore beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 64 [Reservations]:
5.52 p.m.
The Earl of SELKIRK The Earl of SELKIRK moved Amendment No. 18:
Page 30, leave out line 26 and insert—
("Nothing in this Act shall affect the Prerogative of Mercy".)
The noble Earl said: My Lords, I raised this point on Report and suggested that it would be constitutionally inappropriate to say that one would not do something that was also constitutionally inappropriate. However, now that we have passed Clause 22, which affirms the view of the House that it is inappropriate to devolve prerogative power—my noble friend said it was a monstrosity to suggest one should do so—I have taken words which the noble and learned Lord, Lord McCluskey, himself suggested, words which come from the Criminal Procedure Act 1975 and which would, I suggest, have the same effect but be constitutionally more appropriate. I go so far as to say that the Government could regard this as a consequential Amendment to that which your Lordships approved in Clause 22. In those
430
circumstances, I would ask the Government to agree to the Amendment, which I believe is more appropriate and does what is wanted without raising the question whether prerogative powers can be devolved by legislation.
Lord McCLUSKEY: My Lords, this is simply a question of drafting. The noble Earl, Lord Selkirk, is right to say that on Report I drew his attention to the wording of Section 263 of the Criminal Procedure (Scotland) Act 1975, where there appears the wording he has taken and proposes to insert here. However, the scheme of things in this Bill is rather different from the scheme of things in that Act because the central concept of the Bill is the concept of devolved matters. We are all agreed about this: we want the Bill to state quite plainly that the prerogative of mercy is not a devolved matter, and that is why we have chosen the words which appear in Clause 64:
"The prerogative of mercy is not a devolved matter".
We have been asked from time to time to say things plainly; it could not be said more plainly than that, and having regard to the general scheme of things, which I have explained on more than one occasion, about the fact that we are talking here always about devolved matters, that is surely the plainest way to put it.
It is arguable that it could have been put elsewhere, but we regarded this as a matter of such importance that it was right to put it where it is, in this clause, rather than to tuck it away in one of the paragraphs of Part II of Schedule 10. I suggest, therefore, that one does not need to adopt the formula which was appropriate for the other Act but which would not be appropriate for this Bill; it is better to use this formula, which fits into the general scheme of things in the Bill. I could not regard this as consequential on the earlier Amendment inserted at the instance of the noble Viscount, Lord Colville of Culross; it is not regarded as purely consequential.
The Earl of SELKIRK: My Lords, with the greatest respect to the noble and learned Lord, it is consequential; the decision of the House was that prerogative could not be devolved, and that is the constitutional law of this country. I was

431
astonished at the noble and learned Lord quoting the Burmah Oil case, those parts of Lord Reid's speech which happened to suit him, but omitting to read the part which f quoted to him before: that where statute touches prerogative, prerogative ceases to exist. I was surprised he did not bring that point more clearly into prominence. However, we have divided the House enough today. I disagree profoundly with what the noble and learned Lord said because we have decided that prerogative matters cannot be devolved by statute and, with great respect to all the authorities on that, that point is clear. While I do not propose to withdraw the Amendment, I will not ask your Lordships to divide on it.
On Question, Amendment negatived.
Clause 78 [Protection of special interests of Orkneys and Shetlands]:
5.57 p.m.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 19:
Transpose Clause 78 to after Clause 40.
The noble Lord said: My Lords, this is a drafting Amendment. Clause 78 is linked by its content with Clauses 38, 39 and 40, and it is more appropriate that it should be placed after them than in its present position. At the time when Clause 78 was moved, during Report, it was too late to insert it in the most suitable place. This Amendment rectifies the matter.
The Duke of ATHOLL: My Lords, this clause is headed in italics, "Orkneys and Shetlands". I was brought up to believe there were no such places as either Orkneys or Shetlands; either they are the Orkney Islands or the Shetland Islands, as they are in the body of the clause, or they are Orkney and Shetland. I would be grateful if the final "s" on both the islands could be removed in the italicised headings and, if possible, in the side heading and in the arrangement of clauses at the front of the Bill. The compositors will have to transpose the clause anyway—I agree with the noble Lord, Lord Kirkhill, that it should come after Clause 40 rather than where it is—and I hope at the same time that they might drop the appending "s" at the end of "Orkneys" and "Shetlands" and in the various headings.
Lord KIRKHILL: My Lords, I was brought up, as was the noble Duke, to believe exactly what he said. I will do what I can to chase up the English draftsmen, but without giving an unequivocal assurance.
Schedule 4 [Statutory powers exercisable with concurrence or sub·ect to consent or approval of a Minister of the Crown]:
5.59 p.m.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 20:
Page 50, line 13, column 1, at end insert—
("The Inner Urban Areas Act 1978, section 8(1).").
The noble Lord said: My Lords, it might be convenient to take this Amendment with Amendment No. 21. With Amendments Nos. 40, 42 and 43, these are the first of five Amendments making provision for the Inner Urban Areas Bill, which will be before your Lordships' House for its Report stage tomorrow. The Inner Urban Areas Bill needs detailed treatment in the Scotland Bill because its provisions are partly of an industrial nature and partly of an environmental nature. As I have said before, our approach is that all industrial powers should be reserved and that there should be executive-only devolution of other powers. However, the Bill contains two powers of a mixed nature, where both the Government's and Scottish Executive's interest needs to be represented.
If I could refer to Amendment No. 20, the first of these powers is dealt with by the Amendment to Schedule 4 to the Scotland Bill. It is the power in Clause 8 of the Inner Urban Areas Bill to specify an area as a special area to which the provisions for grants and loans under Clauses 9, 10 and 11 apply. Some of these grants and loans are industrial and others concern devolved, environmental and infrastructure matters. Accordingly, the power to specify areas under Clause 8 is to be devolved, subject to ministerial consent.
If I could refer to Amendment No. 21, this relates to the Schedule to the Inner Urban Areas Bill, which enables a designated district authority to declare an area to be an industrial improvement

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area. The Secretary of State has a power of veto under paragraph 2 of the Schedule. The Amendment to the Scotland Bill makes this power of veto concurrent—that is to say, either the Secretary of State or the Scottish Secretary may prevent an area from being declared an industrial improvement area. This reflects the fact that such areas qualify both for environmental grants and loans in respect of which powers are to be devolved, and for industrial grants, in respect of which powers are to be reserved. I would therefore wish to move accordingly.
Schedule 5 [Enactments conferring powers exercisable concurrently]:
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 21:
Page 50, line 41, at end insert—
("The Inner Urban Areas Act 1978, paragraph 2 of the Schedule.").
Schedule 10 [Matters within legislative competence of Assembly, and within powers of Scottish Executive]:
Baroness STEDMAN Baroness STEDMAN moved Amendment No. 22:
Page 53, line 9, leave out from ("galleries") to ("Teaching") in line 11.
The noble Baroness said: My Lords, this is a paving Amendment for Amendment No. 23 to Part II of Schedule 10, which is next on the Order Paper. It may be convenient for us to speak to it at the same time. Perhaps it will help the House if I describe the Government's proposals in this matter covered by the two Amendments. Let me say straight away that they are intended to be helpful and to give effect to what the Government understand to be the feeling of the House as reflected by the Amendment carried on Report. I should also like to say that I have received a most helpful letter from the noble Earl, Lord Perth, which clarified a point of detail which the Government Amendments have also sought to reflect.
The Amendment carried by the House on Report was technically incorrect. It may help the House if I first describe why that is so. The first Government
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Amendment—the one that we are discussing now—deletes the exclusions from Part I of Schedule 10 inserted on Report, and the second adds to the exclusions in Part 2 in a slightly modified form. Your Lordships will recall from our earlier debates that if a matter is devolved it is included in the groups in Part I in Schedule 10, but other matters, which derogate from the groups, are specified in Part II of the Schedule. The Amendment accepted by the House placed an exclusion in Part I. As this is inconsistent with the structure of the Bill it could have affected subsequent interpretation. The proposed new Amendments put matters right. This is in line with our policy on other matters which have been the subject of Amendments and ensures that whatever the outcome of any further consideration of those Amendments in another place, the Bill will be correct when leaving this House and give no rise to interpretation.
The revised wording also makes no reference to the National Land Fund. This is because the National Land Fund is part of the reserved matter of national finance and taxation and accordingly reserved by silence. This does not mean—as I hope I made clear in an earlier debate—that it cannot he used in connection with items to be allocated to collections in Scotland. Devolution will have no effect upon the administration of the fund—which is, I think, as the House would wish.
The Amendment also makes a change of substance. The intention of the House, as the Government first understood it, was that all purchase grants—that is, annual purchase grants and any special grants relating to libraries, museums and art galleries—should be reserved. Subsequently, in the letter to which I referred earlier, the noble Earl, Lord Perth, explained in respect of libraries that it was only special grants which would be reserved, and that ordinary, if I may use such a term, grants should be found from within the block fund. As the House will see, Amendment No. 23, which follows this, gives effect to this distinction, and treats libraries differently from galleries and museums.
The Earl of PERTH: My Lords, I want to say "Thank you" to the noble Baroness for the change of heart on the

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part of the Government. If I look at the record on this matter, in Committee we were told that what is the position at the present time would prevail—that is to say, we would have access to special grants, albeit for museums or the libraries. Your Lordships will recall that on Report the Government went back. I am happy that they have now had third thoughts and under pressure from your Lordships—and, I suspect, also under pressure from one or two of the people who are sitting on the Government Benches—the Treasury have given way. Therefore we have obtained just what we wanted. I know that the noble Earl, Lord Haig, who could not be here today, is satisfied in relation to the galleries and museums. I have an interest in the libraries and I am equally satisfied there. Therefore, I say to your Lordships that we should support and welcome this Amendment.
Baroness STEDMAN Baroness STEDMAN moved Amendment. No. 23:
Page 55, line 34, at end insert ("Grants with respect to items for the collections of museums and galleries and special grants with respect to items for the collections of libraries.").
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 24:
Page 55, line 36, leave out ("of local authorities.").
The noble Lord said: My Lords, this is a minor tidying Amendment consequential on the Amendments moved on Report by the noble Lord, Lord Campbell of Croy, to recast the references in the Bill to Schedule 15. This Schedule was previously entitled:
"Reserved functions of local authorities and other bodies".
It is now entitled:
"Local government bodies: scheduled functions".
The references to the Schedule in the Bill now reflect this, with one exception. This exception is in line 36 on page 55 where the Bill refers to:
"scheduled functions of local authorities"
This is half way between the old formula and the new. The Amendment brings
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it fully into line with the new by dropping the words "of local authorities". I beg to move.
6.9 p.m.
Lord STRATHCONA and MOUNT ROYAL Lord STRATHCONA and MOUNT ROYAL moved Amendment No. 25:
Page 55, line 44, at end insert—
("7A. Licensing or other authorisation of public passenger transport services by road.").
The noble Lord said: My Lords, Amendment No. 25 adds to the matters not to be devolved under Part II of Schedule t0 the words:
"Licensing or other authorisation of public passenger transport services by road".
I have been entreated to move this Amendment and two consequential Amendments, Nos. 30 and 37, I think, by transport operators in Scotland, who are continuing to press the need for a unified regime for transport, which was urged at various previous stages of the Bill by my noble friend Lord Campbell of Croy and the noble Lord, Lord Morris.
I think that the concept was conceded by the noble Lord, Lord Kirkhill. Indeed, he gave certain undertakings and moved various Amendments to fulfil his undertaking, which were accepted by the noble Lord, Lord Campbell of Croy, on Report. However, on closer examination of these Amendments, which were accepted, those who feel very strongly about these matters do not feel that they go quite far enough. In the absence of my noble friend Lord Campbell of Croy I find myself at this rather late stage urging on the noble Lord that he should welcome what we are doing here, since we are fulfilling undertakings and intentions to which he has declared his allegiance.
I believe that both sides are after the same objective, but we are saying that it cannot he achieved by steering a middle course, which is what the Government hoped for as a solution at Report stage. They called it a halfway house. However, it is suggested that they may have fallen between two stools, or perhaps in this connection it would be more apt to say that they have strayed on to the central reservation between the two carriageways of a motorway.
The noble Lord, Lord Kirkhill, believed that by retaining the traffic commissioners as the authority with power to grant a road service licence and power to back licences issued in other—that is, English—traffic areas, the uniformity was protected. However, I suggest that this is not so. The traffic commissioners themselves do not represent a system; they are merely the people who administer a system. As it stands, the Bill does not appear to do anything to prevent the development of two totally different licensing systems in Scotland and in England. The fact that the same terminology is used cannot hide this situation. I should like to give an example here. France, Switzerland, and Belgium all use the franc as their unit of currency; but that does not mean to say that these units have the same value in each case.
We are suggesting that, if the powers are devolved to Scotland, it would be possible for totally different criteria to be applied in determining the grant of a licence or the backing for a licence. Totally different procedures could be adopted by the traffic commissioners, and totally different fees could be charged. Thus a company wishing to operate a cross-Border service could be involved in appeals to two Ministers, under two separate systems. If the company was successful in gaining a licence, it could be required to submit financial or statistical returns on a quite different basis North and South of the Border. Thus the Scottish operators and the traffic commissioners would be answerable to both the Secretary of State for Transport and a Scottish Secretary for closely related aspects of their work. Visiting coaches from other EEC Member States would be subjected to differing regulations in England and in Scotland, which I am sure all of us agree we do not want.
At the Committee stage my noble friend Lord Morris pointed out that about 30 per cent. of all passenger services in Scotland involve a Border crossing. So this is no small proportion that we are talking about. I am sorry that one of the new arrivals in your Lordships' House, the noble Lord, Lord Donnet of Balgay, is not present today, because I understand that the Scottish Transport Group, of which he is chairman, is one of the numerous Scottish transport operators who agree on the paramount need for uniformity in this matter.
The Government have undertaken to consult in particular the Confederation of British Road Passenger Transport Operators, but the confederation feels that its views on what is, admittedly, a complicated matter have not been fully taken into account. It seems to me that its view is accepted within the Ministry itself, because we read of Mr. Horam who was apparently—admittedly in a different connection—urging the need for uniformity. He said that the real difficulty is one of cross-boundary services. He was talking about the proposal to devolve some of the traffic commissioners' functions to local authorities, but if the argument follows at that level, it surely follows in exactly the same way at the level as between Scotland and the rest of Great Britain. Mr. Horam was attributing the success here, and the extensive bus services which are available in the United Kingdom, to the fact that there was a unified system, and that was why he was resisting any suggestion that these functions should be devolved to the local authorities. So he seems to be saying the same thing as us, and that is why I say that both sides seem to have a common aim here.
If that is right, surely it is right that we should seek to retain the system. We are not suggesting that it should be immutable. It is a thriving and an evolving system which can reflect the public need, and in turn this reflects the freedom which it already affords the Scots to make their own decisions about their own bus services. Therefore, for all the reasons I have mentioned I hope that the noble Lord will be able to accept the three Amendments. I beg to move.
6.17 p.m.
Lord KIRKHILL: My Lords, I must preface my remarks by observing that I am somewhat surprised at the noble Lord, Lord Strathcona and Mount Royal, seeking to introduce the Amendment at this time. I say that because the effect of the Government Amendments, which your Lordships' House has accepted, is to entrench the powers and duties of the traffic commissioners and to prevent the Assembly giving licensing functions to any other body. That was the result of the Government's compromise-type Amendment, which your Lordships have accepted. We now have an Amendment—which along with its two associated Amendments

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to Part III of Schedule 10—turns its back on the compromise which has been offered by the Government, and it takes us back to extremes. I do not want to rehearse all the arguments all over again, because they were discussed in great detail earlier, but, briefly, I wish to say that the Amendment would have the following effect.
It would mean that only Parliament and the Secretary of State would be able to make provision for the fares, frequency and routes of bus services in Scotland. It would mean that all matters in respect of minibus services and school buses would be similarly reserved. It would mean that the Government would not be able to advance Amendments later on the Marshalled List to provide for devolution of certain provisions of the Passenger Vehicles (Experimental Areas) Act 1977 and of the Transport Bill. As a result, local relaxations of road service licensing, and provisions in respect of community bus services, would be a matter for Parliament and the Secretary of State.
It would also mean that the other place would have two choices before it when the Bill returns there. On the one hand, it would have the Bill as it left there, devolving all aspects of road service licensing—and your Lordships did not accept that. On the other hand, it would have the Amendment—and the two associated Amendments—reserving all aspects of road service licensing. However, the other place would not have before it the provisions of the Bill as it stands now, which were put forward by the Government on Report stage as a positive response to points made in earlier debate about the importance of preserving the present administrative framework North and South of the Border. It was in response to the points made by noble Lords opposite that the Government tabled their Amendments. I have to say that this was the essential point stressed at that time by the noble Lord, Lord Campbell of Croy, and I further have to say that the Government went right to his side in accepting his major conclusion.
However, if the Amendments now before your Lordships are accepted by the House, so be it; but I am anxious that we should return a coherent and consistent Bill to the other place, and to reserve road service licensing outright would make a
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total nonsense of devolution. It would fragment transport policy in Scotland, and show an opinion of the future Scottish Assembly and Executive which, in my view, at least, is readily open to misinterpretation. I realise that concern has been expressed by those involved in the day-to-day running of bus services. The Confederation of British Road Passenger Transport have been in touch with my office, and a letter has gone to them to explain that the Government's Report stage Amendment was intended to meet their concern by preserving the existing administrative framework of road service licensing. The Government—and I must emphasise this—have done all that they can to proceed by agreement and compromise. I sincerely hope the noble Lord will not seek to press this Amendment.
Lord STRATHCONA and MOUNT ROYAL: My Lords, the noble Lord has certainly underlined that we all are trying to achieve the same objective. When he talks about fragmenting transport policy, I fully accept that the Amendments the Government moved were in response to a plea that this is what we were trying to avoid. I come rather late in the day to this matter, and I can only say to the noble Lord that, with the best will in the world, those who are involved in this business are concerned and far from happy. The noble Lord I think is saying, "They jolly well ought to be happy, because we have gone an awfully long way to meet them" Of course I accept that, but I have to tell him that the representations I have had indicate that it is not believed that he has achieved what he set out to do; and they would throw back at him precisely the accusations that he is giving to me, at least.
Lord KIRKHILL: My Lords, I hesitate to intervene because at this stage it is ill-mannered, to say the least, but I would ask the noble Lord seriously to consider the main point I was making to him, which is this. The other place will not have the compromise option open to it to discuss, and this is a very serious matter.
Lord STRATHCONA and MOUNT ROYAL: My Lords, I am very glad the noble Lord said that because I was going to go on to say that it seems to me that

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we have got ourselves into almost a technical argument, where two people are saying, "Technically we are trying to achieve the same thing, and we are arguing merely about how we get to do it". We already have an Amendment which will enable another place to discuss this matter. One hopes that they will at least accept that the Government have tried very hard. It may be that, given a little more time, complete agreement can be reached. I agree with the noble Lord that this comes up very late in the day—indeed, late in the day in more than one sense—and this is not the moment to pursue this argument. I am perfectly satisfied to leave it that his intentions, at least, are honourable, as indeed. I am sure he would accept that ours are, as well. We will leave it to another place to see whether this matter is lucky enough not to get the kind of treatment that I fear on some of our Amendments. Subject to that safeguard, I am happy to beg leave to withdraw this Amendment.
Amendment, by leave, withdrawn.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 26:
Page 56, line 41, leave out ("Schedule") and insert ("paragraph").
The noble Lord said: My Lords, this is a technical Amendment which flows from earlier Amendments accepted by the House, and involves no change of substance. Amendments 115 to Schedule 10 and 201 to Schedule 16, which were agreed to at Report, were intended to secure the same objective. It has always been the intention of the Government to bring devolution of all the functions in Schedule 10 into force on the same day. It is conceivable, however, that because of some particular circumstance it may be desirable to hold back the transfer of a group temporarily. This Amendment, like those just referred to, makes clear that a flexible approach can be adopted to the implementation of Schedule 10 if circumstances make it desirable. It has no implication for the content of paragraph 10 of Part II of Schedule 10 itself. I beg to move.
6.25 p.m.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 27:
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Page 58, line 6, leave out ("the home civil service of the state") and insert ("Her Majesty's Home Civil Service").
The noble Lord said: My Lords, this is a small, technical Amendment. It carries through to Schedule 10 Amendments moved by the noble Earl, Lord Selkirk, and made by this House at Report stage to what is now Clause 68. If your Lordships approve this Amendment, all references in the Bill to "the home civil service of the state" will have been amended to "Her Majesty's Home Civil Service". I beg to move.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 28:
Page 58, line 27, at end insert—

("The Congested Districts (Scotland) Act 1897 (c.53) section 4(1)(e).

Included, so far as relating to the erection and formation of fishermen's dwellings and holdings in congested districts.").

The noble Lord said: My Lords, this is a minor Amendment to complement the Amendments concerned with crofting which the Government moved on Report. It ensures that a Scottish Secretary will be able to make grants under the Congested Districts (Scotland) Act 1897 in respect of fishermen's dwellings and holdings in the areas covered by the Act. This power is not self-evidently devolved by any of the groups in Part I of Schedule 10, so it is necessary to make express provision in Part III. The proposed entry is drafted so that wider aspects of sea fisheries and related industry will not be devolved. I beg to move.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 29:
Page 60, line 36, leave out ("provisions of") and insert ("matters dealt with in").
The noble Lord said: My Lords, again, this Amendment is purely a drafting one. The entry in column 2 in respect of the National Parks and Access to the Countryside Act 1949 refers to the "provisions" of Section 101, but it is really the matters dealt with in that provision with which we are concerned. This Amendment adjusts the wording accordingly. If the entries had been allowed to stand they might have cast some doubt on the

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structure and meaning of Schedule 10 as a whole. In fact, my Lords, it is a point of drafting theology. I beg to move.
[Amendment No. 30 not moved.]
Lord KIRKHILL Lord KIRKHILL moved Amendments Nos. 31 to 34:
Page 61, line 24, leave out from beginning to ("relating") in line 25 and insert ("(a) those dealt with in section 120 so far as")
Page 61, line 30, leave out from beginning to ("relating") in line 31 and insert ("(b) those dealt with in section 135(1) so far as")
Page 61, line 35, leave out ("the provisions of") and insert ("those dealt with in")
Page 61, line 37, leave out ("the other provisions of") and insert ("the other matters dealt with in").
The noble Lord said: My Lords, Amendments Nos. 31, 32, 33 and 34 have the same purpose, and if I have your Lordships' permission I would move them en bloc. They are in fact exactly alike to Amendment No. 29, which I explained and moved earlier. Therefore, I beg to move.
Lord KIRKHILL Lord KIRKHILL moved Amendments Nos. 35 and 36:
Page 64, line 37, column 1, leave out ("18") and insert ("14(2), 18, 19(1) (proviso), 24, 28,")
Page 64, line 38, column 2, leave out ("14(2), 18, 19(1) (proviso), 24 and 28") and insert ("and 18").
The noble Lord said: Again, my Lords, with the agreement of your Lordships' House perhaps I might take Amendments Nos. 35 and 36 en bloc. Their purpose is to correct a printing error which crept into an earlier Government Amendment on Report and caused the Amendment to be made to column 2 of Part III of Schedule 10 rather than to column 1. These new Amendments put the matter right. I beg to move.
[Amendment No. 37 not moved.]
Baroness STEDMAN Baroness STEDMAN moved Amendment No. 38:
Page 73, leave out lines 28 to 30 and insert—

("The Lotteries and Amusements Act 1976 (c. 32).

The matters dealt with in Parts I and II are included, except

for those dealt with in sections 5(3)(d)(ii), 6(2)(c), 9 and 12(5)(a). The matters dealt with in section 18(1)(e) and (2) are not included")'

The noble Baroness said: My Lords, this is a consequential Amendment and flows from the earlier decisions of the House in respect of betting and gaming. As a result of those decisions, my noble friend Lord Wigg helpfully moved an Amendment, Amendment No. 158, on Report to protect the Gaming Board's functions in respect of the Lotteries and Amusements Act 1976, and this was accepted by your Lordships' House. However, the Government consider that this Amendment did not, unfortunately, go far enough. There are a number of other references to the Gaming Board and its regulatory powers throughout the Lotteries and Amusements Act 1976. Accordingly, the Government felt that they should put down further Amendments to the 1976 Act at this stage, so that the Bill may return to the Commons in a coherent form. This is in line with our policy on other matters which have been the subject of Amendments, and ensures that, whatever the outcome of further consideration of the Bill, it will be correct when leaving this House and give rise to no doubts in interpretation.
I hope the House will find these Amendments acceptable. The Government, for their part, feel that they reflect the intention of the House as expressed on the earlier Amendments on betting and gaming and the Gaming Board. The Amendment replaces the entry of the Lotteries and Amusements Act 1976—on page 73 of the Bill as amended on Report—and reserves the Gaming Board's functions in the Act in relation to local and societies' lotteries, the duty on the Secretary of State to consult the Board before making regulations in respect of these lotteries and the power of the Secretary of State to prescribe the fees payable to the Board or to authorities, the Board to determine the amounts of the fees subject to any limits he may prescribe. In case any noble Lords are worried that they had a different wording in a list that they picked up yesterday from todays' may I say that we owe our sincere thanks to my noble friend Lord Wigg who is an expert in these subjects. I do not know what

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we would do without him on the subject of gaming and lottery and we now have the Amendment as it should be before your Lordships. I beg to move.
Lord WIGG: My Lords, I am entirely satisfied with the action taken by the Government. Their purpose in making a clean technical job of the Amendments which your Lordships accepted has my support. The only question of difference between us was how they tackled it, and on reconsideration of the words on the Order Paper may I say that they find my acceptance and I commend them to your Lordships.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 39:
Page 73, line 40, at end insert—

("The Passenger Vehicles (Experimental Areas) Act 1977 (c. 21).

