§ 3.3 p.m.
§ Debate resumed on the Amendment to the Motion ("That the Bill be now read a second time") to leave out all the words after ("that") and insert ("having regard to (1) the unacceptable threat its enactment would present to the unity of the United Kingdom and sovereignty of Parliament and (2) the adverse effect its enactment would have in the effectiveness and efficiency of Government in Scotland, this House declines to give the Bill a Second Reading.")
Lord CAMPBELL of CROY
My Lords, I had the pleasure of listening to almost all the 43 speeches yesterday, the first day of this debate. There were different shades of opinion expressed in those speeches on how much, if anything, should now be done in the way of Parliamentary devolution for Scotland, following the administrative devolution which has been carried out over the past 60 years. It was clear from the quality of the speeches that this House can make a unique and significant contribution to this subject, and can also help the Government to decide what to do with this Bill. I think in every speech except the opening one by the noble and learned Lord the Lord Chancellor, even in those which welcomed the appearance of the Bill, there were suggestions that changes were needed in the Bill.
My Lords, we look forward today to two maiden speeches, from my noble friends the Duke of Buccleuch and Lord Fraser of Kilmorack. Both are eminently well equipped with knowledge and experience to contribute to your Lordships' deliberations. Yesterday our proceedings were distinguished especially by an outstanding maiden speech, if I may say so respectfully, by the noble and learned Lord, Lord Scarman. It is clear 1366 to us that later on he can provide us with lucid explanations of legal points on this Bill, and also on other subjects; and I hope that in due course the Government will clarify the matters he raised about decisions of the Judicial Committee of the Privy Council, as provided for in this Bill.
The Bill in its present form has very few friends here or in another place. Some Members of another place have made it clear that they acquiesced in its passage only because they were confident that it would fail at the referendum. Perhaps I, more than anyone outside the present Government, am aware of the dilemma in which the Government find themselves: First, because I was the last Secretary of State for Scotland from the Opposition Parties, and I worked for nearly four years with the present system. I certainly would not attempt to defend that system as perfect. Secondly, because I have seen from close quarters in my own area of Scotland the mass defection of Labour votes to the Scottish National Party—to the detriment, I may say, of Conservatives.
I realise what could happen in Labour-held seats in Central Scotland. An example in my area is the seat which I myself held for 15 years in the constituency where my home is. At the Election in which I failed to retain it, may I modestly inform your Lordships that I received the highest recorded Conservative vote before or since. It was the disintegration of the support for the Labour candidate, who lost his deposit—an eventuality previously thought impossible—that produced the result, an SNP gain. I was placed in the ironical position of wishing that my old opponent, Labour, had done better. Normally, of course, he had been a close second. But I did have the agreeable consolation that I later found myself joining your Lordships' House. So noble and learned Lords speaking for the Government in this debate will realize that I, for one, fully understand their problems.
Our criticism is that the Government are trying to overcome their dilemma in the wrong way, for the very serious defects in this Bill are likely to provoke the kind of threat to the unity of Britain which almost everyone in this House wants to avoid. I am prepared to grant 1367 that it is the SNP who are the real cause of this Bill arriving here in its present state. If they did not exist, the Government would never have set out hurriedly on this imprudent course. The SNP hierarchy Want to break up Britain. So do the Welsh Nationalists. The SNP do not want this Bill. They do not want it to work, and they do not want an Assembly to work. The SNP's declared aim for at least 30 years has not been devolution but to make Scotland a separate nation, with its own defence forces and embassies, a seat at the United Nations and its own complete control over economic and financial affairs, including taxation and currency.
My Lords, no wonder Scottish businessmen and commerce are worried, as my noble friend Lord Polwarth and others pointed out yesterday. Companies would have the monumental and burdensome task of trying to disentangle the closely interwoven links which cross the Border as a result of 270 years of economic union. The SNP's aim has been no secret; it has been appearing constantly in their Manifesto. They would retain the Monarchy and remain in the Commonwealth, like New Zealand. That policy, however presented, remains the balkanisation of Britain, and nothing less. Britain has been passing through a time of economic difficulties, although the adoption of IMF policies has helped. The expression is often used by Ministers and commentators in the media that various measures are needed if Britain is to survive. The tacit assumption there is that everyone in this country wants Britain to survive. But everyone does not! The activists in the SNP do not want Britain to survive.
It is one of the two great paradoxes of the present situation in Scotland that most of those who have supported the SNP with their votes do not approve of the principal aim of the SNP activists, indeed, the raison d'être of the SNP; namely, complete independence. They have supported the Party for other reasons, largely because it has appeared to be a Scottish pressure group frightening London into better and quicker action in Scottish affairs. Certainly, in the present case it seems to have frightened the Government who would not otherwise 1368 have rushed headlong into the dangers of the ill-prepared scheme in this Bill.
The second of the two paradoxes is that the Party which appears to be most in favour of devolution, the SNP, is the Party which is strongly opposed to devolution of any kind as a settled system: for devolution and independence are entirely different; one is the antithesis of the other. Devolution is the decentralisation of powers and functions within one country; independence means secession and division into more than one country. The danger is that frustration with a bad or unworkable scheme of devolution could be converted into pressure for breaking up Britain.
My Lords, I regard this threat to our country as potentially more dangerous to the welfare of all its inhabitants than the threat posed by our economic problems. Our recurring economic crises can ultimately be solved. The danger to the unity of Britain from nationalism is more insidious because it is less easily recognisable and because local loyalties and grievances are invoked. I can confirm what several speakers from Scotland said in yesterday's debate. Those who are agitating for independence for Scotland and so for separatism from Britain and those who support that aim in Scotland are a comparatively small group. Some of the activists are well-meaning but misguided; others are simply fanatics. I speak as one of those whose home is in Scotland and whose work and livelihood are there. I feel the threat to the unity of Britain very acutely. I know that the disintegration of the United Kingdom would damage each dismembered part. In Scotland, we would be enfeebled in ways which do not make themselves apparent to many who live in Scotland today; and these might not be seen until later in the day.
I cannot over-emphasise, however, that there is general feeling in Scotland of wishing to have a louder voice in matters directly affecting Scotland, as my noble friends Lord Home and Lord Glenkinglas said yesterday. Change and adjustment are needed. I say that, having myself had the task of operating the present system as the chief executive in Scotland. The noble and learned Lord the Lord Chancellor, when introducing the Bill yesterday put it in this way: that decision-making should 1369 be brought closer to the people; that there should be greater accountability of Ministers and Departments to the Scottish public; and that a further step is needed on the road to more decentralisation. I would add that that feeling is not confined to Scotland.
He also said that debates in this House and elsewhere had shown considerable support for the basic concept of devolution—"political devolution," as he called it; Parliamentary devolution, if you like. That may be so, for the reasons I have given. Many, including myself, accept the need for change and reform. But this is cry different from support for a particular scheme which has the seeds of its own destruction within it.
The noble and learned Lord spoke of the danger of a false prospectus, implying the SNP's prospectus; but I believe that this Bill could be a faulty prospectus. From what the noble Lord, Lord Glenamara, said—and he claimed authorship of the first draft of this Bill—I think that the Government have worked hard and earnestly to produce a scheme. I do not criticise them for seeking reform and change. What I quarrel with is the attempt to press upon Parliament, without proper consultation beforehand or time for discussion, constitutional changes of the greatest magnitude and importance; and these in a scheme which is clearly disliked and is looked upon with apprehension and distrust by most of the Members of both Houses of Parliament.
Yesterday the noble and learned Lord, Lord Wilson of Langside, like a skilled surgeon, exposed and dissected defective bones and sinews in the scheme. I hope that he will not press his Amendment because, among other things, it would prevent the House from examining and changing the Bill if it happened to pass. This House is a revising Chamber and there is a lot here to be revised. I sympathise with the Government's dilemma. They, surely, would not have produced this Bill as drafted without all-Party discussions beforehand, or a consensus in Parliament being reached for a particular scheme, if the SNP threat were not there!
My Lords, we are considering the greatest change in our constitution for 270 years. It is the fear of suffering electorally in the coming months that has 1370 prompted the Government to produce proposals for a Scottish Assembly—any kind of Assembly, it seems—soon. That is a short-term policy and it could cause lasting damage. These proposals contain serious defects which, if not changed, would provoke conflict, confusion and frustration. We might then be involuntarily sliding into independence for Scotland and the dismemberment of Britain.
I will mention two of the most serious defects. One which was touched upon several times yesterday, is the lack of arrangements to regularise the position of Scottish Members of Parliament at Westminster. They would be voting on English and Welsh subjects but not on the equivalent Scottish subjects which would be being dealt with in Edinburgh. I know that the Government's view is that the Government of the day should be able to rely on a majority within the Westminster Members of Parliament to support them on all subjects at Westminster. That is understandable, especially in the case of the present Government. But with the gross anomalies concerning the roles of Westminster Members of Parliament which now exist in the Bill, such a requirement must be reconciled by changes; new arrangements should be worked out and general agreement reached.
It is not a new problem. For example, I pointed it out in our debate over two years ago on 28th January 1976. It is to be found at column 1076 in the Hansard of 29th January 1976, I had better add, because as happened last night the debate continued beyond 11 o'clock. I said then that this problem must be solved in any devolution plan and I briefly made a suggestion towards solving it. What have the Government been doing about it in the past two years? It is not a new phenomenon only recently discovered as "West Lothian man".
Another defect is the proposed establishment of two Executives. This is a formula for friction. Under Clause 22 of the Bill, and the associated Schedules 4 and 5, conflict is bound to arise. It is not clear who has powers and what happens when the two Executives disagree. May 1 remind your Lordships that the Assembly and its Executive will be covering a smaller area than the functions now being exercised by the Secretary of State for Scotland, his 1371 Ministers and the five Departments of the Scottish Office. The Bill does not devolve more subjects; it attempts to provide some Parliamentary devolution to match the extensive administrative devolution which already exists, but not over the whole field.
The Secretary of State and his Departments are now responsible for virtually every domestic subject, except finance and the sponsorship of trade and industry. The Parliamentary control of that Scottish Executive has become submerged and invisible. So many committees have sprouted at Westminster, and Parliament has taken on so many additional functions, that there is less time for control and accountability where the Scottish Office is concerned. The arrangements for control and accountability exist; but the Scottish committees are scarcely visible now from Scotland. The check on the Scottish Executive is less effective than it was and than it should be.
In addition, both my noble friend Lord Home of the Hirsel and the noble Lord, Lord Hughes, pointed out yesterday that many Scottish Bills could be referred to a body in Scotland to consider with advantages both at Westminster and in Scotland. I am sorry that the noble Lord, Lord Hughes, was unsuccessful in the example he gave of encouraging home ownership by a special scheme for Scotland. That explains what I took to be his silent agreement when I was speaking on this subject the day before yesterday in this House.
§ Lord HUGHES
My Lords, if the noble Lord will permit me, it was not that: it is because I am chairman of a new town development corporation which may be a beneficiary, and the Addison Rules applied to me.
Lord CAMPBELL of CROY
My Lords, I am grateful because I feel that if the noble Lord had spoken he would have supported what I was saying. I can tell the noble Lord that I was luckier in my time as Secretary of State: for example, with the reform of the Scottish Health Service. He pointed out that usually the Scottish legislation followed the English legislation. In that case, the 1372 Scottish Bill came a year earlier and I was able to stand out for a single-tier system of health boards in Scotland, and we achieved that system. In England and Wales there is a two-tier system. Subsequent experience has shown that the different system adopted for Scotland was the best for Scotland.
Above all, in considering the possibility of further devolution, let us remember that Scotland is a nation, not a province or region. England is also a nation and does not want to be divided into six or seven parts which would be necessary for a straightforward federal system. Scotland voluntarily entered into the partnership 270 years ago. The Union has brought benefits to both Scotland and England, and will continue to do so. The SNP wish to destroy that Union. The chief agitators try to stir up anti-English resentment and propagate answers to bogus points. For example, in a Party political broadcast on 30th December last (which was not heard South of the Border) a leading SNP spokesman said:Politicians and English tell you that Scotland is too poor to be a country on its own".That is not an issue. Of course Scotland could exist on her own, after all, Haiti and Costa Rica exist as separate nations. The point is that Scotland would be less well off, with reduced standards of living and great insecurity in industry and employment, not to mention defence. That is the point.
The Government and we on these Benches want to preserve the Union. That must be the first priority. Our fear on this side is that the Bill as it is at present would produce situations that could gravely endanger the Union. At later stages we will ask the Government to explain the intention behind parts of the Bill, particularly those parts which have not been discussed in another place. We will do our best to get basic improvements. If that proves impossible, we hope that the Government will, even at that stage, convene all-Party discussions on constitutional matters to obtain agreement on progress—for progress is needed. The Government and most of us on this side agree on that. But progress must be sure. Standing still is most inadvisable; but to dash headlong into a constitutional muddle would be disastrous.
§ 3.36 p.m.
§ Viscount THURSO
My Lords, as I drove across Caithness to catch the aeroplane South to join your Lordships in this debate, I looked through the clear rain-washed air to the Scarabens and Morven still slashed with snow drifts from the recent storm; I looked at the sheep and cattle scattered about the fields, now looking for the green young blades of grass which have been forced up by the spring sun. I saw the shochads and the golden plover wheeling and calling in the sky, and the fulmars white on the sun-warmed old red sandstone cliffs of Dunnett Head. I looked at the farms and crofts as I drove past with people busy on their tractors with early spring work and finishing the last of the ploughing.
I saw the villages active with community life, houses being built, housewives shopping, gossiping on the street corner, children playing in the school grounds. As I looked and thought also of the purpose of my journey, my heart tightened. This was my home; these were my kin and my lifelong friends. This was the community in which I had made my life and which I had served for so many years as a town and a county councillor. I realised the responsibility which I was setting out to share with your Lordships—and with those who deliberate in another place—in seeking to shape anew the political framework in which this community has its being. But, my Lords, this is a responsibility which I do not shirk.
Like the noble Lord, Lord Balerno, I too was brought up to be aware of what he called "this business of devolution", although in my family we called it Scottish home rule. From my early years I had believed in it, and I still do; but this belief does not make me a separatist—far from it. Rather, this belief enables me to be a good European and to be able to pray that in my children's time or, at least, in my children's children's time, there may yet be world government in the interests of all mankind. Let me therefore explain myself and how I build what I like to call my pyramid of loyalties.
At the base is my love for and loyalty to my family, and on this I build a loyalty to the immediate community in which I live. I do not expect that community to run my family life for me; but this does 1374 not diminish my loyalty to it; rather, it strengthens it. I believe that the community in which I live owes a loyalty to the other like communities among which it finds itself and which pursue life and happiness in like manner to it. I feel that nowadays this grouping is Scotland, even though I come from a part of Britain which was longer under the Norwegian flag than it was under the Scottish flag and has yet to be as long under the Union Jack as it was under either. In this respect, I understand the worries of Orkney and Shetland, although I would hope that I and others like me would be able to persuade them that their rôle was in Scotland rather than on a Scandinavian fringe of their own. There is no doubt in my mind that Caithness shares more cultural, geographic, religious and legal ties with Edinburgh than it does with London. Over purely domestic matters, it is easier to make one's problem understood in Edinburgh than it is in London.
In my experience this is a fact, but this fact need not, and indeed should not, stop Scotland continuing its association with the other members of the United Kingdom or from giving its full loyalty to a Westminster Parliament pledged to uphold the common ideals of freedom, democracy and the rule of law. Especially I believe that this loyalty should be given to the Crown which is the physical expression of these ideals. I rather resent the suggestion that I felt was being made at some times yesterday that those of us who fought in the last war fought for the immutable preservation of the then existing Parliamentary and political system. We did not; we fought for those ideals which I have just mentioned, as did not only our Commonwealth comrades but also the Poles, the Free French, the Americans, the Argentinians and the Chileans. Not all of them have been equally successful in their fight for freedom and democracy, but certainly none of them gave a docken for the political integrity of the United Kingdom as such.
It is at this point in the construction of my pyramid that I wish that some of us at Westminster would put less effort into trying to hang on to their say in Scottish domestic affairs and more effort into making the United Kingdom into a loyal, active and co-operating part of Europe. In fact, it is at this point that the 1375 administrative value of devolution becomes evident. In a Parliament already and for years overloaded with work, why, I ask, should we seek to hang on to the minutiae when there are greater things to be done? Why not let the Scots get on with arranging their own domestic affairs? After all, the Scots as a nation are not known for their profligacy so they should not run us all into debt. I see Scottish political devolution as a means of harnessing the energy of the Scots in Scotland. I see it as a means of giving proper scrutiny and supervision to the administration of Scotland in a proper, democratic way. After all, we have already heard it said in this debate that most of the Scottish administration has been sent up to Edinburgh, but we are still sending the watchdogs over that administration down here to Westminster. It would be good for the legislators and civil servants to work in the same capital city at last. For all these reason, I welcome and shall do all I can to help this Bill.
Nevertheless, the Bill is not without faults. Some of these faults may, if we do not correct them, be serious. That is our task here in your Lordships' House as we consider the Bill in its later stages. I should have preferred a Bill based upon a federal conception; a Bill conceived federally would have been hampered by less anomalies. We shall just have to do our best in the Committee stages to remove as many as possible of these anomalies.
It is not right at Second Reading to deal closely with Committee points. But I should like, if I can, to demonstrate to your Lordships that these anomalies exist. For example, let us take tourism—a subject which was dealt with yesterday at some length by the noble Lord, Lord Ponsonby of Shulbrede. I take the points which the noble Lord made and add to them the question: what is to happen to tourism in the Highlands of Scotland? Your Lordships may not realise that in fact tourism in the Highlands is administered largely by the Highlands and Islands Development Board. According to this Bill, tourism becomes a matter for the Assembly, but as all Highland tourism is administered and promoted by the HIDB, which does not come fully under the Assembly, one might well ask what the guidelines are going to say about the Highlands Board's tourist function, and 1376 whether the Assembly will truly be able to discharge all its duties in connection with tourism throughout the length of the land.
Another anomaly in a very small area, but one in which I have a specialised interest, is the omission of estuary limits from the Assembly's powers to deal with salmon and freshwater fisheries. Estuary limits are an important factor in salmon management and cannot simply be left out of the sphere of responsibility of an Assembly with the duty of legislating for salmon and freshwater fisheries. The diseases of fish, which are also important to salmon and freshwater fisheries, have also been excluded. I am glad to see, however, that local government will come under the Assembly. Clearly, the Assembly's first really important task will be to start an orderly progress to a single tier of local administration. Councillors and voters all over Scotland are longing for it and I for one will trust a Scottish Assembly to carry it out.
Although I recognise that this Bill has defects, and that, even if it is diligently revised and amended by your Lordships, it will probably still have defects, yet I hope that it will be enacted, and I hope it will be accepted by the Scottish people at the referendum as a first glimpse of a new era of both Scottish and United Kingdom political progress. No system of legislation and administration was ever conceived whole, perfect and immutable like a kind of political Athene chopped from the head of Zeus. All the best, freest, happiest, most democratic systems were weathered by time and sculpted by the minds of men over years and over generations. This will have to happen to the new Scottish Assembly in whatever form and at whatever stage we set it up. It will have to happen to the Westminster Parliament which will then be left and which will continue to serve Scotland the better for having been relieved of minutiae and given time more fully to tackle its great tasks in Europe and the world.
Therefore, I hope that your Lordships will give this Bill a Second Reading, not from base motives of fear of the pent-up forces of nationalism nor from a desire to hang on to power or political advantage, but so as to release the wisdom and energy of the Scottish people into the service of their own country and to start the United 1377 Kingdom once again on an outward-looking path where the qualities of the people who comprise it and the experience of the centuries in which it has been practising democratic government will be offered in the service of all the peoples of the world.
§ 3.39 p.m.
§ Lord SHINWELL
My Lords, in this debate the House of Lords has justified its existence. Speeches have been eloquent, informative, practical, some theoretical, some even philosophical. Some have been mature and some—I say this without offence—immature. Some have been personalised with abundant references to one's descent. But the debate, in spite of all the adjectives—encouraging adjectives—I would venture to use, has had one defect. Instead of, as was anticipated, its being a Second Reading debate, it has been telescoped, if that is the appropriate term, so that it has comprised Second Reading, Committee stage and Report stage—everything in fact except Third Reading—and much more reference has been made to detail than to the principle that we seek to evoke. It is, of course, the principle that really matters.
It is significant that in the course of the debate yesterday, and so far this afternoon, there have been few, if any, references opposed to the principle of devolution—hardly any. The principle appears to have been unanimously accepted. The Bill is another matter. The Bill can be revised: indeed we have been informed that that is the intention of the Opposition, and perhaps the Liberal Party will join in. I should not be at all surprised if from these Benches, and certainly from the illustrious Cross-Benches, some references are made to detail. But I repeat and emphasise, deliberately and necessarily, that what we ought to be discussing—and it is upon this issue that a decision should be taken at the close of the debate—is whether we are in favour of some form of devolution for Scotland. That is the issue. The rest we can decide during the various stages, procedural or otherwise, that will follow.
