Lords Sitting of 16 May 1978

Preamble
The House met at half past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Peterborough.
The Duke of Manchester—Sat first in Parliament after the death of his father.

KING'S COLLEGE HOSPITAL
Lord GREENHILL of HARROW: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a Statement to allay the anxiety about the future teaching role of King's College Hospital caused by recent Press reports in the Daily Telegraph of 10th April commenting on the reduced budget for 1978-79 of the Lambeth, Southwark and Lewisham Area Health Authority (Teaching).
Lord WELLS-PESTELL: My Lords, we have no intention of closing or fundamentally changing the role of any of the London teaching hospitals in the near future. My right honourable friend the Secretary of State for Social Services has just launched a study of hospital provision in Inner London in the long-term, taking into account the continuing fall in the residential population and the need to support medical teaching. However, it is too soon to forecast what the outcome will be, either generally or in relation to individual hospitals.
Lord GREENHILL of HARROW: My Lords, I am much obliged to the noble Lord. Does he not agree that any continued uncertainty might well diminish the efficiency of the medical school and reduce the standard of the hospitals which serve the very populous area of South-East London?
Lord WELLS-PESTELL: My Lords, we are very dependent on population
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movement, and there is a considerable population movement in London. We must also take into account that even in London there are areas where medical services are not adequate and it is necessary to shift some of the resources from one area to another. But as far as the King's College Hospital is concerned, it is well sited in relation to the population it serves and there is no intention in the near future of changing its location or its role.
Lord PLATT: My Lords, in his original Answer did the noble Lord not say that there was no question of closing any teaching hospital at the present time and that there were no plans for doing so? Does this apply to the Elizabeth Garrett Anderson Hospital, which comes under a teaching AHA?
Lord WELLS-PESTELL: My Lords, I was referring to London teaching hospitals. The noble Lord, if he has looked at the Telex, will have seen that my right honourable friend the Secretary of State in fact announced this morning that the Elizabeth Garrett Anderson Hospital will be closed on the 21st July.
Lord REIGATE: My Lords, when the noble Lord speaks of no changes "in the near future", how near is the future? Are they good for 10 years, or 20 years?
Lord WELLS-PESTELL: My Lords, the noble Lord would not expect me to put a time on that, but what I should like to say is that all the Regional Health Authorities have been asked to get their Area Health Authorities to prepare an area strategic plan, so that it will be possible to see what needs to be done. I would say to the noble Lord who asked the main Question that the Area Health Authority to which he refers in that Question would be well advised to prepare the strategic plan which is required of it.
Lord SEGAL: My Lords, since it takes something like six or seven years for a doctor to qualify, can my noble friend give an assurance that it is not the Government's policy to reduce the intake of medical students into our teaching hospitals, since the shortage of qualified doctors is world-wide?
Lord WELLS-PESTELL: My Lords, we are hoping that the target for the annual student intake of something like 4,000 will be effective from the early 1980s.
Lord SANDYS: My Lords, arising out of the noble Lord's reply to the question by the noble Lord, Lord Platt, are the Government aware that the Secretary of State's announcement in regard to the Elizabeth Garrett Anderson Hospital appears to contravene an undertaking given by the noble Lord that a closure of the hospital would not take place without full Parliamentary debate?
Lord WELLS-PESTELL: My Lords, with great respect, this is very wide of the Question. I tried to be courteous to the noble Lord, Lord Platt, and give him an answer, but I do not think I ought to be tempted by the noble Lord who has just sat down.
Lord AVEBURY: My Lords, is the Minister aware that recently there have been appearing in the newspapers many inaccurate and alarmist reports which are calculated to undermine the confidence of the general public in the National Health Service, which, with all its defects, is still the best in the world? What is to be the practice of the Department of Health and Social Security in dealing with generalised allegations such as these closures; and is it not unsuitable for Questions to be tabled in either House regarding reports in the Press, which would lead to an endless flow of Parliamentary debate if one were to try to refute every single false allegation which was made?
Lord WELLS-PESTELL: My Lords, I am grateful to the noble Lord for that comment and I would entirely agree with him. I cannot think there is anything likely to cause more alarm than the statement in The Times today, reputed to have been made by Mr. Patrick Jenkin, who yesterday, when referring to the National Health Service and commenting on the present White Paper on public expenditure, said:
"We have to live within that, and there is no possibility of extra money"
being available for the National Health Service in the future.
The Earl of HALSBURY: My Lords, with respect to the time-scale, would the
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noble Lord tell the House what provision is being made in relation to determining the future of the specialist postgraduate teaching hospitals affiliated to the British Postgraduate Medical Federation? A decision must be taken before next year, and I should be most obliged if the noble Lord could inform the House what is the time-scale on this decision.
Lord WELLS-PESTELL: My Lords, I cannot reply to the noble Earl other than to say that my right honourable friend the Secretary of State has set up a body known as the London Health Planning Consortium, which is a newly-established body consisting of very senior representatives of my Department, the University Grants Committee, the London University and the Thames Regional Health Authorities. It is going not only to make recommendations to the National Health Service and the academic authorities but to try to advise my right honourable friend what the position is generally. Before any of their recommendations are acted upon there will be wide consultation.
Lord LEE of NEWTON: My Lords, is my noble friend aware, in fairness to Mr. Patrick Jenkin whom he quoted, that that gentleman told us that the Tories, if they came into power, would change completely the reorganisation of the Health Service which they carried out in 1973, because of the terrible waste of public money which ensued?
Lord WELLS-PESTELL: My Lords, I am being led down a number of avenues which I do not think I ought to pursue.
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, I know that the House is very interested in all these questions and the width of the opinion expressed, but we have spent seven minutes on this subject and I hope that it is the feeling of the House that we should go on to the next Question.

BEAFORD VILLAGE HALL: GOVERNMENT GRANT
2.44 p.m.
Lord CLIFFORD of CHUDLEIGH: My Lords, by way of declaring my interest may I, as president of the Devon Association of Parish Councils, with over 400

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parish halls on its books, beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government why the Department of Education and Science has refused an adequate grant to Devon County Council to cover completion of the Beaford village hall after the villagers had raised the sum of £10,650 and received offers from parish, district and county councils.
The MINISTER of STATE, DEPARTMENT of EDUCATION and SCIENCE (Lord Donaldson of Kingsbridge): My Lords, the Department's support for local projects of this kind depends on decisions taken by the local education authorities. Authorities submit a programme of voluntary youth and community projects to which they themselves are willing to contribute, and the Department then announces the total amount it will pay in grants towards the cost of projects in each authority's area. The selection of projects for support, within that sum, is then a matter for the authority. The demand for grant this year exceeded the total sum available, so many authorities have had to choose between projects for support.
Lord CLIFFORD of CHUDLEIGH: My Lords, while I thank the noble Lord for that reply, which was not entirely unexpected, may I ask whether or not it was the understanding before the limitations were announced by the Minister last autumn that, if the parish—in this case a parish with a population of 360—raised 25 per cent. of the total of the sum required, the Government, one way or another and through district, parish or county councils, would supply the rest of the money?
Would the Minister not agree that a small community such as this one cannot raise so large a sum of money overnight? In fact, it is quite fantastic, I think, that they have done it at all. Therefore does it not smack of retrospective legislation or going back on a given word to refuse the extra £14,000 needed to finish the job?
Lord DONALDSON of KINGS-BRIDGE: My Lords, as regards the first part of the noble Lord's supplementary
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question, I have no information about any promise made by the Government to meet the total sum if 25 per cent. were found. I shall inquire about this. It is a most unlikely promise to have been made; but, if it was made, I will acknowledge it. As regards the second point, I think that the local people have done marvellously. The grant of £30,600 which has been made to Devon for their five projects (of which Beaford village hall is one) represents 68 per cent. of what the county authorities bid for. I understand that this grant will enable Devon to include a first instalment of the Beaford hall project within its programme.
Lord YOUNG of DARTINGTON: My Lords, is the noble Lord aware—and I do not suppose that he is—of the extent of feeling on this question not only in the village of Beaford but also in the surrounding villages which the proposed village hall will serve?—an extent of feeling which is due, as the noble Lord, Lord Clifford of Chudleigh, has said, partly to the fact that so much time has already been spent in raising over £10,000 for this hall. Even though it is not possible now to go back on what happened last year, will he urge upon his colleagues in the Department of Education and Science following this noble effort that, at any rate in the coming year, the full grant should be given as it has been in accordance with practice in the past in many counties of this country?
Lord DONALDSON of KINGS-BRIDGE: My Lords, I am aware that there is a good deal of feeling locally; and my colleagues are as distressed as are noble Lords. But the way these things are done is a standard way. The final decision has to be made by the local authority and the Department can give only the share of the total amount that is available. Surrenders of grant allocation by other authorities may, I think it is just worth saying, make it possible to increase Devon's allocation even now; but at the moment I can give no undertaking that this will be so. It may be clearer in a month or so. In any case I will pass on my noble friend's views to my colleagues.
Lord THORNEYCROFT: Will the noble Lord pass on something else too—that it may be a good thing to spend a

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little more on the Beaford village hall and rather less on the grandiose plans of the Community Land Act and office blocks full of civil servants trying to introduce a wealth tax?
The Earl of ONSLOW: My Lords, in his reply, the noble Lord said that if Lord Clifford of Chudleigh could show that a promise had been made, he would record it. Would it not be much better that he honoured it?
Lord DONALDSON of KINGS-BRIDGE: My Lords, I did not say that I would record it; I said that I would acknowledge it.
The Earl of ONSLOW: My Lords, will he honour it?
Lord DONALDSON of KINGS-BRIDGE: My Lords, it is not for me to honour; it is for the Department under my Secretary of State. I shall bring it to her attention.
Lord BLYTON: My Lords, is the Minister aware that it is the Conservative Party which is keen to introduce income tax cuts for the higher regions of taxation, on the basis that it can be met by cutting public expenditure? Is it not ironic to see that Party asking for more public expenditure?
Lord DONALDSON of KINGS-BRIDGE: My Lords, if I had replied to the political question put to me, which did not seem to deserve a reply, I would have replied in exactly those terms.
Lord CLIFFORD of CHUDLEIGH: My Lords, would the noble Lord agree that the £42,600 allocation to Devon, with 400 parish halls, is really very small, and that if changes are to be made in what was the agreed system before, at least four years' notice should have been given so that organisations which are trying to raise 25 per cent. of the total cost do not get cut off suddenly? The notice that this was going to stop was given last autumn by the Minister. Is that fair on the organisations that have been working so hard for the local community?
Lord DONALDSON of KINGS-BRIDGE: My Lords, I do not think that
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the noble Lord is raising a new point. I think that I have given the only answer I can, that whether or not one project or another should be given priority over others for support, rests with the Devon County Council.

SEAFARERS' CONDITIONS: ILO CONVENTIONS
2.52 p.m.
Lord BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how far the Conventions on Seafarers' Conditions adopted at the 1976 ILO Maritime Conference have been ratified.
Lord WALLACE of COSLANY: My Lords, I would refer my noble friend to the White Paper, Cmnd. 7163, presented to Parliament on 24th April which indicates the position in the United Kingdom. The requirements of the conventions on continuity of employment and on minimum standards in merchant ships are already substantially satisfied but further discussions with the shipping industry are necessary to establish whether all of them are met in all British ships. The requirements of the annual leave convention are generally speaking not yet satisfied.
Lord BROCKWAY: My Lords, will the Minister agree that these conventions and recommendations, which include continuity of employment, a minimum standard of life and protection for young sailors, would mean almost a revolution in the conditions of those in the merchant service? Does he remember that the British Government supported all these conventions and recommendations at the ILO? Will the Government do their utmost not only to ratify them on behalf of the British Government but to influence other Governments to ratify them as well?
Lord WALLACE of COSLANY: My Lords, in reply to my noble friend, may I say that we are most certainly doing our best to get complete finality so far as conditions of employment and standards are concerned. Leave with pay is a little more complicated, but the general

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approach of the British Government is entirely in accord with the views of my noble friend.
Lord SHINWELL: My Lords, is it not true that the regulations relating to safety of seafarers associated with another Amendment to the Merchant Shipping Act have not yet been produced by the Government although they made a promise to do so many months ago? Is my noble friend also aware that it is customary with the ILO not to ratify conventions? Is he aware that in 1930 I succeeded in obtaining unanimously from an ILO Conference in Geneva a convention for the reduction of miners' hours of labour in all coal-producing countries, and we are still waiting for the ratification?
Lord WALLACE of COSLANY: My Lords, my noble friend obviously understands that ILO conventions lay down international labour standards, and the standards are made for international achievement. We are doing our utmost to reach complete achievement, and in many cases achievement has been realised. So far as safety and other factors are concerned, that is outside the range of the immediate question, but I shall make inquiries and no doubt my noble friend will put down a Question on the subject.
Lord SHINWELL: My Lords, could anything really be lost to anybody—except the large number of civil servants associated with the ILO—if it was closed down entirely?
Lord WALLACE of COSLANY: My Lords, that is an entirely different question, with which I am not inclined to agree.

SOVIET FREIGHT RATE UNDERCUTTING
Baroness WARD of NORTH TYNESIDE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether it is now possible to report any action on the part of the Commission of the European Economic Community on the problem of the Soviet Union undercutting United Kingdom freights.
Baroness STEDMAN: My Lords, the agenda for the meeting of the Council of Ministers (Transport) in June includes the question of East bloc competition. Ministers will then consider Commission proposals, which are being discussed now in Brussels, and other suggestions.
Baroness WARD of NORTH TYNESIDE: My Lords, while thanking the noble Baroness for that reply, may I ask how long we shall have to wait before we know what action can be taken? I am sure it is fair to say that the noble Baroness is just as anxious as I am to look after our merchant navy fleet and I have been raising this matter time and time again. Could the noble Baroness exercise a little pressure to get on with the matter? It is very important indeed to our merchant navy.
Baroness STEDMAN: My Lords, I accept all that the noble Baroness has said about the time it takes to come to decisions on these matters. If she thinks that I am any good at exerting pressure, then I will certainly give her that assurance.
Baroness ELLES: My Lords, could the noble Baroness state what stage these negotiations have reached in Brussels? Has the matter been discussed by Coreper or has it in any way reached the Council of Ministers yet? It would be helpful if the noble Baroness could give an indication of the timing that we may expect.
Baroness STEDMAN: My Lords, as the noble Baroness said earlier, this has gone on for a long time. Last year the Ministers from the Department held talks with the Soviet Minister of Merchant Marine over the difficulties that were being created by Soviet rate-cutting. There were further discussions in June of last year when both sides agreed that they would try to seek guidelines for the orderly development of maritime trades and set up a continuing mechanism to try to identify and establish all the difficulties. Subsequently there were Ministerial talks in Moscow which, as my noble friend Lord Oram reported a few months ago, proved to be very disappointing. The problem is that for the time being it would seem that the Soviet authorities have decided that the commercial advantages

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that they can gain from a continuing policy of a rather aggressive outsider competition with Western shipping out-weighs the political advantages of trying to accommodate and to work with us. The stage we have now reached is that the Commission have produced a paper as a basis for consideration for possible action at Community level.
I am sorry to reply in such detail but I think it will be helpful. The points made are, first, an expression of Community objectives relating to the East bloc liner shipping; secondly, some form of establishment of a Community-wide monitoring system; and thirdly, the establishment of a mechanism for using Community-wide countervailing powers, such as quotas, if these prove to be necessary. The United Kingdom, West Germany and Denmark have broadly endorsed that Commission's draft.
The Commission, against the wish of many of the Members, have now published those proposals and there has been some stiffening of resistance among some of our other Members in the Community. It is against this background that the Danish Presidency is now trying to draw up some form of compromise proposal. The Commission's document will be before the meeting and therefore cannot be withdrawn, so it may be—and here it is pure speculation—that on 12th June when this meeting is called the Council of Ministers (Transport) will have a report on the Commission's proposal. They will also have some suggestions for compromise. There may also be further developments which will come out of that. More than that I cannot say until after the meeting.
Baroness ELLES: My Lords, I am most grateful for that full reply. Will the Government accept that we have a strong position in regard to the Soviet fishing marine, and if they do not come to terms with the Community we might have a different attitude towards allowing them to fish under Third Country rights under the fishing agreements with the Soviet Union? I think that some pressure should be brought to bear upon them.
Baroness STEDMAN: My Lords, there are several pressures that might be brought to bear, but at this point of time
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I think we would rather wait for the outcome of the meeting on 12th June.
Lord AVEBURY: My Lords, if one asks how many of the conditions referred to in the previous Question are observed by the Soviet Union, and if the answer is "very few", what action will the Government take to raise this matter in the ILO?
Baroness STEDMAN: My Lords, there again, I should not like to be drawn until after this meeting on 12th June. We are hoping that we may reach a solution then.
Lord BRUCE of DONINGTON: My Lords, is my noble friend aware of the differences of opinion there may be among the Member States concerning the Commission proposals and that these proposals were in fact agreed by the European Parliament a week ago, and were agreed unanimously?
Baroness STEDMAN: Yes, my Lords, I am aware of that and they are also before our Scrutiny Committees.
Baroness WARD of NORTH TYNESIDE: My Lords, may I ask the noble Baroness whether action is still being taken by making representations to the Soviet Union? In view of the fact that she has given a very full reply now, can I ask whether it is really in order in the House for details of these arrangements to be given in supplementaries rather than in the original Answer, for instance to me, when I have asked the Question?
Baroness STEDMAN: My Lords, I understand the custom in this House is to be as brief as possible in the first Answer and to give such additional information as is asked for afterwards.
Baroness WARD of NORTH TYNESIDE: My Lords, what about the Russians, then?

EXPORT GUARANTEES AND OVERSEAS INVESTMENT BILL [H.L.]
The LORD CHANCELLOR (Lord Elwyn-Jones): My Lords, I understand that no Amendments have been set down to this Bill and that no noble Lord has

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indicated a wish to move a manuscript Amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the Order of Recommitment be discharged.
Moved, That the Order of Recommitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

OATHS BILL [H.L.]
The LORD CHANCELLOR: My Lords, I understand that no Amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript Amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the Order of Recommitment he discharged.
Moved, That the Order of Recommitment be discharged.—(The Lord Chanchellor.)
On Question, Motion agreed to.

SCOTLAND BILL
3.3 p.m.
The LORD CHANCELLOR: 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.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD GREENWOOD OF ROSSENDALE in the Chair.]
Schedule 12 [Legal proceedings involving devolution issues]:
Viscount DILHORNE Viscount DILHORNE moved Amendment No. 189:
Page 72, line 40, at end insert ("but only with leave of the Inner House, or failing such leave, with the leave of the House of Lords").
The noble and learned Viscount said: We come back again to Schedule 12 and this Amendment is a probing Amendment which I hope will not be controversial. I am afraid it will not be entertaining and
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it is somewhat technical in character. If one looks at paragraph 17, one sees that where a devolution issue has been decided in England on a reference to the High Court or the Court of Appeal, an appeal will lie to the Judicial Committee, but only with the leave of the High Court or of the Court of Appeal or with the leave of the Judicial Committee. Then if one looks at paragraph 22, one sees similar provisions made in relation to an appeal on a reference from the Court of Appeal of Northern Ireland. The leave of that court or of the Judicial Committee is required for the case to go to the Judicial Committee.
No criticism can be made of those provisions if there is to be an appeal to the Judicial Committee, but when one looks at paragraphs 9 and 10 one sees a change of pattern. Those are the two paragraphs relating to Scotland. Paragraph 10 provides that there shall only be an appeal from the High Court of Justiciary with the leave of that court or of the Judicial Committee; and again no criticism can be made of that. But when one looks at paragraph 9 one sees that it does not require that leave should be obtained for an appeal to the Judicial Committee from the Inner House of the Court of Session where a devolution issue has been decided by that court on a reference. What I want to ask is this: why should a litigant before the Inner House of the Court of Session be treated differently from any other court? Before all other courts the litigant has to get leave to go further, but in a case which comes on a reference before the Inner House, no leave is required.
I think that the pattern should be consistent and this Amendment seeks to bring about uniformity in this respect. For an appeal from a superior court to the Judicial Committee, the leave of the Inner House will be required, or the leave of the Judicial Committee, as leave is required in respect of an appeal to the Judicial Committee from any other court. It strikes me as very odd that there should be this exception in the case of the Inner House, and this Amendment seeks to remove that exception. I beg to move.
The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey): As the noble and learned Viscount, Lord Dilhorne, has explained, this is a probing Amendment and indeed I think that if he

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were to seek to press it on some occasion he would recognise that the wording would have to be changed in the light of the defeat of Amendment No. 188. As he has also explained, the Amendment seeks to insert a requirement for leave of the Inner House before a devolution issue which has been referred to the Inner House of the Court of Session under paragraph 7 of Schedule 12 can be appealed to the Judical Committee. As the noble and learned Viscount has pointed out, this is the only case in the Schedule where we find that the issue may be appealed to the judicial Committee without leave. He has pointed to the paragraphs relating, on the one hand, to England and Wales and, on the other hand, to Northern Ireland where leave is required.
The requirement of leave to appeal is omitted from paragraph 9 in relation to civil proceedings because, unlike the present position in England, Wales and Northern Ireland, leave is not normally required in order to appeal from the Inner House of the Court of Session. This distinction at present applies in relation to appeals to the House of Lords, and it was considered appropriate to preserve the same distinction in relation to appeals on devolution issues to the Judicial Committee; so the Schedule is in its present form.
At the present time, leave is not required for an appeal from the Inner House of the Court of Session to the House of Lords against a final judgment of the Inner House; nor is leave required for an appeal against an interlocutory judgment, unless it has been pronounced unanimously in the Inner House. Moreover, notwithstanding the refusal of leave by the Inner House, appeals have been taken to the House of Lords in cases where leave was necessary, and in such cases some appeals have been sustained on the view that the interlocutor appealed against was in fact on the merits. But, broadly speaking, where the judgment sought to be appealed against would substantially dispose of the case or of any substantial part of it so that the same party could not again bring an action on the same matter, an appeal is competent without leave.
That is the current position. Since, therefore, broadly speaking, subject to the exceptions I have mentioned and to
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certain statutory exceptions, leave is not required for appeals from the Inner House, and since the decision on a devolution issue would quite commonly have the effect of determining finally the rights of the parties to the action, it seems appropriate to allow appeals from the Inner House to the Judicial Committee on devolution issues without leave. I should add that it has never been suggested in the past that the absence of a requirement of leave in appeals from the Inner House to the House of Lords has led to a surfeit of such appeals, even though legal aid is commonly available for them.
The noble and learned Viscount has also referred to paragraph 10 of the Schedule, and the requirement for an appeal to the Judicial Committee from a reference of a devolution issue to the High Court of Justiciary. That, in our view, is not a proper analogy for introducing leave in relation to the Inner House. As the Committee will appreciate, there never has hitherto been any right of appeal at all beyond the High Court of Justiciary in Scotland, so that there is no proper precedent to work from in that area. But, in view of the special status of the High Court of Justiciary as a court of final appeal, it was considered appropriate that there should be no appeal beyond it except by leave of the court itself or, failing such leave, leave of the Judicial Committee. So the analogy that has been taken is the analogy of the present practice in relation to the Inner House of the Court of Session.
Viscount DILHORNE: The noble and learned Lord has justified the requirement of leave for an appeal from the High Court of Judiciary on the ground that such an appeal is without precedent, and I quite agree. But an appeal from the Inner House, or from the superior courts of England, to the Judicial Committee is also without precedent. I was, of course, aware that an appeal from the Inner House to this House in ordinary litigation is made without leave, but that is no precedent for appeals limited to devolution issues on a reference going to the Judicial Committee, and I must say that I do not think it affords any ground for not giving the requirement of leave.
I do not know whether there are any Scots feelings about this, but I should have thought there could be no objection to

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the requirement that an appeal from the Inner House could be brought only with leave. I should have thought that it was desirable. It is true that there is not a surfeit of Scottish appeals at the present moment, but I think, from such experience as I have had, that we get some cases from Scotland for which, if they had been brought in England, leave would not have been given. However that may be, I would ask the noble and learned Lord to look at this Amendment again. I think that it would be much better if there were uniformity, and if we did not elaborate and extend appeals without leave from the Inner House. Of course, I shall not press the Amendment, for the simple reason that, as the noble and learned Lord said, it is out of order at the present time.
Lord FRASER of TULLYBELTON: I am sorry to find myself once again disagreeing with my noble and learned friend Lord Dilhorne. It may be that it is desirable to have uniformity between paragraph 9 on appeals from the Inner House, paragraph 17 on appeals from the Court of Appeal and paragraph 22 on appeals from the Northern Ireland Court of Appeal. But it has been agreed and maintained throughout, particularly by my noble and learned friend Lord Diplock, that the appeals with which this Schedule is likely to deal will be pre-dominantly Scottish appeals. Therefore, I should have thought that the pattern should be set for the Scottish practice, which is that appeals come from the Inner House of the Court of Session to the House of Lords without leave, and, if uniformity is desirable, that should set standards for the others. If not, then the present practice, which is different in Scotland from what it is in England, should prevail, and I cannot see any great objection to that.
Lord McCLUSKEY: I am indebted to the noble and learned Lord who has just spoken, but there is one other analogy in paragraph 23 of the Schedule which I ought to mention. The noble and learned Viscount will certainly have seen that, if a devolution issue comes to the House of Lords by the ordinary route and not by the reference route, it will get there without leave of the Inner House of the Court of Session. So it would be an anomalous position if there had to be leave on
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the reference route but on the ordinary route there was no leave required. That may be an argument that he will find persuasive. But I am certainly indebted to the noble and learned Lord, Lord Fraser of Tullybelton, for assisting us.
Viscount DILHORNE: If I may say one further word, I quite agree that, without leave, it would not get to the Judicial Committee; it would get to the House of Lords. But then it would need to have a decision of the House of Lords for it to go to the Judicial Committee. There would have to be leave in that respect. I do not propose to pursue this Amendment, and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendment No. 193 not moved.]
3.15 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 197:
Page 74, line 23, after ("Ireland") insert ("or any person who can show that he would he directly affected if such issue were not determined").
The noble Viscount said: I am afraid that, as it stands, this Amendment does not make very much sense. But it gives me an opportunity to ask the noble and learned Lord, Lord McCluskey, a question of which I gave him notice in my speech the other day. It seems to be a common feature of this Schedule that there are anomalies between countries, and in the case of Northern Ireland, unlike Scotland and England and Wales, there is no paragraph relating to the institution of proceedings. In Scotland, regardless of whether anybody else wishes to take a devolution issue, the Lord Advocate can, of his own accord, institute proceedings under paragraph 4; and in England and Wales the Attorney-General can do the same under paragraph 12. But nobody can do so in Northern Ireland.
I know that the Attorney-General for Northern Ireland is, in fact, the same person as the Attorney-General for England and Wales, but that does not seem to me to give him jurisdiction in Northern Ireland if the Statute does not say so, although it does say so in regard to the other countries. I wonder why this anomaly should have arisen. There must be some explanation for it. Will

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the noble and learned Lord be so very kind as to tell us?—because I simply wish to probe the matter. I beg to move.
Lord McCLUSKEY: When we looked at paragraph 4, I think that I succeeded in explaining to the few Members of the Committee who were still present at that time that Schedule 12 is really concerned with the way in which procedurally the courts should deal with devolution issues, and paragraph 4 is a rather special provision. It was really designed to ensure that if the Lord Advocate, on the one hand, as pursuer, or a Scottish Secretary, on the other, as defender, came into the kind of legislation envisaged by paragraph 4, neither of them would have to demonstrate a title and interest; it was assumed. Accordingly, paragraph 4 was really designed to allow litigation to be raised without this hurdle having to be crossed. Paragraph 12 does exactly the same for the Attorney-General in England. It means, therefore, that the United Kingdom Government can, through either the Lord Advocate in Scotland or the Attorney-General in England, bring devolution issues before the court.
There is no similar power to raise proceedings without demonstrating a title in Northern Ireland, because it is inconceivable that the Government, having the opportunity to do it in Scotland or in England—and the great majority of cases would arise in Scotland—would want to cross the Irish Sea in order, off their own bat, to raise proceedings of this kind in Belfast. The Government's practical interest in devolution issues raised in other actions is, therefore, protected by the requirement of intimation, which is contained in paragraphs 5, 13 and 19; and, of course, that requirement extends also to actions in Northern Ireland. So the simple point is that it just is not necessary for Northern Ireland. Anything that requires to be done can be done under the two paragraphs referred to for Scotland and England.
Viscount COLVILLE of CULROSS: I am sorry, but I do not follow this. I may be wrong, but what I think is likely to happen in practice is that if a piece of Scottish legislation, whether it is primary, which we discussed the other day, or secondary, comes into being and is not
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picked up by one of the sieves through which it has to go—either pre-enactment or under one of the political override powers—a situation may arise where, as a result of a set of individual facts, it appears that there is indeed a clash between the powers of the Scottish Legislature, or the Scottish Secretary, and the law of the rest of the United Kingdom, which gives rise to a question of Tires. One cannot tell where these matters of fact are going to arise.
Although the law of Northern Ireland is very similar in many respects to the law of England and Wales, it does not follow that it is similar in every respect. At the moment, for instance, we are legislating for Northern Ireland by means of Statutory Instrument. Although I have not studied them, I do not suppose that in every respect they are exactly the same as the law on this side of St. George's Channel. Is it really inconceivable that on the facts of a case in Northern Ireland and in view of the law in Northern Ireland which gives rise to a dispute, a devolution issue may appear which is not capable of being litigated either in England and Wales or in Scotland, either because there is nobody who is prepared to deal with it or because the law in those two countries does not give rise to that set of facts? I quite understand that it may not happen very often, but why is it that we go out of our way to make it impossible to do something about it in the event that it does occur?
This is one of the things that I do not understand about the Bill. I am all for economy of drafting. However, when we can make something clear by putting a few words into a vital piece of constitutional legislation, where the courts may have to consider extending the ordinary doctrines of interpretation and this kind of thing and when it is perfectly easy for Parliament to say what it intends, why do we go on refusing to do it? The Government will not put into the Bill simple, ordinary words which make things clear. I cannot see what harm it can do to give to the Attorney-General in Northern Ireland the power to institute proceedings. While he may never use those powers, may I ask about the occasion when he ought to have done so and is then debarred by our having been intransigent in refusing this Amendment, or one similar to it, which would have

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this effect? Is the noble and learned Lord unable to conceive that it would be as well to be consistent, just in case?
Lord McCLUSKEY: I can conceive almost anything, but I believe that it is very unlikely that circumstances would arise in which a declaratory type of action would be appropriate to be taken in Northern Ireland. One does not want to encumber the Bill with unnecessary provisions. One can conceive of all kinds of fantastic possibilities and legislate for them, but if one does one ends up with a Bill which is longer and much more difficult to understand. If I can find any justification for supposing that such an action might be taken, then I shall urge that the matter be altered, but at the moment I cannot see it.
Viscount COLVILLE of CULROSS: That is a generous offer. May I make one more point. The Attorney-General, acting on behalf of the public—and I am sure that the Lord Advocate does the same in Scotland—sometimes has an opportunity to put things right when the ordinary citizen, either because he cannot afford it, or because he is not sufficiently sure, or for some reason like that, or because his status is not completely sound, cannot start off the proceedings, or does not wish to start off the proceedings. It can affect quite a large number of people, either directly or indirectly. It is a safeguard for the public. As I understand it, that is what the Attorney-General thinks that it is there for, and, holding his Scottish office, I am sure that the noble and learned Lord also knows that it is there to safeguard the ordinary citizen.
I am sure that the noble and learned Lord is right in saying that this will not happen very often, but is it not right that we should make sure that the ordinary citizen has this protection, just in case? I should be grateful if the noble and learned Lord would look again at this matter—not on the basis of this Amendment but on the basis of his kind offer—and then we might be able to come back to it on another occasion. In the meantime, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendment No. 198 not moved.]
3.24 p.m.
Viscount DILHORNE Viscount DILHORNE moved Amendment No. 201:
Page 75, line 4, leave out paragraph 23.
The noble and learned Viscount said: At a late hour last Wednesday, in a very thin Committee, we had an interesting debate which began when the noble Viscount, Lord Hood, called upon my noble and learned friend Lord Diplock. The debate was on whether there should be the right of appeal on devolution issues on a reference to the Judicial Committee of the Privy Council. May I remind the Committee that my noble and learned friend pointed out that there were two channels for appeals: devolution issues on reference going to the Judicial Committee, and devolution issues arising in ordinary litigation finding their way, possibly with leave from the English and Northern Ireland courts but without leave from the Inner House, to this House, which would mean following the normal procedure.
I have no intention of trying today to revive a debate that we had last Wednesday, when the question then under discussion was decided by one vote. I suppose that I should congratulate Her Majesty's Government upon their magnificent victory when they did not have even a quorum in the Committee and when they would not have won if nobody had voted for the Amendment. That is how things happen. Whether, in the circumstances of this being a very thin Committee, we really ought to reconsider that particular matter again, bearing in mind the constitutional implications of this measure, will be a matter for consideration.
In the course of that debate there was some discussion relating to paragraph 23, which this Amendment proposes to take out of the Bill. However, as my noble and learned friend pointed out, this Amendment did not stand or fall with the Amendments then being discussed. So few Members having heard that debate, I will, if I may, just remind the Committee why some of us think that this paragraph should go. First, there is no precedent for it. There is a precedent for the Judicial Committee giving advisory opinions, but there is no precedent for it being a court of final appeal from the courts of the United Kingdom. Until we joined the European Economic Community, from those courts this House

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has always been the final court. However, paragraph 23 suggests that the situation should be altered and that the Judicial Committee should be able to have devolution issues referred to it from this House.
I want to deal quite shortly with this matter, but it seems to me to have these consequences. Let us suppose that in the ordinary course of litigation there is an appeal to this House in which a number of issues are to be decided, that one of those issues is a devolution issue and that one of the parties to the litigation thinks that it would be better to have the devolution issue referred to the Judicial Committee. If one party is of that opinion, there will have to be an application to that end to their Lordships in this House, and that application may be opposed. In that case, time is bound to be taken up in argument.
Where litigation is involved, time always means expense, and the expense may not be inconsiderable. That is bound to happen if any party wishes to have the devolution issue carved out and taken apart from the other issues in the case and referred to the Privy Council. If it is referred to the Privy Council, there will have to be a further hearing before the Privy Council. Another wheel is being attached to the coach, which must mean that more expense will be involved. Fresh briefs will certainly have to be delivered to counsel. In this respect my noble and learned friend Lord Keith of Kinkel made some very pertinent observations last Wednesday. This will certainly involve delay, and possibly considerable delay, in the final determination of the appeal. Those, as I see it shortly stated, are the consequences of the inclusion of this paragraph 23. What good purpose is this particular paragraph intended to serve? There are two possibilities. One is that it will enable a devolution issue to be argued before Lords of Appeal in Downing Street instead of here—and the Committee will remember the very amusing speech of the noble and learned Lord, Lord Hailsham, in regard to this when he painted the picture of five elderly gentlemen climbing into an ancient Daimler car to be transferred from here to Downing Street and, having finished the devolution issue, climbing into the car again to be brought
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back here to finish the case. I need not stress that. That is one possibility.
The other possible view was that put forward by the noble Lord, Lord Wedderburn of Charlton. Last Wednesday, he made a speech which I must confess I did not fully understand. In column 1138 of Hansard he said this:
"If we are setting up—and let there be no mistake that we are setting it up, [that is, the Privy Council] apart from our EEC European Court obligations—within this jurisdiction, something of the nature of an embryonic constitutional court…".
That was a rather surprising statement in relation to the Judicial Committee which has sat and dealt with constitutional questions from the Commonwealth for a very long period of time. I wonder very much whether the Commonwealth countries from which appeals come would like to have their final court of appeal referred to as an "embryonic constitutional court". The noble Lord then went on—and this is the part I found very puzzling—
"in the applications and interpretations of the law, which today are infused with policy, without detraction from the rule of law in every court in the land, and in particular in the appellate courts and in the House of Lords, that element of policy, which every noble and learned Lord who sits in the Appellate Committee knows exists, but which we lawyers sometimes dare not talk about …, will be there in a broader and more fulsome form."
When I heard the noble Lord say that, I thought that he had used the word "policy" meaning "politics", but that he indignantly denied to the noble Earl, Lord Selkirk. I could have understood his accusing—quite unjustifiably, I think—their Lordships of being actuated by their political past or any political views they might happen to have when construing a Statute or in deciding any other case. But that was not his meaning. He used the words, "are infused with policy", and he said that every noble and learned Lord who sat in the appellate chamber knew that our decisions were infused with policy.
I must confess that I do not know what he means. Certainly, in construing a Statute there is only one policy and that is to seek to give effect, if we can, to the intention of Parliament as expressed in the language used by Parliament, which is not always by any means an easy task. I do not know what the noble Lord

