Lords Sitting of 17 May 1978

Preamble
The House met at a quarter past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Peterborough.

LORD WHADDON
John Derek Page, Esquire, having been created Baron Whaddon, of Whaddon in the County of Cambridgeshire, for life—Was, in his robes, introduced between the Lord Wallace of Coslany and the Lord Northfield, and made the solemn Affirmation.
LORD TAYLOR OF BLACKBURN
Thomas Taylor, Esquire, C.B.E., having been created Baron Taylor of Blackburn, of Blackburn in the County of Lancashire, for life—Was, in his robes, introduced between the Baroness Llewelyn-Davies of Hastoe and the Lord Greenwood of Rossendale.

VIETNAM REFUGEES: ASSISTANCE ON HIGH SEAS
2.42 p.m.
Lord SEGAL: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will recommend the captains of British ships at sea to render all possible assistance to refugees from Vietnam, to enable them to reach the shores of countries willing to grant them asylum.
The MINISTER of STATE, FOREIGN and COMMONWEALTH OFFICE (Lord Goronwy-Roberts): My Lords, in September 1977 the Government reminded masters of British vessels, through the General Council of British Shipping, of our legislation requiring them to assist
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anyone in distress at sea when they are able to do so. We believe British masters have a good record in this respect.
Lord SEGAL: My Lords, while thanking my noble friend for that reply, may I ask whether he is aware that many instances have been reported by the Vietnamese refugees who have managed to reach Darwin that the law of the sea to assist ships in distress has been disregarded, and many Vietnamese lives have been lost in consequence? Could the noble Lord give an assurance that no British ships have refused to offer assistance or will refuse in the future if assistance is asked for?
Lord GORONWY-ROBERTS: My Lords, I am not aware of any instance where a British ship has acted in that manner. As I said, they have a good record in this respect, conforming with international obligations and, indeed the strong encouragement they get from the Government and their own General Council to conform to those requirements. As to the future, I am quite sure that the General Council, in accord with the international provisions, will continue to remind British masters of their duties. I have every confidence that British masters of ships will continue to discharge their international and humane duties.
Lord GRIDLEY: My Lords, has the noble Lord any information regarding whether the Governments of Singapore or Malaysia have been prepared to accept people who have been picked up on the seas and taken into ports in those countries?
Lord GORONWY-ROBERTS: My Lords, I could not answer that question without notice. In the meantime, I can say that I have no reason to believe that either country has proved unforthcoming about assisting these unfortunate people.
Lord MONSON: My Lords, is the noble Lord aware that within the past month the captain of a Thai merchant ship, who rescued a number of refugees whose boat was on the point of sinking and conveyed them to his home port, was arrested and charged with aiding and abetting illegal immigration? This was no doubt as a result of the Thai authorities wishing to bring moral pressure to bear

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upon the Western Powers. Would the noble Lord not agree that it is essential if this situation is to be avoided and if these people are not going to be left to drown or die of exposure, that the Western Powers—indeed, all the major non-Communist Powers—get together as a matter of urgency to formulate a policy for the rescue and resettlement of these refugees?
Lord GORONWY-ROBERTS: My Lords, I could not comment on the case which the noble Lord has adduced. However, I can assure him that we not only make strong and continuous representations when necessary, but join with our friends and partners on every possible occasion to reinforce what is, after all, an international obligation. Generally, the obligations are observed by the countries with whom we associate. But we have very good relations with countries like Thailand, and I have no doubt at all that if we had occasion to point out to them certain implications of some actions they would listen in the friendliest possible way. Generally, I would not say that the Thai Government have been reluctant to assist. Internally they have a fine record of helping masses of refugees, especially from Cambodia, as the noble Lord, Lord Elton, pointed out a few weeks ago in an important debate in which he and I took part.
Lord ELTON: My Lords, further to that reply, does the noble Lord agree that the Thais are under tremendous pressure? They have upwards of 100,000 refugees on their soil. Is he aware of the plan which was foreshadowed by Vice-President Mondale, in Bangkok on 4th May, to institute a Western development countries' consortium to help settle these refugees in Thailand? If so, can we offer that our support?
Lord GORONWY-ROBERTS: My Lords, I am not conversant with the full details of the proposals of the Vice-President, but I can give the noble Lord the assurance that as soon as they are put to us, with whatever proposals the United States Government see fit to make in relation to a consortium, we shall most certainly consider any such proposals very carefully and, I believe, favourably. As to the first point made by the noble Lord, I am grateful to him for saying what
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he has said about the Government of Thailand. I wish once more to pay tribute to the humanity and the self-sacrifice of the policy which the Thai Government have followed. He and I know the extent to which they have given aid and succour to hundreds of thousands of people who were in dire distress and often in danger of losing their lives.
Lord HAWKE: My Lords, could the noble Lord say whether any approaches have been made to any of the South American countries to harbour these unfortunate people?—since South America is probably the only place where there is really unused space.
Lord GORONWY-ROBERTS: Certainly, my Lords, all countries should co-operate in offering refuge to these very unfortunate people. We have done our bit, and we are prepared to consider how much more we can do in admitting as many as we reasonably can and in extending financial aid. I would pay tribute to the extent to which the United States have helped in this matter on the general question of admitting Vietnamese refugees. There are a number of countries in South America which are already looking with sympathetic favour at these proposals.

THE HARRIER: SALES TO CHINA
2.48 p.m.
The Earl of KIMBERLEY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government when they will give the go-ahead to the sales team from British Aerospace to visit China and sell the Harrier.
Lord WINTERBOTTOM: My Lords, I understand that the Chinese authorities are still at an early stage in considering their possible defence equipment requirements. Harrier is one of the items in which they are thought to be interested, but no official inquiry has been received.
The Earl of KIMBERLEY: My Lords, while thanking the noble Lord for that Answer, may I ask whether it is true that Her Majesty's Government have said

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that they are willing to do trade with China in matters of defence? Secondly would the noble Lord agree that when the last Chinese delegation visited this country they expressed great interest in the Harrier? Lastly, would he agree that we have to make the first move and present the Chinese with a package deal, because they are terrified that they may lose face if they come to us and we say, "No"?
Lord WINTERBOTTOM: My Lords, the noble Earl is correct as regards the first of his three questions. Her Majesty's Government are willing to do a deal with China. The other two questions I cannot answer, because I have no information about discussions that are going on.
Lord SHINWELL: My Lords, is it necessary to wait for an inquiry before we proceed? Is it not in the interests of British industry that we should come to some arrangement with the Chinese? Also, is it not particularly in the interests of NATO that China should be provided with adequate arms?
Lord WINTERBOTTOM: My Lords, we have to respond to Chinese requirements, but no official inquiry has yet been received from the Chinese.
The Earl of KIMBERLEY: My Lords, may I put to the noble Lord again what I put to him in the third part of my question, which was: why can we not go to China with a package deal and say: "Here it is: would you or would you not like to buy it?"
Lord WINTERBOTTOM: My Lords, one has to be invited in these matters. We have not yet been invited.
Lord SOAMES: My Lords, could the noble Lord tell me whether the Harrier is or is not on the COCOM list? Secondly, can he tell me whether the British Government are considering inaugurating a review of which countries are or are not on the COCOM list? For instance, is Cuba on the COCOM list? Thirdly, could the noble Lord tell me whether or not there should necessarily be even-handed treatment in regard to the supply of military equipment by all our partners in COCOM towards different countries for whom these regulations apply?
Lord WINTERBOTTOM: My Lords, of course we take account of the views of our partners through consultative machinery provided by COCOM. The United States is a member of COCOM, and naturally we take their views into account when considering arms sales. That is as far as I can go in the matter at this moment.
Lord SOAMES: My Lords, I am very sorry, but will the noble Lord say whether or not the Harrier is on the COCOM list? If that is so, it might well prohibit us from selling it to the Russians, but would it necessarily prohibit us from selling it to the Chinese?
Lord WINTERBOTTOM: My Lords, that is a very interesting theological point. Obviously, discussions have taken place with the Chinese about the Harrier. We are waiting for their response. Let us see what they have to say, before we do anything. We cannot force the Harrier upon them.
Lord SHINWELL: My Lords, am I to take it that we never offer to sell arms to any countries, outside Communist countries, until they make inquiry? Is that what is called British salesmanship?
Lord WINTERBOTTOM: My Lords, selling arms is not like selling tinned foods. It is something very different. One must be approached, before one offers to sell military equipment. Then one has to obtain the views of one's allies. It is as simple as that.
Lord SOAMES: My Lords, will the noble Lord assure us that we are not leading the Chinese Government up the path here? In other words, can the noble Lord assure us that, if they apply and would like to buy the Harrier, we are ready to sell it to them?
Lord WINTERBOTTOM: My Lords, the noble Lord almost certainly knows as well as I do of the presence in this country of an important delegation. I do not know what has gone on in discussions. There is something called commercial inconfidence, which the noble Lord should well know about, and that is what covers the present situation.

WEALTH TAX OFFICES
2.53 p.m.
Lord SANDYS: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many office blocks have been purchased for the purpose of administering a wealth tax, how many of these are standing empty and what is the cost to the taxpayer of these arrangements.
The PARLIAMENTARY UNDERSECRETARY of STATE, DEPARTMENT of the ENVIRONMENT (Baroness Birk): My Lords, the Property Services Agency leased seven buildings and started constructing another to house wealth tax offices. Alternative uses for these premises have been sought since my right honourable friend the Chancellor of the Exchequer announced in another place on 29th November 1976 that the Government had decided not to introduce a wealth tax in the life of this Parliament. More than 80 per cent. of the office space of these buildings has now been filled, and only one building remains unoccupied. The total annual rent bill of the seven leased buildings is about £900,000. The estimated total cost of the building under construction is £2·1 million.
Lord SANDYS: My Lords, I thank the noble Baroness for that reply. What justification can the Government claim for these purchases, particularly when one building is totally empty at the present time, and when the proposal for a wealth tax has been placed neither before Parliament, nor before the country as a whole?
Baroness BIRK: My Lords, Governments may, very exceptionally—and this has applied to Governments of both Parties—need to authorise the PSA to enter into commitments before legislation is laid or debated, so that the necessary accommodation can be provided in time. In the case of the wealth tax, my right honourable friend the Chief Secretary gave a Written Answer in another place on 13th March 1975, and a Supplementary Estimate was subsequently approved.

AFGHANISTAN: INTERNAL SITUATION
2.55 p.m.
Lord GRIDLEY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have issued any statement or made any public protest about the recent bloodshed and loss of life in Afghanistan.
Lord GORONWY-ROBERTS: My Lords, we have not in this case made any specific statement about recent events in Afghanistan. But it is well known that Her Majesty's Government deplore recourse to violence, wherever it occurs.
Lord GRIDLEY: My Lords, while thanking the noble Lord for that Answer, may I ask whether the Government consider that it might be appropriate to raise at the United Nations the issue of this Communist dominated, Russian backed coup within Afghanistan, and secure the condemnation of the United Nations in this matter? Has it not been a very bloody coup, in all the circumstances, in which the President of Afghanistan was shot down and some of his Cabinet and many other people were killed in the streets?
Lord GORONWY-ROBERTS: My Lords, we naturally deplore such action. However, I think that it would be premature, to say the least, to take the action which the noble Lord—for the best reasons—has suggested we should take. The new Afghanistan Government has been recognised by all its neighbours, including countries such as Iran and Pakistan, and among the few policy announcements which the new Government has so far made is adherence to a policy of neutrality and non-alignment and also of friendship with all countries which show friendship to it. Special stress, indeed, has been placed on co-operation with all countries which are friendly to it. We have recognised it, as I think practically all our friends and allies have done, on the well-known criteria which successive British Governments have applied in these cases. I myself welcome,

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in particular, the recent statement by Mr. Tarakki, a Communist who was released by the new Government, who said that, despite the continuing strong ties between his country and the Soviet Union, ties which extend far back in history, his country of Afghanistan will be "nobody's satellite".
Baroness WARD of NORTH TYNESIDE: My Lords, in view of the fact that many years ago I had the pleasure of visiting Afghanistan, in the days when it was a much happier country, may I associate myself with and support my noble friend who asked the original Question?
Lord GORONWY-ROBERTS: Indeed, my Lords, the noble Baroness may associate herself with the noble Lord, and I congratulate him. However, we may all have hopes for the future. I take careful note of the points made by both the noble Lord and the noble Baroness. We regard with abhorrence this way of settling internal affairs. However, we cannot easily intervene in the affairs of an independent sovereign country. We can make known—and we do make known, from both sides of the House and through the Government—in every possible way that we do not agree, least of all approve. In that way, I am quite sure that we can exercise due influence. I repeat that the position in Afghanistan in regard to its external relations is by no means as ominous as some might have thought it to be two or three weeks ago.

ORKNEY ISLANDS COUNCIL ORDER CONFIRMATION BILL
Considered on Report.

SCOTLAND BILL
3 p.m.
The Lord CHANCELLOR (Lord Elwyn-Jones): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, that the House do now again resolve itself into Committee.—(The Lord Chancellor).
On Question, Motion agreed to.
House in Committee accordingly.
[Lord Greenwood of Rossendale in the Chair.]
Clause 77 [Interpretation]:
The Earl of SELKIRK The Earl of SELKIRK moved Amendment No. 230:
Page 36, leave out line 21.
The noble Earl said: We are now dealing with the interpretation clause of the Bill. The line which I have in mind reads:
" 'financial year' means a year ending with 31st March".
May I ask whether it is desirable to settle by Statute the financial year of the Scottish Assembly? Indeed, I wonder whether any organisation has its financial year established by Statute. We have had one or two lectures from the Government Front Bench upon the subject of apron strings. This is very much of an apron string. The Government are telling the Assembly by Statute that they cannot even decide what their financial year is to be, and this seems to me to be going further than is strictly necessary. May I ask the noble Lord whether or not this is essentially a matter which should be dealt with by consultation in order to reach a common sense agreement between the Secretary of State and the Assembly? This seems to me to be the obvious way to deal with it.
There is, I suggest, a wider consideration. We had a debate on an Amendment as to whether we in the United Kingdom could change our financial year. Surprisingly interesting arguments were adduced for settling the calendar year as the financial year instead of the 31st March or the 5th April. However, this is not likely to happen. The weight of conservative determination to continue in the same way renders unlikely that possibility. What is much more important, however, is this. We have based the block grant for Scotland on expenditure. It might well happen—although I do not know whether it will—that we want the financial year in Scotland to be completed before bringing these considerations into this country's Budget. Therefore, it might be as well for the Scottish Assembly's financial year to end on 1st January. Alternatively, it might be more advantageous to Scotland to know what their

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block grant will be before they begin their financial year. In other words, it might be to their advantage that their financial year should start on 1st September.
I am not saying that this will happen, nor am I saying that the proposal in the Bill is wrong. I am asking whether it is wise to lay this down by Statute rather than to arrange it by consultation. If we cannot arrange it by consultation, then there are many other matters which will prove to be very difficult indeed to decide by the normal methods of consideration and consultation. It seems to me to be quite reasonable that this matter should not be laid down by Statute but should be settled by discussion and agreement between the Scottish Executive and the Secretary of State. I think that we should allow the Scottish Assembly a reasonable measure of freedom to make alterations which they believe to be wise in the circumstances. I beg to move.
The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill): The term "financial year" is defined in the Bill so that the Scottish Assembly and Executive operate on the same financial year as do Government; namely, the year ended 31st March, as the noble Earl has just been telling us. If the noble Earl's Amendment were to be carried, the Scottish Administration could adopt a different financial year from that of the Government, or it could legislate to enable local authority financial years to vary from the Government's and the Assembly's and, indeed, one another's. I should not have thought that that would be a desirable outcome. It would obviously be a source of much confusion.
If the Assembly were to adopt a financial year different from that of the Government, difficulty could arise on various counts. First, after devolution it will still be necessary to embrace the expenditure plans for devolved services in the public expenditure survey conducted annually by the Government on a rolling, five-year basis. Accordingly, it will be essential, for the purpose of the public expenditure survey, that the Scottish Administration's spending proposals are expressed at that stage in terms of financial years ending on 31st March—indeed, exactly the opposite point to that which the noble Earl has
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just been making. May I point out to the noble Earl that no matter how the Scottish Administration may subsequently choose to set out its accounts, these cannot be in terms of a different period.
There is one other point that I should make in order to help your Lordships' Committee. It is necessary for the financial year of local authorities to be the same as that of the Scottish Administration and, indeed, of the Government. That argument was settled at the time of the last Government reorganisation, and I would refer noble Lords to Section 18 of the Local Government (Scotland) Act 1975 which amends Section 96(5) of the Local Government (Scotland) Act 1973. It is fair to say to your Lordships' Committee that all Scottish local authorities now work to the financial year ending 31st March. This seems to me to be consistent. We shall have an Assembly whose financial year ends on 31st March and a Government whose financial year ends on 31st March, and the local authorities will also end their financial year on that date. I should have thought that that was a perfectly reasonable point to write into the Bill.
Lord TANLAW: Could the noble Lord, Lord Kirkhill, clarify one point? It is most unlikely in reality that figures will be available when the financial year ends on 31st March; they will be available only six or nine months later. May I ask the noble Lord to enlighten me as to whether or not Assemblymen will be able to have a form of running cash flow balance to make sure that their running expenditure is in keeping with a form of budget, which presumably they will have to forecast year by year? Otherwise they will not be able to see how clever they have been at keeping within that budget until possibly nine or even twelve months after the accounts have been closed.
Lord KIRKHILL: If I may give a very quick résumé of the current situation, the Secretary of State for Scotland meets at present on a thrice-yearly basis with the Convention of Scottish Local Authorities to discuss on-going programmes—usually the five-year public expenditure on-going programme and the year-to-year budget out-turn of the local authorities concerned. When the devolved Administration gets under way, it will immediately have to

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engage in that kind of consultation with the Convention of Scottish Local Authorities. Indeed, that point is made in the Bill. On the question as to whether there will be an immediate financial submission, my answer is, Yes. I cannot recall the section of the Bill which indicates it, but I will check the point and let the noble Lord know.
The Earl of SELKIRK: This means that the Assembly will be treated in the same way as local authorities. I should have thought that that was a pity. I am not arguing about whether the date 31st March is desirable. I am saying that the Assembly should be free to make up its own mind about what date is desirable. This is why I believe that a statutory statement is not the best way to handle this. If, however, the noble Lord wants to put in the 31st March, I am not going to press my Amendment. Nevertheless, I cannot believe that this is a matter which needs to be dealt with by Statute; it is one which ought properly be left to the Assembly to decide, after consultation with the Secretary of State. However, I shall not press the matter any further. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
3.9 p.m.
The Earl of SELKIRK The Earl of SELKIRK moved Amendment No. 359:
Page 36, line 28, leave out ("includes the Treasury;") and insert ("means a Minister in charge of a public Department of Her Majesty's Government in the United Kingdom;")
The noble Earl said: I raised this matter before, and I should like to ask the Government to look at it again. The words I have put down here I take from the Ministerial and Other Salaries Act 1975, Schedule 1, Part II, paragraph 2. One notices in the Bill that all kinds of things can be notified, specified and done by Ministers of the Crown. If noble Lords want to know, I believe that there is authority to create no fewer than 171 Ministers of the Crown. The Prime Minister, with proper modesty, has created only 108.
On the Bill as it stands, any one of those 108 Ministers of the Crown can do certain things and, so far as I can see in the Bill,
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when they have given—whatever the action is—notification to the Assembly, that is complete in itself. When they get a notification signed by the Minister of the Crown that is authority for the Assembly to take action. I do not think that is what the Government mean. Frankly, the Minister who can do that is the Minister who has powers to do so, but there is nothing to say that in the Bill itself. The Scottish Assembly would be perfectly entitled to take any document signed by a Minister of the Crown as authority for taking action, but I do not think that is what is intended. I think it is intended to be an authoritative document only on behalf of the Departments which are authorised.
Is it the intention that the Scottish Assembly should have to look at the authority of any Minister who makes a notification or uses his powers, or are they content to look at the statement in this Bill itself? This may be quite satisfactory when dealing with one Government Department in London because there the boundaries of departmental authority are very closely guarded and are known and if anyone steps over them there will be an immediate row; jealousy will be aroused.
This is an entirely separate organisation; this is not part of the Whitehall set-up and where they have authority there is a great deal of authority delegated and very woolly language used without any specific statement as to what authoriy they need. I think it would enhance the Bill to make it fairly clear that it is only on the authority of the Departments that this can be carried out; it is only by the authority of the official statement from the Department itself, possibly with a department seal, that authority is gained. This does not in any way detract from the Bill; it makes it just a little clearer.
What I wish to ask is this: is it necessary in each case for the Scottish Executive to look up and examine the authority—generally by Orders in Council—which any Minister has for making an order of any kind in this Bill before they accept it? I think that is unnecessary but if it is necessary the Bill should say so. It would be easier for the Scottish Assembly to see where they have their duties and where they do not. The Bill as it stands is much too vague on this point. I beg to move.
Lord SHINWELL: It appears to me that there is something to be said for this proposition because the preceding clause contains a number of definitions—what this means and what that means; but when it comes to "Minister of the Crown" there is no definition but an inclusion. I cannot understand the reason for this. Is it a matter of drafting? If it is, it should be corrected. It seems to me that the proposition to define what is meant by a "Minister of the Crown" is quite appropriate. After all, if no other reference is made to definitions I could understand it. To make a special case of the Treasury, that the Treasury should be included among "Ministers of the Crown" I can understand; but there are so many definitions in the preceding clause that it seems to me to be quite appropriate to define what is meant by a "Minister of the Crown", and that is what the noble Earl is proposing. I support him in that.
3.14 p.m.
Baroness STEDMAN: On the earlier occasion we were indeed given to understand that the noble Earl, Lord Selkirk, would attempt to improve the Bill by pressing for a definition of the kind that he has put before us this afternoon. During the last 13 days we have been criticised for what we have put in the Bill, we have been criticised for what we have left out of the Bill and, on balance, the indications seem to be that we have got it about right. The present point is a limited one: when should one, as a matter of drafting, offer a definition? There seem to be two main cases: first, when nobody will be sure what the expression means unless it is defined, or where an expression is to be given an artificial or an extended meaning within the Bill.
If the Bill is silent, what meaning could be attached to the expression "Minister of the Crown", which is what the noble Earl is asking us this afternoon? Wade and Phillips' Constitutional and Administrative Law—and perhaps it would be appropriate here to pay tribute to the work of the late Professor Wade, whose death occurred earlier this month; he was one of the most eminent constitutional lawyers of our time, and in the ninth edition of the Constitutional and Administrative Law he refers to one particular
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statutory definition and then goes on to say:
"In a less technical sense Ministers are those Members or supporters of the Party in power who hold political office in the Government. They are all appointed by the Crown on the advice of the Prime Minister and their offices are at the disposal of an incoming Prime Minister. They do not include members of the Civil Service",
or certain others that I need not specify.
I do not think there is any difficulty about attaching a meaning to the words "Minister of the Crown"; but of course we have to look at the context in which the words are used. The Bill uses them principally in Clause 20, which deals with powers that are exercisable on behalf of Her Majesty by a Minister of the Crown, and refers later to any executive power conferred on a Minister of the Crown by any enactment. That, I would suggest, indicates with complete clarity that the clause is directed to powers, and principally to statutory powers, vested in a Minister of the Crown. That automatically limits the range of Ministers to whom the clause will refer. The statutory powers vest in the main in the Secretary of State and in a very limited number of other Ministers. So really we can see no reason why the expression "Minister of the Crown" should not run as widely as its ordinary interpretation would let it.
If we may now look more closely at the Amendment that is before us, we see that it relies on the concept of the Minister in charge of a public department. So far as Clause 20 is concerned, we think that probably all ministerial functions affected are in fact vested in Ministers in charge of public departments. But there are other places in the Bill where "Minister of the Crown" could require a wider definition. So the definition offered does not meet the needs of the Bill.
As the noble Earl has said, his definition comes from the Ministerial and Other Salaries Act 1975, which contains a schedule of ministerial salaries. It lists the salaries payable to the holders of the various offices, and one salary level is linked to membership of the Cabinet. Then in paragraph 2 of Part II we have the entry which says:
"Minister in charge of a public department of Her Majesty's Government in the United Kingdom who is not a member of the Cabinet, and who is not eligible for a salary under any other provision of this Act".

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There, the definition fits the context. It relates the Minister's salary to his responsibilities.
Also with that Act in the Statute Book is the Ministers of the Crown Act 1975. This deals with the redistribution of functions between Ministers of the Crown and related matters. It is so essentially about Ministers that a definition is desirable. Here, "Minister of the Crown" means:
"the holder of an office in Her Majesty's Government in the United Kingdom, and includes the Treasury, the Board of Trade and the Defence Council".
Now what about the Treasury? The noble Earl, Lord Selkirk, referred to the Treasury on the previous occasion and gave me the task of holding up the 26 members of the Treasury above me! Let us understand the position of the Treasury. Section 2(2) of the Interpretation Act 1889 provides that "The Treasury" means the Lord High Treasurer for the time being or the Commissioners for the time being of Her Majesty's Treasury. The Lords Commissioners in their collective capacity are not Ministers—although Ministers are among the commissioners and so can sign Treasury instruments. They sign those as commissioners pursuant to the Treasury Instruments Signature Act of 1849 and not as Ministers.
This perhaps paradoxical constitutional situation means that a reference to a Minister of the Crown does not include the Treasury and so the intention is to devolve Treasury powers, except as particular provisions in the Bill provide otherwise, and we need a definition which draws in the Treasury. I am sure it all sounds very complicated. There are certain other Departments which have powers not technically vested in any Minister and none of their powers are being devolved so we can ignore them for the present purpose.
On 19th April, the noble Earl raised this point with us. He raised it again on 3rd May and has now come back to his original theme—he is nothing if not persistent. The point, in essence, is that a Scottish Secretary might receive a communication which was ostensibly from a Minister of the Crown and not know who the Minister was or what was his
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authority and that therefore the term ought to be defined. The real-life answer is that people do not often find themselves receiving communications from strangers styling themselves as Ministers but whose identity and functions are a complete mystery. If a recipient for any reason should find himself in such a situation then I suggest that he would dispel his ignorance by using a reference book or making a telephone call.
The political answer is that the Ministers are appointed by the Prime Minister on behalf of the Crown and they will exercise the duties allocated accordingly. To the holders of some offices statutory duties will automatically attach. If a particular office-holder were to stray outside his allocated sphere it might or might not make any difference in law (bearing in mind the unity of the office of the Secretary of State) but it would certainly be a matter of concern to Ministers collectively because it would surely imply that there was a flaw in administration.
Legally, I am advised that most Ministers—and certainly those holding the major offices—are backed up by statutory provisions (usually on the lines of Schedule 1 to the Ministers of the Crown Act 1975) validating any document purporting to be issued by them unless it is proved to the contrary. What is more, in what is perhaps the only case where the wrong Department has acted, the court proceeded on the basis that it should protect the individual. It was held that the subject was entitled to rely on the Department having the authority it claimed to have. I refer to the case of Robertson v. Minister of Pensions.
The devolutionary answer is that Ministers will do Scottish Secretaries the credit of assuming that each is doing his own job and will hope to be accorded parallel treatment in return. Scottish Secretaries certainly should not expect suddenly to find themselves receiving communications from Ministers with whom they have had no previous dealings. We think there is nothing in all of this which weakens the argument for leaving the breadth of the term "Minister of the Crown" undisturbed in the Bill. I am sorry to have to give such a long and technical explanation, but, as I said, the noble Earl has already ventilated the issue several times and it seemed desirable

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to try to put our case as completely as possible.
We are regularly being pressed to make changes of an essentially drafting character, and on many occasions we have undertaken to look at them sympathetically and come back at a later stage. But, as all occupants of both Front Benches know, it is a very perilous enterprise when one starts to alter the drafting or the considered work of the draftsman. If we set out to alter the drafting in one place then we risk disturbing the meaning somewhere else. Here we are being asked to leave out words which we think are necessary and to introduce words which in our view are not necessary. Certainly the Act may, in dealing very specifically with Ministerial office-holders, need a definition tailor-made for its own purposes, but the great majority of Acts find this to be unnecessary and if we embark on defining terms which in our view do not need definition then we shall raise a host of doubts not only on this but on other Bills about this term and possibly other terms which are less susceptible of a plain meaning. I hope this will have satisfied the noble Earl and assuaged some of his doubts and that he will admit that the Amendment may be wrong in the letter and perhaps misconceived in spirit.
3.25 p.m.
Lord HARMAR-NICHOLLS: I do not know whether this satisfies my noble friend but it does not satisfy me. It was a very interesting historical résumé but what came out of it? On this wretched Bill and on this very narrow point, the noble Baroness had to say that there were three answers. She said that there was a political answer—and she gave the political answer—and then she said that there was something a little bit different, in that there was a legal answer. Then, having done that and confused us with those two different answers to the same little point, she said that there was in addition a devolved answer. If we have a Bill where on a point as narrow as this there are three kinds of answer under the three headings of politics, legality and what devolution brings that ought to make us very concerned about the Bill as a whole.
On this narrow point, the noble Baroness said that by leaving out the words "includes the Treasury" we should create
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some sort of doubt. The basis of that argument, from what I have just heard from the noble Baroness, was that in one of the other Bills the words "Minister of the Crown" were deemed not to include the Treasury. On the basis of that one case we have got to have the words "includes the Treasury". But the words which my noble friend wants to put in—
"means a Minister in charge of a public department of Her Majesty's Government of the United Kingdom"—
must include the Treasury, so there is no question of doubt. Removing the Treasury, as now presented, cannot mean that we are creating any sort of doubt on the basis of the argument that she puts forth.
The whole of Clause 77 on page 36 is devoted to defining what the Bill is supposed to mean. What my noble friend has pointed out and the historical and very interesting answer which the noble Baroness has given have shown that there is further doubt. She is suggesting that you have to look at innumerable Bills to see which definition applies before you can be certain where you stand. If they do nothing else, the words which my noble friend wants to put in at any rate minimise the possible doubt that may arise and obviate people having to go to that sort of trouble. If I followed her argument correctly, the only reason which the noble Baroness seemed to put forward for not wanting to remove the words "includes the Treasury" was that in a previous case the phrase "Minister of the Crown" was deemed not to include it.
I do not know whether my noble friend will be satisfied with the explanation. All that the noble Baroness did in giving us the very interesting historical reference was to confirm once again that this Bill is truly a monstrosity. Even when we get down to something as detailed as this there is a legal answer, a political answer and a devolved answer, which means that, at the end of the day, there is no answer.
Lord LEATHERLAND: May I assure my noble friend on the Front Bench that I understood very clearly every word that she said. Now I think it is time for a little brevity, and I shall put my point in one question. Does the term "Minister of the Crown" as specified in the text of the Bill include a Parliamentary Secretary

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or a Parliamentary Under-Secretary or is it merely the head Minister of the Department?
Lord CAMPBELL of CROY: Before my noble friend ends this brief debate I should like to ask the noble Baroness whether my noble friend's Amendment would cover the Chancellor of the Exchequer. I had assumed that the Treasury would be covered because he is Head of a Department, but perhaps for technical reasons that is not so. I was very interested in her historical account of how the Treasury has come to consist of Lords Commissioners, because for a period in another place I was the Lord Commissioner of the Treasury. There may be other members in your Lordships' Committee who had the same experience. Of course it did include signing certain documents on behalf of the Treasury. I should have thought that if the Amendment which my noble friend proposes included the Chancellor of the Exchequer then it would be much easier to understand for those coming to this Bill when it is enacted. What the noble Baroness said—and she certainly gave us a full account of the history of this—does, I think, indicate that perhaps some simplification is required of the "Minister of the Crown" definition.
Baroness STEDMAN: The title "Minister of the Crown" applies to everyone who holds a Government appointment, down to the most junior Whip like myself, who is technically a Minister of the Crown. What the noble Earl's Amendment would do is to remove the Treasury.
The Earl of SELKIRK: With great respect, I am going to differ from the noble Baroness. May I ask her to look at the Ministers of the Crown Act 1975, Section 8(1); that specifically includes the Treasury. I am afraid I have not got it with me.
Baroness STEDMAN: My advice is that the noble Earl's Amendment would remove the Treasury because that is not "a Minister"; that is not the office holder, the Minister; the Treasury is a Department. There are masses of Bills which come before this House and another place over the years which leave the
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term "Minister" quite happily undefined, and yet we are being rather more difficult about this one.
Lord SKELMERSDALE: Is the noble Baroness really saying that there is no Minister directly responsible for the administration and overseeing of the Treasury?
Baroness STEDMAN: The Prime Minister himself, of course, is the first Lord of the Treasury, and so presumably we have a very competent Minister in charge of the Treasury. We have a Chancellor of the Exchequer as well. But "Treasury" as a Government term is not a Minister.
The Earl of PERTH: I have tried to understand the noble Baroness's explanation, which has been very full. When we hear what the noble Earl has said in relation to an Act in which the Treasury is included, I wonder whether it would not be a good idea for all of us to go back and have another look. I am sure it is desirable that it should be clear and defined. Perhaps the right course would be for all of us to read the noble Baroness's explanation and look again at what the noble Earl has said, and then take the matter up, if appropriate, at Report stage, knowing that a definition is apparently needed and it should be clear.
Earl FERRERS: Can the noble Baroness say whether the Chancellor of the Exchequer is a Minister of the Crown?
Baroness STEDMAN: Yes. All those who hold office as Ministers, as Ministers of State, as Parliamentary Under-Secretaries or even as junior Whips are all Ministers of the Crown as such. I am happy to take up the suggestion of the noble Earl, Lord Perth. We seem to have got ourselves into some difference of opinion on rather defined lines. I shall be happy to have another look at it and write to the noble Earl, and if he is not satisfied he can come back to the matter at Report stage.
Lord CLITHEROE: Is the noble Baroness really telling us that the expression here "includes" the Treasury, means Treasury Ministers; that is to