I may be asked whether I have any qualifications to participate in this debate. It so happens that quite fortuitously in the year 1918, in what was described by 1378 some as the "khaki debate", by others as the "coupon debate" and by yet others as the "Royal George debate "—have it as you like—I was a candidate. There were two special items in my election address: one was Scottish home rule and the other was prohibition. Several years afterwards Scottish home rule still remained. Prohibition, if it did not completely disappear, was somewhat emasculated, very largely because in the constituency of Dundee—I hope that my noble friend Lord Hughes will take note that it was long before his time—a man named Edwin Scrymgeour defeated the redoubtable Winston Churchill, who certainly was not a prohibitionist—by a substantial majority. Let us not enter into the reasons why prohibition was first initiated and then subsequently emasculated—
§ Lord HUGHES
My Lords, if my noble friend would permit me to intervene, as he has mentioned Dundee and the name of Edwin Scrymgeour, it perhaps has relevance to what has been said about those who support the Scottish National Party in their vote but not in their policies. When Edwin Scrymgeour was first elected prohibition Member for Dundee, the City had the unenviable record of having more convictions for drunkenness than any other city in Scotland.
§ Lord SHINWELL
My Lords, I would describe that as a most interesting and entertaining intervention, but hardly relevant. In any case I have great difficulty in hearing interruptions, so perhaps I might be permitted to proceed, otherwise I might lose the thread of my discourse and have to have recourse to notes or encumbrances of that kind.
Why was Scottish home rule advocated at the time? It was advocated long before then in fact: in the 'seventies and' eighties of the last century, particularly in the 'eighties, when Keir Hardie became an advocate and that romantic figure, Cunninghame Graham, a descendant of Scottish Kings, joined in. I had the fortune of knowing Cunninghame Graham and of having actually spoke with him on the same platform. He believed in Scottish home rule and also with independence, separation and all that followed; but the advocacy of Scottish home rule by the Labour Party 1379 in the early part of this century had nothing to do either with independence or with separation. It was a protest against what was regarded as indifference, if not oppression, on the part of those at Westminster. It was a protest against social injustice, vast unemployment, impoverishment, low wages and, in particular, indifference to Scottish prospects of industrial development—even an inability to anticipate the possibility of producing oil in Scotland. In 1923, when the Government of the lime decided to suspend financial assistance utilised for research into the discovery of oil in Scotland, I protested strongly and said that we had not touched the fringe of oil development in Scotland. I represented a constituency where they produced oil from shale, and therefore there was a personal interest. But I was right: we did discover oil in Scotland.
It was indifference and ignorance which gave rise to the protests of the kind I have mentioned, and that resulted in the demand for Scottish home rule. That situation has changed since. As to the matter of descent, if I have any qualification at all for speaking, it is very modest in comparison with those we heard about yesterday, some of which derived from association with the Union in the year 1707. I cannot claim Wallace, Robert the Bruce, Rob Roy MacGregor, the turbulent Gregerach, or any such as my ancestor. All I can claim is Moses, which is very modest by comparison. Descent has nothing to do with it. Changes are taking place in this world of ours, whether we like it or not.
Yesterday, my noble friend Lord Glenamara, who used to be Chief Whip in the other place when I was chairman of the Parliamentary Labour Party, argued that the demand for change, independence and even separation was associated with what he described as identification. People were demanding what might be called personal self-determination. That is how I would interpret his words. But it is nothing of the sort. The revolt of the Basques in Spain has nothing to do with self-identification: it is a form of protest against oppression. The same has happened elsewhere. Recently, even the Isle of Man almost threatened to secede because 1380 we had revolted against the use of the birch on juvenile delinquents.
The demand for Scottish home rule is based on a simple, inescapable fact. Never mind about the details; leave them aside for the moment. I want to speak about the principle. The demand for Scottish home rule and devolution is based on the simple, inescapable fact that Scots, whether in the North, the South, the Highlands, the Isles or wherever it may be in Scotland, are dissatisfied with Westminster. So have I been. So have many here—so have many in the other place, for many years. That is why the Scottish Grand Committee was created. That is why the noble Lord, Lord Home of the Hirsel, and many others who were Members in another place, have played their part.
Even in this assembly of ours, how often have I been frustrated and horrified, day after day, night after night, on Scottish Bill after Scottish Bill, dealing with matters in which we are not in the least interested. There has been Scottish divorce reform, Scottish this, Scottish that and so it goes on. If it had only been Scottish whisky all the time, it would not have been so bad. But that is what we had to deal with, and I often wondered why we were engaged in debating what, so far as we were concerned, were details and trivialities, however important they may have been in the eyes of the Scots.
"Take them up to Edinburgh, to St. Andrew's House". That is what I used to tell them in another place, when they were complaining about Westminster's indifference to Scottish affairs. I asked, "Why don't you go to Edinburgh on a Friday instead pretending that you are working hard in the interests of your constituents and that you are getting thousands of letters every week, when some of you are getting only half a dozen? Why don't you go up to Edinburgh and discuss Scottish affairs? "They would not have needed to talk about an Assembly. There was an Assembly. There is no need to discuss the details.
Let me take this matter of an Assembly. This is not the Committee stage but, when the time comes, if there is a Committee stage, I hope that I may be permitted to take part and express views. It is about the only Committee point that I want to 1381 deal with. There may be another, but this is one. What is to be the function of this Assembly? What is it to do? What are its powers? Will its powers equate with the powers of a Cabinet in London? Will the powers and responsibilities of the Civil Service, associated with the Assembly in Edinburgh, equate with the powers, responsibilities and authority of civil servants in Whitehall? We want to know.
Why this Assembly? All they had to do, when they decided to reform self-government in Scotland a few years ago in order to create regions such as Strathclyde and the rest, was to nominate a chairman, a vice-chairman and a member from each of those regions, then form an executive in Edinburgh to deal with Scottish affairs. It is as simple as that. It did not require all this fuss, this rigmarole, this hullaballoo, this confusion and all the rest of it.
I could go on talking about these matters but I defer, because there are reasons. Other speakers are coming along. I just want to deal with what is, after all, the crux of the problem. Are we to accept an Amendment which means—what? In the eyes of the Scottish people and in the eyes of every elector in the country—in England, Wales, Scotland the Isle of Man, the Isle of Wight or wherever it may be—it will mean opposition to the principle of devolution; not to the Bill itself, but to the principle of devolution. We cannot afford that. Devolution is inescapable and inevitable. It depends on the form. We have powers vested in us to deal with that.
It is all very well to indulge in logic and forensic arguments—which some of us find ourselves incapable of following, because of our lack of education—by learned gentlemen associated with the law, however illustrious they may be; and they are illustrious, and nice things could be said about them. In this matter of devolution and the demands which the Scottish people (whether they are the Scottish-Irish in Glasgow, the real Scots in the North or the mixed bunch in Edinburgh) are making, this would be a case against devolution. We must not allow this to happen because devolution is essential.
How are we to deal with the Bill? I have said that the House of Lords has justified its existence by the nature of 1382 the debate, which has been one of the most informative and best debates that I have ever heard in this House. A man can be proud of being a Member of such a forum. I will not say that it is composed of intellectuals, for I do not want to insult anybody. A man can be proud of taking part in a debate of this kind, and of offering a modest contribution. I venture a word of advice. I do not entirely agree with what the noble Earl, Lord Ferrers, said yesterday. He condemned the Bill root and branch, hook, line and sinker, and all the rest of it, then said "Do not vote against it." Of course, we must not vote against it, but not because we are afraid of the other place.
Here, may I speak for a moment about the constitutional issue? I understand, or so we have been told, that the constitutional issue is this: we have been told that once a Bill has had its Third Reading and been passed in the other place, it would be quite improper and not be the right thing for us to oppose it. To me, that is just a lot of nonsense, and I shall tell your Lordships why. If there is something wrong with a proposition that comes from the other place, if we really believe fundamentally that it is not the kind of proposition that we should accept, if we believe it to be injurious to the well-being of the people of our country, if we believe it to be faulty and defective in many respects, then we ought to oppose it and damn the Constitution! Or are we to accept it for political reasons? Ah, now politics have entered into the question.
I am told that one of the reasons why the Labour Government which I support have decided to initiate this measure is that they are afraid of Scottish voters; it is a matter of political expediency. What a horrible thing to do, to indulge in political expediency! Well, well! One ought to ask some of the ex-Ministers and Prime Ministers who sit in this House—the noble Lord, Lord Home of the Hirsel, for one, an honest man if ever there was one. I have sat beside him. I was a Cabinet Minister and I am fully acquainted with what goes on. Without political expediency not one of us would be here. The Labour Government are quite right to use all the political expediency they can. If you do not have Members to support you in the House of Commons you have got political expediency, whatever it 1383 happens to be. You must use all the political expediency that you have got. I could write a book about political expediency; it would be a best-seller.
Therefore, my advice to the noble and learned Lord, Lord Wilson of Langside—I say this as one who speaks with all the experience that quite accidentally I happen to possess—is that the sensible thing to do is to withdraw the Amendment. If the Amendment is not withdrawn my advice to the House is to oppose it—not so much on behalf of the Labour Government as on behalf of Scotland and unity in the United Kingdom. There have been threats about the Scots rising in their wrath, drawing their dirks out of their kilts, and getting really angry with us. What a threat! We have to face other threats. Soviet aggression is a threat. Juvenile delinquency is a threat. Sometimes people say that the TUC is a threat. There are all kinds of threats. Is Scotland to be placated, because of Mrs. Ewing? She is, of course, a very charming lady. But charm is not going to help us. So my advice is that we must accept the Bill in principle because it contains the element of devolution, and that then we should deal with it as we think fit and send it back to the other place with all the improvement we can contribute. That is my advice, and I hope it will be accepted.
§ Lord HUGHES
My Lords, before the noble Lord sits down, would he concede in favour of the Amendment that, had it not been there, it is difficult to conceive that we should have heard from him such a splendid speech?
§ 4.4 p.m.
§ The Duke of BUCCLEUCH and QUEENSBERRY
My Lords, it is with all humility that I seek your Lordships' indulgence this afternoon for my maiden speech. Noble Lords, I know, have come here for different reasons. I believe that certain noble Lords will think that I have come here for the worst of reasons. To me, it is for the saddest of reasons, namely, to replace my father, for a finer man I can never again expect to meet. My father had many friends in this place; he had wide interests and great wisdom, but his modesty was such that he confined his contributions in this House mainly to matters of forestry, a subject upon which he was an unrivalled 1384 expert. I hope that in due course I may be able to carry on some of his good work in this field.
I feel that I owe your Lordships an explanation as to my four years' silence. First, may I say that having spent 13 years in the other place, where I spoke a good deal, I thought that for a while there would be no harm in keeping my own counsel. Then there were personal and private reasons with which I shall not bore your Lordships and, finally, a reason with which I will; namely, that when I was contemplating my maiden speech in the other place I was offered some very good advice by the then Deputy Speaker, now Lord Kilmany, to the effect that I should wait until I was bubbling. However, he did not appreciate that, unlike himself, I am not the bubbling kind.
It was only when I found that the long Summer Recess was approaching that I felt I must do something about it rather than wait until November, by which time my constituents would almost certainly have thought that I was dead. That is not a risk which any politician likes to take, however true it may nearly be. Not having any constituents now, I decided to wait until I was bubbling. The Bill with which we are dealing this afternoon does indeed provide one with just that opportunity. I listened to many of the 43 splendid speeches which were made yesterday, when noble Lords bubbled to a considerable extent, with great brilliance. I am sorry to say that, due to a delayed aircraft, I missed the beginning of the debate. However, I listened with great interest to the comments that were made.
May I preface my remarks on the subject by saying that, like the great majority of Scotsmen, I am a Scottish Nationalist in my heart but a British Nationalist in my head. I hope that, more often than not, one's head will rule one's heart. I agree with so many speakers that the idea of the break-up of the United Kingdom is quite abhorrent.
There are two major points which I should like to touch upon this afternoon. I shall try my very utmost to keep to the rule of being non-controversial, although on a subject where passions run high almost the most innocent comment is bound to cause offence and to be seen as controversial somewhere. The first of 1385 the points which I should like to touch upon is the need, as I see it, to reassess the causes of Nationalist feeling in order to be certain that we are finding the right and the best means to prevent a break-up of the United Kingdom. Secondly, may I suggest with all humility that constitutional changes or innovations should take place only as a result of a comprehensive master plan and not by piecemeal tinkering.
The first of these points is the reassessment of the causes of nationalistic enthusiasm. It worries me considerably to think that there are many who fall into the error of assuming that it is a spontaneous and unprovoked phenomenon, instead of which I believe it is the inevitable consequence of a clearly identifiable chain of events. This is not the first time that there has been an upsurge of nationalistic feeling in Scotland. The noble Lord, Lord Drumalbyn, referred yesterday to a particular example, and there were others before it. I absolutely understand the Government's dilemma. I understand why they should feel that they could not allow the situation to go on drifting and that they had to do something, although, of course, it is regrettably easy to do the wrong thing. I can see why the Government would be reluctant to accept my own diagnosis which I hope to put forward as to the reasons for nationalistic desires. I believe that I can be non-controversial when I mention that the ideas on Assemblies from both the Conservatives and the present Government have somewhat similar parents. I believe that the mother was misappreciation and the father expediency. We have heard a certain amount about that in the last brilliant exposition of the noble Lord, Lord Shinwell.
However, the great question is this: will an Assembly, as we see it emerging, make break-up more or less likely? I believe that the great majority of Scotsmen are much less concerned about where Government sits than about whether they get good or bad government. An Assembly will no doubt produce greater quantity of government, but can we be sure it will produce extra quality. I am very worried indeed that it might provide short-term consolation but long-term confrontation.
The root cause of Scottish nationalism is without any shadow of doubt (again 1386 Lord Shinwell mentioned this) dissatisfaction with Westminster—dissatisfaction, disillusionment, cynicism and the feeling that you must try to break out from it. The reasons, I believe, are not hard to find by looking back at the chain of events of the last 24 years or so. We have had 12 fat years and 12 lean years. The first 12 fat years lasted until about 1965, and during that time there was an unprecedented degree of progress towards all the things that everybody seeks to achieve in the way of higher living standards all round, full employment, growth of the national economy, only moderate inflation, a reasonable trade balance, a stable currency and reserves. Then we had 12 lean years, and I would quickly point out that in my non-controversial maiden speech I apportion no blame, because we all recognise that there has been a world recession which has not made life easy for anyone. But the fact remains that there was a reversal of this progress. We had devaluation, inflation increasing, unemployment increasing, periods of squeeze and freeze. And the important point which I believe we should note from this is that in the 12 fat years, the halcyon days of Macmillan and Home, and the good influx of Scottish blood in the Cabinet too at that time, the SNP support and enthusiasm was almost negligible.
I believe there is a contributory cause which coincided with this. In the early 1960s there started a most remarkable knocking campaign, and this knocking campaign portrayed all the usual appearances of success in life as being thoroughly bad; success was portrayed as dishonourable, affluence was immoral, profit was a dirty word, the establishment and sacred cows all came under attack. The satirists in the media had a marvellous time; television was fairly new then, and there were superb and enjoyable programmes like, "That was the Week that Was". All of these contributed to a major knocking campaign and all the many things which everybody held dear started to vanish. Our railways started to be axed; the currency was mashed up and decimalised; local government was turned upside down, and in Scotland provosts were abolished; reforms of this place were attempted. Even the clock did not escape the attack. I am sure some of your Lordships who live to the North will 1387 remember how we were inflicted with having to stay in the dark till 10 o'clock in the morning, thanks to the way in which the time was changed.
At that time in a debate in another place which I initiated on development districts I warned of the growing feeling of UDI, and this was in the early days when nationalism was just beginning to get going. But with the combination of knocking and the 12 lean years I think it is hardly surprising that so many Scots should conclude that if the Tories were bad and the Socialists were worse there must be something different they could try by way of doing it yourself. Formerly economic restraints, the knowledge that in Scotland we took more from England than we gave to England, tended to discourage people from seeking separation.
I wonder whether I may refer to a very great and distinguished Scotsman, the husband of the noble Baroness, Lady Elliot of Harwood, whose speech I so greatly enjoyed yesterday. Many years ago he warned us that if we became independent the thistle instead of being our emblem would become our diet. I think he was quite correct there. Since then, of course, oil has been discovered, and many people in Scotland naturally have thought, "Hooray, now we do have the resources to afford to go it alone". But as the noble Earl, Lord Lauderdale, so rightly pointed out yesterday, not only is it likely to be used up in a couple of decades' time, but also much of it belongs to Shetland, which does not want to be independent, and quite a lot of it is within English coastal waters.
I would suggest, my Lords, that even if Scotland did become independent, Scotland would still be dominated by the English Treasury, and by being independent we would have virtually no say whatsoever as to what the Treasury did. I think probably Ireland is an example of a country which is partly dominated by the British Treasury. Much of Irish trade and support for agriculture depends upon us, and yet they have no say in what goes on at Westminster.
I believe that the remedy is that we Scots must somehow be convinced and assured that it is perfectly possible to return to the kind of progress that we 1388 were enjoying in the 12 fat years. I think my noble friend Lord Glenkinglas was quite right yesterday when he mentioned that we in Scotland seem to have lost our way; we are needing leadership to show us a sense of purpose and destiny and hope, to drive off the sense of despair that is fuelling the demand for separation. It is just possible that an Assembly might provide sufficient consolation in the short-term until we get on the move again; but I am anxious that we might find ourselves being panicked into a measure which might be deeply regretted later.
If I may now turn briefly to the other major point, the question of constitutional changes and innovations, the noble Marquess, Lord Linlithgow, mentioned this matter yesterday in a most interesting speech, and the noble Lord, Lord Campbell, in his opening speech this afternoon made a very inportant point on the subject. I should like to suggest with all humility that such changes and innovations should be tackled only as part of an overall masterplan, because each individual strand of Government is, or should be, closely related to the others. Piecemeal tinkering is, I believe, dangerous.
One does not know what may happen in the future, and it is so easy to find spur of the moment reasons for doing various things. We have examples in the not too distant past where reforms have been undertaken with each one in isolation from the other. There was the attempt to reform this House. There was the reform of local government. The noble Earl, Lord Minto, with his great experience in local government, pointed out the problems there. Now we have the devolution Bill, the Assembly Bill, and, of course, there has also been the question of our entry into Europe and the election of Members to serve there. All of those reforms and measures are apparently unrelated to each other in the way in which they have been carried out.
The last Constitutional Committee had a fairly narrow remit. I should like to suggest that the time has arrived for a new high-powered all-Party council comprising some of the wisest and most respected people in the land who can advise on constitutional changes. It might, perhaps, be chaired by somebody of the calibre of His Royal Highness the Duke of Edinburgh and comprise some 1389 superb ex-Party leaders and ex-Prime Ministers, some of whom may shortly be running out of memories for their memoirs and are able to provide time for such an important function!
I believe that there is a case for having a committee or a council which can advise Governments of the day when they are seeking to carry out a reform, in order to ensure that all reforms are tied together as part of a single package. I am not simply trying to be wise after the event, because in about 1967 I submitted a paper to the Conservative Whips' Office on this very subject, and also at the time of the last attempt to reform the House of Lords I introduced the Parliament No. 4 or No. 5 Bill which sought to provide a two-thirds majority before constitutional changes could be made. That, I believe, is standard in many countries and constitutions throughout the world, although it does not apply here. I urge noble Lords to give consideration to those points, because I believe that they go to the very heart of the problems that we are facing today.
As regards any vote tonight, I must confess that I intend to abstain on the grounds that I, too, feel that, having got so far, we should now leave it to the referendum to decide. I am sorry that the referendum will not include the question: "Do you want to be independent or not?", because I think that that would help tremendously to clear the air. I apologise if I have been over-provocative, but I hope that my comments will be seen as an attempt to be constructive, if critical. As my contributions are infrequent, I hope that by speaking for longer than I should your Lordships will forgive me.
§ 4.23 p.m.
§ Lord WILBERFORCE
My Lords, it is an extraordinary piece of good fortune and a very great privilege that it should fall to me, simply by the luck of the draw, to be the first to congratulate the noble Duke, the Duke of Buccleuch, who has just spoken, upon his maiden speech. I feel absolutely certain that all of your Lordships greatly appreciate the effort which he has made to come to this House and to give us the benefit of his experience both in politics and in Scottish life. In spite of the words with which he concluded his remarks, I hope that all noble 1390 Lords will join with me in expressing the hope that, in spite of the by no means undue length of his speech today, the noble Duke will often favour us with other speeches.
§ Several noble Lords: Hear, Hear!
§ Lord WILBERFORCE
My Lords, I shall net be very long on my feet this afternoon, because I am sandwiched between two maiden speakers and quite obviously noble Lords are anxious to hear my successor. However, if one thing can be said about this debate it is surely that it for once has not been a lawyer's bonanza. Noble Lords have been discussing during the last day and a half many great questions of history, politics and economics which arise in connection with the Bill, and quite rightly so, because the Bill raises great issues of that kind. However, I do not think that any apology is needed for spending a few moments—and it will be only a few moments—on legal and constitutional arguments which, in the medium and long term, may turn out to be of vital importance, however modest and technical they may seem to be at present.
