HL Deb 09 May 1978 vol 391 cc903-66

House again in Committee on Schedule 10.

The Countess of LOUDOUN moved Amendment No. 300: Page 49, line 18, leave out ("inland waterways").

The noble Countess said: An Amendment similar to this was put down in another place by John Parker, but it was caught by the guillotine and never debated. The purpose of this Amendment is not difficult to understand. It is to exclude all inland waterways from the Bill. These waterways, or at least most of them, have been managed successfully by the British Waterways Board since January 1963 as a unified system, and the need for a national plan was acknowledged when the Water Act 1973 became law, and reaffirmed in paragraph 27 of the Green Paper about the future of the water industry. I can find no evidence of any great public pressure for inland waterways to be devolved.

The other nationalised industries created by the 1962 Transport Act are not affected. For example, the British Transport Docks Board have harbours at Ayr and Troon and in South Wales, which are managed locally and the functions of the British Railways Board in Scotland and Wales are not affected. Surely, there is a danger that if the waterways are left in the Bill, the properly integrated system now controlled by the British Waterways Board will become fragmented, thus losing much of its efficiency, and financially it will be much more difficult to allocate the scarce resources of both money and manpower, which can only be to the detriment of the best interests of the waterways. I beg to move.


I should like to support the noble Countess in the Amendment which she has just moved. I speak as one who has used these canals, and navigated them myself on a number of occasions in both directions. I know something about their character and what they mean to the amenities not only of Scotland, but of the whole country. Speaking as a Sassenach, who has nothing but Irish and Scots blood, I am very proud of our Scottish waterways and of the wonderful amenity that they are to the whole country.

The Caledonian Canal is not a very busy canal, but it is a great feature of the Scottish landscape and provides a valuable alternative passage from Inverness to Fort William or vice versa, when the weather around the Pentland Firth and Cape Wrath is too bad for fishing boats which want to travel from one side of Scotland to the other. So that besides having an undoubted amenity use and a use for pleasure boating, it is of the utmost value in that direction.

I shall say a word in a moment about the economic side, but may I just refer for a moment, because I do not want to keep the Committee too long at this late hour, to the Crinan Canal which has an even greater use. Some of your Lordships may not realise just where the Crinan is, but it is at the very narrowest part of all, at the top of the Mull of Kintyre. If it works properly and well, the canal forms a most valuable link for the use of yachts and pleasure boats generally passing from the Clyde area in Glasgow to the beautiful Oban area. It is possible for someone in the Glasgow area to spend a weekend around Mull and to get back in time to be in his office on Monday morning—that is, provided that the canal works properly. At the moment it does not work very well; it does work but not well. When I used the canal in 1963, it took me only half a day to pass through the 14 locks, but when I used it two years ago it took me the whole day. At the end of the day I was utterly worn out and glad to partake of the national medicine to help me to recover.

The fact is that the canal cuts off no fewer than 80 miles of sea if one has to pass right down the Mull of Kintyre to go round in the very stormy and "dicey" weather that one gets in that area and then up the other side. Therefore the canal ought to be well looked after.

I am bringing these points before your Lordships only to emphasise the importance of these waterways from the point of view of the amenities of Scotland and to consider how best to preserve them for the future so as not to run the risk of their becoming derelict or being put at the bottom of the queue for money. The new Scottish Assembly will have so many expensive matters to think about that I cannot help but think that these waterways will come very far down the list.

To give noble Lords some idea of the kind of money involved—it is not a great amount in the terms that we under- stand today but nevertheless it is quite considerable—there was a very unfortunate accident last year in the middle of the Caledonian Canal when a flight of locks collapsed and had to be repaired, every penny for the repairs being found by Her Majesty's Government and not by the British Waterways Board. It cost about £281,000 to repair these two locks. The Government, I am very glad to say, did indeed carry out those repairs. In fact, there are three other little waterways in Scotland—the Forth and Clyde and two other small canals in the waist of Scotland—which are not through routes, as are the two others. Between them, they absorbed last year no less than £1 million to keep them in some sort of running order and to improve the little ones, which are used purely for amenity purposes and are not through routes.

I cannot help but feel that if we allow the British Waterways Board to be fragmented so that these canals are made over to the new Scottish authorities it will be wasteful. What will happen? As soon as there is any trouble, the new tiny authority, as it will have to be, will immediately have to call in what will then be the English Waterways Board and contract with them to repair their waterway. One might say that there is something of a paradox here, because in the short run the British Waterways Board, by doing that, will probably be better off financially, for they will be able to get the price of the contract for putting the trouble right. But that is not how one should look at this.

This system should remain part of the general system, with the know-how of the British Waterways Board being put at the disposal of all of the canals throughout Scotland and the United Kingdom. One has to think, too, of the promotion prospects of the staff and their expertise which would be very badly affected if the waterways were to be fragmented. The opportunities for getting on and for being promoted in the Scottish section would be negligible and in the British section would be brought to a lower level because of the absence of the Scottish waterways from the system. I think we ought most seriously to consider keeping these waterways within the existing system; so I hope your Lordships will consider it right to support this Amendment in the Lobby this evening.

Viscount ST. DAVIDS

I do not regard this Government as insane, nor the other Governments which have preceded them in the last 20 years. Nevertheless, the unfortunate British Waterways Board has undergone proposal after proposal to cut it up or change its format. Each time it has been left in a position where it did not know what its new policy should be. Its employees did not know what their promotion chances should be, whether the Board was going to be wound up or expanded, and of course all the various private enterprises which existed on its waters and along its banks connected with it did not know whether they should be winding themselves up or going in for further investment. They have suffered under previous Governments, but they have almost suffered more under this Government. Until recently it was suggested that British waterways should be cut into nine pieces under the regional water authorities. We had a lot of argument on that and the points were put clearly to the Government that the Board would not work well in nine pieces and the Government were persuaded—very rationally—that it really worked best as one organisation.

Now under this Bill, and under the Wales Bill which we see approaching us, it is suggested that the waterways should be cut into three parts. No doubt that is better than cutting them into nine parts, but it is almost equally absurd. It is not only the promotion prospects for the workers in British waterways, as the noble Lord has just so adequately expressed, but there are a large number of central departments. For example, the engineering department has considerable expertise in building and especially repairing waterways. That expertise is needed, even though it is perfectly true that the Scots waterways are not physically connected with the English ones.

It is not the same as the Wales Bill, which I am sure I should be out of order in referring to now. There the connection is very clear indeed—the waterways wind their way in and out of England and Wales; here they are totally separate. But, nevertheless, the engineering department with its skills and its experience which is needed to keep the waterways in decent order needs to be one engineering department and not two or, if the Wales Bill comes through, three. The same goes for the department which is very busy and hard at work trying to encourage cargo on to these waterways. For all of us in this House who would like to see heavy traffic taken off the roads it is most important that there should be a department concerned with encouraging traffic to go on the water. It is much better done by one organisation than by three. The same goes for the tourist department. Tourism is being encouraged on these waters; it is better done by one department than by three.

Licensing is another matter; it is not so serious in the case of Scotland. I skip over that one lightly. But nevertheless we in this country are still trying to head for a unified pleasure boat licensing system, and that is not helped by this form of devolution. Apart from the political reason of giving a body in Edinburgh something to do—which seems to be what most of this Bill is about—I do not believe there is a single reason why the waterways should be so separated. In all logic, in all rational purpose for the good of these waterways, it is most essential that they should be held as one body under the British Waterways Board. So I have every determination to support my noble relative in the Amendment she has moved, and, if necessary, through the Division Lobbies.

9.1 p.m.


I must declare an interest, because when I am at home I cannot fail to see the Caledonian Canal every day. I doubt if even the keenest devolutionist in the North would want the Caledonian and Crinan Canals to be devolved. But, while we feel the canals would he very much better left with an Inland Waterways Board, we are not at all happy with the present set-up of the Waterways Board because it consists entirely of Englishmen—there may be a few Scotsmen on it. I would suggest a compromise here, that we have a little devolution and put one or two Scotsmen on to the hoard. We heard about locks collapsing last year, which should never have happened; it is only through lack of maintenance that it happens. Had you had on the Board someone who knew something about the matter, that would never have happened. I would, therefore, strongly hope that this Amendment is pressed and that waterways in Scotland are not devolved.


I should like to support this Amendment. As my noble friend Lady Loudon has said, there is no evidence of any popular or professional demand in Scotland for this matter to be devolved. British Waterways is one of the great success stories of the past 10 or 15 years. As my noble friend Lord St. Davids has intimated, why interfere with and possibly put in jeopardy something which is working so well?


I should like to ask the supporters of this Amendment how it is that the noble Lord, Lord Harvington, said that in 1963 he went through the Crinan Canal in half a day and, 10 years later, it took him twice as long. This does not appear to me to be of great credit to British Waterways. Then we had the collapse of the lock on the Caledonian Canal. It appears to me that if Scotland has only two waterways she should be able to look after them a lot better than the British Waterways Board appears to have done.


I should like to add this to what my noble friend has said. One noble Lord referred to the Waterways Board as the poor relation when it comes to the public purse. The time is not too far away when this form of transport will have to be looked at again as a commercial form of transport, once the high cost of fuel becomes apparent. As I see it, the waterways, although there are only two major canals there, will become part of an integrated transport policy in Scotland in about the year 2000. I believe they will play a major part in it. In that way I see this as being part of a devolved subject; that is, integrated transport, a cargo movement system that will appear North of the Border.


Can the noble Lord tell us how he integrates the Caledonian Canal with either MacBrayne's bus service or with British Rail?


The noble Lord has a great sense of humour. An integrated transport system means that you make a study of different kinds of transport and try to get freight from A to B in the cheapest and most efficient way possible. I was not considering the kind of transport the noble Lord has in mind.


I suspect that the Government are going to tell us that this development is discretionary; but the plain facts are that, as the Bill stands at the moment, it can go through the Commons "on the nod", without debate. Although those interested in the waterways are vastly increasing in number, probably people in politics and in the other place are not, in the main, concerned. That is a desperate danger.

There is a later Amendment to the effect that if this matter were devolved one would need an Affirmative Resolution so that the matter could be debated. There is no case whatsoever for devolving this matter, either now or later. The Scots do not want it devolved. The suggestion that there should be representation on the British Waterways Board for Scottish people sounds sensible to me. However, by far the wiser course would be to divide tonight and eliminate this matter from the Bill. The only possible reason for including it is that it is a pawn in the political game of devolution.

9.6 p.m.

Viscount THURSO

As one who has cruised the waterways of England and rowed on the waterways of the Forth-Clyde Canal in Scotland, I think that we should look at the waterways of Scotland from a view point that is altogether different from that from which we view England. The Forth-Clyde Canal was the only true, regular, freight carrier in Scotland. It is now largely filled in. Its terminal in Edinburgh is completely filled in. It is practically unusable. It would be impossible to resuscitate it for any practical purpose.

The two canals that exist are the Crinan Canal and the Caledonian Canal; they are accommodation canals for shipping. The Caledonian Canal is the means by which the East Coast fishers get across to the West Coast when the fishing grounds have to be changed and the means by which the people of Fraserburgh and Peterhead go to Loch Clash in order to fish the Minch. The Crinan Canal was used for communications up and down the West Coast of Scotland so that the puffers could get through from one area of sea to another.

The two purposes which the two remaining waterways serve are of great personal and particular interest to Scotland. They are totally different from the purposes for which practically any of the English waterways are used. There is a strong case for allowing the devolution of inland waterways in Scotland as their uses are quite different from those of the inland waterways in England. They are much more important than is realised to different facets of the life of the country.


It is odd that the Government are obviously trying to find as many subjects as possible to devolve. In fact, the noble Baroness said so, and so has Lord McCluskey. We have debated other forms of transport, such as the railways and air transport. Waterways are just another kind of transport. These matters should be looked at on a United Kingdom basis. I agree with the noble Viscount, Lord Thurso, that there are different uses in England for waterways from those in Scotland. I have been through both the Crinan Canal and the Caledonian Canal, not for commercial activities but on holidays. Going through the canals is an agreeable way of spending a holiday. I agree that probably Scottish waterways are used more for commercial purposes than for holidays, whereas a great many waterways in England are largely used for holidays. In any case, waterways are a part of transport.