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say, the Prime Minister who is the First Lord, the Chancellor of the Exchequer, the Financial Secretary to the Treasury, the Minister of State and so on? Is the noble Baroness saying she wants all those put in? Supposing the words put in instead of the Treasury were the Lord High Treasurer or the Lords Commissioners of the Treasury, would that be sufficient, or does she also want to put in the Chancellor of the Exchequer and the First Lord of the Treasury? I cannot see that the words "includes the Treasury" are satisfactory.
Baroness STEDMAN: No, I do not think the noble Lord's suggestion would help us in any way. I think perhaps it might be better if we take it back and have another look at it, as the noble Earl, Lord Perth, suggested. I am not promising that we shall come back with any altered opinion, but we will certainly have another look at it.
The Earl of SELKIRK: I thought this was difficult, but I had no idea how difficult it was until I heard the noble Baroness's speech. I must admit I thought it was what I regard as a perfect draftsman's answer. It really is not comprehensible to the ordinary person. I think the Government will agree I have tried to simplify this Bill, to give the Assembly in Scotland a chance to understand what on earth we are asking them to do. The noble Baroness's answer is really incomprehensible. She tells us we have to look at books on constitutional law, reference books, look up all kinds of things; and eventually we go to the court in order to decide whether it is the right Minister. It goes on to assume something which one likes to think—that Ministers of the Crown can do no wrong. It is unlikely, but it is perfectly possible for them to do wrong. But, in any event, it must be clear to the Assembly who has the authority, and the noble Baroness has made no attempt to answer that. You cannot expect Ministers to look up reference books to find out the situation.
The noble Lord asked who is a Minister of the Crown. All Ministers are Ministers of the Crown. There are 108 of them existing at the present time, as I find in the book. Some further degree of definition is required. The noble Baroness
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referred to Clause 20. We know Clause 20 is wrong for reasons which were made quite clear, and that will have to be amended quite considerably at Report stage. I am quite happy to take this back. The noble Baroness says she is obstinately reluctant to play any part in this and does not think that any alteration can be made. I must ask the Government to try very hard to make it a little simpler for the Assembly to understand what this is all about.
I think they are entitled to a more precise definition of "Ministers of the Crown", who are constantly going to give them authority and variations of one kind and another under provisions throughout this Bill. It is not only Clause 20; it happens all through the Bill. If the noble Baroness will look at this and try to give an answer which all of us can understand, I shall be very happy. Will she undertake to try to do that?
Baroness STEDMAN: I hope I did not sound reluctant. I implied that we have given a lot of thought to this question, and I could not guarantee that we will come up with any different answer or any better interpretation of it. But we will certainly take it back and have a look at it, and I will communicate with the noble Earl and see whether between us we can sort out something that is more acceptable.
The Earl of SELKIRK: I am always very willing to accept proposals the noble Baroness makes. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
3.37 p.m.
On Question, Whether Clause 77 shall stand part of the Bill?
Lord DRUMALBYN: May I ask a question on this definition clause? It relates to page 36, line 34, which says
"'reserved functions' means functions relating to matters listed in Schedule 15 to this Act".
We have had reserved matters in Clause 36; we have had devolved matters. Now we have reserved functions. Are the matters to which the functions relate reserved matters or are they not? This is important, as we shall see when we come to Schedule 15 to which it relates—which

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will be very soon—and on which I should like to ask one or two questions. Can the noble and learned Lord answer that comparatively simple question?
Lord McCLUSKEY: The trouble with all comparatively simple questions is that they are not as simple as they may appear to be. We are already in the position, as no doubt the noble Lord has understood from previous debates, that we are looking again at Schedule 15. In fact it was only last night that I repeated what I had said on an earlier occasion. "Reserved functions" in this context relate to the fact that some functions exercised by local authorities relate to non-devolved matters and therefore will not be within the legislative competence of the Scottish Assembly and not within the executive competence of the Executive. Schedule 15 relates to them. But the difficulty which the noble Lord, Lord Campbell of Croy, brought to our attention on an Amendment some days ago, and on another Amendment last night, is one which affects this matter of reserved functions as well. I am as anxious as anyone to avoid the confusion which might arise from the use of a term like "reserved functions", which might be misleading. May I say this before I tempt the noble Lord, Lord Harmar-Nicholls, to his feet. We are looking at this at the same time as we are looking at Schedule 15.
Lord CAMPBELL of CROY: I have raised the question of Schedule 15 on earlier Amendments to the Bill. I put down an Amendment earlier in the Bill which said, "subject to Schedule 15", because it looked as though the Schedule might have applied to that part of the Bill, and I was then told that it did not. Of course, the Amendment served the purpose of giving the Government notice that we wanted to know why Schedule 15 was in the Bill and it also raised the point that my noble friend Lord Drumalbyn has raised, about ambiguity concerning the term "reserved functions". If that is a special term to be used in the Bill relating only to local authorities and certain public bodies in Schedule 15, it could be misunderstood when it is considered in terms of the opposite of devolved functions.
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Therefore, as the Committee was some-what thin last night at the moment when my second Amendment was raised, I can tell my noble friend Lord Drumalbyn and other noble Lords that the noble and learned Lord said that the Government had found the matter so complex that even though it was some days since I had raised it on the first Amendment they were still looking at the whole question of whether Schedule 15 was needed in the Bill; what rôle it played and where it fitted in. I then said that provided they were doing that and continuing their study, I was quite prepared to wait until a later stage of the Bill before receiving a full explanation as to why Schedule 15 was included and how it fitted in. I say that in order to save the time of the Committee having raised this point on two earlier occasions.
Lord HARMAR-NICHOLLS: The only point that I want to make is that in terms of strict purity ought we to pass Clause 77 until we have seen what alterations will be made to Schedule 15? I suppose that we could do so at the Report stage, as my noble friend has just intimated, but I should have thought that it was a little unusual for it to be admitted that an important Schedule, which is referred to specifically in line 34, is to be either altered or removed completely and yet still to ask the Committee to pass the clause which says that
"'reserved functions' means functions relating to matters listed in Schedule 15 …"
which may not be as it is now or may not be included at all. In terms of strict purity, it ought to be on record that we hope that in future any change of mind will be made and recorded before the Government ask for approval for it to be put into operation.
Lord McCLUSKEY: The noble Lord, Lord Harmar-Nicholls, has not only asked a question, but answered it. Therefore, I need not say anything more.
Lord DRUMALBYN: I am grateful to the noble and learned Lord.
Clause 77 agreed to.
Schedule 15 [Reserved functions of local authorities and other bodies]:
On Question, Whether Schedule 15 shall be the fifteenth Schedule to the Bill.
Lord DRUMALBYN: I should like to raise a question on this matter because it relates to what will obviously be a reserved function, by whatever name it will be called. First, I should like to comment on the police. I remind your Lordships that the 1974 White Paper (Cmnd. 5732), placed police among the devolved matters. I wondered whether the noble and learned Lord could explain the considerations which led the Government to place the police among the reserved subjects. Of course, I am aware of what is said in Our Changing Democracy, paragraph 148. That states:
"The enforcement of the criminal law through the police and the prosecution system—which in Scotland is not in any way under the control of the police—is part of the responsibility of the Government for the maintenance of law and order and the security of the state, and will extend to offences within both devolved and other fields. It would not be right that responsibility for law enforcement should rest with members of an administration not directly answerable to Parliament".
I am bound to say that one must recognise that that being so, the Assembly will be very greatly diminished in the public eye. It may be inevitable that there is no other solution to the matter than to place the police firmly under the control of one or the other. However, to set up a Scottish Assembly which has no power whatsoever over the police cannot fail to diminish the Assembly in the eyes of the Scottish public.
The second matter is more difficult and concerns
"consumer protection (including weights and measures)".
I am referring to the last line but one on the page. Given that there is a Secretary of State for Prices and Consumer Protection, it is sensible that this should be a reserved matter. Consumer protection covers a wide and growing list of functions which are discharged at local level by what used to be known as the Weights and Measures Inspectorate. The functions are discharged at regional level. Would it be within the competence of the Scottish Assembly, under its responsibility for local government matters, to change this situation by entrusting consumer protection to districts instead of regions? Alternatively, if there were a local government re-organisation we might have an entirely different single tier. However, in those circumstances would it be competent; can this local government re-
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organisation be done by the Assembly? Of course, that will affect the administration of consumer protection.
The consumer is protected not only by the criminal law but by the civil law—for example, Part III of the Fair Trading Act. The White Paper Our Changing Democracy (Cmnd. 6348) on page 68 under the heading "Scottish Law Functions" states:
"The main devolved matters will be:—
i. as much of private law as proves, on further study, to be compatible with consistency in matters of wider United Kingdom interest, including the maintenance of a common framework for trade".
Are the results of that "further study" wholly incorporated in the Bill, or is there to be a further "further study"? Both the Trade Descriptions Act 1968 and the Fair Trading Act 1973 are listed as not included in the powers of the Assembly and the Scottish Executive in Part II of Schedule 10. However, there are aspects of services which are included in Part I—for example, housing services are already covered by the Trade Descriptions Act and are likely to be covered further by any future amendment of the Trade Descriptions Act.
Orders can be made by a restrictive practices court or the sheriff court appealable to the Court of Session in civil actions brought by the Director General of Fair Trading under the Fair Trading Act. That shows the type of confusion that there may be over jurisdiction as between criminal and civil actions. Therefore, I wonder whether there could not be a definition of consumer protection, showing where it begins and ends. It is all very well to call it a "matter", but it is such a variegated matter that it is difficult to know where it begins and ends. It can mean anything from matters covered by the criminal law to aspects of civil redress or a wide ranging combination of both. It can cover commercial practices, commercial standards, safety, licensing as well as civil redress and consumer assistance. Some of those matters, but not all, are already specified in Schedule 15. How are they all to be clarified and specified? The noble and learned Lord will be well aware that there are bodies and institutions which will be anxious to have the answer to that question. Finally on this point, what

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are the "other bodies" referred to in the title of the Schedule which is:
"Reserved functions of local authorities and other bodies".
This may be a matter with which the noble and learned Lord, Lord McCluskey, has already dealt, but perhaps he could refresh my memory if he has done so.
In conclusion, may I point out that some of the matters in the Schedule could, I imagine, be the subject of private legislation and local by-laws. I do not think that this point has yet been raised at all. However, what happens to private legislation which covers both devolved and reserved matters? Perhaps that is not possible at all. Would it be necessary for the local authority to divide those matters into two separate Bills?—and so have one Bill for the devolved matters and one Bill for the reserved matters in a case where otherwise they would have put all these matters into one private Bill?
Lord SHINWELL: I have no knowledge about many of the items listed in Schedule 15, though many years ago I was a member of a local authority in Scotland. However, there is one item of which I have some knowledge and it is, "Ports (other than marine works)". I cannot understand the distinction between ports, which are reserved and to be administered by a local authority or some other body, and marine works. I should have thought that marine works, whatever they may be in the Government's mind, could not be distinguished from the administration of a port. Perhaps my noble and learned friend would explain the matter to me, because I fail to understand it.
Baroness ELLIOT of HARWOOD: I should like to say a few words about consumer protection. I am in close touch with the Scottish Committee for Consumer Protection, which is very concerned with what its position will be when this Bill becomes an Act of Parliament. The noble Lord, Lord Drumalbyn, is perfectly right in what he said about the very wide range of subjects covered by consumer protection As I understand it, the Scottish Consumer Protection Committee is part of the United Kingdom Committee and is anxious so to remain. It is also anxious that there should be good liaison by the United Kingdom Consumer Protection Committee regarding
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what will happen under the devolved matters. I very much hope that when the noble and learned Lord replies and considers this, he will give some indication as to how wide the reserved function of local authorities will be in many of these matters—"Consumer protection (including weights and measures"), being the one in which I am particularly interested.
3.54 p.m.
Lord McCLUSKEY: I have been asked a number of questions in relation to Schedule 15 and I apprehend that certainly some of the questions would more properly arise in relation to agreement to Schedule 10. However, I shall endeavour to deal with them as best I can. First, may I remind the Committee of something that I said on a previous occasion; indeed, I think it is quite clear. The definition of "reserved functions" is principally put into Clause 77 in relation to this Schedule and in relation to Clause 63 of the Bill. The purpose that it serves—this is the principal purpose and it is because it serves this purpose and not many others that I now think that the word "reserved" is not adequate and might be misleading—in Clause 63 is to require a Scottish Secretary to have regard to certain considerations affecting these functions, being considerations which:
"the Secretary of State may bring to his notice after consulting with such associations of local authorities as appear to him to be concerned".
In other words, for the purposes of rate support grant he must direct his mind to certain functions because local authorities have—as, indeed, certain other bodies have—functions in relation to matters of a kind which are specified in Schedule 15 which are not devolved matters. The purpose of defining "reserved functions" in Clause 77 and the purpose of Schedule 15 is to relate to Clause 63(2). That is the context.
The purpose of putting the word "Police" into Schedule 15 is not therefore to say that "Police" is a reserved function. The police are reserved by silence; in other words, by their absence from any of the groups contained in Part I of Schedule 10. There was, of course, a considerable debate within the Government as to whether or not control of the police should be devolved. I think that we analysed that in relation to the police there

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were two Ministers in Scotland who had authority. First there was the Secretary of State, whose authority I do not want to describe in terms that might seem to denigrate that authority, but his is a pay and rations authority. I do not know whether the noble Lord, Lord Campbell of Croy, would agree that that is a general description. The Secretary of State is also responsible, of course, for disciplinary matters, but basically discipline, pay and rations was the general shorthand used.
The other Minister is the Lord Advocate. He has no responsibility for hiring and firing policemen, for discipline, or for anything of the kind, but he can give directions to the police in relation to the detection of crime. Those are the two Ministers who are responsible. As a result of the debates that went on inside the Government, it was concluded that control over the administration of crime detection was a matter that should properly be attached to the State itself, and was not properly a matter to be devolved. In those circumstances, control over the police—whether exercised by direction of the Lord Advocate or by the Secretary of State—should remain where it is at the present time and not be devolved. That was the end result of the discussions that took place, and I do not think that I could elaborate upon them. Of course, contrary views were urged, but that view prevailed and that is the view that is now shown in the Bill.
I believe that I was asked whether local authority reorganisation could competently alter the level of authority responsible for certain consumer protection matters. If the Assembly chose to reorganise local government it could competently alter the level of authority that was responsible for any non-devolved matter. If the arrangements proposed—and only if the arrangements proposed—seemed likely to prejudice the administration of the matter, the Government could use their intervention powers under the clauses which we have already been through.

In relation to consumer protection generally, the noble Lord, Lord Drumalbyn, asked whether it was possible to give a definition of "consumer protection". The short answer to that is: No, it is not possible. The reason, of course, is that gradually as consumer
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protection and consumerism wins ground, it extends into more and more fields; it may affect motor vehicles, and, as the noble Lord said, it may affect goods and services. It may affect the criminal law; for example, the law of fraud. It may affect the Trade Descriptions Act, and so on. Therefore, in our view it is not possible to give a definition of "consumer protection".
In Schedule 10, Parts I, II and III, we have endeavoured to make clear what derogations there are from the devolution of legislative competence over the ordinary criminal and civil law which are intended to save those parts of consumer protection which it is thought desirable to save because of the unity of the United Kingdom as a commercial and trading area. No doubt, the noble Lord, Lord Drumalbyn, and the noble Baroness, Lady Elliot, in going through Schedule 10 and its various parts, have seen what is the division that is attempted. In essence, what is done in Schedule 10, Part I, Groups 25 and 26, is that the law in general is devolved, and then in various other parts of Schedule 10 there are derogations from that which might relate to consumer protection. Again, I give the example of paragraph 1 of Part II of Schedule 10, "Control of drugs, medicinal products, biological substances and food". That obviously relates to consumer protection. There are other matters of a similar kind.
Of course there are various matters referred to in Schedule 10, Part II paragraph 20. The noble Lord will see on line 31 that one of the items which is not devolved is safety standards for goods. To take an example which I think he mentioned in passing, in Part III, line 35, page 59, the Trade Descriptions Act 1968 is not included. I think that it is perfectly possible, although not easy, to go through Schedule 10 in its various parts and find where the lines have been drawn.
The noble Lord asked me a more general question about whether the study that was presaged in the November 1975 White Paper had been concluded. The answer is that it has been concluded, and the results of the study are enshrined in Schedule 10. We believe that that Schedule will stand up to examination, and the legislative competence of the Assembly will be reasonably clear to those who have

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to advise it and to the Assembly Members themselves.
I was asked about private legislation. Indeed, we had debates on previous occasions about private legislation. I think I am right in saying there were two occasions when we discussed private legislation in relation to an Amendment moved by the noble Earl, Lord Selkirk. The position is that in relation to devolved matters the Assembly can, if it wishes, create its own system of private legislation, which it may model upon the Westminster system if it wishes. The Assembly can, if it wants—and we said this before—distinguish between public and private matters within devolved matters for the purposes of a private legislation system.
The system of private legislation that exists at the present time, which is contained in the 1936 Act and which is referred to in this Bill, is not to be devolved. It remains as it is at the present time, except that the panel of commissioners may include someone from the Assembly. We have discussed that on more than one occasion. If, in fact, a Bill relates to matters which are devolved and matters which are not devolved, then I fear there is no alternative, under the Bill as it stands at the present time, but to use the 1936 procedure and to come to the Westminster Parliament just as if devolution had not taken place.
I was also asked about other bodies. If one looks elsewhere in the Bill—and it is difficult for me on the spur of the moment to put my finger on the provisions—there are various places in which the term "reserved functions" has relevance, and I referred to one of them on a previous occasion. There are other bodies which are, for example, joint boards of local authorities, and other bodies representing several local authorities, which might have, and exercise, some of the functions listed in Schedule 15 as it stands.
My noble friend Lord Shinwell expressed a doubt about the meaning of marine works. I think that if he looks at Group 12 of Schedule 10, which is to be found on page 48, he will find there that one of the matters which is devolved is Group 12, marine works. There is a general description there of subjects which include devolved matters. If he
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goes to page 82 he will find near the foot of the page, line 33, Schedule 16—which we have not yet reached—that there is a new definition of marine work in the Harbours Act 1964. That relates to the question he asked. I think it is possible within the confines of this Bill to find the meaning of marine works and to distinguish it from ports. I hope that I have covered all the points. If not, noble Lords will no doubt tell me and, if I cannot deal with them now, I will endeavour to write.
4.6 p.m.
Lord CAMPBELL of CROY: The noble and learned Lord has at short notice answered a number of points relating to the Schedule, and I congratulate him on the way he has dealt with some of these matters in considerable detail. We are again grateful to him. I think that we are still due to receive a further reply after the full examination of the whole rôle of Schedule 15 to the Bill, because last night he said that this was continuing. Therefore, we shall expect that later. It will probably have to be at Report stage now.
The noble and learned Lord asked whether I would agree with the Secretary of State for Scotland's position vis-à-vis the police as one of discipline, pay and rations. I would only agree to that as the very shortest of shorthand, because I must rise to say that while the Lord Advocate of course has a special rôle in Scotland vis-à-vis the police and crime, certainly the Secretary of State in his rôle as Home Secretary for Scotland—of course he does not deal with immigration and matters affecting foreigners—is very much involved in the prevention of crime and in law and order. Therefore, I would not accept entirely the noble and learned Lord's description except as the very briefest of shorthand.
One of the things which has become clear from the discussion of the term "reserved functions" is that we need another word. I think that the noble and learned Lord hinted at this. Even if it were simply "restricted functions" when used in relation to Schedule 15, as an example, I think we must have a different word, if possible, for special use vis-à-vis Schedule 15 so as to avoid ambiguity in other parts of the Bill, when

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people will simply think that the words "reserved functions" are being used in contrast to "devolved functions". I think that this is part of the further consideration that I hope is going on, and that during Report stage we shall get a full reply from the Government which will indicate the rôle which Schedule 15 is to play, and the way in which the Government intend to do some redrafting to avoid all ambiguity.
Lord DRUMALBYN: May I mention one thing to which the noble and learned Lord did not refer. I am not at all surprised at that, and I should like to join my noble friend Lord Campbell in congratulating him on a most admirable performance. He has made this a very useful discussion. The noble and learned Lord did not deal with restrictive practices; the fair trading point. This arises very largely because the trading standards authorities are the fons et origo for a lot of the information on which the Director General of Fair Trading acts, and then of course it may end in a civil action. The only other suggestion I was going to make was that if we are going to have Schedule 15 in some form or another, and it is going to have much the same kind of heading, would it not be a good idea to set out the other bodies referred to in the Title?
Lord McCLUSKEY: That would cover existing other bodies; but it is conceivable that, post-devolution, other bodies might be set up and have these functions, and then that would be a restrictive definition and might lead to inflexibility. I will write to the noble Lord in regard to fair trading. I accept entirely what the noble Lord, Lord Campbell of Croy, said about the rôle of the Secretary of State in relation to the police. The broad distinction I was trying to draw was that the Secretary of State does not give directions to the police in relation to the investigation of particular crimes. I accept what he said about other matters, but perhaps I might give the noble Lord one other example of reserved functions—on page 64 at line 35—but there are a number of other examples in that Schedule. I merely mention that as being another instance of it being used.
On Question, Schedule 15 agreed to.
Clause 78 [Construction and amendment of existing enactments, etc.]:
4.11 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 214:
Page 37, line 35, leave out subsection (5) and insert—
(" (5) No order shall be made under subsection (3) of this section unless a draft of it has been laid before and approved by resolution of each House of Parliament.").
The noble Lord said: I move this Amendment on behalf of my noble friends Lord Colville and Lord Mansfield. Its purpose is to make a change to the Affirmative Resolution Procedure when a Minister of the Crown is making Amendments to Acts by order. Under the Bill as drafted, the Negative Resolution Procedure appears in this clause. The point about the Affirmative Resolution Procedure is that the Minister who is making an Amendment must obtain the assent of Parliament, and this has special relevance in the context of this clause, which enables Ministers to amend enactments of the past if that is necessary as a consequence of this Bill, when enacted.
If the Negative Resolution procedure remains in the Bill, it is then left to Parliamentarians to discover that some Amendment is being made and to discover that it is important enough to be discussed and perhaps objected to in the Westminster Parliament. In another place it would mean a private Member having to take the initiative in tabling a Prayer to annul that order. We think that the making of Amendments as proposed in subsection (3) of this clause is a function which might include important or controversial matters. Certainly, during the next two or three years, subjects which may not have been foreseen may come up and they may require Amendments to previous enactments resulting from the establishment of the Assembly.
We think the Affirmative Resolution Procedure would be appropriate; and there is a precedent—there may be several but one immediately comes to my mind—in Section 252 of the Local Government Act 1972. That section also deals with the making of Amendments of a similar kind, and it provides for the Affirmative Resolution Procedure to cover the orders to be laid with those Amendments. I hope the Government will follow that precedent. I acknowledge that they have

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accepted occasions during the passage of the Bill when we have proposed that the Affirmative Resolution Procedure is more suitable than the negative, and I hope they will think so again on this occasion.
I beg to move.
Lord KIRKHILL: The noble Lord, Lord Campbell of Croy, as always, put eloquently the case for the Amendment. I wish to emphasise, however, that Clause 78(3) enables Ministers of the Crown to amend existing enactments so as to tidy up behind this measure, and such Amendments must be:
"… necessary or expedient in consequence of this Act".
As a consequence, the order-making power is very restrictive. It could not in particular be used to enable a Minister to devolve any further function which is not already devolved by the Bill. This is a restricted power within the Bill and it does not seem likely to the Government that orders made under this power will at any time raise an issue of principle. The Amendments will be concerned exclusively with matters of detail and tidying up points in existing legislation where other provisions in the Bill do not produce a completely clear and satisfactory result.
While the noble Lord, Lord Campbell, asked whether I might follow his carefully ennunciated precedent, I must tell him that the Government are following a number of other precedents, and I would direct his attention to Section 61 of the National Health Service (Scotland) Act 1972; Section 254 of the Local Government Act 1972; Section 54(2) of the National Health Services (Reorganisation) Act 1973; and Section 215 of the Local Government (Scotland) Act 1973. I readily admit that those precedents do not follow quite the same form as Clause 78(3); the precedents I have mentioned empower:
"… provision necessary or proper for the purposes of the Act or in consequence of its provisions or for giving full effect to the Act".
In reality, therefore, the formula went rather further than the formula in subsection (3), by actually allowing Ministers to make provisions for giving full effect to the Act, so that if the Act had gone wrong anywhere an order could put it right, and such orders were to be subject only to the Negative Resolution procedure.
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We have not gone so far on this occasion, and I make no Party political point in saying that, although of course I am doing that by pointing out that it was during a Conservative Administration that that particular part of reorganisation took place.
Lord CAMPBELL of CROY: I am grateful to the noble Lord, Lord Kirkhill, for his explanation, but I must point out that what a Minister may consider necessary or expedient is not always what Parliament thinks is necessary or expedient. That is the real point; namely, that a Minister may think that what he is doing is a bit of tidying up consequential on the passing of the measure, but Parliament might have different views. Certain MPs, perhaps those whose constituencies were affected, might have very strong views. For that reason I am sure that in the precedent I gave the Affirmative Resolution procedure was included.
The noble Lord was good enough to indicate that the precedents he cited were not precisely similar. I do not think we need continue to compare them, but I must reserve the position for my noble friends, both of whom are experts in this field, with legal qualications which I do not have. They will read what the noble Lord has said and will examine his argument. I must therefore reserve the position for the possibility of one of my noble friends returning to this matter at a later stage of the Bill. The noble Lord indicated the Government's intention, which is that this should be a tidying up matter, dealing with details, but what we are concerned about is that in fact it could be used for making Amendments with considerable significance beyond what the Minister now contemplates.
The Earl of PERTH: Before the noble Lord intervenes, I should like to ask whether there is a legal definition of the word "expedient". I find the word "expedient" very different from the word "necessary". I should think that a matter of judgment is involved here which is not very easy, and which could be almost political. If this point is looked at again, I hope that the word "expedient" will be considered at the same time.
Lord SHINWELL: Surely, the only distinction between what the noble Lord,

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Lord Campbell of Croy, is asking on behalf of his noble friend, and what the Government propose here, is merely a matter of procedure. The Government propose that if a Minister seeks to effect an amendment it is subject to a Statutory Instrument, or an Order in Council, which can be annulled by a Resolution in either House of Parliament. All that a Member has to do is to object to what is done. There must be an Affirmative Resolution which annuls what is proposed by the Minister. I cannot see any distinction between the two propositions, except that that proposed by the noble Lord, Lord Campbell of Croy, is a positive one, in that a draft has to be presented, whereas the Government's proposition involves the ordinary normal procedure, which has been adopted in another place ever since I can remember.
Lord CAMPBELL of CROY: I should like to deal with what the noble Lord, Lord Shinwell, has said, if it is convenient to the Committee. Of course, he has great experience of this matter, and I am sure that during the many years that he was in another place he was vigilant both in seeing what Ministers were doing and in tabling a Prayer against an order, which is the Negative Resolution Procedure, with all that that entails. However, I suggest that Parliament now covers so many more subjects, and has so much more to do, that it is considerably more difficult for the Private Member of another place to be able to keep abreast of all the orders that are going through, unless the Government have to table a Resolution under the Affirmative Resolution Procedure, so that everybody can see what is at stake.
That is the difference here, but I agree with the noble Lord, Lord Shinwell, that we are considering only the difference in procedure, and I should not wish to spend a lot of time on this. Nevertheless, it makes a difference to parliamentarians whether one procedure or another is used, because there is no doubt that orders have slipped through without parliamentarians in either House knowing that the Government were doing something until it had happened, because the time for "praying" (as it is called) had expired.
Lord SHINWELL: Is it not a matter of vigilance on the part of Members in another place? If they were to follow
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what is going on in the House, instead of spending so much time in the television room, the tea room, or perhaps the bar—I do not want to make heavy weather of that—they would know what was happening in the House. I have done this often myself when in Opposition. Of course if one is in Government that is another matter; one has to watch one's step. If I saw anything here which was worth fighting for I would say so, but it is a case of either one method of proceeding or another, and on the whole I would not bother about it.
Lord BALFOUR of INCHRYE: I should like to say a few words about this. I believe that this Amendment is most vital because it concerns the basis of the Executive against the Legislature. I am surprised that a Parliamentarian with such long experience as the noble Lord, Lord Shinwell, seems to see so little difference between the Negative and the Affirmative procedure. Those who have served in another place know full well that the Negative procedure is almost a farce as regards objection. Whatever Government may be in power, the Whips never seem to find time for a Prayer to be taken, and when Parliament is not sitting the number of statutory days which have to lapse before the Negative procedure order comes into force may well mean that Parliament never has an opportunity of debating the order.
I believe that in terms of the general principle of the Executive being checked by the Legislature, this is a highly important Amendment, and I sincerely hope that the Government will appreciate that point and reconsider whether the Affirmative procedure should be followed. There need be no great delay in dealing with an order under the Affirmative procedure. This procedure means that it can be debated. Unlike the position of the Negative procedure under which an order cannot be amended, under the Affirmative procedure it can be debated, taken back, and amended. Therefore, I repeat my hope that the Government will think very seriously about the basic importance of the Amendment, for the protection of Parliament.
Lord KIRKHILL: I should like to respond to the question put to me by the noble Earl, Lord Perth. I hasten to tell

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him that there is not a legal definition for the word "expedient" but it is precedented in many Bills; one example in particular which I can quickly recall is the Northern Ireland Constitution Act 1973. Therefore, in this respect, I do not think that the Government are doing other than moving in a very traditional manner.
I have to say to the noble Lord, Lord Balfour of Inchrye, that the purpose of the amendments, as and when they occur, will be merely to tidy up minor points of detail, and because that is the case the Government do not believe that useful Parliamentary time should be taken up; hence the Negative procedure. The only point I want to make to the noble Lord, Lord Campbell of Croy, is that the Government think that Section 254 of the Local Government (Scotland) Act is the better precedent—and that is my advice.
Lord DRUMALBYN: If this matter is to remain as it is, I wonder whether the noble Lord can help by ensuring that, when orders of this kind are made, they are accompanied by an adequate explanatory memorandum. So often when orders are made there are only a couple of lines of explanation. An adequate explanatory memorandum would save everyone much time, and it would avoid the possibility of a Prayer having to be tabled in order to obtain an explanation, if for no other reason. I should be grateful if what I suggest could be done, given the special circumstances of this case.
Lord KIRKHILL: I shall certainly ensure that the remarks of the noble Lord, Lord Drumalbyn, are directed to the appropriate quarter.
Lord CAMPBELL of CROY: I have been looking up the Local Government (Scotland) Act 1973, and I see that its last section is 238; so I think that we are looking at different Statutes.
Lord KIRKHILL: I apologise if I said 1973; I meant 1972.
Lord CAMPBELL of CROY: I was about to withdraw the Amendment, but the ensuing interventions enabled other noble Lords to make their points, and so I should like to add to what the Minister
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has said just now. If these matters are simply matters of detail, then an order will go through without debate. No one will want to have unnecessary debates on matters of detail, but there could be among these amendments matters which are of importance, and that is the reason why we are suggesting this procedure. As I said earlier, I should like to reserve the position of my two noble friends to raise this matter again at the Report stage, but now I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 78 agreed to.
Clause 79 [Commencement]:
4.29 p.m.
Earl FERRERS Earl FERRERS moved Amendment No. 215:
Page 38, line 10, leave out from ("Parliament") to end of line 12.
The noble Earl said: This Amendment is consequential upon a decision taken during an earlier part of the Committee stage in relation to your Lordships' House voting on subordinate legislation. I beg to move.
On Question, Amendment agreed to.
Clause 79, as amended, agreed to.
Clause 80 [Referendum]:
The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey)The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey) moved Amendment No. 391:
Page 38, line 20, after ("Act") insert ("or that a majority of the answers given in the referendum have been 'No'").
The noble and learned Lord said: The purpose of this Amendment is to bring the Scotland Bill into line with the Wales Bill in its current state in so far as the important subsection (2) of Clause 80 is concerned. As your Lordships will recognise, this notorious subsection contains the provision about the 40 per cent. threshold of "Yes" votes which was carried into the Bill in another place against the advice of the Government. When the Scotland Bill was being considered by the other place, the 40 per cent.