Included, except for— (a) the matters dealt with in section 2(3);

(b) the matters dealt with in section 2(8) (other than those in respect of the imposition of conditions), so far as relating to the treatment of vehicles for the purposes of enactments dealing with matters which are not devolved matters")

The noble Lord said: My Lords, we now approach a series of technical Amendments which require to be written into the Bill, and I understand it would be for the convenience of your Lordships if we moved these in a formal manner at this time, so I commence by moving formally Amendment No. 39.
Earl FERRERS: My Lords, I am sure it would be for the convenience of the House to take these matters formally. As I understand it, they are fairly complicated matters and unless they introduce any new substance, then I would be quite happy that we should take them formally. If the noble Lord, Lord Kirkhill, thinks that there are any points which it is appropriate that he should draw to the
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attention of the House, I have no doubt that he will do so.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 40:
Page 73, line 53, at end insert—

("The Inner Urban Areas Act 1978 (c.).

Not included.").

Lord KIRKHILL Lord KIRKHILL moved Amendment No. 41:
Page 73, line 53, at end insert—

("The Transport Act 1978 (c.).

Not included, except for the matters dealt with in sections 5(1) to (3) and 6, so far as they relate to road service licences and permits under section 30 of the Transport Act 1968 (c. 73), and those dealt with in sections 7 and 14.").

The noble Lord said: My Lords, this Amendment, of which the Government gave notice during Report stage, provides for devolution of parts of the Transport Bill. During the Transport Bill's Committee stage in your Lordships' House on Tuesday, one clause was deleted, and two new clauses were inserted. The Government's Amendment has been recast in the light of these changes and the references to section numbers anticipate the Report stage print of the Bill. I beg to move.
Schedule 11 [Matters within powers of Scottish Executive but not within legislative competence of Assembly]:
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 42:
Page 76, line 17, at end insert—
("10A. The following powers under the Inner Urban Areas Act 1978:—

(a) the powers under sections 1, 7(1), 8(1) and 9(6) and paragraph 2 of the Schedule;

(b) the powers under section 3(2), as applied to loans under section 5.").

The noble Lord said: My Lords this Amendment devolves executively those ministerial powers under the Inner Urban Areas Bill relating to the designation of districts to which the Bill applies; loans and grants for improving amenities; the

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entering into agreements with local authorities; the specifying of areas to which Clauses 9 10 and 11 of the Bill apply; and the declaration of industrial improvement areas. In the last two cases earlier Amendments to Schedules 4 and 5 to the Scotland Bill ensure the protection of United Kingdom interests. Powers of an industrial nature are to be reserved. They are nothing to do with the Amendment. I beg to move.
Schedule 16 [Amendments of Enactments]:
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 43.
Page 97, line 13, at end insert—
("THE INNER URBAN AREAS ACT 1978
53A.—(1) Section 2(4)(b) of the Inner Urban Areas Act 1978 (power of Secretary of State to fix rate of interest for loan under section 2) shall have effect, in any case where—

(a) the loan is made by a designated district authority in Scotland; and

(b) a Scottish Secretary is satisfied that it is not for the acquisition, construction or alteration of a building intended for use for industrial or commercial purposes;

as if the reference to the Secretary of State were a reference to a Scottish Secretary.
(2) Paragraphs 1(3)(b) and 3(3)(b) of the Schedule to that Act shall have effect, in relation to any area within Scotland, as if the reference to the Secretary of State included a reference to a Scottish Secretary.").
Schedule 17 [Referendum]:
Lord WILSON of LANGSIDE Lord WILSON of LANGSIDE moved Amendment No. 44
Page 97, line 17, at beginning insert ("Subject to paragraph 1A below").
The noble and learned Lord said My Lords this is a paving Amendment to Amendment No. 45 which I put down with some reluctance because it might try the patience of your Lordships' House which I am anxious not to do. I put down a similar Amendment at the Committee stage of the Bill which eventually I withdrew. I put down a similar Amendment at the Report stage which I did not move. The Amendment to which this is a paving Amendment seeks to have the referendum on the Scotland Bill on the same day as that which will be held under the Wales
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Bill. We have the Government's assurance, which has not greatly satisfied me, but having not moved the motion I would not have raised the matter again had I not been informed that it might be helpful to do so since a similar Amendment has been put down to the Wales Bill which I understand may be pressed to a Division. In these circumstances I put down this Amendment and Amendment No. 45. I beg to move.
Lord KIRKHILL: As the noble and learned Lord, Lord Wilson of Langside, has said, this is familiar territory and we have been over the ground before. The Government's position has been stated on several occasions. I repeat that we gave a firm assurance that it is our intention to have the referendums on the Scotland Bill and on the Wales Bill on the same day. There is no change of policy in that regard. Of course, the Government wish to retain a measure of flexibility in case of unforeseen circumstances. I cannot go further than that on the Government's position.
Earl FERRERS: My Lords, we understand the position of the noble Lord. Lord Kirkhill. We are concerned—at least I, for instance, would be concerned—that there should be this measure of flexibility, because the effect of one referendum could quite easily have an effect on the other; and I would have thought that it would be reasonable for the noble Lord to accept the Amendment.
On Question, Amendment negatived.
[Amendment No. 45 not moved.]
Earl FERRERS Earl FERRERS moved Amendment No. 46:
Page 98, line 1, leave out from beginning to ("may") in line 2 and insert ("No sum shall be charged on the Consolidated Fund whether by Order in Council under this Schedule or otherwise for the purposes of the referendum, save that an Order in Council").
The noble Earl said: My Lords, I should like, if I may, to draw your Lordships' attention to Amendment No. 46 in my name on the Order Paper. This seeks to prevent the use of the Civil Service and the facilities of the Civil Service in order to assist in the determination of the referendum. Of course, it does not prevent the appropriate part of the Civil Service from being used in the running of the referendum—the use

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and payment of returning officers and so forth. But this is only the second time in this country that we have had a referendum. In the last referendum, on whether we should remain a Member of the European Community, the circumstances were different. On this occasion we are, in effect, scratching new ground.
It was on the Report stage, when seeking to elicit from the Government how they intended to conduct the referendum, that many of your Lordships were surprised at what was, if only partially, revealed by the noble Lord, Lord Kirkhill, speaking on behalf of the Government. It seems that it is the Government's intention to use all or any of the Government's facilities to ensure a "Yes" vote. The situation in the previous referendum on the Common Market was that the Government supplied funds both to the pro-Common Market and to the anti-Common Market campaigns. They also produced a leaflet depicting fairly the arguments for and against entry into Europe. Each side was given fair and equal treatment and it was left for the people to decide in a referendum. Although the Government officially supported the campaign for us to remain in Europe, such was the division of opinion among Cabinet Ministers that they were released from their collective responsibility, as indeed were all Ministers, and they could campaign for which side they liked. That was a remarkable precedent; but it is a fact. The Government machine, as such, was impartial.
In an ordinary General Election, the rules are carefully defined as to how public money is to be spent. Ministers retain office until after the General Election and until after a new Administration is formed. They continue to hold responsibility for their Departments in order to permit the proper functioning of Government to continue during the time of the General Election. They can campaign for their Party, but such expenditure as this involves must be borne by the Party and not out of public funds. Occasionally, a Minister may have an official engagement outside London followed by a Party meeting. He can go to his official meeting using the official car, but he must be collected by a Party car to go to the Party meeting. The principles are laid down and well understood.
But what is to happen on this occasion? The noble Lord, Lord Kirkhill, said on Report that no funds are to be made available for either side in the campaign. That is understandable. Ministers on this occasion will not be released from their collective responsibility. That is understandable. Whatever their personal view may be, Ministers will campaign for a "Yes" vote because, as Lord Kirkhill said on 20th June (col. 1028 of the Official Report):
"The implementation of the Bill is a manifesto commitment of my Party".
That is understandable. But the noble Lord, Lord Kirkhill, really let the cat out of the bag—and I am bound to say that it was a "whopper"—when he said in answer to a further question of mine in which I asked whether the Government, as a Government and not as individual Ministers, were going to keep out of the campaign:
"As to the overall position of the Government, they will be campaigning for a 'Yes' vote".
As I understand that answer, the whole panoply of the Government machine—the civil servants, printing processes, the Department of the Environment, the Scottish Office—can, all or any of them, be wheeled into motion in order to shove for a "Yes" vote. Posters for a "Yes" vote can be put up by the Government; material can be published by the Government seeking a "Yes" vote.
My Lords, in answer to another question of mine, the noble Lord gave another staggeringly open answer. He said (in col. 1028):
"At this stage we have made no proposals for the issue of special explanatory material".
The obvious inference is that at a later stage they will—or they might, and, certainly, they could—issue such material. If the Government have no intention to use the machinery of Government in this referendum, I have no doubt that the noble Lord, Lord Kirkhill, would have said so, "loud and clear". But he did not. When my noble friend Lord Selkirk asked whether or not public cars would be used, Lord Kirkhill said:
"I could not give a specific answer to that off the cuff".
Could there be, or should there be, any doubt? Then in answer to a telling question from the noble Lord, Lord Swinfen—and I would draw your Lordships' attention to that question:

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"Could the noble Lord, Lord Kirkhill, assure the House that as it is in his Party's manifesto to campaign for devolution for Scotland, any funds spent by his Party's Ministers will come out of Party funds?"—
the noble Lord replied:
"My Lords, the policy of devolution is Government policy".
He deliberately avoided giving the assurance that ministerial expenses incurred in campaigning for a "Yes" vote in the referendum would come out of Party funds.
My Lords, all Ministers can make mistakes; but I do not believe that any Minister—and particularly the noble Lord, Lord Kirkhill, who is careful over these matters—could have made such a ream of mistakes one after the other. The conclusion is clear. It is that the Government will not make an equal and impartial financial contribution to both sides. They will make no contribution to either side; but they will use (or they can use) all the services, all the authority and all the facilities—and by implication all the financial resources—which are at the disposal of Government to influence the people of Scotland to vote "Yes".
My Lords, who pays?—It is those who want a "No" vote as well as those who want a "Yes" vote. The taxpayer will pay; and that means the English taxpayer, who provides by far the biggest proportion of the funds and who, under the Bill, is having no say as to the future which the Bill will impose on the United Kingdom. If that is what the Government intend, I respectfully suggest that it is a most undesirable intention. The Government are treating this Bill like any normal Bill on, say, Education or the Health Service. They are going to push it through as part of their policy. I do not blame them for that. But this Bill alters the Constitution and, so big an issue is it, that they are asking the people of Scotland for their approval to this by a referendum. To use public funds, supplied in the main by those who are not in sympathy with the Bill and who, in any event, are not going to be consulted on it, in an endeavour to manipulate the result of the referendum to a particular end, I suggest cannot commend itself to your Lordships or to any fair-minded person.
To be fair to the Government, I do not think anyone thought that the Government were going to do this. It is perfectly possible that I may have got it all wrong. I may be imputing wrong motives to the Government even though this is the only reasonable conclusion that one could gather from the Government's revelations. If that is so, I have no doubt that to make it crystal clear the Government will accept the Amendment. If they do not do so, the reasons for not doing so will be obvious. I hope that the House will agree with this Amendment. I beg to move.
6.48 p.m.
Lord WEDDERBURN of CHARLTON: My Lords, this Amendment is of such fundamental importance that I would suggest that even the pangs of hunger should not prevent our deliberating upon it with proper caution. It is a deceptively simple Amendment, the objective of which (the noble Earl has said) is to provide for fair rules in the campaign for the referendum. In view of what I am about to say, I wish to say at the outset that of course there must be limits to what the Government, as a Government, spend out of public funds in relation to something like a referendum campaign. Indeed, the Government, being answerable to Parliament—and a vigilant Parliament here and in another place—will be answerable if it does more than is reasonable in that respect. But this Amendment seeks to prevent all Government expenditure—and I quote its words—" for the purposes of the referendum".
I would ask your Lordships to vote against this Amendment and to reject it on two grounds: First, because it is impossible to interpret its meaning with reasonable certainty—and I take that to be a test which should be applied in a revising Chamber—and, secondly, because the real consequences to which it would give rise are not fair but unfair. As to the first point, I listened carefully to the noble Earl and I would invite him to answer some questions about the Amendment which, after long deliberation through the many stages of this Bill, he has chosen, to put down. The Amendment speaks of expenditure from public funds "for the purposes of the referendum" other than for the returning officers. What does that mean? Can the Government not spend any money in

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pursuance of Government policy during the referendum? Can the Government not issue a White Paper relating to any issue of the referendum? Can they not send the Secretary of State for Scotland to address a group of businessmen—and I will return to that matter later—on a matter concerned with the referendum? If they can do so, on what subjects are they permitted to do so, and on which are they not permitted to do so? When does the referendum begin? Has the campaign begun already? If this Amendment becomes law, must the Government immediately stop spending public money in relation to issues in the referendum?
I have another set of questions, and these are only a few that present themselves on this Amendment. If the Amendment is passed, what kind of illegality is to he created? Is it a matter justiciable in the High Court or the Court of Session? Can actions for a declaration or declarator be brought? If so, by whom? Who has locus stanch? Scotsmen, others? My Lords, this only scratches at the surface of the legal problems and ambiguities of the Amendment as it is put down, as I said, after long thought and deliberation by the noble Earl, finding out the Government's intention over many weeks. With great respect to those who drafted it, I suggest that the Amendment is of such a kind that if the revising Chamber passed it, another place would be entitled to throw it out and reject it without discussion.
Secondly, I wish to turn to my other reason for inviting your Lordships to reject this Amendment. Naturally, those who put down the Amendment must have regard to the natural and necessary consequences of what they have proposed. The noble Earl, in moving the Amendment, referred to the only previous experience in the United Kingdom of a referendum, in 1975. In June 1975 the referendum settled the issue of our membership of the European Economic Community by producing a two-to-one majority in favour of our continued membership. In that referendum, as the noble Earl has said, Government spending was apportioned equally to each campaign. The grants of £125,000 were made equally to the "Yes" campaign and to the "No" campaign.
In October 1975 there was published the official paper entitled the Referendum in the
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United Kingdom Membership of the European Community—the Accounts of Campaigning Organisations. If we look at that, what do we find? The "No" campaign in the national referendum had £133,630 at its disposal, including its Government grant. The "Yes" campaign of Britain in Europe spent £1,481,583—that is to say, some £1,350,000 more than its grant. That is the situation which—and I made a note—the noble Earl described as fair and equal treatment between the two sides. Indeed, where did the money come from? It came largely from private industry. The capital of industry was lavishly spent to finance the result at that time desired. Nearly £1 million was raised in contributions from companies and from the City.
Some 43 major companies gave over half a million pounds between them, as they were legally entitled to do, to the "Yes" campaign. Of those 43 companies, 27 were major donors in the same year to the Conservative Party and its supporting organisations, the Economic League, the Aims of Industry (as it was then called), the Common Cause, and the rather secretive British United Industrialists. The roll call of those companies—which I have looked at with care—is almost a guide to the commanding heights of the British economy. The million pounds effort of 1975 would—no doubt quite lawfully—be repeated in a referendum in 1978 or 1979.
The latest figures available for the accounting year 1976 show that the normal annual donations of 358 companies to the Conservative Party and the five associated organisations—the British United Industrialists, the Economic League, the Centre for Policy Studies, Common Cause, and now the Aims for Freedom and Enterprise—amounted to just £1,200,000. It is to be expected that in a referendum campaign companies would indeed give substantial sums—perhaps many millions. Indeed, I invite the noble Earl or anybody else on the Opposition Benches to tell the House, as I think we are entitled to know, the answer to a question to which as sensible men they must have applied their minds, looking forward now to the campaign on the referendum: How much do they expect will be given by the same sources to the referendum campaign, this year

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or next? After the experience of 1975, we can expect the figure to be substantial.
May I interject a phrase. I hope that no speaker in this debate will confuse the House and cloud the issue by speaking in general terms about trade union expenditure on political objects. Trade union funds for this campaign are very small. The Annual Report of the Certification Officer in 1977 shows, at page 47, that the excess of income over normal expenditure in the use of political funds of all trade unions in Britain in 1976 was £664,000, about 5½p per head of the 12 million members. From that small excess of income over expenditure provision has to be made for donations for the General Election, which no doubt will come, and other matters as well.
What is more, each of those 12 million members has a right by law to contract out of what his union is doing in terms of his own personal contribution to the political funds, and has had that right since 1913. So far as companies are concerned, not merely the creditors, the public or employees, but even the shareholders have no right to object to political expenditure—
Viscount MASSEREENE and FERRARD: My Lords, may I interrupt the noble Lord? Regarding contracting out, I heard the other day about two people who contracted out of their union funds and gave the money to charity, as can be done. But they had to leave the firm because the union shop steward said to the employer: "If you continue to engage these men, we will all come out on strike". It is all very well saying that it is written down in contracts and on paper, but you have to deal with human nature, and human nature does not always do what is written down on paper.
Lord WEDDERBURN of CHARLTON: My Lords, I should on another occasion be happy to follow the noble Viscount in a debate on human nature. But there is no gainsaying the simple fact that since 1913 every trade union member has had a right to contract out of political funds. Shareholders do not. To use the words of the noble Earl, Lord Ferrers, those who want to vote "Yes" and those
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who want to vote "No" have no effective control over the use of their company's funds.
Noble Lords on both sides of the House know very well that the funds available to the Labour Party as such are extremely limited. In that situation, in the face of those facts, is it reasonable to move this particular Amendment? It might have been reasonable to move some other Amendment; that is to say, it might have been reasonable—indeed, I suggest that it is reasonable—to begin an investigation of our laws relating to expenditure in both elections and referenda. The law may well be out of date in both respects. If the Government and perhaps the Opposition are to be criticised, it may be that it should be because they have not initiated such an investigation. Of course, the Representation of the People Act—a new Bill having been produced yesterday to bring the figures up to date—controls expenditure on a constituency basis and does not control national campaigns.
It is an urgent issue for the country, in elections to another place, to the Welsh and Scottish Assemblies, when they come, and to the European Assembly, just how expenditure for political purposes in elections and referenda should be controlled in a democratic society, and how political Parties should be funded. I take that point. But merely to pick out Government expenditure, which, I am sure most noble Lords will agree, would be rather more reasonable in extent than was suggested by the noble Earl in moving this Amendment, suggests to me that the known consequence will be to leave the field open, not to the fair and equal treatment of 1975, but to the unfair and unequal treatment of 1975. Indeed, the conversion of the Conservative Party to referenda makes one wonder whether, as their Leader has suggested, if there was a referendum by a Conservative Government in relation to matters concerned with the trade unions, that Government would desire to spend no Government money in pursuit of its policies. I put it, as the Amendment puts it, no Government money at all, not just a reasonable amount but no Government money at all. I doubt it very much.
I suggest to your Lordships that it might have been reasonable to open

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up the discussion on the general issue. There may be much wriong with the funding of expenditure on elections and referenda, but because it is bad revising legislation and since it is full of ambiguities and impossible to interpret with any clarity and because also its consequences would be unfair if the Government are unable to do anything at all in pursuit of their policies during the referendum period, I invite your Lordships to reject the Amendment, which indeed will do no credit to your Lordships' House if it is passed.
Lord MACKIE of BENSHIE: My Lords, I appreciated the beginning and the end of the speech of the noble Lord, Lord Wedderburn. I thought he could have missed out the bit in the middle. Of course, it is perfectly reasonable for the Government to explain their policies. I should like to say, with the most enormous goodwill, that perhaps the noble Lord, Lord Kirkhill, on Report gave a rather extreme picture of the Government's policy. I hope he will give us a rather more balanced picture now, because he rather left the impression that the Government would go flat out to campaign with all their forces. I am assuming he will explain to us that certain rules will apply, and we look forward to listening with some reason to what he says. But in this case it will be a political campaign and obviously some rules must apply to the Government. I look forward to hearing what the noble Lord, Lord Kirkhill, has to say.
Lord KIRKHILL: My Lords, at the outset I do want to say very clearly to the noble Earl, Lord Ferrers, that I do not consider the interpretation that he put upon my earlier remarks at Report stage as being in any way "reasonable", although he undoubtedly sees his interpretation as being blindingly obvious. I reject the interpretation that he put upon my earlier remarks, which I thought were quite self-standing in their own right. I do not think they require qualification, because I shall re-assert today the kind of point I made earlier at the Report stage.
In case there is a continuing difficulty of interpretation, let me say yet again that no Government funds will be made available to any organisation for the purposes of the campaign in connection with the referendum. Secondly, the Government
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have decided not to issue any explanatory leaflet about the Scotland Bill for the purposes of the referendum, believing, as they do, that adequate information about all aspects of the devolution question will be made widely available to those voting in the referendum by the media.
Earlier I said, "at this stage", but that phrase, "at this stage", is quite consistent with the comment I now make, and I would challenge any of your Lordships to suggest otherwise. Also, I must mention, in relation to the point raised about the use of ministerial cars and other facilities in connection with the referendum campaign, that the rules to be applied will be the same as normally apply to Ministers carrying Government business.
I stress again that the Scotland Bill is a direct manifestation of the policy of the Government collectively, agreed by the Cabinet and supported by all Ministers—and Ministers have been promoting this policy since 1974. I should be surprised if your Lordships were suggesting to me this evening, as seems to be the case, that when this Bill becomes an Act we should suddenly cease to give the kind of support that we have been giving to an aspect of our policy all the way through since 1974. So it is entirely appropriate, and in accord with the practices of all Governments, for Ministers to use the resources normally put at their disposal, as Ministers, to continue to promote the Government's devolution policy—the point which I emphasised earlier on Report.
Having said that, the Government believe strongly that the fears this Amendment seeks to express are unreal. I will repeat the salient points to underline them. No Government funds will be made available for different sides of the referendum campaigns. The Government have decided that there will be no explanatory leaflet for general distribution, explaining the purposes of the Scotland Bill and of the referendum. Any use of Government resources in connection with the referendum campaign will fall strictly under normal practice as regards Ministers expounding and furthering Government policy—indeed, the principal point which my noble friend Lord Wedderburn has just been making. I end on a mild note of surprise. The noble Lord, Lord Mackie of Benshie, has been so consistently kind

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to my position that I note with some surprise that an element of doubt has crept into that substantial body on the Liberal Bench.
Lord SHINWELL: My Lords, I am bound to say that I have never heard such an extraordinary exposition of Government policy as that which has just been delivered. It was not my intention to intervene; if there was an opportunity tonight, I was hoping to say something about the Bill in general, which is a Government Bill and ought to be supported. But the very idea that in the matter of a Government Bill—a Bill in which the Government believe and which is intended to provide some measure of autonomy to Scotland, a demand with which we have been familiar for very many years—the Government should not even issue a leaflet of an explanatory character and leave it to the opposition (I do not mean the political Opposition, because we are very much divided about it here and indeed we are also very much united about it: we are a very mixed bag at the moment) and not issue any literature at all, is rather strange. I think the Minister ought to be very careful what he says about it. He has to display the utmost caution in expressing himself; and it might even apply to those of us who are not Ministers but who are subject to the Whips. After all, the Whips will instruct us as to what we should do, and all the rest of it.
Really, this is a most amazing, preposterous, extraordinary and eccentric exposition of Government policy. The Government must accept responsibility for this measure. They must make their position as clear as the noonday sun to the people of the country, not only in Scotland but also in England and Wales. We have a right to know what the Government's position is. It may be that some of us will ask questions here in your Lordships' House and that we shall be told we are indulging in propaganda and that this "ought not to be included to use an expression which appears in the Bill.
Really, my Lords, this is going a bit too far. This is yielding to the Opposition in a fashion which I dislike intensely. I agree with the Opposition, as I have agreed with them a great many times during
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the course of our debates; but sometimes it is necessary to stand up to the Opposition, and not to sit down. No, this will not do. The Government must spend what they think is necessary and essential in the circumstances. After all, who initiated this business? It was not the Government; it came from Scotland. The noble Lord, Lord Kirkhill, should take note of that because he is as much responsible as anybody, and so is my noble and learned friend the Solicitor-General. They are the people who are responsible for this legislation, at any rate in part, and they must accept responsibility. For them to say, now that we have come almost to the end of the day, "The Government must be very cautious, and almost silent, and not utter a word of an explanatory character", is going a hit too far—and the Opposition should be told that we are not going to stand for it.
Earl FERRERS: My Lords, the debate has certainly clarified one or two points and it has been made crystal clear by the noble Lord, Lord Kirkhill, again. He said that his remarks were outstanding on Report, and so they were. I think they have been outstanding also on Third Reading. He made it crystal clear that this Bill is part of the Government's policy. This we accept The noble Lord has said that they intend to use the fact of their being a Government to try to persuade people to vote "Yes" for the referendum. What I sought to do in this Bill was merely to say that if there is to be a vote upon the referendum, it should be fair and equal on both sides as regards the Government.
The noble Lord, Lord Wedderburn of Charlton, asked: What about people giving money from industry? Of course, people will give money from industry. I have no doubt that some firms will give money from industry to one side or the other. But the point is: if they seek an answer to the referendum question, should not the Government be fair and equal on both sides? The noble Lord, Lord Kirkhill, said quite clearly: This is Government business. It has been Government policy since 1974. Ministerial powers will be used, because this is Government business and, indeed, anything else which can be used by the Civil Service will be used, because it is Government business. I do not believe that this is fair or right.