One has only to consider the impact of a few words in various Constitutions on, for example, Canadian life from words in the British North America Act, or on Australian life from a few words in the Australian Constitution, to see what problems may arise. To take one example, there are few truck drivers in Australia who, when crossing the line between one State and another, do not mutter to themselves "Section 92", usually prefacing a reference to that section with an affectionate epithet constructed from a four letter word! That is a fact of life—a few words well designed or misplaced may enormously affect the commerce, the ordinary life and the development of a country.
As regards devolution to Scotland, I believe that the same is very true for two reasons. First, there are certain to be—and I think that "certain" is not an exaggeration—politically sensitive disputes between the Scottish Assembly and Westminster. As Scottish aspirations rise—as they certainly will—in the working of the new regime, and particularly if there is a difference in Party, as there may well be, between the governing majority in the 1391 Assembly and the Secretary of State at Westminster, there will be need for a firm, impartial and effective arbiter between the two which can only be a judicial arbiter. That arbiter must—this is elementary but essential—be kept completely out of politics. Secondly, if, as many believe, as I do, this is only a beginning and there is bound to be a move in the direction of increased powers for Scotland or possibly even towards a federation, the framework which we establish now must be capable of accommodating those changes. We must get it right now, because in the light of the way that we do things once we are committed to a course, corrective change is extremely difficult to put through in practice.
My noble and learned friend Lord Scarman gave us yesterday a brilliant sketch of what the Bill provides in the way of judicial review. I certainly shall not repeat what he said. However, I want to draw attention, if I may, to some of the points which I think may have to be discussed here at later stages if the Bill is to work. I shall discuss them now only in very general terms and not in detail.
I turn to judicial review of the Acts of the Scottish Assembly or of subordinate Acts. If we want a review of Scottish legislation to be undertaken—and I think that we all do—it ought to be done in the interest of preserving the balance between Scottish autonomy, on the one hand, and the unity of the United Kingdom on the other hand. That point was put so well yesterday by the noble and learned Lord on the Woolsack in his opening speech that I need not expand upon it. We have, and since the Act of Union we have had, a United Kingdom court—the House of Lords which since 1877 has worked through the Appellate Committee of the House of Lords on which there sit two Scotsmen, sometimes a judge from Northern Ireland, and almost always, bless them, the Welsh.
The Judicial Committee which is the mechanism provided in the Bill for review is not a United Kingdom court. It is a body with judicial functions which advises Her Majesty as to matters arising in the Colonies, the Channel Islands and concerning independent members of the Commonwealth, in none of which categories Scotland would claim to fall. It is 1392 not a United Kingdom court. It does not, except very rarely, apply United Kingdom law. But under the Bill, when reviewing Scottish legislation for its compatibility with what Westminster has decided, it would presumably have to do this. That brings us up against the fact that the highest authority on United Kingdom law is the House of Lords.
As I think most noble Lords know, since 1933 the Judicial Committee has had a power to deal with what are called "special references". Under this power it has dealt with a large variety of matters—for example legislation in Jersey, the powers of the Executive in Guernsey, the relative powers of the Chambers in Queensland and, most recently in your Lordships' memory, the Mac Manaway case. Therefore, it can be said with some justice that it is not an unsuitable body to advise on the validity of Assembly Acts. Moreover—and I think that this has played a part in the selection of the Judicial Committee as the revising organ—there are some who think that it may form a better basis from which ultimately, and in due time, to develop a constitutional court for the United Kingdom generally, or perhaps a Federal Supreme Court, if we move towards federation. There were reflections of this in the speech made by my noble and learned friend Lord Scarman.
I am not entirely impressed by that argument. It would seem to me that the House of Lords in its judicial capacity is just as well adapted to perform that function as the Supreme Court does in Canada and in Australia, not to mention the United States. It may be better adapted to perform that function because of its fixed constitution laid down by Statute, the Judicial Committee being, as I think your Lordships know, a floating body with a large number of persons not often called upon to sit, but at any rate not a definite body the composition of which one knows in advance. This is a delicate subject which I shall not expand on now, but about which we may have to think later on.
If the House of Lords is not the better body, or the best body, to form the nucleus or the starting point of a constitutional court, could we not think here and now of setting up a true constitutional court, which in due time could do for 1393 England and Wales what this Bill contemplates for Scotland? I know that that is a bold step, and it is probably too bold at the present stage; but it may be one about which it is worth thinking, and it might not be such an alarming step if we really faced the way in which it could be taken.
In the end, like my noble and learned friend Lord Scarman, I am on the whole at present in favour of the Judicial Committee of the Privy Council having pre-enactment jurisdiction; but equally I do not think that a decision in favour of the validity of a Scottish Assembly Act should be conclusive when there is litigation in the courts between one subject and another. Advice to Her Majesty that a Bill is contrary to some provision in United Kingdom law is one thing, but a decision in contested litigation between A and B is another. At present I do not believe that the one should be binding in the other case.
As to post-enactment jurisdiction I shall say very little at this stage. It is obvious that this is a matter which will have to be debated in Committee. At first sight it looks as though it ought to be left to the ordinary courts of England, Scotland and Northern Ireland to decide devolution issues as they arise between the citizen and the Executive or between citizen and citizen, in the case of England and Scotland in civil matters the ultimate authority being the House of Lords acting judicially. The case for the Judicial Committee performing this task is, I suppose, to ensure uniformity with pre-enactment decisions. But I think that the ordinary courts could do that; and, after all, to be realistic, it is a fact that the decisions in either place are likely to be taken by the same five old gentlemen Members of the House of Lords Appellate Committee simply sitting in a different place. However, perhaps that is an irreverent thought.
Therefore, unless the Scots really want the Judicial Committee—and I can see that there are reasons for which they may want the Judical Committee (and we shall hear the reasons from my noble and learned friend Lord Fraser of Tullybelton later on); for example, reasons to do with criminal appeals—at present I would rather favour removing the Judicial Committee from the hierarchy in decision 1394 matters in normal post-enactment litigation.
I have said enough at this stage, but I would add two brief points. First, what I have said represents entirely my personal views. I do not speak for my colleagues and I know that there are differences of opinion among us. But I certainly can speak for all the legal Members of this House in saying that our united desire, both in these debates and afterwards in the working of the Bill—if it becomes an Act—will be to make the Bill work harmoniously in the interests of both Scotland and England, remembering that it is not just concerned with the scrutiny of subordinate legislation, like legislation of a county council, but with constructing a framework for the whole constitutional development of our country.
§ 4.37 p.m.
§ Lord FRASER of KILMORACK
My Lords, in rising to address your Lordships' House for the first time, I hope that I may also receive the indulgence which your Lordships customarily and generously give on such occasions. Perhaps in some ways I need that indulgence more than most, because although I first came to your Lordships' House after a relatively close and 30-year long connection with politics, I also came without the great benefit of a previous stint in another place. Equally, for 25 years before coming here I was a generalist rather than a specialist. I was expected to know a certain amount about a large number of matters and not necessarily very much about any one, which is not, if I may say so, the best possible qualification for addressing this exceptionally expert and specialist assembly.
Before I say any more I should like most warmly to congratulate the noble Duke, the Duke of Buccleuch and Queensberry, on an outstanding maiden speech. If I may say so, he has set a very hot pace for the "maidens" this afternoon, as if we did not in any case have a good deal of competition already from that notable stayer, the noble Lord, Lord Shinwell. Maiden speeches are customarily brief and non-controversial. I think that I can be brief for two reasons: first, because over the last two days we have already had a long and admirable debate covering a very wide range of 1395 subjects; equally, brevity to some degree is under one's own control. Controversy is a little more difficult as the noble Duke, the Duke of Buccleuch and Queensberry, has said, because, although it takes two to make a quarrel, in a sense it needs only one to make a controversy. I shall do my best on controversy—I certainly intend to produce light rather than heat—but I apologise in advance if at any stage my remarks strike a harsher note than I intended.
In terms alike of heredity, environment and experience I think I am bound to have views on this Bill and the background to it. On my father's side I am a Scot, and indeed a Highland Scot—a pure Highland Scot, if that is not a contradiction in terms—going as far back as I think it is either possible or profitable to look. On my mother's side I am a continental European. I was brought up and went to school in Scotland. I went to university in England, and I have been domiciled in London for the last 30 years. I normally go to Scotland several times a year. I have business interests, relations, and friends there. Inevitably I therefore look at this issue not necessarily in a very clear-cut way, but I feel that I have an interest in it in a number of directions and look at it from a variety of angles, and on a number of issues.
In considering this Bill and the background situation which has given rise to it, I start from the basic premise that I am against separation, or any real move towards separation, and I am in favour of the maintenance of the Union. At the other end, I am not terribly satisfied with the status quo, but, as I shall mention a little later on, I do not think that any weaknesses in the status quo are particularly due to constitutional matters. I think such weaknesses as exist lie in other fields, as I shall enlarge upon in a moment. Within those two parameters, therefore, of no separation, on the one hand, and the status quo, on the other, I am, I feel, very open-minded on the question of some devolution. I was very interested in the arguments in these areas put forward in yesterday's debate by the noble Lord, Lord Hughes, and by my noble friend Lord Home of the Hirsel, as Scots living in Scotland.
1396 Of course beyond that I feel that if enough Scots, or enough people living in Scotland, definitely know what they want and want some devolution, then it seems to me that they have a right to obtain it. There is, of course, room for argument as to what constitutes enough Scots, or indeed people living in Scotland, in that context. There is room for argument too, I feel, on the form, timing and details of the changes proposed and on their impact on the rest of the United Kingdom. Having said that, however, I must confess that, though a man of sanguine temperament tending, despite my origins, towards a certain optimism, I feel uneasy about a number of aspects of the background to this Bill and about the Bill itself.
Being a Conservative I naturally approach the whole thought of constitutional change with caution. I believe ideally that constitutional changes should be infrequent that they should not be used for the solution of short-term problems; that they should, so far as possible, arise from a genuine and broadly-based consensus of view, and that before they are undertaken there should be near certainty—as near as is possible in human affairs—that they will be a distinct improvement on what has gone before. Their objective should be clear and widely understood. They should be, if I may use the phrase and it means anything to others—as it does to me—long jumps rather than high jumps. They should make real and lasting progress if possible, and there should be nothing marginal about it. The situation with which we are faced seems to me at present to fall very far short of those ideals.
That is the first point about which I am uneasy. I am also uneasy because this move means the addition, certainly to start with, of a further tier of government in Scotland when we are already suffering from too much government—and that is not a Party point, I would apply it to any Government. We are seriously over-governed at the moment. We seem now to need more people to supervise the taking in of our own washing than we needed, not all that long ago, to run a third of the population of the world. While "government without tiers", if I may put it that way, is probably an unrealisable dream, I see no very good reason, and it seems a pity, to add to an already unfortunate situation.
1397 Again I am uneasy because, in a way, we seem to be going against the tide of history and to be contemplating splitting up into smaller political groups at a moment when many other people, and we ourselves in another context, are forming larger political groups. However, I am a little less worried about this than the other tendencies to which I was referring earlier because—as a number of noble Lords mentioned yesterday—in fact the spirit of the age seems to be moving in both directions at the same time. Big is often better, but small is beautiful. And there is something in this, certainly I believe in industry where I am rather in agreement with the recent trend towards both larger groups and smaller units and profit centres within those groups.
The final, and much the most profound cause of my unease, lies in the likely balance between expectation and realisation. I really am worried that my fellow countrymen are attaching expectations to constitutional change that no constitutional change, however successful, could ever satisfy. The inevitable disappointment of those expectations will, I fear, in time all too easily lead further in the wrong direction. Many of the frustrations that are felt in Scotland today are, to my mind, not very different in kind from those presently felt in other parts of the United Kingdom. They are the product not so much of any constitutional breakdown, or shortcoming, but are rather the effect of a national rearguard action continued too long, and 20 years or so of what I would call "a slow-handclap period", when there has been all too little to cheer about.
It is only economic and social change, and economic and social achievement rather than constitutional change, that can, I believe, remedy this, together with the adoption of a fundamentally different national mood. Much has already been said in this long and important debate about the Bill's deficiencies and the amount of detailed scrutiny and, hopefully, change that it requires. With much of this I agree, and I shall not weary your Lordships with further repetition or development of the argument. It will be evident from the broad points of unease that I have mentioned, and which apply equally to points of detail raised on the Bill, that it would not be possible for me to give an enthusiastic welcome to this 1398 Bill. On the other hand, having reached your Lordships' House, I believe the Bill should be examined here in detail. I therefore hope, with the noble Earl, Lord Ferrers, that the Amendment will not be pressed.
Whatever the future may hold in store, I believe that detailed scrutiny in your Lordships' House is the best practical and immediate course. Not only will that hopefully improve the Bill, within its inherent limitations, but it will also provide an opportunity of taking the arguments to a wider audience and so achieve at least a greater understanding of the issues.
As your Lordships' House braces itself, as I hope it will, for this task, may I commend as a suitable background text for future deliberations the following relatively little known words of Sir Winston Churchill in what I believe was his last speech at a General Election; a speech to the electors of Woodford. He said:To build may have to be the laborious task of years. To destroy can be the thoughtless act of a single day.Thank you very much.
§ 4.50 p.m.
§ Lord THOMSON of MONIFIETH
My Lords, it was only recently that I made my maiden speech in your Lordships' House and I therefore understand the feelings of both maiden speakers to whom we listened with such pleasure this afternoon. It is a great privilege for me to be able to speak immediately following them and to congratulate them most warmly on their speeches.
The noble Duke, the Duke of Buccleuch, was a colleague of mine for many years in another place. All noble Lords will have admired his courage and I know I speak for the whole House when I say we hope that, now he has made his maiden speech, he will feel tempted to play the same distinguished role in this House as he did for many years in another place. Equally, the noble Lord, Lord Fraser of Kilmorack, brings to this House a unique and, I should have thought, very necessary body of political experience from the inside of one of the great political Parties of our country. I did not wholly agree with all his conclusions, though, as I shall explain, I agreed with much of what he said in his extremely thoughtful speech and we look forward to hearing him on many future occasions.
1399 I apologise for not being able to be in the House yesterday to hear the first day of this important debate. I had an enforced absence, which I hope will be excused, in Scotland, but of course I have read carefully in Hansard the speeches that were made. I am conscious of the fact that I am speaking here for the second time in two weeks on a constitutional matter related to Parliamentary Assemblies and I must immediately confess that I cannot claim the same sense of certainty about the merits of the present Bill as I was able to feel about the merits of the Bill for European direct elections, on which I spoke last week. I was reminded that somebody once said rather enviously about a speech by the late Dick Crossman in another place: "I just wish I were as certain of one thing as Dick Crossman seems to be certain of everything". I have a fair degree of certainty about the European Assembly but I am less certain about this Bill. I am certain about the importance of sustaining the Union in this country. After all, these days I spend a certain amount of my efforts trying to create a political union in the European Community, so how could I be for the breaking up of the political union here in the United Kingdom?
I am equally certain about the need for democratic devolution of decision-making, not I hope for short-term political or electoral reasons, but because I think that need is deep in the nature of the times in which we live—and I will say a little about that later. What I am not so certain about, however—I should admit this right at the beginning—is how to combine those two things. In his opening speech the noble Lord, Lord Campbell of Croy, rightly said that this was the biggest constitutional change inside the United Kingdom that had been proposed since 1707, and that it was being proposed at a time when it was surrounded by very great risks. The conclusion I have come to is that the contents of the Bill—I do not speak of the details but of its basic concept—seem to me to be the least of the risks that face us.
We must remember that it is not only change that is a risk; no change can be a risk. Although my noble and learned friend Lord Wilson of Langside has performed a service to the House by 1400 provoking this debate and providing a focus for it, I have come to the conclusion that the status quo is a greater risk than the kind of change proposed in the Bill. I must say that, so far as I understand it, the policy advocated from the Benches opposite—a policy of delay; indeed, one could call it drift—is very nearly as great a risk as that. For those reasons I support the Bill.
My view about this is based on two fundamental facts as they seem to me. One is an historic fact. It is the fact that the political union in this country represented by the Treaty of 1707—the Union of the Parliaments—preceded the great economic union—the Industrial Revolution. Therefore, we created throughout the United Kingdom a single, integrated, interdependent economy. I think we would break that up by political means at our peril. Of course one can break up anything if one is determined enough and self-willed enough to do so. No doubt one could conduct some sort of surgical operation on the integrated United Kingdom economy. I suggest that if one intends to engage in surgery one should generally do it very reluctantly, and I certainly do not like a surgeon whose motive seems more than anything else to be greed.
After all, if one asks—and I ask myself—what is the major reason why this problem comes before us in the way it does?—the answer is of course Scottish oil. The economic union which followed 1707 was of great benefit to Scotland over a very long time. In the 19th century, Scotland led in the Industrial Revolution. Then Scotland suffered many difficult economic problems in the 20th century. But I do not think they were particularly different from some of the problems of Wales or the North of England; they were problems of the development of the British industrial economy. Speaking as a Scot, I am not happy that it is only when oil is discovered that the momentum for possible separation takes place.
The second fact, as it appears to me—it is a contemporary and not an historic fact—is that the interdependence which has grown up in the United Kingdom over a couple of centuries is now gathering momentum in the Western industrial world as a whole, and I am particularly conscious of the fact that we are now 1401 part of an increasingly interdependent European Community economy. I think the growth of that interdependence of the Western industrial world, with its peculiar intensity in the Community of which we are now a member, brings about what I would regard as a natural reaction. People react against bigness in government and bigness in business—the great multinational corporations—and there is a search for preserving a sense of identity, a search for roots.
As a Scottish politician, I have always been a devolutionist, long before I was a Member of either House of Parliament, but never a nationalist. My experience in the European Community in recent years has underlined for me, on the one hand, the suicidal nature of the policy of nationalism, but equally I have registered—perhaps I registered it particularly with my responsibilities for regional policy in the European Community—that the kind of problems we face in this country and in this Bill are not unique to this country. They are part of a ferment that is taking place in most of the developed industrial societies of the Western World and certainly in many of our neighbouring countries in the European Community.
The truth of the matter, in my view, is that what one should be seeking to do in the contemporary world—what we should be seeking to do in our situation in Western Europe—is to delegate some decision-making upwards to a Community level (what we were discussing in this House last week) and, equally, delegating other aspects of democratic decision-making downwards to some democratic Assembly different from this national Parliament. In that sense—it was one point where I dissented from something that the noble Duke said in his maiden speech; he said we should be looking at these things in a more coherent way and not in an unrelated way—I find nothing unrelated about the Bill we were discussing last week and the Bill we are discussing today.
Putting it personally, like others who have spoken and who come from the northern part of the United Kingdom, I feel a Scot by nationality; I am British by citizenship and I am proud of it and want to remain British. Equally, I think it is important that one should try to create an additional sense of citizenship at the 1402 European level, and I see no inconsistency between these three things. One of the great and difficult tasks of statesmanship, not only in this country but in other countries, is to strike the right kind of balance between these considerations. In calling for delay, the noble Lord, Lord Campbell of Croy, castigated the Government for putting the Bill before the House ill-prepared. There may be many things said about the Bill, but I can hardly think that lack of preparation can be one of the criticisms of it. Indeed, it may suffer from excessive gestation.
At the moment I do not wish to speak about some of the details of the Bill, which I wish to reserve for discussion in Committee. But the conclusion I have come to carefully, though not with tremendous enthusiasm, is that the Government have got it about right, and I shall certainly support the Second Reading of the Bill.
§ 5.1 p.m.
§ Lord BEAUMONT of WHITLEY
My Lords, I should like to join in congratulating the two noble Lords who made their maiden speeches today. It was a cause of some sadness to me that I was not able to hear the speech of the noble Duke, the Duke of Buccleuch and Queensberry, owing to my attendance at a committee meeting of your Lordships' House, but I shall read it with interest in Hansard; and I was much impressed with the speech of the noble Lord, the Lord Fraser of Kilmorack. I myself have something of the feeling of making a maiden speech at this moment. I have often made speeches in your Lordships' House which have not obtained majority approval. It is very seldom that I have had to make one for which I felt I should not have even the approval of my noble friends around me, and which leaves me looking rather wanly into the Western mists in the hope of spying the noble Lord, Lord Belhaven and Stenton, who I think is the only person in your Lordships' House who actually agrees with me on this subject.
What I want to speak in favour of involves that terrible word which has been condemned for so much: I want to speak in favour of separatism. Of course separatism is a decision for those who want to separate—those who wish to break away. In the first place what we 1403 are talking about is a Scottish matter. It may be said that it is not for an Englishman to suggest what Scots should, or should not, do, but I think that, as politicians—those of your Lordships who are politicians—we have a duty not just to respond, but to try to lead, and I see advantages all around for separatism, not just for Scotland, but for England, and for Europe.