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provision was inserted simpliciter (although it is not the most straightforward of provisions) and it was inserted in substitution for a general provision for repeal of the Act by order if the result of the referendum and all surrounding circumstances suggested to the Government that that was the proper course to pursue. This left the result that the only circumstances in which the Act could be repealed by order were if the referendum resulted in less than a 40 per cent. "Yes" vote from those entitled to vote.
The sponsors of the threshold provision were alive to this by the time the Wales Bill came round to this matter in another place, and in considering the corresponding provision in that Bill the other place decided to insert an additional provision requiring the Secretary of State to lay an order for repeal of the Act if the referendum resulted in a simple majority of "No" votes whether or not the 40 per cent. threshold of "Yes" votes was achieved. The Government Amendment which I am recommending to your Lordships will bring the provision in the Scotland Bill into line. I hope it goes without saying that the Government would not wish to go ahead with devolution if there were a majority of "No" votes in the referendum, and it is therefore sensible to have a provision empowering repeal by order rather than requiring primary legislation. This does not of course mean that the Government expect a majority of "No" votes. Indeed, quite the contrary is the case. It is just a sensible piece of machinery which was catered for in the Bill as introduced but lost when the 40 per cent. provision was carried against the Government.
I apologise for giving a somewhat lengthy explanation of a really quite simple provision, but I thought it might be of assistance if I made the position clear. I should like in conclusion to make two other brief points as shortly as I can. The first is that in practice the provision in this Amendment comes into play only if, despite 40 per cent. of those entitled to vote saying "Yes", more than 40 per cent. say "No". This can of course happen only on a turnout of over 80 per cent., because if we do not get 40 per cent. saying "Yes" then Clause 80(2) operates as it stands.
The second point is that the noble Lord, Lord Drumalbyn—and I give him, if I
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may, full credit for this—has spotted the defect that this Amendment is intended to cure and has put down on the Marshalled List his own Amendment, No. 216. The first leg of that Amendment is really to the same effect as the Government Amendment which I am now commending to your Lordships, while the second leg of the noble Lord's Amendment seeks to restore the general power of repeal by order in terms similar to those in the Bill as originally drafted. May I suggest to the noble Lord that having both the provisions suggested in the two legs of his Amendment could be rather confusing and liable to give rise to misunderstanding, because it cannot seriously be supposed that there could be any circumstances in which 40 per cent. of those entitled to vote said "Yes", and there was a majority of "Yes" votes, yet the Government of the day saw fit to bring in an order for repeal rather than lay a first commencement order before the House. That, I think, would hardly be understood. So, as regards this Amendment, the Government recommend the most convenient course as being to bring this provision into line with the similar provision now in the Wales Bill. I beg to move.
Lord DRUMALBYN: I am grateful to the noble and learned Lord for what he has said. I am not at all certain that I did not get my Amendment down before this was actually considered by the Committee on the Wales Bill, but that is by the way. As the noble and learned Lord says, the Lord Chancellor's Amendment does very much the same as the first part of my Amendment; and, of course, it does it very much more briefly. The reason why I had to do mine that way, of course, was because I did not want to touch subsection (2) as it stands in the Bill, so I had to devise another means of doing it.
I am not sure that I entirely agree with the noble and learned Lord that there would be no point in restoring the subsection which subsection (2) replaces as well as having subsection (2) as it now stands. It could well be an absolutely neck and neck show, rather like a cricket match being won by one run with a simultaneous appeal for lbw. In that kind of case, if there was almost nothing in it at all, I think a lot of us would feel that you cannot really treat a constitutional matter

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of this kind as if it were a cricket match and say, "Those voting 'Yes' have just won, and therefore it is all right". Surely, in a matter of this importance, the mere fact that there had been such a huge turnout as there would have had to be in a case like this would show how keenly people felt. It would mean, let us say, a 40.3 per cent. vote in favour and a 40.1 or 40.2 per cent. vote against, or something like that. It is not inconceivable, because there was an 85 per cent. turnout in the French election. You could very easily have that; but it would mean something of that kind. My own personal philosophy is that you simply cannot legitimately make constitutional changes with a majority of that kind in a referendum; you need a very much higher majority to do so.
Therefore, while I do not propose to move my Amendment at the present time (because obviously it would be wrong to do so, as effect has already been given to the first part of it, and it would therefore be redundant) I think we may have to come back on the second part at the next stage and establish this matter of principle. To my mind, it is not enough to insist on a large turnout. If there were a large turnout on both sides it would show how very keenly this was felt, and if it were a very narrow majority then I think all the circumstances would have to be considered and there should still be the possibility, given the uncertainty and the chance of a tiny majority in a case like this, of the Secretary of State bringing in an Order in Council to repeal the Act. I think this is a feasible proposition, and if anybody else would like to confirm my view of it I should be grateful. If nobody confirms it, and if somebody talks very hotly against it, then I might not act at the next stage; but I really feel strongly about this, and I strongly suspect that would feel strongly whether or not I was in favour of the Bill. I do not think it should be treated like a cricket match.
Lord MOTTISTONE: I should very much like to support my noble friend in principle, and I would hope that when we come to the next stage of the Bill he may perhaps find another way of putting this which would solve the problem if the Government do not like it as it is. Perhaps I may add a question: Would it not have
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been more appropriate to have had a golfing metaphor rather than a cricket one in a Scottish Bill?
Lord McCLUSKEY: Eschewing metaphors and, indeed, even heat, may I remind the noble Lord and the Committee that the situation which he envisages is one in which not less than 80 per cent. of those entitled to vote have cast their votes, where there is a majority in favour and where the Bill has passed through the normal legislative process in both Houses of Parliament. These are all circumstances which are surely relevant to his consideration, but no doubt he will bear that comment in mind as well as his own thoughts on the matter when he comes to consider what his position may be at a later stage.
On Question, Amendment agreed to.
[Amendment No. 216 not moved.]
Earl FERRERS Earl FERRERS moved Amendment No. 218:
Page 38, line 34, leave out from ("House") to ("Her") in line 36.
The noble Earl said: This Amendment, too, is consequential upon the removal of Clause 72. I beg to move.
On Question, Amendment agreed to.
4.40 p.m.
Earl FERRERS Earl FERRERS moved Amendment No. 219:
Page 38, line 37, at end insert—
("(5) If a resolution under section 79(4) of this Act has been moved in each House of Parliament, but has not been passed, the Secretary of State shall lay before Parliament the draft of an Order in Council providing for the repeal of this Act.").
The noble Earl said: Now that the Government have seen fit to tidy up that part of the clause to which we have been referring, I wonder whether they will see fit to accept this Amendment which is a further tidying up of the clause. When the referendum has been held (and assuming that more than 40 per cent. of those who can vote have voted, "Yes"), then the Act, in theory, comes into force. The way it comes into force is that the Secretary of State lays the first order under Clause 79(4). That order is subject to the approval of Parliament. My

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question to the Government is this. What happens if that order is not approved?— because this may well be the first occasion on which Parliament can give its verdict after the referendum has been held and the people of Scotland will have had their say in the referendum. But the situation is—and it has always been said to be—that the referendum is only advisory.
If less than 40 per cent. say "Yes", the Secretary of State is obliged to introduce an order repealing the Act and Parliament can, rightly, be the final arbiter and not agree to that order. But what if, say, 41 per cent. of the people say, "Yes" and 39 per cent. say "No"? It may be a very close thing. Parliament may wish to consider the advice which the Scottish people by their referendum will have given to Parliament. In these circumstances there will be no order to repeal the Act because over 40 per cent. of the people will have said, "Yes". The first opportunity for Parliament to consider this is when the order is placed before the other place bringing in the commencement of the Act.
If the other place, in its wisdom, for whatever reason, declines to give that order approval—and it is entitled to do so—one then has the situation where there is an Act of Parliament on the Statute Book but it has not been brought into effect. I know that there are occasions when Acts of Parliament have not been brought into effect. One obvious case which comes to mind is the Act of Parliament which permits a fixed date for Easter, which has been passed and yet the order bringing it into effect has not been produced for the last 40 years. But I am sure the Committee will agree that that kind of Act is in a very different category from this Bill.
It may be that if the Bill remains as it is the Government, having not had the order passed for the bringing in of the first stage of the Act, having not succeeded in getting that passed, could lay an order again and try to get it passed on a second occasion. It does not require a very vivid imagination to think of the various means, methods and pressures that might be applied to various people to try to get them to vote differently on the second occasion from the way in which they voted on the first. If Parliament declines to pass an order bringing the Bill into opera-
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tion, then in my judgment it is fair to say that we cannot have a Bill of this substance floating around on the Statute Book waiting for somebody to bring it in. In these circumstances, if Parliament has declined to approve an order to bring the Act into operation after receiving the advice of the people of Scotland, the Secretary of State should be obliged to bring in an order repealing the Act in the same way as he would have done so if the referendum had not approved the Act. That is the purpose of this Amendment, and I hope that it commends itself to the Committee. I beg to move.
Lord McCLUSKEY: This was presented as a mere tidying-up Amendment by the noble Earl, but I do not regard it as such. I think it is important to recognise that one must read together Clauses 79 and 80. If we do that, I would invite your Lordships to consider the conditions which have to be met before the Secretary of State can lay his first commencement order. They are the conditions that I was speaking about a moment ago in relation to an Amendment which was not moved by the noble Lord, Lord Drumalbyn. The conditions are, in the first place, that at least 40 per cent. of those entitled to vote in the referendum have to say "Yes". In the second place, there must be a majority of "Yes" votes; otherwise a repeal order has to be laid. If one gets over these hurdles and these particular stringent tests are met, is it to be supposed that Parliament will somehow decline to implement the Act and decline to let devolution proceed? That is the effect of the decision on the first commencement order as provided for in Clauses 79 and 80. That, in my submission, is unthinkable and we are liable to be misunderstood in Scotland and elsewhere if we accept an Amendment based on the proposition that Parliament would wish to fly in the face of the kind of support which would be expressed in the referendum if these tests were passed.
The noble Earl has suggested that it is conceivable—and, of course, it is conceivable—that there might be 41 per cent. voting "Yes" and 39 per cent. voting "No". But is the official Opposition in this House saying that if there is an 80 per cent. turn-out, or better, and if there is a majority in that turn-out in favour of devolution, the House should not pass

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the first commencement order? Surely that is a dramatic departure from any concept of a referendum that we might have. Was any such suggestion contained in the Referendum Act 1975, or is this the first time that it has emerged? If it is the first time, why has it emerged? Why are the Conservatives running away from democracy?
In elaborating his point, the noble Earl referred to the possibility that the Secretary of State might not get his first commencement order and the Act might somehow be left (like the Easter Act 1928, I think) to fester on the shelf for many years. I would suggest that this is a red herring. Surely Parliament would be taking a key decision on the first commencement order following the referendum. The conditions precedent to the laying of such an order are sufficiently stringent for it to be quite unreal, and indeed impossible, to conceive that Parliment would refuse to pass the order. I seriously suggest to your Lordships that this Committee would be unwise to accept an Amendment founded on the scenario painted by the noble Earl.
The proposed Amendment is unnecessary and, more than that, it very easily could be misunderstood and misrepresented as a proposal to stifle devolution, albeit there was a majority in favour of devolution and the stringent tests laid down were passed. May I remind the noble Earl that if we got ourselves into a situation where there was a better than 80 per cent. turn-out and a majority, albeit a narrow one, in favour of devolution and if the Government of the day wanted to stop the devolution Statute, the Scotland Bill, from coming into effect, surely the proper course then would be to introduce legislation to repeal the Act and to allow the matter to be debated in the proper form in both Houses in that context. I submit that this Amendment should not be accepted.
Lord MOTTISTONE: On a point of clarification, if 41 per cent. vote "Yes" and 45 per cent. vote "No", does the order have to be laid?
Lord McCLUSKEY: No. I think the noble Lord will see from the Amendment that I moved a few moments ago that, if there is a majority of "No" votes, the
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effect of reading the clause as amended and the two clauses together is that the Secretary of State does not lay the first commencement order and the Act is repealed.
Lord MORRIS: May I with respect submit to the noble and learned Lord that the Conservative Party do not wish to run away from democracy. What we are attempting to do is to run away from the elected dictatorship of what might be a very small majority indeed.
Lord DRUMALBYN: May I make the point, as the noble Lord has stressed it already, that the referendum is consultative, so there is no question of "running away from democracy". I hope the noble and learned Lord will reconsider that phrase. May I further point out to him that there are democracies that have constitutional legislation providing for two-thirds majorities in order to achieve a change.
Lord McCLUSKEY: What occasioned my using that phrase was that if one looks at the terms of this Amendment, it reads:
"If a resolution under Section 79(4) of this Act has been moved in each House of Parliament, but has not been passed …".
Therefore, the situation envisaged is that the turnout is 80 per cent. or better; that there is a majority in favour of devolution, but that one or other House then does not pass the resolution to bring the Act into force. That is the scenario which I suggest would be a departure from democracy. If there is a referendum and the result is that the majority are in favour of devolution and they have also passed the substantial 40 per cent. hurdle, surely the Houses are not going to say, "No, you still cannot have devolution". What do we have to do to get devolution?
Earl FERRERS: All I know is that if ever I get into a legal muddle, I shall turn to the noble and learned Lord, Lord McCluskey, to get me out of it, because he is extraordinarily persuasive. He tries to make out that anyone else's case is quite pathetic. I am prepared to believe that my cases very often are pathetic; but on this occasion I do not think that that is so. With the greatest respect, I think that the noble and learned Lord has read far too much into this Amend-

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ment. He told me yesterday that I was talking nonsense. I could pass the "pleasantry" back to him when he said that the Conservative Party were running away from democracy. Everyone knows —and the Government have always said —that a referendum is only advisory. What the noble and learned Lord said this afternoon is far more frightening: that the referendum is apparently going to be binding on Members of another place, and that if the referendum says one thing —and the noble Lord said it a few minutes ago—it would be unthinkable that Members of another place would vote against it or vote in a different way.
The whole point of this procedure is that the referendum is advisory and then Members of Parliament choose to vote in the light of that advice. The way they vote, bringing this Act into operation, is by voting upon an order laid by the Secretary of State. Even if there is a "Yes" vote in the referendum, there still has to be a commencing order. Even if there is a "Yes" vote, that is still an advisory vote on behalf of the referendum.
Parliament is sovereign upon bringing the Act into operation. If the noble and learned Lord says: "It is unthinkable that the House of Commons would disagree," then I agree; I think it would be very surprising if they did. But they can disagree, under this Bill and they can say: "We have taken the advice of the referendum but we do not think, for a variety of reasons, that it is right that this Act should go forward. This has always been part of the Government's philosophy", and that is quite right. If they vote against the order, the Act is left suspended without being brought into operation. That would be an intolerable situation. If another place says, "We will not accept this Order" there should be an obligation on the Secretary of State to repeal the Act. I do not know whether the noble and learned Lord has any views that he would like to express in the light of that argument. This is an important point, and I should like to have the opinion of your Lordships upon it.
Lord McCLUSKEY: Before we divide on the matter—if we are being driven to that in pursuit of the Conservative notion of democracy—may I say this. The key decision will certainly be taken in
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relation to the first commencement order. Of course the referendum is consultative only. What I am saying is that it is inconceivable that if all the other tests have been passed either House of Parliament will say, "No, you still have something else to do". I cannot believe that that is a realistic scenario. To amend the Bill upon the basis of some fantastic possibility is, in my submission, unwise and liable to be misleading.
Earl FERRERS: The noble and learned Lord says that it is inconceivable and is unlikely to happen. I agree; but if that were the case, this Amendment would not bite. It would not operate if this unlikely event never happened. It is only in the unlikely event that it might happen that the Amendment would operate.
Lord MACKIE of BENSHIE: It appears that what the noble Earl is proposing is simply that if Parliament flies in the face of the enormous amount of work and thought and a referendum which has surmounted a very stiff hurdle of 40 per cent. of the vote and decides to go against the referendum—which everyone admits they have every right to do whether it be wise, right or proper—what the noble Earl is suggesting is that they should be under an obligation to repeal the Act. This would be unwise. If Parliament were unwise enough to do this probably there would be a change. Can the noble Earl imagine us going through all this process again? Does he not realise that this is the 13th day of this Committee? Surely, if the Act passes through Parliament, and passes the stiff hurdle of the referendum and then, at the end of the day, the House of Commons are foolish enough not to follow the wishes of the people, it would be far better to let the Act sit and await a more sensible House of Commons.
Lord CAMPBELL of CROY: Before the noble and learned Lord answers that point and any others, may I say that my noble friend is trying to help the Government to make the machinery in the Bill complete. Both my noble friend and the noble Lord, Lord Mackie, have spoken about having taken the hurdle of the referendum. But there is a scenario in which there could be argument about the result of the referendum. If it were to come out as 39.9 per cent. or 40.1 per cent.

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or something close to 40 per cent., as it is only advisory in its effect there could be a lot of argument—particularly with the SNP talking about the number of dead men on the register being equivalent to 1 per cent. or 2 per cent., and so on—as to whether it had taken the hurdle or whether it had taken some of the brushwood off the top of the hurdle and not passed that hurdle. In that situation, there could be a difference of opinion as to whether the referendum had really reflected the opinion and passed the hurdle as shown in the Bill.
In that situation, I think that the Secretary of State for Scotland would be in an exceedingly difficult position. There is no doubt about that. If the figure was around 40 per cent., he might think: "I must lay an order because I must get the opinion of Parliament as to what they think in the light of this situation". In that situation it would be questionable what the answer would be from Parliament. We in Parliament at Westminster have to consider and provide for the possibilities that can arise. This is definitely one of the possibilities that could arise. The Secretary of State for Scotland will be in a difficult position if there is that result. But we do not want to find that there is nothing in the Bill to look after the situation where the House of Commons has disagreed that an order is necessary, does not think that the hurdle has been taken but that the Bill is still left in limbo.
Lord MACKIE of BENSHIE: I merely wanted to point out that the "dead men" argument is not important, because they would vote "No", and so it is unlikely to be used. But even if it barely passes at 40 per cent. it is still an enormous vote in favour. If we get General Election figures, it is still somewhere over 60 per cent., which is substantial.
Lord CAMPBELL of CROY: That is my point, because if it came out at, say, 39·9 per cent., people would also say: "That is a very big figure and a very good percentage. It has not quite passed the hurdle but we think it is good enough". That is the just the kind of situation where the final decision would lie with another place and the real decision would be on the order. What happens if that order is not then passed needs some provision making in the Bill.
5.1 p.m.
Lord HUGHES: I think there is no doubt that the intention in inserting the 40 per cent. was to erect hurdles which the opponents of the Bill thought it would not succeed in getting over; but I think perhaps one of the things they have overlooked—and by that I mean those people who were hoping the Bill would fail—is that in fixing the 40 per cent. which, as the noble Lord, Lord Mackie of Benshie, has said, represents a very substantial vote in favour, they have really created a situation where, if it does get more than 40 per cent. the House of Commons has placed itself in a position where it may have the legal right to do anything it pleases but it will have no moral right to do anything other than implement the Act. Where Parliament's discretion will arise, and where it will have to exercise judgment, is in the other situation indicated by the noble Lord, Lord Campbell of Croy. If it fails to get past 40 per cent. but gets reasonably near to it, Parliament then must decide whether or not to let it go through, even though the 40 per cent. has not been reached. Presumably, if it reached only 25 per cent., opponents in another place or here would say: "Of course, the people of Scotland do not want it and this is the end of it".
But with a provision made for the repeal of the Bill in the unlikely situation, I would think, of a percentage being reached of 35, 36 or 37, there might very well be strong pressure for it not to be implemented. However, I suggest that the course of action proposed from the Liberal Benches is the obvious thing: to let it sit until a more reasonable view can be brought to bear—when I say "a more reasonable view", I mean what the people of Scotland would regard as a more reasonable view—rather than rushing through the repeal of the measure. Certainly the demand would not go away, and Parliament would find itself being asked after another Election to do the whole thing all over again.
Lord DRUMALBYN: I wonder whether inadvertently the noble and learned Lord, Lord McCluskey, misled my noble friend Lord Mottistone. I understood that he agreed with my noble friend that the Secretary of State would not have to lay an order before Parliament if the vote was "No". My impression was

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that he said that. Would the noble and learned Lord agree? Perhaps I misheard him, or perhaps he did not quite say what he meant to say; I do not know. But I think that what he said earlier made the matter quite clear; that is to say, if there is not a 40 per cent. "Yes" vote, or if there is a "No" vote, then the Secretary of State has no option but to lay before Parliament an order. That is so is it not?
Lord McCLUSKEY: May I put the matter clearly by reading short Clause 80(2), as amended:
"If it appears to the Secretary of State that less than 40 per cent. of the persons entitled to vote … have voted 'Yes' … or that a majority of the answers given in the referendum have been 'No', he shall lay before Parliament the draft of an order … for … repeal …".
That is what I intended to say. If I used other words, and if they were liable to misconstruction, I apologise.
Lord DRUMALBYN: I think that is quite clear. Then, if I understood my noble friend correctly, he was saying that another place might not accept that order. After that, I am afraid that I got lost in the argument; but it is clear that either House might not accept the order. Whether either House would be entitled to act in that way, I am not sure. I should have thought they would be under a very strong moral obligation to support the Secretary of State's order, given what is in the Bill. But what I understand my noble friend to be saying is that one House or the other might not take that view, for one reason or another. Then what is happening is that the Bill remains on the shelf entirely, so to speak, and the Secretary of State would not then be obliged in any way to appoint a day—would he, or would he not?—in such circumstances.
What my noble friend is saying is that if either House has rejected the order repealing the Act, then the Act simply stays in being until the Secretary of State makes the first appointed day. I take it that my noble friend has in mind that there is no other way of disposing of the matter if the Secretary of State declines to make an order for the first appointed day. Can the noble and learned Lord help us with this? The means which my noble friend has suggested of getting over this is by bringing in a second order saying: "You have rejected the first order for repeal but,
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given the circumstances and the fact that I am not going to appoint a day, will you now support me by repealing the Act?" That is what I understand to be the intention and that would be one way of resolving the matter. Can the noble and learned Lord say whether there would be any other means of resolving it?
5.8 p.m.
Lord SHINWELL: The implication contained in the speech to which we have just listened and in so many other speeches that have been made seems to indicate that we cannot trust the other place. The scenario we have to consider is that of a Bill having passed through all its stages in both Houses of Parliament, and having been endorsed by a decision of the people of Scotland—that is to say, that a certain number (stipulated in the Bill) will agree with the words that are contained here: "Do you want the provisions of the Scotland Act, 1978, to be put into effect?" This is the Bill we are, and have been, discussing. It is suggested that in another place some recalcitrants will say: "We do not care two hoots about a democratic decision derived from a referendum which has taken place in Scotland. We do not want this Bill".
What about this Chamber? What do the noble Lords, Lord Drumalbyn and Lord Campbell of Croy, suggest? We have gone through all these stages and listened to all the legal, forensic, judicial and ancillary arguments, night and day —though some of us have the common sense to remain outside occasionally, otherwise we would have gone off to sleep, if indeed we did not do so occasionally. When we were almost reaching the end of the day what would we do then, as democrats? It is a very interesting question. Are we not democrats? Of course, we would say, "We went through all these stages, all these procedures et cetera. We accept the decision of the people of Scotland and this Act must go through."
I went to the other place in 1922, which is a long time ago, and perhaps I know it better than anybody else here. But I cannot believe that, having gone through all the stages there—and I know that there has been considerable and justifiable controversy; perhaps they ought not to have agreed to the referendum, but there

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was a majority in favour of it—they would refuse to accept the decision and not allow the Scottish Assembly to be established.
I want to make just one other observation, and then the noble Lord, Lord Drumalbyn, can have the Floor with the full consent of your Lordships, and certainly with my consent. I recall what happened in connection with the EEC. There was a referendum, and a majority of people in the country decided on association with the European Community. Of course, there were some objections raised by the anti-Common Marketeers, people like myself who believe in Britain; the super-patriots. That is not what they called us; they used other names, but we endured and tolerated that. But once the decision was taken there was no question of refusing accession, when it came to the point. There was a debate on it and the decision was accepted. So far as I know, nobody seeks to repeal it. Certainly, nobody in this House wants to repeal it. It was a decision of the people of this country which we accepted, and the same will apply here.
I must say I am amazed that there is any suggestion by implication, if not directly, that in another place, after having gone through all the processes and procedures, they will say "We are not democrats at all. We do not care two hoots for the people of Scotland. We shall decide." My noble friend Lord Hughes, who knows much more about these matters than I do, has suggested that there is no legal obligation upon the other place, although there is a moral obligation. But there is both a legal obligation and a moral obligation. There is a legal obligation, because they have decided to promote and proceed with this Bill, and they have also decided on a referendum. Therefore, if there is a legal and a moral obligation, that should be quite sufficient for us.
Lord DRUMALBYN: I am very grateful to the noble Lord, Lord Shinwell. I find myself in substantial agreement with him, but it is not quite the point that I was putting to the noble and learned Lord, Lord McCluskey. Before he replies, may I simply say this. Subsection (2), which we now have, is not as originally drafted. The original subsection (2) gave the
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Secretary of State discretion to draft an order. Even though there was a majority in favour, he could have drafted an order for the repeal of the Act, after considering all the circumstances. I am wondering whether we have completely eradicated that from our minds, in considering the present case. Most certainly in that case, my noble friend's Amendment would have been entirely appropriate, because the House might not have accepted that view. I am inclined to think, as the noble Lord said, that given the Bill in its present form both Houses are bound to accept that view, if the conditions in the clause have been fulfilled. But I was really asking the noble and learned Lord whether he could help us on this.
Lord McCLUSKEY: It is important to recognise that we are talking about an order under subsection (2) of Clause 80, and an order under Clause 79. Let us suppose that the voting was 39 per cent. in favour of bringing the Act into operation and 15 per cent., or something of that kind, against; there was an overwhelming majority, but a failure to get over the 40 per cent. hurdle. Of course, the referendum is only advisory and, although this subsection would require the Secretary of State to come before Parliament with a draft Order in Council, Parliament might well say "There was a substantial majority in favour on a sufficient turnout. Therefore we refuse to repeal this Act". But the logic of that is that the Secretary of State, having been told by Parliament that the Act is not to be repealed, and Parliament having been advised by the referendum that they ought to go ahead—or having so construed the advice—he will come forward with a commencement order under Clause 79 of this Bill. I think that that is the point which the noble Lord, Lord Drumalbyn, raised. I hope that it was, and I trust that I have dealt with it.
I should add in general terms that of course I confirm that the referendum is still advisory. Unfortunately, what has happened is that, because of the introduction of the 40 per cent. provision, it has seemed to lose some of its advisory character. One of the reasons why the Government argued against the introduction of the 40 per cent. hurdle was that it enables people to say "If the

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40 per cent. hurdle is passed, then Parliament has no option", whereas Parliament is not surrendering to the electorate its power to decide. It is the referendum which will advise Parliament, although what I say is that it is inconceivable that, if all the tests are passed, Parliament will reject that decision of the electorate. I do not want to add anything more to this debate, which has gone on long enough for my purposes. The hour grows late, and I believe that the noble Earl wants to come to a conclusion.
Lord CAMPBELL of CROY: I do not waste the time of the Committee, but may I raise this point? The noble Lord has described a situation where 39 per cent. might have voted in the referendum but because the "Noes" were a small percentage the Secretary of State decided to lay an order. Therefore, the Act would not have passed the 40 per cent. hurdle of the referendum, but the Secretary of State would none the less lay an order because the referendum is advisory.
Lord McCLUSKEY: I beg the Committee's pardon. What I was saying was that he would have no option but to lay an order for repeal of the Act under Clause 80(2), even if 39 per cent. voted in favour, 15 per cent. voted against and the rest abstained.
Lord CAMPBELL of CROY: But could there not be a situation where the Secretary of State decided that, because the referendum was only advisory and it was a very close thing—perhaps 39·9 per cent.—he could lay an order in the other direction, which would enable the question of bringing the Act into effect to be settled by the House of Commons?
Lord McCLUSKEY: With respect, I think that that is a wrong interpretation. Under Clause 80(2), even if there is a massive majority in favour, although it does not amount to 40 per cent. of those entitled to vote, the Secretary of State has no option but to come forward with an order for the repeal of the Act. Of course, the attitude taken by Ministers and by Parliament is not determined by anything in the Bill, but he has to follow that procedure.
Lord CAMPBELL of CROY: I am grateful for that interpretation. As the noble and learned Lord has said himself, the insertion in the referendum of the 40 per cent. figure has therefore altered to some extent the advisory situation of that referendum. I agree with what the noble and learned Lord has said. None the less, an order would be laid in another place. We refer to another place because we recognise that, as the democratically elected body, it would have to take the decision; but it could then take a decision which was contrary to the Secretary of State's intention. That situation has still to be dealt with.
Lord HUGHES: Assuming that the situation arises that there is a 39 per cent. vote, the Secretary of State, in accordance with the terms of the Act, must, as my noble and learned friend has said, lay the order before Parliament. He may say, "I don't want to approve the order", but he must lay it before Parliament.
Lord CAMPBELL of CROY: That is my point.
Lord HUGHES: However, in these circumstances, the composition of Parliament being as it is at present, it is possible that the order might be passed. If it were to be passed, there is at leapt a chance that it would be passed by a very small majority. This is the case for not repealing the Act on the passing of the order. At least by October of next year there will he a new Parliament and an altogether different majority. It might well be that another order placed before Parliament at that time would be carried by a substantial majority. However, if the Act were to be repealed, the next Parliament would have no opportunity to implement devolution unless again it went through the whole process of a Scotland Bill.
It has been said that it would be dreadful for the Bill to be put into limbo in that way. I recollect that periodically we are asked a Question in this House as to whether the Government intend to implement the Easter Act which has been on the Statute Book for a very long time. I do not expect that the Scotland Bill would remain unimplemented for anything like that length of time. However, it might be reasonable to make sure that the

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opportunity to implement it remained for a year or two at least after it has been passed. If this Amendment is passed and is allowed to remain in the Bill, that opportunity will be lost. I do not believe that the Amendment would serve a useful purpose so far as this Parliament or the people of Scotland are concerned.
The Earl of PERTH: May I follow up the point which has been made by the noble Lord, Lord Hughes. As I read the Amendment, we are worrying not about a possible scenario of one kind or another but about what happens if a Resolution under Section 79(4) of this Act has been moved in each House of Parliament but has not been passed. That is the only point which is at issue at the moment—not all kinds of scenarios.
The Amendment proposes that in those circumstances the Act should be repealed. When I recall the pain and the trouble involved in the working out and passing of this Act—for I suspect that it will be passed during the remainder of the lifetime of this Parliament—it seems to me that under certain conditions it would be a great pity if there were to be a mandatory demand that because such a Resolution had not been passed in either House we had to repeal the Act.
If I may follow up the point which has been made by the noble Lord, Lord Hughes, I am wondering whether or not we could say that after period X the Act should be repealed rather than it should hang in the air for ever. It seems to me that it would be a great pity if, for some reason or another (which does not, in a sense, matter), it were mandatory to repeal the Act now and then in a year or two again we had to face a situation which we did not know where everybody said, "Oh, I wish that we had it". Noble Lords should think about what that would involve. May I ask the noble Earl, Lord Ferrers, to consider withdrawing the Amendment and looking at it again to see whether or not he could say that after a certain period of time it should be obligatory upon the Secretary of State, or whoever it may be, to repeal the Act?
Lord WILSON of LANGSIDE: Before the noble Earl replies, from what the noble Lord, Lord Hughes, and the noble Earl, Lord Perth, have said and in the light of the
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debate that we have had on this Amendment, I hope that it will not have escaped the notice of your Lordships' Committee that this measure is admirably designed to bring a state of stability into the constitutional arrangements of the United Kingdom.
5.25 p.m.
Earl FERRERS: I am bound to say that at one time I thought we had gone slightly off the rails. If I may say so, the noble Lord, Lord Hughes, put his finger completely on the point. It is simply this: if the referendum is to be advisory, it means that in the end the last word is up to the House of Commons. And that is correct. If the result of the referendum is that less than 40 per cent. of the electorate say, Yes, then the House of Commons will have the opportunity to vote.
I assure the noble and learned Lord, Lord McCluskey, that this is supposed to be a helpful Amendment. It is not of the nature which he described, for the reason that it refers to the commencement of the Act in Clause 79(1), which says:
"The preceding provisions of this Act (and the Schedules relating to them) shall not come into operation until such day as the Secretary of State may by order appoint".
Subsection (4) reads:
"The first order under this section shall not be made unless a draft of it has been laid before Parliament …".
That is the first occasion upon which, if this Act is to be brought into operation, another place will have the opportunity to say, for whatever reason, "No, we do not want it". If the referendum is to be advisory, that permission must be allowed to another place.
If, for whatever reason, another place say, "No, we do not want the first commencing order to come into operation", then we are left in the situation that this Bill, rather like a hot air balloon, will be going to the top of the ceiling and waiting for somebody to pull it down by a string—by another order. I do not believe that that is suitable. Both the noble Lord, Lord Hughes, and the noble Earl, Lord Perth, have said that we should leave the matter for a while because of all the trouble that we have gone through. That is a thoroughly sympathetic argument which I understand. But the fact I is that, at the end, the referendum—and

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the House of Commons—are determining this Bill. If they say that they do not want this Bill to be passed, it seems to be absurd to say that we should leave it in limbo and see whether or not we can get more people to vote for it on another occasion.
My answer to both the noble Lord, Lord Hughes, and the noble Earl, Lord Perth, is that under my Amendment the Secretary of State will have to bring forward another order repealing the Act. If the Members of another place do not want that Act to be repealed but want it to be left in limbo, then they will have the opportunity to say so when the Secretary of State brings in the amending order or the repealing order which my Amendment suggests.
Lord HUGHES: My point is that, if Parliament has declined to pass the order, it is most unlikely that, hard on the heels of it, they would take a contrary decision—in other words, that the Act would be repealed. May I remind your Lordships' Committee that in the case of many of the Amendments which go from this House to another place the argument is put forward that the reason for those Amendments is to give the other place the opportunity again to consider the matter. My suggestion—a time limit was suggested to be added to it by the noble Earl, Lord Perth—is that the other place should have the opportunity again to consider the matter. But that is an opportunity which they must give to themselves. If they rejected it in 1978 or early in 1979, they might take a contrary view at the end of 1979 or in 1980.
If this Amendment is passed, the other place will not have the opportunity to have second thoughts after a little while. There is very little chance of a view being changed in a matter of weeks. If, however, they rejected the order and then there was mounting pressure throughout Scotland for the Act to be implemented, it might be found, in the matter of a year or so, that there would be sufficient people who had changed their minds, thus enabling the Act still to be brought into operation.
The very least that I would urge the noble Earl, Lord Ferrers, to consider is the point put by the noble Earl, Lord Perth, not to press this Amendment today but to consider whether or not his purpose
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would be met by putting a timetable on it, because on my own argument if the Government had not done anything about it in three, four or five years, it would mean that there had not been a lot of pressure on them, they did not feel it was necessary, and from that point of view they could probably repeal the Act with impunity.
5.30 p.m.
Lord WIGG: I honestly do not think that the noble Lord, Lord Hughes, can be allowed to get away with that. The point that has been made time and time again during the Committee stage, that the other place should be given a second chance to think, is the same point as has been made by the noble Earl, Lord Ferrers. What is being argued by the noble Lord, Lord Hughes, in relation to this is not giving the other place a chance to think twice in relation to this House but to think again in the light of the decision of the people of Scotland after the referendum. Written into the Bill is 40 per cent. If the figure of 40 per cent. is reached, then I presume he will be playing the bagpipes; they will be home and dry and they will take the prize. If they lose, if they are beaten by a short head, what he wants to do is to say: "Do not give the prize to anyone else. Just leave it on the stand so that we can have another race when it suits me".
My position is quite clear: I regard this Bill as near treason. It aims at the very basis of the unity of the United Kingdom and that is why I oppose it. If this Bill goes on the Statute Book, it will be "goodbye" sooner or later to the United Kingdom of Great Britain. Therefore I want its throat cut, and the sooner its throat is cut, the sooner I want it buried. I shall have great pleasure in voting with the Opposition if they put it to a Division, as I hope they will.
Lord HARMAR-NICHOLLS: I think the noble Lord, Lord Hughes, is on a weak point from the Parliamentary point of view. In my view, this is a bad Bill, and the one danger that can flow is that, irrespective of its merits, there is uncertainty about the Bill. It is bound to affect possible investments in Scotland, and unfortunate things may flow from that now while there is uncertainty as to whether or not they are to have this

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devolved Bill. We must tolerate that; uncertainty that operates before a Bill becomes an Act applies to all legislation.
If it becomes an Act, if we have the referendum, and if the referendum says that it is wanted, and that is supported by the Government of the day, then the sooner we attempt to work this awful Bill, the better; at any rate the uncertainty will have been settled. But if the referendum says that it is not wanted, and if the Government of the day are going to be influenced by the advice they get from the referendum, then the sooner it is dropped, the better. I am not speaking about the Bill but about the speech made by the noble Lord, Lord Hughes. I think the noble Lord, Lord Wigg, is absolutely right in saying, in effect, "Give us the chance to have second thoughts when the atmosphere may be different". As the noble Lord, Lord Wigg, put it, run the race again. To retain uncertainty as to whether or not we are going to have it can be dangerous. I would rather that we had it and tried to work it than have it left in a state of limbo, with all the damage that would do, both to the United Kingdom as a whole and to Scotland itself. So I should have thought that the advice being given by the noble Lord, Lord Hughes, ought not to be taken.
It seems to me that my noble friend's argument is very sound. If this Amendment is passed we shall still be leaving it to the other place to decide whether or not they will accept our advice, and they will have second thoughts there. I would not go beyond that. I think it is a little unfair of those who are enthusiastic about
the Bill to feel that they can lose the race and still have the riband as though they had won it.
Lord HUGHES: I thought for one horrible moment that the noble Lord, Lord Harmar-Nicholls, was coming down on my side. That would have appalled me.
Earl FERRERS: The one thing that I am quite sure would be wrong is if in fact the order being brought into another place to bring this Act into operation were to be rejected and the Act nevertheless to hang about. As my noble friend has said, this would cause intense consternation. Nobody would know where they were and there would be frantic pressures put on all sorts of people and on the Government to try to get a firm decision.
I hope your Lordships will support me in this because if this Amendment is accepted, and if the Secretary of State under the Amendment, were to bring in an order to repeal the Act, then the House of Commons would have the opportunity to say whether it wanted the Act to remain in limbo. In my judgment either this Act ought to be brought into effect or it ought not, but to leave it somewhere up in the sky, with the Act passed and the order to bring it into operation not made, would be most unsatisfactory.
5.36 p.m.
On Question, Whether the said Amendment (No. 219) shall be agreed to?
Their Lordships divided: Contents, 101; Not-Contents, 94.

