§ The LORD CHANCELLOR (Lord Elwyn-Jones)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.(The Lord Chancellor.)
§ The LORD CHANCELLOR
My Lords, before we proceed to discussions on the Scotland Bill, in which the noble and learned Lord, Lord Hailsham, played such a conspicuous part, I should like on my own behalf, and, I am sure, on behalf of the whole House, to express our grief at the tragic loss which the noble and learned Lord has suffered and to convey to him and to his family our deepest regrets.
§ Lord CARRINGTON
My Lords, if I might be allowed to do so, may I say how much everybody in the House appreciates the fact that the noble and learned Lord the Lord Chancellor has said what he has. May I suggest that we confine ourselves at this moment to sending our very deepest sympathy and affection to my noble and learned friend Lord Hailsham.
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Schedule 10 [Matters within Legislative competence of Assembly, and within powers of Scottish Executive]:
The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey) moved Amendment No. 261:
age 53, line 6, leave out ("or to a person") and insert (",including a person of a description").
§ The noble and learned Lord said: This is a drafting Amendment which clears up two minor points of possible doubt on paragraph 23 of Schedule 10. If paragraph 23 is read in isolation there is an inference to be taken, perhaps, from line 6 of page 53 that a person designated under Clause 62(5) could be a person other than a civil servant. Clause 62 itself makes it clear that this could not be the case, but the Amendment clarifies the 983 point and removes the inference so far as paragraph 23 is concerned. By adding the words "of a description", the Amendment also makes clear that the reference to persons designated is not construed as reference to persons as individuals but to persons described by reference to the capacity in which they perform services. Amendments Nos. 286 and 287 to Clause 62(5), to which we shall come in due course, also deal with the same point in the same way. I beg to move.
The Earl of SELKIRK
This is decidedly embarrassing for we have not yet reached Clause 62 of the Bill. I understand this Amendment to mean that anyone appointed, not a member of the Home Civil Service can, in fact, he put in the same position as a member of the Home Civil Service in so far as salaries and conditions of service are concerned. That means that any one of the people appointed by the Secretary of State can be brought in (as the noble and learned Lord has said) not personally, but in a general class. Am I correct in this? I should like to mention that there are some curious words in the Schedule we are dealing with. It speaks of the Home Civil Service "of the State". Is it really right to call it "of the State"? I have an Amendment down on this to be dealt with presently, but draw attention to it because it is a curious phrase which I do not recall having seen before. I think we should examine whether it should not be "of the United Kingdom". Could the noble and learned Lord give us clarification on this? This means that anyone appointed by the Scottish Secretary can be brought in on terms similar to those of the Home Civil Service.
§ Lord McCLUSKEY
As the noble Earl has said, he has an Amendment down in relation to the second matter that he spoke of, and I should like to postpone my answer to that until we reach that Amendment. In relation to the other, it will arise also on Clause 62(5); and again I apologise for not being able to offer an answer at this stage. I did not expect the point to arise. It is something we do not expect to reach until next week, and I am sure we shall get a more satisfactory answer if I give it then.
The Earl of SELKIRK
I asked whether that meant that any appointment by the 984 Scottish Secretary could in fact be brought in on ordinary Civil Service terms. Is that the purpose of this Amendment?
§ Lord McCLUSKEY
I should like to leave it, if I may, until we reach Clause 62. Quite honestly, I am not prepared to answer it at the moment, simply because I have had a fairly full day preparing for the questions I expect to he asked in the course of the afternoon.
Lord CAMPBELL of CROY
I am sorry that the noble and learned Lord cannot answer my noble friend straight away, but I hope we can revert to this question when we reach these points later—probably next week—because it is important to know to what extent Part II of the Schedule exempts powers and functions which are otherwise to be devolved in Part I. Furthermore, from the point of view of the public service it is important to know what categories of persons are to be within the control of the new Executive and what categories of persons will continue to be operating as civil servants in the Home Civil Service as we now know it. On the understanding that we can revert to this later when we reach the connected points, I hope that my noble friend and others will allow this Amendment to he made.
§ On Question, Amendment agreed to.
§ 3.21 p.m.
Viscount THURSO moved Amendment No. 379:
Page 53, line 21, leave out ("except for the powers to fix estuarial limits").
§ The noble Viscount said: This Amendment is not intended to extend the devolved competence of the Assembly, and indeed I do not think it does. Yesterday, we discussed Group 14 in Part I of this Schedule, where your Lordships agreed that up to a distance of three nautical miles from the low-water mark or where an estuarial limit under the Salmon Fisheries (Scotland) Acts extended further would be the limit to which the devolved competence of the Assembly would extend. Therefore, I think we have agreed the seaward limit of competence of the Assembly in relation to salmon fisheries.
§ I do not think that my Amendment would alter that in any way, and it is not 985 intended to. But I should like to take a moment to explain to your Lordships that estuarial limits, so far as salmon fisheries are concerned, are not merely a measurement from the mouth of a river to the limit of territorial waters. They are in fact areas of inshore sea into which a river discharges, which allow a different form of management of fisheries and allow forms of fishing to take place different to those that take place in adjacent parts of the inshore sea. These estuaries are described in the various Salmon Fisheries (Scotland) Acts not only in relation to the rivers of which they are estuaries and in relation to the distance which they extend seaward; they are also described on either side by reference to fixed points. Those fixed points produce lines which eventually cut the seaward limit of the estuary and draw on the map a square or rectangle, or some other shape, within which certain rules of fishing and of management apply.
§ This is a very valuable management tool, and if we were to ask the Scottish Assembly to manage the inshore salmon-fishing industry of Scotland, then it should have control over this management tool. I can perhaps explain one obvious instance in which it would be positively necessary to move the estuarial limit, and that would be if a combination of winds, tides and floods caused a sand-bar to build up at the mouth of a river and cause that mouth to change its geographical position. Not only can that happen but it has happened; and a river could then be discharging outside its estuarial limits. It would obviously be only common sense that the estuarial limits should then be moved to embrace once more what one would normally understand to be estuarial waters.
§ Also, your Lordships may remember that a very deeply researched report was produced in Scotland, called the Hunter Report on Salmon Fisheries. It perhaps went further than most people were prepared to go in suggesting changes in the laws and the methods by which salmon should be caught in our inshore waters. But it would have relied upon completely changing estuarial limits and in fact would have put all the salmon fisheries, if possible, within an estuary and perhaps stopped salmon fisheries outside estuaries. So clearly the ability to move the estuary 986 limits sideways or to re-define the limits of estuarial fishing, is a management tool which the Assembly would wish to have in order to manage Scottish inshore salmon fisheries in a competent fashion.
I do not think that my Amendment, which simply proposes to leave out of Part III the words,
except for the powers to fix estuarial limits",
relating to the Salmon Fisheries (Scotland) Acts 1928 to 1968, would in any way extend the devolved competence of the Assembly. I think it would give the Assembly the powers which they require in order to carry out the job we have already decided they should have. I think it would be a cumbersome nuisance if they had to refer to Westminster every time they wanted to move an estuarial limit and therefore I commend this Amendment to your Lordships. I beg to move.
§ Lord McCLUSKEY
I think I should give a brief explanation of the provisions in the Bill. Group 14 of Part I of Schedule 10 devolves salmon and freshwater fisheries up to a seaward limit of three miles or, if further, up to any estuarial limit fixed under the Salmon Fisheries (Scotland) Acts 1928–1968. This is not an arbitrary limit, but one which has proved practical in its application to the district boards which administer freshwater fishery matters. It is sensible that the extent of the Assembly's competence should reflect existing administrative arrangements.
Estuarial limits are fixed by byelaws under the 1928–1968 Acts. Several have been fixed, principally by commissioners established under the 1862 Act. In most cases they do not exceed the three-mile limit. But if, as the Amendment proposes, the power to fix the limits was devolved, the Scottish Executive could, if it so wished, substantially extend them; and because Group 14 of Part I of Schedule 10 devolves all freshwater fisheries matters within estuarial limits, the Executive would effectively have the power to extend devolved competence. The Government believe it is quite wrong, as a matter of principle, that any power to alter the frontier of devolution in this way should be devolved. Moreover, there could be undesirable complications for international territorial fisheries agreements.
987 However, having listened to the noble Viscount, I do not understand him to be challenging the principles upon which the Bill has been based, and he has certainly persuaded me that there is a case for re-examination of the matter in relation to what he has called sideways or lateral movements of the estuarial limits within the three-mile limit. If it will satisfy the noble Viscount I will first of all undertake to consider the matter; and, secondly, in the light of our consideration of what he has said, we should like to discuss it with him and if we can agree that some alteration of provisions in the Bill is desirable, I hope we can bring forward an agreed Amendment to cover the matter.
Lord CAMPBELL of CROY
Noble Lords will welcome what the noble and learned Lord has said in reply to this Amendment. Following the debate we had, I think, yesterday on a previous, similar Amendment concerning the limit of three miles from the shore, I agree with the noble and learned Lord that there would be international difficulties if the Assembly and its Executive appeared to be given powers and jurisdiction beyond the three-mile territorial limit. I mentioned during that debate that the Law of the Sea Conference is now virtually agreed upon extending that to 12 miles, so that in a year or two to come we are likely to see the territorial limit extended. While we recognise the three-mile limit, it would be giving the Assembly and its Executive powers to legislate or use their executive powers in international waters, and I think we have all been agreed in principle that that is not the intention of the Bill.
The noble Viscount, Lord Thurso, has pointed out that a great deal can and needs to be done within three miles sideways from estuaries. I hope, there fore, that it will be possible for the Government to come forward with provisions to provide for that. The noble Viscount mentioned the Hunter Report, but I would remind him that that had very extreme recommendations. It suggested that all commercial fishing in Scotland should be carried out by a system of one single trap in each river. That would virtually abolish all the netting systems and commercial fishing as it is now known by fixed engines, as they are technically 988 called, in the estuaries and at the river mouths, and quite apart from anything else would put about 2,000 men out of jobs. Therefore, I would not follow the Hunter Report too far because at least that part of the report proved not acceptable in Scotland.
§ The Earl of PERTH
In the debate yesterday on Clause 14 I asked a question of the noble and learned Lord, Lord McCluskey, and he said he would try to deal with it today. My question is just for elucidation. What happens if, as a result of the conference, the limit is extended from three to 12 miles or the estuarial limits are extended. Does it automatically then mean that the Assembly has powers on these extensions, or how does it change the present situation?
§ Lord McCLUSKEY
Looking at the provisions of the Bill, the position is that under the Bill the competence of the Assembly relates to the situation which is established by the existing statutory regime, and if there were to be any alterations resulting from the conference referred to by the noble Earl that would have to be done, so far as the Bill is concerned, by a further United Kingdom Statute.
§ The Earl of PERTH
That would happen in each case? If there were a change on estuarial limits there would have to he a special Bill to that effect? or could we not have something which would ensure that, if there were a change, the change could automatically apply to the Assembly's powers? It would seem to me very clumsy otherwise.
§ Viscount THURSO
Perhaps I could say a word on this point. We are really talking about an inshore fishery. Coastal netsmen, estuarial fishermen for salmon, are an inshore fishery and their engines do not operate beyond the sort of distance that would be enclosed by a three-mile limit. Once you go beyond the three-mile limit you are talking about what we call high seas fisheries. This is a horse of a different colour—or a salmon of a different colour, if you like to put it that way. This is something entirely different and something which naturally would concern people interested in salmon, but concern them for different reasons and in different ways. This is a matter which I think can 989 properly be left to the United Kingdom Government; in fact it would be very much better to leave this to the United Kingdom Government to deal with rather than to a devolved Assembly. I do not envisage that the Assembly would ever wish to extend its influence beyond the three miles. It might well wish to pressurise the United Kingdom Government to take action beyond the three miles to obtain international agreement on how salmon were to be treated on the high seas, but that is a different matter altogether. I do not see anybody wanting to fiddle about with estuarial limits in order to deal with salmon on the high seas. They may very well want to do not frequent but occasional adjustments to estuarial limits in order to deal with day-to-day matters that affect inshore netsmen and coastal fishermen.
§ The Earl of PERTH
I do not think that the noble Viscount, Lord Thurso, quite takes my point. He himself asked what happens if the rivers change somewhat and therefore you go sideways. My point is this: let us suppose for some reason which is not easy to forecast estuarial limits are changed. Does the Assembly just stick at what is laid down here or do they in their turn get increased powers with the change in estuarial limits? I am not trying to get much further for the Assembly or to get anything else, but I just raise it as a practical matter. If the estuarial limits are changed, does the Assembly have that power or are they stuck with what is fixed under Group 14 which is the position at the present time?
§ Lord McCLUSKEY
If the noble Earl looks at page 53 of the Bill, at lines 21 and 22, he will find the words which are the subject of this Amendment. Those words make it plain in Part III of Schedule 10 that the Assembly has no competence to fix estuarial limits. Their competence, put positively, is contained in Group 14, and their competence in relation to the improvement and maintenance of salmon and freshwater fisheries in any waters extends up to the estuarial limit. At the moment the estuarial limits are fixed under the Salmon Fisheries (Scotland) Acts 1828–1868. If these Acts fell to be amended so as to allow the estuarial limits to be extended outwards, then without doubt, if it were desired to extend the competence of the Assembly 990 to larger estuarial limits, there would have to be an amendment of the provisions of the Scotland Act, particularly in Group 14, to make that plain.
§ The Earl of PERTH
Is that not a large sledgehammer to crack rather a small nut, or rather a small change in the estuarial limits? Could something not be introduced so that, in the event of there being a change in the estuarial limit, the powers of the Assembly would automatically apply to those?
§ Lord McCLUSKEY
I have undertaken to consider the matter raised in the Amendment. At the same time I think I shall consider writing a letter to the noble Earl, with copies to the noble Lord, Lord Campbell of Croy, and to the noble Viscount, Lord Thurso, and hope to deal with the matter then.
§ The Earl of ONSLOW
As someone who has been rather critical of this Bill, may I say how very nice it is to have the noble and learned Lord, Lord McCluskey, being so constructive on an Amendment like this. He tried yesterday to give me an undertaking to talk about what I believe is a fiendish complication about drift netting. Has he now got the answer? I think the Committee might he quite interested. The point I raised yesterday was on drift netting for salmon—the Scots have done it by renewable order, in England it is done by licence. Has the noble Lord got the answer? If he does not, I quite understand.
§ Lord McCLUSKEY
I have an answer. The answer is that the matter is, indeed, fiendishly complicated. I was advised that I should not speak ad lib about the subject, and that I should write to the noble Earl. If he then judges that the Committee ought to know the answers, then he can take steps to see that the Committee is informed.
§ Viscount THURSO
I am most grateful to the noble and learned Lord, Lord McCluskey, for the generous way in which he has looked at this Amendment. It has been extremely helpful to receive his assurance, and it is one which I am very happy to accept. Therefore, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.991
§ 3.41 p.m.
The Earl of SELKIRK moved Amendment No. 179:
Page 55, line 47, column 2, leave out ("Not").
§ The noble Earl said: The purpose of this Amendment is to ascertain whether clean air is a devolved subject, and, if so, to what degree, and whether it is necessary to omit Section 2(1)(d). The first thing to do is to find out whether clean air comes in the correct place. There is no mention of clean air in Part of Schedule 10. The nearest I can get to it is pollution, which comes in Group 7. I then have to look at Part II and see whether it is delegated, Indeed, it is delegated, and I find, "control of pollution as respects motor vehicles", which presumably means internal combustion engines, but not motor bicycles. It then mentions aircraft. Presumably, in regard to pollution, aircraft is a reserved subject, but not in regard to noise, which apparently is a devolved subject. It then refers to hovercraft and, apparently, anything that a hovercraft does in the way of making itself a nuisance is a reserved subject. Dumping at sea is the same. We then come to ships. It appears that this is a rather complicated subject and, in so far as there is any increase in the standard required from ships, that will be a reserved subject. But if the pollution is no higher than the existing standard, that will be a devolved subject. It is a fascinating point for the Judicial Committee of the Privy Council to examine on some future occasion. It therefore seems to me that, in some respects, clean air is probably a devolved subject.
§ I turn to Schedule 16 and find that there is no amendment of any Act there. So I then turn to Schedule 11, which deals with powers, and in Group E your Lordships will find there are devolved powers on such things as the Alkali etc. Works Regulation Act 1906, the Control of Pollution Act 1974 and the Health and Safety at Work etc. Act 1974. However, the Clean Air Act is not mentioned. I have tried to examine the position, and it appears that clean air is probably a devolved subject. If this is so, is it necessary that Section 22(1)(d) should be excluded ? That is said not to be devolved.
§ It is worth looking at Section 22. It states that local authorities may report to 992 the Minister any smoke coming from a Government Department, smoke in smoke controlled areas and smoke which constitutes a nuisance. But they may not report smoke from the Royal Navy. I am not at all sure that I was not at the Admiralty when this Act was passed. But, be that as it may, I cannot see why this paragraph of a subsection should be left out. In any case, what can the Minister do? Furthermore, I am not sure whether the Minister is a Minister of the Crown or a Scottish Secretary. This is not at all clear to me. All he can do is to inquire and take practical measures to abate and prevent a recurrence. In these circumstances, I think that the noble and learned Lord could let this paragraph in a subsection of a Section go, and include the Clean Air Act in the devolution. I beg to move.
§ Lord MOTTISTONE
I should very much like to support my noble friend. When I looked at Part II, it seemed to me that there were just two paragraphs which were out of context from all the others. One was paragraph 22, which we debated last night, and which I shall not pursue further, and the other was paragraph 7, for just the reasons that my noble friend has mentioned. All the other paragraphs fit a kind of logic of the law, of finance or of public health. But this seems to me to be the odd one out, and I am sure that the Government need to look at this problem again in the way that my noble friend has suggested.
§ Baroness STEDMAN
By his Amendments Nos. 179 and 180 the noble Earl is seeking clarification on the purposes of the entry, and he has put his finger right onto one of our difficulties. In general, pollution by smoke is devolved by Group 7 in Part I of Schedule 10. If it were not qualified in some way, the effect of the group would be that the whole of the Clean Air Act 1956 was within the legislative competence of a Scottish Assembly and the powers of a Scottish Executive. Section 22(1) of the 1956 Act provides that a local authority should report any pollution from Crown buildings or ships to the responsible Minister, and that the Minister should take action to rectify the matter if, after he had conducted an inquiry, he considered that there was just cause for complaint.