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For example, I do not believe that it is fair or right for the people of England, who contribute vast quantities of these funds, to have their funds used in a way which they may not like and about which they are not invited to have a say. I hope that your Lordships will agree to the Amendment.
Viscount THURSO: My Lords, before the noble Earl sits down, may I ask a question? What will he the policy of the Conservative Party in this regard, if there is a change of Government before the referendum takes place?
Earl FERRERS: My Lords, I have no intention of answering hypothetical questions, even if the noble Viscount were to say what would be the policy of the Liberal Party if there was a change at a
General Election. The important thing is that there should be a change.
Lord WEDDERBURN of CHARLTON: My Lords, will the noble Earl explain briefly what is meant by,
"No sum shall be charged on the Consolidated Fund … for the purposes of the referendum"?
Earl FERRERS: My Lords, the noble Lord, Lord Wedderburn, is extraordinary. He is, I believe, a Professor of Law. If he cannot understand English in that respect, then I am not the best person to advise him.
7.12 p.m.
On Question, whether the said Amendment (No. 46) shall be agreed to?
Their Lordships divided: Contents, 77; Not-Contents, 54.

CONTENTS

Abinger, L.

Ferrier, L.

O'Hagan, L.

Amherst of Hackney, L.

Fortescue, E.

Onslow, E.

Ballantrae, L.

Gainford, L.

Orr-Ewing, L.

Bridgeman, V.

Gisborough, L.

Rankeillour, L.

Broadbridge, L.

Glendevon, L.

Redesdale, L.

Carr of Hadley, L.

Gray, L.

Rochdale, V.

Clitheroe, L.

Hampden, V.

Romney, E.

Cockfield, L.

Harcourt, V.

Ruthven of Freeland, Ly.

Colville of Culross, V.

Home of the Hirsel, L.

Sandys, L.

Cork and Orrery, E.

Hylton-Foster, B.

Selkirk, E.

Craigavon, V.

Kilmarnock, L.

Sempill, Ly.

Crathorne, L.

Kinnoull, E.

Soames, L.

Cullen of Ashbourne, L.

Kinross, L.

Spens, L.

Daventry, V.

Kintore, E.

Stamp, L.

de Clifford, L.

Linlithgow, M.

Strathclyde, L.

De La Warr, E.

Long, V.

Strathcona and Mount Royal, L.

Denham, L. [Teller.]

Loudoun, C.

Digby, L.

Lyell, L. [Teller.]

Swinfen, L.

Drumalbyn, L.

Mancroft, L.

Tenby, V.

Ellenborough, L.

Massereene and Ferrard, V.

Trefgarne, L.

Elliot of Harwood, B.

Minto, E.

Tweeddale, M.

Elton, L.

Monk Bretton, L.

Tweedsmuir, L.

Emmet of Amberley, B.

Monson, L.

Vivian, L.

Faithfull, B.

Mottistone, L.

Ward of North Tyneside, B.

Falmouth, V.

Mowbray and Stourton, L.

Westbury, L.

Ferrers, E.

Newall, L.

Wise, L.

NOT-CONTENTS

Aberdeen and Temair, M.

Harris of Greenwich, L.

Peart, L. (L. Privy Seal.)

Aylestone, L.

Hatch of Lusby, L.

Perth, E.

Balogh, L.

Henderson, L.

Phillips, B.

Birk, B.

Houghton of Sowerby, L.

Plant, L.

Blyton, L.

Howie of Troon, L.

Rathcreedan, L.

Boston of Faversham, L.

Hughes, L.

Sainsbury, L.

Brockway, L.

Jacques, L.

Sefton of Garston, L.

Collison, L.

Kaldor, L.

Segal, L.

Crook, L.

Kilbrandon, L.

Shackleton, L.

Davies of Leek, L.

Kirkhill, L.

Shinwell, L.

Davies of Penrhys, L.

Leatherland, L.

Stedman, B. [Teller.]

Donaldson of Kingsbridge, L.

Llewelyn-Davies, L.

Stewart of Alvechurch, B.

Elwyn-Jones, L. (L. Chancellor.)

Llewelyn-Davies of Hastoe, B.

Stone, L.

Fisher of Camden, L.

Lovell-Davis, L.

Strabolgi, L. [Teller.]

Gaitskell, B.

McCluskey, L.

Wallace of Coslany, L.

Gardiner, L.

Milner of Leeds, L.

Wedderburn of Charlton, L

Gregson, L.

Northfield, L.

Wells-Pestell, L.

Hale, L.

Paget of Northampton, L.

Whaddon, L.

Resolved in the affirmative, and Amendment agreed to accordingly.

Baroness LLEWELYN-DAVIES of HASTOE: My Lords, I beg to move that the further proceedings on the Scotland Bill be now adjourned until 8.20 p.m.
Moved accordingly, and, on Question, Motion agreed to.

HOME PURCHASE ASSISTANCE AND HOUSING CORPORATION GUARANTEE BILL
7.20 p.m.
Baroness BIRK: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a—(Baroness Birk.)
On Question, Bill read 3a.
Clause 1 [Advances to lending institutions]:
Lord DAVIES of LEEK Lord DAVIES of LEEK moved the following Amendments:
Page 2, line 15, after ("savings") insert ("or such lesser amount as the Secretary of State may by order specify;")
Page 6, line 17, leave out paragraph 17 and insert ("7. Such banking companies and discount companies as the Secretary of State may with the consent of the Treasury specify by order.").
The noble Lord said: My Lords, because of the late hour, I should like to move both Amendments at the same time it will expedite business and I do not think that it will blur my intentions. I beg, therefore, to move the two Amendments standing in my name.
The first Amendment aims to reduce the £600 saving requirement for the purchase of cheap houses and to bring it down to something like £300. In another place, the Government have bowed to pressure and have been good enough so to amend the Bill that the savings requirement may be reduced at a future date. I should like that amendment to be made quite clear, for I believe that there is still discrimination against those who want to buy cheap houses. May I give some figures to the House.
It is worth remembering that in 1976' over 6 per cent. of all second-hand
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dwellings were sold for less than £4,000. I believe that the present requirement to save £600 will discriminate against the purchaser of the cheaper house. The person buying a house for £3,000 will have to save 20 per cent. of the purchase price, while a person buying a £12,000 house will have to save only 5 per cent. of the purchase price. Consequently, the aim of this Amendment is to end discrimination against the purchasers of cheaper houses by making sure that they are not required to save more than they receive by way of Government loan.
I am prepared to accept that there should be the caveat that people should not be driven into incurring expenses, similar to those with which they are sometimes faced as a result of high pressure advertising, which they cannot afford to meet. Some protection against that kind of activity is, I accept, provided in the Schedule to this Bill.
The second Amendment relates to the Schedule on page 6. The intention of this paragraph is to exclude certain foreign banks, particularly Asian banks, that would be used by the coloured immigrants who live in this country. We have to expect the growth of a cosmopolitan population throughout the world, and we have to learn to live with it and understand it. That is the function of an intelligent society. Many people therefore oppose the exclusion of recognised lending institutions, among which would be a number of reputable Asian banks. In the inner city areas, more and more black people are trying to buy their homes. As Dickens pointed out over a century ago, there is nothing that solidifies society better, than the ownership of a dwelling and the joy of making what originally may have been a humble home into something which is clean and neat. Consequently, I welcome the general purposes of the Bill.
There is the danger, however, that we are not protected from usury. Many of the homeless sections of the population in Southampton, Cardiff, Grimsby and Birmingham pay very high interest to institutions which are lending at rates which I call usurous. I do not want to name any names; it would be invidious.
May I add that not so long ago there was a Paper on homelessness from the Department of the Environment, the

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Department of Health and Social Security and the Welsh Office. I do not intend to go through them, because the House is well informed, but it is quite true that since 1945 all Governments, both Labour and Conservative, have passed many housing Acts. If local authorities were to implement these Acts, it would be possible to do almost everything that is contained in this home purchase Bill to encourage young people, old people, the lonely and others in the inner city areas to try to buy their property. For instance, power is given to local authorities by the Local Government Act 1972 to do anything which is calculated to facilitate the discharge of any functions. They have power to incur expenditure for certain purposes up to the product of a 2p rate in any financial year. The powers of principal councils in relation to emergencies and disasters are well known, but too often they are not prepared to implement powers to improve inner city areas and slum property. Recently, many authorities have made what was originally slum property into decent property. Those dwellings are now within the reach of people who do not have much capital and who are prepared to struggle to buy their homes.
I am told that there are safeguards. Those safeguards are, allegedly, in the Protection of Depositors Act 1963. It was my duty to read through this Act. Hannibal could drive a train of elephants through that Act, or any part of it. The Protection of Depositors Act has more to do with moneylending than with lending money for house purchase or with building societies. Who or what is designated as a banking company or a discount company for the purposes of the Protection of Depositors Act 1963'? This is an Act which is designed
"to penalise fraudulent inducements to invest on deposit; to restrict and regulate the issue of advertisements for deposits; to make special provision with respect to the accounts to be delivered by and the supervision of companies which issue such advertisements; …".
The Protection of Depositors Act 1963 is mentioned in the Schedule to this Bill. I shall paraphrase it from memory. Legally speaking, my paraphrase may be off-beat, but the gist of it is as follows. Clause 1 states that to conceal material facts is an offence. There is a girl who appears on television every weekend who gives examples of this. She shows an old
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lady in Lambeth dancing up and down and then she picks out people who cheat the public by not letting them know the true rate of interest. It would be interesting to know how many rogues, rascals and userers have been trapped by the Protection of Depositors Act 1963.
With regard to the concealment of material facts, what is the most material fact for a poor purchaser of a house? The true interest rate could be 25 per cent. When I was a child in the Welsh valleys, there used to be a few wise old women who would lend a shilling to the collier's wife instead of her going to the pawn shop—at an interest of a penny a week—so that she paid back one shilling and one penny. It sounded marvellous, but it is a rate of interest of between 300 and 400 per cent. I believe that the true interest rates should be spiked down; they should be clearly declared by discount houses, banking houses, building societies and the rest when they lend, particularly to people who are not at all familiar with the Act.
I have nearly finished, so if my noble friend who is well and beautifully dressed on the Front Bench wants to get away, she need not worry. Clause 8(1)(d) says—and here is the escape hatch that Hannibal could take his elephants through—
"… any other exceptional circumstances affecting the production or audit of the company's accounts".
So that under Clause 8—these are the words in the Act—if the presentation of accounts is onerous or impracticable then the Act would not be enforced upon the discount company. That is what it really means. So that private advertising companies have not got the safeguard that we hoped. They are supposed to present their accounts regularly.
One day I will table a question to find out how often this Act has been applied since 1963 to people who cheat the country or who cheat house purchasers. I hope that I shall get an answer. I do not intend to press the House to a Division: Your Lordships have had enough, but I hope I shall receive an answer which will give people outside some satisfaction. In any case I want to congratulate the Government on bringing the Bill forward, but it needs spokeshaving; it needs polishing and also some tightening up if we are going to apply the 1963 Protection of

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Depositors Act. I shall leave it at that and wait for the reply from my noble friend. I beg to move.
Lord STRATHCONA and MOUNT ROYAL: My Lords, I should like to express regret that the noble Lord, Lord Davies of Leek, moved these two Amendments together, because they really address themselves to quite different issues. But since we have embarked on the debate in this form I will follow him. With regard to the first Amendment, I suggest that to claim that this discriminates against the buyer of the cheaper house is a slightly mischievous manipulation of figures, if I may say so not in any derogatory manner at all. Once could equally well say (could one not?) that it discriminates against the purchaser of a more expensive house because he is only able to get a grant of six per cent. on a £12,000 house, whereas he can get a grant of 20 per cent. for a £3,000 house. So I really do not believe that that particular point is a telling one.
Of course, one could pluck any figure out of the air. It seems to me that on the whole £600 is not an unreasonable figure. As I said on Second Reading, we believe that under a Government of a different complexion it would be possible to double the size of the grant because we believe that the cost of building and maintaining council houses is of the order of £1,200 a year. I do not think there is much point in our getting into a long argument over that at this stage, but I am bound to say to the noble Baroness, Lady Birk, that I am not tremendously in favour of the noble Lord's first Amendment.
When we come to the second Amendment, about which I have been lobbyed in much the same way, I think we have a rather interesting situation. As I understand it, this Amendment addresses itself to two issues. On the one hand, it is suggested that in the list of approved or recognised lending institutions there are certain perfectly reputable and respectable banks which are not included and the Secretary of State should have power to add people to the list. On the other hand, it is suggested that there are certain organisations which carry the stamp of approval but which act in a usurious manner, to use the nice old word which the noble Lord used, and the Secretary of State
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should have the power to remove such institutions.
When I discussed this with the noble Baroness, who was good enough to spare some time to go over it, it was pointed out that if one looks at Clause 2 one finds that the Secretary of State has precisely the powers which he needs to do these two things and these were inserted in another place during the debate which took place there. In any case, I do not believe that it would be right to give the Government the power to say to an institution, "It has been represented to us that you are no longer behaving in a respectable manner; we do not like you; we are therefore going to take you off the list". I think that would be a highly objectionable power. I cannot really believe that any Government or civil servant would want to be put in a position where he had this type of omnibus sledgehammer power to do something which would require a certain appeals procedure, or perhaps an institution or organisation with whom the matter could be discussed. So from this side of the House it would seem that the two points are already covered in the Bill, and that so far as the second Amendment is concerned I am not at all sure that the last state of that man would not be worse than the first.
Baroness BIRK: My Lords, I should like to follow my noble friend and reply to the two Amendments together. The first Amendment on the scale of loans deals with people on a lower income having the opportunity of owning their own home. I agree with the noble Lord, Lord Strathcona and Mount Royal, that we should not embark on another Second Reading debate, but I cannot resist wondering how he is going to double the size of the grant without having an enormous extension of public expenditure. However, I will restrain myself from going any further down that political road.
I have tremendous sympathy for the motivations behind this Amendment, but we have grave doubts about a scheme which involves a sliding scale of loans. This scheme has been carefully worked out to encourage people to achieve a reasonable level of savings before purchase. It was intended to provide significant help in return for significant savings, because, in addition to all this, money is needed generally for the deposit, for

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surveys for legal fees and for removal expenses and so on, and offering a Government loan of, say, £300 for £300 of savings could turn out to be rather irresponsible and damaging to the very people we want to help.
It could mislead buyers into believing that £300 is a reasonable target for savings if they want to buy a house. Not only might they find it difficult to obtain a mortgage rapidly and find themselves in financial difficulty but financial institutions would generally be extremely uneasy about lending to people with such small savings. There would then be a number of sadly disillusioned prospective purchasers. I can assure my noble friend that we did not choose the figure of £300 out of the blue; it was thought out very carefully as being just about the right level to set a reasonable but not impossible target.
One of the great virtues of the scheme in the Bill is its simplicity. We have these two elements, a £600 single value loan, and a bonus, on a very simple sliding tariff. To underline the simplicity, the final requirement for the loan is a single figure, too, and that is £600. We believe that the extra effort needed on the part of the institutions to administer various sizes of loan, including loans as small as £300, would be out of proportion to the benefits involved, and again there would be more costs coming up on the other side. We see the force in the counter arguments. Clause 1(6)(c) enables the Secretary of State to introduce a sliding scale of loan by order once we have more experience of operating the scheme and can see whether a need exists. I can assure my noble friend that if we found that among those buying cheaper houses a significant proportion were unable to save up to £600—and we shall be monitoring this very carefully—an order could be made by Negative Resolution to introduce a sliding scale.
In rounding off this Amendment, I would say finally that the purpose of the whole Bill is to help into home ownership those who are just on the margin, who up to now would not have had the opportunity. It would not be any kindness to those who cannot manage the payments, even with the help provided by the Bill, almost to seduce them into home ownership which they could not
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afford. So far as the building societies are concerned, there has been a growing percentage of loans to people in the lower income bracket, and in fact this Bill will result in building societies coming forward with larger loans. My noble friend was kind enough to say that this was not an Amendment he would wish to press but that he wanted an answer to it, and I hope that answer will have satisfied him.
If I may turn to his second Amendment, that, in a way, is really very much more straightforward. I would point out right away that the way paragraph 7 in the Schedule is worded means that it only contains those banks which have been exempted by the Secretary of State for Trade from the provisions of the Protection of Depositors Act. These are banks or deposit houses that are exempted because they meet the stringent criteria and are reputable banks. In fact the paragraph is very strictly drawn. The noble Lord, Lord Strathcona, did raise this point with me, and I welcome the chance to explain to noble Lords the Government's attitude towards inclusion and exclusion of finance institutions in regard to participating in the scheme.
Of course, the vast majority of loans to first-time buyers come from the building societies, and they are already included. I understand the worries about the other sources of finance, but the Government will be able to react quickly and effectively either to remove or to add institutions. This was carefully put in in another place to meet the particular points which were raised this evening by my noble friend and also in private discussions by the noble Lord opposite. The Schedule to the Bill therefore includes in the saving and lending institutions all banks recognised under the Act of 1963 which we have discussed. This is simply a convenient way of starting the scheme, with a list of institutions which have satisfied the Secretary of State for Trade, who consults the Treasury and the Bank of England about their financial repute. But the Schedule can be altered by the removal or addition of any type of institution, such as a bank or building society, and this is now included in Clause 2(1)(b). The Secretary of State will not be able to make such an order—which could, naturally, have very serious commercial implications for the institution concerned—without first giving an opportunity for representations to be

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made by that institution or on its behalf, either by solicitors or trade associations; in addition, the consent of the Treasury is needed. So this clause provides a firm safeguard against high-handed or arbitrary administrative action.
With regard to the addition of institutions to the Schedule, fear has been expressed that some perfectly reputable banks, sometimes described as "ethnic" banks, are not on this list. Some of these banks may provide mortages, especially in inner areas. The list already includes many of the "minority" or "ethnic" banks, such as the Allied Irish Banks Limited, the Bank of Cyprus, the State Bank of India, and there are others. The main point is that any bank not on the list will be able to apply to the Secretary of State to be recognised for the purpose of the scheme. If the Secretary of State and the Treasury are satisfied, that bank can be added to the Schedule by order. I am quite certain my noble friend would feel that these banks, whether they are the ordinary conventional banks or what we call "ethnic" banks, should have to conform to the same strict criteria as all the other banks on the list.
I hope that these two explanations have reassured my noble friend that there is sufficient flexibility in the Bill to cover both his first Amendment, which deals with his concern about the loan scheme, and also his second Amendment, which deals with banks and other institutions.
7.46 p.m.
Lord STRATHCONA and MOUNT ROYAL: My Lords, may I ask the noble Baroness one question arising out of what she has said. The fact that an organisation like Shelter, who wrote to me about this point, could be under certain misapprehensions about the Bill suggests, does it not, that there is a wide lack of information about what the Bill will do? When the noble Baroness refers to the list, I suppose she is talking about Part I of the Schedule. I have the impression—certainly I did when I looked at it—that any ordinary person, indeed any person doing other things, as most of us are in this House, cannot really be expected to go back to the Insurance Companies Act 1974, the Friendly Societies Act 1974, the Protection of Depositors Act 1963, and
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so on. Would the noble Baroness envisage that a list of intelligible and identifiable institutions might be produced at some stage so that one can find out what is necessary?
Perhaps this is also the moment to say that I agree with the noble Lord, Lord Davies of Leek, when he expresses worry about the quotation from the Protection of Depositors Act. What we are concerned about is not so much the protection of depositors as the protection of the consumers or the borrowers in some of these cases. Perhaps the noble Baroness could give us a little assurance on that point. I am sorry to waste further time on the matter, but I think it is quite an important one.
Baroness BIRK: Certainly, my Lords. I was in fact going to make some of these points on the Question, That the Bill do now pass, but I will make them now. The important thing is that people should understand what the Scheme is about. They should know where to go and should have a choice of institution, and be able to decide for themselves whether they are getting a good, bad or indifferent deal. I can say that we recognise—and I certainly do—the importance of wide publicity. Every one who might benefit from the Bill should know what the benefits are and where they can get them; the available institutions, and how to set about it themselves. I agree with the noble Lord that the information should not be something that is extremely difficult to dig out.
There will be a Press campaign, directly the Bill gets through and the appointed day is set, which will encourage prospective buyers to obtain the leaflet which describes the scheme in full. I can assure noble Lords that it will be in easily comprehensible layman's language, not in legal or (dare I say?) Civil Service jargon. Leaflets will be freely available from institutions which operate the scheme, banks, local authorities, building societies, and also from general places like post offices so that people can get one quite easily without having to find the specialised places. The leaflet will also be printed in Welsh and in a number of other languages such as Hindu and Gujarati. I think that that covers the point.
It is most important that people have the opportunity to have this information

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communicated to them and understand what it is about. However, most important of all, they must know whether they are eligible, and how their savings are dealt with so that they go about it in exactly the right way. All those matters are simple to the expert but they are extremely complicated to ordinary people who will want to have them explained in a simple way.
Lord DAVIES of LEEK: My Lords, I thank my noble friend for that helpful answer. I should like to say to the noble Lord, Lord Strathcona and Mount Royal, how grateful I am to him—this was really a non-political matter—for the constructive points which he raised at the end of his remarks. We now know that there will be some publicity. It is bound to be empirical, but from both sides of the House there has been a tribute tonight to the work of Shelter which this House and Parliament have recognised. In view of that, I beg leave to withdraw the Amendments.
Amendments, by leave, withdrawn.
Baroness BIRK: My Lords, I beg to move that the Bill do now pass. I wish to thank noble Lords, and in particular the noble Lord, Lord Strathcona and Mount Royal, for the helpful and expeditious way in which he has enabled us to deal with this matter. I should also like to thank my noble friend Lord Davies of Leek for enabling me to explain and to put on record the matters which I think have caused concern. I hope that now I have been able to explain how they are clearly dealt with in the Bill. All I can say is that the sooner the Bill becomes law, the sooner we shall have the appointed day and the sooner the first benefits will be paid to first time buyers, and people who have never had a chance to own their own home before will now be able to start to do so.
Moved, That the Bill do now pass.—(Baroness Birk.)
Lord STRATHCONA and MOUNT ROYAL: My Lords, in talking of the expeditious and helpful way in which the Bill has been handled I am bound to say that the noble Baroness has taken the words out of my mouth and it is now high time that she put something else in. hers!
On Question, Bill passed.

PRALIAMENTARY PENSIONS Bill
Brought from the Commons; read 1a, and to be printed.
HOUSE OF COMMONS ADMINISTRATION BILL
Brought from the Commons; read 1a, and to be printed.

CONSUMER SAFETY BILL
7.53 p.m.
Lord MOTTISTONE: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Mottistone.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [Safety regulations in respect of goods.];
Lord MOTTISTONE Lord MOTTISTONE moved Amendments Nos. 1 and 2:
Page 1, line 5, after ("may") insert ("make regulations containing such provision authorised by subsections (2) and (3) of this section as the Secretary of State considers appropriate.")
Page 1, line 8, leave out from ("goods") to second ("and") in line 9.
The noble Lord said: With the leave of the House I should like to move Amendments Nos. 1 and 2 en bloc. These two Amendments, which are in parallel, are what might be described as a "technical" Amendment to improve the wording of the Bill so that it is legally sounder. It is possible that regulations made under Clause 1, as at present drafted, could be challenged in the courts. perhaps in the course of criminal proceedings for breach of regulations, on the basis that they did not secure that the goods were safe; that is, that any risk of death or personal injury was adequately reduced.
The question whether safety regulations impose appropriate provision is better decided before the regulations come into force; that is, when the regulations are approved by Parliament. The proposed

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new wording—and this is important—does not widen the scope of the regulation-making powers conferred on the Secretary of State as they are qualified, as your Lordships will see, by reference to provisions authorised by subsections (2) and (3 of the clause.
Finally, the proposed two Amendments will bring Clause 1 more or less into line with Section 2 of the 1961 Act in this respect, and your Lordships will remember from Second Reading that it is in replacement of the 1961 Act that this one is now before your Lordships. I beg to move.
On Question, Amendments agreed to.
Lord MOTTISTONE Lord MOTTISTONE moved Amendment No. 3:
Page 2, line 21, at end insert—
("(ee) with respect to the ways of dealing with goods of which some or all do not satisfy a test prescribed by the regulations or a standard connected with a procedure so prescribed;").
The noble Lord said: I beg to move Amendment No. 3. Your Lordships will see that Clause 1(2)(e) enables the Secretary of State to make regulations with respect to the testing or inspection of goods—a power which may be used in appropriate cases for the purposes of prescribing quality control procedures designed to ensure that goods which reach the market are safe. There is, however, no express power in Clause 1 to include provisions in regulations requiring goods which do not satisfy a prescribed test or inspection to be dealt with in such a way as to separate them from those which do and ensure that they are not marketed. We are talking about the fate of a batch which does not pass the test. The Amendment is designed to make provision in the regulations to deal with that sort of situation. I beg to move.
On Question, Amendment agreed to.
Lord MOTTISTONE Lord MOTTISTONE moved Amendment No. 4:
Page 2, line 32, leave out from ("goods") to end of line 33 and insert ("in respect of which requirements of the regulations are not satisfied").
The noble Lord said: I beg to move Amendment No. 4 and at the same time I should like to speak to Amendment No. 5. This is a tidying-up Amendment. As it
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stands, Clause 1(2)(g) enables regulations to be made prohibiting the supply of goods which do not satisfy requirements relating to the goods themselves—for example, design and construction et cetera. But it does not enable regulations to prohibit the supply of goods which are required under Clause 1(2)(f) to be accompanied by specified information such as safety instructions.
Your Lordships will see that at present the goods are dealt with, but not the goods when they have been marked in accordance with Clause 1(2)(f). The Amendment seeks to remedy that situation by enabling regulations to prohibit the supply of goods in respect of which the requirements of the regulations are not satisfied. Amendment No. 5 is consequential on Amendment No. 4 because it will no longer be necessary if Amendment No. 4 is agreed to. I beg to move.
On Question, Amendment agreed to.
On Question, Whether Clause 1, as amended, shall stand part of the Bill?
Lord MOTTISTONE: As regards Clause 1(2)(c), it has been represented to me that many industries are very concerned that the standards which are specified in the regulations should be fully acceptable and in many cases they would prefer a British Standard. When the Bill was in another place, the Minister of State, at column 1895 on 23rd April, gave an undertaking which assured persons that the standards that would be included in the regulations would be suitable and that people would be consulted about them. It would be much appreciated if the noble Lord who is to reply on behalf of the Government could give the Committee a similar undertaking.
Lord WALLACE of COSLANY: I shall be very happy indeed to give the noble Lord the assurance that he seeks. It has been Government policy for some time past for regulations under the Consumer Protection Act 1961, relating to the safety of consumer goods, to be made whenever possible by reference to relevant British Standards or parts of standards. Alternatively, in some instances the regulations have been based on the provisions of the appropriate standards.