CONTENTS

Alexander of Tunis, E.

Coleraine, L.

Falkland, V.

Amory, V.

Cork and Orrery, E.

Ferrers, E.

Auckland, L.

Craigavon, V.

Fortescue, E.

Avon, E.

Croft, L.

Gainford, L.

Balfour of Inchrye, L.

Cullen of Ashbourne, L.

Glendevon, L.

Belstead, L.

de Clifford, L.

Gowrie, E.

Berkeley, B.

De Freyne, L.

Gray, L.

Birdwood, L.

Denham, L.

Gridley, L.

Boyd of Merton, V.

Drumalbyn, L.

Halsbury, E.

Bradford, E.

Dundee, E.

Harcourt, V.

Caccia, L.

Ebbisham, L.

Harmar-Nicholls, L.

Campbell of Croy, L.

Eccles, V.

Hawke, L.

Carr of Hadley, L.

Ellenborough, L.

Hemphill, L.

Cathcart, E.

Elles, B.

Henley, L.

Chelwood, L.

Elliot of Harwood, L.

Hereford, V.

Clancarty, E.

Elton, L.

Hylton, L.

Clwyd, L.

Emmet of Amberley, B.

Kimberley, E.

Cockfield, L.

Faithfull, B.

Kinnaird, L.

Kinross, L.

Newall, L.

Sempill, Ly.

Lauderdale, E.

Northchurch, B.

Sharples, B.

Linlithgow, M.

Orr-Ewing, L.

Skelmersdale, L.

Long, V.

Pender, L.

Spens, L.

Lyell, L. [Teller]

Penrhyn, L.

Strathclyde, L.

McFadzean, L.

Platt, L.

Strathcona and Mount Royal, L.

Mancroft, L.

Rankeillour, L.

Strathspey, L.

Margadale, L.

Rawlinson of Ewell, L.

Teynham, L.

Marley, L.

Reigate, L.

Tweeddale, M.

Massereene and Ferrard, V.

Rochdale, V.

Tweedsmuir, L.

Minto, E.

Ruthven of Freeland, Ly.

Vernon, L.

Monson, L.

St. Aldwyn, E.

Ward of North Tyneside, B.

Montgomery of Alamein, V.

St. Davids, V.

Wigg, L.

Morris, L.

Sandford, L.

Wilson of Langside, L.

Mowbray and Stourton, L.

Sandys, L. [Teller]

Younger of Leckie, V.

Moyne, L.

Selkirk, E.

NOT-CONTENTS

Aberdeen and Temair, M.

Greenwood of Rossendale, L.

Paget of Northampton, L.

Amherst, E.

Hale, L.

Pannell, L.

Ampthill, L.

Hamnett, L.

Parry, L.

Aylestone, L.

Hampton, L.

Perth, E.

Baker, L.

Harris of Greenwich, L.

Ponsonby of Shulbrede, L.

Banks, L.

Hatch of Lusby, L.

Rhodes, L.

Beaumont of Whitley, L.

Hughes, L.

Ritchie-Calder, L.

Bernstein, L.

Hylton-Foster, B.

Sainsbury, L.

Birk, B.

Jacobson, L.

Samuel, V.

Blyton, L.

Jacques, L.

Seear, B.

Boston of Faversham, L.

Janner, L.

Segal, L.

Brimelow, L.

Kaldor, L.

Shinwell, L.

Byers, L.

Kilbracken, L.

Simon, V.

Champion, L.

Kilmarnock, L.

Somers, L.

Chitnis, L.

Kinloss, Ly.

Stamp, L.

Collison, L.

Kirkhill, L.

Stedman, B.

Cooper of Stockton Heath, L.

Leatherland, L.

Stewart of Alvechurch, B.

Crook, L.

Lee of Newton, L.

Stone, L.

Cudlipp, L.

Listowel, E.

Strabolgi, L. [Teller]

David, B.

Llewelyn-Davies of Hastoe, B.

Tanlaw, L.

Diamond, L.

Lloyd of Hampstead, L.

Taylor of Mansfield, L.

Donaldson of Kingsbridge, L.

Longford, E.

Wall, L.

Douglas of Barloch, L.

Lovell-Davis, L.

Wallace of Coslany, L.

Dowding, L.

McCluskey, L.

Wedderburn of Charlton, L.

Elwyn-Jones, L. (L. Chancellor)

Mackie of Benshie, L.

Wells-Pestell, L. [Teller]

Evans of Claughton, L.

McNair, L.

Willis, L.

Evans of Hungershall, L.

Maelor, L.

Winstanley, L.

Feversham, L.

Milner of Leeds, L.

Winterbottom, L.

Gardiner, L.

Morris of Grasmere, L.

Wootton of Abinger, B.

Garner, L.

Murray of Gravesend, L.

Young of Dartington, L.

Gordon-Walker, L.

Northfield, L.

Goronwy-Roberts, L.

Oram, L.

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
5.46 p.m.
On Question, Whether Clause 80, as amended, shall stand part of the Bill?
Earl FERRERS: Before we leave this clause, I wonder whether we could reflect for a few minutes on what we, as Parliament, are doing by the referendum. The word "referendum" has a delightfully democratic flavour about it, and one might say at the outset, "Who can object to asking the people their opinion?" It sounds fine, but it has become the new maypole around which we all seem to be dancing. I believe this to be a dangerous
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innovation in our national life, and I fear that in British politics the referendum is becoming the 20th century escape route by Parliament over our national affairs. In my judgment it reflects the distance which has grown between the activities of Parliament and the will of the people. It reflects the recognition of the power of Governments, however they are composed, who do not necessarily reflect the majority of voters, to inflict controversial and unacceptable legislation on to an unwilling electorate.
As a nation we have had one referendum—that on the Common Market. That was held for a bad reason; that is, to get the Prime Minister of the day off a hook.

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We were members of the Common Market and it would have created acute embarrassment had we been obliged to unscramble that which we had legally and constitutionally entered into. The possible conflict of who wins, the authority of Parliament or the authority of the people, was mercifully never reached. But we had it again this afternoon. What happens if by this referendum the authority of the people says one thing and the authority of Parliament says another? Fortunately, in the case of the Common Market the referendum went the right way and these problems did not arise. But in some ways we seem to flock like bees around a honeypot to this new-found system as if it is the answer to many of our problems. We have it again in this Bill. The other day, the noble Baroness, Lady Stedman, said that the Assembly can call a referendum on anything it likes. Although I recognise the virtue of consulting the people, I believe this to be a dangerous innovation. It reduces the authority of Parliament and it invites conflict between Parliament and the people.
In the olden days, as one used to say as a child, the two things used to be the same, Parliament and the people; but the voice of Parliament reflected the voice of the people. That is what Parliament is here for and if Parliament does not do that now, then it is Parliament which is at fault. If Parliament gets out of touch with the people, I believe it is a very dangerous state to which we should find ourselves coming, and all the warning bells ought to be ringing. The corrective action is for Parliament to get back into touch with the people. It is not right to pass the buck of responsibility back to the people. The duty of Parliament, by the diversity of its two Chambers, is to legislate. That is what Members of Parliament present themselves to their constituents for and that is why their constituents send them to Westminster. In effect, the electorate is saying: "Legislation is your job; you do that, you look after our interests however complicated they may be, and if you make a muck of it we will send somebody else to do it next time".
Here we have the most complicated Bill which, whatever our views may be on it, we all recognise was generated by the indigenous and almost ethnic diversity
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of interests and requirements as between the Scots and the English. It is going through Parliament throwing up in its wake a whole host of intricacies, complexities, unknowns and innovations. We who are privileged to sit in this Chamber, and who have the quite unique distinction of listening to the dissertations, of, for instance, the highest legal minds in the country on the impact of this Bill on our national and international law and how should or should not be amended, have come to realise just a little of what the Bill means. To those of us who have not yet arrived at the dizzy heights of my noble friend Lord Lauderdale's fourth form it has been rather like listening, as I ventured to suggest the other day, to the crack of rifle fire over our heads, and many of us have found that the best contribution we can make is to adopt a low profile.
What do we do? We then chuck the Bill back to the people of Scotland in a referendum and say, "What do you think about it?" How on earth are they going to answer that question with any degree of fairness or objectivity or knowledge? The question is not, "Do you want an Assembly?" Everyone understands that. The question is not, "Do you want to remain part of the United Kingdom?" Everyone understands that. The question is "Do you want the provisions of the Scotland Act 1978 to be put into effect?"—all Clauses 1 to 82 of it, Schedule 10 and all, and even the interpretation, as my noble friend Lord Selkirk has said this afternoon, of the Ministers of the Crown. How can the Scots, who have not had the privilege which Members of Parliament of both Houses have had of being close to the problem and hearing the arguments, answer that question reasonably?
I even venture to ask whether it is really right that Parliament should ask them to do so. I do not believe it is, because Parliament is negating its duty; it is giving back to the people the responsibility which the people have given to Parliament and which is rightly that of Parliament. Members of another place have, and have openly admitted that they have, voted in certain ways over some matters because there is to be a referendum, and by inference they might have voted in a different way had there not been a referendum. So Parliament passes over to the

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people something which Parliament knows to be unsatisfactory in the hope that it will be the people who will put the knife into it.
I register my mild and humble protest that I do not believe this to be right. Nor do I believe it is what Parliament is for. Nor do I believe that people will be voting on the detail of the Scotland Act 1978, but in many cases the problems will be distilled, as my noble friend Lord Lauderdale said yesterday, down to, "Are you for Scotland or not?" If the cause of this Bill on which we seek the advice of the Scots is the inherently different indigenous requirements of the Scots and the English, why do we deliberately exclude from such a massive and far-reaching national determination the Scots who are temporarily working abroad and the Scots who are living in England? The noble and learned Lord, Lord Wilson, seeks to alter that later. But yet we include the English who are living in Scotland and those of a totally different ethnic culture who may come from many other countries who at present happen to be residing in Scotland.
Of course, we know the reason—the simplicity of operation. If you are going to run a referendum that is the only way you can do it. But is it not really misleading, and is it not an inadequate method of determining what the Scots want? What we are doing is not finding out what the Scots want, with all their national characteristics and idiosyncrasies, but what the inhabitants of a part of the United Kingdom which starts some 300 miles distant from Whitehall want. If distance from Whitehall and the centre of decision-making is the determining factor, then one might argue that Cornwall should even be asked. But if it is the Scots who as a nation are so inherently different—and I accept that there are many arguments for this—then the Scots ought to be asked and not those who merely happen to be living in Scotland and not those who are not Scots.
It is another example of our modern inadequate computerised approach to problems. Judgment is not adequate unless it is backed by facts and figures with which you can prove your case, even if the original data from which the facts and figures resulted was itself inadequate. Facts are factual; figures are factual.
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They are uncompromising and they are soulless. Judgment and nous is abstract, ethereal and intangible and therefore, goes the argument, less valuable and less trustworthy. But politics is surely about judgment, more about judgment than about figures, and because politics is about people, and people consist of personalities, politicians should frame their proposals for the future in a way in which the personalities of the future will best be able to react, and not on a neat figure that happens to result from a simple question which was posed on one day, and the answer to which would have been different had the question been posed on another day, or had the weather been different when it was asked, or had the question been phrased in a different way.
I lament the use of the referendum in this instance, which, in my judgment, lowers the value of Parliament and reflects and admits the inadequacy of Parliament and Parliamentarians. The fact of the referendum being used in this Bill should make politicians snap their eyes open and say, "Where are we going wrong?" I would ask the noble and learned Lord, Lord McCluskey, one question. How is it intended that the result of the referendum will be disseminated to the United Kingdom? Will it be one result for the whole of Scotland or will it be broken up into regions, or will there be a diversity of results? Because one can well see the problem that might arise where certain parts of Scotland may vote one way and certain parts of Scotland may vote another way. In my modest judgment, this principle of using the referendum on this Act, which is the responsibility of Parliament, is wrong.
5.58 p.m.
Lord SHINWELL: This is a remarkable phenomenon, I must say. Why did not the noble Earl think of a speech of that kind before we decided accession to the EEC? Can he recall the debates we had before accession? Can he recall the telegrams that were sent out by the Conservative Party to Members of your Lordships' House, who rarely attended but were asked to attend in order to defeat those who were very doubtful about accession? Or is this just a speech intended—and there can be no doubt in anybody's mind that this is what the intention is—to let the Scots understand

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that, so far as the Conservative Party are concerned, they are not prepared to accept the opinion of the Scottish people? That ought to be said quite clearly out loud. It ought to be said by Mrs. Thatcher, and no nonsense about it.
With regard to this question of a referendum, if we delegate our authority to the people of this country is there anything wrong with that in the democratic sphere? Are there not occasions when at a General Election we ask the opinion of our constituents, what they think about the policy we advocate? Or perhaps it is not the kind of question that a Member of the House of Lords should answer. But those who were associated with another place, an elected Assembly, a truly democratic Assembly, frequently requested our constituents, if not to advise us, at any rate to consult with us about the kind of policy to be decided by the Government with which we were associated or by the Party of which we were members.
Now, towards the conclusion of our debates we have had a speech of this kind from the noble Earl, Lord Ferrers, every word of which was probably prepared at the Central Office of the Conservative Party. The noble Earl shakes his head as if that sort of thing never happens. Some of us do not require to be advised by people of the back-room fraternity. We know what ought to be said and we are not afraid to say it.
I should like to say a word or two about the Bill. This is not a Second Reading debate, but I wish to make some comments because some noble Lords have taken advantage of the discussion of Amendments in order to make Second Reading speeches. I have not done that. I did not like the Bill from the start. I did not think that it was necessary. I advocated Home Rule long before some honourable Members and noble Lords were born; I advocated it way back in 1918 in my first election address. I advocated Scottish Home Rule, but it was nothing to do with separation or with independence. It was a protest against social injustice for which we blamed Westminster. It was a protest against lack of funds and indifference to the unemployment and impoverishment that existed throughout almost the whole of Scotland. It was a protest based on the
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bitterness that had been built up over the years as far back as the Sutherland Clearances and the activities, marauding, pillaging, robbery and even murder, of the Scottish aristocracy. That was what it was all about. It was nothing to do with independence.
I am against independence for Scotland. I believe in the United Kingdom and I think that that is the general opinion of Members of your Lordships' House. What have we done about the Bill? When we started Second Reading many of us said: "Let's accept the principle of devolution and then consider its form and content". That is what we have been trying to do; we have been trying to improve the Bill because it requires improvement. It may not satisfy another place, but it is the best that we can do in the circumstances. It may be that the Bill will not pass. It may be that a Scottish Assembly will not be created. But inevitably whether we like it or not, and in spite of the speech of the noble Earl, and those who supported him this afternoon—many of whom never heard a word of the debate but just came in and voted in a partisan fashion, which is antidemocratic and makes no contribution to the consensus that this country needs more than perhaps anything else—if the Bill does not pass there may be more trouble in Scotland than we have ever suffered or known in the past, and we had better watch our step. I want the Bill to pass not because I like it, but because if it does not pass and we do not give to the people of Scotland something they need, some form of autonomy, then there is a likelihood, much as I dislike the prospect, of a break-up of the United Kingdom. That is what we should try to prevent.
Finally, let the Conservative Party be quite clear about what it wants. Does it want the Bill or not? If it does not want it, then do not let us have speeches of the kind that we have had from the noble Earl. It was a wrecking Amendment and there is no question about it. Let the Conservatives come clean and then the country will know where it stands. The sooner the country makes up its mind one way or the other what it wants for Scotland or what it refuses to give to Scotland, the better it will be for the wellbeing of the people of the United Kingdom. Even if the referendum concept is disliked, let the

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people decide. Far better that the people should decide than that the leaders of any Party should determine the future of the people. That is what we want.
Lord KALDOR: May I—
Lord SHINWELL: I do not want to be interrupted. I am coming to the end of my speech and if I feel a bit excited about this matter I hope that your Lordships will forgive me. After all, to have had the speeches to which we have listened, and then to have the kind of address that we have just had from the noble Earl on the Conservative Front Bench—from the Opposition, still the Opposition and an anti-democratic Opposition—is something which I dislike. I dislike it intensely and I hope that the people of Scotland will take note of that.
6.6 p.m.
The Earl of LAUDERDALE: The Second Reading speeches of the noble Lord, Lord Shinwell, are always enjoyable. The first one went back to Moses but the second one only went back to the Clearances. However, to hear the noble Lord supporting referenda, which were the means by which Hitler came to power and stayed in power, is a surprise to us all, especially those of us who have recognised and admired the noble Lord's battle for democracy and freedom all these years.
I should like to say a word about the EEC. The noble Lord, Lord Shinwell, and I were on the same side during that debate except that he never once voted on any of the Amendments which I proposed. However, there is an important distinction to be drawn between the referendum now proposed and the referendum that we had on the European Community. The latter was a referendum on whether we accepted the status quo, because we were Members of the Community at that time. The question was whether we should renege on our membership.
Here the issue is the reverse. The issue is whether we are to have something completely new. I am sure that arguments will be put forward by whoever answers from the Government Front Bench. May I say that I am not here tonight to taunt the noble and learned Lord, Lord McCluskey. I hope that he
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had a good dinner last night, and I am sorry for my impatience with him but these things happen. He lacks dinner and I have sciatica, so we become a little flustered. So when we have an answer from the Government Front Bench I hope that due attention will be paid to some of the real issues that are raised by the whole project.
First, the proposal is that the people shall vote "Yes" or "No" on a major constitutional change which has so many ramifications in terms of jobs, to take the most obvious example, and in terms of airing Scotland's grievances, to take another. It is a referendum on a whole complicated range of matters to which one must say "Yes" or "No". It may well be said that this is what happens in a General Election. However, that is not so. In a General Election we vote for a man, whether it be for his Party or not, whose approach we support, whose judgment we trust and into whose care and judgment over the next four years or so we place our destiny. In a General Election we condense into the standing of a particular Member all our anxieties on a whole range of matters from wheelchairs for the incapacitated to better drains for such-and-such a village. Therefore, in a General Election we do not attempt to decide all the complicated issues "Yes" or "No"; we choose a man, or it may be a Party, in whom we trust.
Here we have a proposal not exactly to by-pass Parliament, but in some way to influence Parliament on a particular issue which none the less has so many ramifications—so many issues about finance, government, the over manning of public services, but above all about jobs in Scotland—that they are difficult to disentangle and difficult for the public to discern. As my noble friend on the Front Bench said, here is a proposal which has the effect of coming between the people and Parliament. Why did Hitler resort to referenda? It was in order to manage the Reichstag of those days and get them under his thumb. Why have referenda been used by dictators everywhere? The answer is, for that very purpose, and this is the danger.
Having long believed that the best Socialists are merely misguided, but sometimes fearing that there may be

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baddies as well, what surprises me is that in both cases the referenda have been proposed by a Socialist Government. I always thought that at any rate the Social Democrats of the Socialists were very much on a par with us in their respect for the democratic and Parliamentary procedures; but, no—it seems that the situation is different. When I hear the noble Lord, Lord Shinwell, of all men, clamouring for a referendum I must say that I feel like a drunken man who says, "Am I or does it?"
A whole range of matters will be raised. It will be said that referenda are familiar to democratic processes elsewhere. No doubt it will be said, for example, that in some parts of this country the licensing laws provide for a local referendum on issues such as whether a pub shall be opened or not. It may be said that referenda are used in Northern Ireland. They are, for particular cases. It will be said that the United States and the Australian Constitutions, to quote but two, make provision for referenda. Indeed, they do; but on narrow, particular issues—Do you, or do you not, want an amendment to the Constitution in a particular shape? However, this is a referendum on a whole range of matters; for example, on the one hand, the voicing of local grievances in Scotland, to which people may want to say, Yes. On the other hand, it could be on the extra expenditure and so on, and people may want to say, No. It may be that on the grounds of a third year of government people will want to say, No; on other matters they may want to say, Yes. Therefore, in the proposed referendum there is to be a vote on an enormous range—a kind of encyclopaedia Scotica, if I might use that expression—of matters which are interwoven, difficult to disentangle and, above all, exceedingly difficult to comprehend.
Because they are difficult to comprehend I think we are entitled to ask the Government what ideas they have in mind for conducting this referendum. For example, will there be any arrangements to control the financial expenditure of those who campaign for "Yes" and those who campaign for "No"? Will there be a Government grant to either side? Will there be some system of control to make sure that neither side spends beyond that amount? Will there be some rationing
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of time on televison? Will some arrangements at least be proposed—they cannot be imposed—to the Press in order to ensure an absolutely equal balance between the two cases?
What about publication of the results? Will the results be taken as a whole? Everybody knows that the votes of Strathclyde are the votes of half of Scotland. Having followed the noble Lord, Lord Shinwell—and there is no better examplar—I think I can stray a little wide on this clause and go beyond its exact limitations. One of the worries that one has about the Bill is that inevitably the voting power of Strathclyde will outweigh the voting power of the under-populated Highlands and Borders. Together Strathclyde, Central Scotland and the Lothians are an urban sprawl—nobody can deny that—and in a referendum their voting power is bound to be stronger than that of the Highlands, the Borders and the South-West.
So when the result of the referendum comes to Parliament for eventual judgment and executive decision, the question must arise whether the results will be declared for Scotland overall or region by region. Possibly I was absent when the noble and learned Lord, Lord McCluskey, answered this question, but it will be good to have the answer again. I see from his eagerness to be on his feet that he obviously has some sort of answer to give. However, what arrangements will there be for free post for the two sides? In an election each candidate has the chance of sending round an election address for free. Will that happen in this case? Will the Government produce a document and will their opponents be able to produce and distribute a document, and be reimbursed the cost?
These issues are of great concern. Above all, on the declaration of results regionally, will the views of Orkney and Shetland be smothered by those of the North?—because they are not Highlanders. They are not Scottish and do not regard themselves as Scottish; they regard themselves as Norse. Will the results in Orkney and Shetland be declared separately and be available separately? As has been said, this is an advisory referendum upon which the Executive will decide its course of action. In order for the correct decision to be taken it is most important

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that there should be a proper breakdown of the figures, at least region by region. I have taken up more time than I intended. I have tried very hard not to provoke anybody but the noble Lord, Lord Shinwell, who is always worthwhile listening to when on his feet. These are matters which should legitimately be raised on the clause stand part debate.
6.7 p.m.
Lord KALDOR: I hesitate to criticise the noble Earls, Lord Ferrers and Lord Lauderdale, on a matter of constitutional doctrine. However, I regret to say that they both displayed singular ignorance on the issue of referenda in connection with the British Constitution. If they had read the greatest classic on the matter of constitutional law—Dicey's Law of the Constitution—they would have known that the only reason that Britain, unlike other countries, did not use the instrument of the referendum was because it had the instrument of the mandate, which was considered to be a superior kind of referendum throughout the 19th century.
The instrument of the mandate meant that if Parliament wanted to do something which your Lordships' House felt was not in accordance with the will of the people, by denying the other place the legislation your Lordships' House could bring about a dissolution. Moreover, it became a constitutional doctrine that anything for which no specific mandate was given at the last General Election could not be introduced in Parliament without a reference back to the electorate. The last occasion on which this was done was when Stanley Baldwin as Prime Minister dissolved Parliament in 1923—in spite of the fact that the Tories had an absolute majority over all Parties—in order to introduce protection, because protection did not form part of the Election Manifesto of the Conservative Party in the previous Election.
But long before that there were difficulties about the use of the specific mandate—difficulties which arose out of the simple issue that once you have an Election, that Election cannot be confined to a single issue. The people vote for or against a Party; for or against one or another kind of Government. So the 19th century doctrine of the specific mandate faced increasing difficulties. It was for that
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reason that the Leader of the Conservative Party, Arthur Balfour, recommended the introduction of a referendum as an additional instrument of the British Constitution. I think that the noble Earls should certainly have been aware of this fact and not regarded the referendum as some new-fangled Socialist invention, or as an instrument of dictators like Hitler who, as far as I know, never held a referendum. He held elections. Switzerland has a referendum almost once a month on one issue or another, and Switzerland is certainly not a Nazi dictatorship.
The Earl of LAUDERDALE: I appreciate that. The noble Lord says that Switzerland has referenda once a month on a particular issue. This is what bothers us. This is not on a particular issue; it is on about 150 issues.
Lord KALDOR: This is on a particular issue as to whether Scotland should have a separate Assembly and powers which are exactly circumscribed and described in the Act. The Conservatives recommended a referendum on several occasions. I could quote many instances. In fact some instances are more recent than others. Certainly throughout this century it was a constitutional innovation that was more associated with the Party of noble Lords opposite than any other Party.
It is really connected with the fact that we live in a democracy, and ultimately it is the people who must decide how they should be governed. It is the people who must decide whether or not they are in favour of a particular measure. This cannot, as it was thought in the 19th century, always be decided by a special election, which used to precede the passing of various Reform Acts and gave a specific mandate to the succeeding Parliament to introduce the reform. As you know, the Parliament Act 1911 was the result of the fact that your Lordships' House, for the first time for more than a century, refused to abide by the results of an Election which gave a specific mandate to then Prime Minister, Mr. Asquith, for the reform of Parliament's powers. I do not wish to say any more. I wanted only to point out that this highly one-sided and biased view on referenda is something that is untraditional. This matter has been thoroughly

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discussed by the highest authorities; it was strongly recommended by Dicey in the Introduction to the Fourth Edition of the Law of the Constitution, published in 1914. It was recommended by Arthur Balfour in 1910, and I believe by other Conservative leaders also.
6.23 p.m.
Lord McCLUSKEY: I rise to my feet at this stage because I want to make it clear that the noble Earl, Lord Ferrers, who spoke on the Question, That the clause stand part, does not propose that we should not have a referendum. Indeed, that would be an astonishing proposition if he were to put it forward, because I am reminded of what the noble and learned Lord, Lord Hailsham, said at Second Reading on 15th March at column 1444:
"I believe that we should give it a Second Reading and that it should go forward in an amended form. My first reason is this: I do not blame the Government for this at all, but I think the country and Parliament have got themselves into a position in which a referendum has become the only way of resolving this problem, …".
How can we reconcile that statement with the carefully prepared speech which has been made by the noble Earl, Lord Ferrers? Indeed, how does he reconcile that speech with the speech made by the right honourable lady the Leader of the Conservative Party, at the Conservative Party Conference, where she saw fit to recommend—and, as I understand, it was adopted as official Party policy—the use of the referendum as an instrument in some forthcoming battle with the trade unions, if that arose.
I find the speech of the noble Earl quite astonishing and unnecessary because he does not intend to ask this Committee to remove Clause 80 from the Bill. I have risen to my feet at this stage because I suspect, although it is for the Committee to judge, that the Committee have heard enough debate on this particular matter.
I was asked some particular questions. There will be a separate count of votes in each region and islands area. The Chief Counting Officer will also provide the count for Scotland as a whole. It is the Government's firm intention to publish all the results. This accounts for the appointment, as we can see from Schedule 17, of counting officers for each region and islands area, and for the certification of
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the counts in their areas to the Chief Counting Officer. That can be seen in paragraph 8.
The noble Earl, Lord Lauderdale, asked me a number of questions, and the answers are these: it is not intended to provide any public funds to any campaigning organisations. Of course that would require legislative provision. There is no legislative provision for this, and indeed broad-based organisations representing both sides of the argument have not truly emerged. I do not want to tempt the noble and learned Lord, Lord Wilson of Langside, to rise to his feet; there are organisations, but not quite of the same character as emerged for the EEC referendum in 1975.
There will be no control of expenditure. It is just not possible to try to control expenditure at large. Accordingly, the Government have no proposal in relation to this. It is not intended that the free post facility referred to by the noble Earl will apply in relation to the referendum. That would be an expenditure of public funds and is covered by my answer on the first point. So far as broadcasting time is concerned, that is a matter for the broadcasting authorities. No doubt they will exercise their usual discretion and judgment in these matters, and I am sure that both sides of the argument will get a fair and reasonable airing in the broadcasting media.
With regard to Orkney and Shetland, as in the Bill as it stands—and we have had a number of general observations about this—there can be no question of the Orkney and Shetland voters being swamped by the rest of Scotland. I refer to Clause 80(3). I hope we can now pass on to other matters.
Lord HARMAR-NICHOLLS: The noble and learned Lord indicated that he wanted to get on, and we all do. But I happen to be a great believer in having the record straight and balanced, and there are one or two things that ought to be said in order to have the record right. The noble and learned Lord has answered specific questions, and, I should have thought, to some satisfaction, on the way the thing will be done.
But I do not think that one can ever let a speech by the noble Lord, Lord Shinwell,

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go because he is one of some authority and is held in great respect, and what he said is on the record and can have some impression outside as well as in Committee. The noble Lord is delightful, and he has on occasion got a low boiling point, and he reached it today rather surprisingly on this. He said two things that I do not think ought to be allowed to stand alone.
He rather suggested that noble Lords on this side of the Committee had gone into the Lobby and registered a vote without having listened to the argument, and knowing nothing about it. I should think that any fair-minded observer would say that if there is one side of the Committee who have been able to whip people into their Lobbies without sitting in here and listening to the debate, and certainly not taking part in the debate, if one looks at the record, then the weakness is on the other, and not on this side of the Committee. I think that that ought to be said.
The noble Lord also said that he felt that noble Lords on this side of the Committee who had gone into the Lobby had done so slightly flippantly, without knowing or caring much. Of course we do not know what are the innermost thoughts of any of our colleagues, and we shall never know, and it is stupid to attempt to probe. But if one was to make a comment on instinct, I would say that there are more noble Lords who have gone into the Government Lobby doubting in their innermost thoughts whether they were doing the right thing when they were doing it, than has been the case with noble Lords on this side of the Committee when they have gone into the Lobby to support Amendments. That can never be proved, but I merely wanted to have that on record to balance the rather effective comments that the noble Lord, Lord Shinwell made, because if a balance had to be struck I would have felt that we were perhaps nearer purity than our opponents on this occasion.
As regards the referendum, it looks as though that has come to stay in some form or another. I think it is a bad thing that that is the fact, because it could undermine Parliamentary government. I have always believed that you should never give the Government of the day, of whatever complexion an alibi. Once the Government of the day have taken on the powers of the Executive they
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are entitled to the credit when things go right and to the odium when they go wrong, without giving them an alibi to excuse their inefficiency. The risk of referenda is that we may have inefficient Governments excusing their failures by saying, "We would not have done that but for the referendum". That is what I mean when I speak about providing an alibi element which in my view will interfere in the long run with the true effectiveness of Parliamentary government.
That is really only a comment on the irrelevancies that have been brought into our debate. The Minister answered the points that mattered, about machinery, and I would like to feel, without sounding pompous, that the record is straighter now, following the speech of the noble Lord, Lord Shinwell, than it was before I dared to make these comments.
Lord DRUMALBYN: There are two points that I wish to make before we part with the clause. First, I regret that the noble Lord, Lord Kaldor, is no longer in his place. We accept from him that Arthur Balfour was in favour of establishing a system of referenda, but we on these Benches feel that it would be unfortunate if referenda were to pop up here and there in odd Bills, especially if they were only of a consultative nature. If we are really to have a system of referenda we should legislate for it properly and establish a system by which particular questions can be put to the people of the country or to only some of them if only some of them are primarily concerned.
My noble friend Lord Ferrers has done a service by raising this matter; it would have been quite wrong for the Committee to have let the clause go through without discussing the circumstances of a referendum which is solely consultative, which appears only in this Bill and which leaves us in a state of uncertainty as to what will happen as a result of it. As my noble and learned friend Lord Hailsham of Saint Marylebone said at an earlier stage and as the noble and learned Lord, Lord McCluskey, confirmed, we have the referendum here and of course we must accept it at this stage. But surely that is no reason why we should not discuss the matter, and I am therefore bound to support my noble friend when he expressed his views on the subject.