I am not in favour of devolving transport as it is a matter for the United Kingdom and also because one waterways board with Scottish representation on it would be more efficient, not so expensive, and would contain more experience, than having a tiny waterways board in Scotland, dealing with only two or possibly three small waterways. Surely that could perfectly well be included in the United Kingdom. I should support those who suggest that the waterways should remain a United Kingdom matter.

Baroness STEDMAN

The Government's approach to the devolution of subjects, as we have said many times from this rostrum, is that the package of functions to be devolved must be coherent in itself. We want the borderline between devolved and non-devolved matters to be as clear as possible and we want it to work as smoothly as possible in practice. We have also tried to ensure consistency in the treatment of analogous matters.

This approach has determined our attitude to inland waterways. Inland waterways are a form of transport infrastructure. They are also a source of water supply, particularly for industry. And they provide unique opportunities for recreation and leisure pursuits. There are therefore very close links between the responsibility for inland waterways and the other matters which I have mentioned. And those other matters—this is surely important—fall within groups of subjects which we intend to devolve.

The noble Baroness who moved the Amendment spoke of the difficulties which devolution would create for the British Waterways Board. But it is not practicable to devolve ministerial responsibility for the larger matter of inland waterways and competence to legislate on the subject but, at the same time, to reserve all powers relating to the British Waterways Board. That would hardly be either a coherent or a workable solution. The Government take the view that the arrangements for the British Waterways Board must be related to those for inland waterways generally and that these must be decided in the context of devolution policy as a whole. On this the Government have taken the view that the links between inland waterways—including the British Waterways Board—and the devolved fields are stronger than those with matters which are to be reserved. There are no physical links between the canal systems of England and Scotland and the inland waterways in Scotland form a matter which primarily affects people living in Scotland and not those living elsewhere in the United Kingdom.

I should point out that since this Bill was first introduced in the other place the Government have modified the provisions relating to the British Waterways Board. Originally the Board was listed in Part I of Schedule 13. The intention was that the Government would make an order under Clause 64 before the main appointed day for transfer of functions to the Scottish Administration, dividing ministerial powers and making various associated changes in procedures and in financial requirements. Ministerial powers in relation to the Board's Scottish operations would accordingly have been devolved from Day 1. The Board has now been transferred to Part II of the Schedule. This means that no order will be made until the Scottish administration requests it.

There is nothing at all in the Bill to cause the fragmentation of the Board. Schedule 3 and Clause 64 provide that, if and when the Scottish Administration requests it, the Secretary of State may make an order giving the Administration ministerial powers, but that could not mean cutting up the Board or dividing its staff into separate units. All it would mean is that the Board would account separately to the devolved Administration for its operations in Scotland. It might be that the Assembly would subsequently legislate to alter the arrangements, but it is politically unrealistic to suggest that it would do that without regard to the wishes and welfare of the staff or of the financial consequences.

Your Lordships will also note that today's Marshalled List includes the Government Amendment No. 387 which proposes that any order under the clause affecting the British Waterways Board, or any other public body concerned, will require an Affirmative Resolution in both Houses. Therefore, there will be no question—if it is suggested—of action by stealth or of facing Parliament and the public with a fait accompli.

If and when the Scottish Assembly finds that it can administer its inland waterway functions adequately without assuming direct powers relating to the Board, or if it decides not to seek those powers until it has dealt with other subjects which seem to it to accord higher priority, the arrangements for the Board will remain unchanged meantime. Noble Lords will be aware that the Select Committee on Nationalised Industries in another place recently reported on the Board, and recommended that it should be excluded from devolution. The Government still have this recommendation under study, and we hope shortly to be able to publish our response to it in the usual way.

In those circumstances, I thought it right to explain to your Lordships the reasons which underlie the provisions of the Bill as we have them before us. But your Lordships will understand that I cannot now express a final view. Accordingly, I invite the noble Countess and your Lordships tonight to leave the Bill as it stands, pending publication of the Government's reply to the Select Committee. I expect this to appear very shortly. Then, if your Lordships wish, we can return the matter at a later stage of the Bill.


Before the noble Baroness sits down, I think she said that the dividing line should be as clear as possible between what is devolved and what is not. Can she tell me what would have happened two years ago when special money was required for what my noble friend has said about this lock's collapse? To whom would one go if the Government have their way tonight? Would one have to go to the Assembly, the Government in London or where, for this extra money? I do not think that the dividing line would be at all clear. We should be very lost as to where to look for this extra money. If the Assembly has a block grant, it would be most unlikely that it would suddenly produce £250,000 or whatever was needed to put the Caledonian Canal back into action again.

Baroness STEDMAN

If there is another disaster like the one in the Caledonian Canal two years ago and the money was not available in the block grant and the Assembly could not find it, it would be a matter of economic importance to the Westminster Government. It would be for the Assembly to make its case to the Secretary of State, or for the Secretary of State to make the case to the Westminster Government and the Treasury for it.

9.17 p.m.


I do not find the argument put forward by the noble Baroness very impressive. She has really said, "Give us a little time and we will publish our answer to the Select Committee's report ". The issue here is really quite simple. It is not a question of principle, it is really a matter of common sense and practice.

The fact is that there are two canals in Scotland which are navigable and about three disused canals. The British Waterways Board deals with some 2,000 miles of waterways. The waterways of Scotland comprise 130 miles only. Therefore, it is a very small proportion. In fact, I believe that there are only 26 salaried staff in Scotland, apart from lock keepers and such people, out of a total of 3,000 staff employed by the British Waterways Board. At present it is suggested in the Bill that responsibility for the 130 miles of waterways should be devolved to the Assembly, that responsibility for the 26 staff should rest with some other body which is responsible to the Assembly, and that when the British Waterways Board—or whoever operates the system in Scotland —wants to get its money, it has to go not only to the Department of the Environment, as it is at the moment, but also to the Assembly. I think that that is totally impractical.

The noble Viscount, Lord Thurso, said that we should look at the waterways of Scotland differently from those of England because their uses are totally different. That may be so, but this is the practical business of physically running the canals. The fact is that canals are not like rivers; they are man-made and the expertise required to look after the canals is limited and specialised. If we are really going to hive off these 26 people into a separate category and say that they have to run the canals themselves, then they will have to increase their staff.

As the noble Viscount, Lord St. Davids, said, where is the career structure there? Where is the responsibility? To whom will they be responsible? Presumably they will need to have new sets of accounts and so forth. After all, the essential services of the British Waterways Board —and this is the important point—really refer to things like general engineering, workshops, the legal and estate departments, and budgetary control. Under this process all that apparently has to be shifted up to Scotland, and for the sake

of 130 miles. With the greatest of respect, it is an absurdity.

The noble Baroness says that we want to be consistent and to make this work as smoothly as possible. All I can tell her, with the greatest respect, is that this is not going to make it work smoothly. With respect, it is not even being consistent. This is the only nationalised industry to be devolved. They have not devolved British Rail, the National Freight Corporation, or the docks. If this system were to go forward you would find that Ardrishaig Harbour at the mouth of the Crinan is not devolved but that the Crinan is devolved. That is an absurdity.

I would certainly hope that the noble Baroness would agree to accept this Amendment. She says, "Let us leave it and see what the Government's answer to the Select Committee's report is". May I remind the Committee of what the Select Committee on Nationalised Industries said. The report was printed on 27th February, 1978, and it said at paragraph 57 in big, black writing: Your Committee recommend that the Government should table Amendments to remove the British Waterways Board from the provisions of the Scotland and Wales Bills". That is fairly straightforward stuff. The noble Countess, Lady Loudoun, has helped the Government by relieving them of the responsibility which the Select Committee suggested the Government should have, and has tabled the Amendment herself. I hope that it will be accepted.

The Countess of LOUDOUN

I am sorry, but I have not been persuaded by the Government on this, and I should like the opinion of your Lordships.

9.22 P.m.

On Question, Whether the said Amendment (No. 300) shall be agreed to?

Their Lordships divided: Contents, 44; Not-Contents, 35.

Alexander of Tunis, E. Elton, L. Hewlett, L.
Amherst of Hackney, L. Faithfull, B. Hunt of Fawley, L.
Ampthill, L. Ferrers, E. Hylton-Foster, B.
Burton, L. Glenkinglas, L. Linlithgow, M.
Cockfield, L. Haig, E. Long, V.
Cromartie, E. Hanworth, V. Loudoun, C. [Teller.]
Drumalbyn, L. Harvey of Tasburgh, L. Massereene and Ferrard, V.
Dundee, E. Harvington, L. [Teller.] Monson, L.
Elliot of Harwood, B. Hereford, V. Montgomery of Alamein, V.
Morris, L. Rankeillour, L. Swansea, L.
Mottistone, L. Rochdale, V. Swinfen, L.
Mowbray and Stourton, L. St. Davids, V. Tweeddale, M.
Newall, L. Selkirk, E. Ward of North Tyneside, B.
Onslow, E. Skelmersdale, L. Wilson of Langside, L.
Perth, E. Strathclyde, L.
Balogh, L. Houghton of Sowerby, L. Phillips, B.
Champion, L. Kagan, L. Ponsonby of Shulbrede, L.
Collison, L. Llewelyn-Davies of Hastoe, B. [Teller.] Stedman, B.
David, B. Stewart of Alvechurch, B.
Davies of Leek, L. Lovell-Davis, L. Stone, L.
Davies of Penrhys, L. McCluskey, L. Strabolgi, L. [Teller.]
Elwyn-Jones, L. (L. Chancellor.) McGregor of Durris, L. Tanlaw, L.
Fisher of Camden, L. Mackie of Benshie, L. Thurso, V.
Gardiner, L. McNair, L. Wallace of Coslany, L.
Goronwy-Roberts, L. Milner of Leeds, L. Wedderburn of Charlton, L.
Hamnett, L. Oram, L. Wells-Pestell, L.
Hampton, L. Peart, L. (L. Privy Seal.) Winterbottom, L.

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

Resolved in the affirmative, and Amendment agreed to accordingly.

9.30 p.m.

The Earl of SELKIRK moved Amendment No. 176: Page 49, leave out lines 23 and 24.

The noble Earl said: I raise the question of historic buildings and monuments here in order to find out what the Government propose to do about this matter. This subject is extremely important, particularly for the tourist industry, and it is also a matter of great local pride. I think it worth reminding your Lordships of what Ernest Gowers said 25 years ago—that the destruction of architectural houses of value today was comparable only to that of Henry V1II's action with regard to the dissolution of the monasteries four or five centures ago. We are dealing with something of historic and of national value. I believe that at present the maintenance work involved here is extremely well done by the Department of the Environment. I have no complaints at all; I think that the Department does it very well. I want to get assurance on how this responsibility is to be handed over.

That is only half the story. I have to be careful here, but I think I am right in saying that there is no qualification in Part II of the Schedule of the words in Group 19 in Part T. If there was, I should have to derogate the words in Part II from Part I; but I think I am right in saying that there is no derogation here. However, there is an Act of Parliament which deals with this matter. It is the Historic Buildings and Ancient Monu- ments Act 1953. I should like to have some interpretation here with regard to the term "not included", as it appears in the Schedule. I take it that that refers only to Section 7 of the Act, which deals with the Land Fund. Am I right in assuming that the rest of the Act is included? How am I to know that? There is nothing to say that it is the case. We have to be very intelligent in trying to understand this Bill, but I am always glad to have a little encouragement and explanation.

Is it meant by what is proposed that the provisions of the Act of 1953 are operative? This would involve the Historic Buildings Council, together with the opportunities that arise for grants. I do not know whether in this case there will be direct grants, or whether it will be possible to issue preservation orders. Are these functions to be maintained as they are at present? As Ernest Gowers said, there is a very real problem about historic buildings, and that problem is getting bigger as each year goes by. So far as I can see, the only clear way in which money can be found to deal with this problem is from the Land Fund, and I do not think the noble Baroness will deny that the Land Fund is very well protected. If anyone can get any money out of the Land Fund in less than three and a half years, he may be said to be doing fairly well.

I want to know whether other grants will be available. I ask this because there is very keen competition from some buildings which are part of the historic tradition of the country and which are worth preserving. Will the Government say what their intention is here? Do they propose merely to make a block grant, or will there be something similar to that which we were discussing earlier today in relation to museums and art galleries? This problem has certain features which are similar to that earlier subject, but it is a different problem; there are basic differences. I should be very grateful if the noble Baroness can enlarge on this situation. I beg to move.