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meant when he said that few lawyers dared to state this policy which they know exists. I think it would have been much better if the noble Lord had had the courage to dare to say exactly what he meant so that we should have understood it. But it does not stop there. He went on to say that the Judicial Committee
"is a body which will develop and which Privy Councillors, perhaps as yet undreamt of by the noble and learned Lord, Lord Diplock, might well attend and which will, perhaps in the year 2000, produce a better constitutional court."
If I may repeat, it would be infused with a broader and more fulsome form of policy.
I do not myself feel that I am capable of assessing this argument as it should be assessed because I do not know what the noble Lord, Lord Wedderburn, means about judges being infused with policy, or means by urging that they should be infused with policy in a broader and more fulsome form. It might be taken to mean that he is in favour of some form of selection of people to try particular issues. I could understand if that was a view accepted by the Government. It might be an argument for this particular paragraph, but it is not the view of the Government. It has not been accepted by them.
Paragraph 23 purports to give the House of Lords in its judicial capacity a discretion. Some will ask, "What is the harm in giving this House a discretion as to whether it will hear a devolution issue here or the same people will hear it in Downing Street?" The harm, as I see it, is that it is bound to involve more expense and more time in litigation to the ordinary litigant. I do not believe that it will serve the slightest useful purpose. The harm, too, is that it will appear to make this final court of appeal in this country from the courts of this country not a final court but a judicial committee which does not form any part of the system of courts of this countrty on these particular issues arising in ordinary litigation. I think it would be much better if this paragraph were left out. I beg to move.
3.37 p.m.
Lord WEDDERBURN of CHARLTON: The noble and learned Viscount was gracious enough to give me notice of the fact that he was going to advert to my comments made in your Lordships'
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Committee last Wednesday. He has done so, and I apprehend from the way in which he has done so that I must have made myself astonishingly unclear to the noble and learned Viscount, although it appears that some persons were prepared to go through the lobby with me even so. I should like to clear up the misapprehensions on the part of the noble and learned Viscount and reform the inadequacy of my expression so that I can do rather better than a beta minus.
Paragraph 23 of the Schedule is not entirely to my liking, in exactly the opposite way to the noble and learned Viscount. I said last Wednesday night that I believed that, if we were going to have a constitutional court—and of course the noble and learned Viscount would understand that I mean a constitutional court within this jurisdiction of the United Kingdom (I do understand that the Judicial Committee of the Privy Council has acted as a constitutional court for the Commonwealth in other respects)—then I would prefer that any litigant coming into paragraph 23 through the route that the noble and learned Viscount has explained should have the right to go to the new constitutional court. I shall say why a little later and explain again some of the points which I failed to make clear at 11 o'clock last Wednesday evening.
The major point on which the noble and learned Viscount criticises me is one which I must admit I find utterly astonishing. The issue is one which divided me from the noble and learned Lord, Lord Diplock, last Wednesday when the noble and learned Lord, Lord Diplock, said that the issues that are coming through what the noble and learned Lord, Lord Fraser of Tullybelton, was good enough to agree with me was, within our jurisdiction, an embryonic constitutional court, would be issues of pure law. I said that in the appellate courts every lawyer knew that most documents were not judgments of pure law in the sense that the noble and learned Lord meant; that they had an infusion of policy.
I understand quite well from what he has said that the noble and learned Viscount, Lord Dilhorne, will not accept my judgment upon that, but perhaps he will accept a lecture—or part of it—by the noble and learned Lord, Lord Devlin, published in the Modern Law Review

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for 1976 at page 1. It is headed "Judges and Law Makers". It reads:
"First, law making. I am not one of those who believe that the only function of the law is to preserve the status quo. Rather I should say that law is the gatekeeper of the status quo. There is always a host of new ideas galloping around the outskirts of a society's thought. All of them seek admission but each must first win its spurs; the law at first resists, but will submit to a conqueror and become his servant. In a changing society (and free societies that are composed of two or more generations are always changing because it is their nature to do so) the law acts as a valve. New policies must gather strength before they can force an entry: when they are admitted and absorbed into the consensus, the legal system should expand to hold them, as also it should contract to squeeze out old policies which have lost the consensus they once obtained."
Lord Devlin goes on to an analysis—with which, with respect, I do not entirely agree—as to how this matter comes about in the judgment of the judges. Persons have used words about this matter which I chose not to use. The noble and learned Viscount is quite right; I chose not to use the word, "politics", because I do not think that is a very accurate sociological or psychological description. But if he would look at a hook recently published by my colleague Professor Griffith of the London School of Economics (with much of which I do not agree, but with some of which I do) Professor Griffith concluded—and I quote this in order to quote again from Lord Devlin:
"As we have seen, there are innumerable ways—through the development of the common law, the interpretation of statutes, the refusal to use discretionary powers, the claims to residual jurisdiction and the rest—in which the judges can fulfil their political function and do so in the name of the law".
I do not choose to use the term, "political function"; I choose to use the words, "policy function". There is a real difference. Nor do I choose to use the words that Lord Devlin has chosen to use in reviewing that very book because in a review which is about to appear Lord Devlin says—and I think this is pertinent to what has been said in the Chamber this afternoon:
"The judge who is confident that he has no prejudices at all is almost certain to be a bad judge. Prejudice cannot be exorcised, but like a weakness of the flesh it can be subdued. But it has first to be detected. This is the great value of the book."—
that is Professor Griffith's book—
"It presents the judiciary with its portrait as seen by some of its critics. It is a skilful presentation, moderate and friendly and a pleasure to
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read. If only on the principle of audi alteram partem judges should read it".
I am sure that the noble and learned Viscount has already done so.
If Lord Devlin gives forth today opinions of that kind about what he calls in some cases "policies" and what others use slightly different words about in perhaps a slightly different context but in the same area, I know of no scholar in the field of jurisprudence—I know of no first-year student—who would discuss the question of whether policy infuses judgment with appellate tribunals; the question is the weight, the method, the manner and reason for the inclusion or exclusion of certain policies at certain times. That is as true of the interpretation of Statute or Statutory Instruments as it is of the common law. Of course I agree with the noble and learned Viscount that the courts attempt to find the intention of Parliament, but having sat in your Lordships' House for just a short time I can well understand how difficult it is for anyone to discover the intention of Parliament, being faced with the hare words of the Statute.
Who could really believe that Lord Atkin, perhaps one of the greatest masters of common law between 1930 and 1945, gave vent to no policies in his judgments, be it in developing the common law interpretation of Statutes or challenging the Executive in the midst of the war in Liversidge v. Anderson. How then is this disagreement between myself and the noble and learned Viscount relevant to the issue of paragraph 23? I said last Wednesday that I would support the compromise which the Government have put forward in paragarph 23; that is, that the matter should go to the Judicial Committee as the constitutional court, as it were, and unless the House of Lords decided otherwise I would prefer not to have the rider. But the real point is that it should, if possible, get to the Judicial Committee of the Privy Council.
Why so, if, as the noble and learned Viscount has pointed out today, the personnel of the two courts are much the same—the noble and learned Law Lords and the Lord Chancellor and ex-Lord Chancellor? Because that is true at the moment, it has not always been so. Indeed, it need not be so and I should have said last Wednesday to your Lordships that I wish to take examples from

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which I doubt whether the noble and learned Viscount, Lord Dilhorne, would wish to dissent. One of the greatest common law judges in the world happened to have both an academic and a professional background, and I apprehend also that he is a Privy Councillor to Her Majesty. I speak of Chief Justice Bora Laskin from the Canadian Supreme Court. I should have thought that those who sit in the Privy Council, were he available, would obtain the greatest possible assistance from someone of that kind in dealing with matters, federal and quasi-federal, which are bound to arise under this Bill, and of which lawyers in this country, including, with respect, most judges, have very little cognizance and experience.
I could speak of other great Commonwealth judges, but I should like to add that it may be—and last Wednesday night I spoke of the year 2000—that Privy Councillors, who are expert in government and would not normally find their way to the Bench, perhaps by the year 2000 would be found appropriate to add to what must be a developing and supple constitutional tribunal. It was that prospect which led me with some reluctance to speak in favour of the Judicial Committee remaining in the Schedule and against the idea that the House of Lords Appellate Committee should be inserted in its place.
If I may detain the Committee for one moment, I noticed that one of the arguments used by the noble and learned Viscount was that there was no precedent for what was being done. I was reminded of Professor Cornford's "Microcosmographia academica" in which your Lordships will remember the doctrine of the dangerous precedent. Professor Cornford said that it meant that you must not do something right or just today, for fear that your successors will do more things that are right and just tomorrow, and that it followed that nothing should ever be done for the first time. The fact that it is a precedent is surely no objection at all. As to the fact that there will be expense and delay, proceedings in the House of Lords Appellate Committee are sufficiently expensive and not always undilatory.
Paragraph 25 of the Schedule allows for Rules of Court to be made for appeals
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to the Judicial Committee of the Privy Council which I trust would be much more speedy than the proceedings before the Appellate Committee of this House. As for expense, new briefs would have to be given to counsel. It only needs the noble and learned Viscount and his other friends on the House of Lords Appellate Committee to say that there should not be new briefs and there should not he extra expense, and the profession to which I have the honour to belong I am sure would respond with alacrity.
I will end by saying that for me this is something of a test case, because before I came to your Lordships' House I was told that the matter would be judged according to the arguments and that issues of this kind were not Party issues. I hope and trust that that is correct. I hope it is not a Party issue. I should be as happy to speak from the Cross-Benches today as from any other part of your Lordships' Committee. I hope that the noble and learned Viscount, Lord Dilhorne, will not divide the Committee on this issue, which is in effect the opening matter which was decided on Amendment No. 188, and if he does I beg noble Lords to support the Schedule as it stands.
3.49 p.m.
Lord DIPLOCK: I propose to speak on the Amendment which stands in the name of the noble and learned Viscount, Lord Dilhorne, and myself. I do not propose to go over the same ground as we went over last Wednesday, save perhaps to say that it appears that the noble Lord, Lord Wedderburn of Charlton, wishes to have the Privy Council in the expectation that he will find that it will be possible to appoint to that body judges who have different views on policy from the existing Law Lords. May I say that Chief Justice Bora Lasking in Canada, with whom I spent the best part of a week last month, would be an ornament and an acquisition to any court in any jurisdiction, but he does not happen to be a Privy Counsellor. He is a Privy Counsellor of Canada but not qualified to sit upon the Judicial Committee. I should have thought—the noble Lord on the Woolsack will correct me if I am wrong—that it was practically impossible for him to sit upon that body. I should be only too happy if he did.

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May I turn to this particular Amendment? The real objection to paragraph 23 is not the absurdity of the five old gentlemen getting into their Daimler, going to Downing Street and coming back again. What this paragraph does is to place upon the House of Lords the duty, in every case in which a devolution issue is involved and comes before them, to decide whether or not it ought to be referred to the Privy Council, and this is a duty upon the House of Lords whether the parties apply for it or not. When the Bill was considered in its original form it became necessary to consider what procedure would be necessary in the Judicial Committee of this House in order to carry out the requirements of paragraph 23. When one looked at the procedure the real objection to this paragraph became evident, and it was that it is inevitable in every case which comes to the House of Lords by the ordinary route and in which there is a devolution issue that delay and expense must result.
Cases reach the House of Lords in two ways: either without leave of the House itself—that is, when they come from Scotland, from the Inner House of the Court of Session, where no leave is needed, and when they come from the Court of Appeal in England or the Court of Appeal in Ireland with the leave of the Court of Appeal; the leave of the House then becomes unnecessary. The other way in which they reach the House of Lords is where, leave having been refused by the Court of Appeal in England or Northern Ireland, there is a Petition for leave to appeal to the House itself; the House grants or refuses it. Any case which comes to the House of Lords by the ordinary route is likely to involve issues other than devolution issues, because if that is the only matter in the case presumably it will come by reference the other way.
Let me take the first case, where it comes to the House of Lords without the need for leave from the House of Lords, because it comes either from Scotland or from the Court of Appeal in England or in Northern Ireland which has given leave. The first the Judicial Committee see of that case is when the parties' printed cases setting out the issues and their arguments are lodged. A pre-
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liminary hearing would then be necessary in order to decide whether the devolution issue in the case ought to be referred to the Judicial Committee or not. That inevitably means that a hearing, argument, counsel and solicitors are involved.
But, of course, the matter does not end there. If it is then decided, as a result of that hearing, that the devolution issue should be referred to the Privy Council, then there must be a separate hearing of the devolution issue before a different body, the Privy Council, with briefs to counsel and all the expense and delay that that involves. And that does not end the matter because, the reference having been decided by the Privy Council, back it has to come to the House of Lords for the hearing of the other issues. That again means briefs, fees, counsel and delay. Or it may be that the two hearings are the other way round: the House of Lords first considers the other issues and then refers the devolution issue to the Privy Council. So here we have in the first case, where it comes to the House of Lords without leave, three hearings, three briefs, and all the additional delay that that involves, in place of the one hearing and the one brief which there is under the existing procedure.
The alternative is that the House of Lords decide that there should not be a reference of the devolution issue. What happens there is that there would be two hearings instead of one, first the hearing as to whether there should be a reference and then the hearing which would have taken place anyway. So far as the parties have any influence on what the court will do, it is in their interest to opt for no reference, but the House of Lords has to consider whether or not it would be more appropriate to disregard the wishes of the parties.
Let me take the second case, where it comes to the House of Lords first upon a Petition for leave to appeal because the Court of Appeal in England or Northern Ireland has refused. The question whether there should be a reference cannot be decided upon the ordinary Petition for leave to appeal; that is normally a short hearing, which takes ten minutes or so. The question of reference must be deferred until the cases of the parties are lodged, or else documents similar to the cases of the parties are lodged, because it is not

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possible to decide the question whether there should be a reference or not until the parties have been given an opportunity to develop their arguments in favour or against a reference in the light of the facts of the case. Then you get the same procedure as in the first case; you will have again either two hearings if no reference is made, or three hearings if a reference is made. Let us be practical about this matter. What is the reason for placing on the parties to litigation, who will be, for the most part, ordinary private parties, the burden, the expense and the delay of extra hearings—one extra hearing is inevitable—when nothing is to be gained by it, unless the purpose is that it should be an entirely different body with different views of policy which hears references in the Privy Council?
4.1 p.m.
Lord FRASER of TULLYBELTON: Last week my noble and learned friend Lord Diplock moved Amendment No. 188, which was the Amendment to substitute the House of Lords for the Judicial Committee of the Privy Council in appeals on references. As the noble and learned Viscount, Lord Dilhorne, said a moment ago, that Amendment was unsuccessful. When the noble and learned Lord, Lord Diplock, moved the Amendment, he referred to Amendment No. 188 and said that there were several other Amendments which went with it—Amendments No. 190, No. 192 and so on—and those Amendments have been deleted. Then he said:
"Amendment No. 201"—
which is the one with which we are now concerned—
"is also closely connected and I would suggest should be discussed at the same time, but it does not necessarily stand or fall with the others".
I took him at his word and made a few remarks about the Amendment, and I must now try to avoid repeating myself. However, I cannot help feeling that there is a touch of "the last ditch" about the Amendment. Having been defeated on the House of Lords against the Judicial Committee issue when it was squarely raised, this seems to me to be an attempt to retain some vestiges of employment for the House of Lords in this area of litigation in case it might otherwise he entirely unemployed. That may not be an entirely fair inference to draw, but it seems to
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emerge from the way in which the matter has been dealt with.
I should have thought that, having agreed or decided that the Judicial Committee is to be the body, then paragraph 23 could have been left as it is. I should like to remind your Lordships of our present position. It has now been decided or agreed that the Judicial Committee is to be the body which gives pre-enactment advice. It has also been decided that for decisions on post-enactment devolution issues, if the matter arises either on a reference to the High Court of Justiciary or on a special kind of new appeal from the Nigh Court of Justiciary, it shall go, under paragraph 10, to the Judicial Committee. It has also been decided under paragraph 9 that, if the matter arises on a reference from a lower court to the Inner House of the Court of Session, any further appeal shall be to the Judicial Committee.
The only remaining variety of appeal left is an appeal in the ordinary course of litigation from the Inner House to the House of Lords. Paragraph 23 deals with that one outstanding class of litigation and provides, admittedly in a slightly awkward way but to my knowledge no one has suggested a better way, that the appeal shall come to the House of Lords, which must then consider and remit it to the Judicial Committee on the devolution issue unless satisfied that that would be inconvenient. When one looks at the matter in that context, it seems to me that it is a little absurd to try to preserve this kind of litigation for decision by the House of Lords alone without the possibility of it being sent to the Judicial Committee which is dealing with devolution issues in all other circumstances in which such issues can arise. Only in this one circumstance is the matter to be retained irretrievably in the House of Lords.
It was said by the noble and learned Viscount, Lord Dilhorne, in moving the Amendment that, if parties disagree as to whether the matter should be remitted by the House of Lords to the Judicial Committee, there would have to be a hearing before the House of Lords on that matter. However, if I understood my noble and learned friend Lord Diplock correctly, he said that in every case there would have to be a hearing on that matter. I should

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have thought that if the parties were agreed it would probably not be necessary to have a hearing, because if both parties included in their cases a statement that there was a devolution issue and they both wished it to be heard either by the House of Lords or by the Judicial Committee, then that would probably be conclusive. It may be that that is not always so, but certainly in many cases I should have thought that it would be. There might sometimes have to be an argument about the matter here.
On the other hand, if the Amendment were carried, the result would be that once an appeal came to the House of Lords it would inevitably remain here and could not be transferred to the Judicial Committee. I think that one of the results of that would be that if the parties disagreed about what they wanted then the argument about procedure, instead of taking place here, would take place lower down in the hierarchy of courts. One party would say that it wanted to get the matter ultimately to the Judicial Committee and therefore it would press the sheriff—if it arose in the sheriff court or the Outer House of the Court of Session—to refer the matter to the Inner House so that if there were a further appeal it could go to the Judicial Committee. The other party would say: "No, it is much better left to be dealt with at the end of the case as part of the general decision", and it would get a straight appeal to the Inner House and then on to the House of Lords, with no possibility of its going to the Judicial Committee. So, we would have exactly the same sort of argument there at an earlier stage, and happening, I suppose, more often because a good many cases which look as if they will be the subject of an appeal fade out for one reason or another.
I do not think that the argument based on the possibility of a special hearing in the House of Lords is a very strong one; it would simply be pushed back down the scale a bit. For all those reasons I submit that the proper course is to leave paragraph 23 standing; it seems to me to be the best way of reconciling the various interests concerned.
Lord WILBERFORCE: Are we not making rather heavy weather of this matter? It does not seem to me a very
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difficult problem if looked at on a practical basis. The consequences of removing paragraph 23 are worse than those of leaving it in. In addition to the arguments urged by my noble and learned friend Lord Fraser of Tulleybelton, if one takes out paragraph 23 one would find certain cases going to the House of Lords for final decision on a devolution issue and others going to the Judicial Committee of the Privy Council. Who yields to whom? We cannot have two Supreme Courts dealing with devolution issues within the same framework.
Of course, the Committee was warned of this a long time ago, when I pointed out during a previous debate the difficulties inherent in either conception—the Judicial Committee as the final arbiter or the House of Lords. I then urged the Committee to accept a specially set up constitutional instrument to decide these matters. The Committee is now coming round rather slowly to the idea that perhaps that will be a constitutional court after all—a constitutional court for the United Kingdom, not for anything else. However, the idea has not yet quite germinated.
All the imaginary difficulties which have been so nightmarishly painted by my noble and learned friend Lord Diplock as regards multiple fees, multiple briefs, solicitors, counsel and so on, are surely taken care of by the words in paragraph 23:
"unless the House considers it more appropriate, having regard to all the circumstances, that they should determine the issue".
Under paragraph 23 there is an obligation to refer to the Judicial Committee. It is mandatory unless they can find some reason for holding it where they are. If there is a case of the devolution issue being one among many issues, all the others being House of Lords' issues, then, of course, the saving words would be applied and it will be retained in the House of Lords.
I do not believe that there is the least difficulty about this matter. I do not think that the situation is ideal, because the Committee has taken the wrong course in referring the matter to the Judicial Committee. Having made that decision it seems to me that it would be very much worse to delete the paragraph and create a duality of the House of Lords and Judicial Committee than to accept

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the clause as it stands. I am in favour of retaining paragraph 23.
4.9 p.m.
The LORD CHANCELLOR: In a sense this debate is a replay of a debate which we had earlier, and it is none the less interesting for that reason, particularly in the light of the general difference of view upon broad matters which has been expressed characteristically by noble and learned Lords, a difference of view which has enlightened our proceedings throughout the discussions of the Scotland devolution Bill, yet once again demonstrating the many sidedness of truth. The difference that was manifested between the noble and learned Viscount, Lord Dilhorne, and my noble friend Lord Wedderburn highlighted the beginning of the debate. I hope that the noble and learned Viscount, Lord Dilhorne, will forgive me if I say that I think he approached the debate with rather excessive severity. That my noble friend should be suspected of lack of courage came surprisingly from the noble and learned Viscount, whose avoidance of such personal suggestions has usually been characteristic of his contributions. On reflection, having heard the ready willingness of my noble friend to adumbrate his reasons, I am sure that the noble and learned Viscount, will be disposed to think again about the suggestion of lack of courage.
But, after all, it has been admitted throughout our debates that important constitutional matters fall to be discussed and considered here. We are embarked upon very serious and grave constitutional changes as a result of this Bill. It was not my noble friend Lord Wedderburn who spoke of the Privy Council being a kind of embryonic constitutional court—those words fell from the noble and learned Lord, Lord Fraser of Tullybelton.
Clearly, we are at the beginning of a new phase in our constitutional relationships. The law is a sort of bubbling vat, and this new element has been added to the effect of entry into the European Economic Community as one factor pointing to important future constitutional changes. Then we have the changes that we made recently with regard to direct elections to the European Parliament. Therefore, we are going through a phase
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of great constitutional change and it has seemed appropriate that in the context of the devolution Bill the Judicial Committee of the Privy Council, which has been a great constitutional court for the Commonwealth throughout its existence, should be the appropriate court for dealing with devolution issues arising from the Bill.
As I have said, we discussed paragraph 23 on a previous occasion, and I am reinforced by the views that have just been expressed by the noble and learned Lord, Lord Fraser of Tullybelton, as to the merits of the matter. We gave this very careful thought in the preparation of the Bill. It seemed to us that the flexible solution in paragraph 23 was best; that:
"if a devolution issue arises in judicial proceedings in the House of Lords",
the Appellate Committee will have the discretion—depending upon the circumstances of the case, the application and the willingness of the parties and the cost issues involved—to decide where the matter should be finally adjudicated, whether by the House itself or by the Judicial Committee. My noble friend Lord Wedderburn thought that that was a compromise. However, he voted for it in the end, and no doubt he will desire to maintain consistency in that respect if this matter is put to the vote. I greatly hope it will not be.
I invite the noble and learned Viscount, Lord Dilhorne, to consider carefully what has been said—I am not inviting him to consider carefully what I have said, but I am sure he will do me that courtesy. But I should have thought that the brief, succinct words of the noble and learned Lord, Lord Wilberforce, indicate that we have been over this ground many times before. To cut out paragraph 23 now would be to create the worst of all worlds.
Viscount DILHORNE: In moving this Amendment I said that I did not wish to revive the debate which we had last Wednesday night, and I avoided doing anything more except to remind the Committee of the subject of the two channels for appeal, which is relevant to this particular question. The noble and learned Lord, Lord Fraser of Tullybelton, is right; at the commencement of his speech my noble and learned friend Lord Diplock said that this Amendment dealing

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with paragraph 23 was related to the matter then under discussion and naturally, being related to it, something was said about it. But we were not debating it then, and I thought that my noble and learned friend made it clear to the Committee that no decision was being taken on this Amendment on that occasion.
Therefore, I do not think that the noble and learned Lord, Lord Fraser of Tullybelton, was entirely justified in some of his criticisms of the moving of this Amendment on this occasion. I must say "Thank you" to the noble Lord, Lord Wedderburn, for having made clear on this occasion what he certainly had not made clear to me When he spoke last Wednesday night. He based his observations on policy on a lecture given by my noble and learned friend Lord Devlin. But what puzzles me, if he was basing himself on a lecture given by Lord Devlin, is why he should have said last Wednesday that policy considerations were something which lawyers dare not talk about. One always talks about the lectures of my noble and learned friend Lord Devlin. When I suggested that it was a pity that the noble Lord, Lord Wedderburn, did not have the courage to make clear what he meant, I meant that I hoped that in future he would not shrink from saying what he thought some lawyers might dare not talk about. He then spoke about judges who have prejudices. A judge who has prejudices is almost always likely to be a bad judge.
Then he referred to his observation about Privy Counsellors as yet undreamt of sitting on the Judicial Committee of the Privy Council. When he said that, I never dreamt that he was referring to the Chief Justice of Canada. It was during my time as Lord Chancellor that the practice was introduced of inviting distinguished judges from the Commonwealth to sit as Privy Counsellors on the Judicial Committee. I think it has worked extremely well and that we are all grateful for the assistance that they have given and are giving. I never thought that when the noble Lord, Lord Wedderburn, made those observations he was referring to that matter or anything like it. I shall say no more about that.
My noble and learned friend Lord Wilberforce has taken the view—and I
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think that he is right—that if there is a reference to the House of Lords it must always be mandatory for the House to refer a devolution issue to the Judicial Committee unless this House thinks that other considerations prevail. That being so, I do not think that he is agreeing with the noble and learned Lord, Lord Fraser of Tullybelton, who said that if the parties agreed beforehand it could automatically go to the Judicial Committee and there would be no need for a further hearing and further expense. It is largely on account of that that I regard this whole duplicated procedure as being unsatisfactory.
The argument put forward by the noble and learned Lord, Lord Wilberforce, came to this: which will have the final decision—the Judicial Committee or the House of Lords? Until now a decision of the House of Lords has been binding on all inferior courts; a decision of the Judicial Committee has not, and a decision of the Judicial Committee has not been binding on this House. At present I see nothing in this Bill to say that a decision of the Judicial Committee shall be binding on inferior courts. Therefore, one may well ask which would be the final decision?
I am in a difficulty about this. I do not share the opinion of my noble and learned friend Lord Wilberforce in thinking that this is an unimportant Amendment. If the Bill is left as it is, I think it may give rise to considerable difficulties and perplexities. I have not had the advantage of hearing anything said on behalf of the Conservative Party on this matter, or indeed from anyone who is not a lawyer. I really do not know what the views of the Committee are upon this. The noble and learned Lord the Lord Chancellor has pressed me not to divide on it. I am not sure that I understand quite why, except that he does not agree with the views put forward. I am inclined to test the matter in a Division, and of course abide by the Division.
4.22 p.m.
On Question, Whether the said Amendment (No. 201) shall be agreed to?
Their Lordships divided: Contents, 94; Non-Contents, 107.

CONTENTS

Alexander of Tunis, E.

Forbes, L.

Northchurch, B.

Amory, V.

Fortescue, E.

Nugent of Guildford, L.

Auckland, L.

Fraser of Kilmorack, L.

O'Hagan, L.

Avon, E.

Gage, V.

Orr-Ewing, L.

Baker, L.

Gray, L.

Porritt, L.

Berkeley, B.

Greenway, L.

Rankeillour, L.

Bessborough, E.

Gridley, L.

Rawlinson of Ewell, L.

Birdwood, L.

Hatherton, L.

Romney, E.

Braye, L.

Henley, L.

Ruthven of Freeland, Ly.

Cathcart, E.

Ilchester, E.

St. Aldwyn, E.

Chelwood, L.

Inglewood, L.

St. Davids, V.

Clitheroe, L.

Kilmany, L.

Saint Oswald, L.

Cockfield, L.

Kinloss, Ly.

Sandford, L.

Cottesloe, L.

Kinnaird, L.

Sandys, L.

Craigavon, V.

Kinross, L.

Selkirk, E.

Cranbrook, E.

Linlithgow, M.

Sempill, Ly.

Crathorne, L.

Long, V.

Sligo, M.

Cullen of Ashbourne, L.

Loudoun, C.

Somers, L.

De Freyne, L.

Lucas of Chilworth, L.

Spens, L.

Denham, L.

Lyell, L.

Strathclyde, L.

Derwent, L.

Macpherson of Drumochter, L.

Tenby, V.

Dilhorne, V. [Teller.]

Manchester, D.

Teviot, L.

Diplock, L. [Teller.]

Mancroft, L.

Torphichen, L.

Drumalbyn, L.

Margadale, L.

Trefgarne, L.

Dundee, E.

Marley, L.

Trenchard, V.

Eccles, V.

Massereene and Ferrard, V.

Tweeddale, M.

Effingham, E.

Monckton of Brenchley, V.

Vivian, L.

Ellenborough, L.

Monson, L.

Waldegrave, E.

Elliot of Harwood, B.

Montgomery of Alamein, V.

Ward of North Tyneside, B.

Elton, L.

Morris, L.

Wilson of Langside, L.

Emmet of Amberley, B.

Mowbray and Stourton, L.

Faithfull, B.

Newall, L.

NOT-CONTENTS

Aberdeen and Temair, M.

Evans of Hungershall, L.

Mottistone, L.

Adeane, L.

Fraser of Tullybelton, L.

Oram, L.

Ailesbury, M.

Fulton, L.

Paget of Northampton, L.

Airedale, L.

Gaitskell, B.

Perth, E.

Allen of Abbeydale, L.

Gardiner, L.

Platt, L.

Ampthill, L.

George-Brown, L.

Ponsonby of Shulbrede, L.

Amulree, L.

Gordon-Walker, L.

Ritchie-Calder, L.

Aylestone, L.

Goronwy-Roberts, L.

Rochester, L.

Bacon, B.

Greenwood of Rossendale, L.

Sainsbury, L.

Balogh, L.

Grey, E.

Samuel, V.

Banks, L.

Hale, L.

Scarman, L.

Beaumont of Whitley, L.

Hamnett, L.

Segal, L.

Birk, B.

Hampton, L.

Shinwell, L.

Blyton, L.

Harris of Greenwich, L.

Simon, V.

Brimelow, L.

Hatch of Lusby, L.

Soper, L.

Brockway, L.

Hood, V.

Stamp, L.

Brookeborough, V.

Hughes, L.

Stedman, B.

Bruce of Donington, L.

Hylton, L.

Stewart of Alvechurch, B.

Buckinghamshire, E.

Hylton-Foster, B.

Stone, L.

Byers, L.

Jacques, L.

Strabolgi, L. [Teller.]

Caccia, L.

Janner, L.

Tanlaw, L.

Castle, L.

Kilmarnock, L.

Taylor of Gryfe, L.

Champion, L.

Kirkhill, L.

Taylor of Mansfield, L.

Chitnis, L.

Leatherland, L.

Vickers, B.

Clancarty, E.

Lee of Newton, L.

Wallace of Coslany, L.

Clifford of Chudleigh, L.

Listowel, E.

Walston, L.

Clwyd, L.

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

Wedderburn of Charlton, L.

Collison, L.

Wells-Pestell, L.

Cooper of Stockton Heath, L.

Longford, E.

Wigg, L.

Cork and Orrery, E.

McCarthy, L.

Wilberforce, L.

Darling of Hillsborough, L.

McCluskey, L.

Williamson, L.

Davies of Leek, L.

Mackie of Benshie, L.

Willis, L.

Donaldson of Kingsbridge, L.

Maelor, L.

Wilson of High Wray, L.

Dowding, L.

Merrivale, L.

Winterbottom, L.

Elles, B.

Morris of Borth-y-Gest, L.

Wynne-Jones, L.

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

Morris of Grasmere, L.

Young of Dartington, L.