For a long time, I went along, as your Lordships can well imagine, with my noble friends on these Benches in their desire to see a federal Britain. It seemed to me a very fine idea, a very fine ideal. I have gradually come to the conclusion that there are several disadvantages to it, and in order to keep my speech short I shall concentrate not so much on the argument in favour of the Bill as such, but on why I think it does not go far enough, and why I think federalism does not go far enough.
There are two negative reasons and three positive ones why we should go further than federalism. One of the negative ones is that I have now, at last, come to the conclusion that a federation cannot be built out of a union. A federation can be built up from units, but here one cannot build down. We have seen the difficulty even of producing a Scottish and a Welsh Bill. In this situation we are finding that we have to produce different Bills to meet different aspirations of different parts of the United Kingdom; and in a way that is as it should be. As has been pointed out, the federal idea means of necessity, I understand, that England ought to be divided up as well, but England is not yet ready to be divided up. Despite some rumblings from Cornwall, Yorkshire or Northumberland, there is no great overriding desire for this kind of division. Therefore, I think that that is one reason why federation will not work.
The second is, I believe that, as has been said, it leads to a multiplication of bureaucracy, with more tiers. I know that some tiers can be added and that some can be done away with. But I should have thought that, at the moment when we are building up the big tier of Europe, we do not want another federation under the European umbrella; and I will come to that in a moment.
1404 Regarding the three positive reasons—by which I mean reasons for separatism, which would not be satisfied by federalism—I choose, first the fact that I think it is probably necessary for England to have the psychological shock of realising that we are only England, and not somehow Great Britain, the United Kingdom, the sort of centre of a ghost empire. We are three or four small nations in the British Isles, as part of United Europe. I do not think we have realised that yet, and I think we need to realise it. I cannot see that the separation of Scotland would be anything but psychologically healthy for England.
Secondly, I believe that it would be good for Scotland, and I put this forward mainly on the economic level. The noble and learned Lord, Lord Wilson of Langside, referred in his speech, as reported at column 1192 of the Official Report for 14th March, to,the protest vote which, particularly since 1966, has gone to the Nationalists—as indeed it has tended to do over these last 25 or 30 years, whenever the British Government are below par, as periodically they have been"."Periodically", my Lords—permanently!
I base my argument in favour of separatism for Scotland on the simple suggestion that nobody could govern Scotland in economic terms worse than we have—and certainly the Scots would not. In addition to the sheer incompetence that we have displayed in running our own affairs in this country, there is the fact that, when we inflate or deflate, it is invariably done to suit—or at least calculated to suit, whether or not it does—the South of England or indeed the South-East of England. This therefore comes at exactly the wrong phase of the cycle for the more distant parts of the Kingdom, and particularly for Scotland.
I do not think here that the oil really comes into it. I regard the North Sea oil rather as I regard a poisoned chalice. Dr. John Rae pointed out in an article the other day that our black gold might well be like the unearned gold which poured in to Spain from the new New World 300 or 400 years ago, and which kept them prosperous and stopped them facing up to their real problems. I am not happy about North Sea oil and its benefits, for us or for the Scots. I think that it is a matter which can be left out of the equation.
1405 My last positive point is Europe. I believe passionately in European federation, and I see no place for a British federation under this. What is more, I can see a European Federation working in the future only as we become l'Europe des régions, and not l'Europe des parries. The big national States are very nearly the ruin of Europe already. England and France between them may permanently have damaged the European project and the European ideal. I believe that we want a Europe made up of smaller national and cultural units.
Those are the reasons why I believe in separatism and why I would encourage other people to believe in and go for separatism as and when it is wanted—and I think it may well be wanted in Scotland, if not now, then in the very near future. I do so in the course of a really informed debate about the whole project, just as we saw the European debate informing and crystallising opinion in Britain on that particular subject.
Your Lordships can see that I do not like this Bill. I shall vote for it, though, for three reasons. The first is that even a mildewy crumb is better than no bread. The second is that I do not think that, until this subject is out of the way, we shall see the revival of Liberalism in Scotland that I want to see. The Liberal Party in Scotland has a magnificent record in the MPs that it has produced, and even, if I may say so, in the ex-MPs it has produced. It has a very great deal to offer Scotland and, as long as we are a united Kingdom, to offer Britain. I think that, one way or another, this nationalism must be settled before we shall see a Scottish Liberal revival of the kind that I should like to see. Thirdly, I am tempted to vote for this Bill because so many of your Lordships have said that it is merely one inevitable step on the road to separatism. I hope it will be so.
§ 5.12 p.m.
§ Viscount DILHORNE
My Lords, it is a long time since I had the pleasure of listening to a Second Reading debate on a major Bill such as this, and certainly very many years since I last spoke in such a debate. If I may say so, we have had some very remarkable speeches in the course of the debate so far. I thought 1406 that the speech of the noble Earl, Lord Ferrers, was a tremendous Parliamentary performance. Then there was the speech of the noble Lord, Lord Shinwell. We have also had a very remarkable speech, but remarkable in a different way, from the noble Lord who has just sat down. I never thought that one argument for this Bill was that it might lead to a revival of Liberalism in Scotland. Nor did I think that the noble Lord would be able to spend so much time in speaking about separatism, the only things he said about the Bill which is now the subject of debate being that he did not like it but would still vote for it.
I am not going to follow the noble Lord into discussing federalism, separatism or the advantages of small States against big ones. Some 10 years ago I was a member of a committee presided over by the noble Lord, Lord Home of the Hirsel, which went into these questions of devolution and decentralisation. I think, if my memory serves me aright, I was the only Englishman upon that committee, and I have no doubt I proved a considerable thorn in the flesh to the chairman. That committee produced a majority and a minority report, and I had to retire from it before the time came for signing either of them. As the noble Lord, Lord Home, knows, I think I would have signed the minority report; but I am not wanting to speak tonight on very major issues. None the less, I want to say a word or two on issues which I think may prove to be increasingly important in the years to come. We had another very remarkable speech in the course of this debate from my noble and learned friend Lord Scarman. He was not controversial, but your Lordships will not be surprised to hear that what he said did not command universal agreement among his colleagues—certainly not with me. I agreed with a great deal of it, but not with all of it.
I think the first question which has to be considered is whether there should be an Assembly. Having served on Lord Home's committee, I was left in no doubt then as to the strength of the feeling for the Scots in Scotland having more control over their affairs—a feeling that certainly has not grown less, and a feeling with which I strongly sympathise. But I still wonder whether those Scottish aspirations may not be met without the creation of an Assembly. We are told it is going to cost 1407 £4¾ million in capital expenditure and some £13 million a year in running costs; and, of course, the major part of that expenditure will be borne by English and Welsh taxpayers. That, I fear, may prove to be a source of friction, and I hope that one of our tasks in the course of the passage of this Bill will be to reduce the chances of friction arising. I have wondered whether it might not be possible to avoid that expenditure and the friction that I see as likely to arise by giving much more power to regional councils—regional councils which have themselves, I believe, the power to raise money.
However, if we are going to have an Assembly, then I think the next question which has to be considered—and it is an important one—is what is to be the status of a Scottish Assembly Act. Is it to be regarded by the Parliament of the United Kingdom as a piece of subordinate legislation, the validity of which can be challenged at any time or in any year? Or is it to be regarded as a Scottish Act embodying the law of Scotland, the validity of which, once it was enacted, could not be challenged?
I must say that I favour the first course. I know that my noble and learned friend Lord Fraser of Tullybelton does not agree with me, but there it is. I favour it for a number of reasons, and one is that I cannot face with equanimity the prospect that you may have a Scottish Act of Parliament, having been in force for many years, possibly creating criminal offences and leading to people being convicted and sent to prison, being declared ultimately, many years later, to have been invalid from the start. That seems to me to be bound to lead to a considerable amount of friction and chaotic confusion. So I myself should like this Bill to be changed to make a Scottish Act, once it has received the Royal Assent, like an English Act of Parliament. That means, of course, that you have must checks to see that it accords with the powers devolved.
Here I welcome and strongly support the suggestion of the noble Lord, Lord Home, that there should be a reference to the Secretary of State, not after the Bill has passed the Assembly but before it. I can think of nothing more likely to 1408 cause friction and frustration than to have a Bill debated at length in the Assembly and then, after all that has been gone through, for it to be held invalid by the Judicial Committee. There should, I think, be a duty on the Secretary of State—the Bill imposes it—to consider every Bill presented, and to refer it immediately if he has any doubt about it. Then, if a clause is added or Amendments are made which could cast doubt on competence, he should have power to refer that. But, apart from that, once it has passed and received the Royal Assent I suggest it should cease to be treated as a piece of subordinate legislation.
The noble and learned Lord, Lord Scarman, referred to a number of other matters: the appeal procedure, the duplication of it. I must say that that puzzles me very much. I cannot think, if there is a reference in an ordinary piece of litigation, why it should go to the Judicial Committee; but that if it comes up in the ordinary way it should come to the House of Lords. Neither can I think why, if it comes to the House of Lords, we sitting here should have to go to the Privy Council to decide the issue there—if it be the intention, of course, that the Lords of Appeal should sit in the Judicial Committee to hear these devolution issues. I think that will all want looking into very much.
My noble and learned friend Lord Wilberforce referred to the Judicial Committee having a wider membership. So it has. The Lord President of the Council is entitled to sit. Whatever his great qualities may be, I doubt whether his best friend would claim that he always behaves judicially. However that may be, and I will not dilate upon it tonight, I must express my regret that a Bill of this magnitude and importance, the most important constitutional Bill since the Statute of Westminster, should have come here, although as a result, we were told, of very long preparation, in such a condition, with so many apparent defects and without any proper consideration in another place.
§ 5.21 p.m.
The Earl of SELKIRK
My Lords. I do not want to make too long an introduction to this speech, for most of us 1409 want to finish with this debate. This Bill comes to us here in a rather extraordinary situation. The noble and learned Viscount, Lord Dilhorne, told us of some of the legal points and I should like to refer to those later for they are of considerable importance. Momently, all that I want to say is this. It is quite clear, as the noble Lord, Lord Campbell of Croy, said, that the Bill comes to us with many people saying that they will vote for the Second and Third Readings and then campaign against the referendum. We have had the noble Viscount, Lord Thurso, saying it is not perfect. The noble Lord, Lord Thomson, has said that he will give it the benefit of the doubt on merit. I wonder honestly whether he has read it in detail. It is really a very poor Bill. The noble Lord, Lord Beaumont of Whitley, wanted to vote for it for entirely the wrong reasons. This is where we find ourselves.
The second thing is that we have been openly asked to improve this Bill. It is a slightly left-handed request. I am not sure that it can be greatly improved. May I ask the noble and learned Lord the Lord Chancellor, who is not here, or perhaps the noble and learned Lord, Lord McCluskey, this question. Can we count on consultation and co-operation in this from the Front Bench? Can we count on them to try to help in making this Bill something more reasonable? May I render just a suggestion a third method of doing so? Normally a Bill goes back to the other place only on two grounds. One, we have a Division with all that that means in flouting the will of the people and frustrating the House of Commons in their noble work. Alternatively, the Government must accept the Bill. It is not always easy for the Government to accept a Bill. I know that it is difficult to persuade Ministers in another place to accept Amendments. Would it be possible that, on occasion, they just do not appoint Tellers? That is to say, they do not commit themselves. I think that it is very important that the other place should discuss some of the Amendments, some of the clauses, particularly the financial clauses, which have remained completely undiscussed at all.
I would not object to a national Assembly or an Assembly as such. I do not agree with the noble Lord, Lord Thomson, that it is simply a question of 1410 oil. It goes back; it must be over 40 years since I first debated with a Scottish Nationalist of some sort or another. This issue has been on the air for a very long time. It has been on the air, frankly, I think, from a sense of protest. This is so. If the people in Newcastle or the people of Merseyside knew how to do it, they would do the same. We have a sense of community in Scotland, and we have done it. I am aware of the difficulty of a practical system which is politically possible. This system, I believe, is completely impracticable. I do not think it is politically desirable, most people do not want it. I can see the electoral advantages or the supposed electoral advantages. That is how the matter stands.
When I read the Bill I formed a clear impression that this was the work of a committee of civil servants. There is nobody else in the world so clever and hard working as to produce a Bill of this kind. The noble Lord, Lord Glenamara, kindly confirmed to me that that was exactly how this Bill was produced. It is a very clever Bill but one which, in the words of the noble and learned Lord, Lord Scarman, yesterday, is intelligible only to the more able members of the Judicial Bench. This is what we are putting to the people of Scotland and this is the basic reason why fundamentally I object to this Bill. It is completely incomprehensible.
Have we lost the wisdom that we had when we tried to find out, for instance, how India should be governed—the Minto-Morly, the Montagu Chelmsford, the Simon Report, the Round Table talks, the Cripps and Linlithgow examinations? Can we not form some idea of the nature of the problem which we are up against? Have we lost altogether the way of handling things? I know that India is a hundred times bigger than Scotland; but is it today more important, or is it not?
I very much regret the suggestion that was made in the discussions we had in January 1976 that we should have a Speaker's Conference to deal with this. I understand the reason for this. If it is put forward merely as a Party document, it has a certain electoral mileage. That, I am afraid, is the long and short of where we are at the present 1411 time. I resent a Bill which may affect fundamentally the people of Scotland being dealt with in this very easy-going way at the present time—with substantial indifference, certainly, in the way it is coming before Parliament and in the form of a pawn of Party politics. One of the points raised by the noble and learned Viscount, Lord Dilhorne—and it came out of the remarks of Lord Scarman which we enjoyed yesterday—is that we do distinguish in this country between what is a constitutional law and a law. The noble Lord, Lord Mackie of Benshie, spoke of Constitutional laws as if they could be decided by one vote. But that is a very dangerous doctrine to assume in a democracy.
The noble and learned Lord, Lord Scarman, described how the Judicial Committee, or the Privy Council, would look at these Bills. We must remember that any one of these clauses can be changed the next year. Unlike the American Constitution and the Supreme Court, in a matter of months any of these clauses can be changed. I wonder whether it is worth the while of the Judicial Committee, men of great standing, with their detailed knowledge and, I am sure, perfection, to examine these transient measures.
There is another point. Here we have a Statute—and the noble and learned Viscount, Lord Dilhorne, brought this out very carefully—which can be challenged at any time in the courts. This is something which has never happened before. It means, he said, that one may be two years in prison and then find that the Act which sent one there is in fact a reserved Act which should never have been passed. Or one might go bankrupt and find that the reasons which made one bankrupt are totally wrong. It is a matter which I am glad the noble and learned Viscount raised and it will require looking into carefully.
Are we to have second-class Acts of Parliament coming from the Scottish Assembly? This is a major issue of some consequence. The noble Lord, Lord Polwarth, yesterday said that he thought the Secretary of State was going to be less important. He is going to be different; I am not sure that he is going to be less important. I am certain that he is going 1412 to be very much more uncomfortable. I find it difficult to believe that his job is not going to be even less desirable than the Secretary of State's job at the present time. Today he does things; tomorrow he will be saying, "No". This will be his big function. Look what he will be saying. He calls Parliament together. He appoints the Assistant Secretaries. He has four separate grounds on which he can veto any Bill passed—Clauses 19 and 36. He can do more than that: he can order the First Secretary either to do what he is told or not to do what he is doing. That is going to be a pleasant job for the Secretary of State! It will need a man of great tact, skill and understanding to carry this through without raising a great wrath of opposition which he will find it extremely difficult to overcome.
I must ask what this Bill means. What is the difference between what is a devolved and what is a reserved subject? The noble and learned Lord, Lord Scarman, in a charming phrase said that Schedule 10 was practically unintelligible. The first part is called competence the second part covers matters not included and the third part deals with enactments relating. My Lords, I do not know how those three parts are related. I am equally ignorant in what they mean. May I ask one or two questions on this. In Part III not only are Acts of Parliament divided up—some of them devolved and some of them reserved—sections are divided up and sections are divided up so that they go one way or the other.
I will give one example. There is one section dealing with clean air, and there is one subsection which says that the Assembly may not complain about the smoke given off by the Royal Navy. Apparently the local authority can but the Assembly may not. I am going to ask whether we can leave out Part III of Schedule 10 altogether. It is 150 Acts of Parliament dealing with sections, subsections and parts of subsections. It is totally unintelligible and utterly unfair to press on the Scots people.
The important thing here is not that the Assembly men themselves will not understand the Act; I do not mind that because they can be advised. What I am worried about is the ordinary citizen who will not have the faintest idea who is responsible for what, or how he will get his 1413 difficulties remedied. He will not know. Of anybody who says this is not a layer of Government, may I ask him to look at Schedule 16 (I think it is) in which there are four layers of planning: district, region, Assembly, Secretary of State. They are all laid out there. How anyone can get a house built I cannot tell you, my Lords.
There is one other matter which I think we must get clarified regarding finance. I do not know how they will draw the finance; but, so far as I can see, there will be four headings. I do not understand it, but it seems that there will be a block grant which the Assembly are free to spend as they like. There will be a rate support grant. That will be divided into two; there will be those who can spend as they like, which so far as I can see will include some reserved subjects. The third category covers the specific subjects, including the police. Apparently the Assembly have only to have regard for what the Secretary of State says. Whether or not you have to obey a "regard" of a Secretary of State or not, I am unable to say. The fourth is housing subsidy. Those will be the four, as I see it. I am sure the noble Lord will tell me I am completely wrong and it will be done in an entirely different way; but we should like to know how it should be done.
I wonder, listening to this discussion—and we have had a very wide and extremely well-informed discussion—whether this is a form of escapism. This is not going to help our balance of payments. It is not going to help inflation. It is not going to help unemployment—which, incidentally, is running higher than it has ever done since the end of the war. May I paraphrase James Barrie and say: "The fault, dear Brutus, lies in ourselves, and not in our Constitution that we are underlings."
§ 5.35 p.m.
§ Lord TAYLOR of GRYFE
My Lords, it is my pleasant duty to congratulate the two noble Lords who have made maiden speeches this afternoon, both of them very impressive. I was much encouraged by the presence of the noble Duke, the Duke of Buccleuch and Queensberry, who assured us that he would return to this House whenever he felt bubbling. He also indicated that he would be bubbling about a subject which is very close to 1414 my heart, the subject of forestry. I have listened to this debate for two days. I have listened on and off to the debate in the other place. I have been willing and anxious to be convinced of the desirability of this measure; but I must confess that at the end of the day I am not certain that this Bill is relevant to the situation in Scotland today. I shall not vote against the Bill this evening, but I will have the privilege of joining with other noble Lords in examining its contents over the next few weeks.
I am glad that the Government have agreed that the 40 per cent. provision in the referendum is going to be maintained, because at that stage we shall know what the Scottish people think. One of the difficulties about reaching firm conclusions on this measure is the fact that there is so much speculation and so much fear about it. On one side people say to us: "If you do not pass this Bill, there will inevitably be a growth of nationalism in Scotland". On the other hand, other noble Lords have said: "If you do pass this Bill it will be the beginning of the disintegration of the United Kingdom". Both statements are speculative. Time will prove them. But it may depend on the kind of people you elect to the Assembly and the desire to make it work which will be more important than some of the things we have discussed in these two days.
If I felt convinced that there was a great desire on the part of the Scottish people to have this, if I felt that this was to be a signal of some new Scottish regeneration in industry and social and cultural life, I would campaign for it. But I do not believe that that is so. The evidence of the speeches here in this House shows that the enthusiasm for the Bill is somewhat muted. Anyone who sat in the other place and listened to the dreary debates on this measure in the House of Commons must accept that most people in that House, because of Party loyalty, supported it but with great reluctance. I believe that what is basic to the successful working of the Assembly must be a great enthusiasm for the new institution which is to be created.
On the basis of present political trends in Scotland, there will be at least one-third of the members of that Assembly who are determined that it should not 1415 work, and this is hardly the basis on which a new institution of this kind can prosper or succeed. I was interested in the past two days to find many noble Lords saying: "This is what the Scottish people want". I wonder how some of these conclusions can be supported. I want to state my credentials, my Lords. I am deeply involved in Scottish business and commerce, including television, and am chairman of a nationalised industry in Scotland, although I am not speaking on their behalf. I am an executive member of the Scottish Council for Industry and Development; I was a member of the Glasgow City Council; I live in West Scotland, near Glasgow, where half the population of Scotland lives; I am a member of the Labour Party and I am reasonably sensitive to the views and aspirations of the people in the West of Scotland. I admire the affection of the noble Viscount, Lord Thurso, for his tight little communities in the Highlands and his cosy little groups of people who go about their business in Caithness, but the feelings of the people in the industrial West of Scotland are rather more important in terms of numbers.