Baroness STEDMAN

The Government's approach to devolution is that matters which are primarily the concern of the people who are living in Scotland and which have little impact South of the Border should be devolved. Ancient monuments and historic buildings in Scotland, we think, clearly fall within this category. The special Scottish dimension is already recognised by the existence of a separate Ancient Monuments Board for Scotland and an Historic Buildings Council for Scotland, and it is right that they should come squarely within the competence of the new Assembly and Executive. It would therefore he wrong for the Government and Parliament to single out this part of Scotland's heritage for their continuing care and responsibility when new Scottish institutions had been created which were ideally suited to this task. The devolution of ancient monuments and historic buildings also helps to make up a coherent wider group of devolved matters, consisting of land use, countryside, museums and galleries and tourism, some of which also concern subjects of historic or archeological interest.

Subject to one exception, the Scottish Executive will take on all ministerial powers under current legislation, including appointments to the Historic Buildings Council for Scotland and the Ancient Monuments Board for Scotland, the listing of buildings and the making of grants for the acquisition and management of historic buildings. The Assembly will have a similarly wide legislative competence in the field, and will be able to give whatever slant it wishes to the statutory arrangements for historic buildings and ancient monuments. It could, for instance, provide for tougher controls over the demolition of listed buildings than we have at the moment.

The one exception to which I have referred concerns Section 7 of the Historic Buildings and Ancient Monuments Act 1953, referred to by the noble Earl. This concerns the power to draw on money from the National Land Fund, and that is reserved because it is the intention that the Scottish Administration should be financed solely through the block fund. But it would be wrong if the effect of the reservation was that Scotland was unable to benefit from the fund, which is intended for the United Kingdom as a whole, as we were talking about with museums and art galleries earlier. For this reason the Secretary of State is given, in Schedule 5, in lines 38–9 of the Bill on page 48, concurrent powers under Sections 4 to 6 of the 1953 Act. These powers concern grants for the repair and maintenance and acquisition of historic buildings, and also the acquisition and management of such buildings by the Government themselves. Normally, these powers will be exercised by a Scottish Secretary using money from the block fund, but the Secretary of State will also be able to exercise the powers with money drawn from the National Land Fund. We believe that the devolution of ancient monuments and historic buildings is entirely justified, and that the Bill makes satisfactory arrangements to ensure that the National Land Fund can continue to be used for Scotland as part of the United Kingdom.

The building preservation orders to which the noble Earl referred are part of planning legislation, and not historic buildings legislation, and they are devolved. So far as grants are concerned, I referred to the fact that they will still be able to draw on the National Land Fund for their grants; and for any other or additional grants the Administration will inherit the ministerial powers under the existing legislation, and can, of course, legislate themselves if they want some more. As to the system of special grants, together with estate duty provisions, the same provisions arise there as we debated under the purchase grants so far as museums and the arts are concerned, and they are not devolved. I hope that perhaps that clears the noble Earl's mind.

The Earl of SELKIRK

I am grateful to the noble Baroness. The point I am really pleased about is that there will be special grants in this field over and above the Land Fund, which I would hope will meet what I am sure will be a growing requirement of preservation of worthwhile buildings. I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

9.39 p.m.

Lord MORRIS moved Amendment No. 338: Page 49, line 29, leave out ("charities, including collections for charities.").

The noble Lord said: In tabling this Amendment I seek firm reassurance from the noble Baroness, for there are many in Scotland who fear that, should the Scottish Assembly be given power to determine in law what is and what is not a charity, many charitable institutions could lose their charitable status and thus be forced to cease operating. It is thought—and I may be quite wrong in believing this—that, by devolving legislative competence over charities and the collections for charities, the Scottish Assembly would be given a hidden fiscal power, albeit an indirect one.

If a charitable institution were to lose its charitable status, any surplus that might accrue to it in any financial year would be brought into charge to corporation tax and, thus, its very existence would be threatened. As I understand it—and I need guidance on this point—unlike in England and Wales, where charities are administered under the Charities Act 1960, Scottish charities are watched over by the Scottish Home and Health Department from New St. Andrew's House with no statutory powers as such, as a sort of public watchdog. This public service has worked well for very many years.

However, whether a Scottish charity is deemed a charity for taxation purposes is a question of fact to be determined in Scotland by common law. I would imagine inter alia by virtue of the provisions of the particular charity's trust deed, memorandum of association or whatever instrument evidences the legal existence of that charity, this determination would be affected, presumably, by the Inland Revenue and, as such, that matter would be a reserved matter under the provisions of this Bill.

In the light of this, may I ask the noble Baroness what there is at present in the Bill, as it stands, to prevent the Scottish Assembly from usurping Scottish common law by enacting legislation to control the charitable status of a Scottish charitable institution by way of statute law? It must be apparent by now to the noble Baroness that I am no lawyer and have little understanding of these matters. In moving this Amendment, I seek the Minister's guidance and, above all, the reassurance that the fears of many in Scotland are entirely groundless. I beg to move.


I did not quite understand the fears of my noble friend behind me when he said, I think, that this would give the Assembly fiscal power to raise charities, because already the Assembly has the power to run lotteries to raise money. I should like to make that point. I do not see what fears my noble friend has, in that, if the Assembly has the power to raise charities and collections, it gives it a greater power than it already has to run lotteries.


May I ask one question? What is the relationship of this, if it is devolved, with the Charity Commissioners?

Baroness STEDMAN

May I say how grateful I am to the noble Lord, Lord Morris, for having told me previously what his feelings were about this. I can give him the assurances that he asked for. The wording of Group 21 in Part I of Schedule 10 will enable the Assembly to legislate about charities in Scotland and the Scottish Executive to assume all ministerial powers in that field. The wording also embraces the matters dealt with in the House to House Collections Act 1939 (which deals with the regulation of house to house collection). The Assembly is, however, precluded from passing legislation which would confer tax relief on charities by the wording of paragraph 4(1) of Schedule 2 which states that, a provision is not within the legislative competence of the Assembly if it would impose, alter or abolish any tax". So that they have no powers over taxation.

In developing its devolution proposals the Government have been guided by the desirability of devolving all those areas of activity where decisions primarily affect the people in Scotland. Charities clearly is one of these areas: moreover Scottish charity law is already different from that in England and Wales. The Government therefore see this as one of the many mainly Scottish matters on which the Assembly should have wide-ranging powers provided the essential United Kingdom interest of taxation is outside the Assembly's competence. The Bill achieves this effect and the Amendment really is not necessary. It would not improve the Bill. There is no Charity Commission as such in Scotland, but there is one for England.


Would the noble Baroness clarify this point? In England and Wales, if an institution wants to become a charity, it applies and gets recognition under the Charities Act 1960. In Scotland, whether or not it becomes a charity, its status is decided under common law. Then, it is accepted by the Inland Revenue. As I understand it, because Group 21 is devolved, the Assembly will have legislative competence over charities; in other words, they could so alter the law that what was a charity would then become not a charity because the common law had been altered. They would not have to go through the process of the Charity Commissioners or anything like that. The point is that the Assembly can change the law by which a charity is now a charity and, having changed the law, it would be then up to the Inland Revenue (which is not devolved) to decide whether or not the body should be treated as a charity.

Baroness STEDMAN

We cannot affect any judgment of the Inland Revenue; but the Assembly has no powers to alter tax.


But they have the power to alter the law by which it is determined whether or not a body is a charity. After that, the Assembly does not have any power to alter tax.

Baroness STEDMAN

They cannot alter the law for tax purposes, either.


May I take up this point and ask whether the noble Earl, Lord Ferrers, is saying that the Assembly can alter the status of a body and thereby —but not directly—affect its tax? Is he saying that the Assembly can alter the status and therefore indirectly affect the tax? If so, perhaps the noble Baroness would be able to help on this.


The Scottish law in relation to charities is different from the English law in relation to charities. The English law relating to charities dates from an Elizabethan statute which predates the Act of Union; but in a case in (I think) 1951, that of the Glasgow Police Athletic Association, the Scots' view of charities was rejected by the Judicial Committee of the House of Lords in relation to tax matters. So far as tax is concerned, it is the courts in the United Kingdom and the United Kingdom Government which rule. The Assembly will have no power in relation to Group 21 to alter the law about charities in relation to tax matters.


I think we are getting nearer. From the point of view of whether or not tax should be applied, I entirely accept that the taxation aspect is reserved and belongs totally to the United Kingdom. I am not clear about whether the Assembly can alter or change the law (I understand that it can) and, by so changing the law, can alter the status of a body which would previously have been a charity, but which, because the Assembly had altered the law, would be pulled out of being a charity.


I am afraid that that question is slightly misconceived because one must ask for what purpose the charity is regarded as a charity for tax purposes. A body may be regarded as a charity if its purposes are—I cannot think of the word; it is an English word. It means "for the relief of poverty".




Yes, eleemosynary—for the relief of poverty. For tax purposes, the law in relation to charities is determined here in Westminster, and by the courts. But, for other purposes, it may be that the Scottish Assembly may make different provisions; one cannot talk generally about charities. One must know in what context one is talking about charities.


May I give as a precise example the charitable status of certain schools or educational bodies. Often this is considered to be a political point. Will the Assembly, therefore, be able to take away the charitable status of a school or educational establishment, let us say, and thereby alter it? I do not want to develop this point further, but I think this may be what the noble Earl had in mind. It is quite a large point, if it is a point at all.


It may be that I was not following the point that was being made, but, as I understand it, the Scottish Assembly will not be able to alter the law for tax purposes. It will not be able to alter the tax status of a body whether it be educational or for the relief of poverty.


If under the statute law of the Scottish Assembly, it is deemed that certain institutions in Scotland are charitable institutions (for instance, certain schools are in statute law deemed not to be of charitable status), will the Inland Revenue have to consider that point as a question of fact in determining whether or not they are charitable for tax purposes? I should like to get this point absolutely clear.


I think we are getting confused about this question of charitable status. I have had some dealings with the question of charities as chairman of the Charity Law Reform Committee, which has been rather unhappy about existing regulations concerning charities. The point is that the Inland Revenue will decide according to the objects of the body and how it is carried on whether or not a body is eligible for tax relief. It is a great asset to the body to have been registered with the Charity Commission because that enables it to sail straight through. If it is not registered with the Charity Commission it can still get tax relief if its objects are charitable.


That is exactly correct.


I am delighted to have that answer from the Minister and in view of that I am happy to withdraw my Amendment.

Amendment, by leave, withdrawn.

9.53 p.m.

Lord WILSON of LANGSIDE moved Amendment No. 257: Page 49, leave out lines 36 to 39.

The noble and learned Lord said: This, initially at least, is a probing Amendment. Whether it remains so will depend on the response from the noble and learned Lord to the questions which, with due diffidence, I suggest require clarification. It may be for the convenience of your Lordships' Committee if I suggest that along with Amendment No. 257 your Lordships should consider Amendments Nos. 258 and 260, because they hang together. Amendment No. 257 relates to Group 22 in Part I of Schedule 10. Amendment No. 258, as your Lordships will see, relates to Groups 25 and 26 of Part 1 of Schedule 10. These groups encompass those areas of the legal field which are devolved by the Bill. Of course the list is not exhaustive; it simply lays down certain areas of the field which are to be devolved. Amendment No. 260 relates to paragraphs 14 to 19 of Part II of the Schedule which set out the legal matters which, as I understand it, are not included in the devolved matters.

Perhaps, in spite of the lateness of the hour, I may be forgiven for prefacing the questions, which I am sure the noble and learned Lord will answer very fully and more than adequately, with two general observations. The first is that in the questions which I shall venture to put to the noble and learned Lord I have tried to be selective. When one looks over the Statute Book an enormous number of questions occur to one as perhaps being involved in this particular context.

I have tried to be selective. At the end of the day, I think I must apologise for putting some questions which are perhaps rather elementary, if not indeed, from a lawyer's point of view, a little naive. I hope the noble and learned Lord will forgive me —indeed, I would go further and say that I would quite understand if he prefers not to forgive me— because frankly I am still in a state not of confusion about Schedule 10, and in particular the legal matters here dealt with, but I am baffled as to why the Government chose to deal with it in this way. I think I understand what they are getting at, but I wonder why they went at it in this way.