4.31 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 202:
Page 75, line 7, at end insert—
("Status of decisions of the Judicial Committee
23A. A decision of the Judicial Committee under paragraphs 9, 17, 22 and 23 of this Schedule shall be binding on all courts in England and Wales, Scotland and Northern Ireland.").
The noble Viscount said: That matter having been twice decided—or decided one and a half times, according to which view one takes as to whether it was the same point as we discussed last Wednesday—we have now got to the situation where the Judicial Committee will always make the final decision except where, under paragraph 23, the House of Lords on an ordinary appeal decides that it is not appropriate to send the devolution matter to the Privy Council. In those circumstances there arises exactly the point which was mentioned by the noble and learned Viscount, Lord Dilhorne, as to the status of the decisions of the Judicial Committee of the Privy Council in relation to other courts, including this House sitting in its judicial capacity.
It is a very short point to describe. I do not think it has hitherto arisen directly—except, I suppose, possibly under the legislation which set up the Northern Ireland Parliament—because the Judicial Committee is almost never involved in direct domestic litigation in this country. But now it will be and the question is whether its decisions will be binding on inferior courts; indeed, will its decisions be binding on the different courts in the different parts of the United Kingdom? It would seem to me to be essential that they should be, but there is nothing in the Bill; there is no rule of interpretation which says so in the ordinary currency of legal practice at present, and therefore the matter will be unresolved until such time as the courts make their own new rules.
It is the latter to which I object. I quite see that the courts will make their own new rules and that in due course a doctrine will arise, but what of the expense to the private litigant in the course of reaching that doctrine? That is what worries me. Why, for the sake of a few words in the Bill, should a number of litigants in different parts of the United
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Kingdom have to run test cases, very likely at their expense, before the courts finally come to a decided opinion on what they are to do with the decisions of the Judicial Committee of the Privy Council? It is to clear all this up that I suggest the new short paragraph as proposed in the Amendment.
The LORD CHANCELLOR: To some extent, at any rate, we considered this matter on an earlier occasion, in relation to Clause 19, and I undertook then, and I repeat it now, to consider the important matter that had been raised as to the circumstances in which decisions of the Judicial Committee should have final and binding effect. We have done a good deal of work on that matter and I hope that when I show the proposed Amendment to the noble and learned Viscount, Lord Dilhorne, to whom I have given promises about this, I shall also show what we have in mind by way of a general provision in Clause 19 which will cover both ends of the story, both the pre-assent and the post-assent procedures. I hope that in the light of that undertaking and the promise early action in this field, the noble Viscount will not feel disposed to press the matter further.
Viscount COLVILLE of CULROSS: I am grateful to the noble and learned Lord the Lord Chancellor. I am not at the moment persuaded that Clause 19 is necessarily the right place for both ends of the spectrum, but so long as it is in the Bill somewhere I shall be happy to look at his draft in due course. Pending the arrival of that valuable document, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.36 p.m.
Viscount DILHORNE Viscount DILHORNE moved Amendment No. 203:
Page 75, line 18, leave out paragraph 25.
The noble and learned Viscount said: This Amendment was tabled originally as a consequential Amendment, but it has attracted the support of my noble and learned friends Lord Wilberforce and Lord Scarman and now I want to ask the noble and learned Lord the Lord Chancellor only one question with regard to it: is paragraph 25 really necessary and cannot the Judicial Committee themselves draft

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and make rules for the hearing of references? It would seem that if they could, or if they were given a rule-making power if they do not have it already, that would be more desirable than having to go through all the business of Orders in Council.
I say that because it seems that if the Judicial Committee has or was given that power, it would be capable of use with a great deal more flexibility than would follow if the rules always had to be laid down by Order in Council. The point is a short and simple one. I would ask the noble and learned Lord to look at that in any event, because it seems that it would be convenient if the Judicial Committee were entrusted with the rule-making power and did not have to secure an Order in Council for any change of rules.
The LORD CHANCELLOR: The purpose of paragraph 25 is to ensure that whatever rules are made for regulating the procedures to proceedings before the Judicial Committee under Schedule 12 are published by Order in Council. Such Orders are published as Statutory Instruments and it is felt that they would be more readily available to practitioners and others in Scotland than the alternative of practice directions or rules issued by the Committee. It seems to me that as noble Lords have decided to retain the making of references or appeals to the Judicial Committee under the Schedule, it is appropriate to retain paragraph 25. It is a matter of convenience and, as the noble and learned Viscount indicated, there is no great issue of principle here. However, there are precedents for dealing with it in this way. This is thought to be the best means of publicity for and availability of what is being proposed.
Viscount DILHORNE: What the noble and learned Lord the Lord Chancellor said convinces me that it should be by Order in Council, merely to secure that the rules are readily available in all parts of the United Kingdom. My only concern was lest that should be less flexible than the Judicial Committee's having power to make rules from time to time to deal with situations as they occur, rather than to have the delay which sometimes takes place in drafting satisfactory Statutory Instruments. In the hope that that will not take place in regard to these
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rules, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.39 p.m.
On Question, Whether Schedule 12 shall be the twelfth Schedule to the Bill?
Lord MORRIS of BORTH-Y-GEST: At this stage I will not detain your Lordships for more than a moment or two. As the Committee parts with Schedule 12, I wish to give expression to one regret and to one hope. The regret is that which I voiced earlier, namely, that there should be post-enactment review at all. I do not know whether Her Majesty's Government have finally made up their mind on this matter. It was debated in your Lordships' House and there was no Division, and it may be that the Government think it necessary to have post-enactment review. It would be something quite new within these islands. It strikes me as rather incongruous in these islands that if Ministers have gone to Her Majesty, and asked her to give Royal Assent, and have thereby implicitly advised Her Majesty that the measure was intra vires, it might be held at a later date that that was all wrong, that the measure was ultra vires, and that that which Her Majesty had done was in vain.
I am not unaware of what may happen in other countries—Canada or Australia—but do we really need it in these islands? Your Lordships have devoted many hours listening with great care to very learned discussions in the debate on Schedule 12. May I remind your Lordships that four pages of the Bill are taken up in regard to Schedule 12. The result is that if there is a devolution issue of the nature that a measure has been passed which was ultra vires, then seven separate judicial bodies may be called upon to decide that question.
May I remind your Lordships what the seven are. The issue may have to be decided by the Inner House of the Court of Session. It may have to be decided by the High Court of Judiciary. It may have to be decided by the Court of Appeal in England. It may have to be decided by the High Court in England. It may have to be decided by the Court of Appeal of Northern Ireland. It may have to be decided in the House of Lords, and of

167
course it may have to be decided in the Judicial Committee of the Privy Council.
I do not want to go over ground that has been debated before, but I would ask Her Majesty's Government, before the Bill reaches its final stages, to consider again whether it is really necessary to have post-enactment review. If the Government still think that it is necessary to have these four pages of legislation, deciding which courts will have to decide whether something which has been done was ultra or intra vires, I hope that in the future the view will be taken that there should be the utmost possible care, before any measure becomes an Act, that the measure is regarded as being intra vires.
We have the provisions of Clause 19. I think that the words of Clause 19 are to be looked at again. There we have the perfect instrument for deciding—and, as I submit, at the right time—whether a measure is or is not within the powers of the Assembly. The hope I express is that those administering this legislation—if the present Bill becomes an Act, and if the Act is then put into effect—take the very greatest care to ensure that it will be the exception that there could be an issue after enactment raising the question as to whether the Act was infra or ultra vires.
I know that the view has been expressed—and I do not dissent from it—that in the Bill a very elaborate constitution is laid down, but I suggest that in a particular measure which comes before the Assembly the issue would be rather limited. One would not have to consider all the provisions of the Constitution, and I hope that those advising in the Assembly would be fairly sure that a measure proposed was within the powers of the Assembly.
I repeat that I do not want to go over ground that has been debated. Had my view been the view of the Government, we would have been deprived of all these hours of discussion on Schedule 12. We would have been deprived of listening to the most marvellous debating. We would have been deprived of seeing that Law Lords do not always entirely agree, completely and absolutely, with each other. Perhaps that illustrates that it is certainly desirable, if possible, to get finality, and I would submit and urge that that finality should be before the stage of Royal Assent.
Viscount DILHORNE: I wish that my noble and learned friend had made that speech on an earlier occasion; I should have been very glad of his aid then. I wish to add only the following to what he has said. If one is looking at this matter from a detached point of view, I hope that very little will slip through the pre-enactment net. I hope that there would be nothing—at any rate, nothing very obvious. I imagine that the lawyers advising the Scottish Secretaries and the Secretary of State will get together, and will watch very carefully to see that this subordinate legislation of the Assembly is infra vires. If it be right that very little is likely to slip through the net, I think that we are making rather heavy weather in the Bill of what will happen if something of a minor character slips through.
I argued before—and I remain of the view—that, although it is of subordinate legislation, there is much to be said for making an Act of the Scottish Assembly as a distinct form of subordinate legislation and as superior to any other form; it really should be an Act in Scotland, an Act, to all intents and purposes, so far as it can be, as an Act of Parliament.
I was concerned only with the post-enactment review of Assembly Acts, not of subordinate Instruments made under those Acts, under which the ordinary procedure would apply. What I should like the Government to consider, if they respond to my noble and learned friend's request, is a possibility which concerns me here. I am not asking for an answer now. I am alarmed about the difficulties that may arise if there is a challenge to vires of an Assembly Act long after its enactment. The noble and learned Lord, Lord McCluskey, made a powerful speech in the course of our debates on Schedule 12, dealing with the consequences so far as the litigants are concerned. I do not think that they are entirely satisfactory so far as those litigants are concerned. I would ask the Government to consider the possibility—if I am right in thinking that the pre-enactment net is to be so good that little is likely to slip through—of imposing a time limit within which the vires of an Assembly Act can be challenged.
I think that that would be an improvement. If the time limit was, say, two or three years, it ought to give people time

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to spot any defect in the Assembly Act. If it is not challenged in that time, it will not do anyone much harm if it is treated as intra vires. I think that it would be an improvement. I merely ask the noble and learned Lord the Lord Chancellor—I know that he can not go the whole way with me on giving the status to an Assembly Act which I think it ought to have—whether he will give consideration to what I have mentioned.
4.50 p.m.
Lord SHINWELL: The last thing I would wish to do is intervene in a legal discussion. I therefore content myself at this stage—there may be further opportunities, in a debate on another item in the Bill, to expand, though I hope not at inordinate length—with asking my noble and learned friend this question. When it comes to the Referendum, will every potential voter be presented with a copy of Schedule 12 and become fully seized of the nature of the procedure that is likely or unlikely to be adopted, with the possibility of criminal proceedings and with the dire probability of being forced to pay the expenses if a submission is made to a tribunal, et cetera? What I am disposed to do (but I should not like to detain your Lordships longer than is necessary) is to read out every paragraph in Schedule 12. I am entitled to do that in the course of debate. There is nothing in the traditions of the Committee or of your Lordships' House to prevent my doing that. There is no rule of order which inhibits me fron reading out every paragraph in Schedule 12: but I forbear. I merely repeat the question: When it comes to the Referendum, will every Scottish voter, of whatever Party, be entitled to scrutinise every word of Schedule 12 before inscribing his or her vote on the ballot paper?
Lord DOUGLAS of BARLOCH: Although I do not totally agree with the noble and learned Lords who have spoken, I want to support their general approach towards simplifying this Bill. Schedule 12 involves a great deal of complication, and it is a great pity that it should be there at all. I know, of course, that subordinate legislation is liable to challenge on the ground that it is ultra vires, and in the ordinary way that challenge arises in litigation concerning some particular
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case. That is perfectly straightforward; it does not require all the paraphenalia of Schedule 12 at all. Clause 61 and Schedule 12 could have been left out completely, and the courts would have been able to deal with this problem. Therefore, I consider it to be totally superfluous.
On the other hand, it can be avoided, as the noble and learned Viscount, Lord Dilhorne, has suggested, by making an Act passed by the Scottish Assembly unchallengeable after Royal Assent has been given. That is, of course, a somewhat drastic and unusual procedure in respect of subordinate legislation; but, after all, Scotland has many able and diligent lawyers. Measures which come before the Assembly will be subjected to scrutiny. It will not be a one-Party body: there will be people who will be quite happy to find faults in measures brought forward by the Executive, and the chance of anything ultra vires slipping through and getting the Royal Assent after the provisions of Clause 19 have been applied is comparatively remote.
There is one more point about this. Nobody, it seems to me, has mentioned what the consequences are if a measure passed by the Scottish Assembly is found to be ultra vires. If that is so, the whole measure will collapse. It is not one single provision in it which will be invalidated: the whole thing will be invalidated. That is the result of any part of it being ultra vires. Therefore, it would indeed be desirable, as the noble and learned Viscount, Lord Dilhorne, has suggested, to put some limit at least upon that possibility,and not to have it hanging over Scottish legislation for an indefinite period.
Viscount COLVILLE of CULROSS: I share with the two noble and learned Lords on the Cross-Benches the hope, and indeed the expectation, that those who prepare the legislation for the Scottish Assembly, and indeed their counterparts in London, will be extremely vigilant to see that no question of this sort arises as far as they can possibly help it. I suspect that both in London and in Edinburgh vires-watching will be a growth industry within the Civil Service. But the fact remains that, so far as I can see, the whole process of allowing these

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enactments to be challenged on vires is inevitable, in view of the form of the legislation that we have embarked upon and to which we have given a Second Reading. If I had to read out a Schedule I should be happy to follow the noble Lord, Lord Shinwell, by reading out Schedules 10 and 11, because those are the ones from which the trouble is going to come. If we have Schedules of that sort in the Bill, I do not suppose for one single moment it is going to be a matter of the whole of a Scottish Assembly Act being discovered to have been completely ultra vires despite all the care that was taken beforehand and, indeed, the possibilities of the pre-enactment scrutiny under Clause 19. It is much more likely to be a small point.
That does not mean to say that it is not an important point. After all, every year now this Parliament passes something like 2,500 pages of subordinate instruments, and they are only the ones that are printed, which include only about half the ones which are actually passed. Out of that enormous volume of subordinate legislation very few indeed are ever challenged on vires,but the ones that are tend to be rather important. They are certainly important to the individual in whose case the matter arises, and often they turn out to be very important over a large area of activity. I hope that the Government will not shut out this sort of challenge, either permanently or even at the end of a period of time. I am sorry it is my misfortune, and no doubt my unwisdom, to disagree with the noble and learned Lords, but if we are embarking upon this sort of legislation, and if there is going to be a multiplicity of legislation on both sides of the Border impinging upon the areas which are reserved and the areas which are devolved, in due course we are bound to have a mistake being made, a mistake slipping through, and a mistake affecting the rights of the individual when it comes to light.
In those circumstances, although the noble Lord, Lord Douglas of Barloch, may be right in saying that the courts could deal with it under their inherent jurisdiction anyway, here we have Schedule 12, and if the Government want Schedule 12 instead of the courts' inherent jurisdiction—and they will need it if the Judicial Committee of the Privy Council
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is to have the final say—then I would ask them very seriously to consider before they accede to what the noble and learned Lord, Lord Morris of Borth-y-Gest, asked. I believe there should be post-enactment review in the courts, because I believe that that will be a protection to the individual which is inevitable and which may often be invaluable.
The LORD CHANCELLOR: We have discussed on many occasions the matters which have been adumbrated today. It is obvious that the questions which arise on this Schedule are of great importance and of enormous interest. What has been said about the need for eternal vigilance in eliminating the need to fall back on post-Assent judicial review is, of course, absolutely right, and by the various provisions in the Bill, both legislative and administrative, we have sought to see that there are various fail-safe provisions to prevent the ultra vires measure from getting through. But we have thought it right, in case one does, that the citizen who might be adversely affected by an ultra vires Act of the Assembly should have the opportunity of having his rights protected in the courts. The noble and learned Lord, Lord Scarman, described the acceptance of post-assent judicial review as a basically important principle which endeared him to the Bill. I respectfully agree with him. It certainly would be unprecedented to impose a time limit on the validity of an Act of the Assembly and I do not think that I can—
Viscount DILHORNE: I was not proposing a time limit on the validity of an Act; I was suggesting that there should be a time limit—and perhaps a long one—for challenging vires. If the noble and learned Lord says that there is no precedent for that, I think he will find one in the housing field.
The LORD CHANCELLOR: In this broad field where issues of constitutional importance and issues affecting a whole range of activities could theoretically arise, I do not think it would be right to impose that restriction upon the litigant. I will certainly look at the precedents in the housing field but here we have, as has already been indicated by the reference to Schedule 10, a wide potential area. I think that it would be wrong to impose upon the citizen the limitation that is

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proposed. In my submission, although the machinery is inevitably somewhat complex, the post-assent judicial review is I believe, an important element of protection for the citizen in the new situation in which he will find himself.
Schedule 12 agreed to.
5.2 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 327:
Before Clause 62, insert the following new clause:
Speaker's Conference
(".—(1) For the purposes of this Act there may be appointed not less than six, nor more than twelve months after the first occasion on which the Assembly meets a Speaker's Conference, being a conference convened at the request of the Prime Minister and presided over by the Speaker of the House of Commons with the function of considering and making recommendations to the House of Commons relating to the appropriate number of Members of the House representing Scottish constituencies after the enactment of this Act.
(2) Those participating in the Conference shall be Members of the House of Commons invited to do so by the Speaker, who shall secure that the balance of parties in the House of Commons is reflected, so far as practicable, among the participants in the Conference.").
The noble Lord said: I beg to move Amendment No. 327 on behalf of my noble friends. This Amendment proposes a Speaker's Conference after the Assembly has met for the first time in order to examine the numbers of Members of Parliament representing Scotland at Westminster in the light of the existence then of the proposed Assembly. This is the procedure which was recently applied in the case of Northern Ireland leading to the recommendations by that Conference published only in February in the White Paper, Command 7110.
If an Assembly on the lines proposed in this Bill is set up in Scotland, we must face up to the question of representation at Westminster. Should nothing be done even to consider that question I personally am very worried that the electors in England will feel that the system is becoming intolerably unfair to them. This could be a cause of great dissatisfaction and it could have disruptive effects upon the Union. I would remind your Lordships that the Kilbrandon Royal Commission addressed itself squarely to this problem. In particular, page 341, para-
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graph 1147, in the section of the Kilbrandon Report outlining what it described as a scheme of legislative devolution, spelt out the accompanying proposals on this subject. Such a scheme of legislative devolution is indeed the kind of system which this Bill is putting forward. It is that part of the Kilbrandon Commission's Report which corresponds to what the Government are trying to do in this Bill. Paragraph 1147 reads:
"Scotland and Wales would continue to be represented in Parliament. Their representation in proportion to population would be the same as that of England, subject to any allowance which might be found appropriate for special geographical conditions. The probable effect would be to reduce Scotland's representation from 71 to about 57 and that of Wales from 36 to about 31".
The geographical qualification, I suggest, is important. For the Islands and for the large, sparsely populated areas of the Highlands and Borders of Scotland, one cannot expect precise numerical comparisons; one must expect there to be more MPs than otherwise might be the case because of the geographical conditions to which the Kilbrandon Commission referred. But a large majority of Scotland's population live in cities and urban areas and the Members of Parliament there have tasks which are similar to the tasks of Members of Parliament elsewhere in the United Kingdom.
The Kilbrandon Commission published its report at the end of October 1973—some time ago—and I note that the noble Lord, Lord Vaizey, who has frequently attended our debates in Committee on this Bill, has put down two Questions for Written Answer to ask for up-to-date information. One is to ask the average number of electors in Scottish Parliamentary constituencies and the other is to ask how many Members of Parliament would be elected in England if the number of electors in each constituency were the same as the average number of electors in Scottish constituencies. These were put down on 8th May and, no doubt, are about to be answered by the Government if they have not already been so. It is clear, therefore, that the noble Lord, Lord Vaizey, has this point in mind and is seeking the latest information.
The suggested Speaker's Conference is the appropriate way of seeking recommendations on this subject, as the recent Northern Ireland Report has reminded us;

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but there is then the delicate question of the extent to which this House, in a Committee of which we are now sitting, should appear to be making suggestions to another place about its composition. I recognise that immediately; and it must, naturally, underlie everything that we say here on this subject. The Amendment which I am moving recognises this point. If your Lordships will examine its text, you will see that it is permissive and in no way prejudges what the Conference recommendations may be. I do not believe that it provides any reasonable ground for objection to the effect that your Lordships would be seeking to interfere with the composition of the other House. Above all, it would give the other House a full and further opportunity to consider this subject.
The number of Scottish seats in the Commons has been 71 since 1948, when the university seats disappeared. It is worth while briefly to trace the origins of that number, as there have been contradictory versions circulating in Scotland. After the Act of Union in 1707, 45 Members of Parliament from Scotland attended the United Kingdom Parliament. That was considerably fewer than the comparative numbers of the populations North and South of the Border at that time would have justified, but finance and the amounts of tax paid were clearly also taken into account in those days. It was not until the mid-1880s that a Reform Act conferred representation on Scotland corresponding to the numbers of the electorate in Scotland. Then 72 seats appeared. Since that time the figure has remained in the seventies; but, in the meantime, the population of Scotland has increased more slowly than in England and what was approximately in proportion to the numbers of the respective electorates in the 1880s is no longer so.
None the less, the figure of 71 has been continued, no doubt because of special considerations such as difficult geographical circumstances. It has been generally acceptable it seems because, so far as I know, no serious moves have been made to change that figure of 71. However, with the establishment of a new legislative assembly in Scotland as proposed in this Bill, one must expect an understandable grievance to be raised in England. It would, I believe, be shortsighted to ignore
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the probability of complaints from responsible people and responsible bodies that Scotland has now become overrepresented in our Parliamentary institutions. I say this as a Scot, resident in Scotland, because I believe that it is our first duty to preserve the Union. For me, at any rate, that is the top prority. For this reason we should forestall such divisive effects of the Bill as it now stands. We should make sure that, if an assembly of this kind does come into existence, the related question of representation at Westminster is, at least, being looked at. Even if no recommendations emerge to make changes, I believe that there should be provision in the Bill to ensure that the question is being looked at and being looked at in the appropriate way. I beg to move.
5.12 p.m.
Lord WILSON of LANGSIDE: I have listened, as I am sure have all members of the Committee, with great interest to what the noble Lord, Lord Campbell of Croy, said in support of this Amendment. Of course he is right, as he so often is, in much of what he said. He is right when he said that we must face the ultimate question of representation at Westminster if this Bill goes through. He is right when he says that it would be shortsighted to overlook the various problems to which he referred and which your Lordships have been concerned to discuss during these past few weeks. He was right—and I imagine Members of the Committee will agree, if I may say so with respect—when he said that it was desirable to forestall, if we can, the divisive effects of this Bill.
However, I wonder whether this Amendment is the best way of achieving those ends. It is desirable that we should face up to these problems; but I venture to hope that this Amendment will not be pressed or that, if it is, your Lordships will vote against it, for one fundamental reason which is crucial. There are many of us—and we shall be talking about this no doubt when we come to the clauses on the referendum—who think that it borders on the shameful (and I do not want to use divisive language) that after all that has been said in Parliament this Bill should go to the people of Scotland in a referendum. There are many of us who feel that, whatever there

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is to be said for referenda in the scheme of our arrangements for government, there is nothing to be said for taking this to the people on a referendum because most of those who have to vote will have had no such opportunity, as Members of the Committee have had, to understand the full implications of it.
But if we are going to have a referendum, we must be able to tell the people in Scotland who are going to vote the truth of what the price of the measure is going to be. Of course this Amendment, it humbly seems to me, might obscure from the people of Scotland the price that they are going to be asked to pay. If, unhappily for Scotland, this Bill goes to a referendum, what we shall be concerned above all to do—all of us—is to tell the people of Scotland the truth about the Bill without any fudging of the issues or any obscurity as to what the outcome is going to be so far as Scotland's representation at Westminster is concerned. For these reasons, though I think it is altogether desirable that we should face up to it, I hope that this Amendment will not be pressed.
Lord MACKIE of BENSHIE: I always listen to the speeches of the noble Lord, Lord Campbell of Croy, with tremendous interest and great admiration because he obviously puts a tremendous amount of work and thought into them. But I must say that in this case perhaps the first thought and doubt which he, with meticulous honesty, expressed should carry some weight. It is for the House of Commons at any time to appoint a Speaker's Conference to consider the representation of the people of Great Britain. I do not think that this Bill is the place for such a clause. For that reason, perhaps the noble Lord should not press the Amendment, he having made the point to which I have always agreed that if Scotland has what I would call decent devolution and has not things like forestry constantly whittled away from the Assembly, then its representation in the House of Commons could well drop and should drop to a fair number, taking into account the geographical difficulties. As a Liberal, I think I can say that it is a fact that a larger number of Members in Scotland generally benefits Labour and fewer Members might alter the balance in favour of the Conservative Party. I
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know that such a thought would not enter into the minds of noble Lords on either this or the other side of the House.
The Earl of LAUDERDALE: Would the noble Lord allow me to interrupt? Surely, it takes a Liberal to discern the filthy intentions of their adversaries?
Lord MACKIE of BENSHIE: Indeed, we have had ample opportunity to observe without the necessary opportunity to perform, and this too has taught us great wisdom. In this case I must say (to return to the point) that I think this matter would be better left where it should be, in the House of Commons, for them to sort out.
5.19 p.m.
The Earl of ONSLOW: This Amendment, No. 327, and Amendment No. 210 go to the very centre of the Bill. They show up its faults, its exploitations and its unresolved difficulties. I will address myself now to Amendment No. 327 which applies to over-representation of Scotland in the United Kingdom Parliament. No man can morally justify an element of devolution and over-representation; no man can morally justify the political Party advantage which the noble Lord, Lord Mackie of Benshie, has discerned in this matter. No man can morally justify the Scots' tail wagging the English dog. The English have not yet woken up to this point; they have not yet woken up to what is happening to them.
It is impossible to speak to this Amendment and not to slip into a Second Reading speech. Scotland has had more money per head than has England, and Scotland has produced more Prime Ministers than has England this century per head of population. Scotland has had probably more problems over declining industries, than has England in this century. But those things the English have accepted: it has not mattered The over-representation, as the noble Lord, Lord Campbell, said, has slipped in, almost by accident, by the imbalance in the growth of population between 1885 and nowadays.
Scotland will now have the power to legislate for its own local needs, unlike Carlisle, Coventry, Truro, Troon, Dorking or Doncaster. It is then proposed to keep in existence this recently-established over-

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representation of Scotland in another place. The English are being "conned", and when they recognise that this "con" trick is happening to them the Union will be badly in danger. That is terrible for all of us, because this Union has given us great things: it has given us great achievements and great co-operation. We have suffered and we have succeeded together. Noble Lords who are pushing this Bill and noble Lords from the Liberal Benches do not understand it and have not thought it through. They do not realise the danger to the Union that is involved.
I want to be able to continue speaking as a British person and not as an Englishman. This Amendment must be passed. I take the point of the noble Lord, Lord Wilson of Langside, that it is unsatisfactory and perhaps not strong enough, but there is an opportunity to strengthen it at the Report stage. The over-representation of Scotland in a devolved situation and with a devolved Parliament, is going to be a "con" trick on the English. I cannot underline that too much. Nobody is prepared to face up to this fact. One day the English people will, and then we shall all suffer. I sincerely hope that we shall do our constitutional duty and that your Lordships' Chamber is serious on an Amendment concerning over-representation, together with Amendment No. 210, and that it is prepared to go to great Parliamentary lengths to make sure that justice to the English is seen to be done. I do not want injustice to the Scots; I want justice for the English and I want to maintain the Union.
Lord WILSON of LANGSIDE: Before the noble Earl sits down, I wonder whether he could answer this question. I understand his feeling about the English being "conned", but does he not feel that perhaps he has been carried away by his realisation of that into somewhat extravagant statements in support of this Amendment?—because, of course, when one looks at the history of the Union these last 200 years one finds many occasions on which the English have misinterpreted the Treaty of Union, both in the spirit and in the letter. So let us not blind ourselves to this sort of thing. I think that if we talk in terms of "conning" and use that kind of language we tend to mislead one another.
The Earl of ONSLOW: Perhaps I may just try to answer that point. This Amendment is probably very defective and I should like to see it strengthened; but it is better than nothing at all. I would think also that it is perhaps not only the English who are being conned by this Bill but the Scots as well.
Lord WIGG: At an earlier stage of these Committee proceedings we had a debate which touched on this issue of representation of Scotland at Westminster. I ventured the view then that, whatever the number happened to be, that number would be looked at with a very careful eye for the future. To put it in another way, old Abe Lincoln was almost certainly right when he said that you cannot fool all the people all the time; and the fact that the present number of Scottish Members of Parliament is a gross over-representation of Scotland at Westminster meant that that number was going to be looked at with very great care and that, sooner or later, the fact that it suited the Labour Party, or the present Government, to continue that number would come under scrutiny.
I do not believe that the present number can be sustained. I said so at the time. I also do not happen to think in regard to Government, that the Labour Party is the only political Party in this country to have played around, if I may use that expression, with representation and the number of constituencies on its side. After all, the Tory Party has a fair record on this in Greater London. The Greater London Council Bill, for example, was a good old piece of "hooking it up" in order to get the kind of representation that the Tories had not been able to get until they carried out the reform. But the fact that they did it, and it has been done and is being continued by a Labour Government, does not disguise the obvious point, already made by the Liberal Benches, that this Amendment is put down by the Opposition today because they are in some difficulty. They had a very lengthy debate upon this issue in another place and the Motion was defeated on a free vote.
Of all the subjects which really ought to be dealt with by another place, this surely is the one. This is no job for a Labour Government, and I hope very

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much that the Opposition will hesitate before pushing this Amendment to a Division. If they do so, I should certainly find myself in some difficulties because I am opposed to this technique. However, if they were to put down an Amendment indicating what they think the representation should be, and if, for instance, they like to put down "57", I would vote for it—because 57 would be an arithmetical division, as it were, that made some sort of sense. On the other hand, if there were a tolerance of, let us say, between 57 and 62, or about that number—that would be to some extent playing the numbers game—well and good; that would educate the people of Scotland and also of England over the realities which will stem from the fact that Scotland is going to get an Assembly and then is going to be grossly over-represented at Westminster.
But this is only another example of what is apparent to me every time I look at this Bill in detail. Every time I look at it, I find it has not been thought through and that the implications have not been faced up to, because it is a first-class piece of political chicanery. But by putting down an Amendment of this kind, to use a Conservative majority in this Chamber—not on a free vote, be it noted, although that would not be worth very much—to ask this Chamber to reverse a free vote in another place on an issue of this kind is utterly and completely wrong.
5.29 p.m.
The Earl of LAUDERDALE: The noble Lord, with a great gift and experience in these matters, has referred to "political chicanery". When I say that he has great experience, I mean that he is a great judge of chicanery and we respect his capacity to spot it wherever it raises its head. He has just suggested that the Opposition ought to suggest the number of Members that it would be prudent and right for Scotland to send to another place once the devolution Bill becomes an Act and thereafter passes into effect, if it does. But, surely, to invite either Party to propose the number of seats is to invite yet more chicanery. What this Amendment proposes is that the appropriate number should be determined by a Speaker's Conference, properly representative of the Party strengths in another place.
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When it is suggested also, I think both by himself and also, if I understood him aright, by the noble Lord, Lord Mackie of Benshie, (who, although he is of the wrong Party, I still count as a friend) that it is quite wrong for this Chamber to suggest what another place should do, then I ask myself: Why are we here at all? We are here to revise Bills that are brought to us from another place and our function, surely, is to enable another place, particularly when it has been the victim of its own guillotine, to think again. This Amendment is very gentle, indeed. All it does is to use the word "may"; it does not say "shall". It is a suggestion to another place that they should look at it afresh.
I was much struck by what the noble and learned Lord, Lord Wilson of Langside, said a few moments ago. He is always a compelling speaker and I do not think we hear him often enough in this House. He particularly referred to the referendum, which he dislikes, and the circumstances in which, on present form, it will be held, which he dislikes even more. He said, in effect, that the people of Scotland will not and cannot really understand what this Bill contains, and I agree with him. One of the functions that our debates in this House may have is to lay bare some of the issues, so that through time, through exposure and through the media the public will come to grasp some of the points; and it is most important—and here I am entirely at one with the noble and learned Lord, Lord Wilson of Langside—that the people of Scotland should realise what this Bill means and what it implies.
As my noble friend Lord Onslow said, it is difficult on this Amendment not to get a kind of touch of Second Readingitis, because the issues involved in it are much wider than the narrowness of the referendum itself, but I share a fear which has already been expressed that, when the referendum comes, the people of Scotland will simply treat it a little like a Scotland v. England rugger match. If you are for Scotland you vote "Yes", and if you are for England you vote "No". That is the kind of level on which, I am afraid, the campaign may well be conducted in some quarters. It is therefore extremely important that we make some of these matters absolutely clear.
My noble friend Lord Onslow, in language which I thought was not as

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smooth as one is accustomed to expect from Englishmen, spoke of "con" tricks and this, that and the other. But he made one very significant point which has to be rammed home and which is that Scotland does extremely well out of the Union, in terms of public expenditure. My recollection is that figures given in another place by the Government, in a Written Answer in Hansard, made it clear, in effect, that 9 per cent. of the population of the United Kingdom enjoy more or less 12 per cent. of the public expenditure. That simple statistic is buried in a whole lot of figures that have been authenticated by the Government. The Scots have never understood this. They have never understood that the answer if they want separation, to take an extreme case, would be to raise the revenue in Scotland by 25 per cent. to match the same level of public expenditure. This kind of thing has never been put across. They have never been given to understand it. The taxation point does not arise on this Amendment—
Lord McCLUSKEY: When the noble Earl used the word "buried", he suggested that these figures are not readily accessible. Does he not recognise that they are published in the Government's White Paper, entitled Devolution: Financing the Devolved Services?
The Earl of LAUDERDALE: I must apologise, if I implied that they were intentionally buried. What I meant was that the very simple statistic that I have given needs to be extracted from columns and columns of figures which only the statistically minded will readily grasp. But I accept the noble and learned Lord's point, that there is no endeavour on the part of the Government to hide this fact. It is merely a concern for exact statistical accuracy that has led us to be given very many figures, from which the statistic that I have quoted may be extracted.
This Amendment does not strictly relate at all to the taxation point, but it relates to the point of Scotland knowing what is the price, and here is the strength of the Amendment. It is most important for the Scottish people to understand that if they want—and I very much doubt whether they really do, when they look at it properly—a Convention, an Assembly or a
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psuedo Parliament of their own, that must mean surrendering some degree of representation in London. In equity, it cannot mean anything else. Therefore I believe that this Amendment is most valuable. The discussion which we are now having, and the debates that will follow on it will tend to do just what the noble and learned Lord, Lord Wilson of Langside, wants, which is to lay bare the facts before the Scots.
The Scots cannot for ever go on yammering at the English and saying, "We want this, that and the other" and "Give us more", yet for years it has been the impression in London, in Whitehall, that the Scots are screaming for more. Whenever a new factory is opened in Scotland there is a hue and cry, saying that the Scots must be paid at least as much as other people in London, and in the rest of the United Kingdom, although the cost of living is very different. In my old days, when I was an industrial consultant, I went down to South Wales and found that they did rather better than Scotland by yammering less. I have every sympathy with Englishmen who complain that the Scots are for ever saying "Gimme, gimme, gimme". It is not a worthy stance for our country, it is not a worthy language for our people and it is not a worthy position for a Scotsman to be seen to adopt. The time has come to say to Scotsmen and everybody else, "If the Scots want a psuedo-Parliament of their own, they must pay for it" and the first way to pay for it is to surrender a degree of representation at Westminster. That is an absolutely fair bargain.
The more I see of this Bill the less I like it and the less I like the kind of Assembly or Convention that is now proposed. But we must make it clear to the Scots that, in equity, there is a price to be paid and, in my belief, this Amendment goes some way to enabling the other House to look at this matter again, to look at it fairly, cogently, frankly and quietly, if they can ever do that in the other place. For the reasons I have given, I support this Amendment and I hope that one result of this debate, whether or not the Amendment is pressed to a Division, will be to enlighten the people of Scotland to the fact that there is a price to be paid for the devolution for which they have clamoured, if indeed they really want it at all.
5.38 p.m.
Lord MONSON: For all its undoubted good intentions, I fear that I cannot view this Amendment with any degree of enthusiasm. After all, broadly similar Amendments were rejected by the House of Commons during various stages of both the Scotland Bill and the Wales Bill. Quite apart from the fact—
Lord DRUMALBYN: Will the noble Lord forgive me for intervening? We know that the reason why the Amendments were objected to was the timing. Under these Amendments, the Speaker's Conference was to take place before the referendum took place in Scotland, and it was not thought desirable to postpone the referendum while that was done. That was the most cogent argument which caused the Amendments to be rejected.
Lord MONSON: I quite agree with the noble Lord, Lord Drumalbyn, that that was one of the reasons advanced, but it was by no means the only reason. Quite apart from the fact that such Amendments were defeated, honourable Member after honourable Member pointed out that the effects of these Amendments, if they were carried, would be totally inconclusive. Over and above that, a great many Members reminded the other place that, in practice, it was totally impossible to set up a Speaker's Conference that was completely free of subconscious political bias. Now I consider it axiomatic that fair representation is not something to be graciously doled out by the House of Commons, as the fancy takes it. Fair representation is, without question, something to which every elector is absolutely entitled, in any democracy.
It is significant to note that the Scotsman, which might fairly be described as the serious newspaper most favourably disposed towards devolution, wrote on 20th April—less than four weeks ago—that Scotland's over-representation … cannot be justified, though parity for voters in Scotland and England would be perfectly acceptable. I think that we should take very careful note of this shift in serious and responsible Scottish opinion, towards the concept of parity for England and Scotland.
I urge the noble Lord, Lord Campbell of Croy, not to press this Amendment now
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but to defer it until the Report stage so that the House can decide upon a compromise Amendment to Clause 1, to provide specifically for more equal representation, which will meet most of the objections that were raised when a similar Amendment was moved at the beginning of this Committee stage, while at the same time being a good deal more positive and unambiguous in effect than the Amendment which is before us now.
5.40 p.m.
Lord ELLENBOROUGH: I, too, must confess to feeling pretty lukewarm towards this Amendment. It seems to me that it is simply dodging and fudging the real issue which, whether we like it or not, is that a political decision will have to be made as to the proper representation at Westminster of Scotland and Wales after the Assemblies have been set up. It is becoming clear that there is much more widespread support among the people of all Parties, and no Party, for the equal representation of the people in the four parts of the United Kingdom in relation to population, making due allowance for special geographical considerations, and thus for the Scottish electorate to know just where they stand on this issue at the time of the referendum, rather than just setting up a Speaker's Conference in the future. As my noble friend Lord Monson has just said, very similar Amendments have been debated twice and defeated twice in the other place in relation to both the Scotland Bill and the Wales Bill. I believe that the Amendments attracted little or no support either from the minority Parties or from the Members of the Labour Party who are opposed to devolution.
I cannot really believe that a Speaker's Conference is likely to achieve much. I should have thought that it would entail interminable delay. It may well fail to make satisfactory recommendations, and inevitably the role of Members of Parliament, as well as their number, will have to be considered—which surely is a matter which ought to be kept separate.
The main drawback to this Amendment is that a Speaker's Conference will simply blur the issue, as nobody will know the outcome of the Conference for a long time to come and the Scottish electorate at the time of the referendum will not