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The Government intend to continue to make full use of British and other published standards—these may include internationally recognised standards—in consumer safety regulations and, in particular, where these regulations impose generalised requirements, to include "deemed-to-satisfy" references to relevant published Standards whenever practicable, subject, of course, to consultations with all the interested parties. I hope that that assurance will satisfy the noble Lord.
Clause 1, as amended, agreed to.
Clause 2 [Offences against the safety regulations]:
Lord MOTTISTONE Lord MOTTISTONE moved Amendment No. 5:
Page 3, line 12, leave out from ("supply") to end of line 16.
On Question, Amendment agreed to.
Lord MOTTISTONE Lord MOTTISTONE moved Amendment No. 6:
Page 3, line 33, leave out from ("provision") to ("then") in line 35 and insert (", by means of a mark or otherwise, of information of a particular kind in connection with goods").
The noble Lord said: When Clause 2(3) was debated on Report in another place the words "inappropriate information" were criticised on account of their vagueness in relation to an offence. The Minister of State undertook to consider this point. The reference is column 1842 of the Official Report of 28th April. The information which was prohibited in relation to goods will be spelled out in regulations containing provisions of the kind referred to in Clause 1(2)(f). The proposed Amendment makes this clear and deletes the reference to "inappropriate information". I beg to move.
On Question, Amendment agreed to.
Clause 2, as amended, agreed to.
Clause 3 [Orders and notices to prohibit supply of goods or give warning of danger from goods]:
On Question, Whether Clause 3 shall stand part of the Bill?
Lord MOTTISTONE: With regard to Clause 3, I should like to make a correction to my Second Reading speech. At column 1465 I said:
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"The penalties for unauthorised disclosure of information include a prison sentence, while those for other offences under the Bill do not".
As your Lordships will see in Clause 3, in its last subsection, and in Clause 4, my remarks were incorrect. I should have said that:
"… penalties for unauthorised disclosure of information have considerably more serious prison sentences".
I should not have implied that the other sort of offences did not have one at all.
Clause 3 agreed to.
Clause 4 [Power to obtain information]:
Lord MOTTISTONE Lord MOTTISTONE moved Amendment No. 7:
Page 7, line 7, leave out from beginning to ("except") in line 10 and insert ("No information obtained by virtue of this section shall be disclosed").
The noble Lord said: With the leave of the Committee, I should like to speak to Amendment No. 10, as well. It is important to ensure that the prohibition in subsection (3) of Clause 4, of disclosure of information provided in response to a notice served by the Secretary of State, applies not only to the Government Department officials who first receive the information but also to any other person to whom that information is made available; for example, a trading standards officer who receives it for the purpose of criminal investigation, and there may be others. The proposed Amendment is designed to make this clearer. Amendment No. 10 is a consequential drafting Amendment. I beg to move.
On Question, Amendment agreed to.
Lord WALLACE of COSLANY Lord WALLACE of COSLANY moved Amendment No. 8:
Page 7, line 22, after ("State") insert ("or a Northern Ireland Department").
The noble Lord said: Although Community obligations are normally imposed on the Government of the United Kingdom, the European Communities Act 1972 makes it plain that a Northern Ireland Department may also be under a Community obligation. This Amendment provides that information obtained under Clause 4 may be disclosed for the purpose of enabling a Northern Ireland Department to fulfil a Community obligation.
Such an obligation can arise under Article 100 Directives relating to the safety

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of consumer goods. These directives usually include a "safeguard clause" which enables Member States to prohibit the sale of goods, even though they comply with the provisions of the Directive, if they are considered to be dangerous. When this is done the Commission must be informed of the prohibition and the reasons for it. It is in these circumstances that it may be necessary to disclose information of the kind obtained under Clause 4. I beg to move.
On Question, Amendment agreed to.
Lord WALLACE of COSLANY Lord WALLACE of COSLANY moved Amendment No. 9:
Page 7, line 27, at end insert ("but the prohibition on disclosure imposed by this subsection does not apply to publicised information.").
The noble Lord said: With the permission of the Committee, I should also like to speak to Amendment No. 22. It should not be a criminal offence to disclose information which has been made public, for example, in a warning issued as required by a notice to warn. This Amendment provides that the prohibition on disclosure in Clause 4(3) does not apply to information which has been published in criminal proceedings, in proceedings under Part III of the Fair Trading Act, in a warning published as required by a notice to warn or in a warning published by the Secretary of State. I beg to move.
On Question, Amendment agreed to.
Lord MOTTISTONE Lord MOTTISTONE moved Amendment No. 10;
Page 7, line 28, leave out ("contravenes") and insert ("discloses information in contravention of").
On Question, Amendment agreed to.
Clause 4, as amended, agreed to.
Clause 5 [Enforcement]:
Lord WALLACE of COSLANY Lord WALLACE of COSLANY moved Amendment No. 11:
Page 8, line 19, at end insert—
("(3A) If the Secretary of State directs a person on whom a duty is imposed by virtue of subsection (1) or (2) of this section to make a report to the Secretary of State, in such form and containing such particulars as are specified in the direction, on the exercise of the person's functions under this Act or, while the Consumer Protection Act 1961 remains in
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force, under this Act and that Act, it shall be the duty of the person to comply with the direction.").
The noble Lord said: With the permission of the Committee, I think that it would be desirable and helpful for me to speak also to Amendments Nos. 14 and 38, because they are all relevant and with your Lordships' consideration of time in mind it would help. These Amendments implement an undertaking given by the Minister of State, the Department of Prices and Consumer Protection, in another place to consider the question of annual reports by local weights and measures authorities on their enforcement activities under the Bill with a view to seeking a suitable Amendment in your Lordships' Committee. Discussions, which have since taken place between the Department and the associations representing the local authorities, have indicated that the associations are strongly in favour of voluntary arrangements for the reporting of this information.
In the case of the Trade Descriptions Act 1968, local weights and measures authorities are required, if the Secretary of State so directs, to make him a report on the exercise of their functions under the Act. No reports have so far been called for because local authorities provide the information in question voluntarily, usually together with the annual reports which they submit—as are statutorily required— about their activities under the Weights and Measures Act 1963. Arrangements can, no doubt, be made for information relating to enforcement activities under the Bill, and the Consumer Protection Act 1961 (until it is repealed), to be supplied voluntarily to the Department of Prices and Consumer Protection.
If, as is proposed by the Amendment to Clause 9—that is, Amendment No. 14—the Secretary of State is to be under a duty to lay before each House of Parliament from time to time a report covering, inter alia, the exercise of the functions of enforcement authorities, it seems necessary that he should have power to require reports from these authorities so as to ensure that he himself is in a position to comply with his statutory duty to report to Parliament. The Amendment enables him to do so. I beg to move.
Lord LYELL: I wonder whether the noble Lord, Lord Wallace of Coslany, can help me on this. So far as I am

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concerned, I think that there is a slight problem here with regard to Amendment No. 14. I see that the Amendment mentions reports to the Secretary of State. I believe that there could be a case—and it could clash with what the noble Lord mentioned earlier about confidentiality and disclosure of some information—where a report might disclose some information on various companies against which proceedings might not have been brought, or alternatively where those proceedings had been brought unsuccessfully. I wondered whether he would be able to tell me whether there has been any problem with the existing disclosures which he was mentioning under the Trade Descriptions Act and the Consumer Protection Act.
Lord WALLACE of COSLANY: I am unable to give the noble Lord a full assurance at this point. There is a clause later on dealing mainly with this point, but at the moment I am unable to give him information on that point. I shall contact him later.
Lord MOTTISTONE: Perhaps I might be able to help my noble friend because I should think, although this would be subject to confirmation from our advisers, that Clause 4(3) lists the areas under which information can be used without breaking the regulations, so to speak. This does not include the report. Therefore, when the report is compiled it will have to be compiled in such a way as not to give away the kinds of information which are described in the Bill.
Lord LYELL: I am grateful to my noble friend for enlightening me on this point. May I return to this later? I think that it is a reasonable point. It is not of any great substance and I am sure we can resolve it, although not necessarily tonight.
Lord WALLACE of COSLANY: When we come to the other Amendments involved in this group I may be in a position to give the information.
On Question, Amendment agreed to.
Clause 5, as amended, agreed to.
Clause 6 [Civil liability];
8.12 p.m.
Lord MOTTISTONE Lord MOTTISTONE moved Amendment No. 12:
Page 8, line 34, at end insert—
("(2A) References in the preceding provisions of this section to an obligation imposed by safety regulations do not include such an obligation as to which the regulations state that those provisions do not apply to it.").
The noble Lord said: The wording that your Lordships are being offered in the new subsection (2A) is extremely obscure to the reader, and we spent a certain amount of time seeking ways in which this could be made clearer to the ordinary reader. I am satisfied that every effort to do that has been made, with the proviso that it has to be legally sound. Clause 6, as at present drafted, goes too far in providing a breach of any of the obligations imposed by the safety regulations to give rise to civil liability. The effect of the comparable provision in the Consumer Protection Act 1961 is confined to making the sale of goods which do not comply with safety regulations a breach of statutory duty. Accordingly, this Amendment is designed to limit the civil obligations that a person may be involved in in this general process. I beg to move.
On Question, Amendment agreed to.
Clause 6, as amended, agreed to.
Clause 7 [Supplemental]:
Lord MOTTISTONE Lord MOTTISTONE moved Amendment No. 13:
Page 10, line 6, at end insert—
("(8) In subsection (4) of section 2 of the Trade Descriptions Act 1968 (which provides that a description or mark applied to goods in pursuance of an enactment mentioned in that subsection shall be deemed not to be a trade description) after paragraph (f) there shall be inserted the words "(g) the Consumer Safety Act 1978", and in subsection (5)(a) of that section (which provides that where, under certain Acts including the Food and Drugs Act (Northern Ireland) 1958, the application of a description to goods is prohibited except in certain cases the description shall be deemed not to be a trade description when applied in those cases) after the figures "1958" there shall be inserted the words "or the Consumer Safety Act 1978".").
The noble Lord said: This Amendment ensures that where information is applied to goods as required, or as expressly

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permitted by safety regulations, there is no risk of committing an offence under the Trade Descriptions Act 1968. The problem is that where safety regulations require goods to be marked with specified information, this information might in certain circumstances be a false trade description. An example of a case where this might be so is if goods were required to bear the name and address of the manufacturer or importer into the European Economic Community, the name and address of the importer into the EEC might be taken to be an indication of the origin of the goods and, by virtue of Section 3 of the Trade Descriptions Act 1968, might be held to be a false trade description. It is for that reason that this Amendment seeks to avoid such a situation. I beg to move.
On Question, Amendment agreed to.
Clause 7, as amended, agreed to.
Clause 8 [Expenses etc.]:
Lord WALLACE of COSLANY Lord WALLACE of COSLANY moved Amendment No. 14:
Page 10, line 15, at end insert—
("(2) It shall be the duty of the Secretary of State to lay before each House of Parliament from time to time, and in any event not less than once in every five years, a report on the exercise of the functions under this Act and, while the Consumer Protection Act 1961 remains in force, of the functions under that Act, of the Secretary of State and of persons on whom duties are imposed by virtue of section 5 of this Act.").
The noble Lord said: I shall probably be able to deal with the question of the noble Lord, Lord Lyell, at Amendment No. 38, if the noble Lord agrees. I beg to move.
On Question, Amendment agreed to.
Clause 8, as amended, agreed to.
Clause 9 [Interpretation]:
8.16 p.m.
Lord AIREDALE Lord AIREDALE moved Amendment No. 15:
Page 10, line 17, leave out ("if and").
The noble Lord said: I think it is well settled that the draftsman is not permitted to call in aid the Queen's Printer to emphasise the parts of the Bill which the draftsman thinks are important by such devices as italics, underlining, heavy type,
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or capital letters. I think it follows that the draftsman must not seek to achieve the same effect by the use of extravagent language. Here in Clause 9 we have the expression "if and only if". What that means is "only if". The two words I seek to leave out merely add emphasis.
Some years ago there was a Bill in which I moved an identical Amendment to this one. I lost the battle in this House, as I rather expected I would, but the Minister in charge of the Bill, God bless him! took up the point and moved the Amendment in the other place and, not surprisingly, won the day; and the words I seek to leave out of this clause were left out of that clause. I hope that the Committee will take my word for this precedent, because if they do not I shall have to spend the time between now and Report stage in the Library searching among Commons' Hansards, and I should much prefer to go out and enjoy the sunshine of this glorious summer. I beg to move.
Lord MOTTISTONE: I was aware of what the noble Lord, Lord Airedale, probably had in mind, having known him to provide correction in the matter of the Queen's English in many a Bill during the time of both of us in this House. I spent some time talking to the advisers to see how we could accommodate the noble Lord. May I take his first point, which I rather think was a question of economy for the Queen's Printer in black ink and just the little extra bit of paper used on that point. I should have thought that it was not unreasonable for emphasis to be made where it is thought to be particularly important, even at the expense of the extra ink and paper. Therefore, I would not go along with him there.
I am sure that he must be right over his precedent, and maybe that is what is going to happen again, but he still has a Report stage. Perhaps we could discuss the matter in the meantime. I should be only too happy to help him in the Library, but until that is over perhaps we could agree, because I am strongly advised that this cannot be deleted, that perhaps the Amendment could be withdrawn at this stage. I should be happy to do anything I could in the meantime.
Lord AIREDALE: That is a very fair offer, which of course I cannot refuse. Between us we shall find in Hansard exactly what the Minister said about the expression I complain of. In the light of that, we may be able to come to some agreement. For the moment, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.20 p.m.
Lord MOTTISTONE Lord MOTTISTONE moved Amendment No. 16:
Page 10, line 40, leave out ("for re-sale").
The noble Lord said: While it is likely that those who carry on a business of repairing and reconditioning goods will sell the goods in question after repair or reconditioning, it is possible in some cases that such goods will be supplied by way of hire. A reconditioner of television sets might, for example, hire the sets out after they have been serviced. It is illogical to make it an offence to supply goods to such a person while accepting that, if the reconditioner sells the goods after he has restored them to safe working order, the supply of goods to him is exempt. The Amendment seeks to remove that anomaly.
On Question, Amendment agreed to.
8.21 p.m.
Lord STRABOLGI: I beg to move that the House be now resumed.
Several noble Lords: No!
Lord LYELL: Noble Lords will see that I have down an Amendment numbered 23A. According to my stop-watch we have been going 28 minutes since this stage of the proceedings was started. Could we just finish the clause with which we are dealing? If not, it would mean my missing the opportunity of moving my Amendment tonight and I shall have to move it at a later stage. Would the Committee bear with me in this matter?
Lord STRABOLGI: It would be some time before we reached that Amendment, would it not? We have just dealt with Amendment No. 16 and the noble Lord, Lord Lyell, wants to be able to move No. 23A. The arrangement, which I
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think was announced by the Chief Whip, was that we would go back to the Scotland Bill at 8.20 p.m.
Lord MOTTISTONE: That was on the understanding that we would not have a Third Reading which took half an hour. It seems unreasonable of the Government to have committed us to that half hour of lost time, because our Bill was organised some time ago and I was led to understand that I could have the whole of this period. No doubt the Government thought the Third Reading would take only a couple of minutes. It may well have done had the noble Lord not had down an Amendment. Be that as it may, I think we could probably get through by just after 8.30 p.m, if the noble Lord, Lord Strabolgi, would be willing to accede to my noble friend's wishes.
Lord STRABOLGI: I am sorry, but it was the arrangement that we should go back to the Scotland Bill—a great many speakers have indicated their wish to speak—at 8.20. We have tomorrow to continue the Committee stage of this Bill and I am sure it would be acceptable to the Committee to adhere to the arrangement that was made and agreed through the usual channels.
Lord AIREDALE: We are of course used to Private Members' Bills being squeezed out, particularly late in the Session, but this is no ordinary Private Member's Bill; this is a Bill to which 13 Amendments are down in the name of a Government Minister, and a Bill in which a number of the other Amendments have the ring of having been Government-inspired. We are not being treated very fairly this evening.
Lord WALLACE of COSLANY: I agree that I was under the impression that we might have the whole of this time; but I, too, wish to emphasise that we have practically the whole of tomorrow to deal in greater time with this matter. The noble Lord, Lord Mottistone, will agree that we have been racing a little to get as much as possible done today for our personal convenience tomorrow, but that has been a matter for your Lordships to decide. There will be plenty of time tomorrow.
Lord LYELL: I have had a Parliamentary engagement for tomorrow for six weeks—the noble Lord, Lord Winter-bottom, will support me on that—though I suppose I could put it off. I suggest that the course proposed by the noble Lord, Lord Strabolgi, will result in considerable inconvenience for a loss of, I should have thought, five or ten minutes; but I am willing to take the opinion of the usual channels on this matter.
Lord STRABOLGI: I beg to move that the House do now resume.
Moved accordingly and, on Question, Motion agreed to.
House resumed.

SCOTLAND BILL
8.24 p.m.
Lord STRABOLGI: My Lords, I beg to move that further proceedings on the Scotland Bill be now resumed.
Moved, That further proceedings on the Scotland Bill be now resumed.—(Lord Strabolgi.)
On Question, Motion agreed to.
The LORD CHANCELLOR: My Lords, to a House which is surprisingly lacking in company at this moment, I beg to move that this Bill do now pass. It is tempting to take advantage of the lull to embark upon a long speech, but as there is an Amendment to follow this Motion, I am content simply to move that the Bill do now pass.
Moved, That the Bill do now pass.—(The Lord Chancellor.)
8.25 p.m.
Lord WILSON of LANGSIDE Lord WILSON of LANGSIDE rose to move as an Amendment to the Motion, "That the Bill do now pass", at end to insert—
"in order to avoid the constitutional conflict which rejection of the Bill might cause, but that this House alerts the people in Scotland to its contradictions and deficiencies, and to the financial, fiscal and constitutional problems which remain unresolved; advises them that it is likely to lead to the diminishing of the numbers and powers of Scotland's
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Members of Parliament at Westminster; and warns them most earnestly of the grave danger in which the Bill places the unity of the United Kingdom."
The noble and learned Lord said: My Lords, I greatly regret that the Amendment should stand in my name alone. I had hoped to be able to arrange that the Amendment would carry the support of a number of noble Lords from different parts of the House, not excluding the Benches occupied by Labour Peers. That would have been arranged without difficulty but for the circumstance that I was advised by the authorities of the House that an Amendment of this nature could stand in the name of only one Peer; to that extent at least I am the reluctant Peer.
I wonder whether your Lordships would agree that this Amendment reflects quite accurately what has become over the last months of discussion and debate the predominant feeling of the House about the Bill; namely, that it is a bad Bill, likely to do more harm than good to the working of government in Scotland and indeed the rest of the Kingdom. If I am right in that, then what has been significant has been the support which this view has been given not only from the Conservative Benches but from the Cross-Benches, and, indeed, also from the Labour Benches.
From here, on the Cross-Benches, your Lordships had the view of the noble Lord, Lord Vaizey, an economist of some distinction in his own right, and he painted the intriguing picture of one of the consequences of the Bill's enactment being a kind of Boston tea party in reverse; representation without taxation. We had from the Cross-Benches, too, some relentless opposition from the noble Lord, Lord Monson, and I think it was the noble Lord, Lord Robbins, who was the first to remark on the skill of the Government Front Bench defence of the indefensible. I have been wondering whether it was my prejudiced ear which heard few voices, apart from those on the Government Front Bench, who praised the Bill without qualification.
There was of course the noble Earl, Lord Perth, whose notable contribution to the debates was consistent and unswerving, and we have great respect for his point of view. There was the noble

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Lord, Lord Glenamara, who, at an early stage of our deliberations, spoke of the dedicated work of a team of civil servants, of whom perhaps more anon, who prepared the Bill. And there was the noble Lord, Lord Brown, who unfortunately seldom stayed for an answer, and I am sorry he is not in his place tonight. But beyond them, was there more than a handful of others who supported the Bill without reservation? Even the Liberal voice which supported the Bill was rather like that of the political correspondent of The Scotsman newspaper who said:
"Let us pass the Bill and clear up the constitutional mess afterwards".
The Liberals expressly acknowledge that they see the Bill, as indeed do the Nationalists in Scotland, as a stepping stone to something else, in their case—the Liberal case—to a Federal State, and in the case of the Nationalists to a separate State; surely, to most of us, not the most sensible approach to the solution of constitutional problems.
What, my Lords, of the other voices, particularly those from the Labour Benches? There was Lord Taylor of Gryfe, who has told me that he is very sorry that he is not able to be here tonight. I told him what I was going to say about his comments on the Bill. He said that he did not mind if I did. Your Lordships will remember that the noble Lord spoke of the chaos which he saw as likely to flow from this measure in those fields about which he speaks from a wide knowledge and experience. There were others.
There was the noble Baroness, Lady Bacon. I am sorry that I do not see her here. She has, of course, spent a liftetime in the Labour Party. She is one of its stalwarts and is a former chairman of the Labour Party. She said that she did not think much of the Bill. In a most interesting speech. she put her finger on one fundamental flaw in the Government's approach. She appeared to express agreement with the noble Lord, Lord Crowther-Hunt, and Professor Peacock in a view which they expressed on the Memorandum of Dissent to the Royal Commission's Report, which was the best thing—as I have said not once but at least twice before in this House—that emerged from the deliberations of the Royal Commission.
There was Lord Wigg. He will be here, he tells me, later. He said, among many other fascinating things, that he regarded the Bill as treason. The leader writer in The Scotsman dismissed this. I forget precisely what the words were but they suggested that it was more than a little absurd. I wonder whether they were right. Is there not something of a grain of truth in this? It has been so often suggested in the newspapers and in debates that those who say that the Bill is a threat to the unity of Britain are scaremongering. This is a considered, calculated, careful political judgment. Like all judgments on human affairs, it may be wrong. I do not claim infallibility for it. But it is not scaremongering. If there is any ground for this fear of a threat to the unity of Britain this will indeed bring comfort (will it not?) to the Queen's enemies. That is what treason is about, I think—or one of the things that it is about. It is, in this context, not wholly without significance that in the Labour Vote-No Campaign's ABC of Devolution, the letter "K" is for Kitson. Here, indeed, there is food for thought for those who know the Scottish political scene.
What other voices have we heard during our deliberations over these many weeks? Last, but of course by no means least, there was the voice of the noble Lord, Lord Shin well. The House is in his debt for his many stimulating reflections and hsi constructive comments. Ultimately, if I understood him aright, he seemed to suggest rather regretfully that we should make the best of a bad job: the other place had passed it. "Let it go to the referendum", he seemed to say, "and let the people choose". That is not an unreasonable approach, given the situation into which this Government has driven Parliament. I would not demur to that approach at all, provided that the people in Scotland know what the Government are trying to sell to them and why they are trying to sell it.
This brings me to why I think it is important that this Amendment should be accepted. In the 'course of our discussions, someone described it as a malediction. That, of course, is how it is intended. If it is not accepted, those who will urge upon us in Scotland, that we should answer "Yes" to the question in the referendum will say: "Parliament has approved this Bill in principle; not

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only the Commons with a Labour Government in power, but even the Lords with their built-in Conservative majority have passed it through all its stages. The Government support it. Why should you reject it?"
This Amendment, if your Lordships accept that it expresses the view of your Lordships' House, is the beginning of an answer to that question. If your Lordships do not accept it, this House will be represented to the people in Scotland as having approved a Bill which most of your Lordships—certainly most who have taken part in these debates—as indeed most of those who took part in the debates in the other place, and not only those who support the Conservative Party, recognise for the ill-conceived thing that it truly is, and which your Lordships' debates and the debates in the other place have demonstrated it to be.
There is just one last point I should like to make before I sit down. It has been suggested to me that this Amendment is undesirable, as something of a constitutional innovation—a rather undesirable innovation which might be a precedent on other occasions—as if every time the Lords do not like a Bill that the Commons send to them, someone is going to move a Third Reading Amendment in terms such as these. I can understand, at first thought, the reservations about that. Of course, it misses the point.
First, I do not think that your Lordships need worry about it being a precedent, because I find it difficult to believe that any British Government in the future, faced with a problem such as the Scottish problem today, will deal with it with such extraordinary folly as the present Government have dealt with this one. In any event, look at what has happened. There have been some queer constitutional manoeuvrings going on over the Bill. There was cheating in the Lobbies in the other place on one occasion—this was admitted—to try to get the Bill through. The guillotine would never have been accepted in the other place if the Lords had not introduced this alien conception into our Constitution—alien until the European situation, of course—and into the Bill. The other place would never have let this Bill go through but for the provision for the referendum. If we are
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to have a referendum, let us make sure—as the noble Lord, Lord Hailsham, urged us to do—that the people in Scotland who had to answer the question would know what the question meant, what it involved, and what it was that this Government had decided to impose on Scotland. My Lords, I beg to move.
Moved, as an Amendment to the Motion, "That the Bill do now pass", at end to insert—
("in order to avoid the constitutional conflict which rejection of the Bill might cause, but that this House alerts the people in Scotland to its contradictions and deficiencies, and to the financial, fiscal and constitutional problems which remain unresolved; advises them that it is likely to lead to the diminishing of the numbers and powers of Scotland's Members of Parliament at Westminster; and warns them most earnestly of the grave danger in which the Bill places the unity of the United Kingdom.").—(Lord Wilson of Langside.)
8.39 p.m.
Earl FERRERS: My Lords, I do not think many tears will be shed at the consideration of the Bill in this House drawing to a close. It has been an important Bill—and indeed a hugely important one, because it is altering the Constitution of the United Kingdom. Its real danger lies in the fact that it is altering the balance between the constituent members of the United Kingdom in a way in which we, because of our immediacy to the problem, are unable to determine. When the Bill came to us of its 83 clauses 60 had not been discussed in another place and of its 17 Schedules, 14 had not been discussed in another place. Whatever our views of the House of Lords may be, the stark fact is that were it not for the mere existence of this Second Chamber—irrespective of its composition or powers—the Bill would have been passed into law with vast areas of it not having received any consideration at all by Parliament. That would have been a shocking, and, I venture to suggest, unacceptable state of affairs.
However, your Lordships have considered the Bill—every single clause and every single Schedule of it. It is no secret that when the Bill came to your Lordships' House it did not have many friends, and it is no secret that it has even fewer now.