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I thought Lord McCluskey touched very gingerly on the question of the Orkneys and Shetlands. He may have left the impression—did he intend to do so?—that subsection (3) as it stands is acceptable to the Government and will remain in the Bill. I think I noted his words correctly when he said that in the Bill as it stood there could be no question of swamping the two groups in the Islands area. Under the Bill as it stands, that is so; is he saying that the Bill will remain unchanged so far as the Government are concerned? I got a rather different impression from what he said at an earlier stage, but if the Government have now made up their mind about it, the Committee is entitled to know.
Lord LEATHERLAND: In case it was not heard earlier in the debate, it is a fact that Mrs. Thatcher has personally and publicly pronounced in favour of the referendum as a matter of political policy. It therefore grieves me to hear noble Lords in positions of authority on the Benches opposite proving themselves to be unfaithful to Mrs. Thatcher.
Lord McCLUSKEY: I am asked to comment on the phrase "the Bill as it stands". I was not intending to depart from anything I said on a previous occasion because the position is still very much the same and as soon as we can inform your Lordships' House we will do so.
Clause 80, as amended, agreed to.
Schedule 17 [Referendum]:
6.35 p.m.
Lord WILSON of LANGSIDE Lord WILSON of LANGSIDE moved Amendment No. 392:
Page 89, line 18, at end insert ("being the same day as that on which the referendum provided for in the Wales Act 1978 shall be held").
The noble Lord said: This is a simple little Amendment which I am sure will arouse little dispute and certainly no heat. It is designed to secure that if, unhappily, we must have a referendum under the Scotland Bill, it will be held on the same day as the referendum under the Wales Bill. The reasons are scarcely capable of elaboration and will be obvious to all. There is widespread acceptance of the
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view that events of this kind tend to influence one another and that it is desirable that the two referenda should be held on the same day so sa to minimise so far as is humanly possible the influences which are not directly relevant to the issue posed in each of the questions under the two Bills.
Lord McCLUSKEY: It has always been the Government's intention that both referenda should be held on the same day and there has been no change of policy in this regard. This was made clear by my honourable friend the Minister of State, Mr. John Smith, in another place when he spoke on 21st November 1977 in reply to a Question from Mr. Dafydd Wigley, and that was subsequently underlined by my right honourable friend the Prime Minister in an interview with the political editor of the Western Mail in December 1977.
Indeed, the Government's intention to have both referenda on the same day was made absolutely clear in the Scotland and Wales Bill, where there was specific provision to that effect. Now that we have two separate Bills, in the Government's view it would be neither reasonable nor realistic to include such statutory provision because there can be no absolute assurance that both will reach the Statute Book at about the same time. In the event, perhaps the very unlikely event, of any substantial gap opening up between them, the Government would need flexibility to consider the situation as it then was.
It would in the Government's view be unreasonable to introduce a requirement the effect of which would be to defer action on the referendum on the Scotland Bill until such time as the Wales Bill was enacted. The Government's confident expectation is that both Bills will be enacted before the Summer Recess and we welcome this opportunity to confirm that the Government's policy is to hold both referenda on the same day as soon as reasonably practicable after that.
Lord WILSON of LANGSIDE: Do I understand that the noble and learned Lord commits the Government to doing everything reasonably practicable to ensure that the two referenda are held on the same day? Frankly, I am reluctant

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to withdraw the Amendment—I have not heard any expression of view from other noble Lords—unless there is a fairly firm undertaking on the part of the Government, because this is an important matter. The alternative, of course, is for me to raise the issue again on Report.
Lord HARMAR-NICHOLLS: The Minister made it quite clear that it was the Government's intention to hold both referenda together, and he said that in the original joint Bill that was provided for. However, the noble and learned Lord then reserved the right, which one understands, that if for some reason this Bill has gone through and the other has not, the Government would want to look at the situation in the light of that event. There seems to be a slight danger here. May I ask the noble and learned Lord to go so far as to say that if the Scotland Bill became an Act before the Wales Bill and the Government intended to try to make the Wales Bill an effective Act, the Scotland Bill would be held up until the Wales Bill had gone through? If he has said that they may not proceed with the Wales Bill and there will be only one, that is all right. However, if one wanted to be entirely pernickety about this, one could foresee a situation where it would be justifiable to delay one Bill in order to give the freedom of action to have separate votes. Is there any way in which the noble and learned Lord can answer that point without charging me with being over-suspicious, as he has done in the past?
Lord McCLUSKEY: It is difficult for me not simply to repeat the substance of what I have said. The Government's expectation, their wish, their hope, is that both Bills will reach the Statute Book at the end of July, or certainly before the Summer Recess. It is the Government's policy and intention to have both referenda on the same day. However, we must envisage the possibility that there may be a substantial gap, or that some terrible disaster may overtake the Wales Bill. In those circumstances, it would be silly to have in this Bill—and on the Statute Book—a provision which tied the holding of the referendum in Scotland to the holding of a referendum in Wales, which might have to be postponed in the kind of circumstances I have mentioned. So I restate the Government's policy and
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intention, and I should have thought that that would satisfy the Committee, as well as the noble Earl, who seems to be nodding his approval.
Earl FERRERS: I was merely thinking that the noble and learned Lord, Lord McCluskey, had gone as far as anyone could to meet the point of the noble and learned Lord, Lord Wilson of Langside. If one was being pernickety, I suppose one could say that the Amendment was defective because it assumes that the Wales Bill would become an Act; but if it does not become an Act then this provision would not be right in this Bill. I accept the reasoning of the noble and learned Lord, Lord Wilson of Langside, in his proposal. What obviously lies behind it is that if the referenda are held on two different days, the result of the first referendum will very likely affect the result of the second. That is why it is desirable to have them on the same day. If the noble and learned Lord, Lord McCluskey, says that he thinks that this is what the Government intend, I should have thought that that would meet the point of view of the noble and learned Lord, Lord Wilson of Langside.
Lord WILSON of LANGSIDE: Perhaps I can best expedite the progress of your Lordships' Committee by withdrawing the Amendment at this stage. I shall look at what the noble and learned Lord has said, and consider the position later. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.43 p.m.
Lord WILSON of LANGSIDE Lord WILSON of LANGSIDE moved Amendment No. 290:
Page 89, line 26, at end insert—
("(c) persons of voting age whose domicile is Scottish but who are resident in the United Kingdom outside of Scotland and who shall have registered their names in a manner to be determined by the Secretary of State.").
The noble and learned Lord said: I regard this as a more important Amendment than the previous one. I am conscious of the need for haste at this hour, and I shall come straight to the point as quickly as I can. If, unfortunately, we are to have a referendum under this unhappy Bill, let us secure that, as far as

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possible, all true Scots, at least within the United Kingdom, shall have the right to express their voice in that referendum. The provisions of the Bill, as they stand, do not secure that right. As your Lordships appreciate, the provisions of the Bill are to the effect that those resident in a constituency on the qualifying date, and who are over 18 and not subject to any legal disability, and who are either British citizens, or citizens of the Republic of Ireland, will be entitled to vote in the referendum. A British citizen for these purposes is a citizen of the United Kingdom and Colonies, or of any Commonwealth country.
Inevitably, there will be large numbers of Englishmen and Irishmen resident in Scotland, as well as many citizens of other parts of the Commonwealth, who will be entitled to vote under this measure, which, as has been acknowledged on all sides, will have—and here I almost say incalculable consequences, but unfortunately on the view I take of the Bill the consequences are all too calculable. In this situation, to deny to the true Scot who happens temporarily to be outside his homeland, the right to vote is surely so palpable an injustice that I need not delay your Lordships on the point further.
I have chosen domicile as the criterion, and I appreciate that this is open to some comment and possibly criticism; perhaps we will hear of that from the noble and learned Lord when he replies. Domicile is held in the country which in fact is, or which by law is determined to be, an individual's permanent home. One's domicile, as I undertand it, indicates and defines an individual's personal law, the law by which his status, his succession, and his personal rights are regulated. It was with that in mind that in my Amendment I suggested that domicile should be the test.
My Amendment limits the effect to those resident within the United Kingdom. One appreciates that there are many true Scots all over the world. I have limited it to those resident within the United Kingdom to forestall the familiar argument from the Government Front Bench that the administrative difficulties would be insuperable. I do not think that they should be under the Amendment I propose. I beg to move.
Lord KINROSS: I have great sympathy with the Amendment proposed by the noble and learned Lord, Lord Wilson of Langside. I agree that it is sad that Scots resident in the United Kingdom outside of Scotland should be disfranchised when it comes to a referendum on a matter which is of such profound importance to all Scots, wherever they are resident. The Amendment extends to persons who are not only resident in the United Kingdom outwith Scotland, but whose domicile is in Scotland, and who have registered their names as described in the Amendment. A person's domicile is not readily ascertained, because it depends on a number of factors, such as the nationality of his parents; the country, or countries, in which he has lived since his birth; the reasons why he has lived furth of Scotland, if he has, and if Scotland is his domicile of origin acquired from his parents. There must also be considered the circumstances in which he lost his domicile of origin and acquired a domicile of choice; whether he lost that domicile of choice and reverted to his domicile of origin and acquired another domicile; and, lastly, whether he considers himself to be a Scot, or an Englishman, or of any other nationality.
Perhaps I have said enough to illustrate that each case has virtually to be treated on its own merits. I wonder who is to adjudicate upon the thousands of claims which will be submitted, and how long this will take. The possession of a Scottish domicile is of importance where children claim their legal rights peculiar to Scotland on a parents' estate, and in such cases the courts are often asked to decide the question of domicile. I was involved in what was, and I think still may be, a leading case on domicile. The case was raised by a daughter against her deceased father's trustees. It started in the Court of Session in 1938, and ended a few years later in this House, after vast expenditure on legal fees, although I shared in those. More commonly, domicile is of importance in divorce cases.
Since the 1st January 1974, one of the grounds upon which the Court of Session has had jurisdiction to entertain an action of divorce is if either party is domiciled in Scotland. Before that date it was the domicile of the husband which gave the jurisdiction, and the domicile of the wife followed that of her husband. The other ground upon which the Court of Session

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has jurisdiction is if either party was habitually resident in Scotland throughout the period of one year ending on the date when the action was begun. That is the Divorce Act 1973. In either case, however, the court has before it sworn evidence given by the pursuer in court or by statutory declaration, under new rules which were recently introduced. If Scots who reside in England wishing to exercise their votes in terms of this Amendment have to establish their domicile by sworn evidence, presumably to the appropriate returning officer, who might well not be a lawyer qualified to adjudicate on matters of domicile, noble Lords will see that this Amendment could cause considerable confusion and great delay. For this reason, I cannot support the Amendment tabled by the noble and learned Lord.
6.52 p.m.
Lord HOWIE of TROON: Browsing through Hansard the other day I noticed that it had become customary, or was about to become customary, for maiden speeches to be made during the Committee stage of this Bill; and one was made one evening last week. I propose to follow that new tradition and support the noble and learned Lord, Lord Wilson, in this Amendment. The referendum—and the idea of a referendum is one which I strongly support—is a matter for the people; and the problem here, I suppose, is to determine just who the people are. They are, I think, clearly those who live in Scotland; but, as Lord Wilson said while moving this Amendment, there are also true Scots living elsewhere, and true Scots cannot, I think, be left out of the decision which faces their country and their countrymen. True Scots must be included, whether they still live where they were born, in Scotland, 'or whether, like myself and, I think, 700,000 others, they live in England, in Wales or in Ireland—they have come to live out of Scotland but within the United Kingdom in the context of one united country.
The problem as I see it, and the peculiarity of the problem, faces me and my like in fairly domestic terms. I have lived in London for some reason; I am on the electoral roll here but not in Scotland. So as the Bill stands I would be excluded from this matter, which I regard as just as important to me as it is to any other Scot, no matter where he lives.
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The problem becomes even more piquant when I reflect that my daughter, who now lives in Edinburgh but who was born in St. Pancras—admittedly as near to the end of platform 15 as we could arrange at the time—will have a vote in this referendum. It happens that my daughter is a very cool, reflective and intelligent lady, and I am quite sure that she will vote in a manner which is agreeable to her father, though I doubt whether that will be the reason for her vote. I go further. My niece also lives in Edinburgh. She is not quite so well qualified as my daughter, as she is merely half Scottish. Her mother, unfortunately, is English so no blame attaches to her for that since she was not at fault. So my niece, too, will have a vote in this referendum. That is merely because these girls live in Edinburgh, not because they have claims to Scottish nationhood, if that is the correct term.
They care about this matter—of course they do—but they care about it no more than do I or my brother, their respectve fathers. So why should they have a right to vote which their fathers are denied? At least these girls are Scottish, or at any rate part Scottish, whereas, as the noble and learned Lord, Lord Wilson of Lang-side, said in moving this Amendment, there are numerous people on the electoral roll in Scotland who are not Scots but are English, Welsh or Irish. I notice that a Scottish National candidate in the local elections a week or two ago was in fact a Pakistani. There is no harm in that, but it is a little odd that a Pakistani-Scot, so to speak, should have a vote because he lives in Scotland, whereas a true Scottish Scot should have no vote merely because he happens to live in a Hampstead Garden suburb.
So I say that natural justice should be our concern in this matter, and natural justice clearly points to an extension of the franchise along the lines suggested by the mover of this Amendment. It may be that, as the noble Lord who spoke last has said, there will be some problem over domicile. I am not myself a lawyer, nor have I any hopes of ever being one, but I do not think that the definition of "domicile" should stick us here. This is clearly a matter for the Government. They can view the principle embedded in this Amendment, and if they bow, as I

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think they should, to natural justice they will accept that principle. They may well feel there is a problem over the word "domicile", and they may come up at the Report stage with a form of words which satisfies your Lordships as a whole, but let me say merely this. It is my hope, as a Member of your Lordships' Committee and House, to he loyal to the Party which put me here, but unless we get some undertaking from the Government that they will consider this matter with a view to proposing at Report stage something along the lines on which I have been speaking, I shall certainly follow Lord Wilson into the Lobby in support of his Amendment.
Lord CAMPBELL of CROY: I should like to congratulate the noble Lord, Lord Howie of Troon, upon his maiden speech in the Committee stage of this Bill; and, as he has indicated, he is very well qualified to speak on this subject. He has spoken with wit and fluency, and I certainly sympathise with the sense of the Amendment and with what he has said. I am sure I speak on behalf of all other Members of your Lordships' Committee in congratulating him upon a very fluent maiden speech and upon his confidence, brevity and clarity. I remember him, of course, from when he, as a Scot, represented an English constituency in another place, so of course he is fully aware of the problems here.
But at this stage may I just add to the debate on this Amendment that I am myself very conscious of the difficulty which my noble friend Lord Kinross has pointed out. He is a lawyer who has practised in Scotland for many years. He has given us one example of a case of domicile taking years to be proved. Although I am not a lawyer myself, I am aware that in some cases to determine it is a very difficult matter, and it certainly takes time. I would say that if this Amendment were adopted it would produce the most enormous number of cases which would be very difficult to decide. No doubt the noble and learned Lord may think of another way of trying to identify Scots who are working or are resident in other parts of the United Kingdom, and not in Scotland, who would wish to take part in this referendum, and who, under the terms of the Bill, do not have the opportunity.
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I am fortunate in that for local government purposes I am on a register in Scotland, and my domicile is in Scotland. So I have no problem here; nor do many of my noble friends on this side of the Committee, who also have their homes in Scotland. But I am very much aware of the wishes of Scots who, for reasons which they cannot help, cannot be on a register in Scotland and who, therefore, cannot take part in a referendum when it comes. I must advise the Committee that I see enormous difficulties such as have been described by my noble friend Lord Kinross if the Amendment which the noble and learned Lord has put forward is adopted.
Baroness STEDMAN: It might be convenient if the House were now to resume. I know that there are several other speakers who wish to speak on this Amendment; but we have urgent business to deal with in the dinner break. I therefore beg to move that the House do now resume.
House resumed.

INTERNATIONALLY PROTECTED PERSONS BILL
7.1 p.m.
Lord GARNER: My Lords, I beg to move that this Bill be now read a second time. The Bill is designed to enable the United Kingdom to ratify the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents. It is non-controversial, I hope, and I therefore trust that it will be regarded as not inappropriate that the Second Reading should be moved from these Benches. By a happy coincidence it was sponsored in another place by someone with whom I was closely associated some time ago and he held the record—and I think it may be unique—in that place of being the last on the ballot and the first past the post; but he had a somewhat easier task than I have, since the Bill went through the other place "on the nod", and, while I trust we shall treat the matter less cursorily, I hope that we shall show equal unanimity in this House.

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The Convention was adopted by the United Nations in December 1973 and signed by the United Kingdom in 1974; it is already in force and to date sonic 31 States are signatory parties. The purpose is to provide an international framework which will ensure that anyone who murders, kidnaps or seriously attacks an internationally protected person will not find a safe haven in the territory of any State party to the Convention. Internationally protected persons are defined as Heads of State, Heads of Government, Foreign Ministers, representatives of States or international organisations; that is to say, all those who by virtue of their duties are peculiarly susceptible to terrorist attacks.
In the light of the grisly events of the last few weeks in Rome, no one needs reminding of the inhuman menace of terrorism; but it is not only a remote possibility affecting foreign countries, three members of our own Government Service having in recent years been victims of terrorism. The first and most tragic example was Christopher Ewart-Biggs, the Ambassador in Dublin, the second Sir Geoffrey Jackson who was kidnapped in Uraguay, and the third, James Cross who was kidnapped in Montreal in 1970. I knew all of them personally and the last-named is, indeed, a close friend of mine. Here in London only last year, the former Minister of he Yemen Arab Republic and his wife were murdered outside the Royal Lancaster Hotel. The Convention seeks to combat such terrorist attacks. The provisions of the Bill are, I hope, adequately set out in the Explanatory Memorandum to the Bill. I trust that noble Lords will not wish me to go into great details for some of them are of considerable legal complexity. I shall merely draw attention at this stage to what I consider are two important innovations in this legislation.
The first is that the Convention requires States to make punishable under their own law serious attacks on protected persons. All the offences covered in the Convention, with one exception, are already crimes under our law. One new offence is created and it is the only one; that is, the offence of threatening to commit one of the other offences. This is provided for in Clause 1(3). The Convention also requires States to establish extra-territorial
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jurisdiction over the offences it covers so that if an offender flees to their country he may be punished even though the crime may have been committed at the other end of the world.
The Convention requires States to consider prosecution of a fugitive offender if he is not extradited but at the same time States are required to make extraditable the offences covered. The principle therefore is one of "Extradite or prosecute!". That is a very important one because so often the crime is committed in a country other than that of the offender, who then seeks refuge in yet a third country. Clause 3(1) ensures that the new offence of threats is an extraditable crime under the Extradition Act 1870 and the Fugitive Offenders Act 1967. There is a further interesting point about extradition. This is that extradition may take place only when the United Kingdom has an extradition treaty with the State concerned. But the present Convention follows the precedent set in The Hague and Montreal Conventions on Air Piracy by providing that where no extradition treaty exists the Convention itself may be considered a treaty for the purpose of extradition for the offences named.
Consequently, Clause 3(2) of the Bill provides that, where no extradition treaty exists with a State party to the Convention, an Order in Council may be made under the Extradition Act applying that Act to the State concerned. This will enable the extradition to that State of a fugitive accused of an offence covered by the Convention. I should emphasise that the traditional safeguards governing the return of fugitive offenders will still apply; we are not binding ourselves to return a person to a State merely because that State asks for extradition in any circumstances. To the extent that I have already indicated, the Bill extends the opportunity for extradition but it does not change in any respect the procedures in our own courts with their attendant safeguards.
Finally, my Lords, there are perhaps two general observations that I may make. There are two questions which may well be asked. The first is this: Why should this legislation merely apply to diplomats; what about the ordinary member of the public? I think that the simple answer is that, as I have already explained, internationally protected persons are, by

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the very nature of their duties, in an exposed position. They are regarded as symbols of authority and, as recent events have shown only too cruelly, they are very obvious targets for terroristic attack. In any case, I understand that it would be a completely new departure to introduce extra-territorial jurisdiction for all acts of violence, and it would be quite impracticable to expect to receive international co-operation on that.
The second general question, which perhaps I might attempt to answer is this: Why cannot the problem of terrorism be tackled more comprehensively and in a more simplified way? After all, we had the 1970 Hague Convention on hijacking and the Montreal Convention the following year on other offences connected with aircraft. There is the Convention on the suppression of terrorism on which we have recently passed legislation in this House. That is confined to Member States of the Council of Europe. We know that there are additional discussions going on all the time in the United Nations, the EEC and in other fora. Now there is the present Bill. All I would say on this is that progress depends on the degree of cooperation that can be secured with all foreign countries, and that we have to tackle as much of the problem as we can and in the time available.
I am satisfied that all the efforts that are being made are directed to this one central aim of combating terrorism. I am quite sure we wish to play our part in this. The Bill forms part of the general structure and I commend it to your Lordships. I beg to move that the Bill be now read a second time.
Moved, That the Bill be now read 2ª.—(Lord Garner.)
7.12 p.m.
Baroness ELLES: My Lords, I know that the House will wish me to thank the noble Lord, Lord Garner, for introducing this Bill so clearly and so lucidly, particularly since the Bill went through "on the nod" in another place and we had no other guidance as to its meaning, intentions and effects. So we are particularly grateful to the noble Lord who has taken so much trouble in explaining the provisions of the Bill.
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It puts into effect in domestic law obligations which have been undertaken by the United Kingdom in ratifying recent conventions such as the Vienna Convention on Diplomatic Relations, the Convention on Consular Relations and the New York Convention on Special Missions. So this Bill is very welcome. The provisions for co-operation with other States ratifying the Convention are of course particularly welcome because, as the noble Lord has pointed out, it is quite clear that one is only able to combat international terrorism by international measures and by exchange of information, though all of this is subject to certain practical limitations which are only too obvious.
The noble Lord has referred to the principle of "extradition or prosecute". Obviously, we will not be debating that now because it was debated when the Suppression of Terrorism Act was going through your Lordships' House. It is worth pointing out that there is no reference in the Bill or the Convention to the right of political asylum in so far as it is a right. This is of course questionable; it is certainly not a general principle of international law, as some countries such as the Republic of Ireland from time to time claim that it is.
In the Bill there is no reference to political asylum, but I assume from the wording of the Convention that an alleged offender would not be able to claim that the offence he had committed is a political crime and therefore that he should not be returned. Article 7 in the Convention speaks of a State party not extraditing an alleged offender, "without exception whatsoever and without undue delay". I presume that this means that an offender would be prosecuted in this country if he claimed that the crime was a political one.
There are two points I should like to raise which perhaps are Committee matters, but I am sure the noble Lord will want the Bill to go through easily and quickly. I have mentioned these issues to him and, with the permission of the House, I shall refer to them now. The first is on the meaning of the word "intentional" which is referred to in the first line of Article 2 of the Convention. The intentional commission of an act, I understand, implies that the offender knew

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the status of the person whom he was attacking; whereas, in Clause 1(4) it says:
"For the purposes of the preceding subsections it is immaterial whether a person knows that another person is a protected person".
In the International Law Commission's report of 1972 this point is stressed on page 95. I shall not take up the time of the House now in reading the relevant paragraph, but if this matter is raised in Committee I shall of course give the necessary reference. This is a matter which should be considered.
The second issue is the definition of "United Kingdom or elsewhere". "Elsewhere" seems to be a rather cryptic term to cover aircraft, ships, hovercraft and so on, which are referred to specifically in the Convention and which are spelt out in the Suppression of Terrorism Act. I wonder whether "elsewhere" is a sufficient definition to cover all these various places where an alleged offender could in fact be apprehended. Anybody who has been involved in drafting these documents—particularly at United Nations level—will know how extremely difficult it is to find sufficiently technical terms to cover the meaning intended by the members of various delegations—in this instance, of course, it is the Six Committee—which can also be transferred and translated into the many systems of the United Nations. Nevertheless, I thought that these two points were worth raising. I feel that these matters, on the face of it, do not interpret in the Bill the intention, as I understood it, of the Convention.
Regarding extradition, the principle contained in the Bill is a departure from the established one that one does not extradite anybody to a requesting State unless there is an existing arrangement. The noble Lord has very rightly drawn attention to this new departure in the Bill. However, from the point of view of practicality I am not sure that this procedure is very satisfactory. If ratification of the Convention will itself constitute an extradition arrangement in regard to crimes contained in Clause 1 of the Bill, nevertheless, there is a necessity under the Bill to have an Order in Council before extradition can be effected. I do not think an Order in Council can be effected from day to day; it takes time to get through both Houses. This would mean,
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therefore, that if somebody were apprehended they would presumably have to wait until these procedures are gone through. I wonder whether this is a very satisfactory way of dealing with this problem.
It is worth recalling that in Clause 1(5)(b) there is reference to a person's entitlement under international law to special protection from attack. These are not idle words. They are a specific undertaking by Governments ratifying this Convention that they recognise and accept their obligations to internationally protected persons. They therefore show the need for appropriate and effective measures for the protection and prevention of the type of crime covered by the Bill.
It is not however, either by international law, by municipal law, by ratification of treaties or the passing of legislation in our domestic law—although they indicate a climate of consensus that we wish to co-operate—which will successfully combat national or international terrorism. It is only by having a strong, effective efficient police force, with wages commensurate to their tasks and with the risks that they are daily having to face, to say nothing of the physical harm that our police force and other police forces are having to suffer in the normal course of their duties. It is therefore idle for us to pretend that this Bill is going to do anything unless the Government will at the same time undertake to look seriously at our police force in this country. With the present situation of the police force, I do not think the Government will be able to implement the provisions of the Bill.
I should like, if I may, to spend just one minute on what has been happening in Italy, as the noble Lord so rightly reminded us. There was a very important article in an Italian newspaper about a year ago, referring to the unfair and deprecatory attacks on the police force in the Press, in the media, by demonstrations, by word of mouth and by leaflets over five years. There was a crescendo of these attacks until about two years ago. There was a graph plotted of the number of attacks on the police on television and in broadcasts. I mention this advisedly, because we have recently suffered the same thing—a very unfair attack on the police made on television, which is perhaps just a warning shot across our bows. This series of

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attacks against the police went in a crescendo until about two or three years ago, when they suddenly descended. It was perfectly clear why they had descended—because the police in Italy had become demoralised, they had become inefficient and they had been subverted. To my mind, this was a very serious lesson to Western democratic States that if we sign these Conventions and if we undertake to protect not only our own citizens but internationally protected persons, we must see that our police forces are adequate for the task. With those comments, my Lords, I beg to support the Bill.
7.22 p.m.
Lord GORONWY-ROBERTS: My Lords, before the noble Lord, Lord Garner, avails himself of the advantages of replying to this debate, may I join with the noble Baroness in expressing our grateful thanks to him for moving the Second Reading of this Bill, and for doing so with such cogency and clarity. I rise merely to say that, of course, the Government are determined to play their part in the fight against international terrorism.
The noble Baroness, and indeed the noble Lord, instanced the various international instruments to which we are parties and in the formation of which we were frequently leaders. The Hague and Montreal Conventions are very good examples, dealing with hijackings and other attacks on aircraft. We are currently co-operating with other countries in practical steps to counter terrorism. A recent example was the co-operation between this country and the Federal German authorities in the Lufthansa hijacking incident. Again with the Federal Republic of Germany, we are in discussion about the Convention which they have drafted on the taking of hostages, which is another dreadful aspect of the crime of terrorism that was discussed in a United Nations committee in February this year. We are giving full support to the Federal German initiative and, indeed, I believe we have been able to make useful suggestions to those who are primarily concerned with that Convention.
This Convention—the Convention which this Bill will enable us to ratify—is an addition to that system of counter-
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terrorism. It does not do it all, any more than its predecessors did it all, but it is an invaluable addition to the armoury of counter-terrorism. Of course, in enforcing the intentions of this Bill, as of any other Act, the Government are determined to ensure that there is an adequate and properly treated police force. I should have thought that the noble Baroness, in making that point, would also agree that it is necessary to have adequate and properly treated police forces and to apply the full force of all Acts of Parliament to which Parliament and Her Majesty have given their consent.
This Bill, as I said, joins other enactments, for instance, the Bill which enabled us to ratify the European Convention on the Suppression of Terrorism, as the noble Baroness mentioned. The Bill does not create any new offences in the United Kingdom, except that of threatening to commit one of the specified offences against a protected person. It will, however, extend the jurisdiction of the United Kingdom courts so that the offences covered by the Convention will be triable in the United Kingdom, even though they have been committed outside this country. It will also supplement existing provisions of our extradition legislation, as we have just heard, in respect of the offences covered.
The point was raised about the specification of this Bill to diplomats. The term "diplomats" was, of course, used to include heads of State, Ministers, diplomats in the narrower sense of the word, and comparable persons who are engaged in the service of inter-governmental commissions and organisations and are therefore cognate with the categories I have just mentioned. The reason why there has been a Convention already ratified or adhered to by 31 countries is that that kind of person is, by virtue of his duty and activity, peculiarly susceptible to the attentions of the demented people who operate all over the world in the terrorist sense. Therefore they need specific protection.
One would hope, of course, that in the light of the experience of the application of this and other provisions which build up the general provision to counter terrorism, we may be able again in the future to expand these measures, either by extending the categories to be protected

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in this way or by adding certain functional provisions in the manner we have done in the past 10 years or so. I hope therefore that your Lordships will agree that by means of this Bill the United Kingdom will agree that by means of this Bill the United Kingdom should be enabled to ratify the Convention and demonstrate once more our total commitment to take all possible measures to stamp out all forms of terrorism.
7.27 p.m.
Lord GARNER: My Lords, I am grateful to the noble Baroness and to the noble Lord for their kind remarks to me personally and for the general support which they have given to the provisions of the Bill. I do not think I wish to make any general comments. The noble Baroness has been answered to a large extent by the noble Lord on the Government Front Bench. She was, however, good enough to give me notice of some of the points—she called them Committee points—which she raised. Perhaps I might deal with some of them very briefly.
The first concerned the inclusion of the word "intentional" in committing the offence. I understand that the reason why there was no reference to "intentional commission" was that these offences are already offences under the laws of the United Kingdom and therefore it seemed superfluous to qualify these offences by including in Clause 1 a reference to "intent", since criminal intent is already an element in these offences. The purpose of the Bill is to give as much practical protection as possible to internationally protected persons, so the offence provision in Clause 1 would to a large degree be unworkable if the prosecution had to establish in each case that the defendant knew that his victim was an internationally protected person.
The second point raised by the noble Baroness referred to the Order in Council. The provision there is based on previous legislation and, so far as I know, there has been no particular difficulty over it. I am afraid I have forgotten the third point—
Baroness ELLES: My Lords, it was in relation to the word "elsewhere"; whether that covered aircraft and ships.
Lord GARNER: My Lords, I think the reason for the insertion of the word "elsewhere" in this Bill is that it is regarded as completely comprehensive and covering everything. Therefore, there was no need to specify in particular, as was done in the case of the Suppression of Terrorism Act which related only to the area covered by the States' Members in Europe. I am very ready to discuss these points further with the noble Baroness and, if necessary, to suggest Amendments at a later stage, but I hope that those answers have satisfied her. I renew my thanks to your Lordships.
On Question, Bill read 2ª, and committed to a Committee of the Whole House.