May I digress for a moment to illustrate the difficulties which an ordinary lawyer finds over the legal provisions of Schedule 10. In answer to a question from the noble Lord, Lord Hughes, the other day, the noble and learned Lord said, as I understood him—and I am sure he will correct me if I am wrong—that the Assembly would have the power to legislate, to give to the sheriff courts in Scotland jurisdiction in matters of divorce which for the present lie within the exclusive jurisdiction of the Court of Session. The noble and learned Lord, during an explanation which aroused the admiration of the Committee (an admiration which I share) told us why the Assembly had the right to legislate on this question which involved the question of jurisdiction. He suggested that the Assembly would have power to give jurisdiction to a court which has not meantime such jurisdiction in relation to a matter which is not a devolved matter. I wonder whether this is right, because the law of husband and wife is not a devolved matter. Nowhere in this Bill is there any hint which would lead any Scots lawyer to conclude that the law of husband and wife was devolved.

Is it really the case that the Assembly is to have power to legislate on this matter and to give jurisdiction to a court which has not been found to have jurisdiction in a matter which is not involved, because the legal implications and the implications of this to a layman will be very wide indeed. What might the Assembly do in the field of jurisdiction if the noble and learned Lord is right? I say without any false modesty that he is much more likely to be right than I am; but I must say that it puzzles me. I have made this digression simply to illustrate some of the difficulties and reservations which many lawyers have about the construction of Schedule 10, and not least in the legal field.

The second preliminary observation I should like to make is that so far as Scotland is concerned—and of course-many people other than Scots are concerned about the Scotland Bill, as we have heard throughout the weeks we have been discussing this —the importance of these provisions to Scotland (the provisions with which this Amendment is concerned) cannot be exaggerated, because our legal system was reserved to us by Article 19, as I understand it, of the Treaty of Union.

The legal system was effectively devolved in 1707. It is perhaps worth while, before I come on to consider the Amendment— I am sorry to take a little time with this, but it is rather technical and I think that the Committee has to consider it—to look at the present set-up in Scotland for dealing with legal matters. These are the matters encompassed within the groupings and the paragraphs of Schedule 10, to which I have referred.

Who are responsible at the moment? First, the Secretary of State for Soctland has vast responsibility. Secondly, there is the Lord Advocate, with the Crown Office and the Lord Advocate's Department in London, and part of the functions of a body known as the Scottish Courts Administration, with which I used to have some connection. Thirdly, the Lord President of the Court of Session has considerable responsibilities for the day-to-day running of the Supreme Court and, as head of the Judiciary in Scotland, he has a conventionally accepted responsibility to which the lower Judiciary have regard.

This system has certainly presented a number of problems of the kind which have led some in Scotland to question whether we should be better off with a Lord Chancellor of our own. That is a little paradoxical, because, as I understand it, the Lord Chancellor is the Lord Chancellor of Great Britain, although he does not often in modern times venture across the Border, except socially. As I say, that was the set-up and, certainly, it has presented problems. But the question which I seek to raise with these Amendments is: Will these problems be added to or reduced by these proposals of the Government?

I have a number of questions which I hope that the noble and learned Lord will endeavour to answer; some are general and some are more particular. First, for the general questions. Why did the Government decide at all to divide the field of the law? Clearly, there were arguments for leaving things as they were; it worked, in spite of the problems to which I have referred. Equally, there were arguments for going the whole hog and devolving the whole legal field right across the board. I can see the arguments in favour of that. But what arguments were presented which persuaded the Government to decide to divide the matter, and, if those arguments were compelling, on what basis and according to what principle has this division been effected ? It is very difficult to find any principle at all underlying this division. For example, I ask your Lordships to look at Group 22, which purports to devolve the courts simpliciter. It includes: Courts, including juries. Court jurisdiction and procedure".

I then turn to paragraphs 14 to 16 of Part II, and in paragraph 14 certain matters are excepted from the jurisdiction of the Assembly. I quite accept the basis for these exceptions in paragraph 14. I can understand why the Government did not wish to entrust the continued existence of the High Court of Justiciary, the Court of Session and the sheriff court to the Assembly; but I wonder what is their explanation for this exclusion?

Paragraph 15 excepts the judges of the Court of Session and the High Court and the sheriff court, but then says that this exception will not extend to the number of such persons or to the determination of the territorial areas of the judges in the lower courts. Therefore, one has a situation in which the Scottish Secretary will be responsible under the Act for deciding how many judges and sheriffs he will have, while the Secretary of State will decide how much they are to be paid and who will get the jobs. What on earth is the point of that? I find that kind of situation to be a little puzzling.

To go back to Group 25, which deals with civil law matters, the source of the chapter headings is also a little puzzling. I wonder what was the source of this chapter heading? There have been a number of slightly ribald suggestions, which I shall not rehearse here tonight, among the younger and less reverent lawyers in the old Parliament House in Edinburgh. However, I wonder whether the noble and learned Lord could say what was the source of these chapter headings, because I certainly am a little puzzled by them.

Passing from the principle, in accordance with which the Government may have decided to divide the legal field between the Assembly and the Government at 'Westminster, what contribution, whatever the principle, do the Government think that this division will make to the growth and development of Scots law, of which all Scotsmen are traditionally proud? What contribution is it anticipated that this arrangement will make to that growth, and what contribution is it anticipated that this arrangement will make to the speedy and efficient disposal of business in the working of our courts? This was a matter with which the Grant Committee, which reported some years ago on the sheriff court, was greatly concerned. In effect, this committee reported that the business, at least of the sheriff court, should be brought under one umbrella.

Part of the problem—and some of it bordered on the scandalous—derived from the fact that there were too many cooks with fingers in the pie, and steps were taken by Governments of both Parties to put this right. It seems to me that these proposals will put back the clock again. We shall have too many cooks with fingers in the pie, the judges in these courts being appointed by one Government and the numbers being decided by the subordinate Legislature. These are merely illustrations of a division of responsibility which I should have thought was undesirable.

I pass now to some of the particular questions which I have selected just to illustrate the difficulties which I have had in trying to follow through the implications of the legal provisions of Schedule 10. I have chosen to test them by reference to the Sheriff Courts (Scotland) Act 1971. This was a measure which was passed in the days when the noble Lord, Lord Campbell of Croy, was Secretary of State, although it had been prepared by the previous Government.

I would ask the noble and learned Lord a very obvious question, to which I think the answer is obvious: Am I right in assuming that the responsibility for the efficient organisation and administration of the sheriff courts in Scotland, which is placed by Section I on the Secretary of State, will now be devolved to the Scottish Secretary? I think obviously it will. If that is so, what happens when we come to Section 9 of that Act, because that section provides: For the purpose of securing the efficient organisation and administration of the sheriff courts, and, in particular, the speedy and efficient disposal of business in those courts, the Secretary of State may give … directions of an administrative nature to sheriffs, including sheriffs principal. I think it follows in common sense that that also must be a devolved power in terms of the Statute. Any other conclusion would be contrary to common sense. But notice this, that the sheriffs themselves, to whom these directions are given, are not devolved. They are excepted under one of the paragraphs 14 to 16. Is that right? Perhaps it is. I hope so.

Sections 10 to 13 of the same Act I find a little more difficult. Section 10 provides that the Secretary of State may authorise a sheriff principal or direct a sheriff to act in another sheriffdom. Who is going to do that? Will it be the Secretary of State, or will it be the Scottish Secretary? These are not trick questions that I have thought up; these are the kinds of problems which for so long have bedevilled the efficient organisation and administration of the work in the sheriff court, where I have worked for many years, and we cleared them up by passing this Act. All I want to find out is whether we are putting the clock back. I am not trying to quibble or to look for imaginary difficulties or problems. I want only to find out whether this will make the working of the courts in Scotland better, and to promote the growth and development of our native law. I shall he glad if there are no problems.

Then under Section 11 of the same Act the Secretary of State may appoint temporary sheriffs principal and sheriffs. Who is going to do that? Is it the Secretary of State as at present, or is this a devolved matter under the general heading of "Courts"? I should say, of course, that this is very much within my own field and that of the noble and learned Lord who will reply; he and I are familiar with the day-to-day working of these courts, however obscure or lacking in clarity my explanations to your Lordships may be.

Section 12 of the same Act gives powers to the Secretary of State in conjunction, as it were, with the Lord President of the Court of Session and the Lord Justice Clerk—the two senior judges—to discipline (to use a simple word) the judges in the lower courts, the sheriffs, and it provides that these two senior judges may on their own or, if requested so to do by the Secretary of State, undertake an investigation into the fitness for office of any sheriff principal or sheriff. Who will do this? I presume it would be the Secretary of State. This surely cannot be devolved, because if the Secretary of State appoints, surely he is not to be the judge of whether they should be reported to the senior Judiciary as to whether or not they are fit for office.

I pass over Section 13, which provides that the Secretary of State may require any sheriff principal to reside ordinarily at some place within his sheriffdom so that he is readily placed to discharge the duties of his office. I take it it will be the Secretary of State still who does that because the Secretary of State appoints him, and sheriffs as such are not devolved.

I conclude, or almost conclude, with Section 14(l), (2) and (3), which again illustrate the confusion into which we have moved. Section 14(1) says: The Secretary of State may, with the approval of the Treasury, by order prescribe the number of sheriffs to be appointed for each sheriffdom". Clearly that is now devolved; that is expressly devolved. Then subsection (2) says: The Secretary of State may require any sheriff to reside … at such place as the Secretary of State may specify". Who is going to do that? It is quite important, because these sheriffs are touchy people and they care about who is ordering them about. I should have thought that while section 14(1) is clearly devolved subsections (2) and (3) are not. Perhaps the noble and learned Lord can clarify these matters.

I apologise for having detained your Lordships so unduly at this very late hour. The last matter is this. I wonder whether the noble and learned Lord can tell us what is planned for the Scottish courts administration. Just, as it were, to declare an interest—not because it is of interest to anyone other than myself—I was at one time the Director of that Department in the Scottish Office. It was set up in response to the recommendations of the report of the Grant Committee, to which I have already referred. In addition to the responsibilities for the organisation and administration of the sheriff court it had a considerable number of other duties relating not only to the sheriff court but to a quite wide area of legal matters, with which, of course, the noble and learned Lord is very familiar, which were transferred from the Secretary of State to the Lord Advocate round about 1972 or 1973.

I am sure the Government will have considered this new body, which was to devote its energies to solving some of the problems of Scotland in the legal field and in the field of the administration of the courts. I wonder whether the noble and learned Lord can indicate to us what plans he has for that organisation now, because it would appear that it could not continue as it is at the moment; many of the responsibilities which it has been discharging will, of course, be going to the Scottish Secretary. I beg to move.

10.20 p.m.


I am sure that this noble and learned Lord will have the sympathy of the Committee at having to answer all these difficult questions at this time of night. If I may turn to attempt the answers to them, the first matter about which I was asked related to an answer that I gave to my noble friend Lord Hughes recently about jurisdiction over divorce. The answer to that is fairly clear. On page 50 of the Bill we find, under Group 25, that one of the civil law matters devolved is natural persons. A husband or wife, however he or she may behave, is a natural person. Accordingly, the law relating to husbands and wives is devolved.

Questions of status are dealt with in paragraph 16 of Part II, at the bottom of page 51. The jurisdiction of the Court of Session and the sheriff court over questions of status is mentioned in paragraph 16, at the foot of page 51 and the top of page 52. We may be reasonably certain that the law in relation to the status of persons is a devolved matter except in so far as there may be any derogation from the devolution contained in paragraph 16. I hope that will be reasonably plain.

Relations between husband and wife in connection with matters such as succession are a different question altogether. Succession is also devolved, as one sees from line 9 on page 50, under the general group, Group 25. Therefore there is no difficulty about the jurisdiction of the Scottish Assembly to legislate about persons, about husband and wife, their status or their other relations.

I was asked this general question: why divide the law at all? I do not need to answer that in great detail. If the noble and learned Lord would care to look at the White Paper, published in November 1975, Cmnd. 6348, he will find that these matters were dealt with fully in a series of paragraphs which I shall not attempt to paraphrase. They start at paragraph 30 at the top of page 144.