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We on this side of the House—and I believe that in this we are joined by most noble Lords—took the view that, much as we dislike the Bill, much as we may think that in the long term it will damage, rather than improve, the bonds of unity of the United Kingdom, our job was not to obstruct it or to wreck it. Our job was, as a Revising Chamber to seek information from the Government, to discover their intentions, to scrutinise the Bill, to improve it where possible; and to try to give to another place the opportunity of considering matters of substance, which up to now have, by their rules of procedure, been denied to another place.
In no way have we sought to wreck the Bill. That was not our role. The Bill had the approval of another place; the inhabitants of Scotland will have their chance of giving a view. Whatever our views on referenda or devolution in general may be, it would have been wrong had we sought to destroy the Bill. We have not done so. Not one of the Amendments which we have passed is a wrecking Amendment. Not one of the Amendments is such that it could not be accepted by another place. It is true that some Amendments may be controversial, in so far as they may not meet with the approval of everyone. But that is not surprising in a Bill which touches delicate sensitivities all around the clock.
Whenever your Lordships pass Amendments to a Bill, particularly if it is a controversial Bill, we are told that we have emasculated the wretched thing. We have not emasculated this Bill at all. All we have done is, by amendment, to make suggestions to another place, which they can accept or reject, or amend, as they will. Many of those are on matters—such as taxation, the West Lothian question, Party balances in committee, or problems confronting aerodromes, waterways or betting and gaming—which either another place had not discussed before, or, if they had, their rules of procedure had prevented them amending. This is no more and no less than our right and duty as a Second Chamber.
I beg of the Government to enable these issues to be at least discussed by another place. At a time when the confidence which the public reposes in Parliament and in its legislators in general is at a
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frighteningly low level, it would, I suggest, be an affront to the dignity of Parliament, and to the respect of the public in the institution of Parliamentary democracy, if the operation of a guillotime in another place were to deny to the Members there the opportunity of discussing large parts of a Bill which is to alter fundamentally—and, many will consider, for ever—the Constitution of the United Kingdom. Furthermore, if a second operation of the guillotine in another place were then to deny for a second time to the Members there the opportunity of discussing that which they have not discussed, but which your Lordships have discussed, and which your Lordships think that they ought to discuss, then we would have the situation that the Constitution of the country would be altered by the manner in which the Parliamentary draftsmen determined, but which had been consistently denied the approval of or, even consideration by, the elected Chamber. I believe that that course will command neither respect nor approbation—but that is for another place.
We have done our bit, for the moment, anyhow. I wish to say how much we have admired and appreciated the assiduity of the Members of the Government Front Bench in carrying out their task. It must have been a particularly difficult task for them, because its bounds were limitless, and they never knew what kind of missiles were to come at them, whether from in front or from behind. But, mercifully, Party politics entered our discussions little. I wish to thank the noble and learned Lord the Lord Chancellor, who is in charge of the Bill, for the care and courtesy which was always shown in answering our questions and in giving us information. Naturally, we thought that some of the answers were rotten—but never the people who delivered them, nor the manner in which they were delivered. We admired the noble and learned Lord's ability—as he himself confessed—to delegate. That is always the sign of a successful man. We admired—indeed we could not help admiring—the length and content of his speech this evening on the Motion that the Bill do now pass. It was a masterpiece of brevity, and an example to all of us.
The noble Lord, Lord Kirkhill, and the noble Baroness, Lady Stedman, were always courteous and thorough, and they had the difficult task of addressing their

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minds to a Bill which was not part of their normal ministerial responsibilities; and we did so appreciate it when they admitted that they had sometimes got it wrong.
The brunt of the Bill fell on to the noble and learned Lord, Lord McCluskey. He displayed a competence and a mastery over the Bill which was remarkable. He knew—or so it appeared—every inch of the Bill, and actually seemed to like it! He could argue any point, good or bad, with equal conviction, and we admired his versatility. But the noble and learned Lord is by profession an advocate—a professional arguer—and my goodness! it did show.
I felt sorry for the Government that on a Bill which is such an important part of their programme, they had such little support from the Benches behind them. Perhaps noble Lords were advised that in the interests of brevity it would be more appropriate for them to make their interventions minimal; or perhaps in their heart of hearts they were not frantically enthusiastic about the Bill. May be that is why the Government could on one occasion muster, including their Front Bench, only 23 Members, or on another occasion 20, and on one occasion 19, to support them on such an important Bill. It was not an enthusiastic display of support, but I am bound to say that it looks as if they are to get more this evening.
My Lords, the intervention of the Liberal Party in this important and constitutional Bill was also telling. We witnessed the noble Lord, Lord Mackie of Benshie, complaining whenever we sought just a little to curb the excessive liberties proposed for the Assembly, and he was quite satisfied to leave it to the Assembly—that all will be well. It was a remarkably enthusiastic, but somewhat unpragmatic approach.
Strangely enough, not one official Front Bench Amendment to the Bill was put by the Liberal Party. But they did have two Amendments, and their rarity made them important. One was on the estuarial limits for salmon fishing, and the other was to insert the word "audited" before "accounts". They felt so strongly about both those subjects that they considered it appropriate to withdraw
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their Amendments—and I am sure that the Government appreciated that.
I also want to thank my noble friends on the Front Bench and those behind for all the work which they did on the Bill. As noble Lords know only too well, in opposition one has remarkably little help—unlike when in government—and much of the work has to be done by means of one's own private ferreting and initiative. It is the duty of Opposition to question, sometimes to improve, sometimes to oppose, and it requires much hard work. I wish to thank my noble friends for what they have done. Indeed, that applies to all the Members of your Lordships' House who have endeavoured to improve the Bill. If the Bill has emerged as a better Bill—as I believe it has—then that is the duty and, indeed, the vindication of, and the raison d'etre for, your Lordships' House.
A better Bill it is, my Lords; a good Bill it is not. Nor can it ever be, because it accentuates the differences between people instead of cultivating the harmonies; because it mixes the unmixables, the federal system and the unitary system; because in the end it will lead to a drawing apart, and not to a drawing together. No one can believe that this Bill, once an Act and once in being, will provide a stable situation. Of course it will not. Inevitably, in the Assembly and elsewhere, there will be clamour for more powers, more rights; more of Scotland, less of Westminster; more of separation, less integration. This Bill signifies the unleashing of a roller coaster. It will not stand still; it will move and gather momentum, and no one knows the route that it will take, where it will go or where it will end up. That, my Lords, is the danger of this Bill, and this is the condemnation of it.
As the Bill has progressed through Parliament, the attitude of Members of both Houses has displayed no massive enthusiasm for it. Almost alone, the Government have tried to extol its virtues. The support, even from their own supporters, has been impressive by its absence. The one attitude and mood which has seeped out of this discourse in both Houses as the Bill has crept along its tortuous path, is anxiety—anxiety for the future, anxiety for what we are doing, anxiety that we do not know what it is

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that we are doing. It is this Bill, the cause of this anxiety, which the Government, in a novel fashion, intend to commend, not to the Scots but to the inhabitants of Scotland, whoever they may be, for their approval, and which approval they will overtly seek to capture.
My Lords, in a world of torment and distrust, when friends are hard to find and sometimes even harder to keep, this Bill will have, not a binding effect on the constituent parts of the United Kingdom but a fragmenting one. It sows the seeds of dissension and even, possibly, antagonism in the long run; and it omits to build upon our common heritage and upon our common history. It will not assuage the appetite which it purports to satisfy: rather will it feed it. The Scottish Nationalists will see to that. The reality of the Assembly, for which they have so vociferously clamoured, will be used by them, as they have promised, as a major and positive step to total independence. It is for this reason that many of us, on both sides of the Border, while recognising the understandable desire of the Scottish people to have a more immediate influence over the matters which affect them, view the passage of this Bill into law both with regret and with dismay.
That regret and dismay is crystallised for us in the Amendment to the Motion, That the Bill do now pass, which stands in the name of the noble and learned Lord, Lord Wilson of Langside. From all parts of the House we have admired the noble and learned Lord's constancy and integrity of approach to this Bill; and he has put down an Amendment which signifies and epitomises the thoughts which have been expressed time and time again on this Bill, both in this House and in another place, as well as in the country outside. If the noble and learned Lord's view was, "If we vote for this Amendment we will not be altering the detail of the Bill which constitutionally we shall pass, but we will be recording the opinion of your Lordships' House, upon which those in Scotland may reflect before the referendum", I am bound to say that I would have much sympathy for that.
This evening, the noble and learned Lord, Lord Wilson, was, as always, devastatingly persuasive, but I am bound to record this fact: that although the
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noble and learned Lord is not without precedent in moving this Amendment—I think the noble Lord, Lord Shackleton, moved a similar Amendment on the European Communities Bill—there are a number of us who, while sharing the noble and learned Lord's views, feel what one can only call a gut reaction towards a reluctance to encourage a precedent of tagging on to what is in fact the last legislative step in the whole progress of a Bill through this House, an opinion of the House which has no legislative effect whatever. Had the noble and learned Lord framed his views in the form of a substantive Motion separate from the Bill, many of us would have felt persuaded to go with him, but may well feel reluctant to do so on this particular Amendment. The time to voice these substantial disquiets is during the passage of a Bill; and this we have done, as indeed, constantly and with distinction, has the noble and learned Lord.
Of course, the noble and learned Lord wishes the emphatic declaration of your Lordships to go out to the people of Scotland, warning them of the dangers of the Bill. But I hope that, before pressing his Amendment, the noble and learned Lord will take into consideration the fact that many of us who share his views will, for the reason that I have given him, be unable to support him, though I have no doubt that many will. And if he were to press his Amendment and lose it, the noble and learned Lord will have got the worst of all worlds. The Government and those campaigning for a "Yes" in the referendum will be able to say, "The House of Lords does not think that the Bill will lead to the break-up of the United Kingdom, or have any other deleterious effect; they had a vote on it, and they lost it; they gave it their approval". I venture to suggest that that is the last message those of us who share the noble and learned Lord's feelings would wish to go out, and I think that this is the last message which the noble and learned Lord himself would wish to see go out from this House.
The noble and learned Lord will use his wisdom, which mercifully he has in abundance, in deciding what course to take; and, while I personally, as I think we all have, have admired the noble and learned Lord's conduct over this Bill and the pristine clarity of opinion which he

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holds on it, I nevertheless hope that, on reflection, he may find that in the long term it will be better to have the debate, voice our misgivings, herald the warnings, record our anxiety, but in the end not press the Amendment.
8.57 p.m.
Lord MACKIE of BENSHIE: My Lords, it is astonishing how one can so often approve of speeches at the start and at the finish, and the speech of the noble Earl, Lord Ferrers, is no exception. His felicitations to everyone, apart from the Liberals, including his own Party and himself, were delicately put and delightfully expressed; and the good sense at the end of his speech, when he spoke about the Amendment, was outstanding. My Lords, I have to apologise to the House. I have to catch a sleeper to Scotland because I have a board meeting in Wick, which is some little way away from here, tomorrow morning at 11 o'clock, and I shall not be able to wait until the end of the debate. For this I apologise, but, as the House has seen me around for quite a bit during this debate, noble Lords will perhaps forgive me.
My Lords, in making a speech at the end of many long days of debate one does not really know what to say. One can only ask oneself what one is going to repeat. Indeed, when we talk about the Amendment, it is really simply repeating arguments which have gone on day by day throughout the passage of this Bill. I must say that the Bill itself is not perfect, but I do not know of any single Bill which is perfect. I do know that this is a major constitutional change, and I know that, due to the Lib-Lab agreement, the Government did as they said and consulted us. As a result, a great many of the improvements in the Bill were due to suggestions put by the Liberal Party and accepted by the Government.
The EARL of ONSLOW: My Lords, could the noble Lord tell us which ones they were?
Lord MACKIE of BENSHIE: My Lords, I have talked a great deal throughout the Bill, and if the noble Earl had listened he would have heard the ones which I was enthusiastic about and the ones which I supported because I had to.
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I do not think that the Bill is perfect. I do not think that it will go without improvement in the years to come. The noble Earl is quite right: it will develop. We have a developing situation. This is the first real constitutional change inside Great Britain—though not in the British Isles—for a couple of 100 years, and of course we want to get it completely right the first time. But what noble Lords must realise is that there is inside Scotland, although not in this House, a 60 per cent. support, according to every poll which I have seen taken, for a form of devolution within a united Great Britain.
There is in Scotland today a 30 per cent. support for a Party which believes in independence. I do not think every supporter believes in it, but that Party has collected a 30 per cent. support. They are not on the crest of the wave just now but 30 per cent. is a fair amount. This feeling in Scotland is extremely strong. It may move up and down a bit, but it will not go away. The Conservative Party's answer to this feeling and to this constitutional danger is to hold yet another conference. They rejected the initial approach put forward and now they want another conference. I am sorry, but I prefer a Bill which is not perfect to further delay and to further ammunition to the separatist movement.
The Bill as it stands gives to the people of Scotland an opportunity to influence in great measure their own future, and my view—and I have expressed it often—is that they will take it with goodwill and common sense and a great deal of goodwill towards their ancient and long-term partners, the English on the other side of the Border—a Border which unites us and does not divide us. Despite its imperfections—and I do not think I should say much more—this Bill will go a long way towards preserving the unity of the British Isles and Great Britain, and a long way towards letting the people of Scotland feel a part of the whole, not a feeling of an outlying part on the perimeter.
I have said this before, and I will say it again, that in a shrinking world where we have large institutions like the Common Market, the European Community, NATO and enormous super-Powers dominating the world, more and more do small communities need to have a sense of

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belonging. I think this Bill is a start to this movement. I think it can be and will be improved. I welcome it and trust that the Amendment will not be pressed and that it will be left to the people of Scotland through the referendum to decide whether or not to accept the Bill.
9.3 p.m.
The Marquess of ABERDEEN and TEMAIR: My Lords, the noble Earl, Lord Ferrers, is making errors in referring to the noble Lord, Lord Mackie of Benshie, as a kind of ghost. In any case, he has already explained that he is going to have to exorcise himself shortly for reasons which I was going to say more about; that is the, to me, preposterous provision that most of tonight's Third Reading debate has been devoted to taking up Committee points. Had we been able to devote our time to a full Third Reading debate with my noble and learned friend's Amendment attached to it, we might have been able to have the presence of the noble Lord, Lord Mackie of Benshie, for the whole debate. I shall not say anything more about that.
The Amendment moved by my noble and learned friend Lord Wilson of Langside is almost irresistibly ingenious, but to me not quite irresistible because, as he expressed it himself, it is a malediction. It is not only a malediction because it is a bad Bill; I suspect it is a malediction because devolution is a bad idea. To me devolution is a good idea, but I believe that the Bill may have grave imperfections and may be very difficult to work. For personal reasons, I have not been very assiduous in attending your Lordships' House throughout the passage of this Bill, but I have been here when I could. I feel quite clear from my studies and from listening to the debates that there should be an Assembly elected by proportional representation with wide functions and powers, subject to the sort of safeguards which are written into the Bill. And of course it should have powers of raising money.
My noble and learned friend referred to the characterisation of the Bill by my noble friend Lord Vaizey as a kind of upside down Boston Tea-Party, in which he referred to the Assembly as being a body to have representation without taxation. This is a representation without
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command of supply. In fact, it is likely to be at the mercy of Westminster, on the one hand, and of the money-raising local authorities of Scotland, on the other. I lean strongly, in the eventual outcome to the idea of a federal solution to these constitutional problems. I pick up a remark made by my noble friend Lord Perth during an earlier stage of the Bill: "I can see no other solution". Unfortunately, this involves constitutional reform at Westminster which is little more than a gleam in the eye or a threat of the abolution of this House.
As for referenda/referendums, I do not approve under our present constitution of a referendum as part of our normal proceedings whether it be about the Scotland Bill or any other alleged constitutional position. One reason is that—I shall not go into it any more deeply; I think I have mentioned this before—as it will have to be done on the present electoral register, it will undoubtedly disfranchise a lot of Scots men and women living and working in other parts of the United Kingdom who have every intention of going back when their stay elsewhere is over, and it will give the vote to a lot of people from other parts of the United Kingdom who are not particularly interested in Scotland and have every intention of clearing out when their job there has finished. But, undoubtedly a referendum is on the way.
I think that the noble Lord, Lord Kirkhill, made a mistake when he said that the media—whoever they may be—could take care of informing the electorate in Scotland who take part in the referendum of the issues. The media feed and thrive on controversy. I believe that it is the Government's business to make adequate explanation and to give information. It is quite a different thing from issuing propaganda.
My Lords, in conclusion, I get the impression that there are many adherents of both major Parties in the State who wish the Bill dead and who wish that the idea of devolution would somehow go away. I am afraid that it will not. The decision, therefore, must be whether an imperfect Bill is better than none at all. I know that there are some who fear that an arrangement with faults in it may be difficult to put right and that it might be better to start again. But this fear must

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be balanced against the possibility that, if this Bill falls, starting again will be indefinitely postponed. That, in my view, would be a more likely cause of danger to the unity of the United Kingdom than to reject the Amendment and pass the Bill.
9.10 p.m.
The Earl of SELKIRK: My Lords, may I concentrate a little more on what really lies in front of us tonight? I think that we are in a peculiar position. We do not generally vote on the Question, "That the Bill do now pass". There is to be a referendum following the enactment of the Bill, provision for which is made in the Bill. This is something that has never happened before in the history of this country. It affects every man and woman in Scotland. We are in the unique position of probably being the best-informed people in the world as to what this Bill contains. The people of Scotland hardly understand it at all. What then is our duty? What should we do? Surely, if we can help people to understand a little of what is involved in their public actions we should not be too reluctant to do so. There is here a considerable element of illusion. The Government in effect have said: "Wide powers to a Scottish Assembly!" But to the English they say: "Ah! but Parliamentary sovereignty remains unchanged!" There is a certain variation in those terms and they could be spelt out to mean different things in different parts of the country.
How many people in Scotland know that this is a representative Assembly with no sinews of action? No representative Assembly which had not got power for its own actions has ever succeeded in the history of democracy in this country. How many people know that? Ought we not to draw attention to it? How many realise that there is no taxation, no law and order, no agriculture, no industry. The real things that matter in Scotland, employment and opportunity, will be completely untouched by this. It will have no effect on them whatever. How many people realise the danger of confusion, not to say chaos, that may come along?
I find myself in disagreement with the noble Lord, Lord Mackie of Benshie, and the noble Marquess, Lord Aberdeen
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and Temair. I think that if we put through this Bill, it is going to be very much more difficult to put through a proper reorganisation. I was not quite certain what the noble Lord said on that. Once this gets into operation, we are starting at a more difficult level to get the Government of Scotland on to a good footing. There is a lot of be done and it will have to be done in due course. What are our responsibilities? Do we think that Scotsmen will be happier, will be living in a more comfortable and graceful way, if this Bill is passed? Do we really think that or do we think that it is a simple political manoeuvre of a short-term character?
I must say that I think that we should be fair to warn people in Scotland that this is a very double-edged weapon. It has been said that this is an elected Assembly and so on. But people have not understood the form it has taken. I do not like the form. I myself believe, as the noble Lord, Lord Taylor of Gryfe, has said, that if this Bill falls not a dog will bark.
9.14 p.m.
Lord RAGLAN: My Lords, without disregarding anything that the noble Earl, Lord Selkirk, said—and, indeed, totally agreeing with him—I should like to take up a couple of points which were made by the noble Marquess, Lord Aberdeen and Temair. It is a position that is often adopted by supporters of the Bill. They say that they appreciate that it will be difficult to work and, "perhaps we should have a Federal system." I think it was my noble friend Lord Houghton of Sowerby who a week or two ago pointed out to the House that no federal system has ever worked where the component parts of it were centrifugal, were trying to pull apart. We tried with the Central African Federation; that did not stick. We tried it with Caribbean Federation; that did not stick. We imposed the Federation on the West Germans. That has stuck, but I am not sure whether they do not feel that they would rather be one united country again. I do not see how one is going to use a federal system as glue to hold together people who want to pull apart. That, I believe, is what is happening in Scotland and Wales—at least, led by a certain faction.