993 The Government's policy in relation to Section 22(1) of the 1956 Act is that it should be devolved, in so far as it relates to Crown premises owned by the Scottish Assembly or Executive, or held for devolved purposes, but that it should be reserved in so far as it relates to "reserved" Crown premises, including Crown ships. Therefore, if a local authority complained about smoke from a "devolved" building, it would be for the Scottish Secretary concerned to take any necessary action, and the Scottish Assembly would have legislative competence to change the existing procedures in respect of such buildings.
The intention behind the Bill is that in so far as Section 22(1) relates to Crown buildings, the policy is achieved by silence, but that a special safeguard is required in relation to Crown ships. It is true that Schedule 6 to the Bill would require the Assembly to get Government consent for any legislation affecting premises, including ships, now vested in a Minister of the Crown, or imposing duties on members of the Forces of the Crown. But there is no similar safeguard, nor is one needed in the Bill as it stands, for any visiting Forces. So the noble Earl's Amendment, as it stands, would give the Scottish Assembly legislative competence in respect of all smoke pollution, including smoke pollution from, say, the Russian Navy on a courtesy visit to Scotland!
Having said all this, the Government accept that it is not entirely clear whether the present entry in Part III of Schedule 10 for the Clean Air Act achieves their policy intention. It certainly does what is required for pollution from Crown ships. This is clearly reserved, legislatively and executively, by the entry in Part III of Schedule 10. But the Bill's silence on Section 22(1)(a) to (c), which deals with smoke pollution from other Crown premises, might not do what is required. So it is arguable that, as the Bill stands, the Scottish Executive would become responsible for putting a stop to pollution not only from "devolved" Crown premises, but also from premises which are "reserved".
This, as I have explained, is not the intention and would make little sense, since the purpose of Section 22 is that it should be the Minister responsible for the pollution who has to take the 994 remedial action; and, in practice, of course only he has the means to do so. But the Government are very grateful to the noble Earl for drawing our attention to this difficulty, and we should like to review the entry for the Clean Air Act to see just how far it achieves the intended policy. If Amendments are required, then we shall table these on Report for your Lordships to consider further.
The Earl of SELKIRK
This is the first time that the Government have ever been grateful to me for anything, and I am deeply honoured. But I must confess that when one gets to the stage of devolved smoke and non-devolved smoke, one understands why the Faculty of Advocates said that there is no traceable distinction, in principle, between devolved and reserved subjects. I shall not press the matter any further, and I accept completely what the noble Baroness has said. I beg leave to withdraw the Amendment.
§ Lord SHINWELL
At this stage I may he wrong and, if so, I shall be corrected. But it occurs to me that what we are now debating are items which all come within the ambit of the fundamental principle, namely, what are to be the competent items within the jurisdiction of the proposed Scottish Assembly? On three of the items we have already had answers which indicate that the Government have not fully seized the purpose of those Amendments, and it is obvious that few of them, if any, were debated in another place.
A vast number of Amendments appear on the Marshalled List. If we are to debate every one of them—and some of the debates may be prolonged—we shall find ourselves quite unable to finalise the provisions of the Bill. Alternatively, Members of your Lordships' Committee will be called upon to sit up right through the night in order to satisfy the incompetence of those in another place who did not, apparently, exert sufficient pressure on the Government to enable the other place to discuss these Amendments.
I am going to make a suggestion which follows on from what my noble friends have both said in reply to the Amendments which have already been moved; namely, "The Government will give further consideration", or "The matter is complicated", or "The noble Member of 995 your Lordships' Committee who has raised the matter will be written to", et cetera. My suggestion is that, instead of going through all of these Amendments one by one and having debates on every specific item, at some stage my noble and learned friend the Solicitor-General for Scotland should make a general statement indicating which items are within the competence of the proposed Scottish Assembly and which items are not. This might require a rather long speech, but, if I may use the term, I think we could tolerate it. I do not say that in any offensive spirit. Perhaps I ought to say that we should listen attentively and with interest to a long speech from my noble and learned friend outlining what the proposed Scottish Assembly will be empowered to undertake and what it will be precluded from undertaking.
I believe that suggestion would be agreeable to the Members of your Lordships' Committee. I can understand that certain very important items appear so complicated to Members of your Lordships' Committee that special and singular reference may be required, but generally speaking we are discussing throughout practically the same principle. In other words—I repeat myself and I ask forgiveness for so doing—we are discussing what are to be the responsibilities of the proposed Scottish Assembly.
I hope that my noble and learned friend the Solicitor-General for Scotland will take note of what I have suggested and consider whether or not it is possible to adopt that device rather than go through prolonged debates on every specific item.
§ 3.55 p.m.
Lord CAMPBELL of CROY
While the noble and learned Lord is considering that point, may I say that I sympathise with the situation which the noble Lord, Lord Shinwell, has described. This is an exceedingly complicated part of the Bill, and I can tell the noble Lord that pages of this schedule were not discussed at all in another place. We are now on Part III, which the noble and learned Lord, Lord McCluskey, described as "fine tuning". It seeks to be a guide, in chronological order, through the Statutes, trying to indicate what is a devolved subject and 996 what is reserved; and reservation is indicated by silence.
If the noble and learned Lord were to make a speech setting out every subject which to be reserved, as the noble Lord, Lord Shinwell, has suggested, it would probably take us until midnight tonight, and it would be exceedingly difficult. Therefore, I would not recommend that course. As I have said before, we do not seek in any way to defend the system which the Government have adopted. It seems to us to be a very odd system. I would not commend the system which the Government have adopted of putting into Part I what is devolved, of putting into Part II those matters which are not devolved, and of putting into Part III references to the Statutes, leaving the reserved subjects silent. However, it is the system which the Government have adopted.
The noble Lord, Lord Shinwell, has intervened at a very appropriate point, because we are discussing the question of smoke from chimneys. The answer which my noble friend Lord Selkirk has received indicates that the subject is devolved or reserved, depending upon the type of building in Scotland from which the smoke has emerged. I can imagine that in Edinburgh, for example, where there are tall and very complicated buildings, one might even need to have a helicopter in order to identify where the smoke was coming from, and from which chimney of which building. Therefore the answer, illustrates the kind of fine tuning to which the noble and learned Lord referred. However, the noble Lord, Lord Shinwell, has shown, first, how exceedingly complicated this Bill is and how very difficult it will, if it is enacted, be for those concerned to interpret it and, secondly, that another place has had no opportunity to discuss these matters.
§ Lord McCLUSKEY
As my name was mentioned, perhaps I should say something. First, the Amendments which have been put down have, almost without exception—indeed, I might say without exception—been regarded by the Government as helpful. Although they are not necessarily Amendments which we can accept, it is right that the Bill should be exposed to the kind of scrutiny to which 997 the Amendments expose it. In discussing the Amendments, the Committee has given and continues to give to the Government the immense benefit of that kind of criticism. We welcome it, and even if it were within my power I should not want to alter the procedure of Parliament to avoid the kind of scrutiny which is what the Committee stage of a Bill like this is about.
Secondly, I have tried to make one or two general statements, and I hope that they have been of some value to the Committee. However, at the end of the day the provisions have to be contained in what goes on to the Statute Book. For all purposes of the courts of law, my speeches are written on water. It is what is ultimately printed by Her Majesty's official printer which counts. Therefore it has to be made as clear as it can be in the Bill and not in any statement that I may make.
Thirdly, as I have said on more than one occasion, we have made excellent progress, and I do not believe that there will be any need to invite noble Lords to sit all night on any occasion during the Committee Stage.
Lastly, criticism has been made of what happened in another place. It is not for me to criticise any person in another place, but I will say this, for it is right that the Committee should know it: in another place the Government moved, and the House accepted, a timetable Motion. Under that timetable Motion, the House proceeded to consider certain provisions of the Bill and failed to consider many others. We have considered every Amendment that has been put down, and we are almost exactly following the timetable that the Government provided in another place. In fact, during the course of the eleventh day we are about five hours behind the timetable.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 180 not moved.]
§ 4 p.m.
§ Lord McCLUSKEY moved Amendment No. 381:998
§ The noble and learned Lord said: This is an Amendment which is technical. It is to ensure the reservation of Section 2 of the Opencast Coal Act 1958 and Section 5 of the Pipe-lines Act 1962. They involve no changes in policy and the reasons for the Amendment are the same in each case. I should explain that Section 1 of the Opencast Coal Act provides that the National Coal Board may not carry out any opencast coal works without the authorisation of the Secretary of State for Energy. Section 2 of the Act provides that the Secretary of State may, in granting such an authorisation, direct that the authorisation constitutes deemed planning permission for the purposes of the Town and Country Planning (Scotland) Act 1972.
§ Deemed planning permission is a system whereby a Minister in authorising development may at the same time direct that it has planning permission so that it is not necessary to seek this separately from the local planning authority. The Government's approach is that the granting of deemed planning permission should be executively devolved where the development concerned is one which is authorised by a Scottish Secretary, and otherwise reserved. The Bill already achieves this policy for Section 37 of the Town and Country Planning (Scotland) Act 1972, under which deemed planning permission may also be granted; and the relevant entries may be found in Part III of Schedule 10 at lines 16 to 19 on page 62, and in Schedule II at lines 30 to 32 on page 68.
§ Section 2 of the Opencast Coal Act is concerned with planning permission for development, the authorisation of which is reserved. The granting of deemed planning permission should therefore also be reserved. However it is doubtful whether the Bill would at present achieve this. The authorisation of opencast coal mining falls clearly outside devolved matters and hence is reserved by silence. But the granting of deemed planning permission in respect of such mining, although in an Act dealing otherwise with reserved matters, is a planning power coming within the scope of Group 6 of Part I of Schedule 10. It is therefore necessary to reserve Section 2 explicitly in Part III of Schedule 10 to put it beyond any doubt that the Secretary of State for 999 Energy alone will continue to have the power of granting deemed planning permission for opencast coal mining. This is achieved by the first Amendment.
§ The position for Section 5 of the Pipelines Act 1962 is analogous. In this case the power to grant deemed planning permission is in respect of the construction of cross-country pipe-lines. The power to authorise such construction is safely reserved by silence, but it is necessary to ensure that the power to grant deemed planning permission is similarly reserved. This is what is sought to be achieved by the second Amendment. Where deemed planning permission is granted by Government Departments after devolution, it is important that they should notify the Scottish Executive in advance, as it will have general responsibility for planning matters and might wish to make representations to the Department concerned. The Bill already establishes such a notification procedure for deemed planning permission granted under Section 37 of the Town and Country Planning (Scotland) Act 1972. This is achieved by paragraph 34 of Schedule 16 on page 86 of the Bill. Amendments tabled by the Government to Schedule 16 are to provide similar procedures under Section 2 of the Opencast Coal Act 1958 and Section 5 of the Pipe-lines Act 1962. I beg to move.
Viscount COLVILLE of CULROSS
I think the noble and learned Lord, Lord McCluskey, has probably not had the opportunity of being involved in a contested opencast authorisation because there has never been one in Scotland. But there have been a great number of them in England and Wales, and I am not at all sure that this matter has been thought through. The noble and learned Lord makes it sound as though the deemed planning permission which follows the authorisation is simply a consequential piece of paper. It is not. I do not know whether the noble and learned Lord knows the procedure for the documentation in these matters, but if he does not, I will tell him. After the application for the authorisation has been considered, the first document which is produced is a very simple letter which provides for the authorisation itself under the Opencast Coal Act, and that is indeed done by the Secretary of State for Energy and I think 1000 almost entirely by him and his Department. But in the course of making the application there is an extremely complicated set of papers which has to be presented, which provides a great deal of information, particularly about working conditions and restoration proposals. These are set out at great length and are before the Secretary of State, and if there is an inquiry they are before that inquiry and are discussed by it.
If there is a contested case all these matters are open for discussion and very often, certainly South of the Border, not only the county council, which is the general planning authority, but the district council, which is the environmental health authority concerned with things like noise and dust, are hotly involved in saying what they wish to ensure by way of conditions. I would think that the same position probably applies in Scotland as between the regional council and the district council.
After the basic authorisation is given, and a good deal later, there also emerges a formal document which contains all these conditions. I think probably it is technically the authorisation itself in all its details but, as the noble and learned Lord has said, it acts as a deemed planning permission; and then we go on to the point which I do not think he has taken into account. The conditions that are imposed by the authorisation then operate as planning conditions. They are therefore enforceable by the planning authority, whichever it may be—I would think the regional planning authority—as is the case with all other planning conditions.
So there is a situation where, in the ultimate, supposing that there is a breach of one of these conditions, the enforcement authority will act under the ordinary planning powers, and I think —and the noble and learned Lord will tell me if I am wrong—that it' there is a dispute the matter will then have to be sorted out by the Scottish Secretary because that will then be a planning matter which would have been devolved to him. In any case, even if I am wrong, it is highly unsatisfactory to have this being done in London—and the Pipe-lines Act will be the same because I have no doubt the same sort of conditions arise on it. If this is the only sort of enforcement procedure where the regional authority will he taking action 1001 with an ultimate appeal to London, in the town and country planning world, they will be dealing with an authority in London which increasingly will be poles apart from the way in which planning practice is evolving in Scotland.
Take, for instance, one of the most complicated and difficult current subjects; namely, noise limit. It is difficult enough to get the local authority, which is the mineral planning authority, to deal with noise levels because they are not the environmental health authority and they have neither the staff nor the expertise. Occasionally they go to the Secretary of State to get levels of noise laid down or schemes prescribed. That is something which ordinarily would be dealt with in Scotland by the Scottish Secretary, but in this one case they will have to go to London. I do not think that the problem of the deemed planning permission and its details has been thought through. The noble and learned Lord will see the sort of thing that I am concerned about. I should have thought that before this is taken away from the Scottish Secretary finally, as this Amendment would do, we should think again how this would be worked out in practice. I do not know whether any of that has occurred to the noble and learned Lord before, but I suggest to him that it raises some severe practical problems which ought to be further discussed.
§ Lord McCLUSKEY
Let me express my gratitude to the noble Viscount for his assistance in this matter. I will confess that this is not a matter upon which I claim the kind of expertise which he obviously brings to it. We come to planning at a later stage and many questions will arise in relation to planning, and I have no doubt that the noble Viscount will further assist us when we reach that part of the Bill. In the meantime, I will make quite certain that what he has said is brought to the attention of those who are advising me on this matter and we shall see whether we can provide an adequate answer. If we cannot, then of course we must make sure that the Bill provides an adequate answer.
§ On Question, Amendment agreed to.
§ 4.10 p.m.
§ The noble Lord said: I beg to move Amendment No. 263 on behalf of my noble friends Lord Morris and Lord Teviot and myself. This part of Schedule 10 states that the Road Traffic Act 1960 is not to be included in devolved subjects except for certain matters which are set out in column 2. I will start by saying that I think it is sensible that that Road Traffic Act should not be devolved, because the road system is on a United Kingdom basis and the development of fast trunk roads between England and Scotland has been very important and significant for Scotland in recent years, especially for industry, commerce and tourism.
Our Amendment would retain a further reserved subject. It seeks to delete
road service licences or permits under section 30 of the
1968 Act, mentioned in column 2. Section 30 of the 1968 Act refers to special licences for buses, and it is associated with the question of road passenger licensing. Road service licensing is the basis of the whole British public road passenger transport system, and we believe that there is a need for uniformity throughout the country. We believe that there should be no possible reason—it should not be contemplated—for the Border becoming an obstacle of any kind. At present there is an increasing flow of traffic across the Border, both north and south. Scotland, I believe, would suffer more than England if a different system of conditions were to be produced on one side of the Border. This would cause discouragement to road passenger transport travelling north and south.
§ I would say a word on Section 30 of the Transport Act 1968. The section provides the law governing the issue of special permits for buses. For those who wish to look it up, it is three pages of detailed provisions. It does lay down the conditions for the issue of those permits for the whole country, and operators know where they stand; they know where they stand in Scotland as well as in England and Wales It is in the best interests of the passengers, too, that there should be uniformity of approach to these matters. Yesterday we heard words of that kind from the Government Front Bench on 1003 several occasions, when the Government were defending parts of the Bill which were reserving subjects and stating that they were subjects not suitable to be devolved. I would refer in particular to what the Government spokesman said in reply to the Amendment about industrial relations and disputes, which was put forward by my noble friend Lord Mottistone.
§ The same considerations apply here. The Confederation of Road Passenger Transport feel very strongly that these matters should not be devolved because it is essential that there should be uniformity over the whole country. I and my noble friends entirely agree with them. I beg to move.
In speaking to this Amendment standing in my name and that of my noble friends Lord Campbell of Croy and Lord Teviot, I will, with your Lordships' leave, speak also in principle to Amendment No. 267, although I will not confuse your Lordships, or indeed myself, by dealing with the minutiae of that Amendment at this juncture. I feel sure that your Lordships will join with me in expressing the ever-growing admiration which I have for the courageous, courteous, erudite and witty way in which Her Majesty's Solicitor-General for Scotland, the noble and learned Lord, Lord McCluskey, has handled his thankless, arduous, and all too often lonely task. It is in this spirit that I rejoice that I now find myself in a position to assist the noble and learned Lord and, with due humility, to put right a little oversight in the Bill which the noble and learned Lord indicated in his answer to a probing Amendment only a few hours ago—namely, yesterday afternoon.