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know that, in voting in favour of an Assembly inevitably their representation at Westminster will be reduced sooner or later, or by how much. Indeed, as that experienced Parliamentarian in another place, the honourable Member for Pontypool, Mr. Abse, pointed out the other day when a similar Amendment to the Wales Bill was being discussed, the pre-dominantly Labour electorates in Scotland and Wales must realise that by voting for devolution they will be voting to end Labour Governments at Westminster. He went on to point out that there would not have been Labour Governments for the past 28 years if it were not for the opinions which have come from Scotland and Wales and that it would therefore be suicidal to vote Yes in a referendum. Therefore I feel that in all fairness it must be made clear to the Scottish people that devolution will mean a reduction in the number of representatives at Westminster—I would emphasise not unfair representation but equal representation on parity with the rest of the United Kingdom.
It seems to me that virtually everyone outside the ministerial ranks of the Governent is unanimous that, so far as possible, there will have to be equal representation on the basis of population, subject to geographical considerations as advocated in the Kilbrandon Report. If this is not put clearly to the Scottish electorate at the time of the referendum surely the Scottish people will be voting on a fraudulent prospectus. That is why, I understand, certain noble Lords anticipate at a later stage putting down a suitable Amendment to ensure that the Scottish people will know fair and square that devolution will entail a reduction in representation at Westminster and, so far as possible, to what extent such a reduction is likely.
It is well known that the average English constituency has some 66,000 electors, compared with 53,000 in Scotland. The absurdity of the situation is highlighted by the Government's decision that Northern Ireland's representation should be increased from 12 Members to between 16 and 18. If one assumes the actual figure, as may well be the case, will be 17 Members, that will mean an average number of electors per constituency in Northern Ireland of 61,000—slightly better off than the English but still far
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worse off than Scotland which, unlike Northern Ireland, will have its own Assembly.
If the Bill goes through and an Assembly is set up, it will only have a chance of working if it is seen to be fair to all of the people in the United Kingdom, of whom 83 per cent.—no less—comprise the electorate in England. I should have thought that this Government of all Governments would go out of their way to ensure that there is fair play and might take the opportunity, now that they have the chance, to show that they believe in the principle of one man, one vote. We hear a great deal from this Government about one man, one vote in Rhodesia, South Africa and so on, yet in this case the Government seem to be prepared to try to perpetuate after devolution not one man, one vote in Scotland but one man, one-and-a-quarter votes in Scotland, and in Glasgow, where the average electorate is only 42,000, one mart, one-and-a-half votes.
As I have just said, the average size of an English constituency is 66,000 electors. We all know why this is so. Scotland is the Labour Government's stronghold. The game is being given away by people like Mr. Abse, whom I have just mentioned, and many others who know quite well that this state of affairs cannot be allowed to stand. The English electorate, who comprise 83 per cent. of the electorate of the United Kingdom, will not stand for it. The English electorate will not put up with a situation after devolution, when Scottish and Welsh Assemblies have been set up, whereby their political fate on so many domestic issues—really "gut" issues like education and housing—may be decided by 107 Scottish and Welsh Members who represent only 14 per cent. of the electorate. More than that, in very close contests the whole political composition of the United Kingdom and the Government of England will be substantially decided by Members from Scotland and Wales who are not only over-represented at Westminster but who have their own Assemblies in those countries.
It seems to me to be quite obvious that the Government have not the slightest intention of making any gesture of any kind and that they intend to put their head in the sand, ostrich fashion, in the

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hope that the problem will go away. But the problem will not go away, as the Government will find out to their cost. I am sure that the Government will live to regret that they are attempting to perpetuate a gross injustice on the electors of the United Kingdom and the people of England in particular.
It may well be that when the time comes the Scottish electorate will have the foresight not to vote for devolution, as it is becoming increasingly obvious that to set up an Assembly will merely be the breeding ground for the germs of continual instability, distrust and conflict. There is bound to be a consequent clamour for change, as instanced by the Scottish National Party's proposals, to be submitted at their annual conference at the end of May, in which, among other things, they envisage the creation of 16 Ministries, including a Ministry of External Affairs. If this Bill becomes law and if a referendum is to be held, that is why, in fairness to the Scottish people, it is so imperative that the fundamental issue of representation at Westminster should be put clearly, fair and square. I am afraid that I do not think that this Amendment, proposing a Speaker's Conference, serves that purpose with sufficient clarity.
5.49 p.m.
The Earl of PERTH: We have heard a good many Second Reading speeches today. I do not intend to follow the example of various other noble Lords in that respect. However, I recall that again and again in our debates during the Committee stage of the Bill this, that or the other clause has been cited as a recipe for friction between the English and the Scots. If I may say so, the noble Earl, Lord Onslow, ran true to form today in making just that point. To a degree, I take the point seriously. There is a risk that under certain conditions the English may be aroused to anger, but I would hope not in the general working of the Assembly as it is now proposed. Rather do I believe that, if there is goodwill on all sides, we may find that such fears will not develop any more than they developed in the Northern Ireland situation. But there is this one point on which I can agree with the noble Earl, Lord Onslow, and others that there is a potential injustice. Once we in Scotland have an Assembly—if we do have an Assembly—they might
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well say, "All right, but then you cannot expect to have the same representation as before in the Westminster Parliament".
Lord WIGG: Surely the noble Earl is not saying that, supposing devolution dies in its tracks, the over-representation of Scotsmen at Westminster should continue. Surely they are quite separate issues—devolution is one issue, the over-representation of Scots is quite another, and ought to be put right.
The Earl of PERTH: I agree with the noble Lord, Lord Wigg, but I think the point is that this has lasted for a very long time. But, if the devolution Bill goes through and we have an Assembly, it will come to a head and be discussed sooner rather than later. Particularly is that the case under this Amendment. I have always understood that in such constitutional matters a Speaker's Conference is the proper method of considering these things. This Amendment proposes precisely that. Noble Lords who have spoken have been worried not about the constitutional position but what another place might say if we give them this advice. Perhaps it is going too far even to give advice. We are saying, "Please look again", and we find that in the word "may". For these reasons I hope that others will go with the noble Lord, Lord Campbell of Croy, and those who have moved this Amendment.
Earl FERRERS: This Amendment is designed to try to meet the very great concern expressed from all parts of the House at an earlier stage of this Bill. I would be the first to recognise that it is very difficult to accommodate all those points of view. In fact, it is difficult to amend the Bill in an appropriate way, because the Bill is so constructed that however one tries to amend it one runs into trouble. It is one of the great failings, if I may say so to the noble and learned Lord, Lord McCluskey, that the Government have constructed an Assembly and have still not altered or attempted to alter, or even to meet, the problem of representation at Westminster which will follow.
Earlier in this Bill an Amendment was moved by the noble Lords, Lord Monson, Lord Harmar-Nicholls and Lord Wigg and the noble Earl, Lord Onslow, and it

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is not surprising that all those who have spoken have been somewhat muted in their approval of this Amendment, because it does not go anywhere near either of their Amendments. Both those earlier Amendments were defective; the first because it virtually stated the number of Members of Parliament that there should be, and that was obviously unacceptable, and, secondly, they proposed that this should be done before the referendum, so that people knew what they were voting on. We have tried to construct an Amendment of the most modest nature which tries to take into account the situation which will exist. We have all known that the Scots were given greater representation per capita than the English for reasons which we all knew about. Now that there is to be an Assembly the trouble is that they will be getting special representation twice over.
Of all the Amendments I would suggest that this is a fairly modest one because it seeks to allay the fears expressed earlier by people from all parts of the House. It does not delay the referendum; it does not determine the number of Members of Parliament who should be sent from Scotland. Indeed, contrary to what my noble friend Lord Lauderdale quite wrongly said, it does not in fact say that there should be any reduction at all. All it does is to recognise that the situation has changed now that there is an Assembly; should not Parliament therefore reconsider the situation? Several noble Lords, including my noble friend Lord Campbell of Croy, referred to the sensitivity of sending such an Amendment to another place, but as the noble Earl, Lord Perth, said, it only says "may"; it does not say that there shall be a Speaker's Conference. It does not give any sanction; it merely invites the Prime Minister to set up a Speaker's Conference. Indeed, it recognises that the change has come in the same way that it was recognised that there was a change in the Northern Ireland situation and a Speaker's Conference was set up then to recognise the change.
All I would say about this Amendment is that I hope your Lordships will think that it is reasonable, that it tries to meet the very genuine fears expressed earlier and indeed those expressed today. When the noble and learned Lord, Lord Wilson of Langside, says that this obscures the
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issue and we must not fudge the situation for the referendum, one can only conclude that he would like to see a specific figure put into the Bill, so that people in Scotland would know what the price is (an expression that was used earlier) when they come to vote. With great respect to the noble and learned Lord, I do not think that is right. I do not think that one can say at this juncture, "Ah, within a few months we will pick on a figure". It is necessary to have advice as to what that figure should be. The right way to have that advice is presumably by a Speaker's Conference. It only asks for that. It may well be that they would say that the representation should be the same. At least if we pass this Amendment we have tried to meet the real fears that have been expressed, and at least we give another place an opportunity to consider this point again and indeed, if they see fit, to amend the Amendment.
Lord MACKIE of BENSHIE: Before the noble Earl sits down, may I ask whether he is recommending the Amendment because it is wholly negative and harmless? This is the impression he gave me.
Earl FERRERS: The noble Lord, Lord Mackie of Benshie, is quite extraordinary in the construction which he likes to put on almost anything that is said by anyone other than the Liberal Party. The reason why I am suggesting this Amendment is because in fact it ought to be acceptable even to the Liberal Party.
Lord WIGG: May I explain one of the reasons why what I say tonight is muted compared with what I said at an earlier stage in our proceedings? It is because I hoped that at Report stage there would be agreement. I do not need to be consulted, but noble Lords on that side of the House and on the Cross-Benches have expressed views similar to mine. If in fact this Amendment is carried tonight, of a certainty another place is going to reject it. They will reject it for the very good reason that it was on a free vote that they turned down the idea of a Speaker's Conference. I hoped that we would separate the issue of the representation at Westminster from the issue on devolution, plus one other point which I made as strongly as I could at an earlier stage.
It is not a question, as was stated by the noble Lord a few moments ago, of one

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man, one vote; it must be one vote, one value. It was that point which I stressed. I thought I had made some impression on the Committee when I was asked not to press it to a Division—not that I hoped or thought that it would be successful but because I believe that once the issue of Scottish over-representation at Westminster has been raised it will not just go away. It must be dealt with at some time and this Bill is not the place to do it.
The Earl of ONSLOW: I should like to ask my colleagues on our Front Bench a question or two. When my noble friend Lord Ferrers said "may", I am afraid that I got the same impression as the noble Lord, Lord Mackie of Benshie—that my noble friend was under-estimating the effect of it, and that he was saying that it is so gentle that nobody need pay any attention to it. Will my colleagues on the Front Bench please give an undertaking that, if there is a Conservative Government in power soon, they will recommend a Speaker's Conference and will recommend reduction?—because if they do not do that we shall be in a terrible muddle, even on this clause.
Earl FERRERS: If I may answer that question, I think it is customary to use the word "may" because if you use the word "shall" you then have to put in the Bill the sanctions to be employed if the obligation is not met. In fact if we were to continue my noble friend's suggestion and if we were to insert the word "shall" I think it would be appropriate to put in the sanctions if that was not met. If one inserts the word "may" that is as inoffensive as possible.
When the noble Lord, Lord Wigg, says that "one man, one value", ought to be considered I think he is quite right, but I do not think that is the kind of thing that we should consider here. That is precisely the reason why there should be an impartial body, to consider that type of suggestion.
6.5 p.m.
Lord McCLUSKEY: If the noble Earl will consult his noble and learned colleague on the Front Bench, Lord Rawlinson of Ewell, I think he will discover that the first reason that he gave for putting the word "may" rather than the word "shall" is nonsense. This debate began
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about an hour ago and it is proper that I should reply and deal with the matters that have been raised in the course of the debate on this rather important Amendment. I shall illustrate, if I can, its defects and its irrelevance to the devolution debate.
The Government have consistently maintained from the start—and I go back to September 1974 when the White Paper was published, which your Lordships will recall was the White Paper published immediately before this Government was elected to power—a commitment not to change the present levels of representation for Scotland and for Wales as a consequence of devolution. That is quite plain from the White Paper and the Government's position has always been the same. The Government's proposals for devolution do not carry with them any inevitable consequence or change in the representation in another place.
We entirely reject the argument that the proposals are in some way flawed because of the continuing and full participation of Scottish and Welsh members in the consideration of matters which will come before the other place when devolution is achieved. No doubt we shall come to that point when we deal with the other related Amendment. The Government's view derives from a clear appreciation of what the devolution contained in this Bill—and for that matter in the Wales Bill—really entails and also what best provides for the continuing unity of the United Kingdom.
If I may say one word about history, the noble Lord, Lord Campbell of Croy, referred to the history, but my reading of history books has been slightly different from his because I think there was a change in 1832, following the Reform Bill, and that led to an increase of eight in the number of Scottish Members of Parliament.
Lord CAMPBELL of CROY: If the noble and learned Lord will give way, I did not follow the various changes of the Reform Bills in the last century; I said that it was not until the 1885 Bill that representation which reflected the numbers of population was reached.
Lord McCLUSKEY: I am obliged to the noble Lord for making his position

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clear on that, but I think it is right that I should say something about the history because, when I hear my noble friend Lord Wigg saying that the question of Scottish representation has to be looked at again and I hear the noble Lord, Lord Ellenborough, talking about the gross injustice which must be remedied, I must emphasise that what members of this Committee must fully appreciate is that the Treaty of Union wrote in over-representation for Scotland. Those who are now saying that we should come to population parity or something of that kind are really saying that we should re-write the Treaty of Union. If that is not a recipe for breaking up the United Kingdom, I do not know what is. When I hear other noble Lords saying that the threat will come because the English will become discontented with their under-representation I wonder whether I am in some kind of asylum. The threat to the unity of the United Kingdom does not come from the discontented English who have hundreds of Members in a House of 645, or whatever it may be; it comes from discontent in Scotland. That is what the threat comes from.
The Marquess of LINLITHGOW: I should have thought that the re-writing of the Union was one of the things that this Bill is doing.
Baroness ELLIOT of HARWOOD: I should like to remind the noble and learned Lord that if we go back as far as that there were no votes for women in those days. The representation of the people was of a very limited nature and it was only when we reached the 1920s that we got a fair representation. It is no use saying that we are re-writing the Union because the voting at the time of the Union bore no relation to the present electorate since it is only in the present age that women have had a vote.
Lord McCLUSKEY: With respect, I did not say that we were re-writing the Union; it was the noble Marquess, Lord Linlithgow, who said that we were rewriting the Treaty of Union.
The Marquess of LINLITHGOW: If the noble and learned Lord will please forgive me. I hope that I did not misunderstand. I understood the noble and
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learned Lord to say that we would have to re-write the Act of Union. What I am saying is that we are now re-writing the Act of Union with this Bill. If I am wrong, I should like to be shown why.
Lord McCLUSKEY: What I was endeavouring to make clear was that if we take away the over-representation of Scotland—which was part of the Act of Union, was also re-enacted in 1832, was re-enacted in 1918 and even after women got the vote was re-enacted at the end of the war, and which is now contained in the Representation of the People Act of 1948—then we are in fact removing something that was a bargain struck between the Scots and the English in 1707. At that particular time the Scots wanted 50 seats in the Westminster Parliament, the English offered 38 and a compromise was struck with 45, but that was over-representation on any basis. In fact, the basis was probably wealth, not population, but on any basis it was over-representation. That is part of the pillar of Union. It is not I who am trying to re-write the Treaty of Union; it is those who have moved this Amendment and who are striking at this part of the Treaty of Union.
If I may be allowed to continue, having sat very patiently in my seat for an hour—
A noble Lord: This is the Committee stage.
The Earl of PERTH: I just wish to ask the noble and learned Lord, Lord McCluskey, whether he is sure that he is right about the basis of population in regard to the figures at the time of the Act of Union and now.
Lord McCLUSKEY: I think that was not the basis upon which it was approached in 1707. It was based upon the wealth of the country and at that time I think it was estimated that the wealth of Scotland was one-fortieth of the wealth of England. At least that is what the history books tell me. I should like to say something else which is of some importance, particularly to those noble Lords who are in this Chamber and who supported another measure in the lifetime of the last Parliament. This disproportion between population and representation is hardly unique

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to the United Kingdom. It is not uncommon to find over-representation in related situations. In other words, weighting is commonly to be found where there is a desire to compensate for the disadvantage of smallness and to prevent the small partners in some kind of union or association from being swamped by the larger partners.
This is true of the European Economic Community. When I refer to figures, I shall give the 1973 figures, which still obtain, but, from a German point of view, everybody else who participates in the work of the European Parliament or that of the Council of Ministers or any other EEC body is grossly over-represented—some more so than others. I shall give some examples from the United Kingdom point of view. The United Kingdom has 36 Members in the European Parliament; it has a population of 55 million. Luxembourg has a population of about 300,000 and it has six Members. On a proportional basis, Luxembourg ought to have one-fifth of a Member, or perhaps a Member attending every fifth session. Yet Members, who are prepared to wring their hands about disproportion now, did not point out this anomaly or suggest that it should be ironed out in 1972 or 1973.
The Earl of LAUDERDALE: Would the noble and learned Lord allow me to intervene? He is being very patient, and I am sure when he has had his dinner he will feel better. As a matter of fact during the speech on the European Parliament and the Bill to send British Members to it, it was made clear over and over again that Luxembourg was over-represented for the reasons the noble Lord has given. There has been no mystery about it; it has not been hidden away. We all know it. Everybody who has followed the European legislation is very well aware of it. But I do not want to taunt the noble Lord. I hope he will have a good dinner and enjoy it when the Division is over.
Lord McCLUSKEY: If the noble Earl would care to listen to me, what I want to ask him is what did he do about it. The answer is, nothing; he voted for the measure and the over-representation for perfectly good and understandable reasons. We are talking about a Parliament. Exactly the same situation is to be found in the Council of Ministers, which is a
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Government, where we have 10 votes on the Council. Everyone knows the structure of voting. Luxembourg has two votes when it ought to have about one-tenth of a vote; Ireland has three when it ought to have fewer than one on a strict comparison; Holland has five when it ought to have 2½. The same situation is to be found in relation to the Senate of the United States. This is nothing unique, nothing new.
The Earl of ONSLOW: It does not apply to the House of Representatives, which has equal representation.
Lord McCLUSKEY: I did not mention the House of Representatives; I quite deliberately mentioned the Senate. If this situation is found elsewhere, and is approved, as it was in the case of Europe, by noble Lords opposite, if it was acceptable at the time of the Treaty of Union, and acceptable since, including after women got the vote in 1918, and in 1948, it must be something in the devolution Bill which has upset noble Lords opposite, and I ask myself what can it be. Is the Treaty of Union to be rewritten? The answer is surely, No. All those matters which are essential to the unity of the United Kingdom will remain the sole responsibility of the Parliament at Westminster and that responsibility will continue to be exercised here and will be in no way diminished. It is here that conduct of international affairs will be decided. It is here that policies will be decided on national security and defence. It is here that we deal with trade and industry, employment, industrial relations, the whole management of the economy, energy, our system of social security and many other essential matters which will be formulated, questioned and decided here.
The exercise of responsibility for those matters vitally affects every single member of the United Kingdom, and there can be no good argument for seeking a reduction in the representation of the essential interests of those who happen to live in Scotland, or for that matter Wales, on the achievement of devolution. These matters I have mentioned are not to be touched significantly by devolution at all. What is more—and this ought to be remembered—the proposals before this Committee in this Bill in no way diminish

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the inherent sovereignty of Parliament to legislate on all matters, including those to be devolved. The maintenance of that sovereignty is essential to the concept of devolution; it is both essential and inescapable.
Parliament is being asked to provide for devolution to elected Assemblies in Scotland and Wales. It will retain its power to modify and transform this Bill—in other words, the devolution settlement itself—and that sovereignty needs to rest on full representation from all parts of the United Kingdom. I think much of this was said in a different form by my noble and learned friend the Lord Chancellor when we debated the earlier Amendment, but it is important to repeat it as I apprehend that some Members may wish to vote on this matter. The exercise by the Secretary of State of his reserved powers, to reject an Assembly Bill, to prevent or require Executive action, and to revoke subordinate Instruments which would or might affect a reserved matter or which would not be in the public interest, will be subject to approval by Parliament, except of course where certain international obligations are concerned. There is, therefore, every reason not to change, but to maintain, the full right of representation from Scotland and Wales.
Let me come on to some of the points taken in the debate. The noble Lord, Lord Campbell of Croy, mentioned Northern Ireland. There was an agreement between the Parties to a Speaker's Conference on Northern Ireland, and that agreement implied a further agreement; namely, that it was possible and desirable to consider and deal with that issue now without simultaneously considering the position of the rest of the United Kingdom. It also implied agreement that there was at least a prima facie case for an increase in Northern Ireland representation. Whatever one may think about the merits of this argument, there is no such measure of agreement in relation to representation from Scotland at the present time.
The noble Lord, Lord Campbell of Croy, said, and other noble Lords repeated, that we should give the Members of another place a chance to look at the matter again. They looked at it on 1st February 1977, and defeated a similar proposal; they looked at it again on 31st January 1978, and defeated a similar proposal;
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they looked at it again, in relation to the Wales Bill, on 25th April 1978, and defeated a similar proposal. Surely, as the noble Lord, Lord Campbell, said, or at least implied, and Lord Mackie perhaps said it more clearly, this is a matter on which this undemocratic House should not lecture the democratic Chamber—the structure of the democratic Chamber.
I want to come to a serious, and, I believe, a vital political consideration. Many moderate Scots—I will not endeavour to assess their number—support devolution and renounce more extreme solutions. They consider that the degree of devolution in this Bill is moderate and reasonable and does not deprive them of a proper say in vital United Kingdom matters. But if, as a result of this type of Amendment, they come to lose perhaps one-fifth of their representation in the United Kingdom Parliament, will they not be bound to reconsider their attitudes? Some of them may be driven to the logical conclusion that more power should be devolved, if this is the price to be demanded. Others may in fact lose their moderation altogether.
I believe that this Amendment—not our refusal to accept it—could engender, encourage, foster very dangerous attitudes indeed. I will not be outdone by Lord Campbell or anyone else in proclaiming support for the unity of the United Kingdom. The Government are fully supporting and trying to preserve that unity. In our judgment, this kind of Amendment, saying to the Scots, "You must lose the representation that was part of the Union settlement", is an invitation to depart from that settlement in a most serious way.
Earl FERRERS: If the noble and learned Lord reads the Amendment, it does not say that.
Lord McCLUSKEY: I am just coming to read the Amendment; the noble Earl should not have tempted me. First of all, what this Amendment displays is that the Conservative Party lack the courage to say to Scotland what they want. They will not put a number here because they are frightened to say to the Scots what that number, in their view, would be. They will not even tell us what it is that they would represent to the Speaker's Conference. That is why the Amendment has

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taken this form, which was described eloquently and certainly accurately by the noble Lord, Lord Mackie of Benshie; it is a limpid thing indeed, starting with the word, "may".
May I point out something else. It is also suggested by the noble Earl, Lord Ferrers, that it does not necessarily involve a reduction in Scottish constituencies. It certainly does not necessarily involve a reduction, but it does not even give the option to this Conference of considering perhaps raising the number of English constituencies as well, as part of the readjustment which might be necessary. That is a technical defect, but it is one that is not put before the Speaker's Conference. In my submission, this Amendment is misguided in the context of devolution. It has been rejected repeatedly in the other place. In my submission, it should not be moved into the Bill in this House. It should he rejected here and now.
6.20 p.m.
Lord CAMPBELL of CROY: The Amendment, which I moved rather quietly a little over an hour ago, has certainly stimulated some lively debate. I shall deal very briefly with some of the points that have been raised because my noble friend Lord Ferrers dealt with others.
On the one hand, the noble and learned Lord, Lord Wilson of Langside, criticised the Amendment because he thought that it did not go far enough. He was thinking in terms of the referendum, and that the people of Scotland who were entitled to vote should know what was involved as regards representation in the future in our Parliamentary institutions. On the other hand, the noble Lord, Lord Mackie of Benshie, did not look with great favour upon the Amendment because he thought that we should not be suggesting almost anything to the other place on this subject. Later he intervened to criticise the Amendment as being too limpid and not having enough in it.
However, as I explained when I moved the Amendment, we were very conscious of the delicacy involved in not appearing to lecture another place. We have no intention of doing that. I am not surprised that the noble Lord, Lord Mackie, himself indicated that he was in favour of
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a reduction in the number of Members representing Scotland in Westminster if there were to be an Assembly established with devolved legislative powers in Edinburgh. I am not surprised because his Leader, Mr. David Steel, has publicly stated that he accepts that there would be a need for a reduction in the membership of Scottish Members at Westminster. So, in principle the Liberals differ from the Government—there is a breach in the Lib-Lab pact over this point—and the noble Lord's only criticism of my Amendment is that we should not seek to send anything at all to the other place on this subject.
Lord MACKIE of BENSHIE: The noble Lord is making my criticism somewhat limpid too! All I said was that if the other place wants to have a Speaker's Conference it will have it. It seems to me to be a perfectly simple point.
Lord CAMPBELL of CROY: I turn to the noble Lord, Lord Wigg, and his criticism. He said that the Amendment did not go far enough. I must again point out to him that the Amendments which were considered in another place and which related to a Speaker's Conference were not the same as this Amendment, and suffered from the defect that the Speaker's Conference would have been set up at an earlier stage—not after the Assembly had sat—and would therefore have had the effect of delay. This Amendment is different from what has been considered in another place. The noble Lord, Lord Wigg, expressed in colourful terms his dislike of the Bill as a whole. But I should say that to stipulate, as he suggested, a figure of 57 in an Amendment which we sent to another place would surely be much more open to the charge that we were interfering or seeking to fix the representation in another place than what is proposed in this Amendment. For that reason, it would indeed be much more certain of being rejected in another place than this Amendment.
Lord McCLUSKEY: I can understand the noble Lord, Lord Campbell of Croy, not wanting to offend the other place, but can he inform the Committee as to what representation his Party will make to the Speaker's Conference about the numbers?
Lord CAMPBELL of CROY: That is a long way ahead, but I shall come to that point. I have already indicated, when referring to the report of the Royal Commission which spent four and a half years discussing these constitutional matters, that in its scheme for legislative devolution it suggested the figure of about 57. I was delighted that the noble and learned Lord, Lord Kilbrandon, came into our debate soon after I had been speaking on that subject. Indeed, I see that he is here now. I should have thought that that in itself was an indication from an impartial body of the kind of figure which a Speaker's Conference could anyway have at the back of its mind. However, that would all happen some months ahead. I have not gone further than to point out that the Kilbrandon Commission did not run away from the problem. It squared up to it and addressed itself to the question of representation, and indicated that in its opinion it would have to be a related subject if an Assembly with legislative powers were to be set up.
I must make it clear that this Amendment does not seek to lecture to another place or in any way to interfere or dictate. That is why it is in these terms. It has been criticised as limpid and not going far enough. It would not have effect unless the Prime Minister of the day initiated the action, and it would be after an Assembly had been set up. I agree that there can be no question of your Lordships' Committee and later your Lordships' House telling another place what to do about this matter. There is no question of that at all. It is simply a question of giving another place the opportunity again to consider this matter in a different form.
The noble and learned Lord, Lord McCluskey, said at the beginning—and this is what really must, of course, be the background to his whole approach to the matter—that the Government have given a firm commitment, and did so some time ago, that in putting forward proposals in a Bill for devolution of this kind they would not in any way disturb the representation at Westminster of Scotland or Wales. Given that the Government have given that commitment—whether or not they were wise to do so is another matter—it means that the noble and learned Lord is in an impossible position today
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to give way at all on this matter and he has to stick to that. However, I say to him that the Government may have given that commitment contrary to the recommendations of the Kilbrandon Commission, but that will not remove the probability that there will be great dissatisfaction, even resentment, in England later on. That is what I am worried about: that is what is known as the English backlash.
Clearly the noble and learned Lord and I have a different estimate. I believe that he has underestimated what could be the situation in two or three years' time. Of course, I am fully aware, like him, of certain dissatisfactions with the present system North of the Border. Having been the chief executive under the devolved administration for nearly four years I would be the last person to try to defend exactly the position as it is now. However, that is quite a different matter from saying that there will never be any dissatisfaction South of the Border—that England will just be happy and we need not bother about the English; it is the Scots who are really causing the problem.
The noble and learned Lord also referred to international organisations and the EEC. I shall only say that as soon as we get into international organisations the whole question of parity of voting powers and representation disappears completely. In the United Nations Assembly the United States of America has one vote and Luxembourg and all the tiny independent countries in the world only have one vote. As soon as we get into the international sphere, of course, the situation is quite different.
The noble and learned Lord who has helped us a great deal with great stamina, for what is now nearly 12 days of the Committee stage, when some of his colleagues fell by the wayside through illness—I am glad to see that the noble Lord, Lord Kirkhill, is back again today—has today told us that a commitment has been given. That, of course, has restricted anything he had been able to say to us today because the Government have given that commitment and they will not go back on it. So I know that it is not possible for me to persuade the noble and learned Lord, and with his distinguished advocacy he has been putting the Govern-

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ment's case. However, I believe that the reply which he has given should strengthen those who consider that the Amendment does not go far enough, to support it. I believe that this is a matter which we should now put to the test.
6.29 p.m.
On Question, Whether the said Amendment (No. 327) shall be agreed to?
Their Lordships divided: Contents, 102; Not-Contents, 93.

Stewart of Alvechurch, B.

Wallace of Coslany, L.

Winterbottom, L.

Stone, L.

Wigg, L.

Wynne-Jones, L.

Strabolgi, L. [Teller.]

Wigoder, L.

Young of Dartington, L.

Tanlaw, L.

Willis, L.

Younger of Leckie, V.

Taylor of Gryfe, L.

Wilson of High Wray, L.

Taylor of Mansfield, L.

Wilson of Langside, L.