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If the Bill which we have been discussing in such detail and for so long is enacted, how will its provisions be enforced? The noble Marquess talked about there being safeguards in the Bill; but what will be the method of enforcement if the Assembly chooses to ignore the provisions laid down in the Bill? How does one deal with an Assembly which looks upon itself as a Scottish Parliament acting in the name of the Scottish people and which chooses not to follow the guidelines which have so meticulously been laid down for it? I wonder how it will be done. If the Assembly kicks over the traces, will the rules be enforced? Will we have to turn a blind eye to it when the Assembly wants to take responsibility for something which the Bill does not devolve to it or does something different to the way the Bill says it should be done? I do not see what is to stop them if they have no reverence for the law, except perhaps economic sanctions when the oil runs out.
It does not seem to me that any account has been taken of the group chauvinism which is bound to be created in this Assembly, and which I am sure would affect me if I were to be a Member of it. It seems that under the Bill the Westminster Government has only a tenuous link with the Scottish Government in domestic matters, and that is through the Secretary of State. He will be in a very uncomfortable position: he will be in a similar position to that of a governor general of a colony which has been deemed to be an emergent nation.
This leads me to the main matter which I wish to bring to your Lordships' attention: the question of the future if the inhabitants of Scotland vote against the Bill on a referendum. Very naturally, we have been discussing only the Bill and the referendum. But if the Bill is defeated on a referendum—which it well may be—I suggest that it is extremely important that thought be given to the constitutional position of Scotland as it is at the moment within the United Kingdom. It seems to me that it is a very odd one. It is a halfway house to independence and not at all a static status quo. I do not think that the noble Lord, Lord Mackie of Benshie is right in saying that the Bill would bring the first constitutional change for a couple of hundred years. In fact, in the past 93 years the Scottish Office has grown steadily until it is now a very large
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Department of Government on its own. I believe that it employs more civil servants than the Commission at Brussels. The Secretary of State—poor fellow!—has to he a Pooh Bah in charge of nine Ministries which in England merits the attention of specialist Departments and the highest flying Ministers.
I wonder whether Scotland will get the best available Government from this arrangement. Also I wonder—and this point is relevant to some of the opposition which has been raised to this Bill—whether other areas in the United Kingdom are dealt with fairly vis-à-vis the present arrangements for Scotland. I understand that there is great store set by some, by my noble friend Lord Taylor of Gryfe, and the noble Lord, Lord Drumalbyn, upon the Secretary of State's ability to "get more for Scotland". There are parts of England, like the North-West, and of course the North-East, which suffer the same—and sometimes worse—relative deprivations, as does Scotland but which have no Secretary of State to get more for them. In a political and economic union, one of whose purposes is fair shares for all, that is not a very equitable situation.
This Bill reduces the importance of the Secretary of State considerably—a fact which has drawn complaints from some quarters. I would ask: ought we not to be considering not only the constitutional position and the constitutional propriety of the post of Secretary of State, but whether it is really necessary? I have asked that question of Scottish friends, and often their first reaction is one of shock and horror. That shock and horror become considerably diminished after some quiet discussion. It is indeed a very interesting subject, but somehow it does not come out into the open very much; at first people are not very keen to talk about it.
I would make only two observations on that subject this evening. The first is that the fact of there being a Secretary of State and a Scottish Office adds nothing whatsoever to the esteem in which I hold Scotland and the people of Scotland—nothing at all. In a way, I feel—I referred to this on the Second Reading of the Wales Bill and I shall not do it here—it reduces the status of Scotland and, politically, the status of the Scottish people. Secondly, it is my belief that the

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very existence of the Secretary and his office is the seed from which this Bill has grown, or, let us say, it is the kernel around which a constitutional separation has formed, which has become explicit in this Bill and which, as my noble and learned friend Lord Wilson says, must put our unity in the greatest danger, to say the least. I think that it is the greatest tragedy to put that unity at risk. It matters to all of us and it affects us all. The life of every part of this Island, including Scotland, will, I believe, be diminished by the effects of this Bill, let alone what would happen on secession.
Noble Lords and others who support this Bill tend to be romantic about it. Perhaps I might permit myself to say—because there is enough of the British nationalist in me to believe that the joining of England and Scotland (and I am not likely to forget Wales) was, through good fortune and the accident of history, one of the better things to have happened in this world—that if we continue on this diverging course which we have been travelling along for almost one hundred years, I believe that we shall throw away more good than can possibly be gained. I believe that we should cease to diverge and that we should begin to come together again. I believe there must be a reconciliation.
If my noble friend's Amendment will help towards this, then, as it may, I will support him if he presses it; but I think that the noble Earl, Lord Ferrers, made a strong point when he said that this Amendment was just a matter of opinion. As the Government themselves were criticised in the other place for putting what was deemed to be a mere expression of opinion at the beginning of the Scotland Bill, I suggest that perhaps we should not lay ourselves open to the charge of doing the same.
9.25 p.m.
Lord DRUMALBYN: My Lords, perhaps, I may go straight on from the point that the noble Lord, Lord Raglan, made. He asked squarely the question: is the Secretary of State necessary? It is a fact that in Scotland's greatest period, when Scotland, relative to England, was more prosperous than at any other time, we did not have a Secretary for Scotland,
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let alone a Secretary of State for Scotland. The basic trouble about this Bill is the confusion that exists between the two sides, and I do not think I am putting it too high by saying that never since Kenneth MacAlpine will Scotland have been so divided.
The Secretary of State retains the reserved powers. So long as the Secretary of State is of the same Party as the Socttish Secretariat, the Scottish Executive, I suppose that, with all the hesitations that one will get through personal differences, differences of status, the system that is proposed in this Bill will work fairly well. But as soon as there is a Secretary of State who is of a different Party from the Party in power in Scotland, the whole system will shudder along and may shudder to a halt. I have no doubt that the Secretary of State will have his own team of Ministers, and there will be the Scottish Executive as well. One has only to ask oneself why one has a Secretary of State at all to realise how difficult it will be to do without one, in present days.
What would happen if there were no Secretary of State at all? Obviously, some member of the Scottish Executive, or someone of that kind, would have to represent the Scottish interest in the Cabinet. In the old days, in years gone by, the Lord Advocate was, I believe, called to the Cabinet when nobody else was available. Obviously, that would not serve. Therefore, we should begin to get the position where we had to have a representative of a different Party to represent Scotland in the Cabinet. There would be no alternative to that. I do not believe that that would work. I do not believe that the Bill as a whole will work. As I said at the start, it will work reasonably well so long as there are the same Parties in power in both countries. But this will not be anything like a permanent solution.
I should like to work my way around to why I think that this is so. We said at the outset that we would improve the Bill. We have certainly done so, but we have not done enough to make it workable. We have introduced proportional representation in the form of the additional Member system. That improves the Bill. It at least gives to a much wider range of people in Scotland a fair chance of being represented. It could encourage a higher

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proportion of the public to take an interest in the Assembly. But it still does not make the Bill good enough. If the Assembly had to deal only with matters devolved to it, with perhaps the addition of law and order—and I agree that the Scottish Ministry, the Scottish Administration, will be a very inadequate affair—the Bill might have worked, though one would be forgiven for thinking that the same result could have been obtained much more economically.
The noble Lord, Lord Mackie, who is no longer here, said that there was 60 per cent. support for a form of devolution. The noble Lord is in favour of this Bill, and also favours a federal solution. But I wonder whether the noble Lord, Lord Mackie, really believes that a federal solution could arise out of this beginning. What we all have to face up to is the fact that, to some extent, Scotland will always be different from the rest, because of the differences in Scottish law from the law prevailing in the rest of the country. Therefore, Scotland will always have to receive some form of special representation of Scotland at the centre of Government.
What are the chief defects in the solution that has been arrived at in the Bill, if it is a solution at all? First, it is the failure to resolve satisfactorily the position of the Secretary of State. Secondly, it is the concept of devolving functions to Scottish Secretaries who will then have a divided loyalty to the Secretary of State on the one hand and the Scottish Assembly on the other. Thirdly, it is the failure to put finance on a sound basis. This is the core of the failures of the Bill. As has already been said, this is not a good start; it is not a good way to move forward to the future. When there is a change of Government, there will have to be an attempt to overcome these failures. One may have to start from more modest beginnings. I am quite certain that this Bill will not work in its present form.
9.32 p.m.
Lord BALERNO: My Lords, despite the weariness of the debates on this Bill, I remain as firm a devolutionist as when it was first introduced at Second Reading. I find myself much in sympathy with the view of the noble Marquess, Lord Aberdeen and Temair, and the noble
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Earl, Lord Selkirk, that the Bill is clumsy and that it does not go far enough. I hold towards a federal solution of this problem, but I also hold that half a loaf is better than no bread. That is why I support the Bill. I base my reason chiefly on the ground that, with the tremendous increase in legislation and the extension of administrative powers, it is essential that, so far as possible, decision-making should be devolved. The Scottish Assembly may or may not do better than Westminster. That is a secondary matter. The important point is that when things go wrong, the Scots will then know whom to blame, not the Mr. Jorkins of the English Treasury.
I am even less enamoured of this Bill as it leaves your Lordships than when it was first introduced. It is true that there have been some useful and fundamentally important Amendments. I particularly welcome the Amendment on the method of election to the Assembly by a system of proportional representation. In any elected body, when it comes to the question of a change in the method of their election there is a natural and innate tendency towards the conservation of the status quo. However antiquated and out-of-date may be the method adopted in another place, it is not for your Lordships to tell it what to do; but that in no way precludes your Lordships from ensuring, as we have done, a more equitable and up-to-date system for the proposed Assembly. But many of the Amendments which have been made to the Bill have the effect of limiting the powers of the Assembly; and in making these Amendments this House, in my opinion, has done its reputation no good at all. Should the referendum result be "Yes", and should the Assembly be set up, these Amendments—if they remain in the Bill—will be a cause of friction; and that will be at a time when, for the sake of the unity of this Kingdom, harmony is essential.
What will disturb harmony is a lot of subsequent tinkering with the Act. In establishing a new constitution immediate and frequent changes can be most disruptive. That is why I should have liked the Bill to go much further than it has done towards a federal solution, and that is why I deplore—and I use the word advisedly—the Amendment moved by the noble and learned Lord, Lord Wilson of

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Langside. I admire the ingenuity of the opponents of this Bill. I admire their ingenuity every bit as much as I admire their manifest sincerity, but I hope that most of the Amendments which clip the wings of the Assembly will not find favour in another place. In a Bill such as this, my Lords, it is wise to be magnanimous.
9.36 p.m.
The Earl of PERTH: My Lords, I go along with the noble Lord, Lord Balerno, in what he has just said. I should like to start by considering what we have done as a revising Chamber. The Bill came to us imperfectly considered and imperfect in its construction. I do not say that it is perfect now, but there are certain aspects of it of which I think we should be proud and hope that the other place will consider them and accept them. If I were asked what was the first of our achievements I would say that it is the method by which the Assembly should be chosen; that is to say, by proportional representation. I think that is of immense importance for Scotland. If it is opposed in another place, particularly by the Government, it will be a sorry tale because what will happen on the Scotland Bill will no doubt happen on the Wales Bill and that would be a clear example of the most vicious form of gerrymandering.
If we take Wales, over the last many years it has been a Labour country and if we do not allow proportional representation one can see that situation continuing for a long time ahead. If we take Scotland, I suppose they may feel that there is the same opportunity in Scotland, but in Scotland it is a hazardous affair. There are three Parties of roughly the same voting power and the Liberal Party, which in certain areas is very strong. If that is the case, there is not a system of proportional representation but the whole thing is thrown open to chance—and chance is not a good way of choosing a responsible Government. So on that one point, if by any chance the other place does not go along with this House I hope your Lordships will stand firm, because after all this was a decision, not of the Opposition, not of the Cross-Benches, not of the Liberals but of all sides and with the overwhelming support of over two to one in favour of these changes.
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Looking at the other changes which were made and which I think are important, there was one Amendment which your Lordships carried and which I think is of great value. It is that the Assembly should, if they wished, put forward to Parliament in Westminster their ideas of how to tax themselves by either a plus or a minus. I am sure that must be right, given the circumstances of what the Assembly is about. Then your Lordships introduced an Amendment to deal with the West Lothian question, but in introducing and passing that Amendment your Lordships made very clear that the important thing was that the other place should consider it. We were not saying that it was right or wrong but we wanted to give them an opportunity to consider it. There again I think we showed great widsom.
I could continue with quite a long list of similar items which we have achieved. Some of them I have been in favour of, some of them I have not. Like the noble Lord, Lord Balerno, I have been disappointed in some of the powers taken from us; that is to say, from the Assembly—such things as forestry, which is essentially, it seems to me, a Scottish question, and the limiting of the Scottish Development Agency. One gets the plusses and minuses, but broadly I am quite clear that the Bill is better than it was when it started.
Having said that, we then come to the reasoned Amendment of the noble and learned Lord, Lord Wilson of Langside. Your Lordships will not be surprised if I say I cannot go along with the Amendment in any way. I recall how at Second Reading the noble Lord was proposing to move an Amendment that the Second Reading should not be given, and we see in the Amendment he is moving now the reasons which were behind that. I understand why he is doing it, because he sincerely believes—and others have spoken in the same way—that this measure leads to the risk of the breaking up of the United Kingdom. I will come back to that, but I would say this first of all. He made the point that he felt that the Bill was not perfect, that it was a hotch-potch, and other noble Lords have said the same thing. I think we all understand that. At a great moment of change like this you do not get things absolutely right the first time; what you have to do is to make a start, and that is what this Bill is about.

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I, as I think your Lordships know, prefer a federal solution. Many other noble Lords have said the same thing. I think it was the noble Lord, Lord Raglan, who said that it does not often succeed if it comes about in the way that it does. But I wonder if he is right. The examples he gave, in almost every case, were federal solutions imposed from above, whereas if in the end this federal solution comes about it will not be imposed from above; it will come from the unity of the United Kingdom or from the people of the country.
However, I want to turn back to the Amendment of the noble and learned Lord, Lord Wilson, and in particular the last phrase:
"and warns them most earnestly of the grave danger in which the Bill places the unity of the United Kingdom".
I take exactly the opposite view. I believe that if we do not have an Assembly then there is a real risk, not today but in a few years' time, of a breakup. It is precisely for that reason, because I believe in the unity of the United Kingdom, that I want to see an Assembly. It is not a perfect one, but it is one which over the years may evolve into a federal system, and for a very good reason; namely, that certain areas of England will say, "We rather like this". The North-East, for example (where Lady Ward is so active and has so often preached their cause), may say, "We want a similar thing"; so might the South-West, and so might other areas. Then we shall get a situation which many of us have said is the right one.
The noble Earl, Lord Ferrers, very rightly said that the Amendment as moved is an Amendment of an opinion, and that is not what I think should go out from this House, because it is certainly not an opinion which is balanced on one side or the other. If this Bill goes through, we are going to have a referendum. As I think the noble Earl, Lord Selkirk, said, that is the time at which you can express opinions. So I hope that the noble and learned Lord, Lord Wilson, will not press his Amendment but rather leave it to the time when we have the referendum. Then it will be a Yes or No decision by the Scottish people.
9.45 p.m.
The Marquess of TWEEDDALE: My Lords, I seem to be fated always to follow
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the noble Earl, Lord Perth, and, as usual, he and I seem to have little in common. I should like to approach the Amendment from a slightly different angle from that which has been used so far. I should like to approach it from the angle of sentiment, because possibly like other noble Lords, one of my ancestors drew up the Act of Union. I believe that this Bill, if it goes through and if there is a referendum—and I have no doubt that if there is a referendum the answer will be, "Yes"—will shortly be followed by a total break-up of the United Kingdom.
Next week in Edinburgh there will be a march down Princes Street and up to the Castle of a regiment which is now known as the Royal Scots Dragoon Guards. It is very appropriate that that regiment takes in both Wales and Scotland. It is formed from the Third Carbineers which is a Welsh regiment and from the Scots Greys. I have no doubt that it will be carrying its regimental colours and the flag of the Union. I should look at both, but particularly at the flag of the Union because we may not see it for much longer.
It is rather ironic that the Royal Scots Greys is a socialist regiment. It was set up and formed under Cromwell, and I am sure that if Scotland separates from England and the United Kingdom is broken up the regiment that is now the Royal Scots Dragoon Guards will be broken up as well. The ironic aspect is that one of the strongest opponents of the Scotland Bill in another place is Mr. Tam Dalyell, yet it was his ancestor who formed the Royal Scots Greys.
The break-up of the United Kingdom and the loss of the flag of the Union will denigrate not only the memory of people who have been in this regiment, but the memory of those who have been in the Navy, the Commandoes, the rest of the Army and the RAF.
There will be other minor but sentimental things which will go with the break-up of the United Kingdom—things which may not worry people in this House particularly, but which I am certain will worry the public. What shall we be left with? We shall be left with the stench of a stinking Bill. I cannot agree with the Front Bench when it says that we should not do something if we are frightened of

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losing it. That does not sound like a Welshman speaking, indeed, it does not sound like a Scot—it sounds very English to me. Therefore, I hope that the noble and learned Lord, Lord Wilson of Langside, will divide the House and I shall go into the Division Lobby with him.
9.48 p.m.
Lord FERRIER: My Lords, I am sorry that my noble friend the Marquess of Aberdeen and Temair is not in his seat because he said something which I wanted to take up with him. He said that we thought that devolution was a bad idea. That is not so. We are in favour of devolution. Indeed, I am in favour of devolution, but the trouble is that the word "devolution" is being entirely wrongly used in connection with the Bill. Devolution has been proceeding for years and years, and if we would only leave it alone and get on with the devolution we could proceed without the word "Assembly". It is the word "Assembly" and the word "devolution" that are wrong. We do not want an Assembly.
The noble Lord, Lord Mackie of Benshie, said that 60 per cent. of the Scottish people were for devolution, but he was quite wrong; about 90 per cent. are for it. What he means is that a type of straw poll showed that some 60 per cent. were prepared to vote for an Assembly. Like other noble Lords, I take the view that the word "Assembly" is quite wrong and to be Scottish it should be "Convention" if we want it at all.
Several noble Lords have spoken of the need for a federal solution. So be it. The noble Earl, Lord Perth, and the noble Lord, Lord Balerno, were of that opinion. However, the Bill is not, with due respect, in my view a stepping-stone to a federal system. My noble friend Lord Drumalbyn did not hesitate to refer to the Bill, even in its present form, as a bad one. It is for that reason that I support the Amendment. I agree with the noble Marquess, Lord Tweeddale, that if we do not like the Bill we should introduce the proposal put forward by the noble and learned Lord, Lord Wilson of Lang-side. I support the Amendment.
I spoke against the Bill on Second Reading, and despite the skill, patience and endurance of my noble friend Lord
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Ferrers—and I wonder whether we have given sufficient praise to him for all that he has done, culminating in a most masterly speech today, although it ended with, as the noble Marquess said, a rather English conclusion—the Bill is not viable. It was introduced not because the people of Scotland wanted it, but as a Party political gambit—we all know that. To get it to this stage—and this point was made by the noble and learned Lord, Lord Wilson of Langside—Parliament has been bludgeoned and diddled, and all the tarnished weaponry of an arrogant electoral dictatorship is being refurbished in order to trim it to suit when it leaves this place. The first few words of the Amendment indicate why it must go on its miserable way, without having its throat cut. In my view, it follows that the least we can do is to tie the label of the noble and learned Lord's Amendment round its wretched neck so that all may know what some of us think of it and so that Scotland is thereby alerted to the dangers which now lie ahead.
9.52 p.m.
Lord BALLANTRAE: My Lords, it is no time of night to embark on a lot of quotations, but last week I was reading Cockburn's Memorials of His Own Times, and in his last paragraph he said this:
"We have come upon a public stage in a splendid but perilous scene. I trust that we shall do our duty. If we do, we cannot fail to do some good to Scotland".
The problem that faced him and which faces us is that we must recognise what our duty is and how we do the best for Scotland.
We have all been "fair deaved", if I may lapse into the vernacular, by noble Lords and others telling us what the people of Scotland think. My old friend Lord Balerno is one offender, and there have been several more. Nobody knows what the people of Scotland think; nor will they until we have held the referendum. Whether the referendum is a good or a bad idea, whether it is a surrender of the powers of Parliament, as some say, I do not know. But thank goodness that we are heading for a referendum, because only a referendum will clear the air and tell us what the people of Scotland think.
I know what I think. I also think that the people of Scotland have suddenly woken up to the fact that the referendum

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is about to burst over them. Up to now the voting, the public opinion polls, and so on, have been conducted in an almost frivolous manner. Suddenly everybody is realising that this is a major event: the moment of truth which is about to come upon us. I think that we will see them take it much more seriously than they have in the past.
I do not want to wander too far from the actual Amendment which we are supposed to be discussing, which I think some noble Lords have done, but I cannot help putting, briefly, my own credo. I do not want to see Scotland becoming a little tiddler of a country, identified chiefly with tourism, haggis, tossing the caber, selling picture post cards and so on. I want to see it continue to play its part, providing more than its share of the sinews, the guts, and the brains of Britain, as it has done for close on 300 years. Our association with England has benefited not only both our countries but the whole world. I would be ashamed to see any diminution of that dynamism which has marked our association in, I think, the last 271 years, which I think will inevitably happen if we break up into small splinter groups.
I make no apology—all right, I will make an apology—for quoting something I wrote in The Times last week. I quoted from a Maori proberb:
"The tree that is split is food for the axe".
I believe that that is the best word on unity, or disunity, that I have ever heard. Whatever the noble Lord, Lord Raglan, may say, or other noble Lords, or the noble Earl, Lord Ferrers, "my heart leapt when I beheld" this label which the noble and learned Lord, Lord Wilson of Lang-side, attached to this Bill. I thought that the noble Earl, Lord Ferrers, made a mountain out of a molehill when he said that if this Amendment were to fail it would do the cause which the noble and learned Lord, Lord Wilson of Langside, has at heart more harm than good. I can see no harm in reassuring the world when it reads its Hansard—if only it did it a bit more—to see that there is some sanity in your Lordships' House.
That label may be thought to convey the same message as unkind people say was attached by the Royal Engineers in the First World War to a box containing high explosives. They are alleged to have labelled it:
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"This dynamite is dangerous, and must be stored bottom up. The top has therefore been labelled 'bottom' and the bottom 'top', to avoid confusion".
Lord Wilson's label is more explicit, but, make no mistake, this Bill is dynamite. I do not agree with the noble Earl, Lord Perth, when he says, "Let us have a shot at it, and see if it goes all right." You do not do that with dynamite if you have any sense. I believe it is of the utmost importance that this debate should end with Lord Wilson of Langside's label fully attached to it, and with your Lordships' collective blessing on his Amendment.
We can claim—we are all claiming—that we have done our best to render a trifle more savoury a Bill which was originally a dog's breakfast, but it is still a breakfast which nobody in their senses would want to devour. It is because I want to attach a safety label to the Bill before it leaves this House, that I commend this Amendment to your Lordships and declare my intention of voting for it with my noble kinsman the Marquess of Tweeddale, in the hope that the good sense of the Scottish people will eventually respond to the referendum, when it comes, with a resounding, No.
9.58 p.m.
Lord GRAY: My Lords, I should like to associate myself with the last remarks of the noble Lord, Lord Ballantrae. Before I wax contentious, I should like to acknowledge the kindliness and help that I have received from the Front Bench opposite when I have pursued the various points that I have upon this Bill, and also the care that has been taken by the officials to answer them. I should like to acknowlege also the help that I have received from my own Front Bench and other noble Lords who have been good enough to advise me.
I shall try to tailor my speech to the lateness of the hour. The depth of feeling aroused in anyone whose heart is with the preservation of the Union makes this a difficult occasion. If, in addition, you are a Scot who defers to no man in his feelings of love and pride for the land of his birth and forbears, the difficulties are infinitely greater. I am sure that many Scots in this House, whether they are for or against the Bill, would admit to being schizophrenic to a degree on the question of devolution

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in general. The words of the Amendment of the noble and learned Lord, Lord Wilson of Langside, encapsulate much that I might otherwise have dwelt on, and I am in total agreement with the words the Amendment contains. As other noble Lords have said, the closer one's acquaintance with this measure the more one has come to dislike and distrust it. My reactions are a mix of dislike, distrust and despair—dislike for what the Bill contains; distrust for where the Bill is silent, and it frequently is; and, last but far from least, despair at the prospect of the strife, acrimony and the ultimate threat which it poses to Great Britain, as I see it.
The Bill surely represents a gesture of appeasement, and to say that such gestures are always dangerous is to make the ultimate in understatement. You will never appease the membership of the Scottish National Party, who are hell bent on separation. Whether the Bill will please those who are not dedicated to separation but, for multifarious reasons, including protest, have cast electoral votes
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for that Party, only the referendum will tell. I can only hope and pray that we will be able to convey the truth about this very complicated measure and the complicated scheme it proposes to that electorate because, if we can do that then I am hopeful that they will reject it.
I do not reject the Bill only for what it contains or does not contain; I believe it to be unconstitutional in certain respects. I believe that it flies in the face of accepted principles of sovereignty, certainly anyway in a practical sense; but I shall not elaborate on those points tonight. Let us face it. We are not setting out to cure what we have for long acknowledged may be wrong with the system by which we currently govern ourselves; the weight of bureaucracy, the relationship between the Executive and Parliament. Rather, we are attempting to stitch some very strange new cloth on to our old constitutional garment, and that threatens the consequences which that simile suggests. As for the Amendment now before the House, I have considered it carefully and what has been said about it. On this issue, I must be true to myself, and if it is pressed I shall support it.
10.4 p.m.
Lord STRATHCLYDE: My Lords, I am relieved, as I am sure many of your Lordships are, that we are nearing the end of what has been a long and somewhat dreary journey on which we should never have been asked to set out. It started 11 years ago, in November 1967, when there was an by-election in Hamilton, a Labour stronghold, held by Labour since 1945 with majorities of between 13,000 and 17,000; but in 1967 it was lost to the Scottish National candidate by 1,800 votes. That was a startling result and it seriously upset both the Labour and Conservative Parties; that is, despite the fact that on the two previous occasions when a Nationalist candidate had won, each at a by-election, they had been decisively defeated at the following General Election, a fate Mrs. Ewing also suffered when she was defeated by no fewer than 8,500 votes in 1970.
In May 1968, some six months after the Hamilton by-election, the leader of the Conservative Party was due to address the annual conference of the Scottish Conservative and Unionist Association at Perth. In that connection he learned that following the Hamilton result the Scottish Association had appointed a sub-committee to consider Scottish nationalism and had in the course of its investigations studied, among other things, whether any further measures of devolution were practical and, if so, whether devolved matters could be handed over to some kind of an Assembly sitting in Scotland. When the leader addressed the conference on 10th May 1976, he included these matters in his speech. That was the first time that many, if not all, of us had ever heard about an Assembly.
So far as the conference was concerned, the suggestion of an Assembly was received with that well-mannered applause which, on such occasions, the conference invariably accords to its leader. The Press gave the Assembly a warm welcome. After all, it was something new. They referred to it as the "Declaration of Perth", in imitation of a much more famous declaration, that of Arbroath in 1320, which dealt with Scottish independence and which remains one of Scotland's most famous and cherished historical documents.
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There is no doubt that in this way the Press captured the imagination of at least a section of the Scottish people. But any political capital gained was speedily eroded when the Labour Party announced that they also believed in an Assembly. The Assembly had in fact become a political plaything. And so it has remained and continued ever since.
Devolution was first debated in your Lordships' House on a Motion by the noble Earl, Lord Cromartie, in December 1974 and again, after a rest, it was debated in January 1976. Since the Bill arrived in your Lordships' House it has been debated on no fewer than 21 days. In relation to these 21 days spent on the Bill in this House, I cannot help wondering how many days, weeks or, perhaps more likely, months it took highly-qualified civil servants and Parliamentary draftsmen to produce it, and how many were involved in that work. It was a highly complicated business.
Your Lordships and the public have been informed by a number of White Papers and other Government publications, and also by Ministers, what devolution, which was presumed to be the purpose of the Bill, was about. According to the noble Lord, Lord Shepherd:
"It is about better democratic Government bringing power nearer the people."
Then the noble and learned Lord who sits on the Woolsack told us, I think I am right in saying, on a more recent occasion, practically the same thing, though in other words:
"Devolution is the means of bringing decision-making closer to the people most affected by these decisions."
Those are fine words, but probably the great majority of the British people, and myself, would like to know how, except physically, that can be done. In fact, it seems to me the only time people get close to decision-making is when they record their vote at a General Election.
My Lords, I have stated more than once in this House that decisions in relation to Scottish affairs are taken by the Secretary of State. Perhaps for clarity I should add that where legislation is concerned, the Speaker has to certify that the Bill is exclusively a Scottish Bill. It then goes to the Scottish Grand Committee, which in a way is the Scottish Parliament, and finally is laid before

