SCOTLAND BILL

HL Deb 29 June 1978 vol 394 cc378-463

3.17 p.m.

Read 3^a, with the Amendments.

Clause 1 [The Scottish Assembly]:

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) 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 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, 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 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, 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 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 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 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 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 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 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 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 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 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 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 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 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. 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 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, 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 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 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 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 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 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 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 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 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, 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.

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, 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 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 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 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 moved Amendment No. 13: 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 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 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 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 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 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 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, 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 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 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.

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. 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 moved Amendment No. 27: 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 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 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 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 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 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 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 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 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 attention of the House, I have no doubt that he will do so.

Lord KIRKHILL moved Amendment No. 40:

Page 73, line 53, at end insert—

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

Not included.").

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 moved Amendment No. 42:

Page 76, line 17, at end insert— ("10A. The following powers under the Inner Urban Areas Act 1978:—

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

1. (a) the loan is made by a designated district authority in Scotland; and
2. (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 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 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 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 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: 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 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 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 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 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 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 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 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 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. 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.