Resolved in the affirmative, and Amendment agreed to accordingly.
Clause 62 [Status and remuneration of certain officers and servants]:
[Amendment No. 204 not moved.]
6.38 p.m.
The Earl of SELKIRK The Earl of SELKIRK moved Amendment No. 205:
Page 30, line 12, leave out ("state") and insert ("United Kingdom").
The noble Earl said: As I came to read this Bill, at Clause 62 I came upon the phrase:
"the home civil service of the state".
Previously I have never seen the home Civil Service referred to in these terms. I should have thought it might have been adequate to have said, "the Home Civil Service". However, if you want to add anything to that, I should have thought that the correct words were, "the United Kingdom". The reason—apart from other things—is that the word "state" is equivocal in the English language; it can refer either to a province of the federation or to the federation government. Both those are possible interpretations of the word. I should have thought that it would be very much clearer if we said "of the United Kingdom".I think I am right in saying that it does not in any way change the meaning.
As I am speaking I should like to ask the question: Why is the Diplomatic Service not included? Why must it be the Home Civil Service? Indeed, the Chairman of the Highlands and Islands Board was from the Diplomatic Service. Is there any reason why the phrase "Diplomatic Service" or the phrase "the Home Civil Service" should not, in fact, be included? I mention that only because it is a possibility that should not necessarily be excluded. I beg to move.
Lord McCLUSKEY: In fact, a variety of terms are used in legislation to refer to the Civil Service. I would refer the noble Earl to Article 2(1)(a) of the Minister for the Civil Service Order 1968, which refers
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to the "civil service of the state" as an omnibus expression covering all branches of the Civil Service, including the Home Civil Service. That is the wording that has been adopted in the Scotland Bill and, for that matter, in the Wales Bill. On the other hand the Civil Service Order in Council of 1969 refers to "Her Majesty's home civil service". This wording could equally well have been used in the present case. We use the term "home civil service" because that is continuing the status quo. The people who now do this kind of work are members of the Home Civil Service.
Although different forms of wording could have been used, one point is clear beyond doubt; the reference to the Home Civil Service of the State could in no circumstances be construed as referring to a separate Scottish Civil Service, because Scotland is not a State in any sense of the word, and not in either of the senses figured by the noble Earl. If there were any doubt about its meaning, the reference could not in any case be taken to imply that the Assembly could establish its own Civil Service. The Bill does not give the Assembly legislative competence in this field. This was a point which my noble friend Lord Ponsonhy recognised when he moved Amendment No. 170, which sought to add a group—namely, Scottish Public Service—to Schedule 10.
If the noble Earl is dissatisfied with my explanation and with the wording in the Bill, then perhaps we could consider together—and I should be happy to do this at any time with him—possibly using "Her Majesty's home Civil Service". But I do not know whether that is really satisfactory to cover the point that he has in mind. Certainly I would argue that the wording in the Bill is adequate for the purpose that I have sought to explain.
6.42 p.m.
Lord CAMPBELL of CROY: My noble friend mentioned the Diplomatic Service and made a reference to the chairman of the Highland Board. I ought just for the record, as that was an appoint-

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ment for which I was responsible, say that it was not a secondment. Nowadays people can be seconded between industry amd the Civil Service—and personally I think the exchanges of this kind are fruitful—but in that case it was someone who had retired, so it was not an appointment made as a civil servant.
Lord MORRIS: May I briefly support the noble Earl's Amendment just for one small but important reason. The term "State" has a rather unpleasant totalitarian ring about it, be it of the Left or of the Right.
Lord HARMAR-NICHOLLS: Why does the Front Bench opposite shy away from wanting to use "United Kingdom"? It seems as though they are terrified that this Scotland Bill will be associated with the United Kingdom. Perhaps it would be better if my original word of "dynamite" were brought into it. But I should have thought that "United Kingdom" would express what the Government ought to have in mind. My noble friend has an Amendment that will eventually be reached which says what my noble friend Lord Selkirk may have had in mind. The Long Title of this Bill is not adequate. We ought to amend it to make it a clean Parliamentary measure. It ought to be the "Scotland Bill and the United Kingdom" because there are so many things in it which affect the United Kingdom.
I have been looking at these matters now for nearly 30 years and I have never seen a Bill of this length and fundamental importance where the Government Front Bench has refused to accept even the most minor Amendments. I have never seen a greater reluctance to appear to accept even minor Amendments in order to give satisfaction than we have seen on this Bill.
Lord McCLUSKEY: Would the noble Lord give way a moment? I am not reluctant to accept a change in the wording of the Bill, but I do not think that until I spoke the noble Earl had heard the reason for using these words. The words which he proposes are not precedented. The words which I use are precedented. It may be that in the light of these exchanges the noble Earl and I can reach an agreement about this matter.
Lord HARMAR-NICHOLLS: One has to distinguish the Government from the noble and learned Lord. I do because I have such an admiration for him, and I have the opposite of admiration for the Government that is sponsoring this measure. He has said that he is prepared to think of calling it "Her Majesty's home Civil Service" as an alternative. Why cannot we have the United Kingdom mentioned in this? It is going to be very much affected by it. It is on those grounds that I support my noble friend. This is one little concession—if you can call it that—which could give at any rate the appearance that the Government have not made their minds up so completely that they are not even prepared to have a dot or a comma altered. The Long Title of the Bill eventually has to be altered to use the words "United Kingdom". Therefore we may just as well start now.
The noble and learned Lord retrieved himself to some extent, but not sufficiently. Why be so anti the poor United Kingdom? I can understand it from the noble Lord, Lord Mackie of Benshie, because he has made no bones about it that his only concern is for Scotland. I admire him for that, but since he sits here in the middle of the United Kingdom I should like to see from him, and certainly from the noble and learned Lord, just a little recognition that Scotland for the time being is still part of the United Kingdom.
Lord MACKIE of BENSHIE: I have constantly said that I was concerned about the United Kingdom and that my concern for an Assembly was for Scotland and the United Kingdom. But the noble and learned Lord is so obtuse that he cannot possibly take in what is said to him repeatedly from all sides of the Committee, so perhaps I am not alone in being misunderstood.
Lord McCLUSKEY: While I have been listening with one ear to the noble Lord—and he will forgive me for not employing both—I have been rapidly looking through the Bill, and I find that "United Kingdom" is mentioned in the Bill on page 16, line 36, page 17, line 37, page 18, line 29, page 22, line 24, and page 29, line 35. These are the only pages I have looked at so far.
Lord DRUMALBYN: I think that the noble and learned Lord's suggestion is a

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very happy one, and I hope that my noble friend will accept it. I am sure that the Home Civil Service in Scotland serving the Assembly will be glad to be identified as Her Majesty's Home Civil Service. May I just ask one question, to which I ought to know the answer but I am afraid I do not: is the Civil Service of Northern Ireland part of Her Majesty's Home Civil Service? I gather it is not. Then surely "United Kingdom" are not the right words to use, because it is the United Kingdom of Great Britain and Northern Ireland.
6.47 p.m.
The Earl of SELKIRK: I am happy to accept the noble and learned Lord's suggestion. It is a very small matter, which I accept. We are now on the tenth day and I think we have been given one Amendment. The Government should remember that: one Amendment in ten days; 80 hours of discussion. That is all the Government have given. I am not asking very much, and I shall not press it. When I read this Bill through the question passed through my mind for a moment, are they going to call Scotland a State? I admit that when you read it more carefully it does not leave any doubt. I think the word is ugly. We talk about "Government's servants" and "Government offices", and we talk about nationalised railways. We do not talk about State railways in this country. I can only say that it shows how careful we must be not to let the Government set up a bad precedent. I personally think it is an ugly phrase, but I will not go further than that. I beg leave to withdraw the Amendment.
Lord WIGG: May I just help the Government with some statistics?
The DEPUTY CHAIRMAN of COMMITTEES (Lord Nugent of Guildford): There is a Motion before the Committee that this Amendment be withdrawn. Is it your Lordships' pleasure that this Amendment be withdrawn?
Amendment, by leave, withdrawn.
6.49 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 286:
Page 30, line 39, after ("any") insert ("description of").
The noble and learned Lord said: There are two Amendments which are related: Amendments Nos. 286 and 287. They are both to the same effect. They are related in fact to Amendment No. 261 which has already been made to paragraph 23 of Schedule 10. These Amendments are all to ensure beyond doubt that the references in Clause 62(5) to "designnated persons" are not construed as references to persons as individuals but to persons described by reference to the capacity in which they perform the services. I hope I may be forgiven, in dealing with this Amendment, if I briefly try to answer a point raised by the noble Earl, Lord Selkirk, when he spoke on the 10th May, and his question was asked in cloumn 983 of the Official Report. He raised two points, one of which has already been dealt with on the previous Amendment. The other point was whether a person appointed by a Scottish Secretary could enjoy Civil Service terms and conditions of service.
This is the position: Scottish Secretaries will appoint their own officers and servants under Clause 20(9) and these officers and servants will be members of the home Civil Service under Clause 62(1). For normal, what might be called permanent, appointments, the individual concerned will need a certificate of qualification issued by the Civil Service Commissioners. Scottish Secretaries will also, like Ministers, be able to make period appointments. Special advisers to Ministers are normally appointed on this basis and it would be open to Scottish Secretaries to make similar appointments. Holders of period appointments would be civil servants and would be appointed on Civil Service terms, but they would not be certificated by the Civil Service Commissioners; such appointments are of less than five years' duration and can be repeated or extended only in exceptional circumstances.
Paragraph 23(a) of Schedule 10 enables the Scottish Secretary to determine the terms and conditions of service of persons who are paid by a Scottish Secretary, except those persons who fall within the coverage of Clause 62. Paragraph 23(a) can therefore apply only to those people who cannot be described as officers and servants and who are not therefore civil servants. For example, if a Scottish

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Secretary wished to employ a consultant on a fee-paying basis, he could do so under paragraph 23(a). Thus, the answer to the question put to me by the noble Earl, Lord Selkirk, is that a Scottish Secretary will be able to appoint his own officers and servants, who must be civil servants. Paragraph 23 of Part II of Schedule 10 would not enable a Scottish Secretary to bring in non-civil servants on Civil Service terms because anyone employed on this basis would be classed as an officer or servant and would, by virtue of Clause 62, have to be a civil servant.
The Earl of SELKIRK: I am grateful to the noble and learned Lord for that information. I understand, then, that the Scottish Secretary cannot employ anyone unless he has a certificate and is approved by the Civil Service Commission or the Minister in charge of the Civil Service. In that event, the Amendment is no more than a drafting Amendment making it clear that these people are appointed by their tasks and offices and are not necessarily referred to individually. I hope I have understood the noble and learned Lord aright. This is very important because it means that he will have nobody on his staff who is not part of the home Civil Service.
Lord McCLUSKEY: I accept entirely what the noble Earl said, except that holders of period appointments would not be certificated by the Civil Service Commissioners, as I said.
Lord WIGG: I now make the point I had intended to make a little earlier. It is simply to tell my noble and learned friend Lord McCluskey not to be downhearted at the statistics given by the noble Earl, Lord Selkirk, who pointed out that after 10 days and 80 hours of deliberations only one Amendment had been accepted. When one compares that record—the fact that one Amendment here has been accepted—with the Conservative Party's record on the European Community Act (not only here but in another place, and both in Committee and on Report) one sees that not one Amendment of any kind did they accept. I therefore feel that the Government are doing rather well in having accepted one.
Lord McCLUSKEY: An Amendment or two was accepted in the other place

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and we are certainly going to accept more Amendments—
Several noble Lords: Hear, hear!
Lord McCLUSKEY: —or redraft certain parts, so one must say, "Live horse and you will get oats".
On Question, Amendment agreed to.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 287:
Page 30, line 42, after ("person") insert ("of a description").
On Question, Amendment agreed to.
Clause 62, as amended, agreed to.
Clause 63 agreed to.
Lord STRABOLGI: This may be a good moment to halt the Committee to take other legislation and a break. I therefore beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

FILMS BILL [H.L.]
6.55 p.m.
Lord BIRKETT: My Lords, I beg to move that this Bill be now read a second time. I hope to detain your Lordships for an extraordinarily short time in moving this Motion. This is I believe an entirely beneficial and simple Bill. It is, as its title implies, a Bill to amend one particular section of the Films Act 1960. That Act dealt largely with the question of quota, "quota" being the cinema industry's short term for the obligation laid on cinemas to show a certain number of British films in any given year. That obligation of course is now to show a certain proportion of British and Common Market films, but the proportion remains the same, usually about 30 per cent. in the case of first feature films.
Section 6 of the Act dealt with one particular and rather individual problem. It sometimes happens that a cinema showing a foreign film will find quite by surprise that it has on its hands a success and that the film continues, by public demand as it

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were, to run for a considerable length of time. Because the provisions of the quota run year by year, exactly annually, it can happen that a cinema finding itself with a successful and long-running film on its hand is or might be obliged to take it off for a while simply to fulfil its quota obligations for that particular 12-month period and then put it back on again. By the time it comes back on again public interest may have evaporated, so that the whole business of taking it off in these circumstances would be frustrating for the public and obviously very poor business for the cinema.
Section 6 of the Act was designed to cope with the situation simply by saying that a cinema might, if it wished, make application to the Board of Trade, as it then was, via the Cinematograph Films Council, the most representative and authoritative body in the film industry, for a direction to be issued that its quota obligations could be taken over a two-year period; two years could be lumped together and averaged out. This amounted to, as it were, borrowing one's allowance of foreign films from the next year, and the effect of course was that exactly the same numbers of foreign and British films were shown as would have been shown, but there was simply an averaging out.
It was an entirely helpful piece of legislation. Unfortunately, the phrase in the Act which deals with this application says that the application must be made before the film is shown. Noble Lords will realise that in most cases it is not possible to predict which films will and which will not become great successes. This provision is intended to deal only with considerable success because it specifies that the film must be running for eight weeks before it applies, so it is clear that in most cases it is not possible to know in advance whether or not one will have that sort of film on one's hands.
Cinema proprietors are nothing if not optimistic, so noble Lords can imagine the result; they simply make application for every foreign film they are about to show on the off-chance that it may become one of the successes for which the provision was intended. This means of course that an enormous amount of wasted effort goes on because the Cinematograph Films Council and the Department of Trade
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must process an enormous number of applications which in the long run will be useless because they will not apply.
The Amendment proposed in the Bill deals with this problem simply. At this point I should perhaps mention two other small alterations in drafting which are what one might call modernising amendments simply to cope with the situation as it now is. For example, there is a bracket after the words "foreign film", so that it reads
"a foreign film (other than a Community film)"
That has come upon us with EEC legislation since the Films Act 1960 was passed. Also, where it used to say "Board of Trade" the phrase now reads, "Secretary of State for Trade". Those are automatic and what one might call modernising amendments, but the real amendment lies in some simple words. The 1960 Act said at the appropriate point:
"Where a film is to be exhibited at a cinema, and before it is exhibited there, an application for a direction"
may be made. The new Bill that I am proposing to your Lordships today says:
"Where a film … is to be or is being exhibited at a cinema and before or while it is exhibited there…".
In these tiny phrases is contained the entire amendment proposed by the Bill. I believe that the Bill will save an enormous amount of wasted effort on the part of cinemas, the Cinematograph Films Council, and the Department of Trade. It will have no other effect whatsoever, except to prevent this waste of labour. I believe, therefore, that it is a Bill which will be of advantage to many people, and of disadvantage to no one whatever. Accordingly, I beg to move.
Moved, That the Bill be now read 2ª—(Lord Birkett.)
7.1 p.m.
Lord REDESDALE: My Lords, we should all congratulate the noble Lord, Lord Birkett, upon bringing forward this small, but very useful Bill. I shall detain your Lordships only for a very short time, as I felt that the noble Lord, Lord Birkett, put the case very clearly. From these Benches we entirely, and wholeheartedly, support it. It would seem that the Bill could save a considerable amount of time for the Department of Trade and for the

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Cinematograph Films Council. As the noble Lord said, very few films are runaway successes, and even on the most optimistic figure only about 30 per cent. might be regarded in this way. So the Bill should save 70 per cent. of the labour on the applications which are brought forward. I hope that the Bill passes speedily through the House.
7.2 p.m.
Lord BEAUMONT of WHITLEY: My Lords, I, too, should like to join in the general welcome for the Bill. It is very nice to have Bills which enable people to do things rather than stop them doing things. It is very good to have Bills which mean less work and less bureaucracy, rather than those Bills which mean the opposite. The Bill proposes a highly desirable amendment, and I believe that everyone is extremely grateful to the noble Lord, Lord Birkett, for putting it forward.
Of course, I cannot resist the opportunity —even though it will take me one minute, instead of the nought that is still on my "board"—to say that this does not necessarily mean that one approves of the quota system as such, and that a far greater simplification would be to abolish the quota system. Like most methods of protection, it in fact probably has rather harmful results. It may be to a certain extent responsible for the appalling state in which the British film industry is at the moment, or has been until fairly recently, and it may also deprive the few good films that we produce of some of their share of the overseas market, because of reciprocal feelings and actions on behalf of other countries. But as the noble Lord, Lord Birkett, courteously pointed out to me on the phone when I raised this matter, it is hardly germane to the Bill, which itself is totally to be welcomed, and I so welcome it.
7.4 p.m.
Lord HARMAR-NICHOLLS: My Lords, I should like to say a few words in support of what has been said in welcoming the move being made by the noble Lord, Lord Birkett. Any assistance, no matter how tiny, that can be given to the cinema industry in this country, and in particular to proprietors of cinemas, can only be welcomed. The Bill represents a tiny, but welcome, contribution to help
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counter the paper work, the increases in the rates, the interference, and all the other matters which have made it almost impossible for people who have provided cinemas or leisure centres in small towns and villages to continue to do so.
The Bill will not make a great contribution to turning the tide which flows against these people; nevertheless, it is a contribution. Those of us in business today know how overwhelming paper work can be, particularly the kind of paper work in which, if a certain date is missed, a matter of principle has to go by default. The Bill is a tiny contribution towards helping to maintain cinemas in this country; this can only be welcomed. I hope that it is the first of many other moves to remove bureaucracy, so that people who want to provide these kind of leisure activities can do so without being stifled.
7.5 p.m.
Lord WALLACE of COSLANY: My Lords, I should like to support the noble Lord, Lord Harmar-Nicholls, in this move to do away with a certain amount of bureaucracy—that may stagger him. First, I wish to thank the noble Lord, Lord Birkett, for bringing forward this small, but very important and useful, Bill, and indeed for the way in which he presented his case for it, albeit briefly. Before going further, I should add that the Government warmly support the Bill, and I hope that the House will give it a speedy passage. I have no authority to make any further comments for another place. The noble Lord, Lord Beaumont of Whitley, mentioned quotas in his speech of commendation. Of course this is a vexed question, and I would remind him that the committee chaired by the right honourable Sir Harold Wilson is looking into all matters relating to films and can, if it wishes, report on the future of quotas. Perhaps the noble Lord will contact my right honourable friend, or his committee, and put forward various suggestions.
The noble Lord, Lord Birkett, has explained the purposes of the Bill so well that there is no need for me to add anything other than a few words of explanation, which may be helpful towards underlining what he said. Section 6 of the Films Act 1960 allows the Secretary

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of State for Trade, after application by a exhibitor, before—and it is important to note the word "before"—exhibition of a registered foreign film at the exhibitor's cinema, and after consultation with the statutory advisory body, the Cinematograph Films Council, to issue a direction enabling that cinema to fulfil its statutory quota by showings of British and Community films over the current year and the following year taken together, rather than in one year. This is, of course, of great convenience to exhibitors when they find that they are likely to have a long run of a foreign film which they do not wish to interrupt in order to fulfil their quota obligations within that same year.
I have stressed that the application has to be made before exhibition of the registered foreign film commences. This is a statutory requirement, and as far as we can discover, there is no reason why this time bar provision was put into the Act. It has, however, proved to be of great inconvenience to exhibitors. It means that they have to apply before they know whether the pulling power of a film is as good as they hope. Consequently, many exhibitors apply for a direction in anticipation of a good run—which direction is later found to be unnecessary, the film not having lived up to expectations.
This causes a great deal of work for exhibitors, and at the end of April 1977 nearly 70 per cent. of the directions issued had been of no effect. In February 1975 the Cinematograph Films Council recommended that Section 6 of the 1960 Act be amended to enable exhibitors to apply for a combination of quota periods before, and after, exhibition had commenced. The Government were awaiting a suitable legislative opportunity to take action on this recommendation, but the noble Lord, Lord Birkett, has stolen the march on us. It is a sensible amendment, and one which, if enacted, will save work and remove a slight source of irritation to cinema exhibitors. The Government commend and support the Bill, and I, in turn, commend it to your Lordships.
7.9 p.m.
Lord BIRKETT: My Lords, I am extremely grateful to all noble Lords who have so kindly supported this small Bill.

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I am grateful to the noble Lord, Lord Redesdale, for emphasising the statistic of 70 per cent.; 70 per cent. of wasted effort is indeed a very large amount. Having said what I said over the telephone, it would not behold me to make much reference to the fine free trading speech that came from the Liberal Benches, but it was nice to hear it. I was pleased to note that the noble Lord, Lord Harmar-Nicholls, has warmth and sympathy for the film industry in general, and I know that it will hearten everybody to read his words.
I am also grateful to the Government for their support of this Bill. I, too, am looking forward enormously to the very much larger issues which will be discussed by Sir Harold's Committee. I think the whole film industry is looking forward to that as being the most important thing in our lives. I am grateful to noble Lords for all their support.
On Question, Bill read 2ª, and committed to a Committee of the Whole House.
Lord STRABOLGI: My Lords, I beg to move that the House do now adjourn during pleasure until 8 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[Sitting suspended from 7.10 p.m. until 8 p.m.]

SCOTLAND BILL
House again in Committee.
Clause 64 [Public bodies]:
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 207:
Page 31, line 18, at beginning insert ("Subject to the reservation of functions listed in Schedule 15 to this Act").
The noble Lord said: The noble and learned Lord, Lord McCluskey, will immediately recognise that this is another Amendment on Schedule 15; and the last Amendment which I moved served as notice that an explanation was needed about how Schedule 15 fits into the Bill. On that occasion, the noble and learned Lord was good enough to say that he himself was somewhat mystified and not

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completely satisfied about the role which Schedule 15 is to play in the Bill, and that he hoped at a later stage to be able to inform the Committee about it; and, of course, I was very glad to give him the time in which to do that. I hope he may be ready today to tell us more about Schedule 15, because that is the purpose of this Amendment; it is simply a probing Amendment.
Perhaps I may remind your Lordships that I had two points. First of all, Schedule 15 has against it, in the rubric, reference to Clause 77. It is therefore related to that clause. But Clause 77 is simply the definition clause, and contains the definition of "reserved functions"; and that raised in my mind the question where Schedule 15 fitted in, as it was related only to a definition clause. Then, the second point which I raised, and which I think the noble and learned Lord very much took on board, was that, even if one gets that explanation, there is a danger of some ambiguity in the Bill because, al-although the definition of the term "reserved functions" is in Clause 77, the term "reserved functions" appears in different parts of the Bill; and when someone is reading the Bill they may well think that it simply means functions which are reserved rather than devolved, whereas under the definition, "reserved functions" has a very specific meaning in the Bill. They are simply functions reserved for certain bodies which are listed in Schedule 15. So, quite apart from the first point about how Schedule 15 fits into the Bill, I think one also wants to raise the drafting point of whether it is satisfactory to have a possible misunderstanding about the term "reserved functions" when one meets it in the Bill.
If we can go to the immediately preceding clause (I did not raise this on the Question, Whether the clause shall stand part? because I realised it would be more convenient to the Committee if I raised it now) we see that in Clause 63, at the beginning of line 13 on page 31, there is the term "reserved functions". Without studying it in great detail, I immediately wonder, because I know this point of ambiguity exists, whether that means reserved functions in the general sense, as opposed to functions which are devolved, or whether it means reserved functions in the specialised sense of the definition in Clause 77.
There are some other points in the Bill where the term "reserved functions" appears and where there could be this ambiguity; a misunderstanding to those who will have to deal with the Bill later, if it is enacted. So I hope that the noble and learned Lord, in the time between the last probing Amendment on this subject and now, has been able to deal with these questions. I beg to move.
Lord McCLUSKEY: I hope I will not disappoint the noble Lord by my answer, but I certainly will not surprise him if I say that, of course, when one looks at a part of the Bill and finds that it is not immediately satisfactory—that was his experience, and I shared it with him—it is not necessarily very easy simply to alter one or two words, because it sometimes affects the structure. The position is that we are still looking into the matters that were discussed on the previous occasion and which the noble Lord has touched upon on this particular occasion. We are reconsidering Schedule 15, and the current state of progress, as I am advised, is that a submission has been put to the draftsman and we are awaiting his deliberations and decision on that. I can only say, therefore, that I shall be returning to that matter when we come back to this part of the Bill on Report.
So far as Clause 63(2) is concerned, I think it is clear that the use of the words "reserved functions" is as defined in Clause 77. Indeed, that is so whether the words appear in this clause or elsewhere. As I pointed out on the previous occasion, the words appear in some of the Schedules. So it is really just a holding operation at the moment. We are hoping to make progress, but I cannot report progress at this stage.
The Earl of PERTH: If I understand the noble and learned Lord aright, he is going to have another look at the words "reserved functions". I am sure this is a good thing, because the phrase is confusing I think, to the ordinary person. We who have gone all through the debate understand it, but come a year or two it might be a matter of great puzzlement. So I hope those two words will be looked at again.
The Earl of SELKIRK: I am very glad that the noble and learned Lord is

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looking at this. I find it very difficult to reconcile Schedule 15 with Schedule 10. I thought that in dealing with Schedule 10 —this monstrous Schedule— we had settled this business. I do not even know whether Schedule 15 reconciles itself with Schedule 10. So I am delighted to hear that some consideration is being given to that. I do not know whether it will be possible to replace it with a Schedule saying which of those local authority subjects w ill receive specific grants. This is not unimportant, particularly in view of a letter I received from the noble Lord, Lord Kirkhill, on this. As I understand it, specific grants reserved to local authorities will be paid directly by the Secretary of State and will not form part of the block grant. I think that, in point of fact, it was worth putting that into this Schedule in place of what is there. Many of these subjects in Schedule 15 will be part of the block grant, but not all of them. I think that it would have been not without some significance if we could know which ones will be singled out for specific grants and which will not. I do not know whether the noble and learned Lord can consider that point, perhaps, when he is examining Schedule 15.
Lord McCLUSKEY: I think that if one looks at where these words appear in the clauses of the Bill one sees that they in fact arise only in Clause 63(2). Plainly, the functions referred to there are functions which are not necessarily functions which receive specific grant payable directly to the local authority. But I am certainly looking at the whole matter, because the one thing I want to avoid is any possibility of confusion; and it was because, when we looked at the Amendment moved on the previous occasion, Amendment No. 169, we recognised the possibility of confusion that we decided to look at the whole matter again. So all these points are being taken into account.
Lord CAMPBELL of CROY: I am grateful to the noble and learned Lord. I will make it clear that I do not think there will ever be a complaint from me on this side of the Committee if the Government say they are looking at something and need time to look again at it, because I think that these matters are so important that, if there is doubt about the role which a Schedule is to play in the Bill, I
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for one would far prefer the Government to take their time and have the benefit of the advice which is available to them, and, if necessary, rewrite that part of the Bill. So I make absolutely no complaint that the noble and learned Lord, after several days, still cannot give us a complete reply; and I am glad that this reexamination is taking place.
I realise, as the noble Earl, Lord Perth, has said, that it would be difficult for the layman picking up the Bill not to fall into a trap when he met the term, "reserved functions". I recognise also that those who spend their lives dealing with legislation, if they pick up a new Bill, probably start by looking at the definitions clause to see whether there are in it any special terms of art for that Bill before reading any of the clauses. Most people who are involved in legislation, certainly if they see only extracts of legislation, are not to know that what looks like an ordinary expression has a special meaning whenever it appears throughout this Bill. For all these reasons I am glad that the Government are taking this seriously and continuing their re-examination of it, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.11 p.m.
Lord WIGG Lord WIGG moved Amendment No. 388:
Page 31, line 27, at beginning insert—
("Subject to subsection (2A) below").
The noble Lord said: I beg to move the Amendment standing in my name on the Marshalled List. With permission, I should like to deal with Amendments Nos. 388 and 389 together for they hang together and it will save time. The purpose of Amendment No. 389—if the Government accept it, as I hope they Will—is to make it clear that the powers of the Secretary of State, if an order is moved under Clause 64, will be limited to the existing powers that the Home Secretary possesses under the Acts which are mentioned in Schedule 13. On 10th May I troubled your Lordships on the Motion that "The clause stand part" by raising this subject. I thought that I did it fairly; that is to say, I made it perfectly plain that I did not expect a reply, that I was unable to ascertain the reasons why betting and gaming were devolved subjects and that I was unable to ascertain from

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any of the bodies concerned what it was likely that the Government had in mind would result from the devolution of these powers. I regretted (but I do not complain) that the noble and learned Lord, Lord McCluskey, thought that I ought to have given notice. All I can say is that I intended to raise the subject and I give notice again now. I shall pursue this matter until I get not an answer that I necessarily accept but an answer which makes it quite clear that the Government have considered, and fully considered, the steps they have taken.
The only other point I would make in connection with what the noble and learned Lord, Lord McCluskey, said to me—and I do not think he was complaining that I had not attended all the debates—is that he said that on two previous occasions we had debated betting and gaming or various aspects of them. I thought that I had read all the debates reported in Hansard at which I had not been present; and I did not remember that. So the next morning I phoned up the Scottish Office and asked them if they would be good enough to give me references to what the noble and learned Lord had in mind. They referred me to a debate—it was very late at night, I think on 3rd May, and it was reported in the Hansard of 4th May—when the question of a national lottery came up in the Small Lotteries Bill which has nothing to do with the subject that I am raising. Therefore, the noble and learned Lord, I am sure not wittingly, misinformed the House when he said that the subjects referred to by the enactments in Schedule 13 had been before the House on two previous occasions. This is not so. We all make mistakes; this is one easy enough to make.
I want to come back to the real point. Why have the Government devolved these subjects? What do they think is involved in that devolvement? I am going to take as an example (and I will be as brief as I can) the Gaming Boards. In the 75th Annual Report of the Gaming Board, which is a report presented in conformity to Statute, to the Secretary of State for the Home Department, and which is tabled and can be obtained in this House and in another place, the Gaming Board noted that a White Paper on devolution had been circulated and that the Gaming Board was included in the appendices.
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They made it quite clear that in the seven years of the Board's existence and in cooperation with the police forces of England, Wales and Scotland:
"We built up a system of control for an activity in which the real dangers of infiltration by unwelcome elements are never very far remote".
They made it clear that the Gaming Board was in opposition.
This was a board of some substance. Its Chairman, Sir Stanley Raymond, had held that post for nine years, appointed by successive Governments. It was the considered view of him and his colleagues that this should not be devolved. He said that it would be more appropriate to consider possible devolution of gaming and lotteries after the publication of the Report of the Royal Commission on Gambling, a Royal Commission appointed by the present Government. That was in 1975. In 1976, the Gaming Board came back to the subject and said:
"In our Report for 1975 we said that the board had represented in the context of the White Paper on Devolution to Scotland and Wales, Our changing Democracy, that the regulation of gaming and lotteries should continue to be on the same basis throughout Great Britain and should not be a devolved matter".
They said:
"Other views prevailed. The Scotland and Wales Bills now before Parliament provide that devolution shall extend to gaming and lotteries. The Government have never said why nor have they given any indication to the Gaming Board or to anybody else of the reason for this action".
The report goes on:
"We have made known our firm opinion that the arguments in respect to devolution in Scotland and Wales apply with greater force to regionalisation".
They made it absolutely clear that they were opposed. They regarded it as tied up with the concept of law and order and it should not be devolved.
That is not all. I reminded your Lordships that the chairman was Sir Stanley Raymond. In 1976, evidence was given to the Royal Commission on Gambling—and the evidence has been published—which says:
"As to lotteries, the law and order issue does not arise in the same acute way; but it must be recognised that any sensible system of control must apply both to where a lottery is organised and where the tickets are sold".
They go on to warn that if this is not done —and I cannot believe that the Minister

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who replied to the debate on May 10th ever read this evidence; and certainly the Home Office had not read it—
"the abuses which the Government have taken action on about the Irish Sweepstake lottery and multi-lotteries would most certainly reappear".
They go on to say:
"The Board see no substantial argument specifically on gambling in favour of devolution but agree that there is a general contention for the devolution of control. Against this, the Board would say that as regards gaming, local interests are cared for in the same system of licensing arrangements and the Board would see no substantial advantage but considerable danger in departing from this concept of a single gaming board for Great Britain".
They go on to argue throughout the whole of the evidence against this.
On this occasion I must stress that the chairmanship of the Gaming Board had changed. Sir Stanley Raymond had resigned after nine years and his place was taken by one of the Membership of this House, Lord Allen of Abbeydale, who had the distinction of being a very wise and competent Permanent Secretary of the Home Office, the very Department responsible for all these activities. So there is a statutory body publishing annual reports and giving evidence to the Royal Commission. In its first evidence, which it repeats, it says, "Leave it at least until the Royal Commission has reported."
The Royal Commission's report is imminent. It has had a very arduous task; but I have no doubt that before the Summer Recess the report will come. I should have thought that the Minister who is replying to me—and in my poor way I was only seeking information—would have said: "We have taken all this into account. We are waiting and we are going to see what the Royal Commission says." The Secretary of State has shuffled to the Royal Commission every single issue that has been at all difficult, every hot potato has been shuffled off to the Royal Commission. I have no doubt that it has now completed its work and that it is at the printers. There is no earthly reason why the Home Secretary should not have asked for an advance copy and advised the Committee of what was said. But no; here is a conception of gambling which has been built up over the whole length of these islands, which is clearly influenced not by any country's boundaries but is subject to influences that
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come from abroad, and vice versa. This is completely ignored.
I drew attention in the debate on 10th May to the fact that the only sections that are mentioned in Schedule 13 are those sections of the Gaming Act, and those sections of the Betting, Gaming and Lotteries Act in relation to the Horse-race Totalisator and the Betting Levy Boards which deal with the appointments to the boards. There is no other section. Therefore, I in my innocence, thought that probably what the Government were doing—and I still believe this to be true—was to put another dummy in the shop window. Somebody has said: "What are some safe subjects to devolve that we can mention"? This was one of them. They had it in mind to propose to add perhaps another member to each of the boards, and that would amount to devolution.
However, when the noble and learned Lord, Lord McCluskey, came to reply, he repudiated that concept. He said, "No it means far more than that". If it means far more than that, would the Minister tell us what it is? I have mentioned gaming and that is a subject in which I am not interested, but it has been thrown up by my researches as another example of the way that the Government have handled this subject, despite highly competent and responsible advice which they have had front the chairmen of the statutory boards that they have appointed.
Now let us turn to the question which is much nearer my heart—racing and the levy. The noble Baroness, when she was replying on 3rd May, talked about the modifying of the operations under the Small Lotteries Act. If one starts to modify it I believe one is only a step away from trying to introduce a levy from Scotland. Only a pure-minded Member of a Labour Government could really think in such barmy terms as that. Somebody who has never had a bet in his life and believes that it is utterly immoral to have a bet, would have thought of that. if there were two levy boards—and I can imagine how attractive this would be—a levy board for England and a levy board for Scotland, the revenue from the bets in Scotland would accrue to Scotland and those in England would accrue to England. But please remember that racing is indivisible. The Scottish

229
punter will have a bet: 10p each way on a horse running at Ayr; any to come, 20p each way on a horse running at Folkestone: 10p each way on a horse running at Folkestone; any to come, 20p each way on a horse running in Scotland. What do you do—put kilts on the Scottish part of the bet and play the bagpipes? To work this out is beyond all human reason. It is beyond human experience.
Lord MACKIE of BENSHIE: Surely—
Lord WIGG: The noble Lord may interrupt in a moment. I want to make the point about racecourses. In Scotland there is Ayr, which is a great racecourse. It is equal to any racecourse anywhere in these islands. There are a number of small jumping courses. Apart from the Ayr meetings, there is no important racing in Scotland. I say that with great respect to Scottish people. There are many horses trained in Scotland which come South of the Border to race, and many of the horses which race in the North of England are going over the Border to race in Scotland. To try to have a concept which splits them is nonsense. What is true of horses is also true of jockeys, owners and trainers. The whole concept is one: it is a United Kingdom concept. Betting associated with it, whether it be on horses, football, gaming or the running of lotteries, is all one. To break this up without thinking what is to be done is madness. I give way to the noble Lord.
Lord MACKIE of BENSHIE: All I was going to say to the noble Lord was that it is perfectly easy to split up the money paid by the Scottish punter. That is very easy. It does not matter where he places his bet or on what horse he places it. If it is his money, then one could take a lien on it.
The Earl of ONSLOW: May I ask the noble Lord, Lord Mackie of Benshie, to qualify that?
Several noble Lords: Order, order!
The DEPUTY CHAIRMAN of COMMITTEES (Earl Cathcart): Amendment proposed:
Page 31, line 27, at beginning insert: "Subject to subsection (2A) below".
Lord WIGG: May I finish? That concept of course is nonsense. One cannot split it up in that way because if one did Scotland would be the loser. For example, the big punter in Scotland does not bet in cash; he bets on credit. How one is going to assess the man in Scotland when he has a telephone and he telephones through to England is utterly and completly beyond me. One can go into a betting shop in Scotland and say one is going to take a percentage off the "take". But if the same bookmaker has a cash office there and has a credit office in England, and the punter prefers to come to the credit office, obviously the matter is beyond the realm of handling. As my speech has been shortened by the Deputy Chairman, I shall put him in order by resuming my seat. If I am provoked, I shall carry on later.
Lord INGLEWOOD: I should like to follow the noble Lord, even if I cannot follow every intricacy of his speech. I am not a racegoer but I have contacts with people who are. I think that these Amendments deserve support by the test of common sense. There is no case here for further devolution in this field. With further reference to what he said about racing, I submit that racing in Scotland is only a small part of racing if one takes the United Kingdom as a whole. The greater part is centred, as the noble Lord said, South of the Border. I live just on the English side of the Border. The area is one where a lot of horses are in training on both sides of the Border. Those in training on the North side of the Border spend, I would submit, more than half their racing time South of the Border. By the test of common sense, it does not seem to me that there can be any case for further devolution.
Gaming, and the laws dealing with gaming, create great difficulties for the police. Already North and South of the Border we have differences of law which do not make the tasks of the police any easier. If we have further devolution in this field, we shall have different developments in time, whatever anybody may say now about their intention. Those developments and those differences will create increased problems for the police on both sides of the Border, and that is something about which those who sit in your Lordships' House should take

231
great care before further legislation is passed.
8.29 p.m.
Baroness STEDMAN: May I say at the outset that I have nothing like the expertise of my noble friend who moved these Amendments. Indeed, I stand before the Committee as a very poor pupil at my noble friend's hands in that I took advice from him for a matter of two or three hours before taking part in a debate a couple of years ago in the House. My knowledge of horseracing and betting bodies has not increased very much since those days. Therefore I stand here at perhaps somewhat of a disadvantage against such an expert as my noble friend Lord Wigg.
Clause 64 is essentially a consequential clause. Matters are devolved by virtue of Clause 59 and the groups in Schedule 10, but many of the functions which relate to the devolved matters are at present exercised on behalf of the central Government by public bodies operating on a Great Britain basis. As a result, the Scottish Executive will not be able to exercise their functions fully on devolved fields unless arrangements are made to divide the responsibilities of these bodies so that they can be made accountable to, and perhaps financed by, the Scottish Executive for their activities in Scotland.
There are three bodies in the field of betting, gaming and lotteries: the Gaming Board for Great Britain, the Horserace Levy Board and the Horserace Totalisator Board. These are listed in Part II of Schedule 13. This means that, on a request from a Scottish Secretary and after consultation with the body concerned, the Minister may by order make any or all of the arrangements which are described in subparagraphs (a) to (f) of subsection (2) of that clause. This order will, if Government Amendment No. 387 is accepted later this evening, be subject to the Affirmative Resolution of both Houses of Parliament.
As Schedule 10 now stands as part of the Bill, betting, gaming and lotteries will by virtue of Group 21—the miscellaneous section—be a devolved matter. So it will be necessary in due course to make an order under Clause 64, since without functions in relation to these bodies the
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Executive will be unable effectively to discharge its functions. If the intention behind these Amendments is to prevent any real functions being devolved in relation to these bodies, then they would make a nonsense of the decision already taken by your Lordships in regard to devolution in the matter of gaming, betting and lotteries. So on these grounds these Amendments ought to be rejected.
The noble Lord, Lord Wigg, as he said, was good enough to give notice that he planned to raise the matter of the treatment in the Bill of the Gaming Board, the Horserace Betting Levy Board and the Horserace Totalisator Board. I hope he may find my explanation of some value. The Committee are aware that betting, gaming and lotteries are devolved by way of their inclusion in Group 21 of Part I of Schedule 10. I had hoped that during our debate on the Amendment to insert a new clause about a Scottish national lottery I had clarified the Government's intentions with regard to lotteries.
Perhaps I may take a moment to remind the Committee that we intend the Assembly to have full legislative competence over this matter, including the right to legislate to bring in a national lottery of their own if they wish to do so. So far as betting and gaming are concerned, our intention is that the Assembly should have a wide-ranging power to legislate on these matters which are, in our view, primarily of a social and leisure nature and therefore ones which should be the responsibility of the elected Assembly in Scotland. There will inevitably be restrictions on the Assembly's competence: for example, they will have no power to change any duties, such as the general betting duty, as that falls within the matter of taxation and is reserved in paragraph 4 of Schedule 2.
It has been argued that these matters are not suited to devolution because they have more to do with the maintenance of law and order than of leisure, and that there must be unified wide control throughout Great Britain to prevent abuses of the law. We recognise that the essential control aspects of the subject are being discussed, but the Government do not see how controls can be detached from their social aspects. The control, unless it broadly reflects the morals and standards of a society, is likely to be difficult to enforce, and Scottish opinions on these