I try to find out what is the will of the Scottish people in this matter. The Scotland and Wales Bill was withdrawn or defeated on 22nd February 1977. There was no demonstration whatsoever of protest in Scotland when that devolution measure failed, and members of the other place tell me that there was no increase in their postbag of protest when that piece of legislation had not reached the Statute Book. This is surely relevant to the question of what the people of Scotland feel. The Scottish National Party tried to organise protests on that occasion, but there was little or no response. So I think we have to be careful when we start saying that this is what the Scottish people want.
Many noble Lords who have expressed this reflection of the aspirations of the Scottish people live a long way from Scotland and spend most of their time outside Scotland. There is much greater concern about what happens in the Argentine and the World Cup than there is about what happens in Westminster on this particular measure. Maybe that is undesirable but it is true.
1416 The justification for the Bill was that it would bring democracy closer to the people. The noble Duke, the Duke of Buccleuch and Queensberry, was right about democracy—we should be talking about the quality and not the quantity of democracy. The simple multiplication of a number of democratic institutions does not add up to greater democracy. In fact it may add up to greater disenchantment with democracy. If there is one thing that people criticise in the democratic system it is the added bureaucracy and the added number of committees, and so on, that are an inevitable part of the democratic process. This Bill does not reduce that. This Bill adds to the bureaucratic build-up, it adds to the cost, and I am not sure that at the end of the day the Scottish people will feel closer to government by the simple existence of an Assembly.
The Assembly itself has little power. I say that there will be greater disenchantment with the democratic process at the end of the day because the Assembly is entirely dependent on the block grant which is decided at Westminster, and every decent Assembly man will want more hospitals, more schools and more this or that in his constituency; and when he is held responsible by his constituents he will blame the limited amount of cash that has been allocated to the Assembly from Westminster. That is the crucial area. No Assembly man is going to take the blame; he is going to blame Westminster. That is precisely the situation which encourages the Scottish Nationalists to support this measure. They want disenchantment with Westminster because that is the beginning of the end.
So I suggest that at that end in the relationship with Westminster there will be a considerable area of tension and conflict, and at the other end I have heard several noble Lords support this measure on the ground that one of the first things it will do will be to reorganise local government in Scotland. The noble Earl, Lord Cromartie, takes that view. I shall be surprised if this is going to encourage interest in democracy. We have just come through a very expensive reorganisation of local government in Scotland. It cost a very large sum in new appointments, new offices, paying off former town clerks and all the rest of it—a very large sum. Yet some Members of this House are saying 1417 that one of the first tasks of the new Assembly is to start reorganising local government. So you will have tensions and conflict and disenchantment at both ends, first with Westminster with the block grant proposal and secondly with the imposition on the elected members of local authorities of some major reorganisation of their function.
I say that this proposal is a recipe for chaos, and not a recipe for inreasing the democratic process. As a Scot and as someone who cares about Scotland I have to ask myself: Is this good for Scotland? I do not believe it is. A number of noble Lords have spoken about the impact of this on the business community of Scotland. The noble Lord, Lord Polwarth, has given evidence to that effect. Tell me a single business in Scotland or a single business organisation—Chamber of Commerce, CBI or what-have-you—that supports this measure. I spend a good deal of my time going around the world trying to attract investment to Scotland, and let me tell your Lordships that the growth of nationalism and this move for Assembly government in Scotland is contributing to nervousness in relation to investment. These things could cost Scotsmen their jobs.
During this discussion the political issue of the role of Scottish Members of Parliament and the role of the Secretary of State for Scotland has been aired. I believe that if the Secretary of State for Scotland has his present responsibilities devolved to the Assembly he is inevitably diminished in authority and power. I believe it is a good thing for Scotland that the Secretary of State for Scotland should have power and authority and take his rightful place in the Cabinet. There are many evidences that the intervention of a Secretary of State for Scotland on major industrial decisions—the survival of Chrysler, the Dounreay Atomic Development, the electrification of the West Coast main line railway—have frequently resulted from the power and authority of the Secretary of State for Scotland at the centre of power. To diminish that office, as is inevitable in these proposals, will not be helpful to Scotland's cause.
For these reasons I shall speak in the campaign during the referendum against the proposal to set up an Assembly. I think it is right that this House should 1418 approve the measure and try to improve it in the many ways in which it could be improved, but I do not believe that an Assembly is a good thing. Finally, people who live in Scotland realise that what we are really worried about in Scotland, particularly in the West, is the mass unemployment in the area—12 per cent. unemployment—the large number of young people who are leaving school without the prospect of employment; the great areas of new housing estates where people are wandering about purposelessly and aimlessly and turning to all kinds of vandalism and destructiveness. These are the problems of Scotland. Glasgow is a city without a heart. I believe that the Labour Party, in dealing with these problems of Scotland, need not "run scared" of the Scottish Nationalists. They can do things of which they can be proud, and I believe that if you do these things you can destroy the power of the Scottish Nationalists and the discontent on which it is based.
§ 5.50 p.m.
§ Lord GLENDEVON
My Lords, I think your Lordships will agree with me that in a debate of very high standard we have just listened to one of the best speeches of the two days.
§ Several noble Lords: Hear, hear!
§ Lord GLENDEVON
I agree with every single word the noble Lord said. May I also, as others have done, congratulate our two maiden speakers, the noble Duke, the Duke of Buccleuch, and the noble Lord, Lord Fraser of Kilmorack. Theirs were very good speeches and I am sure we shall look forward to hearing from both speakers again in the near future.
I shall confine myself to what is really a short declaration of my passionate belief in the Union. Yesterday something was said by the noble Earl, Lord Perth, which rather saddened me. I hope he knows that nothing will ever weaken the affection I feel for him—not even my tendency to disagree with him from time to time—but yesterday—I read from col. 1220 of the Official Report—he used these words:But 270 years have passed and we are generally told that the Union has been to Scotland's great advantage. That may or may not be so….1419 In words like those the question is really left unanswered but the innuendo is there, although I think I know which answer the noble Earl would give if pressed.
Of course Scotland has got much from the Union and, if I may be forgiven for giving one small personal reminiscence—one of many which would illustrate my point—I can remember so well that at one time I had the honour to hold the position of Under-Secretary of State for Scotland, when I was in charge, under the Secretary of State, of agriculture. The subsidies for marginal hill farms accounted for the whole of the profit of the farm. Those subsidies were provided mainly, and quite rightly so, by the English taxpayer. As I say, one could multiply similar examples without any difficulty.
There is another point about the Union that I should like to put to your Lordships. Not only has Scotland got much from it but those who have gone before us have given much to it: statesmanship, commerce, culture, science, human endeavour and service, right across the board. Is all future potential in this United Kingdom context now to be thrown overboard? I ask this because if the Scottish Nationalists get their way, we are to separate—and at this time, of all times, in the world's history!
Of course it is arguable and, if I may say so, it has been well argued, that this Bill is a step towards thwarting the threat of separation. I myself do not believe that. Some of my noble friends for whom I have the very greatest respect take the opposite view. One of them is the noble Lord, Lord Balerno, and I owe so much to him as the chairman of my constituency for many years, during which time he gave me tremendous help. I believe that he feels too strongly and that he "doth protest too much". I also believe that whatever is done by us—and by that I mean whatever is done by Parliament—the only force that will stop the Scottish Nationalists is the force of public opinion in Scotland. They will have their chance at least to make a start with it, when the referendum comes. In my view, it is on the referendum that we all ought to keep our sights when trying to be helpful and constructive.
1420 Meanwhile, the Nationalists will intensify their campaign. They will, as my noble friend Lord Glenkinglas mentioned yesterday, produce different policies for every single different person. But above all, they will step up what has in reality always been at the base of their inferiority complex, which is hostility to England—and, my Lords, hostility is terribly close to hatred. Again, I would say: what a time to start that up! They could become something very near to a racilist Party, and we have had enough of that to get along with.
The truth is that strength lies in union. That does not mean that it lies in this Bill. I do not think it does, and I believe we shall all have to think again. The noble Lord, Lord Beaumont of Whitley, just now spoke, alone in this House, in favour of out-and-out separation for Scotland, and he told the House that he would support the Bill because it is the best that can be done at the moment. He said he preferred mildewed bread to no bread at all. So far as I am concerned, I prefer hunger to a stomach ache!
§ 5.58 p.m.
§ Lord BOYD-CARPENTER
My Lords, to seek to participate in a debate of this kind at this hour perhaps argues that one is longer in stamina or obstinacy than in sensitivity or good sense; but this is such an extraordinary Bill, produced in such extraordinary circumstances, that as one who for many years has taken a deep interest in the working of our complex Constitution, I should like to offer some very brief comments. The circumstances are quite extraordinary. Here we have produced a major constitutional measure which is at the same time wholly irrelevant to all the major practical problems that face us—problems of inflation, of lack of economic growth, lack of investment, unemployment. It is utterly irrelevant to those. Our Parliament, in both Houses, has devoted, and will be devoting, the larger part of the Session to this Bill.
It is equally extraordinary that in neither House has it been possible to identify more than a handful of Members who have any enthusiasm for these particular proposals. We have had speeches—here I agree with my noble friend Lord Glendevon—such as the admirable 1421 speech made by the noble Lord, Lord Taylor of Gryfe, a loyal member of the Labour Party, condemning this Bill. We have heard from all quarters of the House doubts and apprehensions about it. This is really the most extraordinary situation in which Parliament and the nation could be placed, particularly, if I may again follow my noble friend Lord Glendevon in saying so, at such a time as this. This is a constitutional Bill, and one of the first points I want to raise is, I think, a constitutional point. In the presence of noble and learned Lords in a debate which, as I understand it, will be replied to by the noble and learned Lord the Solicitor-General for Scotland, I put the point with diffidence, but if I am wrong I shall be most grateful so to be told by the noble and learned Lord.
As I read the Bill, and in particular Clauses 70 and 79, the Order in Council which, if the Bill otherwise achieves a passage through Parliament and is approved at the referendum, will be required to put the Bill into operation—I think that the noble and learned Lord will find it in Clause 79—can be passed by the Commons alone and, unless this House approves it within 10 days, the other place can confirm it and carry it over our heads. If I am wrong about that I shall be only too delighted. As several noble Lords, and noble and learned Lords, have said, the Bill is not a model of clarity and some confusion may be understandable. But I would beg the noble and learned Lord to confirm, when he replies, whether or not this is so, because if it is so it constitutes by a side-wind a very substantial alteration in our Constitution, which has nothing whatever to do with Scotland, but has to do with the Parliament Acts and the relationship between the two Houses. If this is right—I believe it to be, but I am more than willing to be corrected—this is by a side-wind altering the balance between the two Houses.
Even under the legislation promoted by noble Lords opposite, except on financial orders, this House has retained co-equal powers with another place in the control of delegated legislation. But it looks as if, in respect of both the vital order to operate this Bill and, at least, some of the other orders to be made under it—one looks at Clause 80 of the Bill, particularly subsection (4)—a very unfortunate precedent is being created by a side-wind, which 1422 virtually reduces to a nullity the control of this House over delegated legislation. If this is right, and if the noble and learned Lord—who will, I know, feel it his duty to guide the House—says that it is right, then I very much hope that, at the appropriate stage, this House will insist on taking out that provision and standing by it.
On the broader issues, I think that noble Lords are kidding themselves if they think that this Assembly, which the Bill proposes to set up, will really appease Nationalist feeling and be acceptable to those who are seeking a substantial measure of devolution. It has been our experience in the British Commonwealth in the last 30 or 40 years that you set up Assemblies of this kind, you carefully delimit their powers, you provide all kinds of machinery for judicial review of any excess over their functions, but they never accept that. They always demand more. They always use pressures, lawful and unlawful, to extend their powers. And have we any reason whatever to believe that the carefully circumscribed limits which this Bill prescribes for the Scottish Assembly will not suffer the fate that every other constitutional provision of this kind, in the history of the British Commonwealth in, this century, has suffered? It would be a bold noble Lord who believed that the matter would rest here.
It seems to me that we are making this worse by the way in which we are dealing with finance. We are setting up an Assembly which will have every incentive to achieve popularity by spending money, and, at the same time, we are depriving it of the offsetting pressure of having to take the gloomy responsibility of imposing taxation to pay for that expenditure. My noble friend Lord Home of the Hirsel, with his unrivalled experience, touched on this yesterday. I must make it plain that I myself do not believe that there should be such an Assembly at all. But if Parliament in its wisdom, or lack of it, decides to set up an Assembly, with all this elaborate apparatus of Civil Service, Ministers or quasi-Ministers, it is a recipe for irresponsibility to say to it: "You can do wonderful things to develop activities in Scotland. But with not one penny of that money will you actually have to face the problem of raising taxation from the taxpayer. That responsibility will be discharged by the Treasury in Whitehall". That cannot make sense.
1423 Therefore, I hope that the Government will address themselves to this dilemma. Set up an Assembly if you think it right—although I do not believe that this will satisfy the one-third of its members who in any event, we were told, would want to prevent it from functioning. But if you are going to set it up, then, for Heaven's sake!, give it a measure of responsibility to raise the money that it will spend. If Scotland wants all this elaborate apparatus of Ministers and another tier of bureaucracy—and it has yet to be proven that she does—then is it not right that she should, in some measure, pay for it? Why should not those put into a position of responsibility in Edinburgh, for the first time, have to do what, as every Member of this House knows, all British Governments always have to do; that is, balance the desirability of certain actions against the necessity of finding the wherewithal to pay for them? This is the great stabiliser which, even in recent years, we have seen operating on the noble and learned Lord's colleagues in another place.
I regard this Bill with the greatest of gloom. It is full of mistakes. I think, for example—and we shall come to this in detail later—that to hand over so international an activity as the operation of aerodromes to the Assembly is a nonsense. I am very glad that in another place an Amendment was put in to protect the position of the Shetlands if this Bill goes through. When I was chairman of the Civil Aviation Authority I used to visit those islands with great frequency. I had conversations with many people in responsible positions there, and I had a letter this morning from the vice-convenor of the Shetlands council. That letter, which I think has gone to many noble Lords, is in measured language. But it makes clear that the islands do not wish to be brought into a devolved Scottish authority, or to be under a devolved Scottish Assembly.
More colloquially, when I was discussing this matter not very long ago in the islands with senior people there, one or two—if your Lordships will forgive the language—said to me: "To be truthful, old boy, we are not very pleased to be run from London, but we are damned if we will be run from Edinburgh". That is, 1424 I believe, the feeling in the islands, and I hope that we shall protect the Amendment which the very able Member of Parliament, Mr. Grimond, who represents those islands, succeeded in putting into the Bill in another place.
This is a dismal day for Parliament and for this country. We are going into an enterprise for which no one can have much hope of success, in which there is a certainty of additional expenditure and yet another tier of Government, in an already over-governed system. We are setting up what, in its present shape—if it comes about at all—will certainly be a short-lived body, and there is an element of tragedy in the fact that, at a moment calling for great decisions to right the condition of this country, the Parliament of the United Kingdom should be frittering away its time on a triviality of this kind.
§ 6.9 p.m.
§ Lord ORR-EWING
My Lords, there can be no doubt that we are discussing an issue of tremendous constitutional importance. I understand that the attendance of this House yesterday was very much higher than the average. Some 355 Peers attended, and the fact that there are 62 speakers taking part in a Second Reading debate reflects the interest which this House takes in constitutional matters. I am sure that it is disappointing to the Front Bench of the Labour Party that their own ranks have been comparatively thin. I counted the Back-Bench Labour Members present, both at the start of yesterday's debate and at the start of today's. Of course, I am talking to the converted ones, because they have been loyal and present all the time. Perhaps, however, they could point out to their absent friends that only 34 Members were present yesterday and only 29 today. They were far outnumbered by the Cross-Benchers who occupied some of the empty spaces on the Labour Benches because they had no accommodation of their own. I was proud that the Liberals were here in such force and that more than 100 Tories were present, while there was such a very slim Labour attendance.
Throughout yesterday, and again today, we have heard all of the arguments—and how legion they are!—against the Bill. There are 7 main factors. First, 1425 devolution will create no more jobs in Scotland. If the Scottish National Party have their way, it will be a handicap to the industrialists who seek to set up business in Scotland. The only jobs which will be created will be jobs for the bureaucrats, and that will cost the taxpayers either here or in Scotland, money. Secondly, it will be a real threat to the unity of the United Kingdom. Thirdly, the Scottish Assembly will have the power, as my noble friend Lord Boyd-Carpenter, and also the noble Lord, Lord Home of the Hirsel, pointed out, to spend money, although at present no powers are included in the Bill to raise money. Fourthly, it will clearly create a strange anomaly, whereby Scottish Members of Parliament will vote on English, Welsh and Ulster measures but will not be allowed to vote on matters which concern the place from which they come. Fifth, it will create problems in the defence field, if the Scottish National Party have their way. Sixth, it will create anomalies and difficulties between subjects which are devolved and subjects which are not. That will cause a considerable problem.
My only reflection is that if the ping-pong ball is to be batted backwards and forwards between Edinburgh and Westminster, it will be even more serious than when it is batted between the House of Lords and the House of Commons, as happened recently over the shipbuilding and ship repairing Act. The noble Duke, the Duke of Buccleuch and Queensberry, pointed out in a very able maiden speech—I hope that we shall hear many speeches from him—that it might be of some consolation to set up an Assembly, but almost certainly it would create not consolation but confrontation between Edinburgh and Westminster. Lastly, it will create just one more tier of government. Already we have the European Parliament elections for Scotland. We shall have the Westminster elections, and if the Bill goes through, we shall have the Scottish Assembly elections. There are also the regional and local elections. I should prefer more responsibility to be devolved to regional and local government rather than that there should be the creation of yet one more body.
I concede that the balance between the present regional organisations in Scotland is very odd. There are 3.6 million electors 1426 in Scotland; of those, 1.8 million live in the Strathclyde region. On the other hand, in the Border regions one finds one-twentieth of that electorate—just 75,000. It seems to be a most imbalanced organisation. I hope that in time it will be simplified and made more logical. When I looked at the figures I was glad to see that the Scots are slightly more conscientious about voting in their regional elections than are we, South of the Border. In General Elections they average an over 50 per cent. vote, while in local elections they average a vote which is just under 50 per cent. To have four tiers of government is bad enough. A fifth would be even worse. There will be more and more bureaucrats and less and less contact between the governors and the governed.
We are told that if the Assembly is set up it will have just 150 Members and only 750 civil servants. May I ask noble Lords to tell that to the horse marines? I do not believe that to be so for a single moment. A recent case was published in The Times of 20th February. It was pointed out in that article that on 1st January 1974 Edward Heath's Government hived off from the Department of Employment a staff of 40 which went to the Manpower Services Commission. In four years that staff of 40 has become a staff of 25,000. I predict that the staff of 750 for the Assembly will multiply by 10 in the first 10 years. As I have said, all of this will add to the cost of government in Scotland, and I very much hope that the Scots will bear at least some part of that cost. These 150 people are to vote their own salaries, but we are to pay their salaries. At least that sum and a proportion of the Civil Service cost should fall on Scotland by means of a local tax. Is it right to say that such a tax is impossible because we are Members of the European Economic Community? I am sure that some way around the problem could be found. Local taxes are imposed in Germany and other countries. Could there not be a local tax in Scotland in order to bear some of the cost of further devolution?
Despite all the disadvantages which have been underlined by speaker after speaker in the debate, the House of Lords has a duty to try hard, despite the very difficult and shaky foundations, to build some common sense into the Bill. The 1427 risks of building on this poor foundation are less than the dangers of rejecting the Bill and doing nothing at all. The Westminster Parliament needs to show understanding. We shall never propitiate the militant Scottish Nationalists. That will never come about. There must, however, be 90 per cent. of moderate, emotionally-minded supporters who will come to realise that if there is an Assembly that possesses certain powers as a result of the changes made to the Bill we shall be trying to devolve to Scotland some of the power hitherto held at Westminster.
If we do not do anything, I cannot help feeling that their frustration will lead to a solid SNP vote at the forthcoming General Election. We may well find a hung Parliament, where much of the power—if not the balance certainly the power to frustrate—will come from the Scottish National Party. We have only to remember how just a few people in the House of Commons frustrated an all-Party measure for the reform of this House. Just two or three people were able to stop it. To go back six or seven decades, the Irish Members were able to frustrate the will of Parliament and bring it to a standstill. Therefore a small number of dedicated people can, under our procedures, bring Parliament and the measures put before it to a standstill. I believe that we must try to separate the moderates—the sensible people who might otherwise vote for the Scottish National Party—from the more militant leaders.
As so many noble Lords have said, our task is to examine and revise, in particular the 60 clauses which have never been discussed. If we are to have a Scottish Assembly, I hope that it will be of the inquisitorial type, elected by Scots, where-ever they may live, which will take over the tasks of the Scottish Grand Committee and the Scottish Select Committee. I hope that it will have the power to initiate debates and that there will also be Question sessions. I hope that it will have the power to set up special committees to investigate and propose new policies and to consider legislation before it is put before the Westminster Parliament. With those powers, I believe that no Westminster Government could afford totally to ignore the views of such an elected body. I endorse the view put forward by the noble Lord, Lord Home of the Hirsel, 1428 and others, that it should be elected on PR, with a topping-up list along the lines used in West Germany.