I, and several noble Lords, asked the noble and learned Lord yesterday afternoon what was the significance of the addition of the words "provision of" to the passenger transport services clauses of this Bill. The noble and learned Lord said—and I quote from cols. 819 and 820 of yesterday's Hansard:These words are important; they make it clear that we are concerned with transport as a service, or rather an aggregation of services, and not as an industry. There will be no devolution as to, for example, construction requirements for vehicles. If you simply devolved 'transport' you might find that that was included in the matters devolved, so there is no devolution in relation to that; there is no devolution in relation 1004 to safety requirements or working conditions, which relate to transport as an industry rather than the provision of transport services".If I may say so, with the greatest respect, the noble and learned Lord, Lord McCluskey, put it so very well. I entirely agree with him that what he said should be so. However, it is not surprising, and wholly understandable, in a Bill as complicated as this that the Government appear to have overlooked the fact that they have in fact, no doubt in error, devolved, albeit indirectly, construction requirements for vehicles, safety requirements and working conditions, which relate to road passenger transport as an industry.
What this Amendment does, in conjunction with Amendment No. 267, is to remove from this Bill the granting of legislative competence to the Scottish Assembly over matters concerning the control and maintenance of construction design standards for passenger transport vehicles, the safety requirements, the comfort, cleanliness and noise, and thus the working conditions of passenger transport vehicles, by means of the road service licensing laws and those enabling laws which set up those bodies which monitor the working of such laws, to the benefit of the industry as a whole and to the many millions of passengers.
I feel confident that it is not in the nature of the noble and learned Lord, Lord McCluskey, to spurn this modest championing of the Government's declared policy on this matter, for I feel sure that he will agree that it is vital that the Government should incorporate in this Bill the view of the whole of the British road passenger transport industry, including the unions involved, that the present common national approach to the licensing and maintenance of standards in the industry be maintained. It is as a result of the excellent working of the road service licensing laws, dating from 1930, that the United Kingdom can boast a bus and coach network more comprehensive and carrying more passengers than any of its European neighbours or even the United States of America.
It cannot be stressed too strongly that the whole of the industry, throughout the United Kingdom, is of one mind in advocating that the present common national approach to the licensing of 1005 passenger transport road operations should retain uniformity throughout the United Kingdom. Indeed, my noble friend Lord Campbell referred to the fact that, in rebutting an Amendment tabled by my noble friend Lord Mottistone, the noble and learned Lord put the uniformity argument most eloquently when he stated last night:Let me make it quite plain that the Government's policy is to retain uniformity throughout the United Kingdom".I entirely agree with the noble and learned Lord, especially in the light of the statement made in the Government's transport policy White Paper of June 1977, which says:The proposals in this White Paper will give the bus industry an assured future as the main provider of local public transport services countrywide, complementing the railways in their national role, and where they provide essential local services".In that context, I feel it is important to remember that the national railways, which are not a devolved matter, are complementary to passenger road transport services, for, in 1976, the passenger road transport services provided nearly double the amount of passenger kilometres provided by British Rail—some 53 million kilometres as opposed to 33 million kilometres, to be precise.
If artificial boundaries are to be created by permitting the evolution of a separate system in one part of the United Kingdom in defiance of the trend in Europe, this valuable network will be threatened. Indeed, the Government confirmed their common international approach in paragraph 19 of the Transport White Paper of June 1977, when they stated:But we must take account of the work done in the Communities on various aspects of transport and of the international obligations involved. The time has come for a reconsideration of certain of the objectives of a common transport policy and the United Kingdom intends to play a full part in the discussions. It will be our continued objective to seek to ensure that decisions made by the Council of Ministers are acceptable in terms of our national policy".The volume of such services is by no means insignificant. In excess of a quarter of a million vehicles operating under road service licences cross the border every year. Indeed, the annual reports of the traffic commissioners over the past 10 years indicate that 25 per cent. of all services in Scotland operated under road service licences involve a border crossing. 1006 At this moment, judged on figures for 1975–6, and 1976–7 (road service licences being normally valid for three years) one third of all services are cross-border traffic.
For cross-frontier services of the EEC, it has been accepted that licensing should follow a common pattern throughout the communities, where frontiers create great obstacles to the free flow of transport. It is thus even more necessary that these matters should follow a common national pattern in the United Kingdom. It is in the best interests of passengers generally that there should be a uniformity of approach to these matters throughout the United Kingdom.
In conclusion, may I reiterate the ringing words of Her Majesty's Solicitor-General for Scotland, the noble and learned Lord, Lord McCluskey, when he saidLet me make it quite plain that the Government's policy is to retain uniformity throughout the United Kingdom".I feel sure that the noble and learned Lord, Lord McCluskey, will once again make manifest his undoubted intellectual integrity by deploying with his characteristic consistency of approach and argument the same principle as regards this Amendment.
§ 4.24 p.m.
§ Lord TEVIOT
There is very little for me to add to the Amendment, which has been so well moved by my two noble friends. In particular, my noble friend Lord Morris gave us a meaty and weighty exposition of the problem. He has also told me several things—as I am sure that he has told your Lordships, as well—of which I was not aware.
What has emerged is that the whole question of passenger road transport is much better left alone. I say this almost, but not quite, lightheartedly, because I was involved in passenger road transport ten years ago. There is an incredible network of services of all kinds, providing not only stage services but express services which are of the greatest use to the not-so-well-off people in the community who wish to travel from A to B, whereas the railway services have been cut to blazes. One may travel in all parts of the country on cross-express coach services, at about 55 per cent. of the cost of rail. At 1007 weekends one may take the railway bargain breaks. I do not want to slate the railways. But on the whole one does very nicely, thank you, on the express coach services, and this especially is true of elderly people visiting far-off relations and friends, as well as large families going on holidays.
One point that I should like to make fairly strongly is that the subject of public road passenger services or buses sometimes become emotive. Everyone considers himself expert on the subject, as people do with the weather, football, the upbringing of children, and several other matters. People seem to know exactly that if the bus does not come along precisely when they are at the bus stop, it is late. If two or three buses come along at the same time they are bunching—I prefer the word "stair-casing"—and people say that the drivers have done it on purpose, disregarding the fact that there may have been difficult traffic conditions and other factors, and that some people drive fast and others are slow.
It has been put forward by my noble friends that in this country we have the licensing authorities, the traffic commissioners, the people who know what they are doing. Please let them go on. Let us leave it at that.
I did not realise that so many services crossed the border every day. In the 1968 summer Recess I was involved for a fortnight in one important service from Glasgow to Corby. My family come from Scotland but that taught me a lot about the Scots. Corby is a strongly Scottish place in Northamptonshire. There are many of these "hidden" services. We are interested to know what the noble and learned Lord will tell us.
§ 4.28 p.m.
§ Baroness STEDMAN
I am sorry to disappoint noble Lords opposite. It is not the noble and learned Lord, Lord McCluskey, whom they will hear again. On the first Amendment moved by the noble Lord, Lord Campbell of Croy, we have said several times that what we want to do is to devolve to the Scottish Assembly responsibility for matters that are of close everyday concern to the people living and working in Scotland 1008 but which have little or no impact on those in the South. I should have thought that the bus services were clearly such a matter. It would be a lame Assembly which did not have competence in respect of them. The reservation of the bus services is not consistent with any form of devolution which is going to be of help to the people in Scotland.
Group 14, in Part I of Schedule 10, together with paragraph 8 of Part II of that Schedule, define in general terms the legislative powers of the Assembly, and the executive powers of the Scottish Secretary in respect of transport as a whole. The Assembly will have powers in respect of the provision of all passenger transport services, except for those such as British Rail and British Airways which form a part of the wider Great Britain network. That is not to say that they will actually provide such services themselves any more than the Government do at present.
The nationalised Scottish Transport Group does, I believe, provide some coach services, but it will be able to regulate the provision of services by others. However, it will be for the Scottish Assembly to do this regulating. As part of this competence the Assembly will be responsible for road service licensing, under which the fares and the frequency of bus services are controlled through the traffic commissioners. But it will not have powers in respect of public service vehicle licensing, which is also controlled by the traffic commissioners—normally by the chairman sitting alone—or in respect of freight operators' licences, for which the chairman of the traffic commissioners is the authority. These matters have been reserved because of their implications, as the noble Lord, Lord Morris, reminded us, for safety standards and trade and industry, both of which need to be considered on a Great Britain basis.
The entry in the Bill for the Road Traffic Act 1960—lines 14 to 21 on page 56 —makes it clear that road service licensing is devolved, but the other duties of the traffic commissioners are not. It takes account of the dual role of the commissioners by reserving the appointment of the chairman, who acts largely in respect of reserved matters, and devolving that of 1009 the other two members for the Scottish Assembly to appoint. They are concerned primarily with the devolved road service licensing system.
The noble Lord, Lord Morris, also referred briefly to Section 30 of the Transport Act, and later this afternoon he will no doubt talk to us about the Minibus Act as well. However, because Section 30 is concerned with a simplified alternative to road service licensing, it is devolved. The traffic commissioners will be responsible to the Scottish Secretary in respect of the permits they issue. The Minibus Act, when we come to it—and this perhaps illustrates the point —is concerned with the relaxation of both public service vehicle licensing and road service vehicle licensing, and the entry for that Act accordingly devolves only those aspects which will provide an alternative to road service vehicle licensing.
We believe that our treatment of transport in the Bill will allow the Assembly the full powers in respect of the provision of bus services, while we ensure, in response to the fears which noble Lords have expressed, that the construction and the safety standards of the vehicles will continue to be dealt with for Great Britain as a whole. However, the Scottish Assembly will have devolved powers for its own bus services.
Lord DE CLIFFORD
I am not clear how the noble Baroness has worked this out. The Scottish Assembly is to have powers to organise the internal bus systems within Scotland. However, then she added a remark which gave me the impression that it was also to have the power to control the number of national coaches which came in from outside. Am I correct?
§ Baroness STEDMAN
No. I said that the nationalised Scottish Transport Group already provides some coach services. It will be for the Assembly, with its devolved powers, to do some regulating of other coach services that come in, to ensure that there is a proper network of coach services.
The Earl of SELKIRK
Does the Assembly have power to abolish the traffic commissioners? The noble Baroness said that the Assembly can 1010 control the traffic, but that is really done through the traffic commissioners. Can it abolish them?
I should like to thank the noble Baroness very much indeed for her answer. She referred to Section 30 of the Transport Act 1968. That section draws in Part III of the Transport Act 1960, it is of course, the enabling section for the whole of the licensing procedure for the rest of the public passenger transport service vehicles.
§ Baroness STEDMAN
Yes, but it is the Bill's treatment of Section 30 of the Transport Act 1968 that is consistent with our approach to what shall be devolved and what shall be reserved. It is Section 30 which is concerned with the simplified alternative to road service licensing. Therefore, that is the part that we are devolving to the Assembly, and the traffic commissioners will be responsible to the Scottish Secretary in respect of the permits they issue, so far as that is concerned.
I have not made myself clear. By devolving Section 30 we are also devolving Part III of the 1960 Act.
§ The Earl of ONSLOW
Perhaps the noble Baroness might like to comment on this: If, as I understand it, the Scottish Assembly will be able to give a licence to a coach company in, for example, Oban, and that coach company runs trips across the Border, that coach company could be under a different licensing system from a coach company in the noble Lord, Lord Teviot's Corby. In those circumstances, there will he two internal coach companies running under different sets of rules. Shall we not come up against a European Economic Community Treaty of Rome obligation in that regard? Is this not hampering free movement of trade and vehicles between Community countries and intra-Community countries? That is something that I should like the noble Baroness to think about.
§ Baroness STEDMAN
I do not think so. We are not envisaging that Scotland will be a separate part of the Community. It is still part of the United Kingdom.
§ The Earl of ONSLOW
Of course, I realise that. The point is that if there are two different sets of rules, or two different sets of licences, it will not provide uniformity within the EEC. Surely it is just as wrong to have a difference between France and England as it is to have one between Scotland and England? Of course I realise that this Government are not going to cede Scotland to Brussels.
§ Baroness STEDMAN
The traffic commissioners in the rest of Great Britain have the same rights about giving or withholding licences as will traffic commissioners in Scotland. We shall not be working under two different systems.
§ Lord TEVIOT
There is one point which has been left out. All members of the Confederation of British Road Passenger Transport Limited, which I believe contributes about 88 per cent. of the industry, and consists of members of the National Bus Company together with independent operators, were unanimous in their view that this should not be a devolved matter. Not only was that the view of the operators who operate on the Border and go across the Border, but it was also the view of operators in the Highlands and Islands who were not really concerned.
§ Baroness STEDMAN
Surely the services that are provided within Scotland are a matter of primary concern to the people who are living in Scotland. The whole object of devolving powers to them is that they will know what is required within their areas by the people who live in those areas. Surely that is what we are trying to do?
§ 4.38 p.m.
Lord CAMPBELL of CROY
We are grateful to the noble Baroness for her reply. Again, we do not know whether she has had to answer at short notice. However, she rather spoke as though we were discussing only a town bus service or some very localised service of that kind because she said that people will be 1012 concerned about conditions and the bus services in their own areas. However, that is only a part of the passenger transport system which we are considering.
I thought that I had made it clear in my opening remarks—of course I tried to keep them brief—that I was concerned about the increasing long-distance passenger traffic. I am very glad to see that the noble Lord, Lord Kirkhill, is back again today. I understand that he is not fully recovered; I hope that he will be soon. However, he having been a very distinguished Lord Provost in Aberdeen, where his home is, knows that there is an overnight coach service from London to Aberdeen. I may say that members of my family have used it because it is about half the price of the train service. I am not doing a commercial; I have absolutely no interest, but when one travels 500 miles one knows whether there are very good road services.
There are also long-distance coach services across the Border and, because of the improvements in roads and motorways such as the M6, the M1 and the A74, we expect to see increases in the long-distance passenger transport services. Therefore, the noble Baroness in her reply was really addressing herself to only a small part of this matter, such I might describe as a town bus system. I entirely agree that somebody living in a medium sized town in Scotland is concerned about his local bus service, but we really ought not to deal with this important subject, which involves this country's whole road network, on that very parochial basis.
The noble Baroness also raised another important matter; namely, the Government's intention that road operators' licences and similar matters affecting construction and safety of vehicles would not be devolved; they would be reserved. That certainly confirms what I thought was the intention of the Bill. My noble friend Lord Morris said that if one looks very carefully at the Bill as now drafted it may be that this intention will not he carried out. The noble Baroness said that she would look at that because it is clearly a drafting matter. We know what the Government intend, even though the effect of the Bill as now drafted may not carry out that intention. But the very reason that the noble Baroness gave for stating that virtually all the rest 1013 of the road transport licensing system would be reserved and that the Traffic Commissioners would have nothing else devolved—that is, they would have to go to the Assembly for nothing else, except the matter of road service licensing— applies to this as well. It is most confusing to think that the whole of the rest of this road transport licensing, including operators licences, will not be devolved and yet this little bit will. We believe that this is just as important as the rest.
I should like to ask the Government whether they agree that it has been accepted that matters of this kind should follow a common pattern throughout the EEC. That is our understanding, and I
§ see that the noble Baroness, Lady Stedman, is nodding. When advances are being made toward uniformity in the EEC it is certainly a retrograde step to make provisions here for breaking up the already existing uniformity in the United Kingdom. I and my noble friends certainly feel strongly about this, and we believe that a decision should be taken by the Committee.
§ 4.42 p.m.
§ On Question, Whether the said Amendment (No. 263) shall be agreed to?
§ Their Lordships divided: Contents, 93; Not-Contents, 79.1015
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ 4.50 p.m.
Lord DRUMALBYN moved Amendment No. 264:
Page 57, line 45, leave out from beginning to end of line 49.
§ The noble Lord said: This is a small and simple Amendment, on page 57 to leave out from the beginning of line 45 to the end of line 49. Her Majesty's inspectors of schools are appointed by Her Majesty the Queen, and they are very proud of it. The effect of this Amendment would be to remove the necessity for the Secretary of State to recommend to Her Majesty the appointments of Her Majesty's inspectors of schools. I quite see the difficulty about this.
§ The point I want to put—and I put it shortly—is this: Here we have a Scottish Secretary responsible for education in Scotland. Her Majesty's inspectors of schools are an important part of the system. To say the least, it seems anomalous that Her Majesty's inspectors of schools should be recommended by somebody other than the Scottish Secretary. I am asking how this difficulty will be overcome. I quite understand that the Bill does not seem to provide any means for the Scottish Executive, the First Secretary, or anybody else, to have direct access to Her Majesty to make such recommendations as this. On the other hand, it seems unreasonable that the Secretary of State, having devolved education entirely, should make this off his own bat, so to speak. What is the answer to this? Can the noble Lord tell me? I beg to move.
§ The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill)
As the noble Lord, Lord Drumalbyn, has just said, responsibility for education is devolved by Group 3 of Part Ito Schedule 10. Of course this includes responsibility for the 1016 school inspection system. If I can be of some help to the noble Lord, and I hope I can, the reason for the reservation of the power under Section 145 of the 1962 Act to recommend to Her Majesty the appointment of inspectors of schools is simply that it is not proposed that the Assembly should have direct access to Her Majesty. Access to the Crown will only be—and this is consistent throughout the Bill—through the Secretary of State.
The fact that the formal appointment of inspectors is reserved does not mean, in practice, that the devolved Administration will be precluded from the process of appointment. Indeed, on the contrary, it is my considered view that the first moves in making recommendations for appointments will rest with the Scottish Executive. I think it is fair to say that it is difficult to visualise a set of circumstances where that would not happen. I do not see the Secretary of State making a suggestion to Her Majesty which was not in accordance with the Scottish Secretary's views.
Of course, as the noble Lord is fully aware, the inspectors of schools are civil servants and, as with other staff of the Scottish Office who will transfer after devolution to the Department of the Scottish Executive, their conditions of service will in no way be affected. I think I can fairly say that it is envisaged that their role will continue to be the same then as it is now. I hope that that is of some help to the noble Lord.
§ Lord DRUMALBYN
I am much obliged to the noble Lord. I was concerned with the future appointment of Her Majesty's inspectors. The noble Lord has reassured me that in his view the initiation of the recommendations will come from the Scottish Secretary. With that I am content, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.1017
§ Lord KIRKHILL moved Amendment No. 382:
§ The noble Lord said: Amendment No. 382 was spoken to with Amendment No. 381 and, accordingly, I move it formally.
Lord CAMPBELL of CROY moved Amendment No. 265:
Page 58, leave out lines 36 to 44.