The essence of the matter may be put in this way: the separate character of Scottish law and the Scottish legal system was specially recognised in the Union between England and Scotland. The Government believe that there should be devolution in respect of Scots law. But on the other hand, it is also recognised that as the United Kingdom is one economic and trading area, there must be reservations or derogations from that so as to avoid the law in Scotland becoming so different from the law in England that cross-Border trade is impossible. Therefore, paragraph 145 of the White Paper reads as follows: The Government recognise the importance of the development and reform of Scots law as a coherent and distinctive system". That is the basis for devolution. The next sentence is the basis for some derogation from devolution. It reads: There is however a complex interaction between those subjects and areas such as company law, industrial relations and consumer protection where consistency with the law in the other parts of the United Kingdom is particularly important, for example in order to maintain a common framework for trade". It went on to say that further study was proceeding to find the best way of reconciling the maximum devolution in the field of private law with these wider United Kingdom interests.

The second White Paper was a supplementary statement published in August 1976. Scottish private law was dealt with in paragraphs 21 and 22, and the Scottish courts in paragraph 23 and subsequent paragraphs. One finds in paragraph 22 of that White Paper a reiteration that the decision to devolve to the Assembly legislative powers in the whole field of Scots private law should not damage the consistent United Kingdom framework of law that is essential to continue unity in matters such as trade, consumer protection and industrial relations. In these matters United Kingdom responsibilities will clearly continue and must be safeguarded. The White Paper of August 1976, Cmnd. 6585, then seeks to indicate how that will be done.

Let us turn to the Bill. We find that civil law is devolved in Group 25 and that there are derogations from that devolution in order to protect the basic United Kingdom interests. Your Lordships will find that these are set out in various paragraphs of Part 11 of Schedule 10 on page 52 of the Bill. To give an example, one finds that paragraph 20 refers to: Corporate bodies other than public bodies related to devolved matters". That is not devolved. The law in relation to insurance is not devolved. It goes on: Banking, Legal tender. Intellectual property"— that is, copyrights, patents and the like. Safety standards for goods". That is, consumer protection or one part of consumer protection. Restrictive trading practices and monopolies. Regulation of interest rates and credit". There are other examples in paragraph 22. Therefore, I think that the rationale of this is contained in the two White Papers to which I have referred and the Bill illustrates how that rationale has been made good in terms of legislative provision.

I was asked about the source of the chapter headings. That question revealed a coy knowledge, or a coy assertion of knowledge, because the word "chapter" is, perhaps, the give-away. The noble and learned Lord has in mind a celebrated Scottish text book written by a professor in Glasgow—a professor of considerable distinction—and that book has a number of chapter headings. Some of the chapter headings appear in Group 25 on page 50 of the Bill. The explanation as to where these subjects in Group 25 came from is that those who had to study the matters studied various text books and used their general knowledge and perception of the law. They devised from their studies titles of subjects which are now contained in Group 25 on page 50 of the Bill—titles which were thought to cover all the matters of private law which it was desired to devolve. I wonder whether the noble and learned Lord has any criticism of the subject headings that we have chosen. If he has, I should be interested to hear it.

I turn to the second part of the matter—the courts. The noble and learned Lord referred to the fact that so far as the courts were concerned there were three separate bodies which had some responsibility. He said that the Lord President was one, the Secretary of State for Scotland was another and the Scottish courts administration was the third.


I hope that the noble and learned Lord will forgive me for interrupting him, but I said that the Lord Advocate was the third, not the Scottish courts administration. I should not like the noble and learned Lord to think that I had said what he thought I had said.


Very well, I stand corrected on that. The three are the Secretary of State for Scotland, the Lord Advocate and the Lord President.

The noble and learned Lord then went on to ask me a number of detailed questions about the Sheriff Courts (Scotland) Act 1971. I do not know whether I should give detailed answers to every point he made, but let me attempt to illustrate how the Bill works in relation to these matters.

First, in the Bill itself your Lordships will find that the governing group in Schedule 10 appears on page 49. It is Group 22. It devolves: Courts, including juries. Court jurisdiction and procedure and various other matters. Then there is some derogation from that in paragraphs 14 to 19 of Part II of Schedule 10. Those paragraphs require to be examined fairly closely. The noble and learned Lord was right in assuming that the matters dealt with in Section 1 of the Sheriff Courts (Scotland) Act 1971 are matters which are devolved. That is too obvious to require comment. Equally, Section 9 is a matter which is devolved. I think that that is plain from Page 49 of the Bill, line 37. What is devolved is: Courts, including juries. Court jurisdiction and procedure". If one considers the other sections to which he referred one must look at them fairly carefully. For example, Section 10 has a side note which gives a proper indication of its content. The side note reads: Secretary of State may authorise sheriff principal or direct sheriff to act in another sheriffdom". So he may authorise the sheriff principal or he may direct the sheriff to act in another sheriffdom. At line 34 on page 51 of the Bill one sees that one of the matters which is devolved is the: determination of the territorial areas in respect of which sheriffs principal or sheriffs are to act". Accordingly, it is fairly clear that the matters dealt with in Section 10 are devolved matters.

I think that is equally clear in relation to Section 10(2) and (3). To make a different point, with regard to subsection (4), that states: The Secretary of State may, with the approval of the Treasury, pay to a sheriff principal or a sheriff, in respect of any duties performed by that sheriff principal or sheriff … such remuneration and allowances as may appear … reasonable". That is a matter which is not devolved and that is plain from line 31 on page 51 of the Bill, where the whole matter of sheriffs principal, temporary sheriffs principal, sheriffs and temporary sheriffs is not devolved.

I was then asked to look at Section 11. Again I shall read the side note: Secretary of State may appoint temporary sheriffs principal and sheriffs". Again, this relates to the appointment of sheriffs and temporary sheriffs, and that is a matter which is not devolved by reason of paragraph 15 of Part II of Schedule 10. The same applies pretty well to the rest of Section 11, certainly down to and including subsection (4). Indeed, I think that if one looks over the page of the official print of the 1971 Act, one finds that the rest of the matters dealt with in Section 11 are not devolved by the same token; that is to say, by reason of paragraph 15 of Part II of Schedule 10.

The noble and learned Lord said that Section 12 related to matters non-devolved, and I agree with him about that. He passed over Section 13. He drew our attention to Section 14. If one looks at Section 14 of the Sheriffs Court (Scotland) Act 1971—and I do not suppose that many of your Lordships have a copy of it before you, but I have—one sees that Section 14(1) provides that: The Secretary of State may, with the approval of the Treasury, by order prescribe the number of sheriffs to be appointed for each sheriffdom". That is plainly a matter which is devolved by reason of the provision in the Bill at line 33 on page 51, which reads: The matters above do not extend"— that is, the matters taken out of devolution— to the number of such persons"— "such persons being sheriffs and sheriffs principal.

There is a further provision in Section 14 of that same Act that: The Secretary of State may require any sheriff to reside ordinarily at such place as the Secretary of State may specify". I should have thought that that is fairly plainly a non-devolved matter, because a condition as to residence is a condition as to the terms and conditions of service, and that is a non-devolved matter under the terms of paragraph 15 of Part II of Schedule 10.

I do not want to weary the Committee unnecessarily. I was asked various questions and I have sought to answer them. I do not really think that the answers are as difficult as the noble and learned Lord thought they were. He asked me generally what is planned for the Scottish courts administration. I hesitate at this late hour and under such provocation to answer that question, but it really depends upon the view taken by the Scottish Secretaries after devolution as to what they will do with that particular Civil Service unit, because that is all it is.

At the moment it has, basically, what one might describe as three main functions, one of which is the ordinary administration of the courts. So far as they are concerned, it is quite likely that some such body will be required to make sure that there are enough sheriffs in the right place at the right time, as it were; that there are enough books in the right place, and that the sheriff courts are heated, that the buildings are built, et cetera. There has to be some administrative body, and no doubt the Scottish Secretaries will arrange for that; they might use the Scottish courts administration.

Then it has certain functions in relation to the appointment of sheriffs. When a sheriff is appointed by the Secretary of State on the recommendation of the Lord Advocate, his papers are processed by the SCA. No doubt that function will have to continue. That is a Secretary of State function, but it may well be that the Secretary of State would like to use a body such as the SCA by virtue of the agency arrangements which are contained in Clause 32 of the present Bill.

Then the Scottish Courts Administration also has certain responsibilities in relation to the Scottish Law Commission. So far as the Scottish Law Commission is concerned your Lordships will see on page 58 of the Bill, in line 21, the Law Commissions Act 1965 is mentioned, and the matters dealt with in that Act are included in devolution so far as relating to the Scottish Law Commission. No doubt some such body as the Scottish Courts Administration will have to continue in order to service the Lord Advocate, or the Scottish Secretaries, in relation to functions of the Scottish Law Commission. I cannot predict the future for the SCA, but I can predict that some such body will be required. As it has given distinguished service in the past and has performed well, as it has experience, no doubt it will continue in existence, although its functions may be slightly modified and its masters may to some extent change because of the provisions of the Bill.

I was also asked a general question: What contribution will all these arrangements make to the growth and development of the law? I am astonished to be asked that question by the noble and learned Lord. Every lawyer in Scotland, and everyone with any concern with the application of the law in Scotland, knows that there is a complaint in Scotland—and I am not making any judgment as to whether or not it is justified—that the Parliament in Westminster has been slow to put into effect changes in the law which have been recommended by bodies which have sat in Scotland. One has in mind the licensing laws, the law on succession, and on divorce. Whatever the merits of these changes, there have been many complaints in Scotland that Westminster has found time to deal with badgers, or the import of live fish, but they do not find time to deal with Scottish licensing, or Scottish succession, or the Scottish law of divorce. Here is the answer: devolve these matters to the people living in Scotland. After all, they are the only ones concerned with the application of this law, and so that will contribute to the growth and speedy development of the law.

May I give an instance which is perhaps not familiar to your Lordships. For six years a committee sat under the honourable Lord Thomson looking into the whole matter of criminal procedure in Scotland. They made a lot of recommendations, and I have spent many hours reading these recommendations and coming to a view about what legislative provision ought to be made. Indeed we drafted a Bill. That Bill would, but for the lack of legislative time, have been in your Lordships' Chamber even now.

That is a matter which requires looking at, because the last major review of criminal procedure in Scotland was done in 1887. That was a long time ago. So your Lordships will recognise that when the Scots want to change matters of criminal law, or the law of succession, or whatever, then the best machinery we can provide is to say to them, "This is your responsibility. Get on with it." So, to answer the noble and learned Lord's question: Yes, the Bill contains machinery whereby we can contribute to the growth and speedy development of Scottish law. I hope that answers the many questions I have been asked.

The Earl of SELKIRK

I cannot share the complacency of the noble and learned Lord in this matter. I find it difficult to understand why two different Parliaments should share the law on status. The noble and learned Lord says he is going to do a lot. Does he remember the views of the Faculty of Advocates on this subject?


May I intervene, because I think the noble Earl has misunderstood me? There are not two Legislatures which share the law in relation to status. What the Bill does is to allow the Scottish Assembly to legislate on matters of status, because that is included in the law of persons. But what the Assembly cannot do is to legislate so as to remove from the Court of Session its jurisdiction in relation to matters of status. The derogation is not from the general law in relation to status; the derogation is from the matter of the jurisdiction of the Court of Session in relation to determining actions on status.

The Earl of SELKIRK

As I presume the Court of Session can decide status, so can the Westminster Parliament. The noble and learned Lord should not forget this quotation: The Faculty regrets that if an Assembly is to be set up, the opportunity to provide a proper legislative authority for the legal system of Scotland is not to be taken". I will not pursue the matter further.


I share the noble Earl's view about "natural persons" and I do not think any Scots lawyer who wanted to devolve the subject of husband and wife would do so under that heading. It is a pity that we should be inhibited from discussing matters which seriously affect the smooth working of Scotland's legal system by the lateness of the hour, but I acknowledge that that is something which must be accepted. I am grateful to the noble and learned Lord, Lord McCluskey, for the trouble he has taken and for the answers he has given me, and there is much validity in what he said. Of course, I was not complaining about devolution; I was complaining about dividing, and my feelings on that remain as they were. However, due to the lateness of the hour, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 258 not moved.]

10.42 p.m.

The Earl of SELKIRK moved Amendment No. 177: Page 50, line 20, leave out ("Compensation out of public funds for victims of crime").

The noble Earl said: I am here calling attention to the part of Group 26 which deals with compensation out of public funds for victims of crime. This is something quite new and I am told it is working very well, run by a single board consisting of four Scots out of a total of 13, and I understand that nobody connected with it recommends devolution. It would inevitably cost more to have a new board, but this is much more an aspect of social security than it is, strictly speaking, of law. It deals with the way and conduct of life and raises more of a moral than a legal issue.