Finally, I earnestly wish that this Bill had come about after an all-Party discussion of wise men in both Houses. I am sure that this could have been arranged. We did not have to rush ahead with this measure before obtaining all-Party agreement. Let us try in this House to work out on an all-Party basis means of making this a better measure. It will never be a perfect measure, but it can be amended again later. I hope we may be able to amend the referendum so that we make it clear to the Scots that we are asking a second question; namely, "Do you want to be separate from the United Kingdom?". At the moment it cannot be clear. We want a clear answer, yes or no, on that issue.
Having listened to the quality of speeches we have heard, so many good ones from all quarters of the House, I only wish broadcasting of excerpts from our speeches had started before Easter 1978 instead of after Easter 1978. We have little time to explain to the Scottish electorate what lies behind the plans of the Scottish National Party. I think we must make it clear in the time left to us, by every means that is left to us—broad-casting, television, writing, news reporting and the like—that the Scottish National Party will not be satisfied with anything less than the balkanising of Britain.
§ 6.21 p.m.
§ Lord FRASER of TULLYBELTON
My Lords, I hope and intend that anything I say tonight shall be politically non-controversial. Unfortunately, I know that it cannot be entirely non-controversial among the lawyers. I intend to refer only to the question of the judicial review of Bills and Acts of the Scottish Assembly. There are provisions, as your Lordships know, for judicial review at two stages, first pre-enactment, and secondly, post-enactment. I warmly welcome the provision for pre-enactment judicial review. Like my noble and learned friend, Lord Scarman, it seems to me to be a very deisrable feature of this Bill. It is a great improvement on the proposals in the original White Paper, which I think did not provide for judicial review at this stage.
1429 The review proposed at pre-enactment is to be by the Judicial Committee of the Privy Council, and, like all my noble and learned friends who have referred to this matter, it seems to me that that is the appropriate body to perform a review at this stage. It is accustomed to giving advisory opinions under the Privy Council Act 1833. There are precedents for dealing with pre-enactment remits of this sort in the Government of Ireland Act 1920, and again I think in the Northern Ireland Constitution Act 1973. So it is in line with both principle and precedent that the remit, if there is to be one, should be to the Judicial Committee.
The remit will take place, as I understand it, after the Bill has passed the Scottish Assembly but before it is presented for the Royal Assent; that is to say, when the debates upon it in the Assembly are complete. I do not myself see any necessary inconsistency between judicial review at that stage and some other perhaps less formal kind of review at an earlier stage, such as I think was in the mind of the noble Lord, Lord Home of the Hirsel, yesterday; he thought this would avoid some disappointment and bitterness if a Bill once passed through the Assembly was rejected as being ultra vires at the end of the proceedings. I do not see why the two could not stand together, although it might involve reversal by the Judicial Committee at a later stage of a view which had been tentatively taken at an earlier stage.
I pass to the post-enactment review, and I personally very strongly welcome this also. Indeed, it seems to me to be an absolutely essential feature of a Bill of this sort. I think that, on this matter, I am at one with my noble and learned friend Lord Scarman, who spoke yesterday, and my noble and learned friend Lord Wilberforce, who spoke today, and I know that it is the view taken in Scotland by one of the main legal bodies, the Faculty of Advocates. But I know also that it is not the view taken by the Law Society of Scotland, or, of course, by my noble and learned friend Lord Dilhorne, who spoke earlier today.
I think one must begin by recognising that Acts passed by the Scottish Assembly are, whatever one may say about them, undoubtedly devolved legislation or subordinate legislation, because they could all 1430 be repealed or set aside by Act of Parliament. There really can be no doubt that they are subordinate legislation, although, no doubt, of a specially dignified kind. That being so, it seems to me that judicial review would necessarily and inevitably be available to a citizen who thought he was being wronged by an ultra vires Act of the Assembly unless his rights were removed from him by an express provision in the present Bill. There is, of course, no express provision in the Bill; on the contrary, there are express provisions explaining how review is to take place. I think it is right to have in mind that it would have required an express provision to take away the right which a citizen would otherwise have to challenge the vires of an Assembly Act.
It seems to me right in principle that there should be judicial review at this stage because any devolved legislation must surely be subject to some control. Indeed, the same is true of any federal constitution. It requires some control to prevent one Parliament encroaching on the sphere of another. Various methods of control are possible, but, on an essentially legal matter such as the construction of Acts of Parliament and Acts of Assembly, the obvious method of control is, surely, a court of some sort. As between the Judicial Committee and the House of Lords opinions may vary, and there is perhaps not very much in that. But that there should be some sort of control seems to me to be necessary in principle.
Let me remind your Lordships what we should be doing if there were no judicial control at this stage. We should be setting up a subordinate Assembly with powers to pass Assembly Acts. Its powers will be limited on paper, but, unless there is some provision for judicial or other review, there is no means by which the citizen who feels his rights infringed by ultra vires Acts of the Assembly can do anything about it; he is powerless. The only remedy he can possibly have is to take the matter to court. If there is no judicial review he will be entirely reliant upon the pre-enactment scrutiny by the Secretary of State and his assistants. I wish to say nothing in any way offensive to Secretaries of State, but I cannot believe that many private individuals would wish their rights to be in the uncontrolled hands of the Secretary of State rather than 1431 have the right themselves to take the case to court and argue it for themselves. It does seem to me that, if you take away judicial review at this stage, that is what you are going to do.
The Law Society of Scotland, as I understand it, fears that, if review is possible after an Act of the Assembly has been passed, it will conduce to uncertainty, and I believe that that was in the mind also of my noble and learned friend Lord Dilhorne today. I would say two things about that. One is that all devolved legislation or subordinate legislation, including local authority by-laws and statutory instruments, rules and orders, has always been subject to judicial review of some sort if it goes ultra vires, and that has not led to any disastrous consequences; indeed, some might think that some of the consequences were rather successful. At any rate, it has not been an obvious disaster.
The other point is this, my Lords. If you are going to say that there should be no judicial review because it produces uncertainty and people who have been cast into prison under the ultra vires Act before its ultra vires nature was proclaimed will be offended, what will you be saying? Surely it comes to this: it is better to let people go on being cast into prison under an ultra vires Act rather than annoy those who should have been cast into prison earlier on. That seems to me an extraordinary argument. So, from every possible point of view of principle and commonsense, I would think it essential that there should be some review after the Act is passed.
There is a separate point. It may be said that, while there should be post-enactment review for Acts of the Assembly which had not been considered by the Judicial Committee at the Bill stage, nevertheless, if there was judicial review of a Bill by the Judicial Committee before the Royal Assent was given, that at least ought to be final and conclusive and ought to prevent any later challenge in the courts.
I can, of course, see that there is a case there, but it seems to me for many reasons not to be a sound argument. One of those reasons was referred to earlier today by the noble Earl, Lord Selkirk. It is that the Bill might be amended after it had become an Act, and we must allow challenge of it if that was done.
1432 However, there is also the more general and, I think, perhaps profound objection that a review by the Judicial Committee of a Bill in the abstract, before its application has been seen in practice, is very different and, I should say, much less satisfactory than considering the validity of an Act when it comes to be applied to particular circumstances. We all know that a Bill or, indeed, an Act, when it is passed, may be intended to do one thing but turns out to do something remarkably different from what its authors intended. There are innumerable examples. I need only refer to the recent legislation about breathalysers to show the unexpected results that can follow from legislation.
I have also the authority of the Lord Chancellor, Lord Haldane, in 1914, who referred to a question of this very kind in relation to the constitution of Canada under which there was—and I think that there probably still is—power to refer a Canadian Bill from one of the Provinces to the Surpeme Court of Canada and then there was an appeal to the Judicial Committee for it to consider whether it was ultra vires. Lord Haldane said:Not only may the question of future litigants be prejudiced by the court laying down principles in an abstract form without reference or relation to actual facts, but it may turn out to be practically impossible to define principles adequately and safely without previous ascertainment of the exact facts to which they are to be applied.That seems to me to be peculiarly applicable to the Bill which we are now considering, when we consider the very complicated provisions about when a Scottish Assembly Act is to be ultra vires if it applies outside Scotland. The general rule is, of course, that it is ultra vires if it applies outside Scotland; but there is an exception in the case where such external application is only incidental or consequential to the provisions. I am referring to Schedule 2. I shall not go into the details but it seems to me to be quite difficult to foresee in advance whether an Act will be ultra vires or not when we have provisions of that sort. There are certain other provisions which I shall not go into at present which seem to me also to raise considerable difficulty in foreseeing whether an Act will be within the legislative competence of the Assembly. Therefore, I think that it is necessary to leave it to be decided by the courts when a case actually arises.
1433 The last point that I should like to mention concerns what machinery should be used if there is to be post-enactment review. The question is really whether it should be the Judicial Committee or the House of Lords in its judicial capacity which has the final word as the ultimate court of appeal on this matter. Like my noble and learned friend Lord Wilberforce, I think that that is a matter which is very much open for discussion. My own preference would be to leave it as it is in the Bill, with the Judicial Committee having, as a general rule, the last word. If an appeal on a devolution issue comes to the House of Lords, it should normally remit it to the Judicial Committee to decide, although it is not invariable that it must do so under the Bill.
I think that the Judicial Committee is the proper body to deal with such a matter in the first place because it marks off devolution appeals as something special, which I think they are and which I think they ought to be marked as being. Secondly—and this is perhaps technical but it is, I believe, of some importance to Scottish opinion—at present there is no right of appeal on a criminal matter from the High Court of Justiciary in Scotland to the House of Lords. That is in contrast to England where there is a limited right of appeal to the House of Lords on a criminal matter.
There is no right of appeal in Scotland. There never has been because there was no right of appeal from the High Court of Justiciary to the Scottish Parliament before the Union, and when someone tried to appeal to your Lordships' House just after the Union he was told that he had no right because of the history of the matter. There have been at least two attempts since—one in 1781 and the last time, I think in 1876—when people have tried to appeal on a criminal matter to this House and have been told that they had no right because of the pre-Union lack of a right to appeal to a Scottish Parliament.
For that reason there is some feeling among Scottish lawyers, and perhaps the Scottish public for all I know, that even the thin end of the wedge—allowing a right of appeal from the High Court of Justiciary to the House of Lords—would be undesirable and it would be better, if there is to be a right of appeal at all on devolution issues, that it should be from 1434 the High Court only to the Judicial Committee. It may be said that that is a sentimental argument. Perhaps it is a little sentimental, but then sentiment is not entirely to be excluded from these matters and I rank myself with those who prefer the Judicial Committee for this purpose.
Finally, there is the practical argument which might appeal to some people and not to others, that the members who could be called upon to make up the Judicial Committee of the Privy Council are from a rather wider area than those who can be called upon to make up the Appellate Committee of the House of Lords. In particular, judges in some dominions—Australia and New Zealand—and other people who hold or have held high judicial office, if they are Privy Councillors would also be eligible to sit on the Judicial Committee, although they might not be eligible to sit on the House of Lords Appellate Committee. That might be an advantage, rather than as has been suggested by one noble Lord, a disadvantage. I regard it as an advantage. It is not a matter upon which I think much passion can be engendered, but I would rank myself, on the whole, in favour of the present proposals in the Bill, and with that I leave the matter.
§ 6.36 p.m.
§ Lord O'NEILL of the MAINE
My Lords, the remarks of the noble and learned Lord, Lord Fraser of Tullybelton, took me back some 10 years, because I seem to recall—although I know nothing about the law at all—that before a Northern Ireland Minister could introduce a Bill to the Northern Ireland Cabinet, his department had to get a certificate from the Attorney-General's office showing that that measure was not ultra vires, otherwise it could not even be considered by—to use a modern phrase—the Executive. I do not know whether the noble and learned Lord, Lord Fraser of Tullybelton, is interested to hear that, but that was the situation in Northern Ireland and my memories were stirred when I heard his remarks.
I came to my conclusion about Scottish devolution over 30 years ago. I travelled from Northern Ireland to Scotland on a Parliamentary deputation—I went to St. Andrew's House as well—and I returned 1435 thinking what a pity it was that there was not a Parliament in Edinburgh, and I made a speech on this subject in my constituency.
That was over 30 years ago, but I do not propose to go back on something that I said at that time. In any case I am sure that noble Lords would agree that it would be rather an act of hypocrisy for a former Prime Minister of Northern Ireland to say that he was against devolution. As I understand it—I know that we must not go by these things too carefully—the opinion polls in Scotland, at present, are running at two to one in favour of devolution. I am also aware of the fact, from some of my Scottish friends, that some of what I would describe as the "professional classes", who perhaps a year ago were very keen on devolution, are not now quite so keen on it as they were; and I think that I know why, but I shall not go into that matter now.
Nevertheless, I think that we could assume that there probably is a majority in favour and that leads me to my second point. I think that my noble friend Lord Home of the Hirsel touched on this matter in his absolutely first-class speech, with every word of which I agreed, and it was also referred to by the noble Earl, Lord Perth, who spoke shortly after my noble friend. Why cannot we have the referendum first? Some noble Lords have said that they know for a fact that the majority of the people in Scotland do not want devolution. Other noble Lords, like myself, say that they believe that the majority of people in Scotland do want devolution. Obviously, I could not have made this suggestion five or six years ago because referenda were not respectable in those days. However, if we could alter the whole of the Constitution of the United Kingdom as a result of a referendum, why cannot we find out what the Scottish people really want? It is probably too late to say it now, but in my view that would have been the proper course to pursue.
I thought that one or two remarks made by my noble friend Lord Home of the Hirsel were most significant, in particular his remark that if the Bill is thrown out, the call for devolution will not go away. That comes from someone 1436 who chaired a committee on some kind devolution way back in 1968. I was delighted when he said that St. Andrew's House had been a success. I have been there two or three times, and from my small knowledge of these affairs I fully agree. I also agree—and I think that the noble Lord, Lord Boyd-Carpenter, made a point of this—that if we are to have an Assembly in Edinburgh, it should definitely be given some control over its finance. My noble friend Lord Home said that as well.
Finally, as someone who sat on the Blake Committee which went into the possibility of introducing proportional representation into this country, I regard it as a tragedy that the first elections for the Assembly should be held on a non-PR basis, because it could well be that under that system the Scottish Nationalists will do much better than they should. That, of course, also applies to the next United Kingdom General Elections as well. But opinion on proportional representation is very slowly beginning to change. I forecast that before the end of this century we shall, in fact, have proportional representation in the United Kingdom as a whole.
Sometimes people say to me, "We don't want devolution for Scotland. Look what happened in Northern Ireland." Mercifully, I believe that to be a false analogy. Mercifully, there are not the same underlying problems in Scotland as I know only too well exist—and how deeply they exist—in Northern Ireland. I hope that that is not a problem with which the Scottish Assembly will have to be involved anyway nearly as deeply as we were in Belfast.
Despite everything that has happened in Northern Ireland, I can sing the praises of the Ulster Administration. In my time, everyone who came to Northern Ireland was highly impressed by the Ministry of Agriculture. Incidentally, we had complete control over our forestry of all kinds, which is something that has been raised in this debate. Perhaps I could give just one small example. We eradicated brucellosis in Northern Ireland several years ago now, when it was thought to be quite impossible to do so in the rest of the United Kingdom.
Our Ministry of Commerce was absolutely first-class. Duponts introduced 1437 their first European investment into Northern Ireland and the great factory is there outside Derry today. By the time I left the scene we had brought 35 American factories to Northern Ireland, and every industrialist I ever met always praised our Ministry of Commerce. I cannot remember which noble Lord said that a Department of Commerce in Edinburgh would not be appreciated by industrialists. Certainly that was not at all our experience in Northern Ireland. It was very much appreciated. Once or twice before I have said in your Lordships' House that the tragedy of Ireland might have been avoided if London had been more far-seeing. Although the problem is not the same—and I have already stated that—I hope that noble Lords will bear this in mind when considering the problems that we have before us today.
Just like the noble Lord, Lord Boyd-Carpenter, I too received a letter in most moderate terms from the Shetlands Islands Council this morning. I expect that the noble and learned Lord, Lord McCluskey, has read it himself. Could I have an assurance that the position of the Shetlands and Orkneys will be safe-guarded?—that is, that the Government will not attempt to alter the Bill as amended by Mr. Grimond's Amendment in another place? If they are overridden, these Northern Isles could well turn into the Ulster of the Scottish devolutionary problem. All civil servants have tidy minds. They wanted to give devolution to the whole of Ireland, including the North, which did not want it at that time; therefore, they could not give devolution to the South of Ireland—that would have been an untidy thing to do. In the same way, on the map the Orkneys and Shetlands are part of Scotland and therefore must be treated as part of Scotland. But if they have a good case for wanting something different, I hope that the Government will appreciate that and not try to alter the Bill.
I should like to ask another question of the noble and learned Lord, Lord McCluskey, who will reply. Again it is based on my knowledge of Northern Ireland. If it wanted to, could the Assembly introduce proportional representation after the first election? When the Parliament was set up in Northern Ireland, it was with proportional representation. Seven years later it was 1438 changed by the local Parliament to the first-past-the-post system. Then, in 1972, Mr. Whitelaw put it back again to proportional representation. I simply wonder whether this proposed Assembly would, in fact, have powers to alter the electoral system if it so desired, because it rather looks as though we shall not get PR for the first election. But I would hope that if Scotland itself wishes to introduce PR, it would have sufficient power to do so.
Finally, I should like to mention a small point, but these things are extremely important in a small country. I was not very attracted by the suggested name of the head man in this Assembly—namely, the First Secretary. Could we not have what we had in Northern Ireland—it was, of course, a tragedy that it did not last—namely, Chief Executive or even Chief Secretary? I prefer Chief Executive. The Bill talks about the Executive. I think that Scottish people understand what chiefs are, and I should imagine that we have several Scottish chiefs sitting here in your Lordships' House tonight. Somehow, Chief Executive is more impressive. It is a very small matter and I raise it as a kind of finale.
Personally, I am utterly committed to Scottish devolution. Although your Lordships' House must, of course, amend the Bill which has been rushed through the other place, I hope that it will not be unnecessarily delayed even if it is imperfect, because I believe that this is something and its time has come.
§ 6.49 p.m.
§ Lord BANKS
My Lords, we have had a lengthy and interesting debate, a debate which has been marked in particular by the distinguished maiden speeches of the noble and learned Lord, Lord Scarman, the noble Duke, the Duke of Buccleuch and Queensberry, and the noble Lord, Lord Fraser of Kilmorack. I am sure that the House will be anxious to hear all three again in the very near future. Right at the outset of the debate my noble friend Lord Mackie of Benshie said that we on these Benches felt that the Bill was not perfect but that nevertheless we would support it on Second Reading as a step in the direction in which we want it to go. After all, there is a long Liberal history of support for Scottish home rule.
1439 The noble Lord, Lord Drumalbyn, in his speech yesterday recalled that in 1914 his uncle had introduced a Private Member's Bill into the House of Commons to provide Scottish home rule, and that it had had the support of the Liberal Government of the day. I am glad to say that my great uncle, Harry Watt, who was the Liberal Member for the College Division of Glasgow at that time, was present on that day to support him, as a reference to Hansard will show. Twenty years later we find in the Liberal Official Policy Statement these words:Subordinate Parliaments should be established for Scotland and Wales, also for large areas in England, with powers similar to those enjoyed by the Parliament of Northern Ireland.That has remained our position since.
That statement spoke about a large measure of devolution. We have moved on from the principle of devolution to the principle of federalism, to the federal concept; to a clear division of powers, each tier of Government sovereign in its own sphere. I was particularly interested to hear what was said about federalism during the course of this debate. The noble Earl, Lord Perth, seemed to say that he felt that we might well come to federalism in the long run. The noble and learned Lord, Lord Scarman, spoke of the introduction into the British constitutional pattern of a judicial review of legislation in certain defined circumstances; those circumstances being most carefully defined and specified by Parliament itself. He said that this was a useful jumping off, or starting, point for federalism.
The noble and learned Lord was careful not to express an opinion himself one way or another on federalism, but I did not detect, when he said those words, any great note of alarm at the prospect. With this long history of support for devolution and federalism, it is not surprising that we on these Benches cannot regard this Bill as the radical and disruptive instrument which it has been made out to be by so many of those who have spoken during this debate. We believe that this Bill has certain improvements in it over its predecessor, the Bill for Scotland and Wales jointly.
For example, there is the intention to explore a fixed formula for a block grant over a number of years, giving a degree 1440 of continuity and stability. There is the reduction in the powers of override as they were first set out in the original Bill. There is the agreement in principle to provide the Assembly with revenue raising powers, and there is the fact that there are two Bills instead of one, enabling us to deal with Scotland and Wales separately, which I think most noble Lords would agree is the more satisfactory way of approaching the matter.