§ The noble Lord said: This is an Amendment which was discussed with the Amendment on forestry last night, and in consequence of the decision taken to take forestry out of the Bill, this Amendment is one that is consequential. I therefore beg formally to move Amendment No. 265.
§ Baroness STEDMAN moved Amendment No. 266:
§ Page 58, line 44, at end insert—
|("The Parliamentary Commissioner Act 1967 (c. 13).||Included (subject to section 71 of this Act).")|
§ The noble Baroness said: With the leave of the Committee, I should like at the same time to speak to Amendment No. 289. These two Amendments taken together clarify the capacity of the Assembly to legislate for maladministration. The Assembly will have legislative competence in relation to devolved matters. It will, if it wants, be able to legislate across the board on any particular aspect of several devolved matters or even all devolved matters. So it could legislate about maladministration in matters which are devolved matters in relation to the Assembly. But it must also be able to legislate about maladministration in matters which are devolved matters only in relation to a Scottish Secretary—as we can see in Clause 59(3)(b) and (c). Otherwise any such maladministration would remain within the jurisdiction of the Parliamentary Commissioner for Administration—which is not what we intended.
§ We deal with this omission by including the Parliamentary Commissioner Act 1967 in Part III of Schedule 10, so that all 1018 matters which are now within the Parliamentary Commissioner for Administration's jurisdiction but which are going to be devolved matters, whether in relation to the Assembly or to Scottish Secretaries alone, are duly picked up. The cross-reference to Clause 71 warns of the special provision added to that clause by Amendment No. 289. Clause 71 provides for the—
Viscount COLVILLE of CULROSS
I am sorry to interrupt the noble Baroness but, with respect, I do not think it is at all convenient to deal with the substance of Amendment No. 289 at this point. I have an Amendment which bears on a word which has been inserted in Amendment No. 289. I think it would be much better to discuss the substance of that clause when we get there. It is all very well to have the paving Amendment, but then we have the substance when we get to Clause 71.
§ Baroness STEDMAN
I am in the hands of the Committee and I am happy to deal with it in that way. In that case, I have finished what I was saying about Amendment No. 266. I beg to move.
The Earl of SELKIRK
May I ask one question on this Amendment? This deals with the Parliamentary Commissioner Act 1967. It is a United Kingdom Act. The Assembly have power to amend it as they like. The United Kingdom Westminster Parliament have power to amend it. You have therefore two Acts flowing in opposite directions. All legal libraries ought to be warned that they may have to arrange their books differently. It raises the problem that you may well have two separate Acts dealing substantially with the same subject, with perhaps different references, but falling from one Act. I want to be quite certain that I have got this right.
§ Baroness STEDMAN
I think the noble Earl has it right. It is a complicated matter and perhaps he will permit me to look into it and write to him in due course.
§ 5 p.m.
§ The noble Lord said: This Amendment would delete Sections 9 to 19. Section 20(1), (5) and (8), Sections 21 to 23 and Section 30 of the Transport Act 1968. Its purpose is to remove from the matters to be devolved to the Scottish Assembly and Executive the existing powers of the Secretary of State for Scotland to designate passenger transport areas and to establish transport authorities and executives as well as granting permits under Section 30 of the Transport Act 1968, which was referred to in discussing the previous Amendment on this subject.
§ The process of establishing passenger transport authorities and executives includes the option of giving powers to remove the licensing of stage and express services from the traffic commissioners, substituting consents by the executives and the power compulsorily to acquire the services of State-owned and independent operators. It is therefore of considerable significance, when viewed against the desirability of maintaining a common transport policy—to which I referred in principle when moving my previous Amendment—throughout the United Kingdom, that authority to introduce relevant secondary legislation should be retained by the central Government.
§ Baroness STEDMAN
It is a complex Amendment and a complex subject with which we are now dealing, and I am sure that if the draftsmen of former years had anticipated devolution we should find our task today much simpler; but we must take the structure of the Transport Act as we find it and try to weave in and out of it, and what appears complex on the Statute Book sometimes also proves quite simple in practice. What would the noble Lord's Amendment reserve and why do the Government believe it right that the matters he wants to reserve should be devolved? First and most important, the Amendment would reserve responsibility for passenger transport authorities and passenger transport executives under Section 9 to 23 of the 1968 Act, and noble Lords who have been brave enough to read those provisions will have been confronted by a mass of small print and detailed provisions, including one section which, if my memory serves me right, 1020 covers six or seven whole pages. I wish to draw the attention of the Committee only to the following words which appear in Section 9 of the Act because they are the key to why we propose to devolve these matters:… it shall be the general duty …of the Passenger Transport Authority … and the Passenger Transport Executive … to secure or promote the provision of a properly integrated and efficient system of public passenger transport to meet the need of that area with due regard to the town planning and traffic and parking policies of the councils of constituent areas and to economy and safety of operation".Therefore the passenger transport authorities and executives are concerned with local transport matters and with the policies of the local authorities concerned, so we do not see how the reservation of those matters could really be justified. They are of close concern, indeed of everyday concern, to those people who live and work in the areas concerned, although they have little or no impact on people living South of the Border, and they form an important part of the Scottish Assembly and Executive's wider competence for the provision of transport services. To reserve those particular aspects would weaken their ability to pursue a co-ordinated and integrated transport policy and would prove to be administratively awkward, though that does not necessarily mean it should not be done; but we do not think it would lead to efficiency.
At present there is in practice only one PTE in Scotland; the one for Greater Glasgow, whose activities include the operation of the Glasgow bus and Underground systems and the provision of subsidies to British Rail for otherwise unremunerative local rail services. The PTA for the area is the Strathclyde Regional Council, and I am sure it would be wrong for those bodies to look to Westminster, rather than to the devolved Administration in Edinburgh, for their dealings with central Government.
The Amendment would also reserve Sections 30 and 34 of the 1968 Act. Section 30 concerns road service licensing, on which we have already had a debate, and it provides for relaxation in licensing procedure for certain minibuses and school buses where the local circumstances can justify that, and I am sure it is correct that that should be devolved. Section 34 concerns assistance for rural buses or 1021 ferry services. Local councils can make grants, which the Government may reimburse, for services which are,… for the benefit of persons residing in rural areas".Again, that is surely a provision of local concern and one that is right for devolution.
I have not dealt with all those parts of the Transport Act which the Bill anyway reserves, or with those parts of the Act which are to he devolved but which the Amendment would leave untouched. The responsibility for the Scottish Transport Group is devolved, and that for the National Freight Corporation, British Railways Board and National Bus Company are very much reserved. The key throughout is that we have devolved transport matters of local Scottish concern and we have reserved those which have the wider implications. I am convinced that this policy is sound and I hope the Amendment will be withdrawn.
§ Lord TEVIOT
I should have thought that if the last Amendment were acceptable, this one would seem to go with it. The noble Baroness, Lady Stedman, said so nicely that she thought that, as this was a Scottish matter, Scottish people should decide it. The operators in Scotland like the situation as it is, and one must remember that on this subject one finds many differing opinions. Apart from the passenger transport executive for Greater Glasgow there are the other three regional councils of Tayside, Grampian and Lothian, and in all the various areas one could find a number of people with a number of different ideas all wanting to put those ideas into practice.
As I said earlier, people get tremendously emotive on a subject like public transport, all feeling they are experts; they will take on things about which they know nothing, even to the point of disregarding the operator who is in the business, who knows how to make it pay and who has the people's interests at heart. For those reasons, it seems a pity to devolve this matter, although I agree that the noble Baroness, Lady Stedman, put forward a convincing argument. It is all rather touch and go, so to speak, which is probably a good reason for resuming one's seat.
§ 5.8 p.m.
Lord CAMPBELL of CROY
My name is also attached to this Amendment and I was interested to hear what the Government would say in reply to it. I agreed with the first remark the noble Baroness, Lady Stedman, made when she referred to this as a highly complex matter. The Committee may be interested to know that I suffered the fate of being on the Committee in another place on the Transport Bill which became the Transport Act 1968. That Committee had many all-night Sittings and it broke the then record for the length of time and number of Sittings of any Standing Committee in another place. During the course of it we arranged for 23 pages of the measures to be dropped, so it was not altogether art unhelpful exercise. I therefore understand the complexities of which the noble Baroness, Lady Stedman, spoke, and her remarks reminded me of those discussions nearly 10 years ago.
As the noble Baroness, Lady Stedman, said, there is only one passenger transport executive in Scotland and one passenger transport authority. I was involved in setting it up because I happened to be Secretary of State at the time, and it is the Secretary of State for Scotland as well as the Secretary of State for Transport who can initiate these. Like my noble friend Lord Teviot, I am worried that, if this is devolved, the idea of PTEs as they are now understood within the United Kingdom could be changed. The Assembly might try to set up a dozen or more in different parts of Scotland, which would transform what the intention was in the 1968 Act, because there is really only one area in Scotland where such a system is needed, certainly at present.
There is the complication that, under the Amendment which we have already made to the Bill, we have taken the question of permits under Section 30 of the Transport Act out of the devolved subjects, whereas if this Amendment is not made, that would still be within the powers of the PTE and therefore be devolved. Having listened to what the noble Baroness has said, and having been reminded that a PTE is responsible, among other things, for some rail services, which are also not devolved in other respects—British Railways is very firmly 1023 a reserved subject—I would suggest to my noble friends that perhaps this is a matter which we ought to consider and study again, rather than take a decision on it today.
I see that there is at the moment this discrepancy on Section 30 relating to the 1968 bus arrangements. However, because it brings in so many other items of transport, including railways, I should prefer not to press the Amendment today; but I should like to make it absolutely clear that we should like to return to this matter at a later stage of the Bill. Perhaps, in the meantime, the Government will consider what has been said, and they may themselves have some changes to bring forward.
There is a danger that the whole concept of PTEs and PTAs might be changed if they were to be handed over to the Assembly and its Executive as a devolved subject. They cover many different forms of transport. Therefore, while I am not at all happy with the Bill as it stands, I would suggest to my noble friends that this question needs further study and thought before a decision is taken.
§ Lord HUGHES
I should like to intervene very briefly. I am glad of the advice which the noble Lord, Lord Campbell of Croy, has given his noble friends. I should like to suggest to the noble Lord and his colleagues that if they come back to this matter at the next stage, they ought not to include in any subsequent Amendment a proposal which would result in the Glasgow transport system having to look to Westminster instead of to the Assembly. As the noble Lord, Lord Teviot, has said, this may be what the operators have wanted, but I am quite certain that the people of Greater Glasgow would take an exceedingly dim view if theirs was the only local public transport in Scotland which was so operated. I hope that if, in considering this matter, the noble Lords find that they would like to look at Section 30 again, they will forget about the previous sections.
I know that the noble Lord, Lord Campbell of Croy, has expressed the possibility—I would hesitate to say the fear, because I do not think that he would fear this for one moment—that the Assembly may multiply the number of 1024 PTAs and PTEs. There has been only one since the Act was set up. Up to the present no one has shown any enthusiasm for having another one, and I should be astounded if the Assembly wanted to set up any more.
Lord CAMPBELL of CROY
I agree with the noble Lord. In my remarks I was indicating that I am sure that only one PTE is required in Scotland in present circumstances. However, if a new body or a new executive is given the kind of powers we are discussing, it may say that it would like to use them and would like to start setting up some more PTEs—not looking at the matter in a United Kingdom context. I was interested to hear the noble Lord, Lord Hughes, suggesting that the people in Glasgow may wish to look to Edinburgh for advice and instruction here, because there are very few other subjects on which the two cities have that kind of relationship.
§ Lord HUGHES
The noble Lord, Lord Campbell of Croy, is forgetting that the most frequent argument from his friends in another place has been that this operation is to be run by Glasgow.
I am always very happy to take the advice of my noble friend Lord Campbell of Croy, and I am sure that as usual his advice is correct. In the light of what he has said, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.15 p.m.
§ Lord McCLUSKEY moved Amendment No. 383:
Page 61, column 2, leave out lines 4 to 17 and insert—
("Included, so far as relating to the Scottish Tourist Board and hotels and other establishments in Scotland, except that—
§ The noble and learned Lord said: This is a technical Amendment, and does not represent a change in policy. Tourism is a locally-based industry, and the Government believe it right that the main responsibility for its development in Scotland 1025 should be devolved to the Scottish Administration. Accordingly, the development of tourism is listed as a devolved matter on page 49, in Group 18 of Part I of Schedule 10. The Assembly will be able to legislate on this subject, and the Executive will assume existing ministerial functions, for example, relating to the Scottish Tourist Board and hotels and other establishments in Scotland. It may be that we will come to a larger debate on tourism later.
§ However, Part II of the Development of Tourism Act 1969 promoted a scheme for the making of grants or loans to encourage hotel building. These grants or loans are made through the National Tourist Boards. It is a finite scheme in that, except in quite exceptional circumstances, work must have begun before 31st March 1971, and been completed not later than 31st March 1973. All grants and loans eligible under the terms of the scheme have already been made in Scotland. But although the scheme is in effect completed, the repayment of grants and loans will continue for some years after the devolution of responsibility for the Scottish Tourist Board. As the original grants and loans were paid out of the Consolidated Fund, and there are no further loans or grants to be trade, it is more straightforward for the repayments also to be channelled directly into that fund, rather than into the Scottish Consolidated Fund when that comes into being. After devolution, the Government believe the Scottish Assembly should be free to legislate to bring in a new scheme, or schemes, of their own to encourage hotel development if they so desire, but they are to have no powers in respect of the almost expired existing scheme.
§ The present entry for the Development of Tourism Act 1969, on page 61, in Part III of Schedule 10, does not, I fear, achieve this desired result. When it was inserted in the Scotland Bill it was thought that there might be one or two exceptional loans or grants still to be made after devolution, and it was felt that for purely administrative convenience it would be best for the residue of the scheme to remain with the Government. Consequently, the entry on page 61 excludes from the competence of the Assembly Sections 7 to 16 and Schedules 2 to 4 (so far as they relate to Sections 7 to 16) of the 1969 Act. This is 1026 no longer necessary. Moreover, to exclude these sections casts doubt on the Assembly's competence in Group 18 over the matter of giving grants or loans to encourage hotel developments, because that is the matter contained within the sections concerned. The existing entry also has the effect of making repayments payable into the Scottish Consolidated Fund because Sections 19 and 20 of the 1969 Act (which deal with the giving of general directions to the Scottish Tourist Board about the scheme in Part II of the Act, and the channelling of repayments into the Consolidated Fund) are specifically devolved.
§ The Amendment has been put down, therefore, to achieve these objectives. To summarise, it will ensure that outstanding grants and loans will be paid not into the Scottish Consolidated Fund, but into the United Kingdom Consolidated Fund, and that the Scottish Assembly will have full legislative competence over the matter of grants or loans to encourage hotel development in the future. I beg to move.
Lord McCLUSKEY moved Amendment No. 384:
Page 63, leave out lines 48 and 49.
§ The noble and learned Lord said: This, too, is a technical Amendment. It concerns the National Water Council, which is established under Section 4 of the Water Act 1973. The National Water Council has a number of functions, but only two extend to Scotland. These concern the establishment of a scheme for testing and approving water fittings (Section 4(5)(d) of the Act); and the establishment of a scheme for training and education in connection with water services (Section 4 (5)(e) of the Act). The Government propose that the water industry in Scotland should be devolved; and this is generally achieved by Group 16 of Part I of Schedule 10, which devolves the "matter" of "supply of water". We also propose that, so far as the National Water Council operates in Scotland, it should be responsible to a Scottish Secretary, not the Secretary of State. This we believe to be sensible and practical because water fittings and training clearly come within devolved matters.1027
§ Accordingly, the Council is listed in Part II of Schedule 13 to this Bill, so that an order is made in respect of it under Clause 64. Your Lordships will recall that we discussed how Clause 64 works when we were talking about aerodromes. The order would be made only at the request of a Scottish Secretary and after consultation with the Council. It would provide for matters such as appointments to the Council by the Scottish Administration, and for the Council to report and account to them in respect of its Scottish activities.
§ The Bill also provides that, when an order is made under Clause 64, legislative competence passes to the Scottish Assembly in respect of the particular body, in this case the National Water Council in Scotland. There is no reason to suppose that the Assembly would not want to continue to make use of the Council, but, as it will have legislative competence over the matter of water, it makes no sense for water fittings and training to be reserved. For example, if the Council's terms of reference on these matters need to be altered, the Assembly should have the power to do so. It would be wrong for Westminster to have to continue to legislate upon such matters. However, the entry for the Water Act in Part III of Schedule 10, at the foot of page 63 of the Bill, has the effect of depriving the Assembly of such legislative competence. The Amendment, accordingly, would delete the entry, thus giving the Assembly full competence in the same way as on other matters covered by Group 16 in Part I of Schedule 10. This is only a minor Amendment, but I hope it makes for greater tidiness in the Bill and I trust it will be acceptable. I beg to move.
§ 5.23 p.m.
Lord TEVIOT moved Amendment No. 268:
Page 67, line 40, leave out from (" included ") to end of line 48.
§ The noble Lord said: I beg to move Amendment No. 268, which stands in my name and in the name of my noble friend Lord Morris. This Amendment is complementary to those already moved in Committee in respect of transport, which have recognised the need for 1028 uniformity of control throughout Britain. The Minibus Act, which, incidentally, was, on the whole, the well-behaved child of the noble Baroness, last year created, as it were, a second-class public service vehicle, though a very important one. It exempts from public service vehicle licensing certain vehicles used by bodies concerned with education, religion, social welfare and other activities for the benefit of the community; but it provides that the Secretary of State may, inter alia, make regulations prescribing the conditions to be fulfilled by the drivers of such vehicles and by the vehicles themselves. These provisions are important in relation to the safety of the public, and they relate to a part of the public transport system as it has been constituted since the Minibus Act 1977.
§ As originally drafted, the Bill would have devolved the Minibus Act in its entirety to the Scottish Assembly and Executive, but in the other place the extent of the devolution was restricted to three powers: first, to give directions, general or specific, to the traffic commissioners in relation to their discretion to issue permits for the use of these vehicles under Section 1(2); secondly, to make orders designating bodies which may, in addition to the traffic commissioners, grant such permits, and to whom they may grant them, and imposing restrictions with respect to such granting under Section 1(3); and, thirdly, to prescribe matters of which account is to be taken in determining the conditions of such permits, other than the limitation of passengers to specified classes of persons, under Section 3(1)(a).