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matters are not necessarily those of London.
Next we turn to the Gaming Board of Great Britain, whose job essentially is that of control of gaming and gambling. Before I enter into a more detailed consideration of its role after devolution, I should like to echo the tributes already paid to this Board, to the Horserace Betting Levy Board and to the Horserace Totalisator Board. The Gaming Board, the Horserace Betting Levy Board and the Bookmakers' Committee all submitted comments on the 1975 White Paper: the Totalisator Board did not. As a result of the representations received, the Government reconsidered the devolution of betting, gaming and lotteries but concluded that the White Paper proposal should stand. It is understood that both the Gaming Board and the Horserace Betting Levy Board have submitted evidence to the Royal Commission on Gambling about the effect of devolution on their activities. I shall have more to say about that later.
The Gaming Board, which was set up in 1968, has the task of maintaining a very broad oversight over the development of gaming in Great Britain and to check the issue of prospective gaming licences and to advise the Home Secretary on making regulations about the subject. The Board is listed in Part II of Schedule 13, so all executive and legislative competence in relation to it are withheld until a Minister of the Crown, at the request of the Scottish Secretary, makes an order under the terms of Clause 64 and such an order is approved by Affirmative Resolution of both Houses of Parliament, providing that the Government Amendment No. 387 is accepted later this evening.
Thereafter, the Board may account separately to, and may be financed by, the Scottish Executive for its activities in Scotland. Once an order is made, the Assembly will be able to legislate about the Board, but they will be as aware as anyone of the dangers of slackening control and it will be in their interests, as well as Westminster's, to ensure some uniformity of approach and to concert action across the Border. If it is decided, for example, that a separate Scottish Board should be formed, that alone would not prevent arrangements being made for a single joint inspectorate to serve both Boards.
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There is one aspect of the making of a Clause 64 order which I must emphasise. That is that before he approached a Minister to make an order, a Scottish Secretary must have consulted the body concerned. I have already assured the noble Lord, Lord Wigg, that the Gaming Board, like all the other bodies listed in Schedule 13, was consulted about the Government's proposals at the time of the White Paper on devolution, and its chairman, Sir Stanley Raymond, wrote to the Government setting out the Board's views, as the noble Lord has told us. But, even so, nothing can be done to the Board, and not even an additional Scottish member can be appointed to it, before yet further consultation takes place.
I should like to say just a few words about the Horserace Betting Levy Board and the Totalisator Board. These boards were also specifically invited to comment on the November 1975 White Paper. The Betting Levy Board was set up in 1961 and their job was to assess, collect and distribute contributions from bookmakers and the Totalisator Board throughout Great Britain. The levy is collected by a sub-committee of the Levy Board, the Bookmakers' Committee, and although that Committee is not listed in Part II of Schedule 13, it should not be assumed that it is in any way unaffected by devolution. It is not there because its parent body, the Levy Board, is, and any Clause 64 order about the Board would take into account the Bookmakers' Committee.
The arguments for allowing no Assembly responsibilities towards these boards are in effect the same as those used about gaming: namely, there is a need for centralised control over betting. It is asserted that if the levy rate were lower in Scotland than in England there would be a considerable transfer of betting and in particular credit betting and laying off by bookmakers from England and Scotland, with the result that the amount of money available to the English Levy Board for the support of those races on which the majority of betting in Scotland and in England and Wales takes place would be reduced. Of course, it would be possible, once the Assembly had full legislative competence over the Levy Board, for it to vary the levy rate from that in England; but surely it is difficult to imagine that it would wish to endanger the English

235
racing scene to the extent envisaged. In the last resort, it would be open to Parliament to legislate to prevent that happening. Certainly, in the Government's view, it would not be right to reserve the activities of the board to guard against this hypothetical possibility alone.
A few words now about the Royal Commission on Gambling, which was referred to by my noble friend: this was set up in 1975, when this Government's commitment to devolution was well recorded and I understand, as my noble friend has said, that it is expected to report in the near future. Doubtless it has taken the very fullest account of devolution in its considerations. My noble friend argued that we should have waited until the Royal Commission had reported, before we decided upon our attitude towards the devolution of betting. But if we were to await every report pertaining to the matter to be devolved, we should never have a Scotland Bill to present to the House.
Several noble Lords: Hear, hear !
Baroness STEDMAN: While that may find favour among some Members of the Committee, it is not the Government's intention not to have a Scotland Bill. Devolution is a fact, which must be taken into account when proposals are made about a very wide range of subjects, and betting and gaming are no exceptions. Nevertheless, consideration of the Royal Commission's findings could have a bearing on the timing of action under Clause 64, and it may be that all parties, including the Scottish Executive, will see merit in delaying action until the full implications of the Royal Commission's report have been considered. To the Government, it seems eminently desirable that Scotland should be able to make its own arrangements about those subjects. It may well be that no great divergence will appear, but that will be for the elected Assembly to decide.
In an earlier debate, we were asked to indicate what is intended in this Bill. I hope that I have given an adequate explanation as to how we see the Bill working in respect of those bodies which were referred to by my noble friend. I admit that I cannot say precisely what will happen, what form the Clause 64 order
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will take, or how the Assembly will use its legislative competence, because that is up to the Assembly and we cannot here tonight prejudge what will be its attitude. I hope that what I have said has been of some use to my noble friend and to noble Lords in demonstrating that this is a scheme which is workable and that these Amendments are not necessary.
Lord WILSON of LANGSIDE: There are many areas within the scope of your Lordships' discussions, on which I regard myself as relatively ill-informed. But if I were to choose that area upon which my ignorance is most profound, I think that I would choose the area covered by this Amendment. Furthermore, if I had been asked upon which Amendment should be least likely to speak throughout these weeks of debate, I should have chosen this one.
However, I listened to the presentation of his Amendments by the noble Lord, Lord Wigg, with a fascination which I am sure all of your Lordships in the Committee shared, and what I said to myself was "Well, the answer had better be a good one." I have listened to the case of the noble Baroness, which she presented with that charming persuasiveness with which she always presents those very full explanations which she gives to the House, and I rise simply to say, in spite of the state of profound ignorance from which I start, that, having listened to the competing contestants, if the noble Lord, Lord Wigg, persists in his Amendment he will have my support, for what that may be worth.
8.43 p.m.
The Earl of ONSLOW: I also listened to the noble Lord, Lord Wigg, with fascination. One could possibly even make jokes about rabbits and snakes, but I shall let that pass. I, too, have no great knowledge of betting and gaming, but we have heard only the Government's bland assertion that everything will be all right on the day. They totally failed to acknowledge the cross-Border games which people will get up to, with the English horse in Scotland backed by people in Glasgow, or the Scottish horse in England backed by people in Northumberland. The scope for confusion, for laying-off and for making a muddle of everything seems to me beyond comprehension.

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For the noble Baroness just to say that it will be all right on the day, is a very frightening answer from the Government, because that shows that they have not thought this through. I did not feel particularly strongly about this Amendment until I heard the Government's answer.
Viscount MASSEREENE and FERRARD: May I ask the noble Baroness whether this means that the Jockey Club, which is the supreme arbiter of racing in this country, will have no jurisdiction in Scotland?
Lord WIGG: No. The Jockey Club does not come into this. Gaming is carried on under the Gaming Act. The Horserace Totalisator Board's functions, and the functions of the Horserace Betting Levy Board, are carried on under the statute, the Betting, Gaming and Lotteries Act 1963, which is a consolidated measure. The Gaming Board, to which I have referred, is a statutory body performing its duties and presenting a report to the Home Secretary, who tables it for both Houses. The noble Viscount can get a copy in the Printed Paper Office. That is true of all its activities.
May I just turn to the noble Baroness, and thank her very much indeed. Her charm almost completely overcomes me, but I have had to stick in two pins and I have conic to one simple conclusion. I was going to suggest that she gave seven days' CB to the person who wrote her brief. But I would now say that she should give him detention, because he has not read the Act. The most amazing errors were contained in her brief, one of which is in regard to the functions of the Bookmakers' Committee. The Bookmakers' Committee is also a statutory body, appointed by a Conservative Government under the 1961 statute, and it meets at the request of the Levy Board to make recommendations about the levy for the ensuing year. That is all. It does not collect—that is done by the Levy Board—and it has no other function. But if there is a dispute between the Bookmakers' Committee and the Levy Board, it is decided by the Home Secretary.
I must say this to the noble Baroness: Her charm is such that I am quite sure that what she said about the question of consultation was done with her tongue in her cheek. What form does the con-
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sultation take? There was an invitation to the statutory bodies to submit views. It is not consultation if you ask somebody to write you a letter, which you consign to the wastepaper basket, because that is obviously what was done.
No noble Lord can seriously believe that there was consultation, in the full meaning of the word, when in 1975 the Gaming Board, a statutory body with a chairman of many years' experience—both Governments had appointed him—made a recommendation, and said "For Goodness sake, do not devolve this subject", and put it in his report which could have been debated in this House. The same thing happened in 1976. Then the chairmanship changed and now there is a very distinguished and respected Member of your Lordships' House, who was Permanent Secretary to the Home Office, the very Department which is responsible for this matter.
Evidence was given to the Royal Commission, and it was again said "Do not do it. This is a very intricate and dangerous subject, which goes right to the heart"—very strong words were used— "of the concept of law and order", which is the point made by noble Lords on the opposite side. That has been completely ignored. But the Government have come along and said tonight that they have consulted; they have asked people to write to them. The Totalisator Board did not write, and the other two bodies protested.
I come to your Lordships tonight, because I have had some little experience of this matter. I believe that your Lordships are heading not only for chaos, but for the breakdown of law and order. What attracted me to this subject, when I accepted nomination, was that I sensed, as a constituent Member of Parliament the dangers to the integrity of the police from illegal betting. I have constantly paid tribute to a Conservative Minister who had the guts to tackle the subject. The legislation has had to be looked at before, and it has been looked at again by the Royal Commission.
I do not want to press this Amendment to a Division, but I shall do so. I shall be failing in my duty, if I do not do so. If I cannot get somebody to act as Teller, then that will be too bad. But I do not

239
think that the Government's action is right. I believe that they ought to leave this matter. It should never be devolved, and before they go ahead they should at least wait for the Royal Commission. Therefore, I invite somebody to join me as Teller and to divide the Committee upon this issue.

CONTENTS

Auckland, L.

Harvey of Tasburgh, L.

O'Neill of the Maine, L,

Berkeley, B.

Harvington, L.

Onslow, E. [Teller.]

Carr of Hadley, L.

Hatherton, L.

Redesdale, L.

Chitnis, L.

Hemphill, L.

Reigate, L.

Clitheroe, L.

Inglewood, L.

St. Davids, V.

Colville of Culross, V.

Kilmany, L.

Sandford, L.

Cork and Orrery, E.

Kinross, L.

Sandys, L.

Drumalbyn, L.

Long, V.

Selkirk, E.

Dundee, E.

Lyell, L.

Strathclyde, L.

Ellenborough, L.

Massereene and Ferrard, V.

Sudeley, L.

Elliot of Harwood, B.

Monson, L.

Swinfen, L.

Faithfull, B.

Morris, L.

Thorneycroft, L.

Ferrers, E.

Mottistone, L.

Tweeddale, M.

Gainford, L.

Mowbray and Stourton, L.

Waldegrave, E.

Gray, L.

Northchurch, B.

Wigg, L. [Teller.]

Greenway, L.

Northesk, E.

Wilson of Langside, L.

Harmar-Nicholls, L.

O'Hagan, L.

NOT-CONTENTS

Birk, B.

Janner, L.

Ritchie-Calder, L.

Boyle of Handsworth, L.

Kirkhill, L.

Seear, B.

Castle, L.

Lee of Newton, L.

Shepherd, L.

Champion, L.

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

Shinwell, L.

Crook, L.

Snow, L.

Davies of Leek, L.

McCluskey, L.

Stedman, B.

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

Mackie of Benshie, L.

Stewart of Alvechurch, B.

Gaitskell, B.

Maelor, L.

Stone, L.

Gardiner, L.

Melchett, L.

Strabolgi, L.

Greenwood of Rossendale, L.

Milner of Leeds, L.

Taylor of Mansfield, L.

Gregson, L.

Morris of Kenwood, L.

Thurso, V.

Hale, L.

Murray of Gravesend, L.

Wallace of Coslany, L.

Harris of Greenwich, L.

Northfield, L.

Wells-Pestell, L. [Teller.]

Hatch of Lusby, L.

Oram, L.

Willis, L.

Hood, V.

Peart, L. (L. Privy Seal.)

Wilson of High Wray, L.

Home of Troon, L.

Perth, E.

Winterbottom, L.

Hughes, L.

Phillips, B.

Wynne-Jones, L.

The DEPUTY CHAIRMAN of COMMITTEES (Viscount Hood): There have voted Contents, 50; Not-Contents, 50. There being an equality of votes, in accordance with Standing Order No. 53, which provides that no proposal to amend the Bill in the form which is before the Committee shall be agreed to unless there is a majority in favour of such Amendment, I declare the Amendment disagreed to.
[Amendment No. 389 not moved.]
[Amendment No. 301 not moved.]
8.59 p.m.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 387:
8.50 p.m.
On Question, Whether the said Amendment (No. 388) shall be agreed to?
Their Lordships divided: Contents, 50; Not-Contents, 50.
Page 32, line 14, leave out subsection (4) and insert—
("(4) No order shall be made under this section unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.").
The noble Lord said: This Amendment follows from a similar Amendment made in another place to the comparable provision in the Wales Bill. Its effect is to bring the Scotland Bill and the Wales Bill into line. Clause 64 and its accompanying Schedule 13 deal with public bodies which have responsibility for matters to be devolved and which at present operate upon a Great Britain or United Kingdom basis.
The purpose of the clause is to create an order-making power for a Minister of

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the Crown. This order-making power would make possible the division of the responsibilities and reporting of the bodies after devolution to take account of the devolution of matters with which they deal. In fact, in a sense it could be said that Clause 64 is consequential upon Clause 59 and its accompanying Schedule 10.
Because orders made under Clause 64 are essentially concerned with the consequences of devolution, the clause currently provides in subsection (4) for them to be subject to the Negative Resolution procedure. But having listened to the points made in another place about the comparable provision in the Wales Bill, the Government accept that although the provisions of Clause 64 are consequential they are of sufficient importance to warrant the Affirmative Resolution of both Houses; and that is the purpose of the Amendment.
On Question, Amendment agreed to.
Clause 64, as amended, agreed to.
Schedule 13 [Public bodies]:
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 288:
Page 75, leave out line 35.
The noble Lord said: This is a consequential Amendment following the decision taken about forestry by your Lordships' Committee at a previous sitting. On behalf of my noble friends and the noble Lord, Lord Taylor of Gryfe, and myself, I beg to move this Amendment formally.
Lord MACKIE of BENSHIE: I know that this is a consequential Amendment but I should like to seek a little information. When the previous Amendment, which was carried, was moved, the noble Lord proposing it indicated that he had the support of the whole of the forestry industry in Britain, and today in the Scotsman newspaper there appeared a letter in which the Secretary of the Forestry Commission said that no one spoke for the Forestry Commission except the Government and that therefore this statement was incorrect. I sincerely hope that the Government will correct this Amendment, which in my view emasculates the Bill and takes far more from the Assembly than is apparent from this
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one Amendment. I should like to ask the Minister if he would say what the attitude of the Forestry Commission was to the splitting of responsibility between the Government on the one hand and the Assembly on the other, and whether they were opposed to it or thought it was administrably possible and could be worked without difficulty. I must say that this is my view and my information, but I should very much like to hear what the Government have to say about this new point which has arisen since the last Amendment was moved and carried.
Lord McCLUSKEY: As the noble Lord, Lord Campbell of Croy, said, this Amendment is consequential and for that reason the Government do not oppose it. In relation to what the noble Lord, Lord Mackie of Benshie, has said, the Forestry Commission were of the view that the proposals as contained in the Bill were workable. Let me make that quite plain. I have no doubt we shall be coming back to the matter of forestry on another occasion.
Earl FERRERS: The noble and learned Lord said that the proposals as contained in the Bill originally were workable. I thought that the question which the noble Lord, Lord Mackie of Benshie, asked was what was their view now that the Bill had been amended. I assume from what the noble and learned Lord said that they will find that workable as well.
Lord MACKIE of BENSHIE: My views have again been misinterpreted. I wanted to clarify that there was information or fact not brought out properly when the last Amendment was made.
On Question, Amendment agreed to.
Schedule 13, as amended, agreed to.
Clause 65 agreed to.
9.7 p.m.
Clause 66 [Planning]:
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 208:
Page 32, line 26, leave out from beginning to ("any") in line 28 and insert ("A Scottish Secretary may exercise").
The noble Viscount said: This short clause introduces a very strange exception to the general pattern of the Bill, because

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although the powers dealing with the whole realm of town and country planning are devolved to the Scottish Assembly and the Scottish Secretaries the general fiscal override powers as to the executive action of the Scottish Secretaries in Clause 36 are not applied, and a special machinery as set up for intervention, I think it must be in individual cases, in Schedule 14. I am not sure how this is supposed to work or why it is considered desirable, and Amendment No. 208 is simply a probing Amendment to see what it is all about. Therefore the noble Lord, Lord Kirkhill, will certainly do me a great service if he will explain why we have this curious procedure for the planning world in Scotland.
It is not easy for the layman to understand. One of the difficulties about planning is that it affects an enormous number of people, some of a very humble nature who need to know who is going to deal with their problems and how the whole thing is to be sorted out, and this method of drafting does not enable them to find out more easily than would be the ordinary case.
The second Amendment, No. 209, to which perhaps I could make reference in order to save time, is a request for explanation as to why it is that if the standard override powers in Clause 36 do not apply to executive action the standard override powers in respect of subordinate instruments do apply. There are not many subordinate instruments made under the Town and Country Planning Act but there are some. There are special development orders and these can he of extreme significance. After all, did we not have yet another debate on a special development order for Windscale in another place yesterday? There are various powers made in relation to industrial development, office development and the exemption limits, and things of that sort.
I do not understand what is the philosophy which is supposed to be underlying this. In the first place the executive action is subjected to the extraordinary provisions of Schedule 14, but the equally individual cases which can be dealt with sometimes by statutory instrument are not dealt with in the same way, and the illogicality is such that I wonder whether
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there is any explanation at all. I have been quite unable to work it out but I am sure that the noble Lord, Lou] Kirkhill, will explain it with the greatest lucidity so that we shall all understand it. I beg to move.
9.9 p.m.
The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill): At the outset I should say that standing at this side of the Table is a humble citizen who would have great difficulty in understanding the complexity of this part of the Bill were it not for the fact that I have an adviser who has been advising me, but I shall do my best to explain this part of the Bill to the noble Viscount. I must start by saying that it is obvious that if we are going to have an Assembly, town and country planning is a matter which should be devolved, and Group 6 of Part I of Schedule 10 specifically does just that. In the view of the Government it is clearly right that decisions on most planning issues, those that concern matters of local or regional importance but do not affect people living outside Scotland, should be dealt with by the Scottish administration. I say that just to set the scene.
I shall go on to say that not all planning issues are of purely Scottish concern and that important activities which will, to an extent, depend on planning decisions will continue after devolution to be the responsibility of Government Departments and of bodies accountable to Government Departments. An example of that would be the major nationalised industries. Parliament therefore retains a direct interest in those important aspects of planning and Parliament will expect Ministers to continue to take full responsibility for ensuring that such matters are properly safeguarded in the United Kingdom interest. If a non-devolved interest was prejudiced by action or inaction in the devolved area of planning, Parliament would not accept lightly the fact that such prejudice could not be forestalled and prevented.
The activities of Government Departments and other bodies accountable to Parliament may be affected by planning proceedings in two ways: first, planning permission may be required for new development, although not, of course, for developments by the Crown itself.

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Secondly, prejudicial uses of land may be proposed by other developers, for example within the safeguarding area of a military airfield. When land use disputes arise requiring a judgment as to priorities between devolved and non-devolved interests, in the last resort they can be resolved only at the level of Central Government since the devolved administration by its nature does not have the same authority to assess the implications for the non-devolved interests. The constituency for such interests is the entire United Kingdom and not merely Scotland. Accordingly the Bill provides a procedure by which the Secretary of State can arrange for planning issues potentially affecting non-devolved matters to be brought before him for decision—that is, to be called in: for example, planning applications, planning permission appeals and enforcement procedures. Where an intervention is made, the subsequent actions of the Secretary of State will be determined by the requirements of the planning legislation. For example, he must give the parties an opportunity to be heard at a local inquiry, and Schedule 14 makes it specific, at paragraph 8, that a Scottish Secretary must be given an opportunity to make representations at a hearing. The Secretary of State will be able to call in cases which are either before a local authority or before a Scottish Secretary.
Obviously it can be argued that the general intervention powers of Clause 36 should be adequate to meet the need, but the Government do not accept that view, for this reason. Intervention under Clause 36 would take the form of a direction from the Secretary of State to the Assembly, requiring subsequent approval by Parliament. A procedure of this kind, unlike that provided for in Schedule 14, would deny interested parties the rights to express their views which vest in them under planning procedures generally. It would also involve inviting Parliament to take a view on issues which should as a rule be, and certainly are at present, determined in a quasi-judicial rather than a political way. It is for these reasons that the Government consider that, where the special planning intervention procedure applies, the intervention powers normally exercisable under Clause 36 should not be available.
If I may speak to Amendment No. 209 at the same time, as the noble Viscount touched on his second Amendment, the
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noble Viscount did say when introducing his Amendment that there would be cases where certain Statutory Instruments made under other provisions of the planning legislation and laying down procedures or forms of notices would relate in part to the exercise of some of the powers listed in Schedule 14. The noble Viscount's Amendment would relate to Instruments of this kind, since they apply "for the purpose of the exercise of" listed powers. It would make it impossible for such Instruments to be revoked under Clause 37, even though they might deal with matters in no way the subject of special intervention under Schedule 14. The Amendment would, therefore, have no direct effect on the matters covered by Clause 66 and Schedule 14, but it would apply to Instruments to which the special intervention arrangements do not extend. In the Government's view, this seems an unwarranted restriction on the use of Clause 37, in no way comparable with the disapplication of Clause 36 powers proposed earlier by the Government. Clause 36 intervention, in so far as it relates to specific executive decisions, is an alternative, although in the Government's view an unsatisfactory one, to the exercise of the Schedule 14 powers. But Clause 37 would not bite on determinations under Schedule 14 powers, only on certain procedures, most probably of general application, which might indirectly affect the exercise of the Schedule 14 powers.
It is most unlikely that the Government would ever wish to exercise Clause 37 powers to revoke any Instrument of a kind which would bear indirectly on the exercise of the powers listed in Part I of Schedule 14. But a procedural Instrument might at the same time contain other provisions which had a direct effect on reserved matters. The Government accordingly believe that, since the Amendment might conceivably result in the removal of protection for reserved interests, the availability of Clause 37 powers should be retained without restriction as proposed in the Bill. I acknowledge that that is a complicated explanation, but, as the noble Viscount said earlier, the matter is complex. I have taken the best advice that I can on the matter, and this is the explanation which I have been given.
Viscount COLVILLE of CULROSS: I do not think it is particularly complex,

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but what the noble Lord has now told us points in my view to great areas of complete illogicality. I am only sorry that something seems to have gone wrong with my Amendments, because I had some down on the extent of the list of intervention opportunities in Schedule 14; I shall be asking the noble Lord why some have been left out. I understand now the philosophy of what the Government are seeking to do. I do not wish to make anything dramatic out of it. But shall we take the case of Windscale which is in everybody's mind, where the new process is being inquired into under the ordinary planning procedures at a planning inquiry presided over, as a great exception, by a High Court judge, followed by a planning refusal and the laying before Parliament of a Special Development Order; if it was done in Scotland it would be done under Section 21 of the Town and Country Planning (Scotland) Act. That would be a Statutory Instrument.
Let us examine the situation on the basis of what the noble Lord has said. This would be a matter of national interest on which I would think the Secretary of State would wish to intervene under Clause 66 and Schedule 14. At the stage where there was a planning application, I think by British Nuclear Fuels—there would be a different set of circumstances if it was a statutory undertaker, but let us take British Nuclear Fuels—it would be possible, as the noble Lord put it, for the Secretary of State to call this in, not leaving it to the Scottish Secretary to decide it but having the requisite public inquiry and so on and coming to a decision.
On the other hand, let us suppose that he did not recognise that matter as being of sufficient importance for him to call it in in the first place; he did not appreciate the extent of public feeling that there was going to be; he did not take his opportunity under Schedule 14, which is, after all, time limited—it can only be done at a certain stage of the proceedings—and he allowed the matter to proceed under the auspices of the Scottish Secretary. Let us suppose that there was a massive public inquiry during which it became apparent that there was a great deal of national interest, as opposed to purely local interest, produced by various people who were exercising
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their rights to appear. At the end of the day, the Secretary of State not having intervened, the decision will be made by the Scottish Secretary. The first thing that happens is that Clause 36 does not apply, so he cannot do anything about it. He has missed his opportunity by failing to take advantage of Schedule 14 and his call-in powers, so he cannot stop the Scottish Secretary making a decision. He cannot use Clause 36 to do that. So he is powerless.
The next thing that happens is that the Scottish Secretary, having looked at the implications of the situation, decides to do it by way of a special development order. In those circumstances, the Secretary of State has only one option to bring to bear: he can override the thing executively under Clause 37 as it stands, because the noble Lord will not take Clause 37 into the same ambit as the override procedures in Clause 66. In those circumstances the Secretary of State can only override the decision to make the special development order by Parliamentary proceedings.
Might he not have wanted, had he wished to do so, to hear a wider range of United Kingdom opinion upon this matter as it had emerged at the inquiry? Is it right, as the noble Lord himself said, that these matters, which are normally quasi-judicial, should be dealt with in Parliament rather than at a local inquiry? Both ways, as drafted at present, the Scottish Secretary and Secretary of State are locked into an impossible situation. The Scottish Secretary can take the decision which the Secretary of State wishes that he could not, but the Secretary of State cannot intervene. Then the Scottish Secretary makes the special development order which is a statutory Instrument, and the only way in which it can properly be examined is at a public inquiry, which is the one way in which the Secretary of State is debarred from examining it, because he can only take it to Parliament. Is that a satisfactory way of dealing with the situation? It may be an unusual set of circumstances and I know that I tend to pick on unusual circumstances, but after all, it has only just happened and it was not 100 miles from the Scottish Border that it happened. The noble Lord, having now set out why this has been included in its present form, has opened a huge area of discrepancies and incongruities which should be thought about again.
Lord KIRKHILL: I agree that the type of hypothecation to which I have listened with great interest could certainly quite accurately lock the planning door. However, I say to the noble Viscount that at present local authorities in Scotland, when a major issue is developing, usually seek the Secretary of State's call-in permissions. A Scottish Administration sensitive to public opinion would certainly take that first step at the correct time. I should certainly envisage that as being the practical outworking of the situation, and I should at least put that point to him.
Viscount COLVILLE: I am sure that that is right, and I am not trying to say that the Government in their philosophy are necessarily wrong. It may very well be that this is a most sensible thing to provide. I am saying that if we look at the nuts and bolts of it, they have set themselves up a very rigid structure which will not serve all the exigencies which may occur. Why is it that they cannot look at this once more to see whether they can make it a little more flexible? I do not think that it would cause tremendous offence, either in Edinburgh or Whitehall, if we had a structure which could bend a little more to the way in which matters develop.
Would not the Government like to look at this point once more? I do not believe that it has been discussed in detail before. Would they not like to look at the matter to see whether they have really taken account of all the possibilities? I should have thought that such a course would be wise, otherwise we shall have a silly situation of the sort that I have described, from which there is no way in which people can extricate themselves. I should have thought that that was most unfortunate.
Lord KIRKHILL: I am not able to say at this point that the Government will look at this matter again with a view to change. I can say that the noble Viscount's interventions are always carefully examined both by Ministers who are his opposite numbers and by ministerial advisers. I shall certainly closely examine the points that he has made this evening.
The Earl of PERTH: When the noble and learned Lord says that one cannot look at it with a view to change, I wonder
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whether that goes quite far enough. Surely one looks at it for precisely that reason. It may be that the sequel to that is that one decides not to look at it in that way; but to say that it will not be looked at with a view to change seems to me not to look at it at all. I hope that the noble Lord will consider those words.
Viscount COLVILLE of CULROSS: I am sure that the noble Lord will. I do not want to take up any more time on this, pending his consideration. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendment No. 209 not moved.]
On Question, Whether Clause 66 shall stand part of the Bill?
9.27 p.m.
Lord CAMPBELL of CROY: I should like to raise one matter, which is the position of the Housing Corporation. I wrote to the noble and learned Lord, Lord McCluskey, a week ago saying that I should be raising this point. In the Scotland and Wales Bill of last Session a relationship between the proposed Assembly and the Housing Corporation was defined. In the present Bill there appear to be no corresponding detailed provisions. As a result, it is not clear what the Government have in mind; nor is it clear whether responsibilities, where the Housing Corporation is concerned, will be divided between Westminster and Edinburgh, and if so, how that division will be carried out.
Today I have received a written reply from the noble and learned Lord. I certainly do not expect him to reply in the detail which is contained in his letter to me. As I understand the effect of the letter, the Government's intention is the same as was spelled out in the Scotland and Wales Bill, but that they do not intend to carry out the devolution of any responsibilities until after the Assembly has been set up, and in what the noble and learned Lord has described as the running in period of the Assembly.
According to the letter, the Government's intention is that certain responsibilities related to housing in Scotland—particularly concerning housing associations—would be devolved to the new Assembly and the Executive, and

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that this would be done by means of an order which the Government would bring before Parliament. That is my summary of the letter which I have received. If it is correct, I think that it will have saved the Committee some time, and I am grateful to the noble and learned Lord for having replied. However, it is important that this should be on the record.
Lord McCLUSKEY: I am happy that our postal arrangements work better than they sometimes do and that the noble Lord received my letter today. I am content with his summary. Perhaps I could make the offer that if anyone else is interested in seeing the more detailed explanation—and it would be an impertinence if I were to read out the letter on this occasion—I should be perfectly happy to send them a copy of the letter.
Clause 66 agreed to.
Schedule 14 [Intervention by Secretary of State in Planning Matters]:
On Question, Whether Schedule 14 shall be a Schedule to the Bill?
9.30 p.m.
Viscount COLVILLE of CULROSS: There are two points which I want to raise here, and again I apologise to the Committee for the fact that somehow my Amendments do not seem to have been printed. That is certainly my fault and not the fault of officials of the House. The first point I want to raise is a very short one and arises out of the reference which the noble Lord, Lord Kirkhill, has already made to paragraph 8 of Schedule 14. It is perfectly true that when the Secretary of State takes a matter out of the hands of the Scottish Secretary, under that paragraph he is required to give that Scottish Secretary an opportunity of making representations at a hearing in front of the reporter. The only thing that worries me about this is that it is not tied in, in terms, to the ordinary machinery for holding public inquiries and allowing other people to make representations before a reporter. It looks, on the face of it, as though it is a separate inquiry at which only the Secretary of State is heard.
I am quite sure that this is not so. I am quite sure that what is intended is that
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the Scottish Secretary's intervention shall be a part and parcel of the overall inquiry which is held under the ordinary planning procedure. I would suggest, with great deference to those who have drafted this Bill, that it could be made a great deal clearer that this is so by making a reference to the ordinary inquiry procedures which are provided for in the Town and Country Planning (Scotland) Act 1972, and merely adding the Scottish Secretary in these circumstances as another person who is entitled to be heard. That is the first thing. I think it would be a great improvement. The second matter is of rather more substance. The list of occasions, or topics, upon which the Secretary of State can intervene, and indeed override the ordinary powers of the Scottish Secretary are listed in paragraph 1. For your Lordships' convenience, I will say what these sections refer to. Sections 32 to 34 relate to ordinary call-ins from the regional district authorities to the Scottish Secretary, and appeals from refusals or non-determinations. Then we have revocation or modification orders, discontinuance orders, appeals against enforcement notices, call-ins and appeals against established use certificates, and Section 260 is default powers in so far as they relate to the provisions which are listed.
I can easily see, in the light of the philosophy that the noble Lord explained, why we have Clause 66 and Schedule 14 at all, that that is a good starting point. Now I should like him to tell the Committee why there are so many exceptions in areas where I should have thought that those considerations of United Kingdom policy, which is the basic justification of the whole of this system in the first place, could very easily be involved but are not covered by this machinery.
May I just list the occasions that have occurred to me as being relevant. First, we do not have an opportunity for the Secretary of State to intervene on the special development orders I have already mentioned (which are made under Section 21 of the Act), or indeed on general development orders. Supposing, for the sake of argument—and getting away from Windscale—that the Scottish Secretary decided to make a general development order which allowed anybody to use any piece of land in Scotland, without planning permission, for building oil rig platforms.