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Parliament for approval on Third Reading. This Bill does not bring either decision-making or power nearer to the people. It transfers the legislative and other functions now performed by Scottish Members of Parliament in the House of Commons to an Assembly sitting in Edinburgh. It transfers to a large extent the duties entrusted to the 71 Members of Parliament to 150 Members of the Assembly. By doing so, I claim, it greatly reduces the status of the Secretary of State, which may lead to his exclusion from future Cabinets.
Whether the Bill also abolishes the offices of Minister of State and Parliamentary Under-Secretaries of State, I do not know. However, I have no doubt that these various moves must tend to weaken Scotland's position not only in United Kingdom affairs, but in European and world affairs, and may ultimately lead to the dissolution of the Union, as so many of our British citizens—Scottish, English, Welsh and Northern Irish—fear. I should like to know why 150 Members are necessary in the Assembly, when it is called upon to take over only a proportion of the work previously done by 71 Members of Parliament.
There is another point on which I should like further information. In 1977 there were no fewer than 745,600 civil servants. Is it not possible to provide from that number the 750 required for the Assembly? Furthermore, that apart, is it really necessary to have five civil servants for each of the 150 Members of the Assembly? Those who man the Civil Service—particularly the administrative class—are of the very highest quality, while as a whole the Service, and the service it gives, are possibly unrivalled elsewhere in the world. Nevertheless, too large a service, lacking a sufficient outlet for its legitimate activities, could become a danger to democracy; in fact, bureaucracy could kill it. No doubt your Lordships will remember that in addition to the civil servants, a staff of another 240 will also be needed to serve the Assembly.
I should like to look for a few moments at the money position. The capital required to house the Assembly will be very considerable. The Royal High School
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is to cost £3¼ million, and another £1 million is to be spent on altering the Scottish Office; I presume that that is the Scottish Office in Edinburgh. So much for the anticipated capital costs, which will probably be considerably higher than those anticipated in 1977. In any case, Government estimates are generally much lower than the final cost. To the capital cost I think we can add the cost of the referendum, which is another £2 million, making a total capital outlay of £6¼ million.
With regard to the running costs, in respect of salaries there is an estimate of £6¾ million, with another £6¼ million for the civil servants. So when the Assembly comes into being somebody will have to meet a bill of £19¼ million; and every year thereafter the annual cost of running the Assembly—estimated at present at £13 million, which I suggest will turn out to be considerably more—has to be found. What I want to know is, who is going to pay these costs? Will they fall to be paid by the Assembly, or will they perhaps be taken into account in the block grant? Scotland has been most generously treated for very many years past, in that she has received out of the common purse a sum per head of population considerably greater than that received per head of population in England.
With the establishment of the Assembly, is this generosity to continue? If so, presumably it will also be taken into consideration in calculating the amount of the block grant. I find it very difficult to find anything worthwhile that Scotland will receive under this Bill; anything of any material value. I cannot see it providing a higher standard of living; I cannot see the Assembly leading to reduced taxation, to a fall in the rate of inflation, to increased employment or to higher production and increased trading opportunities. I cannot see it bringing better government to Scotland; neither can I see that matters of any importance whatsoever remain to be devolved.
I wonder whether your Lordships would bear with me for a moment while I inform the House what is already devolved to the Secretary of State. I think it is important that your Lordships should be reminded of exactly what has been devolved so far, and that is why I offer a quotation in

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support of my previous statement that decisions were made by the Secretary of State. In this White Paper it states:
"The Secretary of State, as a member of the United Kingdom Government, now has major responsibility in Scotland, both for the formation of policy and for its execution".
Then it goes on:
"His major responsibilities are as follows: agriculture and fisheries, criminal law, crofting, education, electricity, environmental services, health, Highlands and Islands development, housing, legal services, local government, police, prison and fire services, roads, certain aspects of shipping and road transport services, social work, sport, recreation, the arts, tourism, town and country planning and youth and community services".
One would have thought that that was enough for him to be getting on with, but,
"He also has a major role in the planning and development of the Scottish economy".
My Lords, this Bill does not deal with devolution but with the transfer to the Assembly of legislative and other functions now dealt with by Scottish Members of Parliament, and I claim that that must weaken the sovereignty of Parliament in the United Kingdom and also the continued unity of the United Kingdom. I wish to do everything I possibly can to kill what I regard as a quite iniquitous Bill, indeed an abominable Bill, which will do no good but a lot of harm to Scotland and to the United Kingdom. I firmly intend to voice my dissatisfaction by voting for the Amendment, if it is pressed. But before I close I should like to refer to the wonderful speeches from many quarters to which we have listened today, particularly that from the official spokesman for the Opposition, who sits below me now, and also that from the mover of the Amendment. Many others, too, have made notable contributions, for which we should all be glad and of which we can all be proud.
10.20 p.m.
The Marquess of LINLITHGOW: My Lords, we have had a feast of eloquence and, so far as I am concerned, we are down to the savoury. I might even call myself the Scotch woodcock, if not the migratory trout—the noble Lord, Lord Kirkhill, will understand that reference. I support the Amendment and in a very few words I am going to say why. I think that the Amendment has given the House a chance to look at this Bill for the
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first time since Second Reading, at a distance and in its broad outlines. The object of the Amendment is to ring alarm bells, and I believe that these alarm bells should be rung. Before I say anything else, I know that a number of noble Lords on my own Front Bench and friends of mine regard this as unconstitutional, an Amendment without precedence. I think there is a precedent but I shall not go into that; I shall say only that we are debating on Third Reading a Bill which is not just going to become an Act; it is going to be presented for a referendum. The EEC was a different matter and I believe that to be a unique occasion; but we have to take into account that what is said in this House and in another place will be extremely important in term, of what the Scots learn about the Bill they are being asked to decide upon.
This Amendment is of vital importance and I have no feeling of shame because it may well not have a precedent. The precedent has been set by the Bill, and it is almost unique. To any noble Lords who agree with this Amendment hut, with their long experience, feel it is unconstitutional to proceed with it, I can only say that it is an unconstitutional Bill, a unique Bill, and I do not believe that constitutional conventions should be allowed to stand in the way of those who believe that they should stand up for this Amendment but are fearful of doing so because of political conventions. This is a unique situation. I support the Amendment because I think that the alarm bells have to ring. It is an abrasive Bill, and I believe that there is no noble Lord on any side of the House who does not realise how abrasive it is. It is an inevitable part of trying to split sovereignty. These matters have been debated again and again on Report and I wish to say only this. I believe the Bill to be abrasive enough, and its edges sharp enough to cut into the ancient and rather delicate fabric of our Union.
I wish to draw your Lordships' attention to one particular aspect which has hardly been touched on at all. It has not been debated because it is not in the Bill; it is part of the reserved subjects. I wish to refer for a few minutes to the overriding powers which are reserved by silence. The Scots are being asked to vote on something; they are being asked

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to vote on the Bill. There is no sign in the Bill of the heart of the Bill—which is the overriding powers. They were mentioned specifically in the eloquent and, if I may say so to the noble and learned Lord the Lord Chancellor, elegant address introducing the Bill: Parliament still reserves the right to legislate upon any subject within the United Kingdom including the devolved subjects.
The first task is to isolate that. Legislation upon devolved subjects must be seen in total isolation from the reserved subjects and from the devolved subjects. It has nothing to do with them whatsoever. It is permanent. Irrespective of how many powers are devolved on the Assembly it is there in isolation. It is quite meaningless. It is a convention. I believe that there is a precedent in the Irish Act. Nevertheless, it is a convention, apparently; but it means nothing. That is because if there is one absolute certainty it is that if this Bill becomes an Act it is inconceivable—a word used so often by the noble and learned Lord, Lord McCluskey, when defending Amendments, a word he used in relation to things which he thought were unlikely to happen; and if anything is inconceivable, it is this—that Parliament will ever at any time legislate on the devolved subjects. That is inconceivable.
So, my Lords, we have the right to ask ourselves, why it is there? What is it doing there, this (may I so call it to save repeating a long sentence) "special provision"? What is it doing there? It is quite meaningless except in one context. Here, I must say to noble Lords opposite that I have enjoyed this debate. I think they know me well enough to know that I am not an aggressive political animal; but here I must introduce politics. When I say "politics", I am not talking about just the Party of noble Lords opposite, but about all Parties. The explanation of this extraordinary, unique clause is this. All Parties have, up to a point, a vested interest in the unity of the Kingdom. All of us, in our hearts and heads, have a loyalty to the United Kingdom; but, uniquely to the Socialist Party, they have a powerful vested interest in what one might call the political unity of the Kingdom in terms of the total sovereignty of Parliament.
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I do not know whether the noble and learned Lord, Lord McCluskey, knows what I am going to say next, but I suspect that he does. It is this. That without the historic —and it is not the fault of the Government, it is an inheritance—and enormous value of the Scottish representation at Westminster (which effects all Parties) it is almost a matter of survival to the Party of the Government. I do not blame them for this. In fact, their backs are against the wall, I would imagine, on a three-year or four-year view. I personally take my hat off to them for being able to produce a Bill like this to surrender sovereignty, on the one hand, and to pull it back on the other. The pulling back is simply this meaningless phrase that Parliament has the right to legislate on the devolved subjects. I do not blame them for this. It is a political manoeuvre and a perfectly fair one, considering the dilemma which they are up against. That is the last political point that I will make.
Lord RAGLAN: My Lords, will the noble Marquess agree that if what he says is true—and I believe it is—then there is no devolution in the Bill?
The Marquess of LINLITHGOW: My Lords, I am very glad for the noble Lord's intervention. That is precisely what I am trying to say. There is no devolution in the Bill. What there is is a minor surrender of a certain amount of sovereignty and behind a curtain of "reserved by silence" there is a formula which says, "We take it back again". That is what I am saying.
So far as I am concerned, I have nearly finished my speech and I hope that I will not be accused of exacerbating a debate which has been so good mannered. Nevertheless, what matters is that when this Bill goes to Scotland for the referendum it should be truthful. I believe that the Scottish people should know what the Bill is about. Undoubtedly—and with the authority of the Kilbrandon Report behind me—to me there is bound to be, and must be, a considerable alteration in the political relationships between Edinburgh and London, between the Assembly, if it is formed, and Westminster. What in fact this particular mysterious extra provision does is that it puts into a box a formula which is pulled out and

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dusted over when it is required. Other than in the address of the noble and learned Lord the Lord Chancellor, it has been produced on two Amendments: by the noble and learned Lord the Lord Chancellor on one Amendment, and the noble and learned Lord, Lord McCluskey, on another. That is the only time that this power has been mentioned. Each Amendment concerned the numerical representation of the Scots in the Westminster Parliament.
I am quite certain that it is going to be pulled out from its box, and the great thing is that it is a reserved subject so one does not hear much about it. It will be pulled out of its box in the debate on the referendum. I do not say that this is dishonest; it is not, it is a fair manoeuvre, but it is a conjuring trick. It is an intellectual fig leaf; it is supposed to hide the inescapable fact and remain invisible at the same time. It is absolutely essential that this particular trick should be exposed now so that it can be read in Hansard. I think that if we are dealing with truth—which we must do—in the referendum, the noble and learned Lord, Lord Wilson of Langside, has done a great service to Scotland and he has done a great service to the House. The main dangers of the Bill must be exposed and I support the Amendment for that reason. I hope and believe that your Lordships will also support the noble and learned Lord, Lord Wilson of Langside, and in large numbers.
10.35 p.m.
The Earl of ONSLOW: My Lords, no one listened to Cassandra when she forecast the fall of Troy. In this Amendment your Lordships' House is trying to forewarn the Scots that the Bill before us will—not could, but will—endanger the Union. That Union has brought great benefits to us all. This Bill has come about because of the Labour Party's desire to keep itself in office. This has led to over-representation of Scotland at Westminster, to the over-power of its Members at Westminster over the English, and to power being given to the Assembly to spend but not to tax. That is a disastrous mixture. The Conservatives have not been much better. Mr. Heath made proposals for Scottish devolution in Opposition, and then forgot them when in power. Since then the Party has dithered
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wetly. The Liberals, after a hunt for fences upon which to sit, are now making great claims of having influenced the Government over this Bill. When the noble Lord, Lord Mackie of Benshie, is pressed upon this point and asked which factor they have actually changed, he is reduced to uncharacteristic silence. No Party has emerged from this performance with any credit. The noble Earl, Lord Ferrers, in an excellent speech in support of the Amendment, destroyed any doubt I might have had in voting for it. The only trouble was that his concluding paragraph, advising us to abstain, or possibly to keep quiet, fell below his normal Periclean standard of oratory.
The Union of Great Britain has grown upon the graft of English institutions—Parliamentary checks and balances and the judicial, executive and legislative separation are English inventions. Incidentally, the Welsh constitutional differences were destroyed by Henry VIII. The Scottish ones were preserved by Queen Anne's Government. That Union has brought benefits to England, benefits to Scotland, and benefits to Wales. Above all, it has made Britain special. That specialness must be kept: it must be guarded and treasured. Your Lordships' House is a House whose composition is, as we all know, indefensible, but whose wisdom is very great and very much respected. And your Lordships have a duty to warn—as Cassandra did—that the Union is in danger, and to hope that they will be listened to and not cast out before the final collapse of Troy, as was Cassandra.
10.38 p.m.
Lord HOWIE of TROON: My Lords, I have spoken once in this very lengthy debate, and then only briefly. I have been left with the impression that the Government Front Bench was less than enraptured by my contribution on that occasion. So I hasten now to say that I intend to support the Bill and, should I be asked to do so tonight, to vote against the Amendment. I shall also give the Government some very brief advice and perhaps express some regret.
The noble and learned Lord, Lord Wilson of Langside, in his Amendment, and again in opening the debate, drew attention to the threats to the unity of the United Kingdom; and the noble Earl,

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Lord Onslow, has just repeated these, linking them with Troy. No doubt there are dangers in this kind of thing, but surely the noble Earl, Lord Perth, was right when he said that there were greater threats to unity in not passing the Bill. The Scots are an interesting people: there is an underlying "Scottishness" about them which could very readily express itself in the form of rather extreme and disagreeable nationalism, going so far as separatism. There are clear signs of that, and it is to meet those signs that this Bill has been devised.
People talk about this as a bad Bill; but does anybody imagine that the Treaty of Union was a good Bill? Does anybody believe that the Treaty of Union was greeted with cries of approbation in Scotland, and that there was dancing in the streets of Edinburgh? There was not. On the day on which the Treaty of Union came into effect, the bells of St. Giles pealed out the song, "Why am I sad on my wedding day?" The Scots recognised what was happening, and they recognised it with great regret.
Let us face it: that regret about the Union has remained among Scots ever since. They were Scots rather than British before the Union, and they remained Scots first and British second after the Union, and so they are today. The point about a devolution Bill now is that they can remain both Scots and British and not be forced into a condition where they become Scots, and Scots only. If anything, this Bill retains the Union. It makes possible a different, but a continuing Union. That is why it should be supported.
I said that there was no dancing in the streets of Edinburgh when the Treaty of Union passed, and that was so. Within a year of the Treaty there was an abortive uprising, and a year after that a Treason Act had to be passed in Parliament here, for, it was said, "improving the Union of the two Kingdoms". It was born in difficulty, and it has gone on in difficulty. Let us hope that it ends better, not as a rupture but as a recognition by the Government that there is a nationalist problem which could be serious, which they have, for once, met in time.
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The British way has always been to recognise nationalist problems too late and then, with a great flurry to botch up a Constitution of some kind, they shoot a few people, step back and see the Constitution collapse. For once, they have the opportunity to grapple with what is admittedly a different problem, but a nationalist problem just the same, and deal with it in time, and this is being done by the Government in this Bill.
Let me advise the Government, if I might make so bold. In one of the Amendments to the Bill, if I understand it aright, there is a proposal that the Scottish Assembly should be elected on the basis of proportional representation. I know that true Party politicians do not really care for that kind of thing, but I believe that the Government should accept that proposal, and I believe that for this reason. Scotland is not divided politically into two obvious groups; it is divided into at least three. Any attempt to force it through constitutional means into a two-Party system will be doomed to failure; so do not try it. As the Government have faced the nationalist problem by devolution, why not face that problem by accepting proportional representation?
Let me turn, lastly, to my regret which concerns the referendum, as some noble Lords may realise. I support the idea of a referendum. I do not think that, because politicians in this House and in another place have greater expertise than the common people—which they have—they also have more common sense. In fact, the reverse is often true, and General Elections and referenda are decided not on the basis of great expertise but on the basis of common sense. If you look into history, you will find that the common sense of the people is as often right as is the expertise of the legislators, great as that may be. So we should trust the people and give them the referendum happily, not grudgingly, and maybe more in the future.
My regret refers to the electorate involved in that referendum. I think that the Government are in error in confining the electorate to people who live in Scotland, regardless of whether or not they are Scots. Their error is that they see this as a regional matter, when it is a national matter. which relates not to a

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nation but to a scattered people. I am not claiming that the Scots in New Zealand or all over the world should be included, but certainly those in the United Kingdom should be included in the referendum. It is too late to make that change now, but my regret is that the Government did not accept the excellent opportunity provided earlier by the noble and learned Lord, Lord Wilson of Langside, to include in the referendum electorate Scots living in England or Ireland.
I shall finish there. I could go on, but the hour is late. Although I supported the noble and learned Lord, Lord Wilson of Langside, during the Committee stage, I shall not support him tonight. He has over-egged the pudding. No Bill could be so bad as he has made out. It would be quite beyond the wit of man to invent a Bill so bad as he has claimed, and the Government certainly have not done that. Imperfect their Bill may be, but it is better than the Treaty of Union, and I support it.
10.46 p.m.
Viscount THURSO: My Lords, in moving this Amendment, the noble and learned Lord, Lord Wilson of Langside, has claimed that the Bill is a threat to the unity of the United Kingdom. However, like the noble Lord, Lord Howie of Troon, and many other noble Lords who have spoken during this debate, we on these Benches do not believe it to be a threat to the unity of the United Kingdom. We believe that it is a way of keeping the United Kingdom thoroughly united and of keeping the consent and strengthening the consent of the Scots to this Union. Therefore, we do not believe that we have to add any labels to the Bill, saying that it is in any way divisive. On the contrary; we believe it to be the opposite.
In proposing this Amendment, the noble and learned Lord also said that he thought it was a bad Bill. I am afraid that we on these Benches believe that it is wrongly conceived—or perhaps, if one uses a medical term, that it is being wrongly presented at birth. To my way of thinking, the Bill is a breech presentation, but if one has a breech presentation one may well hope that the gynaecologist or the obstetrician does not say, "Let's kill this baby; go away and try to conceive
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another". What he does is to try to get the baby through a difficult birth and then to make sure that it is guarded and watched so that it is allowed to recover from the trauma of that birth, with any defects which may have arisen as a result being suitably treated later on.
This, I believe, is what we have to do with the Bill. We do not have to treat it as it has been treated by certain noble Lords—not least by the noble Earl, Lord Ferrers—who to my mind have behaved like a lot of dirty fingered Mrs. Gamps: protesting that they were helping in the delivery of the baby but at the same time harming its health. I think that they have been two-faced, since many of the Amendments which they have introduced have damaged the concept of the Bill as it stood.
I do not believe that it is the job of your Lordships' House to damage the concept of a Bill. Improve, along the lines of the concept, yes; correct mistakes in the drafting, in the way in which it has been changed during its passage through another place, yes; but this House should not try to alter the concept of a Bill, or add Amendments, or take away powers contained in it so as to make it unworkable according to the manner in which it was conceived. Yet I believe that many Amendments have been moved and carried in your Lordships' House which have had this thought behind them. They may not have been exactly wrecking Amendments in that they clearly wrecked the Bill there and then, but they have so weakened the Bill that, if it passes into law without the other place restoring those powers which have been taken away or removing the Amendments which have been added, the subsequent Act may be very difficult to work and may indeed bring the Assembly into disrepute because of the lack of powers that are necessary, or the addition of impediments which cause the work of the Assembly not to go forward as it should.
We in your Lordships' House have done two things which I think are most beneficial to this Bill and which I hope have been heard far and wide through the breadth of the land and I hope will be carefully attended to, and perhaps one of them may even be listened to in another place when this Bill goes back to them.

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These two things are, first, to attach to the concept of devolution the importance of proportional representation in the first place. There is a wide measure of support which was evidenced by the over two to one free vote in your Lordships' House. There is also a continuing wide measure of support from people who wish to see this Bill become an Act; who wish to see it work and be successful when it becomes law. There is a wide measure of opinion that proportional representation would be invaluable to the success of an Assembly in Scotland, and I hope there will yet be time for people in another place to listen to this plea, and that there will yet be time to have it kept within the Bill and passed into law.
The other point I have little hope for but I think it was quite clear, not only from the debate on this particular Amendment but throughout the discussions on this Bill, that there are many who, like ourselves on these Benches, wish that the original concept of the Bill had been a federal one. In this connection I think we should take heart and believe, along with the noble Marquess, Lord Aberdeen and Temair, that it is possible to keep the federal concept, and indeed at a later stage to change to the federal concept. I believe that this could be done if, at a later stage—perhaps even years after the Assembly has been set up, or some time after—the Assembly were given real taxation powers. The way in which a federal concept would work is that Scotland would raise the revenue and transmit a share to the United Kingdom, and not that the United Kingdom would raise the revenue and transmit a share back to Scotland. There is a fundamental difference in the way in which it is done, but in fact the taxes raised need not be so fundamentally different. I believe it would be possible to make that alteration at a later stage and I hope it will eventually he done, because I hope there will indeed he an Assembly which can receive those powers.
I must make one remark about some of the gibes which have been made about the Liberal Party. It was said that when we introduced Amendments all we did was to withdraw them. That remark was hardly worthy of the noble Earl who made it. He knows perfectly well that the Amendment which I, for instance,
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put before your Lordships' House I withdrew in order to give the Government time to consider it, and he knows perfectly well that the Government considered it and put it in, and that they very kindly and generously gave me the credit for having reminded them of that particular point. There were other occasions when we pressed the Government on one or two points and where they listened, I feel, to some of the advice that we gave. I like to think that they listened to our pleas on tourism. I think we can claim that on two occasions the Liberal vote actually brought support for the Government view and preserved at least two clauses in the Bill which were threatened by the Opposition.
Finally, I must deal with the question of the label which the noble and learned Lord, Lord Wilson of Langside, wishes to attach to the Bill "Government health warnings; this Bill may damage your health." That is more or less what he is saying. The noble Lord, Lord Ballantrae, in supporting this, described the Bill as a "dog's breakfast". If we add this label to the Bill, we shall merely be adding Kit-e-Kat to the dog's breakfast, because this label, to my way of thinking, has an extremely fishy smell. I join with those noble Lords who wish this Bill well. I think we have in many parts of your Lordships' House tried to help it, and I for one will do all I can to help it by urging my colleagues on these Benches to resits this Amendment, if it is pressed.
10.57 p.m.
Viscount COLVILLE of CULROSS: My Lords, I do not think there is any escape for the noble and learned Lord, Lord Wilson of Langside, but fairly soon the country will know that this House has passed this Bill in all its stages, either with or without his Amendment, but I hope that he will not be too dismayed at that. The country may also take note of the course, first, of this debate. After all, in the speeches that have been made, there have been only three noble Lords—until his peroration I was going to say two and a half because of the way the noble Viscount, Lord Thurso, approached it—who have been in favour of the measure. Otherwise the faint praise has at best been deafening.