§ It might be thought that the Government were seeking to retain from this Act a few crumbs which could be graciously distributed to give an impression that they still seriously believe in devolution. In this case, all that is left is indeed a few crumbs, and it would be unrealistic to think that they have significance. Therefore, in the genuine interest of maintaining consistent standards, it is submitted that the Minibus Act should be removed entirely from the matters to be devolved to the Scottish Assembly and Executive. That is the effect of the Amendment. I beg to move.
§ The Earl of ONSLOW
I hesitate to disagree with my noble friend Lord 1029 Teviot on this, but it would seem to me that minibuses are literally par excellence local vehicles. If we are going to have this wretched Bill, as it appears we are, then on this occasion I would hesitate to agree with my noble friend, for I think that minibuses are so local that they ought to be dealt with at as local a level as possible.
§ Baroness STEDMAN
I almost wonder whether I need get up after that intervention from the opposite Benches. The noble Earl, Lord Onslow, is quite right: this is essentially a local matter. When we were looking at the earlier Amendment, on the Road Traffic Act, I tried to explain the Government's general approach to the devolution of road service licensing. This Amendment is concerned, much more narrowly than that, only with the Minibus Act, and, rather than go over the same ground again, perhaps I could explain how our general approach to road vehicle licensing is applied to this particular enactment.
The Minibus Act was introduced as a Private Member's Bill, but, as the noble Lord, Lord Teviot, has said, I had the opportunity to watch its progress through your Lordships' House from the Government Benches. It is one of several recent measures aimed at providing greater flexibility than was allowed by the original road service licensing provisions under Part III of the Road Traffic Act 1960. The trend towards greater flexibility started first with Section 30 of the Transport Act 1968. Last year we had not only the Minibus Act, but also the Passenger Vehicle (Experimental Areas) Act; and further progress will be made in a Transport Bill which is shortly to come before your Lordships' House. All these measures are particularly important in the remoter rural areas, where the conventional bus service is uneconomical to run; and it is right that the necessary powers should be devolved to the Scottish Assembly and Executive so that they are in a position to tackle the special transport problems of areas of that sort.
It is the Minibus Act which provides that permits rather than road service licences may be issued in respect of certain minibuses—those carrying up to 17 passengers —which are not being used by the public at large or run for profit. The procedure for the permits is much simpler and speedier than it is for road service 1030 licences. The Act also provides for exemption from public service vehicle licences, and therefore requires special treatment in the Bill. Although road service licensing matters are to be devolved, public service licensing is to be reserved because it is concerned with safety standards, as I explained earlier, which we think ought to be the same throughout the whole of Great Britain. The entry for the Act, on page 67 of the Bill, accordingly devolves only those aspects of the Act dealing with road service vehicle licensing. In the other place an Amendment was tabled by the Government to ensure that this was what we got.
The Amendment that we are discussing seeks to reserve the Act outright. I am sure that this is not sensible. The road service licensing aspects of the Act are essentially concerned, as the noble Earl, Lord Onslow, has said, with local matters; for example, with whether a local community organisation can run a minibus service to and from a remote village or villages. Such matters, I should have thought, were obvious candidates for devolution; and I hope that, in the light of that, the noble Lord will see fit to withdraw his Amendment.
§ Lord MACKIE of BENSHIE
I should like to support the noble Baroness in her plea, and indeed the noble Earl, Lord Onslow, This is unusual, and made me wonder, but I have come to the conclusion that it is still right to do so. As probably everyone here knows, the situation in the country is quite extraordinary. The old days of the buses running full and profitably have gone for ever. A large number of people have motor cars, which has made the position of the few who do not, of the few who cannot drive and of the mother with young children whom she has to control extraordinarily difficult in the country; and the only way to solve this problem that one can see must be for a highly individual local enterprise such as can he licensed by the Assembly or, indeed, by the local authorities under delegation. I must say that I agree that it is very much a question for the Scottish Assembly, particularly as the problem in Scotland with our vast empty areas, is very much greater than it is in most parts of England.
§ Lord TEVIOT
I shall not disappoint anybody; I shall withdraw the Amendment. I do not entirely agree with all 1031 that has been said and I shall look at it carefully, although there is quite a lot in what was said by my noble friend, by Lord Mackie and by the noble Baroness. I agree that minibuses are local affairs but there should be what one might call a little bit of consistency in local affairs, and there should be some common denominator. However, for the purposes of this Committee, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.30 p.m.
§ On Question, Whether Schedule 10, as amended shall be a Schedule to the Bill?
§ Baroness ELLIOT of HARWOOD
May I raise a small matter? On page 57 in the right-hand column there is an exemption, quite correctly, forany provision relating to the Carnegie Trust".There are three Carnegie Trusts. The one that I think this applies to is the Carnegie United Kingdom Trust. I have been a member of it since 1939 so I have a fairly good idea of it. Of the other two, one is the Carnegie Universities Trust and one is called the Carnegie Dunfermline Trust. I suppose that this one must be the United Kingdom Trust. Perhaps the noble Lord will check on that. I am giving him accurate information and, if this is the Trust that he wants to refer to, perhaps the provision should read: "any provision relating to the Carnegie United Kingdom Trust" or, if it is not desired to specify which trust, "Carnegie Trusts". The Dunfermline Trust operates purely in Dunfermline. The University Trust is a trust of the Scottish universities. If you want to make it accurate, then either add an "s" or put in the Trust that you want which, I think, would be the United Kingdom one or the universities one.
§ Lord WIGG
Betting, gaming and lotteries fall within the scope of Schedule 10 and Group 21. I did not put down an Amendment seeking to delete it, not even for the purpose of obtaining information. I preferred to wait until "Schedule stand part"; but, having waited, I do not expect the Government to give any informed reply this evening to the questions I am about to put. I say that this is another aspect of this whole Bill where it 1032 is as plain as a pikestaff that it has not been thought through. The references in the Bill are to be found in Schedule 13, which deals with public bodies: the Gaming Board, the Horserace Totalisator Board and the Horserace Betting Levy Board, are the public bodies which are concerned. The sections of the Gaming Act and the Betting, Gaming and Lotteries Act to which reference is made are concerned with, on the one hand, appointments to the Gaming Board, the Horserace Totalisator Board and the Horserace Betting Levy Board. Nowhere else is there the slightest indication of how these powers are to be used in Scotland; nor has there been any indication anywhere from any inquiry I have made in relation to the Bill that any thinking has been done along these lines.
The responsibility for betting, gaming and lotteries in the United Kingdom as a whole rests with the Home Office which is, I would claim, if not the worst Department in Whitehall, very nearly the worst—and I am now referring not only to the Ministers but to the civil servants as well; and not only in relation to this subject. This is a Department which touches on every aspect of our national life and it does it through other agencies. When you question them, they disclaim all responsibility. I have rarely, of recent years, ever got an intelligent reply to any questions I have put. I do not, therefore, expect one tonight; although I am sure that, if a brief had been available, the Ministers on the Front Bench would have given me an intelligent reply and I might have paid tribute to the way they have handled this Bill. They have been extremely forthcoming in supplying us with all the information; but here I do not believe that the information is available.
Let me not rely only on the crystal ball; let me turn to the form book. Recently, the Secretary of State made a speech in which he said that when expert opinion was supplied to him he did not listen to it. That is very obvious! He said he sought his information by going down at a week-end and having a half-pint of bitter with his constituents and talking over the subject with them. Again, judging by what conies out of the Home Office, I think that his visits to his constituency are very rare. There seems to be no contact and no thinking.
1033 On the question of horse racing, there are few, if any, aspects in which the people of Scotland are not interested. They are far more interested in what is going to win the Scottish Grand National or, (may I say?) the Derby, than they are in this Bill. Also, there is an aspect of the betting industry which grew up in Scotland. While it is true that I have detained the House on a previous occasion with this story, I think it illuminates the situation and, therefore, I hope I do not bore your Lordships by telling it again.
It was the practice of respectable working-class and middle-class people who had not gone to Eton, who did not have accounts with Ladbrokes and who were therefore not members of the Jockey Club, but who wanted to bet within the law, to send their bets to Switzerland or Holland. It was called, "having a bet over the water"; and it may be that some thought this was a reference to a Jacobite restoration; but in fact it was "having a few bob each way" including a postal order to Douglas Stuart who operated, I think, in Holland or in Geneva. But, come the war, this practice was brought to a halt; because there was the possibility of espionage, of censorship and of restrictions on getting money out of the country. A new way had to be found or one of the main roots of the betting industry would have been severed.
What happened was this. The big bookmakers went off to Scotland and bribed the police—it was not a difficult operation, I gather; and I hope that the asking price was a little higher than it was immediately after the war. I remember driving a Scottish bookmaker back from Goodwood early in the week and I asked, "Have you had a bad week?" He replied, "No, but I have to be back on Friday to pay the police their wages." At that point, what happened became clearer. They bribed the police and built up their public relations department with the story that betting through the post was legal in Scotland but not in England. It was for that reason that one found that, until the 1960 legislation, the postal order businesses were all carried on in Glasgow. They were carried on in Glasgow in defiance of the law for, as I understand it, the Scots law was not different from the English. They carried on the postal order business in Scotland because it 1034 was an effort that had to be made at the start of the First World War to carry on the business that had been commonplace before.
I mentioned that to show that Scotland was interested in the betting industry. A considerable part of the postal business in relation to football is still carried on in Scotland and this is a hangover from the past. I am not suggesting that anything is happening illegally today. Those days have gone through the genius and, I may say, courage of Lord Butler, to whom I often pay tribute in this field and through the courageous action of the Conservative Government in 1960 in introducing legislation that has cleaned that up.
We now have the Gaming Board which certainly functions and has an interest in what happens in Scotland. I do not believe that the Gaming Board knows what is going to happen under this Bill. It certainly looks as though, under Clause 64, it will be possible for a Minister to make an order adding a member or members to the board. What difference that will make I do not know! It may be that the Scottish people after devolution and under the impulse of this wave of nationalism, which may be accompanied by a certain degree of puritanism, will want to put a stop or a limit to gaming in Scotland. But merely putting a member on a gaming board in England will add nothing to their powers in connection with doing whatever the Scottish people as a body want to do, or even to tackling their problems and trying to find new leases of life and release new forms of activity by means of which the Scottish people spend their spare time.
When we come to the Totalisator Board, that Board as such is appointed by the Secretary of State and he, too, will have powers under Section 64, it seems to me, provided the Minister makes an order, to add to this Board. But, again, what difference that will make to the Totalisator Board and its operations in Scotland I do not know. Yet, of course, this is vital to the wellbeing of Scottish racing. Racing is very important north of the Border. There is no better racecourse and no better-run racecourse in the United Kingdom than that at Ayr. The Western Meeting is certainly a very important meeting. I am very glad to 1035 say that I once won a race there at one of its jumping meetings—I wish it had been more, but I did win a race there. My gratitude and my tribute to it, however, do not stem from that fact but from the work of Mr. McHarg and his colleagues and because I noticed, when chairman of the Levy Board, the work that was done to get Scottish racing on the right lines. All the Scottish racecourses are important in Scotland, and the question of whether they are to be retained and how they are to be run is a matter for the Scottish people. This Bill does not help because all it would do, it seems to me, after an order is laid, is to add a member to the Levy Board.
Again, speaking on the Question, Whether the clause shall stand part enables me to pay a tribute to the work of a Scottish member of the Horserace Betting Levy Board when I had the honour to be its chairman. I refer to the work of the late Mr. Grant Munro. The noble Lord, Lord Kilmany, and I sat with him, and there was no more public-spirited and informed man, from the point of view of racing as a whole. There was nobody quicker to defend the interests of Scotland, but not at the expense of the greater good. Certainly Scotland was very lucky indeed to find a man of the quality of Mr. Grant Munro. But if you add one, two, three or four more members, it will not really help if the problems have not been thought out and it has not been decided how the resources should be apportioned.
I shall not detain your Lordships any further, therefore, but shall only say that the references to betting, gaming and lotteries here are inevitable, I suppose, because of the form the drafting takes. However, I do think that at some stage the Government should inform your Lordships of what is intended. I regret that it did not happen in another place. But I, for one, would feel, despite the jibe of the Home Secretary that he does not listen to anyone who knows anything about the subject, that I should not be performing my public duty if I did not take a few minutes tonight to say to the Government: "Please, I do not expect a detailed answer, but I do expect a Government spokesman to indicate that the Government are going to take an opportunity, before the conclusion of the 1036 Committee stage, to indicate the Government's thinking in relation to the Gaming Board, the work of the Totalisator Board and the Horserace Betting Levy Board" If they do not, I shall seek to put down Amendments on the Report stage, if necessary, to ask your Lordships to vote against the Government on this subject.
§ Lord KILMANY
It is always a pleasure to me, having served for several years under the chairmanship of the noble Lord, Lord Wigg, as a member of the Horserace Betting Levy Board, to hear him talk about racing because it has been my experience to hear him talk a great deal of sense about that subject. When he saw fit to mention Ayr racecourse as an example of a well-run course, both for flat racing and steeplechasing, I could not have agreed with him more.
We now have the opportunity of seeing the noble Baroness who represents racing interests at the Home Office sitting on the Government Front Bench. Like the former speaker, I do not want to be unfair and expect a complete answer to the questions that arise from gambling, betting and lotteries being included in Group 21 among the devolved subjects, but I think it would be fair to ask the noble Baroness whether she consulted the Horserace Betting Levy Board as to what would be the possible reactions to these subjects being included. Again, I should like to ask the noble Baroness whether she consulted the Tote Board and also the Gaming Board, because it would seem to me that all these three institutions would certainly have an opinion as to whether it would facilitate their business or whether it might make an absolute mockery of it.
Then we go further. There is a Royal Commission sitting now, I think, on the whole subject of gambling. Is evidence being put before the Royal Commission to justify this proposal? Surely we do not want the Royal Commission making its recommendations on the understanding that there is to be no Scottish Assembly or, equally, on the understanding that there is going to be a Scottish Assembly. Surely the twin possibilities should be put before that Royal Commission, because gambling is a very fundamental subject in the British way of life. I should like to ask the noble Baroness, when she responds to the request that has been made of her, to produce some 1037 facts and some policy that we, in considering further stages of this Bill, can take into account in deciding whether or not we should oppose it.
§ 5.47 p.m.
§ Lord BURTON
I apologise for not having put down an Amendment on this point, but unfortunately it came to my attention only yesterday and I hastened to give a note on the point to the noble and learned Lord, Lord McCluskey, so I hope he is au fait with the matter. It concerns Group 21, which devolves the handling of the sale of venison to the Assembly. I hope the Government will look at this again. There have been difficulties over the export of venison. Some months ago the Germans imposed import regulations which were impracticable to implement. I understand they did that because they had received some very unfit kangaroo meat from Australia and, as a result, they imposed regulations on other things as well.
Since then the Swedes have been considering regulations which are contrary to the German regulations in certain respects. It has therefore become necessary for this country to try to draw up regulations of its own which could be accepted by the Germans, the Swedes and any other country to which we might wish to export. The handling of this matter has for some time been in the hands of the Ministry of Agriculture—I would emphasise "Ministry", not "the Department of Agriculture". It has been a United Kingdom Committee, even though it has been sitting in Edinburgh.
When deer are mentioned, many people think immediately of Scotland, but I believe there are more deer in England than in Scotland, and certainly more roe deer are shot in England than red deer in Scotland. This is therefore a United Kingdom matter. If one looks at Part II of the Schedule which specifically excludes certain items from being devolved, one finds in paragraph 1 the word "food". If food is to be excluded, I am not quite sure how the sale of venison can be included, because I should have thought that venison was food. There certainly seems to be a contradiction of terms here.
1038 Again, if one looks at paragraph 12 of Part II one sees that it specifically includes control of the diseases of animals. This ties in fairly strictly with the inspection of carcases, where one can see whether there is any disease in them. Carcases are inspected by veterinary officers. It seems highly appropriate that this sale of venison should not be one of the devolved subjects.
Last night the noble and learned Lord, in refusing an Amendment moved by my noble friend Lord Mottistone, argued the difficulty of dividing industrial relations. If it is impossible to divide industrial relations I really cannot see how on this matter you could put venison on one side of the Border or the other. It seems even more impracticable. The argument we had over the doctors, the dentists, aerodromes and forestry, all apply even more forcefully in this comparatively small matter. This is not a political but a practical point, which I hope will be looked at again by the Government before Report, and I hope that at that stage we can amend this part of the Bill.
While I am on my feet may I once more make a plea to the Government. They must bear in mind that this Schedule was scarcely discussed in another place, and, after all, this Schedule is substantially the main guts of the Bill. Will the Government please try to make alterations to the Schedule which will clarify these matters, which the Minister has admitted are complicated and which are obviously obscure? Perhaps I could ask for one explanation in Part III. Some enactments are shown as included, some as not included; powers under other enactments which are clearly to be devolved are not shown; other enactments are reserved by silence. What criteria are there for including or excluding an Act in this Schedule?
Lord DE CLIFFORD
Like the noble Lord, Lord Wigg, I would not ask the Government to give me an answer tonight to what I am going to say. I am talking about Group 21:Licensing of dogs and keepers of dogs".We appear here to be introducing a totally new principle into one part of the United Kingdom. As your Lordships are aware, at the moment there is not a dog licensed in the whole of the United Kingdom; 1039 it is only the keepers of dogs who are licensed. If the Assembly takes the view that it can licence dogs we could have the situation where somebody going from England to Scotland with a gun dog could take a perfectly honest dog out of England which will instantly become dishonest as it crosses the Border.
May I also ask the Government whether this reference to licensing of dogs and keepers of dogs is an indication that we might have an alteration in the English law which would allow us to do this very thing? Apart from that—as I say I do not want an answer tonight—may I also ask whether the licensing of keepers of dogs affects the Guard Dogs Act, which was initially started because of what happened in Scotland, the Breeding of Dogs Act and perhaps even the Animals Act?