However, in our view there are still faults in the Bill, because in spite of the fact that there is agreement in principle about revenue raising, nothing is to happen about it in practice. I share the view of many noble Lords who have spoken during the debate who have felt that an Assembly without some degree of revenue raising powers of its own is a limited Assembly and one which is not going to be given as full an opportunity for success as it ought to have. Then again we do not believe in fact that the economic powers which have been given to the Assembly are sufficient. The guidelines, for example, in relation to the Scottish Development Agency and the Highlands and Islands Development Board remain with the Secretary of State.
Thirdly, there is the question of the electoral system. I have been greatly encouraged by what has been said about that yesterday by the noble Lord, Lord Home of the Hirsel, and the noble Earl, Lord Perth, and today by the noble Lord, Lord Orr-Ewing, and a few minutes ago by the noble Lord, Lord O'Neill of the Maine. I very much hope that during the course of the Committee stage an Amendment will be passed which will introduce a system of proportional representation for election to the Assembly.
The matter which seems to have occupied a great deal of your Lordships' attention, as it did the attention of the other place when the Second Reading debate took place there, is the question of Scottish Members voting on English matters and English Members not being able to do the same on Scottish matters. The noble Earl, Lord Ferrers, yesterday thought that the flames of English nationalism would be fanned by this. He may be right. He may of course be wrong. If he is wrong and if, for example, the people of England are content to be governed in the way in which they have 1441 been governed even though that anomaly exists, and if that anomaly does not mean so much to them as they think, then in that case we have no worries under the Bill. On the other hand, if he is right and this situation will inflame English nationalism, then I have no doubt that what this would lead to would be a demand for devolution for England; a demand for some form of federal arrangement. I would welcome that development.
Speaking for myself, the scheme which I would prefer would be the scheme under which the English regions would have rather less powers devolved than Scotland and Wales, and the remaining purely English matters would be decided by the English Members of the United Kingdom Parliament meeting separately. However, the point which I am making is that English nationalism would create pressure for a federal solution. I wish we had an overall solution put before us in this Bill. One which covered the whole of the United Kingdom. I agreed with the noble Duke, the Duke of Buccleuch, when he said that piecemeal tinkering is so dangerous. In my opinion, it is essential that all the varied constitutional issues with which we are faced at the present time, and with which we are coping in a piecemeal manner, should be brought together and related.
The noble Lord, Lord Thomson, in the course of his speech said that he saw nothing inconsistent between arrangements for voting in the European elections and the arrangements for a Scottish Assembly. I agree with him about that. There is nothing inconsistent between them in principle. But it is vitally important nevertheless to relate the two, and to relate the two to the workings of our Parliament here, because they relate to matters of reform of the composition of your Lordships' House as well as to other constitutional issues. Therefore, the important thing is to consider them together.
I return to the point which I made a moment or two ago. If there is an upsurge of English nationalism, as has been suggested, that is much more likely to lead to a demand for a federal system, or at least to a measure of devolution within England, than to a break-up of the United Kingdom.
Then there is the argument that the Bill will lead to a break-up of the United 1442 Kingdom because it will be the thin end of a wedge; the Scots will want more and more until eventually they demand independence. But I think it is absolutely clear that the Scottish people do not want separation at the present time. I agreed with the noble Lord, Lord Thomson, when he said that failure to do anything at all was much more likely to promote a break-up of the United Kingdom than the action which is proposed under this Bill. That is the important point.
There must be a readiness and willingness to learn from the experience of the operation of the Assembly, and to make such reforms for its smoother working and more satisfactory working as experience may prove to be necessary, and it may well be necessary to devolve more powers. But the road set out in the Bill offers a chance to preserve the unity of the United Kingdom which, if no action were taken, I do not believe we should have. On that point, I agree with the noble and learned Lord the Lord Chancellor, who made a similar point when he was introducing the Bill to us yesterday.
Some noble Lords have referred to the powers of the Secretary of State and to the degree of administrative decentralisation to St. Andrew's House, and they have asked, "How much more can we devolve?" However, the point is that there has been no parallel devolution of democratic control, and that is what the Bill provides and I believe it is what the people of Scotland want. In so far as we are able to ascertain what that is from opinion polls, that would seem to be what the people of Scotland want. As the noble Lord, Lord Taylor of Gryfe, said, they may be more interested in the World Cup than they are in devolution, but that is a common experience so far as political, constitutional and economic issues are concerned and does not apply only to this one. I believe we know what the people of Scotland really want. The Bill has limitations in our eyes but we believe it is an important step forward. If the Amendment is pressed to a Division—we hope it will not be——we will vote against it.
§ 7.1 p.m.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, during the prolonged but none the less guillotined proceedings in another place my right 1443 honourable friend Mr. Francis Pym said one very wise thing which I believe to be true. He said that if there were no Party discipline in that place there was no majority for this Bill, but he added—and this rather underlines what we have been talking about—that neither was there a majority for any other position whatever, including the status quo. I believe that to have been true in this House and I believe it to be true in the country at large in so far as people are interested in the problem at all. When I hear my noble friends and noble Lords opposite talking about dynamite, I believe that is the explosive element in the situation; that after the Royal Commission, the Home Committee, three White Papers and two inconclusive Bills (one of which aborted), public opinion has not for some reason jelled about this all-important issue.
I venture to think—and I shall not elaborate the point at this hour—that the reason is that what we are discussing is basically a symptom of a much larger problem. That problem was well exposed in the most distinguished maiden speech of the noble Duke, the Duke of Buccleuch, and it is that the Constitution—by which I do not simply mean the Constitution as regards Scotland, but the Constitution which has served us so well and for so long—is in real danger of breaking down, and the factors which are leading it to break down are much more widespread than the factors which have led the Government to introduce the Scotland Bill before Parliament. However, I said I would not elaborate that point, and r will not.
We are of course technically speaking to the Amendment in the name of the noble and learned Lord, Lord Wilson of Langside, and I congratulate him on tabling it. He has persuaded me at least that there are defects in the present proposals which cannot be removed by means of amendment in Committee because I think there are inherent deficiencies in the thinking behind the Bill. This has been emphasised by so many speakers that, although I shall elaborate it a little later, I do not need to do so now because I am going on to say to Lord Wilson, with my noble friend Lord Ferrier, who I congratulate on an admirable speech, that I hope he will not press the Amendment to a Division.
1444 I shall explain to the House why, despite my dissatisfaction with the Bill, which I do not think can be turned into a silk purse, I believe that we should give it a Second Reading and that it should go forward in an amended form. My first reason is this: I do not blame the Government for this at all, but I think the country and Parliament have got themselves into a position in which a referendum has become the only way of resolving this problem, and a referendum can take place only under this Bill. I may share the view of my noble friend Lord Home of the Hirsel that it would have been better first to have had a referendum about whether the Scottish people wanted separation—a view that was echoed by my noble friend Lord O'Neill of the Maine. But that is not practical politics now. I think we have to go forward to a referendum, and we can do that only by passing the Bill.
I know that my noble friend Lord Ellenborough said yesterday that it is a very difficult problem to ask the inhabitants of Scotland to decide, and anybody who has listened to this debate will be disposed to agree with him. But who are we to decide it more authoritatively after three White Papers, two Bills, one of which was aborted and the other guillotined, one Royal Commission and a Conservative Committee? The fact is that opinion has not jelled and I do not believe there is any rational course before us other than to see that the referendum is carried out, and the requisite majority obtained if it is to pass. I would say in passing to the noble Lord, Lord Belhaven and Stenton, that I do not regard this as undemocratic because I think that to make allowances for the opinion of an inarticulate majority of 61 per cent. is not necessarily an undemocratic procedure when fundamental constitutional proceedings are at stake, and in one form or another it is common to most democratic countries other than ourselves and one or two others.
Having said that, there is a second reason why we should give the Bill a Second Reading: it is that I very much want a Committee stage for this Bill, and we shall not have a Committee stage without a Second Reading. Take, for instance, the question of judicial review, a matter of great constitutional importance. It has led to differences among my 1445 noble and learned friends on the Cross-Benches, and here I congratulate my noble and learned friend Lord Scarman on his maiden speech. There are very important constitutional issues involved here and the House would greatly benefit from a debate on the subject. Then there is the question of proportional representation, which interests the Liberal Party a little more than it interests me, but why should they be deprived of their day in court on this subject? And certainly a number of my noble friends have taken a view identical to theirs.
Thirdly, there is the rather important constitutional question raised by my noble friend Lord Boyd-Carpenter about Clause 72 of the Bill. I agree with him that it is unconstitutional; it is entirely separate from the main issues of the Bill. The House of Lords has done nothing whatever to deserve this implied insult. There is no prospect of it doing so and were the clause to be passed unaltered it would pass as a precedent for future action. If the Labour Party wants to deal with the principle of the House of Lords, do not let them deal with it in the Scotland Bill. For all these reasons, it is important to have a Committee stage.
However, there is another reason, if I have not already over-egged my omelette. More than one noble Lord has referred to the explosive character of the Bill, for one reason or another. It will, according to some, be explosive if it is passed and, according to others, explosive if it is not passed. Either way, let us not add another spark to the dynamite, to use my noble friend's phrase, by adding a constitutional issue between Lords and country, or between Lords and Commons. It is bad enough already as it is.
For all those reasons I conclude that, despite the fact that I think he was very well advised to raise the fundamental question, which could not be raised on Committee, the noble and learned Lord, Lord Wilson of Langside, would not damage his reputation at all if he saw fit to seek leave from your Lordships to withdraw the Amendment.
I come on to my own position about the Bill. It is very difficult to express one's fundamental feelings about this without showing some sign of emotion. My Lords, I am British, and I am nothing 1446 else. Many noble Lords in this House are British and Welsh, British and Ulster, British and Scottish; but I am British and nothing else. I have one English great-grandmother, but I think that is the only English blood I possess. All the rest came from Scotland, but mostly via Ulster and via America. What am I but British? The purpose of the Scottish Nationalists is to deprive me of my nationality. If I were alone I suppose people would think that that does not matter very much; indeed, some might even be inclined to applaud. But I resent it because I am British and believe that it is a good thing to be. I also think that those who are Welsh and British, like the noble and learned Lord, or Scottish and British, like my noble friend the noble Duke, or Irish and British, like my noble friend Lord O'Neill of the Maine, are not less British for being Irish, or not less Irish for being British. I think that it is being British plus, and Irish plus, and Scottish plus, and Welsh plus; and I do not want to see this broken up.
When I go back a little into history I think in the terms of my noble friend Lord Strathclyde. This Union has been one of the most resounding successes in human history, and I am proud of it. Neither England nor Scotland, nor even Wales, before Union really amounted to very much in its impact upon the human race. But since then we have carried our values, our religion, the English language, our laws, our political system, across the world. We have saved Europe from tyranny not less than three or four times. We are going down in history, as a result of the Union of the Parliaments, as one of the great nations of mankind. Nothing can take that away. Has the need for it disappeared? Is the world so safe that we can afford to abandon our tradition? I should think not. I should think, without going into questions of international politics, that the prospects are stormy. I hope that they are not desperate, but they are stormy on a half dozen different rounds, and even if we take the most optimistic view of the future of peace, and even within the hard bargaining which had become the domestic life of the European Community, the people of this country would be worse off if they could be played off one against another as three or four separate entities. We would be worse off.
1447 I believe that separatism is treason to the United Kingdom, treason to Scotland, treason to England, treason to Wales, and treason to Ulster, too. I am, therefore, an unreconstructed unionist upon this object, and without in any way trying to beg the question raised in the debate, as to whether the Bill will further the continuance of the Union, or endanger it—I realise that that is a matter to be discussed—my first priority is to retain it, and to retain it by the best means possible.
I come now to the criticism I have of the Bill. I believe that there are only a few identifiable options before this country, and I believe that the Bill fudges them all and chooses none of them. I do not criticise either the Government or my fellow countrymen, particularly not my English fellow countrymen, for fudging things. They call it a typically British compromise. After all, they fudged the Reformation by remaining Catholic and pretending to be Protestant. They fudged the whole problem of republicanism by becoming a republic and retaining a king, in contrast to our American cousins who pretended to be a republic and have an elective monarch. So I do not blame them for fudging it, but I beg them to believe that there are points at which clarity of thought about constitutional questions has, at least, a certain merit.
One option is undoubtedly the status quo, and by the status quo I mean a unitary State with whatever decorations, modifications, or improvements one chooses to make. There is much to be said for the status quo. It has served us extremely well. But if the status quo is to remain, we must at least be prepared to answer this question: Will Scottish nationalism go away if we go on saying, "No" indefinitely? Anybody's guess is as good as mine, but my guess is that it will not. If it does not, my guess is that sooner or later we shall be faced with the problem of coercion or no coercion. There is nothing morally wrong about coercion. Abraham Lincoln—to whom one of my noble friends referred in the course of his speech—tried it against my ancestors and won. So there is nothing morally wrong about it. But if it is something which is not going away, and we can avoid that kind of situation, surely we would be wise to do so.
Secondly, another option is separatism. I have already rejected that by what I 1448 have said. Constitutionally it offers no problems; politically, economically and practically I believe it offers a number of insoluble problems. But at any rate that is an option which can be discussed, and I suppose that if we went in for it we would go in for something like the Benelux system. I do not like to think what would happen to the Western Alliance or to Western Christendom if we did. But at any rate, there it is.
Thirdly, federalism is an option, but federalism involves, I believe, judicial review not only of the devolved Parliaments but of the Westminster Parliament, too. That is what it involves in order for it to be federalism in every country where it has been adopted—and it has been adopted and worked relatively well from countries as separate, and as different in kind, as Switzerland, Australia, Canada and the United States of America. There is nothing wrong about federalism, but it would involve radical reappraisal of our constitutional arrangements, because not only would it involve, in my judgment, judicial review of this Parliament, which personally I should welcome, but also it would involve, I believe, regionalism in England; because I happen to share the view of the Kilbrandon Commission that England as a single unit of a federation would make the whole proceeding too top-heavy to survive. Very well, that is an option. But it is an option which is not proposed in the Bill.
What is proposed in the Bill is none of these things. Whether one is talking about the so-called West Lothian anomaly, or about the number of English Members of Parliament as compared with the number of Scottish Members of Parliament, or about any of the other anomalies against the Bill, which have been enumerated in the course of the debate—and there are very many—ultimately what one is saying is this: although one can have a unitary State, and that will work, or a federation, and that also works in other parts of the world, what one cannot do, and what has never been done, is to graft on to a unitary State some of the characteristics of a federation as to some of its parts.
If I may quote again from one of my right honourable friends in another place, at a very early stage of this debate my right honourable friend Mr. Edward Heath said what I also thought was true 1449 and a very wise thing. He said that if we are to stay together in the United Kingdom as a single nationality or State, although it may not be necessary that we should have identical terms of membership, they must at least be comparable. What this Bill does is to make the terms of membership not comparable as between the inhabitants of Scotland; the inhabitants of England; the inhabitants of Wales, which will have a dispensation of its own; and the inhabitants of Ulster, whose dispensation is in doubt but who certainly will not have the same dispensation, and do not have it now, as the rest of them.
What we have really got to make up our minds about is whether you can graft the characteristics, or some of them, of a federal State on to a unitary State; and, for the various reasons we have given, I do not believe you can. That, to my mind, is what renders this Bill in fact unacceptable. It is also, I believe, the thing which makes the Liberal Party and some others in error when they say to the House, as they do with great sincerity, "We believe that this is a step in the right direction". I do not believe that something which is going to break down completely is going to be a step in the right direction; and if it is inherently wrong, it is not something which is capable of amendment in Committee.
§ Lord MACKIE of BENSHIE
My Lords, it is curious that in this unitary State we have had an extraordinary situation such as we are proposing which, technically, has worked quite well in Northern Ireland; and in Scotland we have had a separate system of law and a separate system of education. If this compromise has worked in the past, that is why I say that this might be a step forward.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, there is nothing whatever in a system of law or a system of education—or, for that matter, a system of agriculture—which prevents it 1450 working very well in different Provinces of a unitary State or of a federation. It has worked extremely well in the federation of Canada, where they have pre-revolution French law.
When the noble Lord quite fairly interrupted me, I was about to raise the very question which he has in fact raised, because my noble friend Lord O'Neill of the Maine pointed out the case of Ulster. He is well entitled to say that under the Government of Ireland Act 1920 the situation of Ulster did not greatly differ from the situation which is now proposed for Scotland under the Scotland Bill. The noble Lord above the gangway is perfectly fair in asking me, "What do you say about Ulster?" because I have been saying for a very long time, being an unreconstructed unionist of the old type, that Ulster worked very well apart from its communal problems. I well remember going there before the communal problems really got out of hand and looking at the excellent agriculture they were producing under the régime of Stormont; but I think the position of Ulster is precisely the exception to what I am saying which really proves the rule. In Ulster you had a permanent majority of Unionists, two to one, and a permanent minority of nationalists, one to two, with a Border on the other side of the fence. What was constant during the 50 years of Stormont rule was that the Unionists, at almost any cost, would make what would otherwise be unworkable workable because they would continue to co-operate with whatever Government there was at Westminster.
Now contrast what is proposed to be done here. What is going to happen in Scotland is that, sooner or later, you are going to get a Government in the Assembly or an Executive in the Assembly, which is of a different political colour from the Government in Westminster. What is more, you are going to get a political Executive in the Assembly which does not want the devolution system to work. In that situation you have got all the makings of breakdown, because, in fact, as I think more than one of my noble friends has already said, what you will get is demands for things which Westminster cannot give. It may be legislation which is vetoed; it may be expenditure which is asked for and which is not raised. I am not now talking about the question of whether local taxes can be raised.
1451 Although this is of quite legitimate importance, I must point out that when I am paying 98p in the pound on my investment income, the scope for an increase in taxation is relatively limited. Until we can get down to a system where there are less taxes to be paid all round, the problem of raising revenue is hardly likely to be more than an academic one.
My Lords, what I am saying is that the Scottish Assembly will make demands for expenditure which will not be met. It will then be said, "England is stopping us from getting what we are entitled to"; every kind of agitation and hostility will be shown, and each time the moral will be drawn, the system cannot work.
§ Lord HAILSHAM of SAINT MARYLEBONE
It is a rather long-term fuse, I think, because I do not think these results will appear overnight; I think they will appear over a period of years.
But having said that, I want to end with two rather less gloomy points. I myself believe that there is a way out, and it is a way which was summed up in what my noble friend the Duke was saying. I believe the problem of the House of Lords, I believe the problem of the English regions, I believe the problem of Wales, of Ulster and of human rights, are all inter-related, and I do not believe they can be seen except in relation to one another, which is the breakdown, for a variety of reasons for which we need not necessarily be ashamed, of our old Constitution. I want to see constitutional reform on the agenda of every Party, and I want to see the Parties try to talk to one another, whether formally or informally, about the need for constitutional reform. Personally, I think this Bill has got to go forward with the criticisms I have made inherent in it. I think it has got to go to a referendum. I hope the Scots will turn it down. I think they will be wise to do so, but I think that this House would be somewhat imprudent if it were to try.
§ Lord BYERS
My Lords, before the noble and learned Lord sits down, may I ask him to clarify one point? He has made a very persuasive and welcome 1452 speech for giving this Bill a Second Reading and taking it to Committee stage. May I ask him whether he is advising his noble friends that, in the unfortunate event of a Division, they should in fact support the Second Reading of the Bill?
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I will see, if I can, that the Bill will succeed in getting through this evening's business, but I think I had better play this thing a bit by ear, if I may be allowed to do so. I think we shall succeed if we do not crack the Party Whip quite so loudly as the noble Lord is seeking to persuade me to do.
§ 7.28 p.m.
§ The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey)
My Lords, I have been waiting a long time to make this speech, and I am not referring to the 26 or 27 minutes that I have spent listening to the noble and learned Lord, Lord Hailsham, whose eloquence, learning, humour and powerful advocacy always make his speeches seem far too short. I do not refer, either, to the time spent over the last two days listening to over 60 speeches, for most, if not all, have enriched this debate and will, I believe, improve the public's understanding of the possibilities of devolution within the United Kingdom.
I refer in fact to the years during which we have worked, in our different ways, to find some way to meet the aspirations of so many people in Scotland for a greater and closer participation in the control of their own domestic affairs. I do not refer to the romantic and dangerous illusion of independence and separation—a separation from a voluntary Union from which all have benefited; I refer to the practical, hardheaded wish to come closer to those who take the decisions which shape their everyday lives. That wish, that aspiration, can be attained by establishing the system of devolution contained within this Bill.
I cannot hope to refer to every point raised by every speaker. May I first say that we listened to three maiden speeches by the noble and learned Lord, Lord Scarman, the noble Duke, the Duke of Buccleuch and Queensberry, and the noble Lord, Lord Fraser of Kilmorack; and each 1453 with elegance and lucidity, presented his arguments. We look forward to their guidance in Committee.
I should like also to acknowledge the constructive attitudes and positive support particularly of the noble Lords who spoke from the Liberal Benches. I refer to the noble Lord, Lord Mackie of Benshie, the noble Lord, Lord Tanlaw, the noble Lord, Lord Banks, and the noble Viscount, Lord Thurso. They reaffirmed their longstanding position with what one might call "value added". Of course, they have criticisms to make and a desire for some improvement; but, essentially, their speeches recognise, I submit, that we are living in a real world and their attitude is not, "Half a loaf is better than no bread." They welcome the Bill as a considerable step towards the cherished goal of devolution within a United Kingdom. I want to thank them for their positive support.