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This is, so far as I can make out, a fairly touchy matter of United Kingdom policy, certainly crossing the Border to the English side, and one upon which United Kingdom policy could very easily be involved. But, under the Bill as it stands, the Scottish Secretary could make such an order, and the only method of overriding it would be under Clause 37, which is the political override giving nobody an opportunity of being heard at any inquiry because there would only be a Parliamentary opportunity.
The next one that I would ask about is the planning inquiry commission under Sections 44 and 45. There never has been one yet, and very likely, after the third London airport episode, which was the next best thing, there never will be. Pray God there is not, because it was an appalling performance. But if there is—and it is still on the Statute Book—is it right that the Scottish Secretary should be able to set up one of these inquiries into what is, by definition, a matter of national importance, without any power to intervene by the Secretary of State? This would be something which I think would fall within the powers normally detailed under Clause 36 of the Bill, because it would be an executive action; yet it is not in Schedule 14 and the Secretary of State could not intervene.
Then I consider the question of listed buildings, and the related matter of listed building enforcement notices and other matters of control. It occurs to me that there are in Scotland some buildings which are listed under the ordinary planning legislation, and which are of national significance. There is machinery under the taxation statutes, which are not devolved, whereby properties of this heritage standard can be exempted for the purposes of capital transfer tax if they are handed on from father or mother to child. This is based entirely on the worth of the property as seen in terms of the national heritage. It is looked at primarily by the estate duties office of the Inland Revenue, but in fact they are advised by the Department of the Environment, South of the Border, and, I imagine, the equivalent Scottish Department, North of the Border.
Supposing the Scottish Secretary were minded to allow the demolition of one of these nationally important heritage prop-
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erties. Is it really right that the Secretary of State should wish to avoid the opportunity of intervening altogether because, first, he will not be able to do it under Clause 36, having foresworn that by Clause 66 and, secondly, he will not be able to intervene because he has not listed the power in Schedule 14? This would seem to me to be a strange state of affairs, and the same applies to listed building notices under Section 92 of the Town and Country (Scotland) Act 1972.
The next item, I suggest, arises out of what the noble Lord said about major nationalised industries. The ordinary provisions for applying for planning permission by, say, the South of Scotland Electricity Board or the Hydro Board is covered not by the ordinary provisions at the beginning of the 1972 Act but by the provisions which occur from Section 214 onwards which relate to statutory undertakers. Cannot the noble Lord imagine the proposals of one of those two electricity authorities, or of some other major nationalised industry which counts as a statutory undertaker, raising issues and interests which transcend the Borders of Scotland? Yet in the same way as I have just said, the Secretary of State will not be able to intervene under Clause 36, and as he has not listed Section 214 as being a power to intervene under Schedule 14, what is he to do? The answer is nothing. He has debarred himself completely from intervening in a way that would not occur if we did not have this strange machinery.
Lastly, there are the general inquiry powers under Section 267 of the Act. These are not often used—I do not know whether they have ever been used in Scotland—but they are used sometimes and I recall a celebrated occasion (which I should have thought was chosen for the exercise of these powers because of the national interest involved); namely, the first inquiry into the roads system for the City of Oxford. It was not an inquiry into any specific proposal; it was an inquiry at large and it was held under the equivalent English provision of Section 267 of the Scottish Act. That matter raised representations from all sorts and conditions of men, as it were, both within and without Oxford, and a great deal of national interest and, afterwards, a debate in your Lordships' House.
The Scottish Secretary has equivalently been left totally in command of that kind

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of affair; only he can hold one of those inquiries because of the reasoning I explained before; namely, that it is not in Schedule 14. I appreciate that this is a collection of extremely fast balls to bowl at the noble Lord, Lord Kirkhill. He cannot be expected to answer them tonight and I gave him only about half an hour's notice of them, but they require an answer and at some stage during the passage of the Bill I should be extremely grateful if he would apply his mind to them.
9.40 p.m.
Lord KIRKHILL: I readily acknowledge that the noble Viscount gave me advance notice that he would pose this series of questions to me. I have to teil him, as I indicated to him earlier, that my advice, while quite comprehensive, is recently to hand. However, I will attempt to pick up the points he made, if only to show those who read Hansard tomorrow that I did my best. With regard to the first question which the noble Viscount put to me, I can say that the Secretary of State is not actually required to follow normal planning inquiry procedures, but in practice of course he would do so. There is no need, therefore, to put a specific requirement in the Bill. This would in any case be inflexible and would not allow for a possible future change in procedure—
Viscount COLVILLE of CULROSS: May I intervene? In that case will the inquiry procedure rules, which I imagine exist in Scotland, be amended so as to take account of the possibility of this form of intervention, and fit it in? It can I think easily be done by means of the regulations, rather than in the Statute.
Lord KIRKHILL: I hope that the noble Viscount will bear with me, as I was going to round off with a flourish and say something rather more positive, which might be to his liking. But for the moment I should like to move on to speak on the other points which he has placed before the Committee. The powers listed in Schedule 14 have been selected with considerable care. They all involve planning cases set in motion by, or against, individuals, and which involve, as we have said earlier, quasi-judicial proceedings leading to a decision taken by a Minister. After devolution such decisions will be
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taken by a Scottish Secretary, unless the powers in Schedule 14 are invoked. It is necessary, therefore, to consider the points which the noble Viscount raised with me against that criteria.
The noble Viscount mentioned special development orders. These do not involve a ministerial decision, but, indeed, a Parliamentary procedure. It would be inappropriate to use intervention powers where a Scottish Secretary has decided to use the special development order procedure. In these circumstances protection for reserved interests would be found in the override provisions, as was indicated at Clause 37.
The noble Viscount mentioned the general powers to order and hold inquiries, and the powers to refer a case to a planning inquiry commission. But the provisions to which he has referred are not substantive provisions in their own right and are not, therefore, appropriate for inclusion in Schedule 14. This is not to say that Schedule 14 does not make appropriate provisions for such matters. This is achieved by paragraph 4(c) in Part II of the Schedule, which gives the Secretary of State, where he intervenes, all the powers and duties which would have been available to a Scottish Secretary. Thus he will have any necessary powers to hold an inquiry, or to refer a case to a planning inquiry commission.
Planning applications by statutory undertakers were also referred to by the noble Viscount. Where an application is made by an undertaker operating in reserved matters (an example would be the National Coal Board) the Schedule 14 intervention powers will be available in the same way as for other planning applications, and there will be nothing to prevent two Secretaries of State acting jointly, as presently provided, in respect of applications by statutory undertakers, by way of Section 214 of the Town and Country Planning (Scotland) Act 1972.
I should now like to turn to the question of listed building procedures. Listed building enforcement will be a devolved matter by virtue of the ancient monuments and historic buildings in Group 19, and town and country planning in Group 6. Sections 92 to 97 of the Town and Country Planning (Scotland) Act 1972, as amended, set out the arrange-

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ments for listed building enforcement. Since these are devolved matters, the Scotland Bill translates the references to the Secretary of State to references to the Scottish Secretary. The call-in procedure in Schedule 14 does not apply to the powers exercisable in relation to listed buildings; nor should it, since no United Kingdom interest can be affected apart from buildings owned by the United Kingdom Government, post-devolution, in Scotland.
However, these are interests which are protected by the treatment of Section 253 of the Town and Country Planning (Scotland) Act 1972. In particular, subsection (2) states:
"Except with the consent of the appropriate authority—
(a) no order or notice shall be made or served under any of the provisions of sections 49, 58, 63, 84 or 92 of this Act…in relation to land which for the time being is Crown land".
Head (f), against the Town and Country Planning (Scotland) Act 1972 in Part III of Schedule 10 of the Scotland Bill, states that the powers under Section 253,
"except so far as exercisable in relation to land vested in the First Secretary or held for the purposes of a Scottish Secretary"
are not included. This means that, post-devolution, the consent of the appropriate authority, which will not be the Scottish Secretary, will be necessary to protect the the interests of the United Kingdom Government in any listed building enforcement.
Perhaps I might point out, not as an incidental but because I am aware of the situation, as regards capital transfer tax, that this is totally reserved as a matter of United Kingdom taxation, together with any waivers or special arrangements. Now, I have attempted to respond to the points which the noble Viscount has put to me, but I think they would merit a careful study and consideration by me. I shall give them that. I intend to write to the noble Viscount; and from that point onwards, of course, he will either be satisfied with what I say to him or will respond.
Viscount COLVILLE of CULROSS: The noble Lord has been more than helpful and most generous, and I am extremely grateful to him. Perhaps at this stage I will take up only three short points.
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The noble Lord need not be expected to reply to them this evening; they are just matters which I do not understand arising out of what he said. First of all, I do not understand how the statutory undertakers are brought in if you do not make a reference to Section 214 and the consequential sections when you are dealing with applications by statutory undertakers, because it appears to me to be a separate code; and I do not think the National Coal Board is a good example, because that is not a statutory undertaker within the definition. The electricity authorities I chose because they are; that is the difference. The National Coal Board of course has to make an ordinary application, but I do not think that that is the point with which I was dealing.
The next point is this. The noble Lord said that paragraph 4(c) of the Schedule allowed the Scottish Secretary to deal with matters by way of a planning inquiry commission or a general inquiry. Yes, the noble Lord is perfectly right, provided that there has been a triggering application in the first place. Yes, indeed, if somebody has put in a planning application or has done something which brings the matter within the sphere of the listed sections in paragraph 1. But if it is to be a matter which is to be dealt with at large, as it were, then paragraph 4(c) avails the Secretary of State nothing, and he has not acquired any powers to act in the way that the noble Lord said.
The third point is this. I understand that, in terms of listed buildings, those which are owned by the nation and have therefore been defined as being of national interest are protected by Section 253; but that is not my point. I should have thought that if the Government considered that industrial or economic matters which transcend the boundaries of Scotland are in the national interest, it is a Philistine attitude to beat all Philistine attitudes to say that matters of national architecture do not fall into the same category. I do not understand why the noble Lord shakes his head and says that there will never be a case in Scotland where a national architectural treasure protected by the listed building controls is at issue. If it is a privately-owned one, it is in no way covered by Schedule 14 and the Secretary of State has debarred himself from intervening, either under

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Schedule 14 or under Clause 36; and this, I should have thought, would be a disaster.
Lord KIRKHILL: I apologise for intervening, but I want to make this point. It is purely a matter of judgment, no more, no less, as to whether these buildings of great historical and architectural merit should or should not stand devolved. I can see the contrary argument, but I think that the emphasis in the Bill is that that which is of especial interest to those who live in a particular area had best stand devolved, if at all possible.
Viscount COLVILLE of CULROSS: I am in total agreement with the noble Lord. I am afraid that I explained myself badly. Of course, they should be devolved, it is right that they should be devolved;
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they are devolved. What has happened is that by taking the area of town and country planning out of the override powers in Clause 36 and by not listing the listed building control and enforcement provisions in Schedule 14, this is one of the very few areas in the whole of the devolved section where the Secretary of State has debarred himself from intervening at all. That is what I am saying, that he has totally debarred himself from doing anything about it in a case where, I should have thought there was, at any rate potentially, a national interest. That is what happened under the drafting as it now stands. That is what I am complaining about and not that they are devolved as a matter of course. I am grateful that the noble Lord is prepared to look at this again, for I believe we have some loose ends which we shall need to tidy up.
Schedule 14 agreed to.
9.52 p.m.
The Earl of SELKIRK The Earl of SELKIRK moved Amendment No. 210:
After Clause 66, insert the following new clause—
Voting by Scottish Members of Parliament.
(". Following the first meeting of the Scottish Assembly, Members of Parliament representing Scottish constituencies shall not be entitled to vote on any matter in respect of which legislative competence in relation to Scotland has by this Act been devolved to the Scottish Assembly.")
The noble Earl said: I beg to move this Amendment and I would ask the Committee to note that of the supporters of the Bill, two come from that part of the United Kingdom which is called Scotland and two from that part of the United Kingdom which is called England. I regret that the noble Lords, Lord Duncan-Sandys and Lord Houghton, have said that they were sorry to be unable to be here and that the noble Lord, Lord Shinwell, not unnaturally at this time of night, has found it necessary to depart.
This is called the West Lothian question and no doubt that name is due to the resolution and stamina of the Member of Parliament for that area; but, in fact, it is a misnomer, as the Government explained earlier, and it applies to every single constituency in Scotland. It has been referred to constantly in the other place; it has been referred to not infrequently in this place, but it has never been discussed as a substantive Motion either here or in the other place. It is because of that particularly that I want to direct attention to it.
Perhaps I should explain it briefly. I had thought that it was an ailment which grew round the shale bings of West Lothian; but it is actually a problem which affects not only every constituency but a large part of perhaps the most popular matters which Members of Parliament have to deal with; that is, education, housing, the health services, transport and things like that. Those subjects will no longer be the responsibility of Scottish MPs. Scottish MPs can deal with education, housing, health services and transport in so far as they affect England. I think it is pretty obvious that that raises quite a real problem and I want to make this point.
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It is not a side issue. You cannot side-step it; it is absolutely inherent in the very structure of the Bill itself. It is nothing to do with number. It does not matter whether there are 10, 20, 50 or 200 Scottish Members. The problem is there; and my object in this is to make us face it.
There is a further problem that, if it is not faced, it will muddle the clarity of members of the public in knowing where the responsibility lies. I think this is something which we must face up to. We cannot sweep it under the carpet and pretend that it does not matter. I want to ask the Committee to face it. Who is to decide this? I think it is perfectly clear that it has to be decided by the House of Commons. That is why I say that we must send back an Amendment which they will look at, and on which they can decide what they want to do about this problem.
I am not going to argue particularly the precise merits of the Amendment which I have put down because it is up to them to decide what they want. It merely says this, in effect: when you come to a subject which is devolved in Scotland, Scottish Members cannot vote on that in respect of England. That is to say, if there is a question on education, the manner in which education is discussed in England, this will no longer be a matter on which a Scottish Member can vote. At the present time, as the Bill is drafted, he can vote and take part in regard to education in Southampton but cannot do it for education in Dumbarton.
This is a lack of balance in the Bill which somehow has to be put right or at least faced up to; a decision must be made as to which way it should go. It is our duty to see that the other place have a full opportunity of making their minds up exactly which way they want it to be. Once it is decided, that is their business. It is their responsibility and they must face it squarely. Though I am not going to argue closely on this Amendment, there are one or two side issues to which I want to make reference. The purists will say: "This has the effect of dividing the other place into certain classes. This Bill already divides Members of the other place into classes. There are those who

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are responsible for certain things in their constituency and there are those who are not." The division is perfectly clear. What is not clear is where the line should be drawn. It is on the question of where you draw the line that this Amendment makes a certain proposal. I am not going to say that this is the only way it can be done. Somebody has to decide where that line should be drawn.
It is also sometimes said that the effect of this Amendment would be to prevent Scottish Members from voting on those parts of the Bill in which overriding powers are used. That is not so. This only applies to taking action on matters which are devolved. In so far as we use overriding powers, that is not a question of devolved matters at all; that is a normal matter for Members of Parliament. Any single clause in this Bill can be repealed by the Westminster Parliament. The whole Bill can be repealed by the Westminster Parliament. That has nothing to do with devolution as such; that will be the normal function. It only refers to taking action, or responsibility for those actions which are devolved in this Bill.
The third matter which we have to ask is: Is it our business to deal with a matter which is clearly and obviously an issue for the other place? My interpretation of this is simply that the two Houses are complementary, the one to the other. We are different in structure, we are different very often in approach. We should seek to complement one another. Our common task is to see that the Government do not bully the members of the public, to see that they provide good government. We had a discussion on this subject both in this House and in the other place only yesterday. The Government have very frequently, with much skill, tried to avoid that criticism by pretending that the two Houses are fighting each other instead of having the criticism directed towards them. It is for that reason that we must send this or another Amendment to the other place. They can either refuse, agree or amend it in the way that they want. It cannot be ignored; it cannot be passed over. To do otherwise than consider it I believe would create a source of considerable discontent.
A second point I want to make is that earlier on today we had some discussion
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about what was called the English backlash. With great respect to the noble and learned Lord, the Solicitor-General for Scotland, he turned this aside a little lightheartedly. This is a very serious matter, and anyone who has had any experience of relations between Scotland and England in the legislative sphere knows there is a very high degree of tolerance required on both sides. If that tolerance is upset, it will be to the disadvantage of both parts of this Island. I think it is immensely important that that tolerance should be continued.
If you ask anyone today in the South of England: "What do you think about Scottish devolution?" they will almost certainly say: "Of course Scotland can have devolution, provided they pay for it themselves." The blunt answer is that nine-tenths of the cost of devolution is going to come from the English taxpayer: let us be under no illusion about that. That is where it is coming from, and I think we must recognise the fact. Scotland is doing nothing but receiving. There is no single concession in this Bill which Scotland has to make at all; she is at the receiving end the whole time. I believe that people in Scotland who want an Assembly would be perfectly willing to make a concession. We get certain things and we recognise that we have to pay something for them. I think that most people, including most Scots people, know that you never get anything which is worth while unless you pay for it. I think they recognise that fully and that if we ask them to make some concession they would do so.
I think this backlash is very serious. Every penny is going to come from the Exchequer here; and let us not forget that there are things such as the industrial development certificate, because the whole economic development is enormously important. If we get an "edge" on the relationship between the two countries and everything is granted in a grudging spirit, then it will be very much to the disadvantage of Scotland. I put this forward not in any sense of altruism but, frankly, in a spirit of self-interest. I think it is in the proper interests of Scotland that the Scottish people should recognise they must pay something if they think that the Assembly is really going to give them something.
We must not let this be pushed aside or pushed under the carpet; it must be faced squarely. I think it is right and it is important for Scotland not in any way to accelerate or excite a backlash which I believe is already taking shape, possibly in this Chamber and possibly in another place as well. Therefore I say: let us ask the other place to decide what they want to do about this vital problem. I beg to move.
Lord MONSON: I strongly support the principle underlying this Amendment, which I believe to be of the utmost importance. I believe we need both the "belt" of fair and equal representation in Parliament for all the component parts of the United Kingdom and the "braces" of this Amendment, or something very like it, in order to uphold the rights of the English majority in these Islands.
After devolution, for example, the Scots will be able to decide for themselves their own educational policy without any English interference or influence. On what moral grounds, therefore, can the right possibly be denied to the English to retain, if they so wish, their own valuable and old-established grammar schools if there should be a majority of English MPs in the other place in favour of so doing? This Amendment may be technically imperfect in one way or another, but that is something which can be remedied at a later stage. The important thing, it seems to me, is to support the principle of this Amendment in the Division Lobbies tonight.
Viscount MASSEREENE and FERRARD: I, too, as the noble Lord, Lord Monson, has just said, support in principle this Amendment. I agree that politics are not logical and of course this Amendment represents logic; but what my noble friend Lord Selkirk said about the English backlash is perfectly true. The average Englishman will say: "Look at the Scottish MPs: they are having their cake and eating it. They are having it both ways."
I should also have thought that it was rather insulting to the Members of the Assembly that they should be, not overruled, but perhaps thought to be not
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sufficiently competent themselves to vote on devolved matters so that they had to have the support of Scottish MPs in Westminster. It will be very dangerous if the English think that the Scots have it completely their own way. One can use the excuse that politics are not logical, that our Constitution is not logical and even that democracy is not logical. But I hope that at some later stage the Government may accept some kind of alteration to the Bill, such as my noble friend has proposed in this Amendment.
10.5 p.m.
Lord RAGLAN: I speak as a Member of the British Parliament and not as a Welshman or an Englishman, although I live in Wales and have a Scottish mother. I have always considered myself a Briton, and I dislike the motives which have caused the bringing in of this Bill. As the noble Earl, Lord Selkirk, said, this is a very important Amendment which goes to the heart of the matter. Time and again during the passage of this Bill, the Westminster Parliament has been admonished that it should be careful not to tread upon the susceptibilities of this delicate and sensitive plant which is to be established in Edinburgh. Yet essential, as I see it, to the presentation of this Bill in the Westminster Parliament is the creation of the anomaly, to which the noble Earl has drawn attention by his Amendment, and which can do nothing but create friction.
I venture to suggest that if the proposal had been the other way around, that Members from England should vote on certain matters affecting Scotland, while Members from Scotland were excluded from voting on the same matters affecting England, this measure would never have been entertained for one moment, and this Amendment underlines that fact as nothing else does. This Bill is an attempt to appease Scottish nationalism, while retaining an illusion that the United Kingdom will remain a politically united realm.
As I see it, democratic Government must be both seen and understood to derive and apply its authority equally as between one part of the State and another. In Parliamentary terms, this is more or less true in our country at the moment,

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though I hope on Third Reading to draw attention to the wholly anomalous constitutional position of the Scottish Secretary of State. But the Scottish Secretary of State is just, and only just, classed as an administrative post, although I believe for several reasons that, whether or not this Bill passes into law, that post will not be retainable for much longer.
However that may be, the Parliamentary balance has so far been kept. Members from England can vote on measures intended only for Scotland and vice versa. But this Bill upsets this arrangement and sets out matters affecting Scotland, which Members of this Parliament—mainly from England, of course—would be excluded from voting on, while retaining the right of Members of this Parliament from Scotland to vote on the same matters when they affect England. It is true that we already have several anomalies in the case of the Channel Islands and the Isle of Man, which came about by accident and are probably too small to concern us very much. We used to have Stormont which, at the time that that arrangement was made, appeared to be a brilliant solution, but it came to grief because, like this Bill, it was not a solution; it was only the illusion of a solution.
The Nationalists in Scotland will vote for the Bill, because for them half a loaf is better than no bread, and they reckon that they will get more next time if they wait. The quasi-Nationalists—who are often indistinguishable from the Nationalists because they also encourage the view that Scotland is a colony of England, and a deprived one at that—support this Bill and present it in Scotland as a significant change which will make a great deal of difference, while in England and at Westminster people are being told that, on the contrary, it will make very little difference and everything will go on much as before.
I think that I can forecast with confidence that, whether or not it makes much change in Scotland, things at Westminster will not go on as before. Members from Scotland, however nice they are—and I am glad to say that many nice people come here from Scotland—will become unpopular, not personally but because of their presence. Therefore the more sensi-
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tive will probably become difficult to Whip. They will take less part in debates; they will become unaccountably absent on important votes; or they will discover vital research work to do in the British Museum, or somewhere out of the way of the Division Bell, because they will have become vested with power without accountability, while Members of Parliament and Peers from England and from Wales, if the Wales Bill is rejected, will have accountability without power. Such an arrangement cannot last, because it is inequitable and unfair.
If it is said that Members of Parliament from Northern Ireland are in the same position, that is true. First, however, nobody enjoyed that arrangement, except certain Conservative Governments. Secondly, the Labour Party always, understandably, detested it but tolerated it because the Northern Ireland Members of Parliament were few in number and the occasion for constitutional change did not present itself. Thirdly, Members of Parliament from Northern Ireland were—and still are, unfortunately—under-representative. Therefore, at least, some attempt was made to correct the anomaly which their presence created.
I hope that Stormont will not return and that representation from Northern Ireland will be increased. However, I ought not to discuss the future of Northern Ireland on this Amendment. Here we are speaking not about a dozen Members of Parliament from Northern Ireland but about 71 Members of Parliament. The Government and the supporters of the Bill could hardly devise a more potent formula for friction, divisiveness and resentment. That is exactly what the Nationalists would like. The question is whether that is really what the voters in Scotland, where we are told that this will be the effect of the Bill, would like. It will happen inevitably. It must in all honesty be put to the voters in Scotland that voting for this Bill will inevitably lead to breaking it all up.
If this Amendment is carried, it will serve to bring to the Government's notice once again, and very cogently, some of the mischief which this Bill would create. As the noble Earl has said, this is not a little point to be glossed over or to be evaded. It must be faced up to, in the

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same way that, if the integrity of this realm is to be retained, Scottish nationalism must be faced up to. I believe that it is no use appeasing it, which this Bill is an attempt to do; it is no use bending backwards to try to accommodate it as a benign phenomenon, as the Government in this Bill are trying to do.
There have been innumerable anomalies exposed during the passage of this Bill—a couple in the last hour or two—and the anomaly which this Amendment is designed to correct is probably the biggest of all. It certainly is the most glaringly absurd, as well as being unfair, so I support the Amendment. It will at least have the effect of mitigating the absurdity and unfairness, and if the noble Earl presses the Amendment I shall follow him into the Lobby.
10.15 p.m.
Viscount THURSO: Those who are supporting this Amendment would like to class themselves as trying to preserve the United Kingdom. In fact, the effect of this Amendment is to cut large chunks of legislative power out of the United Kingdom and to hand them totally and completely to Scotland. You could not find greater separatism than is expressed in this Amendment. I find it quite extraordinary that this should be supported by noble Lords who would like us to think that they are for the preservation of the unity and integrity of the United Kingdom. This Amendment does nothing of the kind.
I am among those who are supporting this Bill not because I am afraid of Scottish Nationalists and not because I think there is some kind of furious mad menace loose in Scotland; I am supporting this Bill because I believe in a federal solution for these Islands. I think it will ultimately give us more efficient legislation. It will relieve Westminster of work; it will give satisfaction to voters and bring Government closer to the governed. I believe that one must keep the element of federal government, even though devolution as expressed in this Bill falls short of federalism. I think we must ultimately accept that a federal solution is the answer. If one has a federal solution, then, although legislative competence is devolved to every part of the Islands—to Scotland and Wales
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and perhaps even to parts of England—there will still necessarily be areas where a federal concept would need to be discussed in a United Kingdom Parliament.
Lord RAGLAN: We are not discussing a federal Bill, we are discussing this particular Bill. If a Bill to establish a federated United Kingdom comes along, we can talk about it then. I am addressing myself to the Amendment.
Viscount THURSO: I think the noble Lord will accept that we are discussing a federal Bill as much as we are discussing Northern Ireland. Whatever one does in the way of devolution in this Bill—and in the Wales Bill when it comes here—there will remain a federal element in everything that is done which will need to be discussed on a United Kingdom basis. We have just seen this in an Amendment moved by the noble Lord, Lord Wigg, where the noble Lord was most upset that legislative competence for certain matters was being devolved so that the action of the Scottish Assembly might affect the situation on this side of the Border in England. We were assured that in that case there was a sort of bracketing arrangement in that there were levy boards and so on which operated on both sides of the Border. In other words, there was a kind of federal link. If in areas of legislative competence that have been totally devolved it is said that Members of Parliament sitting in Westminster and representing people from Scotland are not even allowed to talk about those parts of the devolved subjects that may perhaps affect all parts of the United Kingdom, then one is talking total separatism. I think we must accept that there is a federal element which continues. If you do not like the word "federal" and if it makes you wonder what I am saying, then there is a United Kingdom element that continues. People who are for the integrity of the United Kingdom, just as I am, and yet for devolution, just as I am, would wish Scottish Members of Parliament to be able to discuss this United Kingdom element and not to be totally debarred from discussing a subject.
Viscount MASSEREENE and FERRARD: Before the noble Viscount sits down, will he not agree that, owing to the imbalance of population in the United

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Kingdom, the federal solution is not really 100 per cent. practicable, because the population of England is about 87 per cent. of the population of the whole of the United Kingdom? It is not like America, and I think it would be very difficult to have a completely federal system in this country owing to the imbalance of population in these Islands.
Lord DRUMALBYN: I should like to make a point before the noble Lord replies. The noble Viscount has been talking about discussing matters: this Amendment has nothing to do with discussing matters, it only relates to voting upon them. Surely he can distinguish between the two. There is no reason at all why Scottish Members should not contribute their wisdom—or what they believe to be their wisdom—to a consideration of English matters, but that they should be able to vote on them when the English cannot vote in the Scottish Parliament seems to be absurd in relation to those particular devolved matters.
The Earl of ONSLOW: I think it would be possible to agree with the noble Viscount, Lord Thurso, on the federal state. It would be possible to split England up into a heptarchy and have Scotland and Wales—say, 10 States in the United Kingdom. That is a completely legitimate and sensible solution; but what is not a sensible solution is the anomaly that we now have. The Member of Parliament for Glasgow, Garscadden can talk about tourism in Surrey but not in Inverness; he can talk and vote on the Tower of London but he cannot talk and vote on Dunsinane or Holyrood. This is the idiocy of it. This is what is going to make the English so cross and it is what will give the English the feeling of being "conned".
The noble Earl, Lord Selkirk, has understood this. He has not said "take, take, take". He has said "give and take". I have an elderly relative who, when she was married, replied when her husband asked her, "Dear, do you know that marriage is all give and take?" "Yes, you give and I take". This is what this Bill is to the Scots at the moment, and it is something that will cause the English to get cross. I have said this once, I shall probably say it again and
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everybody will be bored to distraction by my saying it, but I happen to believe it from the bottom of my heart. I think that this will happen and that suddenly the worm will turn. This is putting a ratchet screwdriver on the worm to make sure that it turns. It is unfair and it is wrong.
10.24 p.m.
Lord MOTTISTONE: Perhaps I may intervene briefly because I am sure the Front Bench will want to speak after me. I must apologise to the Committee for not having been here throughout this particular point and also to my noble friends who promoted this Amendment, because it seems to me that the argument put forward by the noble Viscount, Lord Thurso is absolutely first class, more especially because we have inserted Amendment No. 327 in the Bill. We must not forget the fact that we want to keep the Scots as part of the United Kingdom. You will remember the very long lecture that the noble and learned Lord, Lord McCluskey—and it was a learned lecture—gave to us about Schedule 10, which is the most complicated part of a Bill I have had to deal with for many a long day. It is going to be a matter of technical difficulty to classify on the spur of the moment the bits of it on which the Scots will be told, "No, you cannot vote". It seems to me quite ridiculous. If we had not managed to put Amendment No. 327 in the Bill, I should have thought my noble friends who are more English than I am would have had a very good point; but because we have put No. 327 in the Bill I would strongly suggest that we need to give the Scots an untrammelled part—on a reduced scale, which it would be—in the Parliament at Westminster.
The Earl of ONSLOW: Does not my noble friend agree that Scottish MPs can vote on English matters but because of this Bill not on Scottish matters? This is the lunacy of it.
Lord MOTTISTONE: If my noble friend will allow me, the Scots are not so different from the English as all that. I am half Scot, so I know. We are all a group of people trying to rationalise arguments, and the difficulties of that particular issue seem to me to be something on which we could go on forever

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and never get the right answer. On the wider issue, to take some MPs sitting down at the other end of the corridor and say to them, "You cannot vote on X", seems quite wrong. I never liked the idea of some of us in this Chamber being allowed to speak but not vote. It seemed to me absolutely ludicrous. If you are going to be in a Chamber and take part in a legislative system you must either speak and vote or get out. I do not agree with the principle of trying to narrow it and refix it; it cannot be done. If you have a proper balance of Scottish MPs in the House of Commons and you have an arrangement by which because of technicalities they can vote on English things and not Scottish things, so be it.
10.28 p.m.
Lord HUGHES: I do not intend to speak for long, but I feel constrained to say something because of the way in which this particular debate has been going. All the time I have been in politics in Scotland I have been aware, as almost every other Scot has been, of the extent to which people in Scotland have said, "I am not a Scottish Nationalist, but" and then they proceed to recite one or other of the grievances which they think arise from being handled at Westminster instead of Edinburgh. That is not a state which has diminished with the passing of the years. What I dislike about the discussion, on both this Amendment and No. 327, which has been put into the Bill, is the suggestion that these are going to be held out as threats to the Scots, "If you want devolution this is what you have got to suffer in order to get it. You have got to have fewer Members of Parliament; you have got to have Members of Parliament who will be able to vote only on certain things." I regretted very much that that aspect of it was much stressed by my noble friend when he was talking in support of this Amendment, that it should be emphasised to the Scots that if they want this Bill this is what they have to pay for it.
I think the noble Viscount, Lord Thurso, put his finger straight on the point, that if you want to create separation in Scotland this is the way to go about it, because if you are going to have a situation where there are going to be fewer Members from Scotland in the House of Commons, and they are going
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to have only certain powers, you are going to put into the hands of the Nationalists a weapon which they do not have at the present time, the weapon which is saying: "It is not worth while being down there because we do not need to be there to discuss our own affairs; we can do so in Edinburgh. We do not need to be there to discuss English affairs because we shall not be allowed to do so. We might as well go the whole hog and have a complete separation."
Therefore, in my opinion this Amendment, if it were put into effect, would be the biggest weapon that could be given to the Scottish Nationalists. It looks—and I only put it that way—as though Scottish nationalism is on the ebb in Scotland. If that is so, it is, to a certain degree, because of the extent to which this Bill has, at present, gone through Parliament.
Lord DRUMALBYN: I hope that the noble Lord will forgive me for interrupting him, but would he not agree that there is no particular difficulty in separating the subjects that Scottish Members of Parliament would be able to vote about if they were not allowed to vote on purely English matters, because so many English Bills include, towards the end, the words:
"This Act shall not apply to Scotland".
On the face of it, they will know that that is something that they need not bother with and cannot vote on and in point of fact most of them do not bother to do so now!
Lord HUGHES: I would suggest as regards that matter that the noble Lord should look at the last two or three Sessions of Parliament and find out how much of the legislation that has gone through the House of Commons Scottish Members of Parliament were debarred from taking part in. He will find that it was a very substantial part of the business of another place. He shakes his head. There is an easy way to find out. Let us look at it, not at this moment but I am quite happy to do so at a more convenient time. I think that we shall find that I am right and that he is putting a gloss on the matter.
My noble friend referred to Northern Ireland. The fact that this situation has existed for 50 years in Stormont is overlooked. People are inclined to think,

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because there are 71 Members of Parliament from Scotland but there are only 12 from Northern Ireland, that we are not comparing like with like. They can tolerate a situation and an anomaly when there are only 12 people involved, but it becomes different when there are 71 involved. I should point out that for the greater part of that time the effect of results, so far as a Conservative Government were concerned, was that there were eight Northern Ireland votes which they could count on during a Division, because they had 10 and there were two the other way.
At present, with 41 Labour Members in Scotland and 30 otherwise, the Government can count on only 11. So, it is a difference in detail so far as Party machinery in the House of Commons is concerned. If it could have been tolerated all that time for Northern Ireland, I wonder why, at this particular time, it should be regarded as so absolutely fundamental that it must be held out as a threat, not to stop the situation arising, but to try to do so. It will be one of the things which will be brought out in an attempt to get a "No" vote.
Lord MONSON: Would the noble Lord not agree that if this Amendment, or one very like it, is not carried, then in a couple of years' time it will be the English who are saying: "I am not an English nationalist, but …"?
Lord HUGHES: Yes, and this was a point which was referred to by the noble Viscount, Lord Thurso. He said that he was supporting this Amendment because he thought that it would be a step on the road to a federal solution. I happen to believe, along with the Liberals and unlike most of my political colleagues, that eventually the solution will be a federal one. If this helps to bring the English into the frame of mind where they would like to see control of their own affairs, leaving Westminster only for the totally United Kingdom, then it would suit me down to the ground.
Lord WILSON of LANGSIDE: I know that the noble Earl is anxious to bring the debate to a close, but the persuasive eloquence of the noble Lord, Lord Hughes,
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impels me to rise to correct him on one matter of historical fact which I shall leave with the Committee. He said that the feelings in Scotland concerning dissatisfaction with the workings of the Union had not lessened with the passage of the years. That is not strictly accurate. When the terms of the Treaty of Union were announced they caused a major upsurge of concern in Scotland. There were riots in Glasgow, Edinburgh and Dumfries. A mere 10 years later there was an incident in 1715; there was another incident in 1719; there was a little trouble in 1745, and so it has gone on over the years: the ebb and flow. It is not true to say that over the years there has been increasing dissatisfaction with the working of the Union in Scotland.
Lord HUGHES: My noble and learned friend has referred to what I said. Although, like him, I am not very well-thatched on the top of my head, when I was talking about my experience in politics in Scotland I did not intend to convey that I had been around since 1715! I am talking about what has been taking place during the last 40 years. During those 40 years this feeling has grown year in, year out; it has not been an ebb and flow; it has been growing all the time. The increase in the number of Scottish National seats was merely a reflection of that.
The Earl of PERTH: I shall be brief. I voted for Amendment No. 327, but I am less happy about voting for this Amendment if it is pressed. The noble Earl, Lord Selkirk, said that we had to face the fact that even if this Bill is passed, there is already a division and that, therefore, it is nothing different, but merely brings matters to reality if in the Westminster Parliament the division is also made a reality.
However, I do not think that that is altogether right. Those at Westminster who are Members of the Westminster Parliament should all have the same rights and powers. To suggest that because there is a Scottish Assembly you have already cut away the powers in some degree, is not true of those who are Members of the Westminster Parliament. They all have exactly the same rights in the Westminster Parliament. They cannot talk about certain matters in