On a question like this it is important to have uniformity of decision throughout the country, and at present one can pool experience in the field from one end of the country to the other. A separate board exists in Northern Ireland, but it has been said to give rise both to misunderstanding and a sense of grievance. One other point—I am not certain about it because I do not know from where it derived—is that I understand this was created by an act of prerogative. I had some doubts, though now I have full doubts, as to whether it is possible to devolve prerogative by Statute. Therefore, I wonder, whether it is wise or proper to include this provision. Here we have something that is working well. It is quite separate—I do not think it should come under the law of crime in any event; it is not something that is dealt with as law—and it should be left to work on a common and uniform basis throughout the country.


As the noble Earl said, there was a previous devolution of exactly this matter, and that will be found in relation to Northern Ireland. The compensation out of public funds for victims of crime is one of the matters which appears in Schedule 3 to the Northern Ireland (Constitution) Act 1973, which a previous Government introduced and which was passed by both your Lordships' House and another place. That matter of compensation out of public funds for victims of crime was a matter which could be devolved in an order to which Sections 2 and 3 of that measure related. So there is a precedent for this.

The Government do not accept the argument that, while it is acceptable to devolve the criminal law of Scotland, it is somehow not acceptable to devolve the compensation to victims of crime. It is true that devolution of this particular subject could lead to different standards being applied in Scotland, but that is a matter for people in Scotland to approve or to criticise.

I obtained today a copy of the recent review, which is published by Her Majesty's Stationery Office, and costs £2. It contains details of the scheme on page 95. I looked at it to remind myself of the provisions of the scheme. For example, what the scheme provides in paragraph 7, which will be found on page 96 of this publication, is as follows: Where the victim who suffered injuries, and the offender who inflicted them, were living together at the time as members of the same family, no compensation will be payable. For the purposes of this paragraph where a man and woman were living together as man and wife they will be treated as if they were married to one another". The Scots may take a different view on either of these matters or on both of them. It is a curious situation that if two homosexuals are living together, and one of them assaults the other, they are not disqualified from compensation under the scheme, but if they are man and wife, or man and mistress living together, there is a disqualification from compensation. It may be that a Scottish Assembly, having legislative competence in relation to this matter, might take a more robust view than the scheme envisages. So I really cannot think that it is somehow inconceivable and destructive of civilisation North of the Border that we should devolve to the Scots the right to produce their own scheme.

At the moment, as the noble Earl has signified, the system works very well. What happens is that there are, I think—as he said—four Scottish members and a number of non-Scottish members of the board. They all travel to Cardiff, Bristol, London, the Isle of Wight and to other places, such as Edinburgh and Glasgow, and they come to adjudications on what sums ought to be paid. There are all kinds of rules. There are rules that exclude compensation in respect of road traffic offences.

The Scots may want a broader scheme, Or, for that matter, a narrower scheme. After all, criminal activities and compensation for the victims of crime, are matters that grow out of social conditions. There is no reason why the Scots should not have a different scheme if they want one. But of course the Bill does not require them to have a different scheme. It says merely that the Scots have legislative competence in relation to this matter. It may be that at least for a long time the Scots would not seek to change the existing system. I suggest to your Lordships that this is not a matter upon which the Committee should be divided, and I also suggest that the noble Earl should not press this point.


I wish to ask the noble and learned Lord to deal with a point raised by my noble friend with regard to this prerogative scheme. What is its status and basis in law? Where do its funds come from? Would they be included in the Consolidated Fund, so that if there was a lot of compensation paid out, money available for other uses would be reduced, and so on? Can the noble and learned Lord explain that?


I shrank away from that because the prerogative has been discussed at some length, and I do not want to get myself involved in that argument at present. What happened was that in the early 1960s the Government produced a White Paper on compensation for victims of crime, and in due course Parliament voted monies, and those monies were made available to make the payments which fell to be made under the scheme. The scheme was set up. On one view—which I think was a view which was mentioned by my noble and learned friend the Lord Chancellor, when he spoke on the prerogative—that was an exercise of the prerogative, but on another view it was not. On one view it was no different, for example, from the kind of payments made by the Motor Ensurers Bureau. That bureau does not exercise the Royal Prerogative when it sets up a scheme to compensate the victims of road traffic accidents who cannot recover damages because the driver of the car which injured them was not insured, or cannot be found. Whether or not this scheme to which we have referred was set up by virtue of the prerogative is a matter upon which I would not care to commit myself.

What I would say is quite clear is that if the Scottish Assembly chose to legislate in order to introduce a scheme which was applicable to persons in Scotland then they would certainly have to fund that out of the Scottish Consolidated Fund, and I think the financial provisions of the Bill make that clear. Of course, if the Scots have such a burden upon the Fund, then that would be a factor to be taken into account in the negotiations as to the assessment of the block fund when that assessment was made annually, or at such other intervals as the matter was negotiated. If, however, the scheme stayed as it is at the present time, which is what I would expect, then the monies would continue to be paid out of (as I think I am correct in saying) monies voted by Parliament under the United Kingdom scheme. Therefore, when the Scots came to negotiate with the Westminster Government about the size of the block fund, that would not be a factor, of course, which would be taken into account for the purpose of assessing that fund. I can, if the noble Lord, Lord Drumalbyn, wishes, spell out the provisions in the present Bill which deal with these matters, but I think the position is quite plain.

The Earl of SELKIRK

I do not propose to press this. Of course I agree with the noble and learned Lord that the Assembly in Scotland can pass a law providing for compensation for crime, but the noble and learned Lord has really made the point that I wanted. There may be different standards, and I do not think this is desirable. I do not think anyone wants it; and there will be additional expense if it is set up. Those points I have made, and as nothing will happen until the Scottish Assembly decides to spend the extra money I will not press this Amendment but beg leave to withdraw it.

Amendment, by leave, withdrawn.

10.52 p.m.

Lord MOTTISTONE moved Amendment No 380:

Page 50, line 24, at end insert— ("Group 27 (Industrial Relations) Trade disputes and labour relations.").

The noble Lord said: It is bad luck when, in this lottery, your Amendment comes up at the end of the day. It is particularly unfortunate as the noble Lord, Lord Wedderburn, has chosen to make his maiden speech on my Amendment; and I trust your Lordships will enjoy that when it comes. Whatever your Lordships may feel about my Amendment, it is a great honour to me that the noble Lord, Lord Wedderburn, thinks that it merits his maiden speech.

I would, with your Lordships' approval, wish to speak to Amendment No. 303 with 380. The numbering, of course, is peculiar; and, if I might make a minor protest about the numbering that has come out as a result of the new pattern, I think most of us will have found it very confusing, and perhaps that might get through to the proper sources.


May I interrupt the noble Lord to say that I suspect he is entirely right. This will work very well for a fairly small Committee, but in terms of a long Committee it works rather badly; and in terms of the Government spokesmen it works extremely badly when one gets to this stage. One might as well not have numbers at all, it has become so confusing. So although it seems splendid on the first day, it is not so splendid now.


I am delighted to have the Government's support on anything. In Amendment No. 303, which I put down first—and that, I suppose is one merit of the new system; you can tell that—I did not include the transference of trade unions and employers' associations. I trust your Lordships will not feel that this is because I am employed by an employers' association. It is purely on practical grounds, so I will not particularly declare an interest on that point.

The point of this Amendment is that it seems to me that industrial relations and trade disputes are too fundamental to the everyday life of the community to be one of those matters which are excluded from the legislation of the proposed Assembly. It would seem to me that perhaps in the short run—and you will see what I think about legislation on those matters later on—or, shall I say, that I am prepared to bet with any of your Lordships that before too long (and that might be five or ten years) it will be seen as absurd that this fundamental fact of everyday life should be excluded from the legislative power of the Assembly.

I should have thought that it would be reasonable to tackle this problem in the first instance when one is proposing this Bill. For example, there is quite a concern in the country about the practical effects of the unfair dismissal provisions in the Employment Protection Act. They are having all sorts of results which I am certain the people who proposed them had not got in mind. There is quite a lot of evidence, though it is very difficult to substantiate, that these provisions in the Employment Protection Act are contributing to the unemployment situation; because small businesses are being frightened off employing particularly young people on what could be a temporary basis because of the possible consequences of the implementation of the unfair dismissals provisions.

It is a fact that, when people are dismissed, what used to be called the labour exchanges give advice to them that they should appeal to a tribunal at once, because these provisions exist; and they do so even if their case is practically unsupportable. So I choose this particular example (although there are many others in the industrial relations legislation which one might choose) as one that could possibly be sorted out by the Assembly in Edinburgh rather better than we seem to have sorted it out in this country. Nobody denies that there are some people who are unfairly dismissed. If one has to have legislation about industrial relations, perhaps it is right to take care of this situation; but the present arrangements quite clearly may be having—and some people would say are having—a detrimental effect on the employment prospects of thousands of people throughout the whole of the Kingdom.

Therefore, it could be argued that it would be a good thing if powers were given to the Assembly in Edinburgh to enact changes to this particular legislation so that, at least, they could try out something new; because it is clear that in Westminster we have not made a success of it. It could be that, when they have so legislated, they will produce a better answer; and, in the hope that we are not too arrogant in this part of the country, we may learn from it and improve our own legislation. Alternatively, they may make a terrible mess of it; and, frankly, regardless of what the noble Lord, Lord Kirkhill (whose absence I much regret), has said about the sober, solid sense of the Assembly—and I do not quite use his words—I fear that the Scots will probably make more of a mess of it, if only because the bulk of their population lives in a very distressed area. But, forgetting that, one way or another, they will, if my Amendment is accepted, do something that will give us a lead either to avoid something nasty—which might be a tightening up of the unfair dismissal legislation which I have chosen as my example—or they might produce a better solution. It might be in the best interests of the Parliament at Westminster to have a subordinate Parliament to which they listen. Based on the example of nearly 50 years of the little attention they have paid to some splendid legislation in Northern Ireland, to which one or two noble Lords have referred in the course of the passage of this Bill, I have not very much hope that the Parliament at Westminster will listen.

There is no doubt that Northern Ireland, which has had a greater degree of devolution than is proposed in this Bill, did pass a lot of suitable amending legislation. In Northern Ireland they looked at the Bills as they went through this Parliament and said, "That is fine; we will wait a bit and watch the situation and introduce legislation which is an improvement on it and more suited to our circumstances". They did this more often than not, and it would be a very good thing if Whitehall—and I say "Whitehall" advisedly—and to a certain extent Westminster, paid no attention. So it is possible that an Amendment of this sort, with the very best intentions (with which the road to hell is paved) might prove completely fruitless because the potential benefits would not be watched by those who could best learn from it.

So I am in a bit of a quandary over this Amendment. I think there is a very good reason at this point for taking account of what is, I should have thought, more fundamental to Scotland than to almost any other part of the kingdom— that is the relations between people and people in the industrial situation. should have thought that there was a great deal to be said for devolving this particular thing.

Apart from my uncertainty that the real benefits would be appreciated by the arrogant people in the southern part of the kingdom, of whom we are some, I believe that fundamentally the trade unions were right, some six or seven years ago, when they said that you should not get legislation into the industrial relations scene. I think it is quite disgraceful that the Government have introduced legislation, with the backing of the TUC, which has repeated what the TUC were arguing against some four years before. They have brought legislation into the industrial relations scene and therefore created the sort of situation which I quoted with my example of the unfair dismissal provisions of the Employment Protection Act. It is tragic that these best intentions—which, as I said earlier, pave the road to hell—have created this sort of situation. We have to find the way out of it, but I do not think the use of this Bill to do so will be the right way.

I just put this point to the Government, and the main purpose of putting down my Amendment is to find out what their views are about the situation. I hope it will be possible for them to give an indication as to why they have not adopted what I should have thought, from their point of view, not from our point of view, would be the obvious line; that is, putting into the Bill the sort of clauses which my Amendment proposes they might consider. So I am left with the thought that this is a probing Amendment to find out the Government's feeling. It is essentially a serious matter which will come to fruition in due course, if this Bill actually gets through the whole process of log jams which have been built up for it. I would suggest to your Lordships that the whole problem is one which cannot be discounted as being a subsidiary matter, to be treated as being not one of the fundamental facts of modern life. I beg to move.