§ The Earl of ONSLOW
I, too, would like to ask about the licensing of dogs. As I understand it, the fee is 35p and has been static since about 1870, or whenever the Act for the licensing of dogs was passed. Schedule 2, paragraph 4, reads:A provision is not within the legislative competence of the Assembly if it would impose, alter or abolish any tax".I would assume that the dog licence is a tax. Therefore how would one devolve the licensing of dogs? That is the first point. The second point is that I think there was a draft EEC Directive on venison. I wonder—perhaps the noble Lord can tell us; I did try to give him advance warning—(a) whether it has come into force, and (b) whether with the sale of venison and Scotland licensing we are not going to clash with EEC treaties and laws?
§ 5.54 p.m.
§ Lord McCLUSKEY
May I seek to answer the points, so far as I can, in the order in which they were put to me. First, the noble Baroness, Lady Elliot, asked about the Carnegie Trust. I am advised that the position here is that the Carnegie Trust is the one referred to in the Education (Scotland) Act 1962. The appropriate reference will be found in Section 118(4) and (5), and the Carnegie Trust referred to is the Carnegie Trust for the Universities of Scotland.
§ Baroness ELLIOT of HARWOOD
I am glad that the noble and learned Lord said that because it is a much smaller trust than the Carnegie United Kingdom Trust, which operates in Scotland too, but also operates throughout the United Kingdom. It think it would be as well to put in the University Trust if that is the one referred to.
§ Lord McCLUSKEY
I think it will be clear from the entry, which contains a reference to the Act of 1962, that that is the trust; but certainly, in the light of what the noble Baroness has said, I will look to see whether it is necessary to clarify it.
With regard to the various points made by the noble Lord, Lord Wigg, I regret that he should say what he has said about the Home Secretary, who is not here to defend himself, and made observations of this kind of which he has given us no notice whatsoever. That is all I can say in relation to that. I do say that Clause 64 and Schedule 13, and particularly Clause 64, contain very much wider powers than simply the appointment of additional members to the Betting and Gaming Board. Under Clause 64 and Schedule 13 action which may be taken under the clause will not lead to the fragmentation of any of the bodies referred to in Part If of Schedule 13. Such bodies will, after action has been taken under Clause 64, report separately to the Executive for their activities in Scotland. As I have explained on more than one occasion previously, after an order has been made under Clause 64 it will be possible for the Scottish Assembly to legislate about the bodies concerned. In other respects also the Assembly will be able to legislate on betting and gaining in Scotland—a matter primarily of interest to the Scottish people. I cannot recall whether the noble Lord, Lord Wigg, was here at the time, but we have on two previous occasions debated betting and gaming and various aspects of them.
The noble Lord, Lord Kilmany, asked whether certain bodies had been consulted. They certainly were not consulted by my noble friend Lady Stedman, who is not with the Home Office but with the Department of the Environment; but all the bodies in this field were consulted, and indeed most of them commented 1041 upon the scheme of devolution. Your Lordships will recall that at the end of the year, when the 1975 White Paper, to which we have frequently made reference, was published, invitations were sent out to people to comment, and all these bodies were consulted, including the bodies mentioned by the noble Lord.
The noble Lord, Lord Burton, talked about a great many matters in the Schedule that were not discussed in another place. I have already made plain that in another place the Government provided time under the Business Motion which the House accepted. In fact the other place spent more time on this Schedule than we have spent on it. If matters were not discussed, that was not the fault of the Government who provided, or sought to provide, the time. It was the fault of the opponents of the Bill who insisted upon making Second Reading speeches on every possible occasion. There was time provided for discussing these matters, as we have demonstrated by taking less time to get through this Schedule than was allocated for the Schedule in the other place.
The noble Lord, Lord Burton, gave me notice very precisely—and I am deeply indebted to him for it—in relation to the point about the sale of venison, and I must confess that I shared his difficulty. But may I just explain the matter in this way? As the noble Lord pointed out, control of food is reserved by the entry in paragraph 1 of Part II of Schedule 10, and this exclusion derogates from the subject deer and the sale of venison, which appear in Group 21. The effect of this is that the food standards aspect of the sale of venison is not within the legislative competence of the Scottish Assembly, or the powers of the Scottish Executive. That is what the noble Lord took from his study of the Bill.
The United Kingdom Government will therefore remain responsible for any regulations controlling the sale of venison. The Scottish Administration will be responsible for matters such as those contained in the Sale of Venison (Scotland) Act 1968, which provides for the registration of dealers in venison, for the keeping of records by such dealers and for other connected matters. The distinction is, therefore, between the sale of venison as an activity in the market place which is 1042 to be devolved, and the food standards which are to be applied to that venison which will be non-devolved. The Bill, as it is drafted, achieves this distinction.
If any EEC regulations or Directives were to apply to devolved aspects of venison, or indeed, for that matter, to any other devolved matters, then the Scottish Executive could be obliged, under various provisions in different clauses of the Bill, to implement the Community obligations, in the same way as the United Kingdom Government are obliged to observe them.
Certain questions were asked about the licensing of dogs. I am happy that the noble Lord, Lord de Clifford, should say that he does not want an answer tonight, because that is not a point which was raised by means of an Amendment. So I am indebted to him for allowing me that laxity. What I shall do, if it will be to his convenience, is write to him and he can exercise his judgment as to whether, on some future occasion, he wishes to put the matter on the record in the Official Report in some way. I shall he happy to assist him in that.
The noble Earl, Lord Onslow, asked whether a dog licence is a tax. One does not necessarily have to pay a fee or any money in order to obtain a licence. Accordingly, the mere devolving, of the licensing power does not mean that the Assembly will necessarily raise money by the issuing of licences. A licence is not itself a charge, although a fee may be charged for the issuing of the licence, and I suppose that it really becomes a question about the character of a charge that is sought to be imposed. If a licence is issued, and some charge is made which is properly attributable to the cost of issuing the licence—administrative costs and matters of that kind—then that can hardly be regarded as taxation. I think that one would look at the respection of the legislation that related to the licensing.
§ Lord HARMAR-NICHOLLS
May I ask a question? I am interested in the noble and learned Lord's point that a licence is not necessarily a tax, because you can have a licence without having to pay for it. I wonder whether he can bring to mind any licence issued by any United Kingdom Government that does not carry 1043 a fee with it, because if it automatically carries a fee—a rose by any other name can smell as sweet—then it is a tax.
§ Lord McCLUSKEY
It is quite common, for example—I am not talking about the United Kingdom, because an example does not spring to mind—for a country to demand a visa before you can enter it. You do not necessarily have to pay for it. That is a similar case. I cannot think of another example, but the point is quite plain. The power to licence enables the Assembly to issue and refuse licences, without making any charge.
§ Lord HARMAR-NICHOLLS
I pursue this point, because I foresee that this is the kind of way in which the Assembly can get around not having powers to levy a tax. I do not think that a visa can be looked upon as a licence. A visa does not mean that you are in a kind of business. I merely make the point that this is a possible loophole, which ought to be borne in mind when we are thinking that we have not devolved the right to levy taxes.
§ Lord McCLUSKEY
I shall be delighted to have the noble Lord's assistance, when I have finished with the point. If a Scottish Assembly sought to introduce punitive licence fees for dogs in Scotland, we should end up with very few dogs there.
§ Lord LLOYD of KILGERRAN
I am trying to help the noble and learned Lord in regard to free licences. If I may introduce the esoteric matter of patents, the Government give licences as of right and they are free licences. I am sure that that is of no help to the noble and learned Lord.
§ Lord McCLUSKEY
I should have remembered that from many long hours spent on the Patents Bill on a recent occasion. There is one matter that I should like to add to this ragbag of matters that we have been looking at, on the Question, Whether this shall be the 1044 tenth Schedule to the Bill? I have on a number of occasions spoken about the legislative competence of the Assembly and, in the course of some exchanges with the noble Earls, Lord Ferrers and Lord Selkirk, I made certain observations relating to private legislation, which the noble Earl, Lord Selkirk, may recall. They took place on Monday, 24th April, and they appear in column 1577 of the Official Report and in subsequent columns. What I said on that occasion may have obscured certain matters in relation to private legislation. I was talking about the present system of private legislation, and it is right that I should make it clear.
I explained, in reply to the Amendment that we were then discussing, that Clause 28 related to the adaptation of the existing Westminster procedure for private legislation in Scotland as a result of devolution, so that private legislation relating wholly or in part to devolved matters might continue to be passed at Westminster, which must continue to be the case, given the overriding sovereignty of Parliament. I explained, however, that it is possible that in the future the Assembly will produce a scheme to facilitate the passing of private legislation, relating to devolved matters, by the Assembly.
Lest it be taken that the Assembly could not legislate to provide a system of private legislation, and that in no sense at all, therefore, is private legislation devolved, let me explain that the devolution of any subject area, such as Group 5, local government and local finance, to the Assembly necessarily enables the Assembly to legislate on such a matter, and such legislation may be what in Westminster terms would be described as public, private or hybrid. Private legislation is not, therefore, a "subject", in the sense in which I sought to explain that word earlier, which is capable of being a devolved matter. It is essentially a question of legislative procedure.
While, therefore, the legislative procedure and conventions relating to the handling of Scottish private legislation at Westminster will continue in respect of legislation introduced there, it will be open to the Assembly to formulate its own conventions and procedure with 1045 regard to the way in which it categorises legislation; whether it adopts or adapts the Westminster practice regarding the distinction between the various categories of legislation, and the procedure by which different categories of legislation are handled by the Assembly. These are, in effect, inherent powers of the Assembly as a law-making body. I hope that that amplification clarifies what I said on the previous occasion. We have been through Schedule 10 in very great detail, and I trust that your Lordships will agree to the Question, That this Schedule shall be the tenth Schedule to the Bill.
The Earl of SELKIRK
May I thank the noble and learned Lord for what he has said on that point? I am most grateful. He said that all bodies would be consulted, but "consultation" has many different meanings. I feel that I must, in fairness, repeat what the Faculty of Advocates have said on this matter. The Faculty normally comments on proposed legislation, in response to an invitation from the Department responsible:The Faculty has not been invited to submit comments on the devolution Bill, but it seemed to the committee to be desirable that the Faculty should make its views on the Bill known".I have no doubt that the Government have their views, but that is the view which the Faculty took, and one sometimes wonders how broad and thorough the consultation has been.
§ 6.9 p.m.
§ Lord McCLUSKEY
I am sorry that that should have been said. I personally went to the Dean of the Faculty, before the November White Paper was published in 1975, and I said to him that this would be a very considerable document and it was very probable that the Government would invite comment at an early date. I know the way in which the Faculty works. It has a very small but active membership of people who are available to give time to these matters. I suggested to the then Dean of the Faculty that he should set up a committee straight away to look into these matters. I do not know how consistent this was with my ministerial responsibilities, but I said that there were a number of subject areas which a committee might begin to think about, even before the White Paper was published.
1046 The Dean of the Faculty then set up a very considerable committee. That was the committee which produced the reports which subsequently went to the Government. Furthermore, in the light of the representations made by the Faculty of Advocates and the Law Society of Scotland, Ministers in Scotland—including myself, the Lord Advocate, the Minister of State at the Privy Council Office and the Parliamentary Under-Secretary, Mr. Harry Ewing—met the Faculty and the Law Society representatives and discussed these matters with them. There were also informal meetings in which I took part. Of course, consultation takes many different forms, but in respect of the Faculty and, indeed, the Law Society, we have consulted as well as might reasonably be expected.
§ Lord WIGG
I repudiate entirely the point made by the Government spokesman. If what I said constitutes an attack upon the Minister, all I can say is that I was not trying very hard. When I do make an attack it will be more specific than that. I referred to a public speech which was made by the Home Secretary, in which he said that he did not listen to expert opinion; he went down to his constituency at the weekend, had a pint with his constituents and talked it over. That is a perfectly valid point to make. If the Minister tells the Committee that there have been consultations with statutory boards, all I can say is that these would be of a confidential character. I am wondering in what depth these consultations were held, and why it is that those whose livelihoods are involved in the betting, gaming and lotteries industry do not know anything about it. I certainly made detailed inquiries of those whose interests are affected, and so far as I could ascertain I found that there was absolutely no reaction at all to the impact that this Bill will have on betting, gaming and lotteries in Scotland. This is a two-way business. Ultimately it is a matter which affects the Revenue. It is also a fact that these industries, at least on the racing side, receive considerable grants from the Horserace Betting Levy Board.
The reference in the Bill itself is to the sections which appoint the boards. All that one is able to ascertain for certain is that it will be possible, by means of a Statutory Instrument, to 1047 appoint people to the boards. I thought that it was perfectly legitimate to point to the magnificent work of the late Mr. Grant Munro who was put on to the Horserace Betting Levy Board to represent Scottish interests and the Scottish point of view. He carried out that job magnificently. However, I do not see that adding another member, adding powers, will help matters forward. I wanted to give the Government—and I chose this method of doing it—an opportunity not to educate me about this (I do not matter because I am out of it) but to consider the interests in both Scotland and England which will be vitally affected by decisions which are yet to be taken and which will also be vitally affected by continuing and growing areas of uncertainty.
When it reaches the Statute Book I should have thought that the Government would like this Bill to work, and that depends upon building up an informed public opinion. That is what I have tried to do. I am sorry that I have wasted my time. On a subsequent occasion I shall endeavour to put more of a cutting edge on to both what I do and what I say. I repudiate entirely the mood in which the Government spokesman opened his remarks.
§ The Earl of PERTH
Before we decide whether Schedule 10 shall be agreed to, may I ask the noble and learned Lord about a statement that he made earlier this afternoon. He said how important it is that we should get the Bill right, because any statements that he might make will have no standing in relation to judgments made by courts of law. That I well understand. However, it is a different matter when the noble and learned Lord makes statements about how Government Departments will behave. I have in mind in particular that last night we discussed the museums, galleries and libraries. The noble and learned Lord then made a point which we were very glad to hear: that special grants or money from the National Land Fund will be made available in the ordinary way to those bodies. I am sure that kind of statement has standing and that we can count upon it. However, I should like the noble and learned Lord to confirm that this is so.
§ Lord McCLUSKEY
I am happy to acknowledge the distinction drawn between the two kinds of statement. I am also happy to confirm precisely what the noble Earl understands. When we speak about the Government's intention in relation to such matters as the noble Earl has mentioned, such statements will, I trust, be relied upon; and they can be relied upon.
§ Lord BURTON
May I thank the noble and learned Lord for his answer to my question. He has admitted that there are grounds for some confusion. Instead of putting in the words "Sale of venison", may I ask him whether or not it would be better to insert the words: "Registration of venison dealers"?
§ Lord McCLUSKEY
I should have thought that those words might be too restrictive. However, we are looking at a number of matters, so—again without commitment—I shall bring what the noble Lord has said to the attention of the draftsman.
§ Lord HARMAR-NICHOLLS
May I make just one point on the statement from the Box and upon what will be adjudged to be the facts if the matter ever goes in front of judges? I have tried to say throughout the Committee stage that what we ought to keep in mind is this. It is perfectly true that in the formulation of legislation the courts cannot be bound by explanations given at the Box. However, the referendum decision will be affected by what is said at the Box. If what is said at the Box cannot be confirmed in the courts—if it comes to that—because of the wording, the point which we have tried to make in so many of our Amendments is emphasised: that it is vital that we should try to spell out in the Bill itself words which are likely to mean what we are saying now and which are likely to be supported by the courts. The noble and learned Lord, who is a genuinely persuasive person, can give an impression which may affect the referendum decision, and it may not be fair to the people who take part in it. Therefore we ought, if we can, to try to get the two moving together.
§ Schedule 10, as amended, agreed to.1049
§ Schedule 11 [Matters within the powers of Scottish Executive but not within legislative competence of Assembly]:
§ 6.18 p.m.
Lord DRUM ALBYN moved Amendment No. 269:
Page 69, leave out lines 4 and 5.
§ The noble Lord said: When I first put down this series of Amendments I did so with the object of obtaining information about them. I made it clear in my Second Reading speech that one, if not the most crucial, point in the Bill, so far as I was concerned, was the arrangements to be made over industrial development. The more I looked at these Amendments the more I became disposed to put them down not just to obtain information but because I began to have more and more misgivings about the system which is proposed. If I were to take these nine Amendments separately, it would take much longer, although that is not to say that I shall be brief. However, shall be as brief as possible. I cannot, in any case, be brief because of the excruciatingly obscurantist way in which the Bill is drafted.
§ To the ordinary person reading it, this paragraph means nothing whatever, but I believe that it means a great deal to the economic unity of the United Kingdom. This inscrutable paragraph gives legislative authority for the transfer of powers at present held by the Secretary of State in relation to the Scottish Development Agency to a Scottish Secretary.
§ It may be helpful if I go a little back into the past so that one can see how this matter has developed. The last Secretary of State set up the Highlands and Islands Development Board with the object of taking the special measures needed by this particular area of the United Kingdom which is unique in its extent, its geographical features and its problems, not the least of which is that it lost so much of its population in the last century and that so many of those who remain are unemployed. That he did in 1965 and there was little opposition. I remember him saying in the early 1970s that he would set up a similar, though not identical, body for the rest of Scotland. That he did in 1975 in the form of the Scottish Development Agency Act.
That Act and the accompanying administrative changes brought together
under the Secretary of State the powers under the Industry Acts to promote industrial development, together with the powers of the Scottish Industrial Estates Corporation, to which I shall refer in a moment. The administrative changes included the transfer of power from the Department of Industry to the Secretary of State. These were the powers under Section 7 of the Industry Act of 1972 to give selective financial assistance to particular undertakings and to participate in the exercise of the distribution of industry powers so far as Scotland was concerned. How far-reaching these changes were is indicated in the opening words of the Annual Report of the Scottish Development Agency for its first complete year; that is, the year ended 31st March 1977. This is how it opens:
The Agency's powers and purposes involve it actually or potentially in the whole range of the Scottish economy and the Scottish environment",
The report of the Comptroller and Auditor General on the Scottish Development Agency's report for the year ended 31st March 1977 says—and I quote—
The Scottish Economic Planning Department base their continuing oversight of the Agency's activities on an annual plan prepared by the Agency, setting out its industrial strategy, covering also its industrial estates and environmental development functions".