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Scotland, but one and all would be able to talk about them in so far as the Westminster Parliamentarians can talk at all.
The Earl of ONSLOW: What is being said is that they can talk about them in England but not in Scotland, and this is what is getting under the collars of the English.
The Earl of PERTH: That is as may be. I am merely making a point in relation to something that the noble Earl, Lord Selkirk, said. The noble Lord, Lord Monson, said that he recognised that a potential sacrifice had already been made in Amendment No. 327, but he felt that not only ought we to have a belt but also braces. I am a braces man and I have found them quite sufficient for my purposes at all times; I continue to hope that my trousers will stay up. I am satisfied with just one thing; namely, Amendment No. 327. I entirely agree with what the noble Viscount, Lord Thurso, said; if we go through with this Amendment it divides things even more. To that extent I hope that the noble Earl will not press his Amendment.
Lord MACKIE of BENSHIE: As everyone else is getting into the tight, I should like to make one or two remarks before the noble Earl, Lord Ferrers, gets up. First, we have been over the ground so often, not with regard to the detail—the purpose of the Amendment—but because of the fears expressed from the heart by the noble Earl, Lord Onslow, and from the head by the noble Lord, Lord Raglan. They have put a point of view which arises from not having thought about the problem. They have had a problem sprung upon them which has been with them for many years, but they simply have not known about it. It is extraordinary that the noble Lord, Lord Raglan, should think that one can simply ignore the problem and it will go away. With respect, this is a paraphrase of what he said.
Lord RAGLAN: I have been living with this problem all my life. I have been surrounded, at a distance, by Welsh Nationalists and they all speak very much like the noble Lord.
Lord MACKIE of BENSHIE: I take the point. The noble Lord has been
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living with the problem but he has not understood it. This is what has happened, because you cannot have one-third of the Scottish people voting for a Party which is illogical in the situation, and think that nothing is wrong. Of course there is a great deal wrong. There is a great deal that is illogical in our present system. When you have a Party in power in Great Britain which is not in power in Scotland, then the Scottish Grand Committee is packed with members of Parliament of the other country in order to make up the balance.
Lord CAMPBELL of CROY: May I just correct the noble Lord? This is a fallacy. If he will look up the Standing Orders he will see that there are no votes of substance and there is no packing, and it is entirely a separate question. He is just repeating a fallacy.
Lord MACKIE of BENSHIE: I am sorry if I am repeating a fallacy, but I have seen in the past Members from England put on to the Scottish Grand Committee and regarding it as a penance of some sort. But certainly they were on the Committee and talking and voting, perhaps not on points of substance, but certainly they made up the membership of that Committee when the Party balance was wrong.
Lord CAMPBELL of CROY: I must put this right. Under the Standing Orders of the other place the Scottish Grand Committee must contain, as well as all 71 Scottish Members, not less than 10 non-Scottish Members and not more than 15. They have to be appointed. The noble Lord, Lord Peart, who has been Leader in another place, will know this. There is no vote that is possible in the Scottish Grand Committee except on such things as whether a subject has been considered or not.
Lord MACKIE of BENSHIE: I do not entirely accept the noble Lord's correction.
Lord CAMPBELL of CROY: Well, look it up.
Lord MACKIE of BENSHIE: But it is a fact that in many matters pertaining to Scotland, the Scottish opinion may be entirely different from the opinion of the

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House as a whole and the Scots have had to accept this. There are illogicalities of every sort in the system as we have it at present. The system of devolution that we now are proposing is not entirely logical. I think that this must be seen—and is seen in different terms from different points of view—in this Committee. But that we have got to try it I have no doubt whatsoever.
The noble Earl's Amendment is a reasonable attempt to highlight the problem. I agree with my noble friend that it is not an Amendment that could possibly be carried at the present time because there are so many other anomalies. For example, education is devolved to Scotland, but of course the universities stay outside the control of the Scottish Assembly, and one would really have to accept that where power is split then the Scottish Members of Parliament in Westminster must be able to have their say.
While I accept that the Amendment is, in a way, completely logical and that it certainly should be brought to light in the present state of devolution, when so little is devolved and so incompletely, then I think we have to accept the fact that the Scottish Members of Parliament must really act in exactly the same way as the Northern Ireland Members of Parliament have acted for many years. But it also points to the fact that the only logical solution to this problem is a form of federalism—I am glad that the debate in this House is showing this up—and that we must progress towards federalism; and we shall do so, with experience.
Lord STRATHCLYDE: I feel compelled to speak by the powerful voice of my noble friend—I call him noble friend not with caution but because it is a fact—Lord Hughes, who I understand informed the Committee that there had been a growing feeling in Scotland that decisions were taken in London. Evidently his experience is far different from mine, and I think I served in the Scottish Office longer than he did. During the seven years I was there I was never aware of the fact that decisions were taken not in Edinburgh but in London. As James Stuart, Secretary of State for Scotland in those days, always said, if the Secretary of State could not get what he wanted
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out of the Cabinet he had no right to be Secretary of State, and he was absolutely right.
I never knew of a decision taken in Westminster that was not in line with what we wanted in Scotland, and if Lord Hughes can give chapter and verse to support what he said, I shall be very much surprised. The decisions were taken, in his day and mine, by the Secretary of State; they went before the legislation committee of the Cabinet, in the way every other Minister must put forward his proposals, but the decisions were taken by us in St. Andrew's House in Edinburgh, not in Whitehall.
Lord HUGHES: I was invited by my noble friend—I return the compliment—to give an example and I will do so briefly. He will remember the occasion when your Lordships' House carried, against the Government, an alteration in the reorganisation of local government in Scotland breaking up the Strathclyde Region into four. It went back to the Commons and was carried by English votes.
Lord DRUMALBYN: I want briefly to give my experience, and I think my noble friend Lord Strathclyde will bear this out. The obvious subjects about which we are talking are health, education, social welfare, housing, local government, pollution, eroding and flooding, the countryside, roads, fire services and so on. On the main ones, in 18 years in the House of Commons I never spoke on any English subject in that range, certainly not on health, housing or local government. If one looks at the subjects with which Scottish MPs will have to deal here at Westminster if the Amendment is carried, one finds that they are very important ones indeed; defence, taxation, foreign affairs, trade and industry, including the distribution of industry, social security, agriculture and fisheries—other than salmon—international transport, trade union and employer associations, company law and safety standards. If they cannot keep them occupied, I shall be very surprised indeed.
The Scottish Members will be doing what they will have been sent to Westminster to do, and that is to look after Scottish and British interests in those very important matters. But they will

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not in any case, in my submission, be taking much interest in the subjects I started by mentioning—that is, those which are the devolved subjects in England—other than to obey the Whip, and they will be only too happy not to have to obey the Whips on those subjects.
Earl FERRERS: This Amendment of my noble friend Lord Selkirk goes right to the centre of the problem and I am not sure that my noble friend Lord Drumalbyn did not point to it when he said that the Scots would not vote on any English issue unless it was at the behest of the Whips. I believe that the right or ability of Scottish MPs, after Scotland has an Assembly of its own, to vote on English matters is absolutely fundamental to the equity of the Bill. Time and again we have faced this problem and every time the Government have ducked it; we look forward to hearing what the noble and learned Lord will say tonight on the subject.
However, if 71 Scottish Members of Parliament go to Westminster at present, and are entitled to vote on all matters and look after all affairs of Scotland, and if there is then devolved to the Assembly all responsibility of a domestic nature (such as housing, health and social services, and education), and so the right of Scottish MP's to decide issues on those matters which affect Scotland is removed, how can the right of Scottish Members of Parliament to decide these same issues which relate to English matters possibly be retained?
It seems to me to be a huge and indefensible inequity, to which, as has been said on an earlier Amendment, the English have for some extraordinary reason not yet woken up. It will create antagonism and it will generate English nationalism, which at the moment does not exist, when the English realise that their domestic political future is being determined by Scottish Members of Parliament in a manner contrary to what their own English representatives have indicated by their vote.
I do not think that this is an absurd idea; I think it is a practical reality. Let us take an example. Let us suppose that there was a Labour Government, and that the Secretary of State for Education and Science said that all grammar schools,
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direct grant schools and public schools were to be abolished, and that henceforth comprehensive education was to be the only education available throughout the country. Education is a matter which is devolved to the Assembly. There might well, in a debate in another place, be a Conservative majority of English MPs who would not want such a régime, but there would be a three-line whip. I fail to believe that any noble Lord would think that the Scottish Members of Parliament would resist a three-line whip, and would not vote on a matter which commanded a strong Party whip on both sides just because it happens to be an English matter. I simply do riot believe that that would happen. Of course they would vote. There might be a majority of Members of Parliament ill favour of that measure, although there might well have been in the same vote a majority of English Members of Parliament against it.
In this instance, the Scots Members would have foisted onto England that which the English did not want, and that which the English Members of Parliament had indicated they did not want. The Scottish Members of Parliament would have voted on a matter which affected England, when the English Members of Parliament were denied the right to vote on the same matter when it affected Scotland, and upon which the Scottish Members of Parliament were also denied the right to vote.
I believe that this is a recipe for real disaster and for real conflict between the nations. The noble Lord, Lord Hughes, said that he was worried when people said that this was the price that Scotland had to pay. This is the trouble with the Bill. As I have said before, it does not cultivate the harmonies; it exaggerates the discord.
One comes back to the inevitable conclusion that, however plausible the arguments are on the surface, in the end the Bill, because of these types of measures, will do no good. The reason is quite simple; namely, that the Government have tried to mix a federal system and a unitary system. The noble Viscount, Lord Thurso, and the noble Lord, Lord Mackie of Benshie, said that they were glad that this was a step towards federalism. But what the Government are doing is trying to give a federal

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system to Scotland, a federal system to Wales and a unitary system to England. It is that which will not work.
It may be that the Government will say—and I apologise if I take the words out of the noble and learned Lord's mouth—that the Scottish Members will not interfere with English legislation. But I do not believe that we can rely upon that in a constitutional Act of Parliament. It will put the Scottish and Welsh Members in an intolerable situation. They will not be able to vote on Scottish domestic affairs because they will have been devolved. They will not be able to vote on Welsh domestic affairs because they will have been devolved; and they will not be able to vote on English domestic affairs because that is not their business. So, what are they going to vote on? They can vote on the Budget, of course, and on all the other things which are of a reserved nature. But they will almost he disfranchised from the guts of political life, which are the domestic affairs—
Lord DAVIES of LEEK: We shall still have our rugby.
Earl FERRERS: I am quite sure that regardless of what Scottish or Welsh Members are allowed to vote upon, it will not stop the noble Lord, Lord Davies of Leek, from speaking and voting on a multifarious number of topics—and very well will that be received, too. I think, therefore, that my noble friend Lord Selkirk was quite right to put this Amendment down, but it does have difficulties; and so bizarre is this Bill that it is very difficult to amend the blessed thing without running into the very difficulties which have exercised your Lordships this evening.
Of course, the Amendment seems logical enough, and I utterly sympathise with its purpose, but the trouble is that it creates two classes of Members of Parliament, some who can vote on some things and others who can vote on all things. I think it was the noble Lord, Lord Raglan, who said that it is a cardinal principle that Members of Parliament are equal and have an equal right and vote over all matters. But even if one sympathises with my noble friend Lord Selkirk in
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his Amendment, I do not believe that if it were pressed it would be accepted by another place, because it will distinguish between Members and will divide Members. This is the last thing, I am quite certain, another place would want, and it is the last thing that I am sure my noble friends would wish to suggest to another place.
Lord RAGLAN: The noble Earl says that it will distinguish between Members, but this Bill already does so, and he has already said that it does. He has already said that it makes the Scottish MPs (and, when the Wales Bill comes through, the Welsh MPs) of a different category from the English MPs, because many subjects will have been devolved to Assemblymen and they will no longer have any say over those matters.
Earl FERRERS: I quite agree, and I have a lot of sympathy with the noble Lord, Lord Raglan. But what I was going to say was that I sympathise with the purpose of this Bill but I believe it is terribly important that we should try to find some Amendment which would be acceptable, not only to your Lordships but to another place. I think it is very difficult to do, but I believe it can be done; and I would hope that if my noble friend were not to press this Amendment tonight we might be able to come up with a suitable Amendment at the Report stage which might combine the principles of what he intends to do with practical acceptance by both your Lordships and, one hopes, another place. So I would hope that my noble friend would not in fact press it this evening.
Lord McCLUSKEY: I shall try to follow the example of the noble Earl, Lord Selkirk, and be brief, and I hope that on this occasion I might perhaps get to the end of what I have to say without the interruptions which my speeches usually occasion. I have heard this Bill described by many adjectives, but this is the first time it has been described as "blessed", and I am indebted to the official spokesman—
Earl FERRERS: I hesitate to interrupt the noble and learned Lord within three words of the beginning of what he has to say, but if he is going to quote me I know that he would wish to quote me correctly.

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I did not say "blessed"; I said "bizarre"—and that is not the same thing, even in the noble and learned Lord's language.
The LORD CHANCELLOR: "Blessed" came through loud and clear.
Lord McCLUSKEY: No doubt the record will show, as indeed the Chief Whip is telling the noble Earl, that he said "blessed". Turning aside from these matters, I agree entirely with the noble Earl that there is a fundamental reason why one should not support this Amendment. The idea which the new clause asserts is one which has been looked at many times in the past, and particularly in connection with the Irish Home Rule Bills. Indeed, as the noble Earl pointed out, the Kilbrandon Commission, in paragraph 812, contains a passage about this in which it is said that the "in and out principle", as it was there described, was regarded as impracticable. I would believe that to be so, and I believe it to be unworkable and not in keeping with the practice and procedures of the House of Commons. So in that, at least, I am in agreement with the noble Earl—that this is a had Amendment for that reason.
But, practicability apart, in the Government's view the proposals in the Bill provide no cogent reason for excluding Scottish Members from full involvement in the business of Parliament. I would suggest that this is connected—it is certainly not unconnected—with Amendment No. 327; that Parliament will remain sovereign, still able to legislate on everything, including devolved matters, anywhere in the United Kingdom, and for the United Kingdom as a whole, irrespective of the devolution of legislative competence in relation to certain matters to the subordinate Assembly.
Even in the devolved fields, in addition to its inherent power to legislate, Parliament will directly control the use of the Government's reserve powers, for example, the general powers in Clauses 35 to 37. Even in matters not formally or directly touching Scotland but falling under the head of matters in this Amendment, legislation for England and Wales—that is, nearly 90 per cent. of the people—is almost bound to have repercussions for the remaining 10 per cent. in a way which does not apply to anything like the
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same degree in the reverse direction. There is nothing in all this to require any change in Scotland's voice in the other place where English Members will continue to predominate. The Government do not say that these issues should never be re-examined but that this Bill is an inappropriate vehicle and this Amendment a still more inappropriate method.
There are one or two matters that I would like to pick up. The reason why one should not change it in this Bill is that at the present time Scottish Members and Welsh Members vote on English questions. The English are not going to be worse off because of the provisions of the Bill. Certainly a change is made: they will be deprived, to all intents and purposes, of the right and opportunity to vote on the matters devolved when they affect Scotland and only Scotland. That is the only change that the Bill makes in this regard. I have already indicated that the decisions about English matters, because they affect so many in the population, are bound to have an effect in Scotland. I must emphasise that, for it is a very important aspect of this whole debate.
On a much more general matter I find myself in total agreement with the noble Viscount, Lord Thurso, that this Amendment is wholly inconsistent with the continued unity of the United Kingdom. It may be that the anomaly drawn attention to by the Amendment is one to which there is no perfect answer; but what could be more inconsistent than that Members of Parliament for one part of the United Kingdom cannot play an equal role in the ordinary work of the United Kingdom Parliament? The remedy here is worse than the disease, substantially worse. I would agree with the noble Lord, Lord Hughes, that here (as in Amendment No. 327) we are in the incredible position that the House of Lords is threatening the Scots with all kinds of consequences if they proceed to want devolution. This is hardly the way to go about countering the threat against the unity of the United Kingdom—a threat posed not South of the Border but, as I said earlier, North of the Border.
In my submission this is a matter properly for the other place. It cannot he said never to have been raised in the

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other place. I think that the honourable Member for West Lothian constantly raised that matter there and the other place took its decisions on Second Reading and on Third Reading in the full knowledge of the matter which he raised constantly and which attracted the name of his constituency. In my submission this is a bad way of going about it. It is a threat to the United Kingdom, and I would invite the noble Earl not to press this Amendment.
Earl FERRERS: I am sure I am mentally numb over some things but I should be grateful if the noble and learned Lord could draw me along with him a little more slowly than he has. How can he say that this does not affect the United Kingdom at all, when certain parts have been devolved to Scotland and yet, as the Bill stands, the Scottish Members of Parliament are going to determine what happens in England in a way that they cannot do in Scotland? I do not understand it.
Lord McCLUSKEY: Let me explain. What I am saying is that, at the moment, 71 Scottish Members and 31 Welsh Members come and vote in the United Kingdom Parliament. You can now have a situation where, in England, there is a majority of Conservative Members but in the United Kingdom Parliament there is a majority of Labour Members. That is regarded as tolerable; it exists at the present time. The Bill does not change that. It does not make the situation any worse, as it were, for the English Conservatives than it is at the present time.
Several noble Lords: Oh!
Lord McCLUSKEY: I was interrupted by a little mirth there. I will try to pick up the thread again. Surely, that is plain.
The other point is this: it seems to be imagined that the English will be up in arms if a situation develops in the future when there is a majority of Labour Members who come from Scotland and tip the balance in the United Kingdom. As my noble friend Lord Hughes pointed out, this kind of situation has been lived with in Scotland—and indeed in Wales—for many years, where the possibility
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exists that although Scotland and Wales return a majority of Labour Members, in fact, because of the influence of England, they get themselves a Conservative Government at Westminster. They have had to thole it—to use the perfectly good Scottish word. Why should it cause such a tremendous revolution in England if they have to thole it once or twice?
Earl FERRERS: Can the noble Lord explain this? In the example which I gave, for instance over education, which is a devolved subject, the Assembly deals with that and says what kind of education it is going to have in Scotland. In the same way, the United Kingdom at Westminster says what education is going to be like in England. But over that matter the Scottish MPs can vote regarding the type of education that the English are going to have, even though that may be contrary to what the English want.
Lord McCLUSKEY: I have never disputed that. They can do that now.
The Earl of SELKIRK: The noble and learned Lord, Lord McCluskey, made a very predictable speech. I tried to make it up before he started, and it was quite a good speech; but he really did not go to the fundamental point. I do not want to pander to Scotland. There is this extraordinary fear which people have of Scottish nationalism; it is totally unjustified. The noble Lord, Lord Hughes, talked about discontent. If he goes to any part of the country he will find great discontent at the Government. I am not saying this particularly as something anti-Socialist. All over the country people are becoming more and more conscious about politics; and they are becoming more and more conscious that it could be done better. It is not only in Scotland. Scotland transmutes it into a sense of nationalism, but this is going on all the time.
I do not agree with the fact that there is no division; there is a sharp division. Members will be told frankly that they cannot vote on certain subjects. I do not think that this will have the slightest repercussion in Scotland. I think that it will make them realise to some extent that they have to concede something. To be perfectly frank, Scotland is not following this debate at all. If you read

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the Scotsman every day you do not have the foggiest notion of what is happening here. I do not blame them for that—but you would not have any idea.
I must say that I found the noble Viscount, Lord Thurso, making some extraordinary remarks. I suppose that if you are a Liberal you can do so. He said that this cuts chunks of legislative power out of the United Kingdom. It is a lovely idea, but that has absolutely nothing to do with the Amendment or the Bill. But never mind about that. I want to make two points and I want to put this to my noble friend Lord Ferrers. If I withdraw this Amendment, will he undertake to put an Amendment down at the next stage which gives full discussion to the other place on this issue, and which makes a demand on Scotland to show that they have to pay something for having their Assembly? Can he assure me that he can put an Amendment down with a cut in it that does both those things?
The LORD PRIVY SEAL (Lord Peart): Hear, hear!
Earl FERRERS: The noble Lord, Lord Peart, said "Hear, hear". I am delighted that he should do that; it gives me great courage. What I can assure my noble friend is that I will undertake to put an Amendment down at the next stage which will enable this, if it is passed, to be discussed and considered by another place. That is the appropriate place in which to discuss the matter. I hope that that will satisfy the noble Earl.
The Earl of SELKIRK: I do not want to press this tonight. It is much more important that noble Lords are considering the Amendment. I am prepared to consider putting an Amendment down, or the noble Earl putting an Amendment down, which will achieve these objects. I am not trying to jostle the Government. I am not keen in dividing the Committee if I can possibly help it. I want to get the Bill improved, as I have tried to do from the beginning. If the noble Earl gives that undertaking, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 67 [Transfer of property]:
11.10 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 211:
Page 33, line 11, leave out subsection (3).
The noble Viscount said: I wonder, after those heady draughts, who would really wish to descend to the transfer of property?—but there is a noble Lord opposite who is prepared to do so. The point is a short one. I entirely understand that in Clause 67 there will be the requirement to transfer a great deal of property, no doubt of a fairly miscellaneous nature, which is required to be transferred in connection with the exercise of functions concerned with devolved matters. What I do not follow at the moment are the comprehensive provisions of subsection (3) of Clause 67.
The noble Lord, Lord Kirkhill, I am sure, will be able to explain this, but what I find different as between this provision and the equivalent provision not that long since passed in the Local Government (Scotland) Act 1973, in Section 222, is yet again the override powers that are provided in this subsection (3). Whereas, of course, it must be right that there should be the ability to transfer property, is it right that one can override any restrictions that anybody may have put upon the property in the first place? These may he statutory or they may he a matter of private negotiation. They could easily have been the terms on which some property was transferred to a public authority in the first place; yet these terms are to be disregarded and overridden without, so far as I can make out, any opportunity for anybody to protest or do anything about it. It is really this aspect of the issue which goes beyond what precedent would seem to indicate, and which I should like the noble Lord, if he would be so kind, to explain. I beg to move.
Lord KIRKHILL: If I can be of help to the Committee, I think it would be best if I explained the intention behind Clause 67. When the Scottish Executive take over responsibility for devolved matters, it is right that they should also take over property used in connection with those matters—property now vested in my right honourable friends, the Secretary of State for the Environment and the Secretary of State for Scotland. Indeed, it would

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be a little odd if they did not, for the Executive would then be beholden to the Government for their offices and furniture at a time when they were responsible, under this Bill, for a wide range of policy and executive functions.
As noble Lords will recognise, such property transfers are a perfectly normal feature of legislation setting up new public sector bodies. For example, property was transferred by the Minister for Public Building and Works to the Post Office Corporation under the Post Office Act 1969. The property dealt with by Clause 67 will be of a diverse character—office blocks occupied by civil servants working for the Executive on devolved matters, the Assembly accommodation itself, including the Royal High School, garages, stores, caretakers' houses—even ancient monuments, as was mentioned earlier, owned by the Secretary of State—hospitals, and so on. The common feature of this collection is that the properties are all used in connection with devolved matters and are now owned or leased by the Secretary of State. Much of the property will be in Crown hands and, as I am sure many noble Lords will know, in Scotland that means that there may be restrictions on the use or disposal, arising from the system of tenure that exists there. Other properties will have been leased by the Secretary of State, and quite a common feature of leases is a restriction imposed by the landlord, giving him the right of veto over proposals to assign, transfer or sub-let the property to another person.
Quite obviously, of course, if Clause 67 lacked subsection (3) it would be possible for a landlord, or a feudal superior in Scotland, to thwart the intention of this legislation by refusing to agree to assignation or sub-letting; and subsection (3) simply sets aside such restrictions in the particular circumstances of a transfer of property on devolution. I want to assure your Lordships that no general encroachment on landlords' rights is intended by this subsection which, as the noble Viscount will note, is narrowly defined. Since subsection (5) of Clause 67 transfers liabilities, including that of paying rent, it is difficult to see what loss a landlord could sustain by the operation of subsection (3). Indeed, it would be fair for me to say that landlords might find the
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Executive to be a model tenant. At any rate, that is the underlying thinking behind the clause and, in particular, subsection (3) thereof.
Viscount COLVILLE of CULROSS: I am obliged to the noble Lord for that explanation. It is funny, however, that when such incidents of tenure would, no doubt, have occurred in the case of local government property, they did not appear to be dealt with in the provision in the Local Government (Scotland) Act. I should have thought that local authorities, equally, had office blocks, schools, historic buildings and other such places, which would have been subject to these feudal rights, in whatever state they are in Scotland at the moment. However, it seems to me that the main point is that the noble Lord is able to say that, by virtue of subsection (5), there really will he no confiscation of any proprietary rights of any value. It is this that really matters more than anything else. Since he is able to assure us that that is so, I imagine that the Committee would wish the matter to be left there. If so, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 67 agreed to.
Clauses 68 to 70 agreed to.
Clause 71 [Complaints of maladministration]:
The DEPUTY CHAIRMAN of COMMITTEES (Lord Amherst of Hackney): I should warn the Committee that if Amendment No. 289 is agreed to, I cannot call Amendment No. 212.
Baroness STEDMAN Baroness STEDMAN moved Amendment No. 289:
Page 34, line 34, leave out subsection (2) and insert—
("(2) The provisions of sections 20(3) and (11), 21(6), 56 and 74 of this Act shall not apply in relation to the Parliamentary Commissioner Act 1967, but an Order in Council under this section may apply, with such additions, exceptions and modifications as appear to Her Majesty to be necessary or expedient, any of the provisions of that Act.")
The noble Baroness said: This Amendment is consequential on Amendment No. 266, which added the Parliamentary Commissioner Act to Part III of Schedule 10, thereby ensuring that the Scottish

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Assembly will be able to legislate for the investigation of allegations of maladministration by a Scottish Secretary in relation to devolved matters. Clearly, the Assembly will not be in a position to legislate about maladministration from the moment Scottish Secretaries take over their responsibilities, so Clause 71 provides for interim arrangements to be made pending the Assembly making its own arrangements. These interim arrangements will be made in an Order in Council applying, with such additions, exceptions and modifications as necessary, any of the provisions of the Parliamentary Commissioner Act 1967.
The addition of the 1967 Act to the list in Schedule 10 meant that that Act as applied to the Scottish Assembly would attract the general conversion provisions in Clauses 20, 21, 56 and 74 of the Bill. This is unnecessary, because in the interim or short-term, the arrangements for investigating maladministration will be spelt out in the Order in Council, which will itself make the necessary conversions to the 1967 Act; and in the long-term the Assembly can make its own legislation and the conversion provisions become irrelevant. Thus the new subsection (2) disapplies those general conversion provisions in relation to the 1967 Act. Otherwise the new subsection is similar to the existing subsection (2).
The noble Viscount, Lord Colville of Culross, had put down Amendment No. 212 to subsection (2) to delete the word "additions", and he will presumably want to make the same change to the Amendment which we have now put forward. There may be technical reasons in the way of that tonight, but we are prepared to accept his Amendment. If it is not possible to do so tonight, we will undertake to make such an amendment at Report stage. I beg to move.
Viscount COLVILLE of CULROSS: This happy news, coming at this time of the night, only leads me to depart into some realm of fantasy. There is, I think, a point of substance here, and I am very glad that the noble Baroness has been able to meet me on this. There has just arrived in this House from another place a Bill called the Local Government Act 1974 (Amendment) Bill, which is not to do with the Parliamentary Commissioner for Administration so much as with the
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Local Commissioner for Administration. But it makes the point that there is being made by Westminster Act of Parliament a change in the powers, which I anticipate adds, perhaps, one tooth to the powers that the Local Commissioner has.
These matters are very jealously looked at. If we are to have an Order in Council which makes additions for Scotland by Order in Council which are not the equivalent of additions made to the powers of the Parliamentary Commissioner South of the Border, there will be ill feeling. There are sufficient restrictions upon what the Parliamentary Commissioner can do anyway (and the greater restriction that sometimes nobody pays the slightest attention to what he says) for there to be a good deal of political mileage in this kind of thing. If, therefore, the Government are prepared at the next stage of the Bill to take "additions" out of their Amendment—this is why I asked the noble Baroness not to deal with this matter on the earlier paving Amendment—and if the noble Baroness is prepared to tell us that, with the removal of that word and any consequential alterations, the matter will then be held in the way in which I should have hoped, I shall be entirely satisfied. Indeed, I am extremely grateful to the Government for having met this point.
Baroness STEDMAN: I can give those assurances to the noble Viscount.
On Question, Amendment agreed to.
Clause 71, as amended, agreed to.
Clause 72 [Confirmation by House of Commons of resolutions passed by it but not passed by House of Lords]:
On Question, Whether Clause 72 shall stand part of the Bill?
Earl FERRERS: This Question—to leave out Clause 72—is consequential upon a decision which your Lordships took earlier in the Committee stage with regard to the rights of your Lordships' House over voting on secondary legislation which comes under this Bill. I beg to move.
On Question, Clause 72 negatived.
Clause 73 [Reckoning of time for certain purposes]:
11.22 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 390:
Page 35, line 19, leave out ("37 or 72") and insert ("or 37").
The noble and learned Lord said: This Government Amendment reflects your Lordships' decision to remove from the policy override Clauses 35, 36 and 37 the power of the House of Commons to confirm a Resolution which they have passed and allow the Secretary of State to go ahead with override action, in spite of the House of Lords not having passed a Resolution to the same effect. The Amendment achieves its effect by simply removing the reference to Clause 72 which, of course, has now been removed from the Bill.
The Government believe that the clause itself is still essential. If Parliament is going to lay down time limits within which action can be taken in Parliament, it is no more than common sense to relate those time limits to sitting days and not to calendar days. Otherwise, in an extreme case, the time limit could expire before anyone has had a chance to take whatever action is in point. The override Clauses 35, 36 and 37 empower the Secretary of State to take action which requires Parliamentary approval within 28 days. Clause 73 prevents time from running while Parliament is dissolved, or prorogued or adjourned for more than four days. I beg to move.
Lord CAMPBELL of CROY: I recognise that the Government have put this down as a consequential Amendment following a decision which was taken by your Lordships' Committee. In addition to the explanation which the noble and learned Lord has given, it is in the nature of editing the Bill. However, as the question of the whole of Clause 73 arises (the noble and learned Lord has referred to it), and there is an Amendment standing in the name of my noble friends to delete Clause 73, I think that this might be a convenient moment for me to put a question to the noble and learned Lord about it.
Clause 73 deals with periods of time. My understanding is that if Clause 73 were to be taken out of the Bill it would mean that periods of time which did not relate to the House of Lords' situation
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would also be taken out of the Bill. For that reason, therefore, it is necessary to retain Clause 73; it covers periods of time which are not connected with the Amendment which we passed earlier in this Committee. Naturally, the Amendment to leave out Clause 73 was put down as well in order that the Government could indicate that the Bill was drafted in that manner.
Lord McCLUSKEY: I believe I have so indicated.
On Question, Amendment agreed to.
Clause 73, as amended, agreed to.
Clauses 74 and 75 agreed to.
Clause 76 [Expenses]:
Earl FERRERS Earl FERRERS moved Amendment No. 213:
Page 35, line 36, leave out from first ("Act") to end of line 37.
The noble Earl said: This is a probing Amendment. Clause 76 reads:
"There shall be paid out of moneys provided by Parliament any administrative expenses incurred by a Minister of the Crown under this Act "—
that is understandable. It continues:
"and any increase attributable to this Act in the sums so payable under any other Act."
I do not understand what it means, and I should be grateful if the noble Lord, Lord Kirkhill, could explain it. I beg to move.
Lord KIRKHILL: I shall certainly attempt to do what the noble Earl has asked of me. Clause 76 is a common form clause which is included in Bills introduced in another place in order to avoid the need to italicise every provision which has financial implications. Where a Bill contains numerous provisions which provide for expenditure as does this Bill, it would be wasteful to set large parts of the Bill in italics when first introduced. To do that would mean a great deal of resetting once the stage at which italics are necessary has passed. So, instead of numerous italicised passages, a single expenses clause on the lines of Clause 76 is included and that clause is the only part of the Bill which is italicised.
Clause 76 is a procedural device, and now that the Bill has left the other place it has served its purpose. An expenses

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clause of this kind is always regarded as spent when legislation is consolidated. It has no effect of substance. As and when money is required for various purposes of the Bill, that money will have to be voted in the usual way. I hope that explanation is of some assistance.
Earl FERRERS: In fact, it does not give me very much assistance. The noble Lord merely explained why it might have been in italics and was not in italics. He really did not explain what it would have meant had it been in italics, other than the fact that it was presumably a financial provision, which I quite understood in the first place. What I did not understand was the meaning where it says—
"any increase attributable to this Act in the sums so payable under any other Act".
It may be that this is not an important point, but I did not quite understand what it meant, and I am afraid I still do not understand.
Lord KIRKHILL: I am advised that it is a procedural device. I am advised that its emphasis is now spent because the Bill has left the other place. I am further advised that it is common and usual practice.
Earl FERRERS: I am sure the noble Lord's advice is excellent, but it still does not help my understanding of it. However, at this juncture I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 76 agreed to.
Clause 77 [Interpretation]:
11.30 p.m.
The Earl of SELKIRK The Earl of SELKIRK moved Amendment No. 376:
Page 35, line 40, at end insert—
(" "Chairmen" means the Chairman of Committees of the House of Lords and the Chairman of Ways and Means in the House of Commons.")
The noble Earl said: I shall not be very long. As I wandered through this Bill for the first time I came upon the word "chairman". I know that if I had been a very intelligent man, and I happened to have the full list of Statutes for the last 40 years around my sitting-room,
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I could easily have found out what the answer was. The answer, of course, is the chairman of Ways and Means; and the chairman in this House. It seems to me a matter of simple convenience for anyone reading this Statute that those words should be put in the interpretation clause. They are perfectly correct. They add nothing to the Bill; they detract nothing from the Bill, but they make it just a little simpler for anyone reading the Bill for the first time. I beg to move.
Lord McCLUSKEY: When the noble Earl suggested that such a definition might be put in I indicated that the Government did not share that view and I hoped that he would be satisfied with the explanation given. He is obviously not so satisfied, but it is the firm view of the Government and of Parliamentary Counsel, who have specifically looked at the matter again, that the definition is already incorporated in the Bill by Clause 28(4) and nothing further is needed. Indeed, the proposed Amendment would simply complicate the Bill, because to put into Clause 77 material needed solely—and I emphasise that, solely—for Clause 28 would not help the reader. The Bill as it stands imposes no hardship on the reader. To follow Clause 28 in detail he must in any event turn to the 1936 Act, because in substance what Clause 28 does is to add new provisions to that Act. Indeed, Clause 28 is not comprehensible on its own.
Clause 28(4) mops up in general terms all expressions—and I quote:
"to which a meaning is assigned by the Act of 1936".
The Act, in its own definition clause, contains very few definitions: the critical expressions are defined in the substantive provisions as they go along. So Clause 28(4) takes no chances. And one could not define "chairmen" without laboriously checking the whole of Clause 28 against the Act of 1936 to see what else would merit express words. The draftsman has been consulted specifically about this and he concurs in the views which I have expressed.
The Earl of SELKIRK: With very great respect, the draftsman must live in a totally unreal world. Anyone reading this provision comes to the word "chairmen" and it means absolutely

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nothing until one has the Act of 1936. Normally one does not have those Acts readily available. I am only putting this forward as a convenience. I will not press the Government, but I must really say that I expect a higher standard for the general public; they should have some idea of what it is about. The moment I realised what was intended by the word "chairmen" the words fell into place straight away. I know something about the 1936 Act, but I could never have found out unless I had the Act before me. I think that the noble and learned Lord's draftsmen are living in a totally unreal world and have no respect for ordinary people like myself and others. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Baroness LLEWELYN-DAVIES of HASTOE: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

KING'S COLLEGE LONDON BILL
Examiners Certificate that no further Standing Order is applicable: Ordered to lie on the Table.
HOUSING (FINANCIAL PROVISIONS) (SCOTLAND) BILL
Returned from the Commons with the Amendments agreed to.