WEIGHTS AND MEASURES ACT 1963 (POTATOES) ORDER 1978
7.31 p.m.
Lord WALLACE of COSLANY Lord WALLACE of COSLANY rose to move, That the draft Weights and Measures Act 1963 (Potatoes) Order 1978, laid before the House on 27th April, be approved. The noble Lord said: My Lords, I beg to move that the draft Weights and Measures Act 1963 (Potatoes) Order 1978 laid before the House on 27th April 1978 be approved. The main purpose of the draft order is to permit the sale of prepacked potatoes in a metric range of prescribed quantities, as well as in the imperial range of prescribed quantities that appears in the 1963 Act. Parliament has been approving such orders from the end of 1973 onwards, and they have now been made for a wide range of prescribed quantity products, including such every day items as tea, sugar, butter and cereal breakfast foods. The metric range of sizes has been agreed between the interests involved—packers, distributors, retailers and consumers—and some 60 bodies were formally consulted before the order was laid.
I particularly wish to draw the attention of the House to the inclusion of the 25 kg. size in this range. This is roughly equivalent to the 56 1b. sack of potatoes, and is a size which is becoming increasingly of interest to consumers through hulk sales. The inclusion of the 25 kg. size in the prescribed quantity range is very welcome to consumers and retailers,

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and the Government are grateful to the packers organisations who have agreed to its inclusion, in spite of the additional requirement that this places on them. One novelty in this order is a provision which allows certain large potatoes to be packed and sold by number. This means that consumers will be able to buy packs of weight-graded baking potatoes, all with similar cooking times. A voluntary code of practice is linked to these enabling provisions. Under it, packers will be able to grade and pack potatoes according to four weight bands related to the size of individual potatoes.
Finally, my Lords, I should like to emphasise again that this order is purely permissive in its effect. There is no compulsion to use the metric range. The current national metrication debate is not related to this type of permissive order, about which I think there is no objection in principle. The main crop potato harvest will soon be with us, and I recommend that those who are awaiting our approval before they are allowed to pack in the metric sizes should be delayed no longer. My Lords, I beg to move.
Moved, That the draft Weights and Measures Act 1963 (Potatoes) Order 1978, laid before the House on 27th April, be approved.—(Lord Wallace of Coslany.)
7.34 p.m.
Lord SANDYS: My Lords, the House will be grateful to the noble Lord, Lord Wallace of Coslany, for explaining this order to your Lordships. As he has said, it has been laid before your Lordships for a little less than three weeks, so it will be familiar in its relationship to the Weights and Measures Act 1963. It appears, from what the noble Lord has said, that wide consultation has taken place, but I should like to ask him specifically whether the agreement of the Potato Marketing Board was obtained. In matters of consumer interest in this field, we believe that the double marking of packs is very important, and that both imperial and metric measures should be used. As the noble Lord said, this is a purely permissive order. Nevertheless, I hope that he will be able to tell your Lordships that it is the Government's intention, wherever possible, to ensure—and, if necessary, insist—that both
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imperial and metric marks are made on the packages concerned.
Lord WALLACE of COSLANY: My Lords, I am very grateful to the noble Lord, Lord Sandys. I was expecting him to go on for a little longer, but I should like to reply to the two points that he made. I am advised that the Potato Marketing Board were consulted. In fact, there has been quite wide-ranging consultation with all aspects of the distribution trade—wholesalers, retailers, consumers and so on. I shall not go into extreme detail on dual marking, but will try to be as brief as I can. Existing imperial packs have had to show the metric equivalent since 1st January 1978. The new metric packs—I believe that this was the noble Lord's point—will have to show the imperial equivalent and be marked quite clearly "Metric Pack". I do not think there is anything further to add on this very simple and generally welcome order.
Baroness STEDMAN: My Lords, I beg to move that the House do now adjourn during pleasure until 7.45 p.m.
[The Sitting was suspended from 7.37 p.m. until 7.45 p.m.]

SCOTLAND BILL
House again in Committee on Amendment No. 290.
Lord McCLUSKEY: In reply to this Amendment, first I should like to endorse the criticisms which have been made by the noble Lord, Lord Kinross, of the selection of the test of domicile as an adequate test. I do not wish to repeat anything which the noble Lord said. However, I should like to point out that when it comes to determining a person's domicile it may be that the circumstances of his birth are relevant. A person who is legitimate takes the domicile of his father, but a person who is illegitimate takes the domicile of his mother. Therefore, some very embarrassing questions could be asked of those who sought to vote.

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Furthermore, when an Englishwoman marries a Scotsman she acquires a Scottish domicile, but when a Scotswoman marries a non-Scot she acquires the domicile of her husband. Applying the test of domicile, therefore, one finds that Englishwomen—that is to say, English by birth and resident in the United Kingdom—would be entitled to vote but that women who were Scots by birth who had happened to marry Englishmen, Welshmen or Irishmen would have acquired a domicile which was not Scottish. So they would lose their vote. I do not need to elaborate examples of this kind to illustrate the point which was made by the noble Lord, Lord Kinross, in a slightly different connection: that the technical defects of applying the test of domicile are enormous.
Let me address myself to the substance of the matter. One has a great deal of sympathy with the idea that, in a matter affecting Scotland, Scots should have a voice and a vote. However, the difficulty is to define what is meant by an expression which the noble and learned Lord, Lord Wilson of Langside, used; namely, "true Scots". The noble and learned Lord referred to a connection with the homeland. These are splendid expressions to put into a song or to shout from the Rugby or football terraces, but for the purpose of defining an entitlement to vote they are rather more difficult to define. The enormous practical problems connected with the identification of people with Scottish connections are therefore quite obvious.
The Government believe that it would be wrong in principle to extend the franchise for the purposes of the referendum beyond that which is envisaged by the present provisions of the Bill. In substance, the reason is this. Devolution will directly and specifically concern those who live in Scotland. One has only to look at Schedule 10 to find the matters which are to be devolved, as specified in that Schedule. They affect health, education, roads and so on in relation to people who are living in Scotland.
If I needed to illustrate the point, I should refer the Committee to paragraph 2 of Schedule 2 which we passed some time ago. The effect of that paragraph is to make it quite clear that the legislative and executive competence which is devolved under this Bill relates to people
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in Scotland and nowhere else. Although the matter is being reconsidered, in the Bill as it now stands there is some possibility of a cross-Border effect; but it would be very small and certainly we are looking at the matter with a view to removing any possibility that Assembly legislation might have an effect outside Scotland. In principle, we believe that as this Bill will have an effect only upon the people who live in Scotland, it is those who live there—whatever their ethnic origins and the circumstances of their birth, where they were born, to whom they are married and so on—who should be entitled to vote, and nobody else.
I again endorse what the noble Lord, Lord Kinross, made clear and the noble Lord, Lord Campbell of Croy, supported, that when it comes to determining difficult questions of domicile one has to go to court. Indeed, I shall be forgiven if I refer to an older case—the most famous case certainly when I was a student—of the Liverpool Royal Infirmary and Others v. Mrs. Isabella Ramsey, which took many years to determine but was finally determined in this House in 1930, when it was held that a man was domiciled in Scotland albeit he had lived in Liverpool for the last 37 years of his life. That flatter had to go to the House of Lords for determination.
Lord HARMAR-NICEIOLLS: If the noble and learned Lord will allow me, it only took that length of time to settle it when it was challenged. Is it not the case that in the divorce courts in Scotland now a mere declaration, which is usually accepted, with a penalty for perjury, goes through in a matter of three or four minutes without any question? It is only when it is challenged that we have the problems cited by my noble friend and by the noble and learned Lord.
Lord McCLUSKEY: That is true, but most of the cases that come to the Court of Session are cases where there is really no possibility of a dispute about domicile. If there were such a possibility the parties would go to another court and seek a divorce elsewhere. What this Amendment envisages is that all the people who are applying and who have to establish domicile, live outside Scotland and therefore they have to demonstrate their intention to return to Scotland, and the fact that they regard Scotland as their

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permanent home. The difficulties have been referred to and I should only be taking up the time of the Committee unnecessarily if I were to repeat them. The difficulties are really quite enormous and the possibility of litigation is something which is terrifying in this context.
I think that if the franchise were extended in this way there are other people who might have a stronger claim to a Scottish identity, but who were not within the United Kingdom, who might come forward and say; "Why were we cut out"? It is rather difficult to draw the boundaries, and therefore it is impossible to determine what the limits of an extension would be if one were to go beyond the franchise as envisaged in the Bill.
I believe that the Amendment is so technically defective for the reasons that have been adequately explained in the debate, that it would be wrong to put it into the Bill. I make no comment on the possibility that there might be a return to this matter at the Report stage. I believe that on the merits it is unsound, but we could look at the merits if it were brought up on Report.
Viscount MASSEREENE and FERRARD: Before the noble and learned Lord sits down perhaps I may refer to the Irish. There are hundreds of thousands of Irish who are domiciled in Ireland who vote in our General Elections. In fact, if the last Prime Minister before Mr. Callaghan had not had a lot of Irish people in his constituency he probably would not have got into Parliament. If the Irish who are domiciled in the Republic of Eire can vote in our General Elections, then surely it is within the bounds of possibility to enact a law. I agree that it may not be possible under this Amendment, but surely it would be possible to see that Scottish persons domiciled in Scotland, resident in England, Northern Ireland and Wales and presumably working there, can have a vote. The position seems extremely unfair.
Let us take Glasgow, for example, which I know extremely well. I was stationed at Maryhill in Glasgow in the old days, in a not very nice area. If we think of all the Irish in Glasgow, tens of thousands of them can vote in a General Election. Many of them are domiciled
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in Ireland, and it seems grossly unfair that Scottish people in England, Northern Ireland and Wales who are domiciled in Scotland, cannot vote in the Assembly elections.
Will the Government consider trying to incorporate something in the Bill to make it possible for them to do so? There are other, additional reasons. I think that Scottish people working outside Scotland but in the United Kingdom will probably have more perception into the great problems that we have been discussing, and they may have more perception when they are voting for the Assembly. I am afraid that many of the Scottish people who vote in the referendum will treat it rather as a football match between Scotland and England. They will not consider the many serious points in this Bill. I do not want to appear in any way arrogant, but I believe that a great number of them will not understand what they are doing; and therefore it is essential, so far as possible, to get in as many Scots as we can who really understand the issues at stake.
I am sure that those Scots who are working in England will understand the issues better than many Scots who are working in Scotland. The position seems unfair. Of course, when they retire, many of the Scots who are working in England and in the North of Ireland and in Wales, will return to live in Scotland because they all have relatives there, and I do not see why they should be debarred from voting in the Assembly.
Lord McCLUSKEY: Once again I reject entirely the notion, with which I fundamentally disagree, that the people in Scotland will simply not understand what this issue is about. If the noble Viscount had lived in Scotland, as I have, for the past 10 years, particularly since the establishment of the Kilbrandon Commission, he would have realised that daily the newspapers and the broadcasting media are full of information about the Scottish Assembly and about devolution. This is simply not true of people who are Scots and who have gone to live in other parts of the United Kingdom. I have friends who, within the last five years, have gone to live in Canterbury. They never see a Scottish newspaper, they never hear a Scottish broadcast and they, intelligent though they are, are totally out of touch with this debate.

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In relation to citizens of the Irish Republic, if they are resident in Scotland then of course they have a legitimate interest in social welfare, in housing, in planning, in the control of pollution and other matters of that kind. That is the whole point: the Assembly will have the competence and the Executive will have the competence to deal with matters which affect the lives of people who are resident in Scotland. Residence is the proper test, and the Government will not depart from that.
7.57 p.m.
Lord RAGLAN: I should like to say that in my view it is mildly discourteous on the part of those who order the affairs of this House—and I am not attaching any blame to my noble and learned friend about this—that apparently nobody has considered it worth while to beat around for my noble and learned friend Lord Wilson of Langside, who originally moved this Amendment but who is not present.
Lord CAMPBELL of CROY: If I may intervene, we were very much aware of that, and for our part we have conducted a search to see whether we could find him because we realise that he might have thought that, as usual, the break was going to be for an hour instead of 45 minutes, but so far he has not been found.
Lord RAGLAN: I should like to ask a question of my noble and learned friend Lord McCluskey. I see that the demarcation lines for the electorate are very rigid. Is it not the case that my right honourable friend the Secretary of State for Scotland is himself disenfranchised because he is resident in South London?
Lord McCLUSKEY: Of course my noble friend knows the answer to that question as well as I do. My right honourable friend is not entitled to take part in the referendum because he does not satisfy the test, and of course his children do not go to schools in Scotland; he does not seek social welfare in Scotland, and he is not personally affected by the arrangements in regard to housing and the regulation of rents in Scotland. The test applies to him as it applies to members of the World Cup football
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team whose names were all trotted out by Mr. Tam Dalyell in another place. The point is that if they choose to live in Liverpool for perfectly good reasons, to score goals for the Liverpool Football Club, then so be it; good luck to them. But they are not deeply concerned with the regulation of rents in Scotland and other matters of that kind which are devolved.
8 p.m.
The Marquess of LINLITHGOW: If the noble and learned Lord wishes to fill the unforgiving minutes before the arrival of the mover of the Amendment may I say what I think about it? I think that the noble and learned Lord is perhaps being a little bit rough. He has been challenged with figures, like the football team living in Liverpool. That is their own choice. At the same time I think it is sad; there must be thousands of Scots who are not at the moment living in Scotland and are therefore probably not on the electoral roll; but they are Scottish in terms of their home, where they were born and to which they are going to return. A large number of Scots have jobs in England and they may not at the moment be concerned with devolved matters, but they fully intend to return to Scotland when they retire. Surely to them the future of Scotland must be a very important matter. I think the Amendment is probably impractical in terms of what I hear, but at the same time I think it is very sad that the people concerned will not be allowed to have their vote. I think the noble and learned Lord should feel a little more gentle towards a very large number of people who have not chosen to live in England for ever.
Lord McCLUSKEY: Perhaps I may be permitted to rise to my feet at this point to say that, unfortunately, owing to the early resumption of the House the noble and learned Lord, Lord Wilson of Langside, missed the opening minute or two of the resumption of this debate. I think it would be fair to say that my answer, if I may summarise it, has been that domicile, largely for the reasons pointed out by the noble Lord, Lord Kinross, is not satisfactory and, secondly, that residence is the test adopted in the Bill and can be justified.

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In relation to what the noble Marquess has just said, may I say that if people who live outside Scotland choose to return to Scotland, or if people who do not now live in Scotland and have no connection with it, choose to go there to live, of course they will at once become enfranchised, not for the purpose of the referendum itself but for the purpose of electing to the Scottish Assembly the people to control these matters. I feel that they will have the same right as anyone else in the United Kingdom to cast a vote in favour of the Party or person they feel properly represents their interest in matters within the competence and jurisdiction of the Assembly which controls their affairs.
One other thing which I should have said and will now say is that I was delighted to hear that the debate is such an exciting one that it tempted yet another noble Lord to make his maiden speech; and my noble friend Lord Howie of Troon, albeit speaking for the first time from behind the Government, indicated that he would vote against the Government if called upon to do so. I cannot describe that as controversial; I shall choose to call it robust and, as the noble Lord, Lord Campbell of Croy, said, witty, elegant and timely. That is as far as I can properly go.
Lord LYLE: Before the noble and learned Lord sits down, could he direct my attention and that of the Committee to the position of Service voters, for example, in BAOR? Are they deemed to be working outside Scotland of their own volition? Could he also explain the position of Service personnel who might be on secondment or at a Royal Air Force station in Scotland?
Lord McCLUSKEY: The position of Service voters is determined not in this Bill but in the Representation of the People (Armed Forces) Act, 1976, which allows members of the Armed Forces and their spouses to register themselves as able to vote in the place where they were last resident. The position of Service voters is well taken care of. I may be wrong, but I think we touched on this a day or two ago in the course of the Committee proceedings, when I gave an explanation which the noble Lord might
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care to look at. If it does not satisfy him, I shall be happy to explain the matter more fully in a letter.
Baroness ELLIOT of HARWOOD: Would the noble and learned Lord advise us whether or not voters can get a postal vote? Quite a number of people have a domicile in Scotland which they may have left temporarily while working somewhere else—perhaps in London or abroad. As they are domiciled in Scotland and are ratepayers in the area in which they have lived, they would be entitled to vote if they were there. Would they get a postal vote, or what is their position?
Lord McCLUSKEY: I think the answer to that question lies in the Schedule itself. If the noble Baroness would look at page 89 she will find that the persons eligible to vote are specified in paragraph 2, and paragraph 4 reads—
"Her Majesty may by Order in Council make provision as to the conduct of the referendum and apply in relation to it, with such modifications or exceptions …any provision of the Representation of the People Acts —".
So it is intended that the position will be exactly the same for voting in the referendum as it is for General Elections, and accordingly postal vote provisions would apply.
8.7 p.m.
The Earl of SELKIRK: I should like first of all to congratulate the noble Lord, Lord Howie of Troon, on a first-class speech. I think he added great vigour to the debate. I am very glad that he was able to speak in it. I think that the noble and learned Lord, Lord McCluskey, has said that the Bill is based at present on residential qualifications. This is no principle; something on the lines suggested by the noble and learned Lord, Lord Wilson of Langside, could be added. I must agree that the word "domicile" presents a difficulty, but the principle is perfectly clear to understand. There are a large number of Scotsmen living outside Scotland who are profoundly interested and affected by what is proposed in this Bill. Not only is that so, but better sometimes than people in Scotland they understand what the Bill means. They understand its implication.
It is a peculiarity of the Scots that somehow they do not readily lose the attach-

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ment which they feel to the country which they regard as their own. It is remarkable how this feeling extends to a very large number of people in Australia, in Canada and in the United States of America. I am not suggesting, of course, that this has anything to do with this debate. All I am saying is that that feeling is there and those people will be interested in what is done here. A great many people would be interested, and it is quite inadequate to say that their requirements are met by going back to Scotland and electing the Members to the Assembly. This is a very fundamental issue which affects people who are interested in the welfare of Scotland and who feel that they are concerned with it. I believe that, subject to adjustment, this Amendment could very well be worked out.
The noble and learned Lord may say that it is difficult to tell who is a Scot. I agree that there are a number of marginal cases. I belong to a club which only on racial grounds accepts people with certain Scots associations. There is no particular difficulty about identifying them. Take the classic instance of football. In Rugby football a man decides whether he wants to play for England, for Scotland, for Wales or for Ireland purely on his own feeling. Indeed many people, much as they would like to play international football, have refused invitations because they feel that they belong to another country. This is identifiable and could be worked out. We have had no cooperation from the Government. They do not like changes.
This Amendment is something which would be very much appreciated and which I think would add to the value of the Bill. There may be a lot of talk about the United Kingdom, not just the geographical area of Scotland. A great many of these people feel strongly that they are Scots but they are interested in this matter and they are part of the United Kingdom. Why exclude them? The only serious reason is that there will be certain difficulties, but I do not think it is beyond the wit of the Government—they have the wit if they want to use it—to find the ways and means of working this out. There could be a statutory declaration that they continue to be Scots; there could be certain qualifications—birth, period of work, possibly education, all of which could play a part.
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This matter could be worked out quite easily if the Government wanted to do it. To confine it to residential qualifications immediately creates a sense of division. I think the Government could find this quite easy to do, and I would ask the noble and learned Lord, Lord Wilson, if he would consider between now and Report stage putting down an Amendment which would not have the legal problems which are very real on the question of domicile—an Amendment on different grounds. I have no doubt that this could be worked out, and it would give a great sense of satisfaction. Let us be very frank. Many Scotsmen living in London are very influential, they are people who count a lot, and one does not want to upset them. They are part of the United Kingdom, they are an expression of the United Kingdom, and I see no reason at all why they should not be brought in.
Lord MACKIE of BENSHIE: I am amazed that sensible, distinguished noble Lords can talk such absolute nonsense; it really is quite incredible. Do we take in every chap who loves Scotland throughout the world? It would have a tremendous effect on our export trade that lovers of Scotland throughout the world should be able to influence this decision, and they would be very pleased to be asked. I have been much afflicted in my time—and have greatly enjoyed them—by Scots functions outside Scotland; nothing more Scots could ever be imagined. The Scotch that has flowed down my throat, free and with great expressions of jollity and affection for Scotland, is remarkable.
They are great bodies, and they always tell you, with tears in their eyes, late at night, that, by heavens, they would be back in Scotland like a flash; when they retire the wee hoose in the Highlands is going to be theirs and the smoke reek will come out the lum, and they will milk the goat and keep the key above the door and all the rest of the guff. And they stay in the deep South of England for ever more, and come up to stay in the better hotels only, because they have had it very much better down here. A noble Lord says, "Nonsense". I can take him to dozens of them.
How on earth are you going to assess everybody who wants to vote? Are you going to ask them to swear by Rabble Burns that they are Scots to the heart

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before they can get a vote? It is technically impracticable. The hardy noble people who have chosen to live in that brave land are the only people who should vote, the people who have stuck to it, or have gone there of their own volition from the warmer climes of England. But to say that we can take in Scots around the world, Australia, Canada, London—these noble chaps wallowing in the rich lands of the city—is absolute nonsense. If they want to vote let them come back to Scotland and register there. There is no other practical way to do it. This Amendment is, I regret to say, not very sensible.
Lord MOTTISTONE: Would the noble Lord feel, perhaps, on his argument, that those gentlemen who live north of the Border but spend three days a week down here when Parliament is sitting should be excluded from voting because they are enjoying the delights of England?
Lord MACKIE of BENSHIE: They should vote because of their nobility in leaving that wonderful land to come down here.
Lord WILSON of LANGSIDE: May I apologise profoundly for not being present when the Committee resumed after dinner. I can only plead that, if any announcement was made of a departure from the practice of these last few weeks, like an inattentive schoolboy I was not listening. I apologise, and the most embarrassed person is, of course, myself, because I have not heard what has been said. Secondly, may I echo the congratulations of other noble Lords to the noble Lord, Lord Howie of Troon. We listened to his witty and informed speech, and I am sure all Members of the Committee hope that we will hear much from him. I personally was greatly touched to be offered support by a Back Bench Member of a Party in which I spent very actively most of my active political life.
May I, in the third place, turn to the noble Lord, Lord Mackie of Benshie, who said that this is not a very sensible Amendment. He has entertained us with references to his Scottish drinking companions in the South. I do not know any of them with whom apparently the noble Lord has quaffed the usquebaugh in
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their Tartan adorned parlours. But I was thinking of quite ordinary people, like the half dozen young men who are the Scottish Parliamentary draftsmen, and who, because they accepted appointments in the public service, have to live in London and serve the Lord Advocate and the noble and learned Lord in the Lord Advocate's Department. They, I am sure, have never drunk with the noble Lord, Lord Mackie, and they are not particularly outrageously Scottish. They do not drink greatly and I have never seen them wearing the kilt.
I must say that I thought the noble Lord's remarks, though highly entertaining, were very wide of the point. It is the ordinary kind of people who express great concern to me about not having a vote in this matter and who will eventually return to Scotland, not to a little home in the glen. No doubt the noble Lord, Lord Mackie, will entertain us with his Scottish reminiscences, but that is wide of the point. This is a very sensible Amendment directed to do justice to a group of people who work in a great range of activities outside Scotland—not the professional Scots or the Scots comedians with whom Lord Mackie drinks, but ordinary Scotsmen who feel concern about the country and who for one reason or another—whether they are bankers or butchers or bakers—work outside Scotland but regard themselves as Scotsmen. I do not see any point in making a joke about them.
I have listened to what your Lordships have said. I accept, and of course I was conscious of it right from the beginning, the criticism directed by the noble Lord, Lord Kinross, who speaks from vast experience in this field. But I do not think that these difficulties, of which I was perfectly conscious when I drafted this Amendment, are insuperable. We used to put through vast numbers of actions for divorce in the Scottish Supreme Courts in my time at the Bar on the simple statement that the husband was a domiciled Scot, and this was accepted and jurisdiction was exercised on that ground whether or not the husband lived in Scotland. I should have thought that it would not have been beyond the wit of man to devise a simple scheme on the basis of an oath taken before a commissioner for oaths which would over-come the difficulties. The vote is a very

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important thing and I do not think people should be readily deprived of it. But particularly since I was inadvertently not present to hear the whole of the debate, I will ask leave to withdraw the Amendment, and consider the matter at a later stage.
Amendment, by leave, withdrawn.
8.18 p.m.
The Earl of PERTH The Earl of PERTH moved Amendment No. 339:
Page 90, line 37, alter ("1978") insert ("(which sets up a Scottish Assembly)").
The noble Earl said: If it is convenient to the Committee I think we might take Amendments Nos. 339 and 341 together. They hang together and I should have thought that they were part of a whole. If I may, I shall proceed on that basis. This is the last Amendment I shall move in the Committee stage, and in some respects I feel it is the most important Amendment I have moved.
There may be two views on the desirability of the referendum. We have heard that debated and agreed today. That is not in question. The fact is quite simply that we are going to have a referendum, if this Bill goes through, on the question whether there is or is not to be an Assembly. That being the case, I very much hope that all your Lordships will agree with me that the most important thing is that the voter should undertand the question he has to answer yes or no to. I was very much encouraged—if that is the right word—by the noble Earl, Lord Ferrers, when he was speaking in a general way on Clause 80 which deals with the referendum. He made the point that it was essential that the question should be clear for one and all to understand before they gave their answer. I felt much encouraged by those remarks.
Ideally, of course, the question should be short. If we were starting from scratch—and we are not—it could be something like: "Do you want a Scottish Assembly?" However, we have a question down and my purpose has been to put forward an Amendment which makes crystal clear what it is all about. Therefore, I have endeavoured to change what is down as little as possible. The voter must know the heart of the matter. It is not just a question of: "Do you or do
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you not want an Assembly?" because that could be interpreted as a hypothetical question. We are not asking a hypothetical question: we are asking a very real one and that is why it is appropriate to see mention of the Scotland Act 1978.
I hope that your Lordships will all agree with me that the question of an Assembly is the key to the whole Bill. Clause 1 of the Bill contains the words:
"There shall be a Scottish Assembly".
Everything else that is included in the rest of the Bill—80 odd clauses, 17 schedules and some 90 pages in all—is merely an appendage to the fact that,
"There shall be a Scottish Assembly".
Yet, if we look at the question as it now stands as regards the proposed Referendum, there is no mention of that at all. That is hardly fair on the voter. Some noble Lord may say: "Don't worry about that. All the publicity will make clear what people will be asked and what the question really is".
My answer to that is my experience when I go into the ballot box. I am not allowed to go into the ballot box when it is a question of general elections, but when it is a question of local government I have the opportunity. Indeed, I have spoken to others who have had the same experience as I have had. When someone goes into the box he is confronted with a slip of paper and his mind is somehow suddenly apt to be blank and he does not know where on earth to put the cross. He may know where to put it when it comes to the football pools but when he is in the ballot box and faced with this slip of paper for some reason he becomes puzzled. If that is so it is essential that the question that the voter is asked to decide—there is a real issue of principle here—is one that is easy to understand.
Furthermore, the question must be so posed that it is not in any way loaded but is quite straightforward with no bias one way or the other. In the Amendment that I have put forward I have tried to avoid any such bias. As I have said, my only purpose is to ensure that the voter knows what he is being asked to answer. My proposal is that the words:
"which sets up a Scottish Assembly"

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be added to the question as it now stands. It would then read:
"Do you want the provisions of the Scotland Act 1978"—
I think it appropriate that those words should be included—
"which sets up a Scottish Assembly to be put into effect?"
That, in my view, is a question which the voter would understand. It is what we have all been talking about. It is the purpose of the Bill and I hope that your Lordships will feel with me that this is an appropriate and unbiased Amendment. I beg to move.
Lord McCLUSKEY: I think that it might be of value to the Committee if I were to explain the background to this matter. The formulation of the referendum question as set out on page 90 of the Bill takes account of views which were expressed in the debates on the Scotland and Wales Bill and is based on an Official Opposition Amendment tabled on that occasion. This formulation has received general acceptance in another place and the Government are opposed to the suggestion to elaborate it.
Similarly, the formulation of the preamble to the referendum question is that contained in an Official Opposition Amendment to the Scotland Bill put down during the Committee stage in the other place. The Government took up this formulation not because of any defect in their own version, which in fact included a reference to the setting up of a Scottish Assembly, but because—and this is the point that I want to emphasise to the Committee—of the importance that they saw in establishing a consensus as to the neutrality and fairness of the layout of the ballot paper. They consider that this consensus has been established and for that reason are opposed to any further change in the formulation.
The noble Earl anticipated one answer that I would make, but it is right that I should make it. As I said a moment ago in a different connection there has been substantial coverage by the media in Scotland of devolution in general and, indeed, of the debates on the Scotland Bill itself, both in the other place and here. Even greater coverage can be expected to ensue in the run-up to the
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Referendum when the campaigns in favour of each side of this question will be mounted. In those circumstances it surely cannot seriously be supposed that the Scottish electorate will not appreciate that the proposals involved the establishment of a Scottish Assembly and, indeed, of a separate Scottish Executive as well.
I do not want to emphasise that second point because the Bill does not simply set up a Scottish Assembly. If one looks at Part I, as we were invited to do by the noble Earl, one sees that it has the general heading:
"The Scottish Assembly and Executive".
So, the Bill does much more than set up an Assembly, although I agree that that is perhaps the most important thing that it does. I cannot believe that persons who actually go into the school or where-ever it may be to cast their vote on the day of the referendum will be ignorant of the main issues which are raised by the Bill. For that reason I believe that the Amendment is unnecessary. However, I believe that, the Parties having reached an agreement as to what the question should be, the question should not now be disturbed.
Viscount MASSEREENE and FERARD: I should like to back up the noble and learned Lord. If the voter is stupid enough not to know what the Scotland Act 1978 does he will also be too stupid to know what the Scottish Assembly means. Moreover, the noble and learned Lord has told us how bright are the Scottish voters who will vote for the Assembly. Therefore, I cannot support the noble Earl's Amendment.
Earl FERRERS: I must record for posterity the pleasure with which one accepts that the noble and learned Lord opposite on his Front Bench agrees with the attitude which has been taken by our Front Bench.
Lord MACKIE of BENSHIE: I understand the Government's attitude, but they appear to have taken bad advice to begin with and I appreciate that they do not want to change their mind now. The remarks which the noble Earl, Lord Perth, made sounded to me rather more sensible than the heading that we have at present. However, having said that I shall say no more.
The Earl of PERTH: This looks like a difficult situation in that the two Front Benches are quite clearly in cahoots on this question. So far as I am concerned I think that it would be excellent if another place had another look at the matter because whatever noble Lords may say and whatever the noble Viscount, Lord Massereene and Ferrard may say, the question as it stands is not easy for the ordinary voter to understand. He is being asked: Do you, or do you not, want an Assembly? That certainly is not to be found in the question as it is drafted. That simply says:
"Do you want the provisions of the Scotland Act 1978 to be put into effect?"
Then there is a box containing "Yes" and "No". I can only repeat that when one is at the ballot box and one is faced with a question like that, one is very likely not to know what on earth it is all about. It is all very well being told that there is a consensus in another place. I believe that there are quite a few things on which there may be a consensus in another place among both Front Benches. But occasionally the Back Bencher or the Cross Bencher, as the case may be in this House, comes into his own. I am not entirely happy that we should just leave the matter on the basis, "Oh well, it has been agreed between the Leaders of both Parties, and that is that". If I could find others who would agree with me that it is important to make sure that the voter understands what he is voting about, I should be inclined to test the opinion of the Committee on this matter.
Earl FERRERS: Before the noble Earl, Lord Perth, takes such a decision perhaps he would contemplate this. He is perfectly right when he says that the voter must understand what he is voting about. He also said that the voter must not have a loaded question put to him. However, with the greatest of respect, I suggest to the noble Earl that this is a loaded question. As it is at present drafted in the Bill it is perfectly clear:
"Do you want the provisions of the Scotland Act 1978 to be put into effect?"
The noble Earl then wishes to add "which does this, that or the other", but he mentions only one of the things it does and it does many other things. If the question had been, "Do you wish for an Assembly?" and the answer is either
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"Yes" or "No", that is one thing; but that is not the question. The question is "Do you want this Act?". I suggest to the noble Earl that it would be loading the question which is put in the referendum if he then decides to pick on just one thing which the Bill does and to leave out a number of other things which it also does.
Viscount SIMON: Before the noble Earl, Lord Perth, replies, would he like to tell the Committee whether he thinks that in a referendum anyone is going to go to the ballot box who has not already made up his mind which way to vote?
The Earl of PERTH: Taking up the point made by the noble Earl, Lord Ferrers, I would much rather have had a much simpler question. As I said in my opening remarks on this, recalling what the noble Earl himself said, if I could have started from scratch I would have just asked that very simple question. But I was trying to be non-provocative in order to find some middle ground which would be acceptable to your Lordships and to the other place. Therefore, I hit upon what seemed to me to be the guts of the whole Bill; it is in Clause 1, Part I:
"There shall be a Scottish Assembly".
It was with that in mind that I included those words. However at the same time, bearing in mind that there are other issues, I accepted and welcomed the fact that it said:
"the provisions of the Scotland Act 1978".
Therefore, I do not believe it is fair to say that my question is in any way loaded. I made it quite clear that this is the background of it all, but I also left in the words
"the provisions of the Scotland Act 1978".
So I am convinced that mine is not a loaded question.
The noble Viscount, Lord Simon, asked whether I thought that the voter would not know what it is all about. I do not know. I can only say to him, as I have already said, that when I go to the ballot box and find a list of seven or eight names in front of me, I only know that I want to vote for one Party or another; I do not want to vote for the people because I do not know them. I look at the list and, although I may previously have memorised my candidates, I forget them all. This is a very common experience. I certainly find it among my friends. That