Those are the two sides of the functions—
The Agency also prepares a five-year forecast for its investment and expenditure programme. The Department consider these planning documents at an annual review and in consultation with the Treasury set a ceiling on the amount of Government funds to be provided in the following financial year by way of grant in aid, public dividend capital or national loan fund advances. The Department also monitors out-turn under all heads on a monthly basis. During the year the Agency consults with the Department on major opportunities for investment as they arrive".
I think that encapsulates better than anything else that I have seen written anywhere exactly what are the functions and I am sorry that I had not come across them earlier in the proceedings on this Bill. So the monitoring and planning functions in the economic sector rest with the Scottish Economic Planning Department. That Department publishes an excellent quarterly report. In its autumn report last year, it gave an account of the work in 1975–77 and this is what it said:
The Secretary of State has become, in the truest sense, an economic Minister with a much
strengthened ability to influence Scottish industrial activity and with a full and important part to play in the direction of the Scottish and United Kingdom economies".
Perhaps at this point I may comment that it is no wonder the Secretary of State is anxious to devolve some of his many other functions. The report goes on to say:
Scotland remains economically integrated with the rest of the United Kingdom and the Scottish Economic Planning Department continues to work closely with other Scottish Office Departments and United Kingdom Departments and the various regional agencies to promote industrial growth and investment in Scotland".
These are the important words:
Scotland remains economically integrated with the rest of the United Kingdom".
For how long under the régime proposed in paragraph 7 of this Schedule?
§ The functions of the Secretary of State are to be divided in an almost biblical writing on the wall. The Scottish Development Agency has two main roles: first, the role it inherited from Scottish Industrial Estates, a greatly expanded environmental role, land acquisition, construction of advanced factories, running their industrial estates, modernising factories, land renewal, urban renewal, development in conjunction with new towns, and so on. The other main function is the furthering of economic development and the safeguarding of employment in industry. The first role is devolved to the Assembly under Schedule 10, Part III (that is, at pages 66 and 67 of the Bill), and the Scottish Executive will be answerable to the Assembly. I see no objection to that. The second role is transferred to a Scottish Secretary under paragraph 7—the one we are discussing—and is not to be within the legislative competence of the Assembly.
§ Is the Scottish Economic Planning Department to be under the Secretary of State or under a Scottish Secretary? It ought not to be both. Who is to be responsible for setting out the industrial strategy? Who is to be responsible for monitoring the Scottish Development Agency's performance month by month? Apparently, to judge by Clause 22, both the Secretary of State and the Scottish Secretary: the Secretary of State to Parliament and the Scottish Secretary to the Assembly. It may conceivably be 1052 possible to maintain the economic integration of the United Kingdom in this way, though in my submission it is not worth the risk. But it is unlikely to maintain its political integration under these provisions. I invite your Lordships to look at the powers transferred under this paragraph, and I invite the noble Lord who is to reply to justify it. I am glad to see him here; I am sorry that he is not in such good voice or good health as we would wish, but I hope he will be able to deal with some of the points.
§ Amendment No. 269 is to leave out lines 4 and 5, but perhaps I may first be allowed to mention sub-paragraph (i) taken together with (x). These transfer to a Scottish Secretary the power to appoint the members of the Agency and to fix their remuneration and pension with the approval of the Minister for the Civil Service. At any rate that is clear, and accordingly I have not tabled an Amendment to sub-paragraph (i), though I have tabled an Amendment to sub-paragraph (x) to enable the Minister to explain how a Scottish Secretary will consult the Minister for the Civil Service. Also, I wish to ask the noble Lord this: It was stated in Cmnd. 6348 that the members of the Agency would be appointed as to half by the Secretary of State and as to half by the Scottish Executive. Perhaps he can confirm that that is still the intention, and also tell us where it appears in the Bill.
Turning to Amendment No. 269, subparagraph (ii) is far from clear; it could hardly be more obscure. Let me go into it, because not all noble Lords have the papers in front of them; I may be able to make it clear. Do not lose heart at the start, it comes out all right in the end. It relates to Section 2(6) of the Scottish Development Act:
the powers under section 2(6) so far as exercisable in relation to the functions specified in section 2(2)(c)".
That is the power of the Secretary of State to approve the exercise of the Agency's functions under (4)(a) to (e) in relation to 2(2)(c), which in turn relates to the Agency promoting or assisting in the establishment, reorganisation, modernisation or development of industry or any undertaking in an industry, otherwise than providing or assisting in the provision of finance to persons carrying on or intending to carry on an industrial undertaking
or carrying on or establishing an industrial undertaking whether by the Agency themselves or jointly with any other persons. In other words, this is relating to powers other than the financing or the carrying on of an industrial undertaking. The effect of this is to transfer to a Scottish Secretary this power of approval. I ask the noble Lord to explain what is meant by this. What exactly are the functions envisaged in Section 2(2)(c)? It is all very well to read them out from the Bill, but what are they? What is it that the Scottish Minister will have power to approve under this provision?
§ Amendment No. 270—that relates to sub-paragraph (iii)—transfers to a Scottish Secretary the power to consent or give general authority to make grants to persons carrying on or intending to carry on undertakings whether independently or jointly with the Scottish Development Agency. Amendment No. 271—that is sub-paragraph (iv) —transfers to the Scottish Secretary the powers to give the Scottish Development Agency directions in relation to financing the carrying on of undertakings.
§ Amendment No. 272—sub-paragraph (v) —transfers the power to give to the Scottish Development Agency directions in relation to the acquiring, holding and disposing of securities forming bodies corporate or partnerships, making loans and guaranteeing obligations. Amendment No. 273—sub-paragraph (vi)—transfers the power to give directions of a general or specific character to the Scottish Development Agency in relation to the powers under Section 3 of the Act, which enables the Scottish Development Agency to make charges for any of its services and to accept gifts or grants—resumably among others from the EEC—and carry out or commission inquiries, investigations or research for the purpose of its functions.
§ The Earl of PERTH
I do not want to upset the flow, but I think the noble Lord has got some of his signals mixed. I think we are now talking about Amendment No. 274.
§ Lord DRUMALBYN
The noble Earl is right; I am sorry that I have got it wrong. Anyway, Amendment No. 274, which is sub-paragraph (vii), transfers to the Scottish Secretary the power to determine various financial duties of the 1054 Scottish Development Agency in relation to its different functions and activities.
I did not propose an Amendment to sub-paragraph (ix), but it would be a pity not to refer to it, because it transfers the power to consent to any new town corporation acting as agent for the Scottish Development Agency outwith their designated area for any of the functions referred to in Section 2(2)(c), which is the subparagraph about which I have been asking questions. The sub-paragraph (xi) transfers powers in relation to the financing of the SDA by way of public dividend capital, and to borrowing by the SDA, lending to the SDA, the SDA's capital debt, and the form in which the SDA are to submit their annual statement of accounts. In almost every case Treasury consent is required, but that does not mean that economic integration is maintained thereby.
Incidentally, as Section 18, as amended by the Bill, now stands the Scottish Secretary is to transmit the Statement of Accounts to the Comptroller and Auditor-General and not to the Scottish Comptroller and Auditor-General. The only significant function which is not transferred is the power to give selective financial assistance under Section 7 of the Industry Act 1972. That is the power taken over by the Secretary of State from his colleague in the Department of Industry in 1975.
As I see it, Members of Parliament for Scottish and other constituencies will not be precluded from asking Questions about, or debating in Parliament, any of these matters because they are not devolved matters. Equally, Assembly Members will he able to ask Questions because the Scottish Secretary to whom the powers are transferred by paragraph 7 of this Schedule is answerable to the Assembly. This is a recipe for confusion, not for maintaining the economic integrity of the United Kingdom.
In addition, the annual report of the Scottish Development Agency under a provision in Schedule 16 will be laid before Parliament by the Secretary of State and before the Assembly by a Scottish Secretary complete with notes appended by the Secretary of State and the Scottish Secretary about any directions given by one or other regarding the terms of particular loans made by one or the other to 1055 the Scottish Development Agency. If it were a question of the Scottish Development Agency being supervised by one Minister, whether the Secretary of State or a Scottish Secretary, in regard to both promotion of industry and their industrial estates and environment functions, I might be less concerned about the transfer of these powers; that is to say, if they were all transferred. But it is not. The Secretary of State is going to be involved in the affairs of the Scottish Development Agency as the Bill stands, so the Scottish Development Agency is going to serve two masters in any case. Further, the economic planning department will have to be divided. If this is not so, the whole arrangement seems, to say the least, highly artificial and not likely to be effective.
There is a wonderful subsection in the Scottish Development Agency Act, Section 5, practically the only section under which powers are not transferred under the Bill. It says in subsection (14)In exercising their powers under this section the Agency shall not be regarded as the servant or agent of the Secretary of State".Yet under the section the Agency can only act on directions of the Secretary of State and the Secretary of State pays the bill. I am wondering whether that is not very similar to the role the Scottish Minister is going to play. Here we have powers being transferred from the Secretary of State to a Scottish Secretary, but the Secretary of State may at any time direct the Scottish Secretary not to do something he proposes to do or to do something he does not intend to do. In addition, the Scottish Secretary will need Treasury approval for the exercise of any of the powers this paragraph transfers. Can the Minister give any good reason why these powers in paragraph 7 should be transferred, especially as they are not to be devolved to the Assembly? The Assembly will debate these matters whether or not the powers are transferred. But this paragraph will do no good for either economic or political integration.
Finally—and I, like other noble Lords, breathe a sigh of relief—what about the financing of these activities? The Comptroller and Auditor-General says:During the year the agency consults with the Department on major opportunities for investments as they arise".1056 Am I right in thinking that this acknowledges that the ceiling of Government funds may have to be exceeded? Such opportunities are fleeting and cannot wait. The tempo at which they will arise will necessarily vary with economic circumstances. Where the ceiling is exceeded, will the excess have to come out of the block grant, involving consequential economies in other activities of the Assembly? It would be more sensible, surely, to have a special allocation of funds for the economic development activities of the Scottish Development Agency, quite apart from the block grant.
Who will consult the Treasury? Most of these powers transferred involve consultation with the Treasury. Will the Scottish Secretary consult the Treasury direct, or are all contacts with the Treasury to be made through the Secretary of State? If so, the whole exercise of transferring these powers seems a sham. The real control will be exercised by the Secretary of State and not by the Scottish Executive, especially as the Secretary of State may at any time intervene. If the Scottish Secretary deals direct with the Treasury on these issues, how can anyone say that the Secretary of State will remain, in the truest sense, an economics Minister? Does anyone think that his status in the Cabinet as Scotland's Secretary of State will be enhanced by such transfers of powers? Does anyone imagine that this will contribute to the economic integration of the United Kingdom? I am far from convinced that all this is in the interests of either Scotland or the United Kingdom, or that it is either necessary or desirable. I beg to move.
§ The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger)
Does the noble Lord wish to move his Amendments en bloc or put them individually?
§ Lord DRUMALBYN
I thought that it was customary to discuss one in association with others, but I am open to what the Committee may desire. As I said, the purpose of my putting down my Amendments was so that they could be considered separately. That does not mean that they should be voted on separately.
§ The DEPUTY CHAIRMAN of COMMITTEES
The noble Lord is entitled, with the leave of the Committee, to put them en bloc as they all relate to the same Schedule, but he would like them put individually?
§ Lord DRUMALBYN
I said that I should like them considered individually, but I am prepared that they should be put together. I beg to move the first of my group of Amendments.
§ Lord HARMAR-NICHOLLS
My noble friend has done a great service to the Committee tonight. He has done the homework which all of us, if we did our duty to the full, would have done ourselves. He has done it effectively. When we read it in Hansard I am certain that it will save us a great deal of time and give us an important guide as to how we should deal with this matter on Report.
There is no doubt that paragraph 7, page 69, as he has been able to explain it, is significant. I shall not attempt to continue with the details, as my noble friend did. However, when I saw his Amendment in the Marshalled List I thought it was right to find out what was being devolved. I made a start for about an hour. I gave it up in the end because it was time-consuming and very detailed indeed. I should like to thank my noble friend for the way in which he obviously kept to his task and for the way he has been able to sort out the matter for us.
The reason why I support my noble friend in underlining the importance of this matter is this. It fits in again with a theme that we should always keep in mind. This will go some way to making a eunuch of the Secretary of State for Scotland. I refer to the powers that he has at present, and the Scottish Development Agency. The same will apply under the Community Land Act, which is dealt with in the next paragraph. If powers are taken away from the Secretary of State, it will mean that his influence in getting things to Scotland and working in Scotland's interests with all his Cabinet connections will be so much weaker. We fed hormones to him in the development of the Scottish Development Agency, in order to make him stronger and more able to bring things to Scotland out of the general United Kingdom pool. This Bill will remove one of his testicles— 1058 at least in terms of his being able to be a potent and effective operator. I do not think that it is in Scottish interests to reduce the power of the Secretary of State for Scotland in this way.
It is not in Scotland's interests that their representation to the Secretary of State and the Cabinet should have access to the whole of the United Kingdom funds and powers. It is a mistake to weaken the powers of the Secretary of State by devolving so much of his strength to the Assembly or the Scottish Secretary in the way that will happen if paragraph 7, page 69, is allowed to go unaltered. I hope that my noble friend will continue his research and find ways and means of implementing on Report what he implied in his speech. I do not think that we should allow this to stand. It is not in Scottish interests. Neither is it in the United Kingdom interests, for this reason.
I should like the attention of the noble and learned Lord, as I should like a specific answer, or at least his reaction, to the next point that I shall make. I have argued that it is not in Scotland's interests to remove the power from the Secretary of State. It is not in the interests of the United Kingdom because the way in which it is being done is likely to bring about the conflict that I have suggested is there in the Bill from the very first. The conflict arises for this reason. As it says in paragraph 7 of Schedule 11, we shall take these powers from the Secretary of State and give them to the Scottish Secretary or to the Assembly. But we shall retain with the Secretary of State the great financial power. He retains the power as to what finances will be allocated to the Assembly in carrying out the devolved powers. I know this will happen. I have seen it in local government. I have seen it in national Government.
The people who must implement the powers that we are devolving to them will want to do things which will he more expensive than the normal finance allocated to them will allow. We shall once again be in a position where the representatives of the Scottish Assembly will present themselves as people who want to do good, generous things for Scotland, and it will be Westminster Parliament, or the Secretary of State, who will prevent that happening as they will hold the 1059 financial strings. I see great danger—quite apart, in terms of administration, of it being a nonsense—in the problems that will flow, even from good administration. There are dangers here that we should not let happen now that my noble friend has been able to draw our attention to them so specifically.
In a word, this is what I am putting to the noble and learned Lord who will reply. Is it not a fact that where one strengthens parts of the Assembly and the Scottish Secretary, to that extent we shall weaken the powers of the Secretary of State? So far as Scotland is concerned, the power may be the same, but it is put in a vehicle which is less likely to produce good results than the one in which it is already.
The second question that I want to put is this: Is it not a fact that the Secretary of State, with whatever connection he retains with the Westminster Government, will be that much less influential in being able to get from the United Kingdom coffers the necessary help that Scotland must have to make this Bill look anything like worth while? Thirdly, is it not obvious that, if we give powers to the Assembly to do things, but give the powers as to what money will be allocated to them to two different people, there is bound to be a conflict? In the context of my argument, the conflict will be between the Assembly in Scotland and Westminster, London. It is there where there will be the beginnings of a confrontation, and the bitterness and conflict of nationalism which I believe to be the fundamental danger behind the whole of this Bill.
I congratulate my noble friend for spelling out these very difficult details so clearly. I hope that when we reach the stage where we can do something about it —the Report Stage or whenever—we shall give some effect to the clear warning that my noble friend has given.
§ Lord WILSON of LANGSIDE
The Committee is surely profoundly indebted to the noble Lord, Lord Drumalbyn, for raising this matter. I very much doubt whether I am adequately informed to express any concluded view or, indeed, any even half-formed view as to the impact of these provisions on the industrial and economic life of Scotland. However, 1060 the noble Lord, Lord Drumalbyn, is not inclined to exaggeration. If the noble Lord says that he is far from convinced that these provisions will improve the prospects for the conduct of the economic and industrial strategy of Scotland, then I am profoundly disturbed about their implications. I certainly hope that the Government's answer to the point that he has raised will be convincing.
§ The Earl of LAUDERDALE
The Committee is indebted to the noble Lord, Lord Drumalbyn, for his homework and his research. In making some observations I should like to apologise for the fact that due to the arrival of some American visitors who rejoice in the name "Lauderdale", of which I am very proud, I shall presently have to except myself from the Committee. However, I shall look forward to reading the reply that is given from the Front Bench.
What has emerged from the speech of the noble Lord, Lord Durmalbyn, is that, on the one hand, the Scottish Development Agency has an enormous range of very disparate activities. There are relationships, of course, with industrial estates and with the powers of the new town corporations. There are also questions concerning financial loans to industry. As regards every one of those there is bound to be, as my noble friend Lord Harmar-Nicholls has said, tension both ways. There will be pressures in the Assembly to push for more and more. On the other hand, there will be a prudent concern for the interests of the United Kingdom as a whole which may say or may need to say, "enough is enough".
Let us consider some of the matters which are, at present, in everyone's mind or which have arisen in recent years. First, what about the struggle to get what is now British Leyland to Scotland? That was achieved, I think we can say, thanks entirely to the Board of Trade. What about the efforts to build up and hack up Chrysler to stay in Scotland when it was tempted to pack up and go? The success that was achieved in keeping Chrysler in Scotland was very largely attributable to the powers of the Secretary of State on the one hand, and the support that he had in the Cabinet on the other.
What about some of the other matters which are arising all the time?—for 1061 example, the location of industry cannot be further advanced in Scotland without continuous reference to the transport infrastructure. We are all aware of the struggle that has been waged in this House and in another place to get the A.9 to Inverness "dualled". At last it is largely on the way. I merely quote that as an example, but it became urgent thanks to the development of the oilfields. It was under the pressure for the development of the oilfields that we managed to get it pushed ahead.