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It is a strange tribute to the amount of time and trouble that has been put into this measure by an enormous number of officials, the Parliamentary draftsmen and Ministers of the highest capability, if I may say so, that we have reached this stage with so little enthusiasm. Your Lordships might have thought that with all that talent we would have been able to improve on Lord Perth's admission that we have not really got it right this time, or the rather pathetic little "baby" of the noble Viscount, Lord Thurso. The trouble is that, whether you call it a malediction or not, what the noble and learned Lord, Lord Wilson, has put down by way of his Amendment really does reflect the feelings of a great number of us about this Bill, and that, I believe, the people of Scotland in particular should take into account. I certainly believe it is a view supported by very many of my noble friends on these Benches; indeed a number of them have said so expressly for themselves.
We have had the difficulty—we had it, and the noble and learned Lord, Lord Wilson, was constrained by it on Second Reading—that our constitutional conventions do not allow us to throw out a Bill of this kind at Second Reading, nor indeed again at Third Reading stage. What this says to some of us who chafe at an unreformed Chamber I would perhaps not dilate upon this evening. But there it is. I should like to draw to the attention of those who will, in due course, be coming to consider the Bill in Scotland some of the other things that we have done at some of the earlier stages of the Bill—for example, some of the very full and proper discussions that we have had of all of its provisions, and I stress "all" of its provisions.
My noble friend Lord Ferrers said that we had not sought to obstruct nor to wreck, and I genuinely believe that that is so. After all, even the Liberal Party has succeeded in making some improvements with the consent of the Government, and so have we, and I do not wish to be churlish in my gratitude to noble Lords opposite who have been happy to accept them.
So, when we come to this Amendment we on this side of the House have two views. I hope that it is perfectly clear from what my noble friend Lord Ferrers
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said that we do not wish to restrain any of my noble friends from voting for the Amendment if they so wish. However, some of us feel that this is a constitutional innovation made by the noble Lord, Lord Shackleton, on the European Communities Act which we would not wish to see perpetuated, and if we cannot vote against the Third Reading of the Bill, perhaps we would not wish to put our names to what is, after all, a rather pale substitute for that. However, that does not mean to say that I want to detain or restrain any of my noble friends, if they should so wish, from going into the Lobby with the noble and learned Lord, Lord Wilson of Langside.
It will be interesting to see which way the noble and learned Lord on the Woolsack goes. After all, he must remember that there is now convention in this Bill that silence means restraint and therefore we are in no way sure which way he will be able to vote—perhaps we shall never know.
The LORD CHANCELLOR: My Lords, I find that a very remarkable observation. Bearing in mind that I opened the debate on the Bill on Second Reading and have taken part in support of it, I should have thought that the noble Viscount would he grateful for my restraint in not embarking with great eloquence in support of the Bill, which I firmly and fully support.
Viscount COLVILLE of CULROSS: My Lords, that makes three and a half, but it all comes from too many heady drafts of Schedule 10 which have turned my head!
Ever since I have been in this House I have been told that the approach to legislation is to try to be constructive, and so, at least I believe, have all my other noble friends sought to be. If we had been able to find a formula which would have been able to provide a solution to what the noble Lord, Lord Mackie of Benshie, said was one of the small communities of Europe, so that it could develop in its own way in comity with the rest of us and with the rest of Europe and in accordance with its own inclinations, and without doing any harm to the structure of the United Kingdom or to our system of laws or constitution, I am sure that there would have been nobody on this side of the

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House or anywhere else in the building who would have wished to object. It is simply a matter of regret that our judgment, along with that of the noble and learned Lord, Lord Wilson, is that the measure that we have been discussing has not had this effect. I just wish that I could see it with the simplicity of view of the noble Lord, Lord Howie of Troon. I do not know whether he listened to all the detailed debates—
Lord HOWIE of TROON: My Lords, clarity of view.
Viscount COLVILLE of CULROSS: My Lords, that is another matter of judgment. I do not know whether he listened to all the debates. He is, of course, a new Member of the House and he cannot be blamed for not having taken part in them. However, I should have thought that he would see that there were difficulties put forward in the various arguments that were ventilated which cannot be, even with clarity, seen through at this stage. I do not want to go into these again in detail, but there seem to me to be two which might be drawn to your Lordships' attention again.
First, the financial and economic provisions, which surely are a crucial point of the Bill and have been rightly mentioned by the noble and learned Lord, Lord Wilson, and highlighted in his Amendment. We must send out to the Scottish people the message that has been spelt out, among others by my noble friend Lord Strathclyde, that hitherto they have been receiving per head, against the rest of the population of this Kingdom, favourable economic treatment in reflection of the needs of Scotland. They will have to realise that by virtue of the publicity that will follow the Bill, both in the Parliament of Westminster and in the Assembly in Edinburgh, that favourable treatment will be much more greatly publicised and scrutinised than it has been before. I hope that the needs will not thereby be overriden, but there is a danger that jealousies or envy may occur.
They should also realise quite plainly that apart from a small amount of internally-generated revenue, they will have no power to supplement the block fund from London. This is a paradox, because
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everybody, including the Government, has been constrained to try to find a way in which some such powers could be given to the Scottish Assembly. The whole issue has failed and has sunk upon the rock of the insistence upon an economic unity within the United Kingdom.
There then comes a confident forecast, among others, from the noble Lord, Lord Vaizey, that within a very few years amendments will be brought forward to give the Scottish Assembly tax-raising or revenue-raising powers of its own. What, then, does logic say of the economic unity that will be left in the United Kingdom, if that hitherto has been the stumbling block? We have been reminded of the frustration and the irritation that is likely to occur between the two organisations in London and Edinburgh, about the yearly arguments over the amount of the block fund and the possibility that whatever is built or done in Edinburgh will accrue to the credit of the Assembly, and whatever is left unbuilt or undone will redound to the discredit of Westminster. Can we believe that irritations and frustrations, divisions and friction will not arise from that? That must be a cardinal issue for the consideration of the people of Scotland.
There is one other issue in the field with which I have been concerned in the detail of the Bill, and that is the override powers. There are, of course, plain matters which have been devolved upon the Executive and upon the Assembly in Scotland. One would have thought, when one looked at the way in which the Bill is arranged, that these were comparatively clear-cut. There are very few matters in the Schedules where concurrence or consent from Westminster is required. Yet there is built into those key clauses of the Bill the power of the Parliament or the Executive at Westminster to override actions and decisions made in Scotland, even within the areas that are clearly devolved; and it can be done if those actions and decisions, directly or indirectly, affect matters that are still within the powers of the Westminster Government and Parliament.
I only say that, although I do not suppose that at the moment the Government have worked out any intentions of an undue amount of intervention, the role is there and ingenuity will find—if it needs to be found in the view of Westminster—a way

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of interfering in what goes on even on the matters that are clearly devolved. This is inherent in the Bill; it is built in, and there is no escape from it.
The reason for these conflicts is what my noble friend Lord Ferrers said. As a concept, the Bill indeed mixes the unmixable. It is neither a Federal, nor is it a unitary Assembly and Constitution that we set up. It is neither one thing nor another. We have tried to pinpoint the sources of conflict in our debates and, indeed, we have tried, so far as we can, to remove them. We have dealt with the economic problems; we have tried to give powers to resolve those, in so far as another place wishes to take advantage of them. We have tried—and I think that we have largely succeeded—to resolve some of the legal problems that were in the Bill when it arrived here. I do not think we have made any progress with the functional and political problems which the whole system is absolutely bound to throw up.
These are the things that I hope will be discussed, whatever happens to Lord Wilson of Langside's Motion, in the debates that are to come on the referendum. It would not be right for me to say what is the value of the debates in another place. I am sure that they are wholly admirable. But if one wants a full discussion of every part and every point in the Bill, your Lordships' debates are a rich and well fertilised seedbed for further debate. But as for the Bill itself, out of that I fear will grow from a small seed a stunted and rather graceless growth which will do no credit to two sets of people: the distinguished and, as I said before, talented authors who have brought it before Parliament but, more importantly, the people of Scotland.
11.11 p.m.
Lord McCLUSKEY: My Lords, in rising to my feet may I first of all point out that so far only one Government spokesman has made a speech apart from the brief intervention of my noble and learned friend when he was provoked to his feet a moment ago. I hope, therefore, that noble Lords will forgive me if I take at least as long as the noble Viscount has just taken to attempt to reply to this debate. Before I turn specifically to the matters that are raised by the terms of
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this Amendment, may I make one or two general remarks in response to the general remarks that have been made.
First of all, it is my belief that in certain respects this noble House has indeed improved the form of this Bill and in certain other and, I believe, more important respects, it has seriously damaged the content of the Bill and the content of the devolution which it is proper that this Bill should contain. I believe, as the noble Lord, Lord Balerno, put it, we have not been magnanimous enough. We should have been more magnanimous. We should not have been as patronising to the people of Scotland as has been a whole series of Amendments moved by the noble Earl, Lord Ferrers.
I do not wish at this stage to resume all the detailed arguments about the decisions that have been taken here in relation to such matters as forestry, aerodromes, inland waterways, Community obligations, proportional representation, tax powers, and the like, but I should like to say a word or two about the manner in which the House has approached its task. I believe that those who ho have participated in these long debates over some 21 days approached the Bill in a way that in several respects does them and the House great credit. I think there are several reasons for this, first of all, because the Bill is a kind of cornucopia of the whole machinery of Government and the whole range of the activity of Government.
Of course this House is nothing if it is not a blouse containing many distinguished and able people who bring to it great expertise. Whether we have been discussing fishery limits, or estuarial limits, or art galleries, or abortion, or the prerogative powers of Her Majesty, or whatever, each debate has called forth a very considerable degree of expertise. I should not have omitted to mention, of course, betting, gaming and horse racing and lotteries where the noble Lord, Lord Wigg, the Jockey Club, and numerous amateurs in the Sport of Kings have thundered and chipped away at the relevant provisions of the Bill until they converted a narrow Government victory by the nose of the Lord Chairman at the Committee stage into victory by a street at Report.

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Apart from the subjects on which we have had the benefit of the advice of distinguished doctors, Law Lords, fishermen, foresters, farmers, economists and gamblers, in so far as one can distinguish the one category from the other, nearly everyone is an expert, or thinks himself an expert, on three matters: transport, the machinery of Government, and the drafting of statutes. Therefore, many distinguished noble Lords have sought the opportunity they have found here of a peg on which to hang their particular knowledge, and they have in turn delighted, dismayed, and educated us all as to the contents of the Bill and the true nature of Parliamentary scrutiny.
Secondly, for reasons that may be purely technical, or wholly altruistic—and I will give no indication of my judgment between them, except to say that I do not think they are in the least altruistic—in point of time the official Opposition have exercised considerable restraint in relation to the progress of this Bill. The noble Earl, Lord Ferrers, from the Front Bench opposite, set us all an example of amiability, brevity and relevance which those beside and behind him largely followed, some with more reluctance than others. I know how it happened, because from time to time on a Thursday at lunchtime I pass the closed doors of the room in which the Party opposite hold their weekly meeting. I could hear issuing forth the excruciating sound of arms being twisted and the dull thud of restraining hands being laid on excited shoulders. However that may be, the result was that none of our debates was disfigured by prolixity, obduracy or unnecessary repetition.
Thirdly—perhaps this is the important and serious point—I believe that noble Lords have largely recognised that the Bill stems from a serious threat to the unity of the United Kingdom. It stems from the conclusions of a Royal Commission which considered the Constitution against the growing background of that threat, and its tems from commitments which the Labour Party undertook to the electorate in 1974 and which it has pledged itself repeatedly to honour. Not only the Labour Party, because all Parties in Scotland offered in 1974 an Assembly to the people of Scotland. Therefore, I think the House, at least dimly, has
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recognised that, having regard to its composition and character, it cannot properly defy the elected Chamber in relation to a Bill which, among other of its provisions, contains a referendum clause which enables the people living in Scotland to be directly consulted.
Apart from these general considerations, our debates have been given their high quality by the calibre and hard work of those who have played a leading part in them, and I want, because people have been very kind to me and my colleagues, to pay particular tribute to the contributions made to these debates by the noble Lord, Lord Drumalbyn, who has worked extremely hard on the Bill, and with great desire to improve it. I pay the same tribute to the noble Earl, Lord Selkirk, who has burned the midnight oil in relation to the many problems on which he addressed us.
Let me also say something about the Law Lords. Lesser, or at any rate different, mortals have sat around even at late hours amazed at the dexterity, urbanity and refined cruelty with which one noble and learned Lord has followed another remorselessly laying bare the illogicalities, the non sequiturs and the follies of his noble and learned friends. I think it was C. S. Lewis who said there would be a special part of hell in which theologians could go on discussing the question as to whether God existed. I suspect that elsewhere in the hereafter Law Lords will be allocated a chamber in which to discuss, although I hope without heat, judicial review. At least in eternity they will not have to come to any conclusion.
To my noble friends behind me I wish to express my particular thanks for their restraint. I know that some at least regard parts of the Bill as being less than perfect, but loyalty, at least if it is not carried to excess, is the essential basis of democratic government, even if its form, at the insistence of the business managers, sometimes has to be silence. I express my appreciation of the considerable contributions made from the Liberal Benches, particularly by the noble Lord, Lord Mackie of Benshie, who brought immense commonsense, and a great deal of faith in the people of Scotland, to all our debates. I mention also, from the Opposition Front Bench, the noble Viscount, Lord Colville of Culross, who

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has worked extremely hard and, on most occasions, very helpfully; the noble Lord, Lord Campbell of Croy; and of course, I want to pay particular tribute to all my colleagues who have worked very hard, as I have myself, in order to explain, and indeed to defend, the Bill.
I turn to the matter with which we are precisely concerned. It is very important to realise—and this was well recognised by the noble Lord, Lord Balerno, by the noble Earl, Lord Perth, and by the noble Marquess, Lord Aberdeen—that you cannot have, as I sought to say on Second Reading, devolution in principle. We can only have a scheme of devolution, warts and all. We either have no devolution or we have a scheme. We may not like all features of the scheme, but if we want devolution it must take a concrete form.
What has been absent from all these debates is any indication from the Members of the Party opposite of what it is that they would propose. They have made it plain that they have run away from the offers that they made to the electorate in 1974. They have run away from the Declaration of Perth. They have run away from the scheme proposed by the noble Lord, Lord Home of the Hirsel. They have left us with nothing but a kind of vacuum. Do they not realise—does the House not realise—that the dangers which are pointed out by this Amendment are not nearly as great as the dangers of doing nothing? That is the essential and serious point.
May I deal with some matters of detail. It is right that I should put them on the record. I shall seek to do so as briefly as I can. A great many Amendments have been made in this House. They fall into three categories. There are Amendments which were moved by the Government because of representations made by noble Lords from different parts of the House. In fact, we made nine Amendments of that character, and I would mention that the finality of Judicial Committee decisions has been one of them, and the possibility of referring to the Judicial Committee in cases of doubt was another. These were not in the Bill when it came here. They were Amendments that were put in because the Government accepted that the arguments were strong enough, and the Government
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therefore made these Amendments. There were nine Amendments of that character. Another eight were Amendments which the Government themselves accepted in Committee—and indeed there have been others accepted today, the Government having indicated in Committee their readiness to accept them. For example, one of them was the deletion of the explicit reference to the prerogative in what was then Clause 20, and there were certain other Amendments about standing orders, the Amendment about hybridity, and other matters of that kind.
It is not easy to agree upon a precise figure as to the other Amendments. However, some 30 Amendments have been moved in Committee against the wishes of the Government and carried into the Bill as a result of the composition of this House and the voting in the Lobbies. In relation to those Amendments, let me say this. Some of these Amendments will be accepted in another place. Some of them will be put to a free vote in another place, and some of these Amendments will be fought in another place. No doubt your Lordships will then have a chance to reconsider some of these matters and to consider what your attitude may be. I am certain that, having regard to the time that we spent upon these matters, the other place will have plenty of time to give them at least as much consideration as we gave them. I should say something about this.
Earl FERRERS: My Lords, does one understand from the noble and learned Lord's remarks that all of the Amendments are going to be subject to one of those alternatives that he mentioned?
Lord McCLUSKEY: My Lords, if the noble Earl is talking about the third category of Amendments, the ones carried into the Bill by vote, these will be either accepted by the Government—of course it is for the other place to decide how it deals with them—or they will be put to a free vote, or they will be resisted by the Government, and the House will be invited—
Lord CARRINGTON: Or guillotined?
Lord McCLUSKEY: Let me deal with the word "guillotine". This is a monstrous libel that is repeated at great length in

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this House. For example, the noble Earl, Lord Ferrers, said that we debated every clause of this Bill in this House. We failed to debate 27 clauses of the Bill in this House. The simple reason is that these clauses are standard form clauses and did not require debate and did not require Amendments. That is some indication of the kind of error into which the noble Earl fell.
Secondly, in relation to the guillotine, may I remind the noble Earl of what was said by Mr. Francis Pym just before we received the Bill for its First Reading. He said that one could not get a measure of this kind through Parliament at the present time without a guillotine—that a guillotine is essential. The noble Lord, Lord Carrington, mentioned the guillotine, and I should like to remind him that during Committee stage in another place 14 days were allocated under the guillotine for discussion of the Bill. We, with no guillotine, with no possibility of a guillotine, and with no restraint at all—any noble Lord can speak for as long as he likes; as your Lordships know, we have no Speaker in the same way as in the other place—took 13 days to debate every Amendment that was put on the Marshalled List and not withdrawn—
Several Noble Lords: Hear! hear!
Lord McCLUSKEY: My Lords, that fact demonstrates a number of points. I notice that a lot of "hear, hears" welcome the compliment that I am apparently paying to the House of Lords. Well, be that as it may. What I have just said demonstrates that the guillotine did not prevent discussion of these matters. It is the opponents of the Bill who, by abusing the time allowed, prevent discussion.
Let me illustrate further, by means of other figures. In a period of 14 days in Committee, the Commons discussed, sometimes in groups, sometimes singly, a total of 140 Amendments—10 per day. We, in 13 days, discussed 297 Amendments. At Report stage our productivity rate was 52 Amendments per day, while during Report stage in the Commons the rate was—
Lord CARRINGTON: My Lords, I do not want to interrupt the noble and
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learned Lord, because he is making a splendid speech, which we are all enjoying. However, I understood him to say that the Amendments passed by your Lordships' House were either going to be accepted, or discussed, by another place. Will he give us an undertaking that all the Amendments we have passed will be discussed by another place?
Lord McCLUSKEY: My Lords, that is not for me to say. The Government will provide time, which I am indicating is perfectly adequate. We could finish well within the time that the Government will allocate in another place. If opponents of the Bill chose to spend their time discussing—I will not use the word "filibustering"—Amendments at enormous and inordinate length, and making Second Reading speeches during consideration of Lords' Amendments, then of course it may not be possible for them to discuss these other matters. That is not a matter for me to decide; it is a matter for Members of the other House.
Let me turn to the Amendment itself. I hope that the people, the country, and your Lordships, will bear in mind that the kind of wisdom that has been offered from the Conservative Front Bench is the kind of wisdom that they brought, in their own period of Government, to industrial relations, to local government reform, and to the reorganisation of the National Health Service. Those were major measures which they undertook in Government on which they were profoundly wrong. I hope that the country, when offered that kind of advice from that quarter, will recall the history of noble Lords who offer the advice.
With regard to the Amendment itself, we have been told that there is one precedent for making an Amendment of this kind. Of course, the House rejected that Amendment when it was proposed by my noble friend Lord Shackleton—
Lord SHACKLETON: My Lords, I am sorry to interrupt the noble and learned Lord, but of course that was an Amendment on Third Reading, not during consideration of the Motion that the Bill do now pass.
Lord McCLUSKEY: My Lords, I am obliged to my noble friend for making that clear.

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The noble and learned Lord, Lord Wilson of Langside, in his Amendment is saying that this is a bad Bill. He is saying that it is full of contradictions and deficiencies; it is full of unresolved problems. He is saying that it places the unity of the United Kingdom in grave danger. He is saying all these things of it. He is saying that in his judgment it is a bad Bill, but let it go through. There is an extraordinary lack of logic about that. There is also a lack of courage about that. The noble and learned Lord should have the courage of his convictions and attempt to throw the Bill out. Does the noble and learned Lord really see no benefits at all in the Bill? I repeat the question that was asked by my noble friend Lord Howie of Troon: Is the cloud wholly black? Is there no silver lining at all?
Let me say this—and here I repeat what others have said. I should be perfectly happy—as I think all the people of Scotland would be—if noble Lords were to come to Scotland and, in the course of the referendum campaign, stand on the hustings and tell the people of Scotland the kind of points that they have asserted tonight. They would be welcome. They would at the same time learn much about Scotland. Let them come. Let them issue their warnings. But do not—I say to them—sit here doing it, in our air-conditioned Chamber, on our leather Benches.
A noble Lord: Some of us live in Scotland.
Lord McCLUSKEY: My Lords, I urge the rejection of the Amendment. It is a bad Amendment. It ignores the dangers of doing nothing. It is ineffective. It is simply a malediction, as the noble Marquess, Lord Aberdeen and Temair, described it. It enshrines a highly disputable series of propositions. It lacks the courage of its assertions. It is impotent. It is biased, and it is a partial gesture. I believe that the House would lose much dignity if it accepted the Amendment, and I urge your Lordships to reject it.
11.30 p.m.
Lord WILSON of LANGSIDE: My Lords, I should like to thank all those noble Lords who have taken part in this
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debate. Somehow or other, your Lordships have contrived to put a new slant on these many old songs which we have been singing these last several weeks and months. Your Lordships would not wish me, nor have I any intention, to pursue the wide range of matters which have been raised in the debate. I should like to join in the tributes which have been paid to the the noble and learned Lord and his colleagues on the Government Front Bench. The superb advocacy of the noble and learned Lord himself has been commented on frequently. I have known him for longer than most of your Lordships, and of course I have always known that; and to that he adds a ready wit. I am astonished that the burden of this Bill has not at all weakened his wit, but rather has sharpened it. Of course, if the cynical say, as they sometimes do of my profession, that the art of advocacy is the art of deceiving people without actually telling lies, we need not worry about that; and if we remind ourselves that even in the courts of justice suberb advocacy occasionally wins bad cases, we need not worry about that here, because I am happy to think that this usually happens in the lower courts.
Of what has been said in the debate, I want to touch on just one matter which the noble and learned Lord raised. He complained of my logic in not attempting to have the Bill rejected. If I had thought that your Lordships could have been convinced on Second Reading that it should be rejected, I should not have withdrawn my Motion then; and if I had thought that your Lordships would support a Motion to reject the Bill at this stage, I would have moved it, because I think it is a bad Bill for the reasons I have stated, and I will not repeat them. But there is nothing illogical in my action, whatever else there is to be said.
The only other point raised in the debate upon which I wish to touch is that of, I think I am right in saying, the only Member of the Government Party Back-Benches who spoke in this debate, the noble Lord, Lord Howie of Troon. He said, "Trust the people." I am all for trusting the people, my Lords. I agree with much of what he said—that you get more common sense out of them. I agree with a trial by a Scots jury. I think you can trust them, and I think they will come up with the right answer

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provided the judge does not misdirect them, as judges sometimes do, and provided they are not confused by superb advocacy, as superb advocates sometimes confuse juries. What I am saying, in effect, is that we should tell the jury, and that is what this Amendment says.
I do not say, "This is a thoroughly bad Bill with nothing good to be said about it". I think there are one or two wee things which are not too bad. The gravamen of the case which I thought I opened (though I am not always as clear as I should like to be) was that when you read the debates in the other place you are conscious of the other place being greatly concerned with the Bill, dissatisfied with it, and being ready to throw it out, ready to reject the guillotine, but for the offer of the referendum—very uneasy about the whole thing.
Of course, I have many friends still in Parliament, and I have talked to them about it. Without the guillotine—and someone talked about arm-twisting in a room in this building; without a lot of that, too—the Bill would never have gone through. There was this uneasiness, but I cannot speculate about the

CONTENTS

Abinger, L.

Greenway, L.

Raglan, L.

Alexander of Tunis, E.

Harvey of Tasburgh, L.

Rankeillour, L.

Atholl, D.

Kinross, L.

Rathcreedan, L.

Balfour of Burleigh, L.

Lauderdale, E. [Teller.]

Redesdale, L.

Ballantrae, L. [Teller.]

Linlithgow, M.

Selkirk, E.

Bridgeman, V.

Long, V.

Stamp, L.

Cathcart, E.

Lucas of Chilworth, L.

Strathclyde, L.

Craigavon, V.

Lyell, L.

Strathcona and Mount Royal, L.

Drumalbyn, L.

Massereene and Ferrard, V.

Torphichen, L.

Ellenborough, L.

Minto, E.

Tweeddale, M.

Elliot of Harwood, B.

Monson, L.

Vaizey, L.

Elton, L.

Morris, L.

Vivian, L.

Faithfull, B.

Mottistone, L.

Ward of North Tyneside, B.

Ferrier, L.

Mountgarret, V.

Westbury, L.

Fortescue, E.

Mowbray and Stourton, L.

Wigg, L.

Gainford, L.

Newall, L.

Wilson of Langside, L.

Gisborough, L.

Onslow, E.

Wise, L.

Gray, L.

Orr-Ewing, L.

NOT-CONTENTS

Aberdeen and Temair, M.

de Clifford, L.

Hatch of Lusby, L.

Ardwick, L.

Donaldson of Kingsbridge, L.

Hood, V.

Balerno, L.

Dowding, L.

Houghton of Sowerby, L.

Birk, B.

Elwyn-Jones, L. (L. Chancellor.)

Howie of Troon, L.

Boston of Faversham, L.

Fisher of Camden, L.

Kinnoull, E.

Boyle of Handsworth, L.

Gaitskell, B.

Kirkhill, L.

Brockway, L.

Gardiner, L.

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

Collison, L.

Gregson, L.

Davies of Leek, L.

Harris of Greenwich, L.

Lockwood, B.

other place. I was trying to sum up my impression in your Lordships' House by reference not only to what was said from the Conservative Benches but what was said by the noble Lord, Lord Shinwell, and the noble Baroness, Lady Bacon. It was they who said that this is a bad Bill.
The noble Baroness, the ex-chairman of the Labour Party, did not think much of the Bill. Where was the enthusiasm? The noble Lord, Lord Wigg, who has had a long and distinguished career in the Labour Party said, "It is treason", and I tried to explain why I agreed with him. The noble and learned Lord, Lord McCluskey, suggested that all this is coming from the Conservative Party. I wish I had the Conservative Party with me on this. I hope I will have them tonight, because I am going to stand by this Amendment and ask your Lordships to support me.
11.40 p.m.
On Question, Whether the said Amendment shall be agreed to?
Their Lordships divided: Contents, 53; Not-Contents, 55.

Lovell-Davis, L.

Ritchie-Calder, L.

Thurso, V.

McCluskey, L.

Sainsbury, L.

Wallace of Coslany, L.

McGregor of Durris, L.

Seear, B.

Wedderburn of Charlton, L.

Milner of Leeds, L.

Shackleton, L.

Wells-Pestell, L.

Morris of Borth-y-Gest, L.

Shepherd, L.

Whaddon, L.

Northfield, L.

Stedman, B.

Wigoder, L.

Peart, L. (L. Privy Seal.)

Stewart of Alvechurch, B.

Winstanley, L.

Perth, E.

Stone, L.

Winterbottom, L.

Pitt of Hampstead, L.

Strabolgi, L. [Teller.]

Wynne-Jones, L.

Ponsonby of Shulbrede, L.

Swaythling, L.

On Question, Bill passed and returned to the Commons.

KING'S COLLEGE LONDON BILL
Reported from the Unopposed Bill Committee with Amendments.
GREATER LONDON COUNCIL (GENERAL POWERS) BILL
Reported from the Unopposed Bill Committee with Amendments.
GREATER LONDON COUNCIL (MONEY) BILL
Reported from the Unopposed Bill Committee without amendment.