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is why I feel that at the moment of truth—if I can put it that way—it would be of value if they have something which they can understand and which even at the ballot box they can answer.
Baroness ELLIOT of HARWOOD: I sympathise with the noble Earl, Lord Perth, when he says how difficult it is during local government elections when one is faced at the ballot box with six or more names. That is certainly so unless one is provided beforehand with some propaganda, which may come from one or other of the Parties, giving a list of those candidates who belong, in my case, to the Conservative Party, or to the Labour Party. Surely that is quite different. Here there are no names to remember. There is no Party aspect of it; one is not voting Liberal, Labour or anything else. You are simply going to the ballot box where you have to say either "Yes" or "No". That is really quite different.
Although I would not have been opposed to adding the words contained in the noble Earl's Amendment, in view of the fact that the question has been agreed in another place and that both Front Benches are agreed on it, this is surely something which we on this side should accept, because, in fact, it is the first time in the long hours that we have spent here arguing about the Bill that we have found something on which both Front Benches are agreed. The question of not remembering names does not arise; it is simply a matter of "Yes" or "No".
The Earl of PERTH: The noble Baroness, Lady Elliot of Harwood, has said that because the two Front Benches are agreed, we must all agree. To me that is the worst of all reasons. However, in the light of the debate we have had on on this, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.38 p.m.
The Marquess of TWEEDDALE The Marquess of TWEEDDALE moved Amendment No. 340:
Page 90, line 38, at beginning insert ("APPRECIATING THE RISK THAT IT MAY LEAD TO THE BREAK-UP OF THE UNITED KINGDOM,").
The noble Marquess said: Before I deal with this Amendment, I should like to make three comments. First, I should like to congratulate the noble Lord, Lord Howie of Troon, on his maiden speech which was both amusing and very helpful. Secondly, I should like to say that my speech has not been written by the Tory Central Office, which noble Lords will soon realise. Thirdly, I would say to the noble Earl that he and I have only two things in common: one is our nationality and the other is our Christian name.
This Amendment has been tabled because, like the noble and learned Lord, Lord Wilson of Langside, I, too, believe that the people of Scotland should be told the truth. Not only should they be told the truth, but they must be in a position to understand the consequences of the Bill. Your Lordships have now debated the Bill in Committee on some 12 previous occasions, and I am of the opinion that a considerable number of your Lordships on both sides of the Committee consider that this is a bad Bill.
I believe that it is a Bill that has been conceived for political expediency; in fact, I think that it is beginning to prove itself as such, as was shown in the Garscaddon by-election and as doubtlessly will be shown in the Hamilton by-election in a few weeks' time. It is obvious that the people of Scotland understand little of its content or its possible consequences. I am afraid that I disagree with the noble and learned Lord, Lord McCluskey. Perhaps all the people in East Lothian are sillier than they are round his way, but I discussed this matter with two people last weekend and they both thought that we already had an Assembly.
If the Bill is passed and the referendum is held, should the verdict of the latter be "Yes", the Scots thereby deciding that they wish for the provisions of the Scotland Act 1978 to be put into effect, without doubt there will be a Convention or an Assembly. It is my profound conviction that after a short space of time—say, four to eight years—a Convention or an Assembly will opt for total and complete separation from the United Kingdom. That is why I find it appropriate to try to make certain that the people of Scotland have it placed fairly before them that they should appreciate the real risk that, should this

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Bill become law and they vote "Yes in the referendum, they are indeed voting for the break-up of the United Kingdom as we understand it today. I beg to move.
Lord MONSON: I should like to support this Amendment. During the Second Reading debate speaker after speaker from all quarters of the House drew attention to the dangers to the unity of the United Kingdom inherent in this Bill. During the 13 days that the Bill has been in Committee, many noble Lords who were agnostic on this matter when the Bill was receiving its Second Reading have swung round to sharing these fears as each day fresh inconsistencies, anomalies and contradictions have been revealed.
True, there are one or two noble Lords—for instance, the noble Viscount, Lord Thurso, and, I think it is fair to say, the noble and learned Lord, Lord McCluskey—who take the opposite view, in that they believe that the unity of the United Kingdom would be endangered by the maintenance of the status quo. I think the general consensus of the Committee is that devolution, certainly in its present form, spells danger. It is not only your Lordships' House that takes this view; it is one that is widely shared by Members of another place, and indeed by the national Press.
That being so, it is surely wrong for Parliament to try to sell this Bill to the Scots on a false prospectus. During the debates on this Bill, the noble Lord, Lord Wigg, has constantly said that nothing in this life is for free, and this must be emphasised to the electors of Scotland. In other words, the advantages of the Assembly, such as they are, have countervailing disadvantages. I think, therefore, that it is right and proper that this should be pointed out to the voters, and I hope that your Lordships will support this Amendment.
8.43 p.m.
The Marquess of LINLITHGOW: I thoroughly appreciate the motive behind the Amendment, and because I appreciate it I support it. However, I have qualifications. Of course, this is an opportunity to launch into yet another Second Reading speech, but I swear to your Lordships that I shall not do that. It gives me the opportunity to say that I am not the
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slightest comforted, in terms of the danger to the United Kingdom, by what we have heard during this long period of examination of the Bill in Committee. Indeed, it is the reverse. I am alarmed, and I am sad.
I have no doubt about the effect that the Bill will have upon the relations between Scotland and England. Even worse, I have no doubts about the effects of the debate on the Bill—and certainly if it becomes an Act—as between Scotsman and Scotsman. I thought this in the early stages. I hoped, and indeed longed, to hear of some comforting evidence in terms of the debate that this is the right method to approach the undoubted discontents in Scotland, on the basis that we all have the one wish of preserving the unity of the Kingdom. Now I have absolutely no doubts left that the Bill has gone the wrong way about it and, as I say, I am alarmed and sad.
There is what one might call a doxology, which is produced time and again by noble Lords opposite at the end of every debate on every Amendment where a gap appears which we say looks impractical. The doxology appears time and again, which is a perfectly fair one, that the House and country should look forward to, and even expect, a very reasonable, honest, co-operative membership of the legislature in Scotland.
In what I have to say I do not want in any way to offend an old friend of mine, the noble Earl, Lord Perth, or the noble Lord, Lord Mackie of Benshie. As your Lordships will realise, I have been here most days, and time and time again I have listened to the noble Earl, Lord Perth. May I say that both noble Lords are the very calibre, the very excellence, the very quality and material we want to see in the Assembly. If you searched the length and breadth of Scotland you would not find better examples of the type of people we need, and indeed the Scots warn. Nevertheless, time and time again unhappily the noble Earl, Lord Perth, has drawn distinct and frequent attention to what he considers to be the historical grievances of Scotland because of England's neglect. In fact, he produced three not very good examples on one Amendment, and said that he had another 30. That is one view that I have always been frightened will be pushed in the Assembly time and again.

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As for the noble Lord, Lord Mackie, may I say that every time—if he will not mind my saying so—the Lion of Benshie roars, I expect to hear the skirl of pipes at the head of a Highland army coming over Westminster Bridge. There is no doubt whatsoever in my mind, and I doubt in any of your Lordships' minds, that here you have another view that I have always been frightened of being put forward in the Assembly: we take this Bill because half a cake is better than none, and we want more devolution.
If these two views by two excellent, honest, charming noble Lords are multiplied, which they will be, 100 times in the Assembly, then my fears are really not fears at all, they are alarms. I have no more to say on the Amendment. However, I should like to say to my noble friend, while appreciating fully what is in his mind, that my own view is that I do not think that this Amendment as such should be in the Bill. It is a point which could and ought to be debated in the referendum, and no doubt will be, but it is not going to help the Scots to make up their minds on the Bill if these words are inserted in the Bill. I would hope that my noble friend will not press the Amendment.
8.48 p.m.
Lord WILSON of LANGSIDE: We should be grateful to the noble Marquess for putting down this Amendment because it gives us an opportunity of discussing a number of aspects of the Bill which cannot be too often discussed. This does not mean making a Second Reading speech. There is a myth being created by the skilful advocacy of the noble and learned Lord that everyone is engaged in making Second Reading speeches, and that the reason the other place did not adequately discuss the many provisions of the Bill, which they never even looked at in Committee, was because people were making Second Reading speeches.
This is a myth. The trouble is that every time you look at any part of this Bill you see what is wrong with it. You start talking about it. I think we should have in mind that it was only slowly that Parliament itself has appreciated the many and fatal defects of the Bill. One appreciates that as one reads the debates
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in the other place: only slowly does the penny drop.
As we have sat in this House over the many weeks in which we have been debating, we have become conscious of an increasing awareness of the defects of the Bill. Accordingly, there can be no harm in discussing at length and in detail, those aspects which this particular Amendment raises. We cannot hear too much about it. As the noble Marquess said, the form of question which he proposes focuses the truth, and that makes the Amendment an altogether desirable one to discuss, albeit that he may not wish to press it to a Division.
I hope the noble Marquess will not mind my saying that it is appropriate that he should have tabled the Amendment—which, as I say, focuses the essential and fundamental truth—because if my smattering of history is correct, it was an ancestor of his who replaced Queensbury as Commissioner in 1704 and his followers formed the new Party, the Squadrone Volonte, as it was known, which was jealous of Scotland's interests but loyal to the Union.
Viscount MASSEREENE and FERRARD: While agreeing with the sentiments behind the Amendment, it is clear that the form of words it proposes could not be on a ballot paper. Indeed, if the Amendment were accepted, the noble Earl, Lord Perth, would have every cause to be annoyed because an Amendment of his which would have added the words "Scottish Assembly" was turned down, and at that time my noble friend Lord Ferrers pointed out that even that phrase was loaded. The words proposed in this Amendment are far more loaded and therefore, while I do not think it would be in any way practical politicis to accept it, I appreciate my noble friend's sentiments in tabling it because I feel, as he does, that this may one day lead to the break-up of the United Kingdom.
Lord AUCKLAND: This is my first incursion into the debates on this Bill, despite my strong Scottish blood, and I am certainly not an enthusiastic supporter of the measure. However, I believe that if the Amendment were accepted it would have dangerous legal implications. Referenda are rather foreign to this country and I wonder whether the noble

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and learned Lord, Lord McCluskey, can help by saying whether—leaving aside the case for or against the sentiments of the words proposed—to put such words on the ballot form would infringe electoral law. After all, it would give a one-sided view—a view which in many ways I and many of my noble friends support—but such views should be expressed during the campaign and the ballot form should be kept as brief and non-controversial as possible.
Lord McCLUSKEY: I agree with a number of the speeches that have been made, and because of that I hope I can be brief. We spoke a short while ago about the possibility of getting a loaded question. Without shadow of doubt, if the question contained the words in the Amendment it would be loaded; and I believe that, whatever one's views about the merits of devolution, it will be generally agreed in the Committee that it is important that when the issue is put to the Scottish electorate in the referendum the question should be neutrally expressed. In that way there will be no scope for argument on either side of the fence to contend that the referendum result was unfair and distorted by the form of the question and thus did not reflect the view of the electorate. Apart from the noble Marquess all who have spoken have made the same point.
For this reason the Government are most strongly opposed to the Amendment, which appears to be directed towards influencing voters towards casting a "No" vote. Indeed, those who are in favour of an Assembly and an Executive and the other provisions in the Bill could not be expected to be content if they lost the referendum narrowly when the referendum question had been distorted in that way. Again, I do not think this is a matter on which noble Lords on the Front Bench opposite would disagree with me, because there is a general consensus on the question that should be put. I would remind the Committee that in the EEC referendum there was no attempt in the question to influence the result by giving a one-sided view.
Regarding the question posed by the noble Lord, Lord Auckland, about infringing election law, there is no election law which applies exactly to this situation, as I pointed out in answer to a question
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by the noble Baroness recently. Certain orders may be made which apply Representation of the People Act provisions to the conduct of the referendum, but until that is done there is no electoral law that applies to this, apart from what is contained in the Bill. So I invite the noble Marquess not to press the Amendment.
Earl FERRERS: As the noble and learned Lord almost invited an opinion, I would say that the Amendment has been useful from the point of view of airing a subject about which people feel strongly. I sympathise with my noble friend Lord Tweeddale for tabling the Amendment, although I believe it would be wholly inappropriate to put the words which he proposes in the referendum question. The noble Earl, Lord Perth, withdrew his Amendment the insertion of which was a matter of fact. The insertion of these words would be a matter of opinion, and I believe that to do so would be wholly unsuitable.
The Marquess of TWEEDDALE: I now have three things in common with the noble Earl, Lord Perth. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendment No. 341 not moved.]
8.57 p.m.
The Marquess of TWEEDDALE The Marquess of TWEEDDALE moved Amendment No. 342:
Page 90, leave out lines 41 and 42 and insert—

("

NO

YES

")

The noble Marquess said: I tabled this Amendment because all the ballot papers I have seen to date have been arranged alphabetically—apart from the Common Market one, and that was somewhat different because we were virtually in the Market before we had the referendum.
Lord McCLUSKEY: The noble Marquess anticipated my answer. I have a copy of the Referendum Act with me and the form of ballot paper put the "Yes" box first and the "No" box second. I also consulted this morning the debates in your Lordships' House on the Referendum Bill when it was here in

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the early part of 1975. I saw that nobody proposed any Amendment to the Schedule and the noble Marquess did not choose to come to your Lordships' House to make such a proposal at that time. In the circumstances, I trust that he will not press the Amendment.
The Marquess of LINLITHGOW: The noble and learned Lord, Lord McCluskey, could easily get out of the difficulty. As it is a Scottish referendum, he might use "Aye" instead of "Yes".
Lord WILSON of LANGSIDE: Has the noble and learned Lord thought of having half the ballot papers with "Yes" first and "No" second and the other half with "No" first and "Yes" second?
Lord MOTTISTONE: Perhaps a better way to solve the problem, it being important not to show any priority or bias, would be to turn the rectangle in the Bill—not in the Amendment—90 degrees clockwise with the words at the top and the blanks at the bottom.
The Marquess of TWEEDDALE: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Schedule 17 agreed to.
Clause 81 [Period between general election and referendum]:
9 p.m.
Lord McCLUSKEY Lord McCLUSKEY moved Amendment No. 291:
Clause 81, leave out clause 81 and insert the following new clause:
Period between general election and referendum.
(".If a proclamation summoning a new Parliament is made before a referendum is held in pursuance of section 80 of this Act, the referendum shall not be held earlier than three months after the date of the poll at the election of members for the new Parliament; and if an earlier date has been appointed by Order in Council under paragraph 1 of Schedule 17 to this Act, the Order shall not take effect, but without prejudice to the making of a new Order under that paragraph.").
The noble and learned Lord said: Clause 81 was inserted in the Scotland Bill in the other place against the advice of the Government. In debate, the Minister of State assured the House that
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the Government had no intention of arranging coincidence of referendum and General Election campaigns. The Government opposed the clause on the grounds that it imported an unwelcome degree of rigidity. However, the other place having carried the new clause, the Government inserted the corresponding provisions into the Wales Bill, but in doing so they took the opportunity to make some minor, technical improvements to the clause as originally inserted in the Scotland Bill, and these improvements are now carried through to the Scotland Bill in the present Amendment.
Clause 81, as it stands, does not provide any method of making revised arrangements for the referendum if a Dissolution should occur between the fixing of a date for the referendum, and the actual holding of the referendum. This point is met in the present new clause, which provides that if a Dissolution follows the fixing of the original date, then the order fixing that date shall not take effect, but a new order can be made.
The new clause also refers to the summoning of a new Parliament, whereas the old clause referred to the Dissolution of Parliament. The terminology in the new clause fits better into the structure of the Parliamentary Election Rules, as set out in the Representation of the People Act 1949, and of the Septennial Act 1715. The revised wording has no effect on the timing because standard practice is for the same proclamation to deal with the Dissolution of the old Parliament and the summoning of the new. I beg to move.
The Earl of SELKIRK: Has the noble and learned Lord in mind to have the referendum in the first week of October?
Lord McCLUSKEY: It is not in my mind that the question falls to be finally discussed and resolved.
Clause 82 agreed to.
Schedule 16 [Amendments of enactments]:
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 385:
Page 82, line 30, at end insert—
("THE OPENCAST COAL ACT 1958
16A. After section 2(1) of the Opencast Coal Act 1958 there shall be inserted the following subsection:—
"(1A) The Minister shall not give a direction under this section in relation to land in Scotland unless—

(a) he has, at least twenty-eight days previously, given notice of the proposed direction to a Scottish Secretary, or

(b) a Scottish Secretary has informed him of his agreement to the giving of the proposed direction or to the giving of directions of a class that includes the proposed direction.".

THE PIPE-LINES Act 1962
1613. After section 5(1) of the Pipe-lines Act 1962 there shall be inserted the following subsection:—
"(1A) The Minister shall not give a direction under this section in relation to land in Scotland unless—

(a) he has, at least twenty-eight days previously, given notice of the proposed direction to a Scottish Secretary, or

(b) a Scottish Secretary has informed him of his agreement to the giving of the proposed direction or to the giving of directions of a class that includes the proposed direction.".")

The noble Lord said: This Amendment which involves no change of Government policy, corrects omissions in the Bill in respect of Section 2 of the Opencast Coal Act 1958, and Section 5 of the Pipe-lines Act 1962. References to these two sections were incorporated in Schedule 10 by Government Amendments Nos. 381 and 382, which were agreed to by your Lordships' Committee on 10th May. Both of these provisions concern deemed planning permission, which is a long established procedure under which certain forms of Ministerial authorisation carry with them planning permission for the development concerned. This has the result that the body requiring Ministerial authority for a development does not have to seek planning permission separately from the local planning authority. Deemed planning permission is most commonly granted under Section 37 of the Town and Country Planning (Scotland) Act 1972. Section 37 covers a range of authorisations, some of which will be made after devolution by Government Departments, and some by Scottish Secretaries.
The Government's approach is that, where the authorisation is given by a Government Department, so also should be the deemed planning permission.
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However, it is necessary to take account of the fact that the Scottish Secretary responsible for planning matters in general will have an interest in deemed planning permission granted by Government Departments, and might wish to make representations. Paragraph 34 of Schedule 16 accordingly provides a procedure in relation to Section 37 of the 1972 Act, whereby the Department must give a Scottish Secretary 28 days notice before granting deemed planning permission.
Deemed planning permissions may, however, also be granted under Section 2 of the Opencast Coal Act 1958, and Section 5 of the Pipe-lines Act 1962, with which this Amendment is concerned. Both these provisions relate to authorisations for reserved development, and the Government moved Amendments earlier in Committee stage to ensure that the granting of deemed planning permission under these provisions was also reserved. To complement this we need to provide a procedure whereby the Department concerned (in both cases the Department of Energy) must notify a Scottish Secretary in advance before granting deemed permission. The Amendment thus ensures that the devolved planning interest is not overlooked when the Department of Energy grants deemed planning permission under the Acts of 1958 and 1962, to which I have just referred.
Your Lordships will recall that when my noble and learned friend Lord McCluskey moved the previous Amendments to which I have referred, he undertook to consider a number of detailed points on deemed planning permission made by the noble Viscount, Lord Colville of Culross. Although the noble Viscount is not present at the moment, I have been asked by my noble and learned friend to assure him that he has not overlooked this commitment, and that he intends to write to him very shortly.
Lord CAMPBELL of CROY: As the noble Lord, Lord Kirkhill, has stated, this subject came up under earlier Amendments, and there was a debate in which my noble friend Lord Colville took part, during the course of which he put some points to the Government. These Amendments were on the Marshalled List, and were expected, and we knew that the Government would be moving them as

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part of the business of covering these two Acts, dealing with deemed planning permission. I am glad to hear that the noble and learned Lord, Lord McCluskey, will in due course be answering the points which my noble friend has raised, and I would advise the Committee to accept this Amendment following the debate which took place on the earlier Amendments.
Lord KIRKHILL Lord KIRKHILL moved Amendment No. 386:
Page 82, line 36, leave out ("Boards") and insert ("bodies").
The noble Lord said: This is a minor corrective Amendment. Paragraph 17(1) of Schedule 16 at present refers to,
"the Boards specified in Schedule 3 to the Harbours, Piers and Ferries (Scotland) Act 1937…".
The reference should be to "bodies", and not to "Boards", and the Amendment makes this change. The Government apologise for the mistake.
9.8 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 292:
Page 84, leave out lines 11 to 17.
The noble Lord said: This is the last of the consequential Amendments concerning forestry, and the Committee has taken a decision on that subject. So, on behalf of my noble friends and of the noble Lord, Lord Taylor of Gryfe, I now move this Amendment.
9.9 p.m.
Earl AMHERST Earl AMHERST moved Amendment No. 377:
Page 84, line 47, leave out ("one other member") and insert ("four other members").
The noble Earl said: With the permission of the Committee, I should like to speak to both the Amendments Nos. 377 and 378. It is more convenient to do so because I think one is dependent upon the other, or has an effect upon the other. Irrespective of the political reasons for
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ensuring that the national board members of the Tourist Board have a preponderance by way of numbers over the rest of the board, it is very important to ensure, as these Amendments do, that there is a sufficient number of independent members of the board to carry out the technical and specified duties for which the board has direct responsibility. So much of this business concerns a field of activity overseas which affects tourism both to and in the United Kingdom as an overall matter, and not just in connection with any particular locality. Therefore, to a large extent it lies beyond the purely local interests and responsibilities of the national board members.
To date, this work has been carried out by board committees chaired by one of the independent board members. The amount of this specialised work is very big, is of very large scope, as will be realised when it is remembered that it covers such varied interests as airlines, shipping, the environment, stately homes, car and coach hire companies, railways, hotels, restaurants and many more. To suggest that all these committees could be chaired by one independent board member, as is now suggested in the Bill, seems to me rather absurd. The Committee may remember that when the Tourist Board was first set up the Government provided five independent members. However, these Amendments now provide for a chairman, six national board members and not less than two and not more than four independent board members. I have already said that this allows for a numerical majority of national board members, but, even so, I understand it is perfectly acceptable to the Tourist Board. I strongly recommend these two Amendments to the Committee for acceptance. I beg to move Amendment No. 377.
Lord PONSONBY of SHULBREDE: I must apologise for not being in the Chamber at the time this Amendment was called, but the business suddenly speeded up, I think, and I was taken slightly unwares that we had moved as quickly as we had. These two Amendments propose an increase in the size of the British Tourist Authority. What I should say is that in the original Bill the proposal was that the British Tourist Authority should be composed of the three national board

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chairmen, an independent and a single member, making a board of five in all. This rather dramatically altered the composition of the board from what it is at the present time, when there is a majority of independent members on the board. The present composition is something which the British Tourist Authority has regarded as particularly valuable, as it has meant that they have been able to call to their work a lot of independent members with special expertise, such as members with experience in the hotel industry and of the trade union movement, a financier, people connected with the transport industry, such as the airways or the roads, and people in a number of other fields. The ability of the board to have on it a number of independent members has greatly added to the strength of the board.
The proposal in the Bill means that the control of the British Tourist Authority would switch from the independent members to the three chairmen of the national boards, which would very largely do away with the independent element, except for a single member. This has caused considerable concern within the tourist industry, and since the Bill was first introduced there has been a very long period of discussion about what should be done in this situation. The boards have eventually agreed very largely that the principle of a majority membership for the national boards is one that should be accepted, but that it should be accepted in a way which would still provide for sufficient independent expertise to be brought on to the boards.
Therefore, these two Amendments—the one proposing that the number of representatives from the national boards should be doubled from three to six, and that there should be an increase in the number of independent members—would also allow this additional expertise to be used. I know that the noble Lord, Lord Montagu, who is detained elsewhere but should be with us shortly, felt very strongly that we should alter the terms of our Amendment (which your Lordships will see has been done in the past 48 hours) from proposing that there should be four independent members to proposing that there should be the possibility of there being between two and four. We have understood that the Government would be unhappy if there were more than two independent members, and we have tried
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to meet that point by altering our Amendment in a sense of compromise, to see whether an Amendment which gave the possibility of two, three or four appointments of individual members is one which would commend itself to the Government.
I very much hope that the Government will be able to accept the proposal that we should have a flexible number of independent members, hopefully catering for all the different points of view. I, myself, will say quite strongly that I think the right solution to this problem is that there should be four independent members on the board of the British Tourist Authority. I hope, for the reasons that I have given, that this Amendment will command support.
9.17 p.m.
Lord SANDFORD: I wonder whether I could add my support to this Amendment, but to do so by inquiring from the Government the reason why we have this Amendment here to Schedule 16, as it were, following in consequence of the clause referring to tourism in the main body of the Bill at Clause 65. I presume that that is what it is here for. We have to amend the 1969 Act in order to give effect to what is Clause 65, which we passed last night without discussion. The purpose of Clause 65, as far as I can see it, is to require that the BTA should cease to discharge functions conferred on it by the Act in respect of encouraging people living in Great Britain to take their holidays there. I suppose that follows from the devolution of these functions to Scotland. If people living in Scotland are to be persuaded to take their holidays there, then we must not have the British Tourist Authority trying to discharge the same functions in respect of the whole of the United Kingdom. There would not be anything there to disagree with.
In practice, this is not something that the BTA does. This part of the function of the Tourist Board is, in practice, carried out by the national boards—the Welsh Board in respect of Wales, the Scottish Board in respect of Scotland and the English Board in respect of England—so that there is no change in practice there. The second subsection of Clause 65 puts on to what is a correct, logical statutory basis the arrangements which prevail at the moment whereby the BTA

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exercises, on behalf of all four of the national boards, the function of promoting overseas the tourism attractions of the separate parts of the United Kingdom. Obviously, it is desirable that the BTA continues to do that on behalf of Scotland as on behalf of the other parts of the United Kingdom after devolution.
In practice, there is to be no change at all in what the British Tourist Authority is expected to do on behalf of the United Kingdom after devolution. Although the practice is arrived at on a different basis, the British Tourist Authority still needs to have the same machinery and mechanism and the same number of committees and sub-committees as it has at the moment, as the noble Lord, Lord Ponsonby of Shulbrede, has explained. He is a better person to describe the situation than I am because he is Chairman of the London Tourist Board and knows the inner workings of the authority better than I do. I can vouch for the fact that five separate committees are required ideally all chaired by a board member, and it does not seem to me to be at all useful at this stage to diminish the size of the board for any reason at all.
There is nothing in Clause 65 which leads logically to the amendment of the Tourism Act in the way prescribed in Section 16. I shall listen with great interest in the first instance to the Government's explanation of why this reduction is called for. I cannot see that it follows from Clause 65 or anything else to do with devolution.
9.22 p.m.
Lord MONTAGU of BEAULIEU: I apologise to the Committee for not being here to move my Amendment. To be honest, I have just come from the Royal Academy Dinner. I gave notice on Second Reading that this matter would be raised. It is a very important issue to discuss. I am sure that the noble Lord, Lord Ponsonby of Shulbrede, and the noble Earl, Lord Amherst, have moved the Amendment very well in my absence and I do not want to go over the ground again.
I should like to make one major point: British tourism has had tremendous success since the end of the war, first of all under the old British Travel Association
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and now under the British Tourist Authority. It has produced enormous revenues for this country. There are many who are concerned with the tourist industry who are very anxious about this alteration in the construction and constitution of the board. I am sure that we all recognise the desire of the national boards to have a bigger say in what goes on overseas. That is accepted. I feel that it is a great pity for an industry which up to now has had very little political direction and has been run very much by people who know what they are talking about to bring in what is inevitably going to be a small political board. I have no doubt that even the chairmen of the boards (who are excellent men themselves) rely tremendously on the expertise of those in the hotel industry, shipping and so on.
The great question to ask tonight is this: Is this change in the British Tourist Authority being done in the interests of tourism or is it being done purely for political reasons? We know that this is a highly political Bill. Perhaps it is an embarrassing question but I should like to ask whether the prospects of tourism in the future are really going to be served by reducing the board and throwing off the independent members?
Quite rightly, the Scots Assembly is going to be allowed, through the Scottish Tourist Board, to direct tourism and deal with overseas publicity for that country. The new Welsh Bill (which has now been published) gives the Welsh Tourist Board the same right to carry on overseas publicity. So the only Board that has not got the right is going to be the English Tourist Board. If the Scottish and Welsh tourist boards are going to have the right to deal with overseas publicity, why should England—which has the majority of tourists, far more than Wales and Scotland put together—not have the right to carry out overseas publicity?
This Amendment has been put down in a constructive spirit, hoping that discussion tonight will force out of the Government some statement about their intentions. If the Government feel they are unable to accept it—and it is an easy Amendment to accept because we are still leaving the tourist boards with a majority on the boards—perhaps we can have another look at the matter at Report

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stage. We may be prepared to withdraw this Amendment tonight and reserve the right to put down an Amendment on Report stage if the Government feel that they cannot meet us.
9.25 p.m.
Viscount THURSO: I have great sympathy with both sides on this particular question. I think I see what the Government intend by what they have put into this Bill. They are looking at a situation where the largest number of people who serve on the British Tourist Authority would be appointed by a Minister in Westminster, and they are looking for a way of representing evenly the three tourist areas within the United Kingdom, and putting them, as it were, under an independent chairman. This is presumably why they went for the "shrinking" set-up, with an independent chairman and the chairmen of the three national tourist boards.
That seems to me to be quite a sensible thing to do because it does, in a way, give greater autonomy and greater power to the individual national tourist bodies. On the other hand, I think they have gone too far, and I accept the point which has been put by the three noble Lords who moved these two Amendments, that by these means they have shrunk the British Tourist Authority to a point at which it would not really be able to function properly.
To some extent I agree with the noble Lords in their Amendments, but I do not go all the way. The way I work it out is this. Because I find it easier to look at things pictorially, I drew myself a table of the present situation. There is the Chairman of the BTA and five appointees by the Board of Trade. Then there are the three chairmen of the national tourist boards: English, Scottish and Welsh. That means there are five appointees and four chairmen on the present board.
The Bill drastically reduces the number by making the chairman and one appointee meet up with the three chairmen of the national tourist boards, reducing the total to five, with one independent appointee only and four chairmen. The Amendment swings back, in my view, too far in the other direction, because in the Amendment you have the proposal for a chairman of the British Tourist Authority
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with one, two, three and possibly four appointees. Then you have the three chairmen, each with an appointee coming with him; so that you end up with possibly seven appointees and four chairmen, which means a bigger board than was originally able to operate satisfactorily.
Therefore I would suggest to your Lordships that if we were perhaps to accept the second of these two Amendments and reject the first, we should be doing the best job. We should then have the chairman of the British Tourist Authority and one independent appointee appointed with him. Then there would be the chairman of each of the national tourist boards, each with one appointee. That would give four appointees and four chairmen with, obviously, the chairman of the British Tourist Authority having the casting vote. T think that would leave the balance right in both senses: it would be right territorially, in that there would be an even representation for England, Scotland and Wales and one independent person, and at the same time it would provide four extra experts, one of whom would be Scottish, one Welsh and one English, with the appointed chairman and the extra person appointed with him.
I think that one would get the best of both worlds with this arrangement, and I would strongly urge the Government to look at the possibility of accepting the second Amendment and perhaps discussing the matter with all concerned between now and Report stage. I would certainly support the three noble Lords who have moved these two Amendments in their aim of trying to make the British Tourist Authority a more workable body than it would be if the Bill was passed in its present form.
9.30 p.m.
Lord KIRKHILL: Let me readily acknowledge to the noble Lord, Lord Montagu of Beaulieu, that indeed the Government recognise that the Amendment which stands in his name, and in the names of his noble friends, is of a constructive character. It would be churlish to suggest to your Lordships that that is not so. The Government recognise that it is difficult to get the balance of the membership of the BTA Board right. After devolution, the BTA's role will be confined to overseas