I want to acknowledge, too, the wholly positive approach of the noble Lord, Lord Home of the Hirsel, evidenced by his statement yesterday:I do not think we ought to conclude that decentralisation and devolution are beyond the art of politics.That is an echo from something which the noble and learned Lord, Lord Hailsham, said on a previous occasion when referring to what is known as the West. Lothian question; and I shall quote him later.
We are in Parliament to face up to problems, social, industrial, economic and constitutional. We cannot wash our hands of them and say they are insoluble. We have to call upon the genius we have developed in these matters and try to develop and fashion enduring, workable and politically possible solutions.
I want to acknowledge and welcome, too, the approach of the noble Lord, Lord Drumalbyn. I quote from his speech of yesterday. He said:I believe that one can exaggerate the dangers very greatly indeed. I do not want to pass over the difficulties.Again, he said:With a Bill such as this, I think it is time to say that it will work, it can work, if there is the will and determination to make it work and if there is goodwill.That is the approach that I commend to this House and I also commend the telling contribution of my noble friend Lord Glenamara which was positive, real and 1454 deeply felt. May I also welcome the contributions from those noble Lords with special experience as former holders of office as Scottish Ministers, special experience in dealing with Scottish affairs. Their approach was positive and encouraging. My noble friend Lord Hughes was one, Lord Glenkinglas another, and the noble Lords, Lord Home and Lord Drumalbyn, whom I have already mentioned. The noble Lord, Lord Campbell of Croy, added his voice to this effect, anyway, that he acknowledged the defects of the present system.
I had hoped to welcome a similar contribution from the noble Lord, Lord Polwarth, because on 27th January 1976, in a debate on the White Paper, he made a very telling contribution and I think he made some reference to it yesterday. He said:I believe something of the kind outlined in the White Paper is politically inevitable. The Assembly, its broad functions and the general organisation as set out are, I believe, as good a start as any we shall get. Let the Assembly get started without further waste of time. Let us get rid of the shackles to its operation. Do not let us go on discussing it ad infinitum for it will be too late.The noble Lord was then speaking when he was fairly close to holding office in Scotland. Alas! in the last 26 months he has changed his mind; and I admire his courage to do so.
§ Lord POLWARTH
My Lords, I explained when I spoke that I have undergone a conversion. Perhaps distance lent greater enchantment to the view. The further I go away from Government, I am convinced from my experience in the last two years in the world outside that my previous view was wrong. I explained that my conversion perhaps had been more gradual than that of the noble and learned Lord's Party when they decided to go for an Assembly.
§ Lord McCLUSKEY
My Lords, I think the House understands the noble Lord's position.
May I, before I come on to the main part of my speech, say that to me, as a very junior Member of this House, it is a daunting task to reply to this marvellous debate. I have envied, as I sat here, the well-turned speeches, prepared lovingly in some cases in libraries and studies, but unfortunately I have not had the same 1455 opportunity for studious perfection because my speech, to be relevant, must be something of an instant reply to the immediate debate. I hope that the House will forgive me if it lacks the coherence and polish of many of the speeches we have heard; but it certainly will not lack conviction.
On a different note, may I say that I regret the almost total absence, from the speeches of those who are opposed to this Bill and who are critical of devolution, of any recognition of the fact that what this Bill does, perhaps above all, is to allow people in Scotland to elect in the ordinary way Assembly Members who will exercise a close democratic scrutiny over the actions of an Executive formed from within their own number. This is an extension of democracy and democratic control to a part of the United Kingdom which already has decentralised systems and distinct traditions in law, education, health, housing and local government.
There were many points of detail raised in the course of the debate. The noble and learned Lords who spoke—and several did so—raised questions about judicial review and vires. Several noble Lords have spoken about forestry, industrial guidelines, local government, tourism, nomenclature and a number of matters of that kind. I am indebted to these noble Lords for the notice they have given of the points that they hoped to make and I think they will understand that I will hope to deal with them, along with my noble friend Lord Kirkhill, and the noble and learned Lord the Lord Chancellor, in the course of the Committee stage. I can and should perhaps deal with one or two points at the moment.
The noble Lord, Lord O'Neill of the Maine, asked whether the Assembly would be able to introduce proportional representation after the first election. The answer is, No. The electoral system is not devolved. He also asked for an assurance that the Bill would not be amended to remove the Grimond Amendment regarding the Shetlands. The position of the Shetlands under the Bill as it stands will be highly anomalous should the rest of Scotland vote for devolution and be granted it and should Shetland not vote for it and then not come within the scheme of devolution. That is 1456 recognised by the Shetlanders and the people of Orkney themselves. At the present time, discussions are going on between the Secretary of State and the local bodies. Correspondence is taking place and there will be meetings. It is hoped that from these discussions some agreement will be reached. If necessary, some Amendment will require to be made to the Bill.
I was asked certain questions in relation to Schedule 10 by the noble Earl, Lord Selkirk. In particular, he asked about finance and also about the form of Schedule 10. I hope that he will forgive me if I do not deal with the form of Schedule 10 tonight. It will take a very long time to do so and I hope that we can examine it together in Committee. In relation to finance, I commend the White Paper on financing the devolved services (Command 6890). I think the noble Lords on the Liberal Benches and particularly the noble Lord, Lord Mackie, made a considerable contribution to the production of the principles in that paper and led us towards the view to which the noble Lord, Lord Banks, referred. In principle, we would be content to see revenue-raising powers devolved to the Assembly, provided agreement can be reached on a scheme. I commend that White Paper to those who have not already studied it.
Let me remind the House of the general arguments for devolution. Most people in Scotland do not want separatism and do not want independence. These are seen to be, and surely are, irrelevant to Scotland's needs and damaging to the interests of all of us who are proud to be British. For reasons which the noble and learned Lord, Lord Hailsham, has just mentioned, federation is not seen to be an option. For that matter, the English do not want it and that in itself would be enough to stop it at the present time.
I believe that the Scots want some change, and, if I may adopt the technique exploited yesterday by the noble Baroness, Lady Elliot of Harwood, in relation to the speech made by a certain Lord Dunglass, I shall quote a small passage. Some noble Lords will no doubt recognise where it comes from:The feeling that Parliament and Government are out of touch with the people has probably been most acute in Scotland. This is partly the result of economic difficulties but it goes deeper. 1457 Scotland, like Wales, is a nation with a proud history of cultural, social, economic and military achievement. It wants a greater say in its own specifically Scottish affairs; it wants some of the powers at present exercised in London to be devolved to Edinburgh and greater political control of the administrative powers already devolved.That quotation comes from the Right Approach published by the Conservative Party in October 1976. If it is not their last word, it is their last printed word on the matter. So we seem to be agreed about that.
Scotland was always special since the Union of England and Scotland in 1707. There has been reference to the Act of Union. There was a Treaty of Union and there were two Acts of Union, an Act of the Scottish Parliament and an Act of the English Parliament. Others have described in better terms than I can aspire to the history of the growing decentralisation of government in Scotland, the re-creation of the office of Secretary of State in 1885, the growth of that office, the Secretary of State's entry into the Cabinet and the movement of the Scottish Office to Edinburgh.
The whole history has been spoken to by various noble Lords. It is the history of a discrete, historical nation with its own religious, legal and cultural traditions. Everyone recognises—none more so than the noble Lord, Lord Campbell of Croy, and others who, like him, have served with distinction in the Scottish Office—that one cannot go on decentralising. There is some limit. The Secretary of State is already heavily overburdened and so are his Ministers. The noble Lord, Lord Campbell of Croy, would agree with that. He would also agree that Parliament cannot give the time at Westminster to allow sufficient Parliamentary and democratic scrutiny of the numerous functions which the Secretary of State and his Ministers have to perform. There is a need, if we can possibly meet it, to improve democratic accountability.
There is another need: we must find some way—and perhaps this is only the first step—to reduce the burden upon Westminster itself. That burden increases daily and is certainly not diminished by the entry of this country into the European Economic Community. This House, which performs so well the work of scrutinising the legislation, the Directives and 1458 regulations, produced in floods from Brussels, will recognise how important it is that they should be equally well scrutinised in another place. If that is to be done, we must find some way of parcelling out the domestic matters to other parts of the United Kingdom.
We recognise that there are difficulties. We have never pretended that we have produced a perfect scheme which commands an instant consensus. There is only one country I know where you can get everyone to agree with everything the Government does. That is Albania. I do not propose that we should adopt methods that have led to that kind of unanimity. There are possibilities of friction. We concede that at once. The running of Parliament itself requires goodwill. It requires moderation, restraint and good sense. May I mention the House of Lords as a clear and good example of that? It may be said in pure constitutional theory that the House of Lords is a wholly anomalous body in a democracy. There is an effective permanent working majority inside it for one political Party; yet, most of the time, it works well. It works well because it refrains from using its political power, and most of the time it exhibits moderation and good sense. The conflicts arise when it does not. Our system has evolved wholly acceptable ways of encouraging the right restraints and resolving the conflicts.
Clause 72 has been mentioned. That was first mentioned specifically by the noble Lord, Lord Boyd-Carpenter. It contains a new—to the noble Lord and others, a surprisingly new—way of resolving conflicts between the other place and this House. It deserves, must receive and, I am sure, will receive, most careful scrutiny—and perhaps even worse than that—at your Lordships' hands. But it is an evolution of the kind of developments which have taken place in the past.
§ Lord BOYD-CARPENTER
My Lords, will the noble and learned Lord, having come to that point, tell the House whether the interpretation that I put on it—that it effectively removes control of this House over the statutory instruments made under the an accurate one, or whether he disagrees with it?
§ Lord McCLUSKEY
My Lords, the noble Lord's statement of the position is 1459 entirely correct. That is to be found most clearly under Clause 72. Clause 72 is applied by Clause 79(4) and other clauses to orders made under the appropriate provisions.
I was speaking on the general matter of the need in any Parliamentary system for goodwill, moderation, restraint and good sense. We should be wrong, in my submission, to assume that the Scots will elect an Assembly without the necessary political maturity, moderation and skill. May I pick up a point made by the noble Lord, Lord Campbell of Croy, when he reopened the debate this afternoon. He spoke of us rushing hastily and dashing in headlong. I am astonished to hear such an accusation from the noble Lord. It was answered very fully by my noble friend Lord Glenamara last night—and your Lordships will see it at column 1251 of Hansard. I mention it only in passing, but think of what we have had. We had the Kilbrandon Commission sitting for years, reporting in December 1973. We had these matters explored in the Manifestoes and campaigns, as we were reminded yesterday, in 1974. We had the White Paper in 1975 which was published everywhere. In Scotland there was what was known as a popular version. I do not know how popular it was. But the popular version was made available in every Post Office in Scotland. It was available to all the public. Then we had the Scotland and Wales Bill, and now we have the present Bill. It is nearly four years since the Party Manifestoes—not just those of the Labour Party but of the other Parties as well—carried the promise of devolved Assemblies for Scotland. That is not, in my submission, rushing headlong.
A considerable number of speakers have mentioned the guillotine. The simple fact is: no guillotine, no Bill. I do not know whether I understood correctly the noble and learned Lord, Lord Hailsham of Saint Marylebone, when he said that Mr. Francis Pym had said one wise thing. I am sure he said many more than one. One of the other wise things that he said was this—and he said it as recently as January this year in a Press release issued on 23rd January by the Conservative Office: 1460But the Government is right in one matter: under the present procedure no constitutional Bill could get through Parliament without a guillotine.He ought to know, because he was the Chief Whip in the Conservative Government which introduced the European Communities Bill.
May I remind the noble and learned Lord, Lord Wilson of Langside, who asked for a precedent in this matter, that that Bill was guillotined after 10 days of Committee stage in the other place. During those 10 days, one clause—Clause 1—and the first subsection of Clause 2 had been discussed. Two of the 10 days were taken up by points of order, and the guillotine procedure allotted a further 12 days to the Committee. I can go on because it was not just a question of the guillotine. The Government did not accept or propose one single Amendment of that Bill either in the other place or in this House. So when Mr. Francis Pym talks about the need for a guillotine, he knows what he is talking about. When I hear noble Lords in this House one after another—the noble Lord, Lord Orr-Ewing, was the last to do it—talking about the extra tier of government, I wonder how many of them advanced that argument against the European Communities Bill in 1972.
The noble Earl, Lord Ferrers, yesterday, the noble Lord, Lord Campbell of Croy, in his speech this afternoon, and Mr. Francis Pym about a year ago, called for all-Party discussions, for some kind of conference. The noble Earl, Lord Ferrers, said that it is still not too late for the Government to seek the advice of men of goodwill of all Parties or of none in the determination to try and find an acceptable solution. The Party for which he speaks is the only policital Party represented in this Parliament which did not offer evidence to the Kilbrandon Commission. In 1974, when the Government published their consultative document which formed the basis of these proposals, they received no comments from the Conservative Party. In 1975—
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, perhaps I could qualify that. I personally gave evidence to the Kilbrandon Commission when it was the Crowther Commission.
§ Lord McCLUSKEY
My Lords, I could clearly say that when the noble and learned Lord speaks he does not always speak for the Conservative Party.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, that is perfectly true. We all speak for ourselves in this House and elsewhere, but to give the impression that Conservatives were silent is perhaps a little less than the truth.
§ Lord McCLUSKEY
My Lords, with respect, the Conservative Party, first through their chief spokesman in another place, Mr. Francis Pym, in February 1977, and through their two official spokesmen in this House, Lord Ferrers and Lord Campbell of Croy, opening the respective days on behalf of the Party, called in the course of this debate for conferences between the Parties. The Conservative Party has resolutely declined to join in any discussion, and indeed in February 1977, when the Government offered consultation, the Liberal Party took up the offer and joined in and assisted us with consultations, as also did the other Parties; but the Conservative Party declined to do so. When we asked the Conservative Party to comment on devolution in its English dimension the noble Lord, Lord Thorneycroft, authorised a letter to be sent to the Government saying that it was not the practice of the Conservative Party to engage in this type of discussion. The noble Lord ought to know that. When these calls have been made noble Lords ought to know what is the history of these matters.
I was asked by a number of noble Lords—and I will mention again the noble Earl, Lord Selkirk—what the Government's response would be to Amendments and suggestions which are proposed in this House. We have already responded to suggestions; a number of the changes which have been made have been listed by the noble Lord, Lord Banks, and I need not go through them all. In response to criticism, and in response to the situation as well, we introduced separate Bills for Scotland and Wales; we introduced machinery for judicial review of vires; we gave greater Parliamentary control over the override provisions. In response to criticism from, among others, the noble and learned Lord, 1462 Lord Hailsham, we gave a much clearer definition of the devolved powers; we gave to the devolved Assembly responsibility for the implementation of international obligations; we introduced the possibility of premature dissolution and we accepted in the other place an official Opposition Amendment to alter the form of the ballot paper in the referendum. These are merely examples.
In response to the general question: What would be our attitude here? I can only say that we must wait to see what Amendments are put forward, what support they seem to command and how reasonable they commend themselves to us as being. Our attitude will be positive, but I hope to say—and I hope that my colleagues who participate in the Committee stage will be able to say the same—that when a proposal is put forward, if we are able to say "Yes", we will say "Yes"; and if we are able to say "No", we shall say "No" clearly at the earliest possible stage, so that your Lordships know where we stand.
I had thought of dealing with the West Lothian question but at this time of night that would take much too long. I would say only this about it: I regret that it is called the West Lothian question. It is a question which is much older than the honourable Member's conversion to anti-devolutionism. In fact it was a question posed in very explicit terms in Paragraph 56(e) of the June 1974 White Paper published by the Government. Noble Lords may recall that it was raised in this House and indeed was approached by the noble and learned Lord, Lord Hailsham, with his customary experience and expertise. This is the passage that I mentioned earlier. In relation to that question, he said:It may be intolerable that a temporary majority composed of Scottish and Northern Irish Members should say what the educational framework should be in England but it is no good looking at these things piecemeal and saying they are insoluble.I say the same. As Members of Parliament, it is our duty to look at real problems and to devise real solutions.
In the course of the last two days, many Peers in this House have spoken with passion and with conviction about the history and the benefits of the Union to us all and to our ancestors and about the 1463 need to preserve the integrity of the United Kingdom. I do not quarrel with one word of that. I and my colleagues are as passionate and convinced as those noble Lords are about the benefits of the Union and the overriding need to preserve our national integrity. As many noble Lords have said, however, the question is whether the Bill helps to preserve or to undermine the Union.
The underlying question is this: if we do nothing, shall we protect or weaken the Union? The forces threatening the Union do not owe their existence to this Bill. This Bill is an attempt to meet, accommodate and vanquish those forces. Criticise it if you will, but please recognise it for what it is. Many noble Lords have said, "I am in favour of devolution in principle." That is one thing you cannot have—there is no such animal as devolution in principle; it is just a gleam in someone's eye. You can only have devolution in practice. You have to choose a form of devolution, with all its complexities, its possibilities, its difficulties and its opportunities. It has got to be devolution in practice or no devolution at all.
Other noble Lords have mentioned the fear dimension. They have spoken frequently, particularly yesterday, about the pronouncements by leading members of the Scottish National Party, about the Bill, about the Assembly and where it will all lead. I am astonished at the credence which some noble Lords have given to such pronouncements by leading figures in the SNP. Why are these noble Lords so ready to accept the judgment of the SNP leaders on this matter? We do not accept their judgment on any other matters, and surely we must make our own judgment. The Government have made their own judgment subject to such assistance as Parliament can give. This House, with real regard to its constitutional position in relation to the elected House, must, of course, make its judgment.
§ Lord HARMAR-NICHOLLS
My Lords, surely we must attach credence to the words of these people. This Bill is one of the battles they have won, and there is no suggestion that this is the last battle they will win. We certainly have to give credence in the light of their successful past.
§ Lord McCLUSKEY
My Lords, on that I have said all that I wish to say. On the referendum I want to acknowledge particularly—perhaps "welcome" is the wrong word—the real agreement that we obtained from the noble and learned Lord, Lord Hailsham, that the referendum ought to go ahead. In this House many noble Lords have claimed that people in Scotland do not want this Bill; many other noble Lords have claimed that they do want this Bill. This is an argument which we cannot possibly resolve. The referendum is precisely the method of enabling that question to be resolved.
Some are also suggesting that the people of Scotland do not, or even cannot, understand the Bill. I fear that some of these comments were somewhat patronising. The Scots are intelligent, politically aware and well informed, and furthermore have been reading about these debates in Scotland day after day for many years. In so far as people do not know and do not understand at the present time what this Bill contains, surely it is our duty in the course of these debates to inform them and, indeed, in the course of the referendum campaign to inform them.
My Lords, may I conclude. In the coming weeks no doubt public attention will focus on the treatment by this House of this Bill. The public, certainly in Scotland, realise that most of the fundamental issues have been debated at length in the country and in another place. I would remind your Lordships briefly of the figures—the other place and this House have already spent more than 40 days discussing this scheme of devolution. Six days were spent on the November White Paper, which is essentially the scheme in the Bill. Sixteen days were spent on the Scotland and Wales Bill; over 20 so far in the two Houses on this Bill, and we will no doubt spend many more. We will emerge at the end with a Bill fully considered, with its main structure and essential details approved by substantial majorities in the elected Chamber and it will be seen to implement a clear Manifesto commitment of the Government. Finally, through the referendum, it gives to the people in Scotland who will be most intimately affected the chance to pass a judgment—a final judgment—on the proposals.
§ So, my Lords, let us be seen in the coming weeks—1465
§ Lord McCLUSKEY
My Lords, I am just finishing. Let us be seen in the coming weeks to approach it with the mature spirit of co-operation that this debate has already provided. Let us examine it, let us explain it and, if the House believes that it can be improved, let us be as constructive as we possibly can. Above all, let us abide by our resolve neither to wreck it nor to impede it by unconscionable delay. In that spirit and with the expectation that this House will emerge from these coming proceedings with its reputation enhanced and with a Bill which we can return with confidence to another place, I ask your Lordships to reject the Amendment.
§ 8 p.m.
§ Lord WILSON of LANGSIDE
My Lords, I have listened to and reflected upon the considerable wisdom of your Lordships' House in the course of the debate over the last two days. During the past several months I have been increasingly conscious of the profound concern in Scotland about certain of the provisions of this Bill—the kind of thoughtful concern which has been expressed by speeches such as that of the noble Lord, Lord Polwarth, on the one side and of the noble Lord, Lord Taylor of Gryfe, on the other. Having regard to what has been said 1466 by noble Lords such as the noble Earl, Lord Ferrers, in his notable contribution to the debate, and by the noble and learned Lord, Lord Hailsham—and not least, if I may say so, by the noble Lord, Lord Shinwell—I would ask the leave of the House to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.