There will be other developments in the future which cannot now be foreseen. They too w ill make requirements as regards infrastructure development. When that is needed for Scotland and for Britain, will it simply come out of a block grant or will it be something extra? I cite that as a general theoretical example. But what about the development of Hunterston? That has been under discussion, negotiation, promotion and, one might say dispromotion, for nearly 15 years. It has got so far. There is now an ore terminal. Who will decide? Who will take the final, important, critical decisions about the allocation of one or more small steel plants? We know that the Assembly will press one way, but do we know that, within the context of the British economy as a whole, it will be prudent to site there what many of us want in our hearts, and what the Assembly will press for? Will it be prudent in terms of our relations with the European Community? I do not know; none of us knows. But there will be tension as regards that matter.
What about refinery problems? At present there is already tension between the United Kingdom Government and the European Community about policy in regard to oil refineries. There is an endeavour by the Commission making a recommendation to the Council, that there should be a virtual ban on further refinery development. The United Kingdom Government are taking the opposite view and saying, "The more refinery development there is in Britain, the better. We want to take crude oil ashore, refine it and export it as white products". There are issues of policy here, whichever way one comes down, that are not simply decided. If the Assembly pushes one way for more refineries—as I am sure it will—and, shall we say, the Secretary of State, supporting 1062 a United Kingdom approach, pulls the other way, there will be tension, confusion, argument, bitterness, misunderstanding and controversy.
What about pipelines, the gas distribution network and the conversion of the gas pipelines later on to the diffusion of power by oil? All sorts of problems can arise. Finally, what about the allocation of finance, whether to infrastructure or to individual companies? The Assembly will press one way and the Secretary of State, with necessary regard for the balance of the United Kingdom economy as a whole, will press the other way. They will pull in opposite directions. It is that tension, that dichotomy, that pulling both ways that causes some of us to fear, along with my noble friends Lord Drumalbyn and Lord Harmar-Nicholls, that the end result will damage Scotland and, indeed, Britain.
§ The Earl of PERTH
We owe a debt to the noble Lord, Lord Drumalbyn, for drawing attention to what is referred to under all the powers in relation to the Scottish Development Agency. I do not think that we should be surprised. We have already had a debate on this subject earlier when we discussed Clause 38. In fact, as I read it, what is in the Schedule that we are discussing at present gives effect to Clause 38.
When we discussed Clause 38 I thought that the trouble was that the Scottish Secretary was not being given enough power. Indeed, I introduced a new clause for the purpose of giving him more power in relation to the Scottish Development Agency and other bodies. However, that is, in a sense, water over the dam, but not entirely, because, as I read it, what we are discussing now gives in more detail what arose under Clause 38. For my part I was upset that we could not get more financial power for the Scottish Secretary or the First Secretary, whoever it might be.
The clause states:The Secretary of State shall with the approval of the Treasury prepare guidelineswithin which the Scottish Secretary will act. All the various matters are set out. The Scottish Secretary has no financial powers except under the Secretary of State and with the approval of the Treasury. 1063 However, it is important, when considering this matter, to realise that, in a sense, we have discussed it all before and that this is merely explaining in detail—and it is important that it should be explained in detail—what is laid down in Clause 38.
The noble Earl, Lord Lauderdale, referred to such things as pipelines. They are not related to the Scottish Development Agency at all. They come under quite different powers. However, the noble Earl was illustrating a point and perhaps we should not take it all too seriously. As I say, the noble Lord, Lord Drumalbyn, has done us a service, but much of the debate so far has been a rehash of the debate on Clause 38. If I had to make a comment it would be that at that time I felt—as did other noble Lords—that, rather than going too far, we had not gone far enough for the Assembly or for the Scottish Secretary.
§ Lord HARMAR-NICHOLLS
Before the noble Earl sits down perhaps I could comment on his contributions from the Cross-Benches, because, with his interests, they are very important. He is saying that if the Assembly had the financial powers and if the conflict referred to was not present it would be better. However, it is this Bill that we are examining and in the Bill they do not have the financial powers. Much as he would like them to have the powers to make it worth while, as they do not have them, should not his testimony be that this is a bad thing?— because the conflict remains in the absence of what he wants.
§ Lord DRUMALBYN
Surely the guidelines are the limitations on the exercise of the powers about which we have been talking. This time we have been talking about the powers; last time we were talking only about the limitations on the exercise of the powers.
§ The Earl of PERTH
In reply to the noble Lord, Lord Harmar-Nicholls, I would certainly rather have more financial power for the Assembly or for the Scottish Secretary of State. If we cannot get that, then what we have is at least something and, with goodwill on both sides, it should not he a cause—
§ The Earl of PERTH
The noble Lord says "Ah". My hope is that there will be goodwill; but we shall try to make it work in what is a very important area—in fact, the most important area in the Bill. I take the point made by the noble Lord, Lord Drumalbyn, and I pay tribute to the work he has done. All the same, I think that the one and the other have to be related and cannot each be taken on their own.
§ 7.2 p.m.
§ Lord KIRKHILL
I know that the noble Lord, Lord Drumalbyn, will not mind me saying to him that, unlike a number of other noble Lords who have recently spoken, I cannot exactly say that I thank him for his most excellent dissertation. I can agree with him that from my point of view this Part of the Bill appears to be somewhat obscurantist, although I would not disagree with what seemed to me to be a most reasonable historical analysis by the noble Lord. However, I—like the noble Earl, Lord Perth—in my innocence thought that we had been over much of this ground already. Nevertheless, it might be helpful if I summarised the position again.
These Amendments have to be considered against all the provisions in the Bill affecting the functions and powers of the Scottish Development Agency. The SDA carries out functions which straddle important areas of policy which are to be devolved—as I indicated in an earlier debate, land use and environment are prime examples—and other important areas which are to be reserved. In that same debate I suggested that the encouragement of industrial development was worthy of your Lordships' attention in this regard; and the reservation of employment and industrial democracy is obvious. Therefore, it is necessary for the Bill to make special arrangements in relation to the Agency to secure a proper balance between devolved and reserved interests in its future control.
The Government originally proposed in Cmnd. 6348 Our Changing Democracy, that the Agency might be responsible separately to them and to the Scottish Administration in relation to the two different types of matters—with appointment of Members divided. As noble Lords 1065 will be aware, this arrangement was widely criticised as being impractical. On reflection the Government concluded that it was feasible to provide for executive and not legislative devolution of the industrial functions of the Agency, and at the same time to protect the reserved interest by guidelines prepared by the Secretary of State.
Schedule 11—and I shall return to the point of paragraph 7—accordingly devolves executively powers in relation to the industrial activities of the Agency. As we have said before, the environmental functions are fully devolved by Schedule 10. That is not to suggest that the Scottish Executive will be involved any more than the Government are now in the day-to-day running of the Agency, but it will take over existing powers, such as that of direction under Section 4 of the Scottish Development Agency Act. The Assembly will not be able to legislate to add to or alter these powers—and I shall speak again on paragraph 7, but these powers relate to paragraph 7 of Group D; this contrasts with the position regarding the environmental activities of the Agency, for which the entries in Schedule 10 on pages 66 and 67 of the Bill rightly give the Assembly full legislative competence. The Scottish Executive will not be able to exercise its industrial powers in a way which would dislocate the overall regional and industrial policy of the Government. I said that in a previous debate and I reiterate the point this evening. The Secretary of State is required to prepare guidelines on such matters under Clause 38(1) of the Bill. We gave adequate discussion to that point in our previous debate.
To paraphrase the noble Lord, Lord Harmar-Nicholls, from that point he went on to speak of the unity of the United Kingdom, and I quite see the point he made. I would respond by saying that the industrial interests of the Government are additionally protected by the outright reservation of two important matters, to which I would direct the noble Lord's attention. First, all powers in relation to the Agency's duty to promote industrial democracy are reserved—I referred to that a few moments ago. Secondly, and very importantly, the power under Section 5 of the Scottish Development Agency Act to direct the Agency to exercise powers 1066 under Section 7 of the Industry Act 1972 —that is the question of selective financial assistance—is entirely reserved. Had the noble Earl, Lord Lauderdale, been present, I would have made a further specific reference to direct his attention to that. So also is the related power under Section 20 of the Scottish Development Agency Act to appoint the Scottish Industrial Development Advisory Board.
The Government believe that the combination of Executive-only devolution guidelines and specific reservations strikes the right balance between devolved and reserved interests. They are confident that it is a more practical and sensible solution than the much criticised splitting of the two sides, to which I earlier referred and to which I would now refer by suggesting that that would be the effective outcome of the proposed Amendments if they are carried. Indeed, the effect of the Amendments would be to involve the Secretary of State directly in many matters of purely local concern within Scotland, and in the Government's view would greatly complicate the demarcation between his responsibilities and those of the Scottish Administration. However, as many noble Lords have said, the noble Lord, Lord Drumalbyn, has—by very careful scrutiny of the Schedule—pointed in detail to a number of specific questions to which, in so far as it is possible, I should like to reply. I may not take these in exactly the order in which they were placed before your Lordships' Committee, but I hope that in replying to them as best I judge the reply will at least be coherent.
The noble Lord, Lord Drumalbyn, mentioned the question of the appointment of members of the Agency. Section 1 of the Scottish Development Agency Act 1975 provides for the setting up of the Scottish Development Agency. There is common ground on that. In particular, it specifies the size of the membership and provides that the chairman and other members of the Agency shall be appointed by the Secretary of State. That is at Section 1(2) and (3), but under Paragraph 7(i) of Group D of Schedule 11, the powers—that is the ministerial powers —of Section 1 of the Scottish Development Agency Act 1975 are to be executively devolved. Therefore, the appointing power of the Secretary of State will pass to the Scottish Secretary.
1067 The noble Lord, Lord Drumalbyn, particularly directed the Committee's attention to Paragraph 7. He posed a question in regard to its implementation as to how long the economic unity of the United Kingdom can obtain in these situations. As I have explained, this group in Paragraph 7 devolves executively powers in relation to the industrial activities of the Agency. The industrial activities of the Agency are the functions conferred on the Agency by Section 2(2)(a), (b) and (c) of the Scottish Development Agency Act 1975. That is on Page 2 of the Act.
May I take an example. Section 12 of the Scottish Development Agency Act 1975 determines the financial duties of the Agency. Subsection (1) reads:After consultation with the Agency, the Secretary of State may, with the approval of the Treasury, determine the financial duties of the Agency, and different determinations may be made in relation to different functions and activities of the Agency".If it is of help to the noble Lord, Lord Drumalbyn, and indeed other noble Lords, Clause 22 will, when implemented, mean that the Secretary of State becomes the Scottish Secretary, and the Treasury becomes the Scottish Secretary. I think that that is perhaps a useful explanation of an example that I have just given.
§ Lord DRUMALBYN
Is not that rather peculiar? In that case the Scottish Secretary would be consulting himself if the Treasury became the Scottish Secretary.
§ Lord KIRKHILL
It is an example of the real authority which the devolved Administration is to have for those aspects which stand to be devolved before them. Paragraph 7(vii) devolves this power executively in so far as it relates to the industrial investment functions of the Scottish Development Agency. Your Lordships might also note that Part III of Schedule 10 devolves these powers both executively and legislatively in relation to the environmental powers of the Scottish Development Agency. I have drawn your Lordships' attention to this in the past. There are, therefore, two entries: one in Schedule 11 and one in Schedule 10, and they complement each other as they relate to the functions and powers of the Scottish Development Agency.
1068 The question of the financing of the activity of the Agency has been spoken about tonight. It might help if I were to point out to your Lordships that all the work of the Scottish Development Agency under the 1975 Act, apart from those functions which are reserved and to which I have made reference, will be financed from the Scottish Consolidated Fund post-devolution. The Scottish Administration will therefore decide how much is to be pumped into the activities of the Scottish Development Agency. Also the Scottish Secretary and the Scottish Assembly will become responsible for the limits set in Section 13(2) of the 1975 Act. But any borrowing by the Agency will come within the total borrowing limits set by order by the Secretary of State under Clause 48 of the Scotland Bill.
I should also add in response to the additional point made on that by the noble Lord, Lord Drumalbyn, that, in dealings with the SDA on the Agency's industrial investment activities, the Scottish Secretary will need to keep within the guidelines set down by the Secretary of State under Clause 38. That is a point that the noble Lord, Lord Harmar-Nicholls might care to notice.
At present, the financial activities of the Scottish Development Agency are as Lord Drumalbyn explained, monitored —in my view, most carefully and thoroughly—by the Scottish Economic Planning Department on behalf of the Secretary of State for Scotland. The accounts of the SDA come under the scrutiny of the Exchequer and audit department and the Comptroller and Auditor General. Again the noble Lord, Lord Drumalbyn, drew your Lordships' attention to this. If, however, overspending by the Scottish Development Agency seems to be in prospect, this would be identified at an early stage and the necessary corrective action taken. If necessary this might take the form of a supplementary estimate by the Secretary of State for the work of the SDA.
Post-devolution, the arrangements will remain exactly the same with, in my view, the same checks and balances and degree of control. The Agency will operate exactly as before. The Secretary of State will he replaced by the Scottish Secretary; Parliament will be replaced by the Scottish Assembly; the Comptroller and Auditor 1069 General will be replaced by the Scottish Comptroller and Auditor General; and the Exchequer and Audit Department will be replaced by the staff serving the Scottish Comptroller and Auditor General. The solutions to any difficulties which might arise in the future will be exactly the same as the solutions to similar problems should they arise at the present time. The SDA cannot spend money it has not got, either before devolution or post-devolution.
I should say in passing to both the noble Lord, Lord Drumalbyn, and the noble Earl, Lord Lauderdale—who regrettably is no longer with us—that it is important to keep the industrial function of the Scottish Development Agency in reasonable proportion. It will not be the only influence and spearhead of industrial development on the Scottish scene. It is not that at the moment; it will not be that in the future. It is important to bear in mind that it is an important industrial arm of Government policy in Scotland, but it is by no means the only point of influence.
The noble Lord, Lord Drumalbyn, posed the question as to the position regarding pay and pensions of the staff of the Scottish Development Agency. I can say to the noble Lord that the Scottish Secretary will become wholly responsible for the pay and pensions of the staff of the SDA. The powers of the Secretary of State to administer the civil service convert to the Scottish Secretary under Clause 22, as I was suggesting earlier.
In his wide-ranging remarks, Lord Drumalbyn posed the question: what will happen if the SDA infringes the guidelines? The Scottish Secretary, or, in practice, I suppose the staff of the Scottish Secretary, will monitor the activities of the Scottish Development Agency in exactly the same way as the Secretary of State—in fact, it is the Scottish Economic Planning Department—does at the moment. Any infringements would be identified and the necessary corrective action, as now—I can assure the Committee that that is the case—would be taken. There is also open to the Secretary of State the reserve power under Clause 36.
§ Lord HARMAR-NICHOLLS
The noble Lord says that "as now" matters 1070 would be vetted and controlled. Is not the difference that whereas now there is only one person responsible, the Secretary of State, and through him Westminster, if this measure becomes an Act we will have in future an elected Assembly's spokesman differing with whoever it may be? It is this conflict between two elected Assemblies and their representatives which is the danger which the noble Lord seems to overlook.
§ Lord KIRKHILL
I quite understand that that is the main theme and part of the criticism of this part of the Bill, which the noble Lord has expressed not only this evening but on previous occasions. I have been attempting to explain that the SDA has a totally devolved environmental function. It has, as it were, under the Scottish Executive, a function so far as industrial activity is concerned; it has a totally reserved function so far as the attraction, for example, of new industry is concerned. It is obvious that the noble Lord can argue his position, and I do not dispute that it is a point of view. It is not, however, one with which I am in sympathy because I believe that the new system will work. I believe it matches the political reality of the Scottish scene today, and while the noble Lord may not be with me on that, I do not think I can add to what I have said.
Lord Drumalbyn also asked me how I might envisage consultations proceeding with the Treasury. I touched on this subject in my earlier remarks, by pointing out that consent will not be needed after devolution. Once the power is transferred to the Scottish Secretary, he does not have to get Treasury consent; and I think the noble Lord on that point asked me whether the Scottish Secretary would be consulting with himself.
§ Lord DRUMALBYN
What I really want to know is how it appears in legislation. All the powers that appear in legislation prescribe that the Treasury's consent shall be obtained.
§ Lord KIRKHILL
My advice is that Clause 22 will have that effect in operation. I believe I have covered all the major points raised in what has been a wide-ranging discussion of the guidelines. The noble Earl, Lord Lauderdale, asked a 1071 specific question, and I can respond by saying that the Scottish Development Agency does not concern itself with a situation like Chrysler, which of course was operated on a United Kingdom scale; most of us would know that and it is probably self-evident. I hope that my reply, if it may not have convinced, may at least have the merit of having been as detailed as I could have made it.
§ 7.25 p.m.
§ Lord DRUMALBYN
I am grateful to the noble Lord, Lord Kirkhill, for making the effort to give such a detailed reply; I hope he has not overstrained himself. He is right in saying that I am not wholly convinced about the situation. We must face the fact that in half of its functions the SDA will be supervised by the Scottish Secretary, who will be under the control of the Assembly, but the Assembly will have devolved powers. On the other half of the activities —and they will be roughly that—on industrial development subjects, the Scottish Secretary will be under the control of the Assembly in quite a different sense. He will be subject to guidelines from the Secretary of State but, apart from that, he will be in a very peculiar position indeed, and what the noble Lord has not made out is that he will be performing any real function at all on the industrial development side.
I have been arguing that this has been doing very well under the Secretary of State, and I see no reason why it should be delegated to the Scottish Secretary. It must impair the economic unity of the United Kingdom, and that is the difference of view between us. I do not intend to press the Amendment to a Division because Amendments to clauses which we have already passed would be necessary to make sense of this one. However, I propose to look carefully at the whole situation to see what has to be done at the next stage. Meanwhile, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 270 to 277 not moved.]
§ Schedule 11 agreed to.1072
§ House resumed.