11.5 p.m.


I apprehend that it may be thought unusual, and perhaps even bizarre, to address your Lordships for the first time in Committee, although those whose guidance I have taken assure me it is not without precedent. In view of the hour, I shall detain your Lordships only briefly and, I hope, unprovocatively, to question the wisdom of the Amendment moved by the noble Lord, Lord Mottistone. In spite of his persuasive arguments, he will forgive me if I do not follow him, the first time on which I address your Lordships, into the problems of the relationship of the new laws in regard to the TUC and the Scottish TUC; but on some future occasion I would hope to discuss that matter somewhat more provocatively.

An English lawyer treads with some fear on all questions touching upon Scottish law, but there can be no doubt that in 1974, with the amendment Act of 1976, the Trade Union and Labour Relations Acts of those years restored a traditional relationship between trade disputes, industrial relations and the law, which was as traditional in Scotland as it had been in England. Indeed, the trade union movements in England, Wales and Scotland have a unity of background which distinguishes their history from that of the movement in Northern Ireland. It was, of course, the nature of the trade union movement which gave rise to the fundamental pattern of the law relating to trade disputes, which was restored in 1974 and 1976.

With great respect to the noble Lord, Lord Mottistone, his Amendment would not have any effect on unfair dismissal but, as I understand it, the effect would be to give to the Scottish Assembly the right to amend the law in Scotland on the protections available within the golden formula of: … acts done in concentration or furtherance of a trade dispute", which are the fundamental set of guidelines for both employers and trade unionists in an industrial conflict.

To what purpose? The noble Lord, Lord Mottistone, did not explain to me, with respect, why workers in Glasgow should have wider, or even narrower, rights than those in Liverpool regarding industrial action—or even employers. But, if I may say so, the noble Lord did touch on one particular oddity of this Amendment, and said he was quite clear about it; that is, that although it takes out of accepted matters that are not included in the devolved group, trade disputes and labour relations, it does not take out trade unions and employers' associations. It might have been arguable that the procedural status of trade unions and employers' associations was more apt for devolution, in view of the first line of Group 25: Natural and juristic persons and unincorporated bodies", than the right to strike or to lock out. But of course the noble Lord, Lord Mottistone, if I may say so with respect, was well advised and wise not to include the status of trade unions and employers' associations, because whereas his Amendment would allow the Assembly, as understand it, to amend Sections 13, 15 and 17 of the Trade Union and Labour Relations Acts 1974 and 1976, his Amendment would not allow the Assembly to amend Section 14, which gives to employers' associations that are unin-corporate and to trade unions the traditional immunity in actions, as we say in England, "in tort" and, as I apprehend, in Scotland "in dealing".

So we would have a very strange situation if the Amendments were passed. The Assembly would have jurisdiction to pass measures over Sections 13, 15 and 17 upon the substantive law relating to trade disputes, but not upon Section 14 which is a fundamental feature of trade dispute law. It is more than a mere technicality; it goes to the very essence of the structure of labour law.

With respect to the noble Lord, if I may mention the point, I think that if he wanted to include unfair dismissal in his devolved matters—my noble and learned friend Lord McCluskey will correct me if I am wrong—it would have been appropriate to move an Amendment to paragraph 23 on page 52, under which terms and conditions of employment and related statutory rights are not, as I understand it, devolved.

However, more important than all of that, is that I did not hear the noble Lord say that he had ascertained the views of employers, in general, in Scotland; and certainly not of the Scottish TUC. I believe that the Amendment would be widely misunderstood in a manner not intended by the noble Lord, as being something which put either employers or trade unions in Scotland at risk. British labour law has had a new structure since 1974, in the Acts of 1974, 1975 and 1976. It is a structure which is, as yet, largely untested. I make no claims for it, but it would be an unhappy thing to do to insert into the new edifice a dividing wall which divided Scotland from the rest of the United Kingdom upon this matter.


I should—


May I be the first to congratulate the noble Lord, Lord Wedderburn, if my noble friend on the Front Bench will forgive me. He made several statements which, in the ordinary course of events, would have had me jumping up and down like a yo-yo, but by the convention of the House one does not interrupt a maiden speaker. But I think that it was a splendid speech, and may we well hear him in the future. Will my noble friend and colleague forgive me for saying that?

11.12 p.m.


I have nothing to forgive my noble friend for, because he has said exactly what I should have said, except that I would add that the noble Lord, Lord Wedderburn, must almost have made Parliamentary history in making a maiden speech at 11 o'clock at night. Indeed, I can well understand that a professor of commercial law would feel that he could not avoid taking part in a debate of this nature, because it is absolutely up his street. Indeed, he has written books on labour law, and the worker and the law, and I could not help thinking that, possibly, the noble Lord's next book might be entitled Their Lordships Trying to Comprehend the Law on Devolution, and with the small print which the noble and learned Lord, Lord McCluskey, says is so easy.

However, we were privileged to hear the noble Lord, and we hope that on many occasions he will again give us the benefit of his views. I can well imagine that the Report stage of this Bill will provide the right field for the noble Lord's attentions. We certainly welcome him here, and it is only such a pity in some ways that he has forfeited the advantage of making his maiden speech by taking part in a Committee stage, and has done it with such a relatively poor attendance of his fellow Peers to hear him—




The noble Lord, Lord Peart, says, "No", but of course the Front Bench opposite is well and truly and properly represented. However, we should have liked to see even more. But we are delighted to hear the noble Lord. I would say only this to my noble friend Lord Mottistone. His Amendment is certainly a very well worthwhile one, and we shall look forward to hearing what the noble and learned Lord, Lord McCluskey, says about it. In fact, trade unions and labour relations are particularly important, especially in an area such as Scotland which suffers from high unemployment.

One cannot help thinking that the Assembly might, on occasions, believe that it possibly has solutions to certain problems which are raised by unemployment. It seems that it will be unable to take very many decisions in this respect. If the Assembly cannot take decisions and action on such a basic matter as employment, one cannot help wondering what it can take decisions on. On the other hand, there is the contrary view: how unfortunate it would be if we had different regimes operating on either side of the Border.

My noble friend Lord Mottistone referred to unfair dismissal. If the procedures in Scotland were to be considerably different from the procedures in England, I should have thought that this would tend to attract people across the Border, either one way or the other, depending upon the circumstances which prevailed. Clearly this would be inconvenient and inappropriate. I should have thought that the noble and learned Lord, Lord McCluskey, would have been able to give us some help as to how the Assembly could react to such a fundamental problem as unemployment and labour relations, which at the moment it appears to be unable to do.

11.16 p.m.


At this late hour, may I join in congratulating my noble friend Lord Wedderburn upon his outstanding maiden speech. If it comforts him, when I made my maiden speech about 18 months ago it was not exactly to a packed House. It was on the Electricity (Financial Provisions) (Scotland) Bill, and the House was less than well attended. But my maiden speech was warmly received, and I can assure my noble friend that his speech was listened to by the Front Bench with great interest—not least because it has shortened dramatically the reply which I am required to make. Indeed, in the presence of such an expert I hesitate to say very much. However, I ought to make one or two comments. First, the general observations that fell from the lips of the noble Lord, Lord Mottistone, went rather wider than the subject matter of this Amendment. This was a peg upon which the noble Lord chose to hang his pent-up frustrations. Therefore, I shall allow them to hang in the wind and will pass on to the subject matter of the Amendment.


That, frankly, is going a little far. I do not accept the noble and learned Lord's view. I was seeking examples to prove why it might be as well to take this matter into account. I think it is going a little far to speak about hanging ideas on the wind. It may be that I became a little explosive; I tend to be like that when I see the serried ranks opposite, whose views I never understand.


That is the first time that somebody on the Benches opposite has acknowledged that we have serried ranks! We spoke earlier about the reasons why in this Bill the Government have devolved to the Scottish Assembly the responsibility for the care and development of Scots law. The character of Scots law developed a long time ago, and its general nature derives from matters way back in the history of the development of Scotland. However, in relation to this matter—trades disputes—my noble friend is right in saying that the law in Scotland and the law in England is the same. It is the same not least because trade unions and matters of this kind came about as a result of the Industrial Revolution which followed the Act of Union in 1707. Therefore the law on these matters in both Scotland and England is very much the same. Surely the Committee accept that it would be extraordinary if one had gross disparities between the law on trades disputes and industrial relations in England and in Scotland.

Let me make it quite plain that in this area of the law the Government's policy is to retain uniformity throughout the United Kingdom. If the law in regard to trades disputes and labour relations were to become different North and South of the Border, there would be many difficulties. A dispute on a single issue affecting the same industry, the same companies and the same trade unions in Scotland and in England could be subject to different law; for example, the question of immunities for action in pursuance of a trade dispute. This could only be disruptive and unwelcome to employers, trade unions and employees alike. Many firms, industries, and certainly the vast majority of trade unions, operate on a United Kingdom basis and it is clearly necessary for the same framework of law to prevail in this field.

The second point, which has already been made, refers to the changes in the law about unfair dismissal, and I agree with my noble friend that it would be a matter under Group 23 and not under this group. I think it is fairly plain that changes in that could distort patterns of trade. I do not think that the noble Lord who moved this Amendment seriously intends to press it, and looking at it in the context of the Bill I think it is right to say that this is a matter which was explained fully in the two White Papers to which I referred when I was replying to the noble and learned Lord, Lord Wilson of Langside. This is a matter which really has to be kept uniform on a United Kingdom basis, and for that reason the derogation from devolution in Group 25, and indeed in Group 26, is well justified, and I would ask the noble Lord to withdraw his Amendment.


Before I actually do that, having promised to do so, may I ask the noble and learned Lord to reply to my suggestion that it would be something which might develop, even if it is not immediately the intention of this Government, and that it might be of value to the rather narrow view which is taken on these matters in this part of the country to have, say, the potential of a pilot scheme out on the limbs of the United Kingdom. Would the noble and learned Lord like to take up that thought and make some sort of comment on it?


I must confess that if the suggestion is that Scotland should be made a kind of social and industrial laboratory in which workers and others are manipulated in order to see how the thing turns out—"if it works we shall apply it to England; if it does not then no doubt we will set them different parameters"—I do not like the sound of it, and I will not bring it to the attention of my right honourable friend.

The Marquess of LINLITHGOW

I am really fascinated by this because in clause after clause when Amendments have been moved by this side of the Committee we have always ended up with a phrase which I can almost repeat word for word—can we not trust a reasonable Assembly, made up of reasonable Scots, to handle their affairs with discretion and ability? Now the noble and learned Lord is saying that on this particular subject he cannot trust them to do so. It seems extraordinary. I am not trying to put him out on a limb at this time of night, but on a small branch which, if he likes to break it, I shall be delighted to accept.


With respect, I did not say that we could not trust the Scots to do this. What I said, and what the White Papers of November 1975 and August 1976 make plain, is that if one is protecting a common market within the United Kingdom; if one is trying to protect one part of the United Kingdom for trade and economic purposes, and recognising that trade unions and employers' organisations and firms straddle the Border without regard to the Border, then it becomes a kind of nonsense if, in relation to these matters, the law changes in Scotland from what it is in England, no matter who makes the change. It is not a question of not trusting the Scots; I am quite certain that the Scots might produce some excellent ideas and I have not said that they should not be trusted.

The Marquess of LINLITHGOW

If the noble and learned Lord will forgive me, why does not the argument that he is using now apply to the arguments which he used against the Amendment on abortion?


I did not speak on abortion.

The Marquess of LINLITHGOW

The noble and learned Lord may not have done so, but the Government Front Bench opposed the Amendment on abortion on the basis that it was a bad thing on abortion to have different conditions and laws in England from those in Scotland. It was not the noble and learned Lord who made the argument, but it was certainly the Front Bench who made it.


You can have a trade dispute in Edinburgh and in Cardiff and in Bristol all at the same time, but you certainly cannot have an abortion in Edinburgh and in Cardiff and in Bristol at the same time. You can say that the law in relation to abortion and criminal matters ought to reflect the social condition in the area and the society where it is, but in relation to these matters you have a United Kingdom market in labour and trade.

The Marquess of LINLITHGOW

I think that is a figure of eight on an outside edge, if the noble and learned Lord knows his skating. Surely the matter we are discussing is very much a question of social relations and social order and so on. I do not think it is a very good answer. What I do believe is that in this Bill, clause after clause, the Government will use one argument to oppose one Amendment and the opposite argument to oppose another Amendment of a different sort. The more I have sat here and listened, and I have attempted to listen—and my rather bad computer has been very badly stretched by this debate—the more certain I am that I honestly do not believe the Front Bench opposite are being totally straight with us.


