HL Deb 16 May 1978 vol 392 cc133-214

3.3 p.m.


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.


Schedule 12 [Legal proceedings involving devolution issues]:

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 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.


As the noble and learned Viscount, Lord Dilhorne, has explained, this is a probing Amendment and indeed I think that if he 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 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.


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 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.


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.


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 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.


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 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 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.


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.


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 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 this effect? Is the noble and learned Lord unable to conceive that it would be as well to be consistent, just in case?


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.


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 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 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 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 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.


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' 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 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 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 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 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.


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.

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- 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 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.


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 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 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.


Are we not making rather heavy weather of this matter? It does not seem to me a very 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 the clause as it stands. I am in favour of retaining paragraph 23.

4.9 p.m.


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 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.


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 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 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.

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.
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 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 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.


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.


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 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 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 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.


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 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?


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 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.


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 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.


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?


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 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.


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 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 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.


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—


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.


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 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 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- 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; 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 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.


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 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.


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 know that such a thought would not enter into the minds of noble Lords on either this or the other side of the House.


Would the noble Lord allow me to interrupt? Surely, it takes a Liberal to discern the filthy intentions of their adversaries?


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- 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.


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.


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 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 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.

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 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—


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?


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 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.


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—


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.


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 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.


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 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 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 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 well say, "All right, but then you cannot expect to have the same representation as before in the Westminster Parliament".


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.


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 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 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.


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.


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.


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 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.


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.


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 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.


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.


I am obliged to the noble Lord for making his position 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.


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.


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 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.


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.


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 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.


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.


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 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.


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 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; 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.


If the noble and learned Lord reads the Amendment, it does not say that.


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 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.


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 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.


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.


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.


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?


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 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- 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 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.


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 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.


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- 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.


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.


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.


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.


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.


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.


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.


I think that the noble and learned Lord's suggestion is a 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.


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 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 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.


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.


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.


An Amendment or two was accepted in the other place and we are certainly going to accept more Amendments—

Several noble Lords: Hear, hear!


—or redraft certain parts, so one must say, "Live horse and you will get oats".

On Question, Amendment agreed to.

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.


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.