I feel that I should perhaps draw this to a close. I would make the point the noble Marquess has just made. If the Government would care to look at about the top six lines of column 488—which I remember in my head but which I have not got with me, because the noble Lord, Lord Kirkhill, is not with us, and I was going to throw it at him—the noble Lord was making the very remarks which my noble friend Lord Linlithgow has just been making. It is very important that the Government should not push themselves into a corner, that they have one view of trade union and labour relations and another view for all the other social factors, as though labour relations were not a social factor. However, as I promised, I will beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

11.29 p.m.

Lord WILSON of LANGSIDE moved Amendment No. 259: Page 51, line 22, at end insert ("The initiation or holding of referenda").

The noble and learned Lord said: May I first of all add my congratulations to those already made to the noble Lord, Lord Wedderburn, on his maiden speech. It was a notable event, because at 11 o'clock not only was he making a speech but everyone was listening to him. That is a great tribute to him. I wish I felt that same confidence that everyone would listen to what I was about to say. I regard this as an Amendment of considerable importance. I imagine that your Lordships will all agree that it would be undesirable if the Assembly were to hold referenda, and it is towards preventing them doing such a thing that this Amendment is directed.

I imagine that no one would dispute, except perhaps those on the Government Front Bench, that it would be undesirable that the Assembly should be in a position to hold referenda. At the moment, of course, there is nothing to prevent them doing that. It seems not unlikely that they would do this, and there is such a tendency, I gather, with subordinate Legislatures in the modern world. I know that according to a report in The Tines newspaper of last month, the separatist Government of Mr. Rene Leveque, the Premier of Quebec, said that it will hold a referendum in the next year or so on independence from Canada.

Do the Government feel it would be desirable to leave our subordinate Legislature in a position to organise referenda on any question on which, for example, they wished to bring pressure to bear on the Government at Westminster? At this late hour I shall not attempt to make your flesh creep at the possibility of what this highly responsible Assembly may get up to in order to achieve its own ends. The possibilities will be as clear to your Lordships as they are to me.

I hope that there will be no opposition to this Amendment. I imagine that the Government will support it because of course this matter could be a source of embarrassment to them. I beg to move.

11.32 p.m.

Baroness STEDMAN

I hate to disappoint the noble and learned Lord, but the Government do not accept this Amendment. So far as constitutional referendums are concerned, the Government take the view that anything to do with the constitutional relationship between Scotland and the rest of the United Kingdom is a matter for the United Kingdom Government and for Parliament alone. This position is already protected under the Bill as it stands, because there is no devolved matter which could be construed so as to embrace the holding of such a referendum.

Primary legislation is required for the holding of a major referendum involving the use of the electoral system such as we had with the Common Market referendum or the referendum provided for in this Scotland Bill. For the reason I gave earlier, an Assembly Bill to mount a referendum on separation would be liable to action under Clause 19 on vires grounds. And to make the assurance doubly sure there is the reserve power of policy override of Assembly Bills in Clause 35. Similarly, if the Scottish Executive sought to mount such a referendum without recourse to primary legislation there is the power in Clause 36 to override the proposed action on policy grounds.

Thus protection against tests of opinion on non-devolved subjects is unnecessary. The proposed Amendment, however, goes further and seeks to erect a statutory barrier against any sounding of Scottish opinion even in relation to devolved matters. In the Government's view this would be going too far and no reason is seen in principle to debar the Scottish Administration from testing public opinion about a proposed policy change in relation to a devolved matter, provided that in so doing they do not adversely impinge on a reserved matter and, of course, that they can find the money from within the block fund allocation to mount the referenda.


The answer given by the noble Baroness is rather disturbing. There has been only one referendum in the country as a whole. There is about to be a second. Here we are giving to the new Assembly the right to hold referenda on any subject which is devolved. One wonders from where the money will come with which to pay for them. The noble Baroness says that it will come out of block grants. In fact, that means by the United Kingdom.

Baroness STEDMAN

But it will mean that the Assembly must work out its priorities, and whether it wants a referendum or something else.


May I ask the noble Baroness a question about one point that she mentioned? Am I right in thinking that, as she said, a referendum could be mounted on a wholly devolved matter, but only on a consultative basis, or could it be mounted in a manner that would compel the Assembly to act in accordance with the result of the referendum?

Baroness STEDMAN

It would be up to the Assembly whether it wanted it on a consultative basis or whether it wanted something upon which it could take action. It is for the Assembly to decide whether it wants a referendum on a devolved matter. If it does, then it must find the money. If it does not have a lot of money, what will it forego in order to give itself the pleasure of having a referendum?


I wonder whether the noble Baroness could help me further. I am an old-fashioned believer in the sovereignty of Parliament and, quite frankly, I am a little allergic to referenda; but that is neither here nor there. The noble Baroness said that there was no objection to the Assembly holding referenda on devolved matters. What is to prevent it holding referenda on non-devolved matters? After all, we were told earlier that it could set up committees to discuss foreign affairs—the Polaris base in Holy Loch, our relationship with our NATO partners and so on. What is to prevent it holding a referendum about oil revenues or the Polaris base in Holy Loch? What is to prevent it from doing that? If it can set up committees about those matters, why should it not hold referenda? It is all very puzzling.

Baroness STEDMAN

It has no legislative competence to do anything other than to deal with the matters that are devolved to it.


When I suggested that there should be some limit to the discussions of the Assembly and that it should not be entitled to discuss or recommend action on, let us say, foreign affairs or matters outwith the Assembly, the noble Baroness or the noble Lord, Lord Kirkhill, said: "Oh, yes. It can discuss anything it likes". I think that that is extremely dangerous because, in those circumstances, it could very well hold a referendum on some subject which would be quite contrary to the United Kingdom Government policy; and it could do it, according to what the noble Baroness has said, without worrying whether the subject was devolved or not. In point of fact the subject might have absolutely nothing to do with the jurisdiction of the Assembly. I think that this is opening a very dangerous door to anybody running any hare which he cares to start off on any subject, without any reference, whether or not there is any real jurisdiction or any real interest in the subject.

Baroness STEDMAN

No. It can only agree to hold a referendum on a subject which has been devolved to it, and it can only agree to do so if it is willing to find the money to mount it. It has no legislative competence to hold referenda on matters which are not devolved to it.

The Earl of SELKIRK

The noble Baroness has missed the whole point. It can hold a referendum on anything it likes. Whether it is legal or not, does not matter. If 90 per cent. of the people vote in a certain direction, then that has force, and it is no good pretending that it has not.


If 90 per cent. of the Scottish people think one way and care to vote that way, then that is what they want, whether it be that we should hire elephants to drag trams through the streets. If we are foolish enough to do that, then it will show that all the Scottish people are "nuts". If they want to be "nuts", then they have a perfect right to be "nuts". The whole point is that they are unlikely to do that. We can speculate. We have heard some marvellous imaginative things about this body. No one would dream that noble Lords who look so staid could he so imaginative in dreaming up the evils that the Scottish Assembly could get up to. if I may say so, it is a ridiculous debate because the Scots are not likely to do these things. If they do and they get a 90 per cent. result, it will merely prove that that is what they want to do.


I do not think that it is a ridiculous debate at all. In fact, it is a very pertinent debate. Here we have the Bill devolving a lot of powers to the Assembly. I agree with the noble and learned Lord, Lord Wilson of Langside. He may not like referenda, and nor do I. However, not only are we creating another Assembly, but we are also saying to it: "Here you are. You can have referenda on what you like".

There has only been one referendum in the United Kingdom. It is a very new constitutional innovation. Here we are giving over to a new Assembly the total right to have referenda on anything—on capital punishment presumably, or anything at all. I wish it was not so late at night, because if the noble and learned Lord pressed his Amendment, I should have been very keen to support it. I am quite certain that he would not do so at this time of night, so the noble Lord, Lord Peart, need not be so worried. But I think the noble and learned Lord is on to a very good point.


I shall not withdraw this Amendment. The noble Lord, Lord Mackie of Benshie, who of course has wide experience of political life in Scotland, says that this is an imaginary thing. But the politicians of Scotland will know what is going on in Quebec and elsewhere, and they will be likely to follow. If your Lordships do not wish to support the Amendment because of the lateness of the hour, I quite understand. But having tabled the Amendment, I am sorry but I shall not withdraw it.


Before the noble and learned Lord has his last say, I am sure he realises that many of us have a great deal of sympathy with what he has said. But it might be for the convenience of the whole Committee and, indeed, the noble and learned Lord if he did not press his Amendment. He can always come back to it at a later stage, when possibly he will have a fuller attendance and one which might be more sympathetic. If he were to push his Amendment at this hour of the night, it might possibly not have quite the happy acceptance which it would have if it is pressed during the Report stage.


It is impossible to resist the persuasive eloquence of the noble Earl on the Opposition Front Bench, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 260 and 303 not moved.]

11.42 p.m.

Lord PONSONBY of SHULBREDE moved Amendment No. 178: Page 53, line 3, leave out from ("matter") to end of line 4.

The noble Lord said: Despite the lateness of the hour, I cannot let this occasion pass without adding my congratulations to those of other noble Lords to my noble and learned friend Lord Wedderburn of Charlton on his maiden speech. We in this Committee very much appreciated hearing his authoritative voice on the subject of trade unions.

The point of this Amendment is to remedy an apparent anomaly in the Bill which, on the one hand, provides that the terms and conditions of employment of an employee of a local authority are devolved, except if he is employed exclusively for the purpose of a reserved function, as provided for in the following paragraph. This could mean that an environmental health officer employed by a local authority on the inspection of substandard housing would have his terms and conditions of service decided in Edinburgh, whereas if he were employed on rodent control his terms and conditions of service would be decided in London. Likewise, an education officer and a careers officer—another reserved matter—would have their terms and conditions of service separately decided.

In moving this Amendment I am seeking to provide a solution to this apparent anomaly. The solution I am providing is that the terms and conditions of service should be a matter for the Westminster Parliament, as this is the solution that the local government officers themselves in Scotland desire. It may be that this solution is not acceptable to the Government. If not, I hope that the Government can suggest some other solution as the enactment proposed seems to me to be full of anomalies and will cause ill-feeling among different local government officers. I appreciate that if the spirit of the Amendment is acceptable, further Amendments will be necessary. I beg to move.


In moving this Amendment my noble friend has correctly represented what the Bill contains. At present the pay and some other directly related conditions—for example, hours, overtime and holidays—of local authority employees in Scotland, are negotiated between all the employing local authorities, the unions and the staff associations concerned. There is no statutory basis for these negotiations. Other terms and conditions of service, such as pensions, are subject to legislation.

The Scotland Bill makes no changes in these arrangements, except that the super-annuation of local authority employees will be devolved, subject to the consent provisions of Schedule 4. It would be open to the Assembly to legislate about the pay and other terms and conditions of service of local authority employees if it so wishes by means of the competence extended by Group 5 of Schedule 10. This competence will, however, be circumscribed by its inability to legislate about local authority employees working exclusively on reserved functions, and would clearly only be contemplated in consultation with the authority and the unions representing their employees.

The Bill devolves to the Assembly wide-ranging responsibilities in the field of local government. This is only right, given that it is an area of activity which is so intimately bound up with the day-to-day lives of people living in Scotland. Given the devolution of such responsibilities, it would surely make no sense for the Government to withhold from the Assembly, as my noble friend seems to suggest, any competence over the terms and conditions of service of local authority employees. The scheme of the Bill surely makes sense that that competence is devolved, and the only matter that is reserved is the pay and conditions of those local authority employees who are exclusively employed on reserved functions.

I will say to my noble friend—and perhaps it will enable him to withdraw the Amendment—that we have to look again at the meaning of reserved functions. I gave an undertaking to do that at an earlier stage. While we do that I would certainly have regard to what my noble friend has said, but I cannot really hold out any hope that the policy of the Bill is likely to change in this particular.


I thank my noble and learned friend for his remarks, and note with pleasure that there is some hope that possibly a part of this anomaly might be removed. I look forward to seeing what Amendment may be tabled at a later stage. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.


I beg to move that the House do now resume.

House resumed.