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promotion, and the Scottish Tourist Board, Wales Tourist Board and English Tourist Board will be made solely responsible for domestic promotion relating, respectively, to Scotland, Wales and England. The present proposals in the Bill are designed to take these changes into account and to increase the voice of the national tourist boards in line with their enhanced responsibilities, by giving them a majority on the British Tourist Authority. This policy was foreshadowed in the August 1976 supplementary statement on Devolution to Scotland and Wales (Cmnd. 6585).
May I add, in response to the point made to me by the noble Lord, Lord Sandford, that Clause 65 changes the role of the BTA with respect to the promotion of tourism within Britain, and, in my view, puts beyond doubt the right of the Scottish Tourist Board to use the BTA or another body as its agent in overseas promotion. I make that point here, because if the noble Lord is interested—it would not be right for me to read it out—page 6 of that Command Paper gives a fair summation of the Government's policy.
Lord SANDFORD: Perhaps we can despatch that matter altogether. Is the point that it makes no change, in practice?
Lord KIRKHILL: It will make this change, that I imagine that the Scottish Tourist Board will obviously have to discuss with the British Tourist Authority a "topping-up" arrangement, so far as promotion abroad is concerned. In addition, the Scottish Tourist Board will, of course, be able to engage in overseas promotion themselves. But in view of their enhanced role on the BTA Board, it is expected that this will mainly be confined to special promotions, probably of a "topping-up" character, as T said to the noble Lord, Lord Sandford. This is similar to the powers possessed in this field by local authorities.
The Government maintain that a membership of five is in line with this change in the role of the BTA, and will provide a stronger voice for the national boards. However, in the light of representations made, particularly with respect
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to the difficulties which a small board could create for the BTA in maintaining its committee structure—a point which the noble Lord, Lord Montagu, touched upon—the Government are prepared to accept that there is a case for a larger board than one of five members, and are prepared to look again at the proposals in the Bill.
The intention of the Amendment before the Committee is to leave the question of membership open, as between nine, 10 or 11 members and for the Secretary of State to decide the numbers of independents from time to time. I am bound to tell your Lordships, at this stage, that the Government see difficulties in this approach It will inevitably produce uncertainties, and perhaps friction, and be dependent upon the views of the Secretary of State of the time; although I do not believe that Secretaries of State politicise in the manner that the noble Lord, Lord Montagu, suggested. I believe that independent members are appointed for their expertise, for their knowledge of tourism and for the kind of contribution that they can make to the board. That has been true in the past, and I think that it will continue to be true in the future.
I have to say to the Committee that the Government believe strongly that the question as to number should be resolved within the Bill. A balance needs to be struck between, on the one hand, maintaining the enhanced role for the national boards which is an essential feature of the Government's policy on tourism post-devolution and, on the other, the need to provide the greater flexibility and spread of experience which is desired by the British Tourist Authority and the movers of this Amendment.
I understand that the board of the British Tourist Authority would regard a total membership of nine as an improvement upon a membership of five—from their point of view, for obvious reasons. The Government are inclined to think that such a proposal strikes about the right balance. A membership of nine would comprise a chairman, two members each from the national tourist boards and two other members—that is, three independent members. As I have indicated, the Government are willing to look again at the question of membership of the

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British Tourist Authority. Their consideration will take into account the views expressed by the British Tourist Authority, the national tourist boards and your Lordships in this debate. It would certainly be my intention at the Report stage to lay a Government Amendment.
In the light of what the noble Lord, Lord Montagu of Beaulieu, has just been saying, I believe that at this time the movers of the Amendment will find my position to be acceptable, but I have to say to them that their Amendment is defective. I am told that it would result in Section 1(2)(a) of the 1969 Act reading:

"… a chairman and not more than nor less than two or more than four other members ".
I think there is an indication that the Amendment will be withdrawn. I, for my part, aver that I shall be submitting a Government Amendment at the Report stage. As I have indicated, I undertake to consider the points made this evening by your Lordships.
Lord PONSONBY of SHULBREDE: I thank my noble friend Lord Kirkhill for his reply. I am glad to note that the Government accept the spirit of the Amendment, in the sense that they are happy to see an increase in the size of the board. The point made by the noble Lord, Lord Montagu of Beaulieu, regarding the need to provide for the chairmanship of the sub-committees of the British Tourist Authority, is one of which the Government need to take particular note when considering the terms of the Amendment which they will be putting forward at Report stage.
It is important to ensure that the committee structure of the British Tourist Authority can be kept adequately intact. Those members of the board who are already chairmen or individual members of the national tourist boards will, by their duties on those boards, find it difficult to ally themselves with chairmanships of important sub-committees of the British Tourist Authority. Therefore, as I said earlier, I am still strongly of the view that a board of 11 is about the right figure. That compares with the present eight members and the suggested nine members, as indicated by the noble Lord, Lord Kirkhill, in his reply. Having said that, on behalf of my colleagues I should like to withdraw this Amendment.
Amendment, by leave, withdrawn.
[Amendment No. 378 not moved.]
Lord DRUMALBYN Lord DRUMALBYN moved Amendment No. 293:
Page 85, line 44, at end insert—
("THE LOCAL EMPLOYMENT ACT 1972 (c.5)
"( )In section 7(3) after "Minister of the Crown" insert "or a Scottish Secretary"."").
The noble Lord said: I beg to move Amendment No. 293. This is a short and rather boring Amendment. I need not trouble the Committee with it, provided that the noble and learned Lord can assure me that Clause 78(1) of the Bill enables the term "Minister of the Crown" in subsection (3) of the Local Employment Act to be construed as if it were, or as if it included, a reference to a Scottish Secretary.
Lord McCLUSKEY: I can and I do.
Lord DRUMALBYN: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.40 p.m.
Lord CAMPBELL of CROY Lord CAMPBELL of CROY moved Amendment No. 343:
Page 85, leave out from beginning of line 45 to end of line 14 on page 86.
The noble Lord said: I am afraid that this Amendment will require a little more time than the last Amendment, but I shall be brief. The effect of paragraph 32 of Schedule 16 is to devolve decisions on Summer Time. My Amendment would delete that paragraph. Originally the Government proposed devolving this subject also in the Wales Bill but they have since withdrawn if from that Bill so that it now only appears in this Scotland Bill. In reply to a question in the other place on 2nd May, a Minister, Doctor Summerskill, in explaining the withdrawal from the Wales Bill, referred to the experiment in what was called British Standard Time in 1969 to 1971. This has made me even more concerned about leaving this provision in the Scotland Bill and has fortified me in putting the case for this Amendment. This is because I took a leading

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part, first in Opposition and then in Government, in another place in that controversy in 1969 to 1971, and we were successful when it was decided by a free vote in another place in the sense favoured by a majority of people in Scotland.
The really important point that I wish to put to your Lordships' Committee is that those, including myself, who were opposed at that time to the imposition of what was called British Standard Time considered none the less that the overriding consideration was that the time should be uniform over Britain as a whole. That, we accepted, took priority. We sought to change the decision governing that time system and we were successful, but if we had not been successful and if the free vote in another place had gone the other way we should have preferred the system less favoured in Scotland rather than the creation of separate times north and south of the Border.
I shall not go into detail but it would probably have meant changing the time twice a year because of Summer Time, or possibly four times a year, because, if this matter is devolved, the decision on which Sunday morning the clock should be changed could be different north and south of the Border. The confusion and difficulties arising from that are quite unnecessary; I might mention train times, aircraft times, television programmes, radio programmes— those are just a few of the things which would suffer from having a different time south of the Border from that north of the Border.
But the purpose of devolving this subject can only be to create the possibility of different times north and south of the Border. There can be no other purpose for devolving this subject. As that seems likely to cause the maximum of inconvenience and muddle to many people, both in Scotland and in England, with no benefits that could possibly outweigh the inevitable confusion, I hope that the Government will change their minds with this Bill as they have with the Wales Bill.
The United Kingdom is not nearly large enough to need separate time zones such as there are in continents. Indeed, for obvious reasons, it is when there are large distances from East to West rather than from North to South that there are
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such zones. I hope that the Government will look at this again, as they did in the case of Wales. I beg to move.
9.45 p.m.
Lord MONSON: It is unusual for me to rise to support the contention that a particular matter should remain devolved. In this particular instance I suggest that devolution is in fact justified. There are reasons of latitude and, to a certain extent, longitude why this should be so which do not apply to Wales. The noble Lord, Lord Campbell of Croy, suggested that there would be confusion and difficulty, but after all in the continental United States, where I happen to have spent three and a half years of my life, there are no fewer than four time zones. If one includes Peurto Rico, Alaska and Hawaii there are as many as seven, yet this does not prevent the United States from being one of the world's most prosperous and efficient economies. Therefore I suggest that we should resist this Amendment.
Lord MACKIE of BENSHIE: I am delighted that for once I can agree with the noble Lord, Lord Monson. I think the matter should remain devolved. The question of time is entirely different in Scotland and Wales. At present, as the noble Lord, Lord Campbell of Croy, knows, it is light at home. He also knows that there are reasons why the Scots might not want to change the time. As a farmer, I know that it can be the most frightful nuisance at harvest time and when the cows go out to grass, and frequently mothers complain that they cannot get children to bed on the light nights. Originally the Bill was introduced in order to allow the population the chance to enjoy a long summer evening's leisure after work. That certainly does not apply in Scotland in the summer because we have the most immense amount of light. I agree that it could be the most terrible nuisance to people, perhaps even with a television programme which they want to watch. I think this is a matter which the Scots can well judge for themselves and for which the Assembly should be responsible. It should be able to judge what is the greater convenience for the majority of citizens. I cannot imagine that the Government, who, as noble Lords may have noticed are not giving nearly

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enough powers for my liking to the Assembly in this rather niggardly Bill, will allow this one piece of devolved matter to be whittled away even further.
Baroness ELLIOT of HARWOOD: I live on the Border and every time I want to catch a train I have to go into England to Carlisle, or into Berwick on the other side. If I want to catch an aeroplane I have to go to Newcastle. Nothing in the world is more boring, tiresome and inconvenient than to have different times and timetables which are not similar on both sides of the Border. I am also a farmer like the noble Lord, Lord Mackie, and I know exactly how inconvenient it is to have changes. But of course it is far more inconvenient if the changes in Scotland are different from those in England.
For that reason, I would support the noble Lord, Lord Campbell of Croy, so that one can be sure that the changes will be simultaneous and one will not have the appalling problem of wondering, or forgetting sometimes, and having to find out what changes there are every time one has to catch a train or an aeroplane. I hope the Government will accept the Amendment.
The Marquess of LINLITHGOW: I understand that one of the very few subjects not reserved by silence is pest control. If pest control is reserved on the basis that pests do not recognise frontiers, I should have thought that that would apply in exactly the same way to daylight and dark hours and I fail to see that one does not follow from the other. I live in the South and travel a lot between London and Edinburgh and I am horrified by the idea of having a different time schedule in Scotland to that in England. I support the Amendment.
Lord MOTTISTONE: I must tell the Committee that though I personally support the Amendment I am sure that my wife, if she were allowed into this Chamber, would support the Government on this issue. Every October she grumbles about the change to winter time which she dislikes and attributes blame to the Scots for causing the situation to take place.
9.50 p.m.
Lord KIRKHILL: Rising to reply to the Amendment with the support of Lord Mottistone's wife, I should say that the entry for the Summer Time Act 1972 in Schedule 16 of the Bill confers executive powers on the Assembly to designate, by order, the period and time of Summer Time for Scotland. I think it should be noted that the Assembly will not have the power to legislate substantively about Summer Time. In the Government's view Summer Time is an issue for which there are reasonable arguments. I must admit most of them have already been put to your Lordships by the noble Lord, Lord Mackie of Benshie. I am rather bereft of words. But the Government do think that there are reasonable arguments for allowing differences in practice between Scotland and the rest of Great Britain if this is desired by the Scottish people.
By providing for Executive devolution the Government are not concluding that there should be differences in Scotland and the rest of the United Kingdom, but we have come to the view that it is entirely appropriate that Scotland itself should decide on a matter which affects social life and carries with it implications for safety, efficiency and convenience, both generally and for certain industries. Arrangements for Summer Time which are appropriate to England and Wales might not be judged suitable for Scotland.
I must refer to my right honourable ministerial friend in the other place, at the risk of taking a contrary view to that of the noble Lord, Lord Campbell of Croy, and again refer to the British Standard Time experiment which lasted between 1969 and 1971, to which he referred. A survey carried out at the time, published in Cmnd 4512, which I am sure the noble Lord will be more aware of than I am, brought out that, while there was an overall majority in the United Kingdom in favour of making the experiment permanent, a majority of people in Scotland were against it. The resultant period of early morning darkness was seen as a hazard for travel to work and school and was opposed strongly by outdoor industries such as building and most of those who are in farming.
I contend that this experience points to the conclusion that Summer Time is

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something on which there may well be arguments for differing Scottish practice, although I am well aware that the noble Lord, Lord Campbell of Croy, will proceed to prove quite the opposite. I see the point he is about to make, and I thought I would tell him that while I am on my feet. Inevitably there will be other considerations for a Scottish Administration contemplating changes to Summer Time; for example, transport timetabling, commercial and industrial communications. I think we would all be making a mistake if we assumed that an elected Assembly in Scotland would not carefully weigh all the relevant considerations. I must stress again that in the Bill the Government are not imposing any necessity for change; we are providing only for the possibility of such a change if there is clear advantage in the minds of the devolved Administration for so doing.
Earl FERRERS: I am bound to say I do not think the noble Lord's answer is at all convincing. It seems to me it would be perfectly "crackers" to have different times in Scotland and in England and in Wales. The Government have recognised that this is so, and so they have said Wales will not have a different time, but England and Scotland can. I would be grateful if the noble Lord would address his mind to one problem. We had a discussion on Clause 3 relating to the dissolution of the Assembly. The election to the Assembly takes place on a Thursday and the Assembly stands dissolved on the Wednesday. We concluded that the Assembly could not, therefore, be operative on the Wednesday. It was operative on the Tuesday, and therefore it actually dissolved itself at midnight between the Tuesday and Wednesday. What time is that going to be, because of course the Secretary of State has to lay an order in London dissolving the Assembly. Will it be dissolved at midnight London time or at midnight Edinburgh time?
Lord KIRKHILL: It will, of course, depend initially on whether there is to be any difference in the two times, will it not?
Earl FERRERS: With respect it does not. Assuming that there is a difference
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between the two times the problem will be there.
Lord KIRKHILL: All that I can say is that I did not really understand the point which the noble Earl made on Clause 3. I became quite confused. I was left at about five minutes to twelve on that one.
Lord STONE: This is obviously beyond human knowledge to cope with, and I suggest we leave it to a computer.
Lord CAMPBELL of CROY: The Government's reply really amounts to this. Let us give the new Assembly the opportunity to take decisions on this matter, but it would be most unwise of it in fact to take a decision which would make the time in Scotland different from that in the rest of the United Kingdom. Therefore, it is really just giving the scope for this to be done, but bringing out that in fact it would be crazy for a different time to be determined in Scotland. That is why we thought that it was not worth putting it in the Bill. However, if the Government want to put it in then that presumably is their decision.
I should like to deal with the points which have been raised. The noble Lord, Lord Monson, spoke about time zones. It seems that I have lived longer in the United States of America than he has, but then I spent some years as a diplomatist and it was largely in that capacity that I became very much aware of the time zones in a country as large as that. I am also very much aware that that country would have liked to avoid them if it could. However, with a country three thousand miles wide different parts of it fall into different time zones of the world.
In my capacity as diplomatist I was continually having to think wherever I was posted in the world what was the time in London, especially if I wanted to telephone the Foreign Office or to send a telegram. I also had to consider what was the time in Washington—it may have been the middle of the night, in which case I could not telephone. Those are the kind of considerations one has to accept on a world basis or in an international situation. Geographically we are a small country in the United

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Kingdom in relation to the size of our population. That creates a number of disadvantages for us, but at least we have the one advantage that we do not need to have different times.
What the noble Lord, Lord Kirkhill, said about the majority opinion in Scotland and its confirmation in a White Paper at the time is something which, of course, I know and to which I referred. I said that it was definitely known that the majority of people in Scotland were against the system which had been introduced experimentally. We knew that. However, I added that those who were fighting the cause for them none the less recognised that the most important point was that there should be uniform time. Therefore, we were fighting the case for the time over Britain as a whole. We were not fighting the case for having a separate system in Scotland. We won. I am glad to say
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that we had very good support from our English colleagues and some Welsh colleagues, including, I think, the noble Lord, Lord Davies of Leek, who was in another place at that time, and other Members of another place, on both sides of the House, who represented constituencies in England. As a result the system which was experimentally introduced was discarded in favour of the system for the whole country for which there was a clear majority of opinion in Scotland.
This matter has had an airing. The Government's view virtually comes down to what I have just said: that they are giving the Assembly the opportunity; but it would be crazy, in fact, to do anything about it. On that basis I am prepared to withdraw the Amendment.
Amendment, by leave, withdrawn.
Schedule 16, as amended, agreed to.
10.2 p.m.
In the Title:
Lord MORRIS Lord MORRIS moved Amendment No. 344:
Line 2, after ("Scotland") insert ("and of the United Kingdom").
The noble Lord said: I beg to move Amendment No. 344. In moving this Amendment I ask noble Lords to beware. Lord McCluskey's continual lack of aggressiveness, his gentleness, married to his great advocacy and his fine humour throughout the whole Committee stage, to which I wish to pay tribute. However, I ask that noble Lords watch out because if they do not it will surely seduce us all. As one in no way in the same league as the noble and learned Lord, Lord McCluskey, I ask that your Lordships look carefully to the argument rather than to his heady Scottish charm. I ask that noble Lords also beware for another reason. I can almost hear certain noble Lords wriggling with anticipation in thinking that this Amendment would be a good vehicle by which to raise certain broad points of principle yet again which would not necessarily relate to this Amendment which is, of its nature, rather narrow and technical. I believe that to do so would be a pity because it might water the brandy, so to speak, of the argument.
We now come to the icing on the cake, or rather the icing on this Scotch bun—this unwholesome bap. The function of a Long Title to a Bill is two-fold. Like the icing on a cake, the Long Title should limit the contents of a Bill. Secondly, as the word implies, it should describe briefly the contents of the Bill. As I understand it, when a Bill is read a first time and ordered to be printed, the Bill as printed cannot include anything which does not fall within the four corners of the Title. I submit that this Bill is defective, in that it does include matters which do not fall within the four corners of the Title. Furthermore, if at a later stage additional matter, not warranted by the Title, is added to the Bill, the Title can, and indeed must, be amended consequentially.
Similarly, it must flow from that argument that if any matter is subtracted from the Bill by Amendment, which matter being warranted by the Title,
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again the Long Title can, and indeed must, be amended consequentially so as to remove defects in the Title. I submit that the Long Title should be amended as a strict consequence of an Amendment to the Bill in another place. With respect, and subject to any assistance that noble Lords who are lawyers can give me, I believe there to be only one sound defence to these submissions; that is, that an Amendment to the Title is unnecessary because the contents of the Bill are already covered without the necessity of an Amendment to the Title.
I propose to attempt to argue that the contents of the Bill are already not covered by the Title of the Bill as it stands. The Title to the Bill states, inter alia:
"An Act to provide for changes in the government of Scotland".
I maintain that it must be construed from this that the word "government" in the Title cannot mean government in the strict legal sense of the word. There is no Government of Scotland; there is a Government of the United Kingdom. Even Parliament cannot change something that does not exist. Thus it must flow from this that the term "government" in the Title is used in the broad sense of governance, or governing, of Scotland. By the same token it is axiomatic that any change in the governance of Scotland must be a change in the Government of the United Kingdom.
No doubt the noble and learned Lord will argue that because Scotland is part of the United Kingdom, it would then be tautologous to insert, "and of the United Kingdom", as my Amendment suggests. However, to omit it would, to quote the noble and learned Lord, Lord Hailsham of Saint Marylebone, be wholly "misleading and dishonest", for anyone, including the Government, can surely not by now be under any delusion that this Bill affects only the governance of Scotland. It does not.
Let me illustrate what I mean. As noble Lords will recall, Clause 80 states:
"Before a draft of the first order to be made under Section 79 of this Act is laid before Parliament a referendum shall be held in accordance with Schedule 17 to this Act on the question whether effect is to be given to the provisions of this Act."

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Subsequently, Clause 80(2) provides:
"If it appears to the Secretary of State that less than 40 per cent. of the persons entitled to vote in the referendum have voted 'Yes' in reply to the question posed in the Appendix to Schedule 17 to this Act he shall lay before Parliament the draft of an Order in Council for the repeal of this Act."
That only a small minority of the United Kingdom should have the power to sway Parliament by determining whether or not the stated will of Parliament be proceeded with is, to my mind, a fundamental change in the Government of the United Kingdom.
Again, let us look at Clause 34 in the Bill. Clause 34 (1) says:
"Her Majesty may by Order in Council make arty such amendments of the law of the United Kingdom or any part of it (including any provision contained in this Act) and such further provision as appear to Her to be necessary or expedient in consequence of any provisions made by or under any Scottish Assembly Act."
As my noble friend the "Ear" of Mansfield—as Hansard rather quaintly describes him —said at column 1618 on 25th April:
"… this is a fairly novel way of changing the law"—
of any part of the United Kingdom.
We can also look at Clause 32 in the Bill, which provides:
"Arrangements may be made between a Scottish Secretary and any relevant authority for any functions of one of them to be discharged by, or by officers of, the other, and for the provision by one of them for the other of administrative, professional or technical services."
Then, subsection (3) goes on to define "relevant authority". It states:
"In this section 'relevant authority' means any department of the Government of the United Kingdom and any public or local authority or public corporation."
I may seem to be naive, but I see in this patent powers to make changes in the Government of the United Kingdom.
Similarly, may I draw your Lordships' attention to Clause 78 (3). This provides:
"A Minister of the Crown may by order make such amendments in any Act passed before or in the same session as this Act and in any other enactment passed or made before the passing of this Act as appear to him necessary or expedient in consequence of this Act."
Your Lordships will have noticed that this power is not limited to affect a United Kingdom Act upon Scotland. It permits
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any United Kingdom Act to be amended. Should there be any doubts in your Lordships' minds that the Title of the Bill be amended to include the words "and of the United Kingdom", may I draw your Lordships' attention to the fact that the Government have, in this House and in another place, admitted that this Bill gives power to the Scottish Assembly to change the law of the United Kingdom other than in Scotland.
In answering for the Government in another place to an Amendment proposed to paragraph 8 of Schedule 2, the Minister said—and I quote from the Commons' Official Report of 29th November of last year, column 418:
"If we did not deal with it by having these ancillary provisions it would be necessary to pass an Act of Parliament to make all the consequential changes in United Kingdom legislation."
Indeed, the noble and learned Lord, Lord McCluskey, said in regard to the same Amendment in this House on 18th April at column 1031 of the Official Report:
"The whole purpose of paragraph 8 of Schedule 2 is to allow the Scottish Assembly to change the law which applies South of the Border in so far as it falls within the wording of paragraph 8 of Schedule 2."
This Bill is defective. As printed this Bill does not fall within the four corners of the Title. The contents of the Bill are not covered by the Title. Notwithstanding what has gone before, it follows from what I said in my opening remarks that, all other things being equal, which as we have seen they are not, one should never amend a Title unless the Amendment is strictly consequential on an Amendment to the body of the Bill, or unless there are other exceptional or pressing reasons for doing so.
Your Lordships will recall that in another place the old Clause 1 was thrown out. That clause provided:
"The following provisions of this Act make changes in the Government of Scotland as part of the United Kingdom. They do not affect the unity of the United Kingdom or the supreme authority of Parliament to make laws for the United Kingdom or any part of it."
I submit that, by defeating that clause, the other place were in effect saying that the provisions of the Bill do affect the unity of the United Kingdom, that they do affect the supreme authority of Parliament to make laws for the United Kingdom

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or any part of it, and we have seen that that is so.
The Commons Amendment is not reflected in the Lona Title. I believe it to be of fundamental importance that this constitutional fact, being of the essence of the Bill, is spelt out in the Long Title, and my reasons for believing that as strongly as I do are two-fold. First, there is sound legal reason why a Long Title should be correct. Secondly, I have a deep anxiety, as always—I say this with due humility—to assist the noble and learned Lord to get the Bill right.
In Vacher and Sons v. London Society of Compositors (1913) LR 550, Lord Moulton, sitting with the then Lord Chancellor, Lord Haldane, and the great Lord McNaghten, Lord Atkinson and Lord Shaw of Dunfermline concurring, said in his judgment:
"The title of an Act is undoubtedly part of the Act itself and it is legitimate to use it for the purpose of interpreting the Act as a whole and ascertaining its scope. This is not the case with the short title, which in this instance is the Trade Disputes Act 1906. That is a title given to the Act solely for the purpose of facility of reference; if I may use the phrase, it is a statutory nickname to obviate the necessity of always referring to the Act under its full and descriptive title."
I quote another authority, Professor G. C. Thornton, in his text Legislative Drafting, in which he wrote:
"Apart from parliamentary considerations, a comprehensive long title may serve a valuable purpose in assisting to communicate the intended spirit and scope of the Act. The long title presents one opportunity to the draftsman to say in plain terms what he is about."
I hope the noble and learned Lord, Lord McCluskey, will forgive me for taking so long in moving the Amendment; I am short on the skills of advocacy which he so ably demonstrates. I feel confident, however, that he will consider my stumbling arguments with his customary care and wisdom. I beg to move.
10.15 p.m.
Lord McCLUSKEY: First, I should like to thank the noble Lord for his compliments, before turning to the substance of his speech. The description of a Long Title, as given on page 465 of the 19th Edition of Erskine May, is as follows:—
"The Long Title sets out in general terms the purpose of the Bill, and should cover everything in the Bill."
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That, we believe, is what is achieved by the Long Title of the present Bill which, as it stands, has the merits of brevity and accuracy, and no Amendment made in the other place, or in this House, necessitates its amendment. The Bill is about the future government of Scotland and its general effect is in relation to Scotland, as the limitation of the referendum to Scotland recognises, and indeed as is apparent from Schedule 2, to which the noble Lord referred in the course of his argument.
Of course, no change is without its indirect effects, and the Government do not argue that there will be no indirect effects outside Scotland. But it is a plain statement of fact that the proposals in the Bill do not directly affect the government of the United Kingdom as such. The change in the Long Title proposed by the noble Lord is, therefore, inappropriate. I should go a little further and say that in the Northern Ireland Constitution Act 1973, which was approved by your Lordships' House, the Long Title read:
"An Act to make new provision for the government of Northern Ireland."
I believe that that is an almost exact precedent for the choice of Title here.
As I understand the argument which the noble Lord has prepared with such care, it really comes to this: any change in the law of any part of the United Kingdom necessitates a change in the government of the United Kingdom. If that be the right view, then almost every Bill that comes before your Lordships' House makes some change in the law of the United Kingdom. Almost every Bill contains some addition to, or diminution of, the powers of, for example, a Secretary of State or other Ministers. It changes the constitution and powers of bodies and the like.
Therefore, if the noble Lord's argument is right, almost every Bill would have to include in its Long Title the words:
"… to provide for changes in the government of the United Kingdom."
That cannot be right, and I suspect that the weakness of the argument is as I have suggested; namely, that the noble Lord is confusing changes in the law with change in the government. I believe that the Title is accurate as it stands. If there are

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others prepared to support the noble Lord, I shall listen with interest to what they say, but I do not believe that his argument carries conviction.
Lord MORRIS: When the noble and learned Lord suggests that my argument that any change in the law necessitates a change in the government of the United Kingdom is weak, I take his point. But I feel that it is wrong of him conveniently to forget the fact that this Bill is changing the whole of the Constitution of the United Kingdom, and in this respect I feel very strongly that the Long Title should be amended as I propose.
Lord McCLUSKEY: I should like to give another example. Let us take one of the local government Bills as we see them in your Lordships' House. Such a Bill may well contain a provision allowing certain competences to local authorities, or to groups of local authorities. On the argument that the noble Lord has presented, that would make a change in the government of the United Kingdom, and so every local government Act ought to have in its Long Title the words,
"An Act to provide for changes in the government of the United Kingdom."
That surely cannot be right, and I really cannot do other than reaffirm what I have said.
Lord MORRIS: I feel that the noble and learned Lord has forgotten the opening point I made; that is, that the term "government" in the Long Title is not used in the strict legal sense of the term "government", as it cannot be. The reference is not to local government, but to government, and the Government of Scotland does not exist at the present time. There is a Government of the United Kingdom. In other words, the word is being used in a very broad sense. If that is the case, then obviously any change in the Constitution of the government of this country by devolving power must necessarily be a change in the government of the United Kingdom. I think that this is very misleading. In fact, I think it is dishonest, to quote the noble and learned Lord, Lord Hailsham of Saint Marylebone, in a debate on the Long Title of the Unfair Contract Terms Bill, when he suggested that if the Title
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of the Bill is misleading, it should be changed.
Lord McCLUSKEY: I am sorry; it may be that I misheard the noble Lord, or maybe I misheard myself, but I do not recall quoting Lord Hailsham in any context at all. I do recall a learned contribution by the noble and learned Lord in the course of discussing the Unfair Contract Terms Bill, and that many people had feelings about whether that was an appropriate Title, but far be it from me to quote the noble and learned Lord at this time of night in relation to that matter. I certainly did not do so, or if I did do so—
Lord MORRIS: No—I did.
Lord McCLUSKEY: The noble Lord said it was unfair and dishonest.
Lord MORRIS: No. The noble and learned Lord, Lord Hailsham, was maintaining that if the Long Title of the Bill be misleading it would necessarily be dishonest. I think this is quite important. I think the Long Title to this Bill is misleading, because it does not spell out to everyone in the United Kingdom that it affects the government of the whole country. I think this has been made manifestly clear.
Lord HARMAR-NICHOLLS: I am sorry I did not hear the beginning—
Several noble Lords: Order, Order!
Lord HARMAR-NICHOLLS: I apologise to your Lordships. I have been looking at this Amendment, set down by my noble friend, ever since it has been on the Marshalled List, and there is no doubt about it: it is a dishonest Bill if the Title does not make it clear that this Bill affects the United Kingdom as much as it affects Scotland—indeed, perhaps more. I cast a fly with the noble and learned Lord, he will remember, the other night, when, by one of his Amendments, my noble friend Lord Selkirk tried to have inserted the words, "United Kingdom", and the noble and learned Lord resisted those words being put in for reasons which he then adduced.

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I, with my eye on this Amendment, and with tongue in the cheek, I confess, asked the noble and learned Lord why it was that he seemed so reluctant to include the words "United Kingdom" when it affected it so much. The noble and learned Lord quoted about three pages out of the Bill, pointing out how many times the words "United Kingdom" were mentioned; and he went to great lengths to say how much it affected the United Kingdom and that that was why the United Kingdom was included in the Bill. It is on the record. I think the noble and learned Lord will see that he resisted my comment that he was not prepared to include it on this occasion by saying how many times it had been included.
Lord McCLUSKEY: But, really, the noble Lord did not hear what I said because he was not here to hear it just now, and he is misremembering what he heard me say the other night. What he suggested the other night was that we were frightened of the term "United Kingdom", and I, in the flash of an eye, produced six references to the United Kingdom from about seven consecutive clauses. That is what happened the other night, and it is a pity to misrepresent it.
Lord HARMAR-NICHOLLS: I thought I was saying precisely that. I accept that version of what happened the other night. I am saying that in the space of a second or two the noble and learned Lord pointed out where the words "United Kingdom" had been included six times on one page; and he is quite right in saying that if one went through the Bill one would find dozens of occasions when the United Kingdom is mentioned. I maintain that the number of times the United Kingdom is mentioned in the Bill, as was confirmed by the noble and learned Lord the other evening and reaffirmed a second ago at the Box, is itself a justification for recognising that this Bill truly affects in depth and fundamentally the United Kingdom in addition to Scotland.
If that is the fact—and I believe it is the fact—the Long Title ought to proclaim it; and I would have felt that the
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noble and learned Lord and the Government were giving nothing away to recognise that. Because whether or not they are prepared to have it put into print, that is the general impression that is abroad, because it is a true impression. I would have thought—we are getting to the end of the Committee stage now, and the noble and learned Lord will be delighted at that—that this was one of the Amendments he could accept without losing anything. Indeed, it would, as my noble friend has said, be honest, because to pretend, as one tried to make clear in the Second Reading debate, that this Bill does not affect the United Kingdom and the potential even more than it affects Scotland is to deny the facts that very clearly exist here.
I do not know whether it is too late. I apologise for what seems to be a discourteous intervention. I am always incurring the displeasure of the noble Baroness; and I am president of her fan club. But I am always doing that. I never mind incurring the displeasure of the noble Baroness; and I will tell you why. If I am going to he knocked down by a motor car, I want to be knocked down by a Rolls-Royce. In terms of importance and in terms of the silhouette and everything that goes with it, the noble Baroness is a Rolls-Royce. So I do not mind that. Having said that, I am incurring her displeasure for just another moment. This is where we can be honest. We can put in the Long Title what the Bill itself says. Whatever the noble and learned Lord may have on the record up to now, would he now give an indication that even at this late hour there is a possibility that the Long Title can display what the Bill really means—something which affects Scotland and, even more, something which affects the United Kingdom?
Lord McCLUSKEY: The noble Lord reminds me of something which I used to write in autograph books:
"By hook or by crook,
I'II be last in this book."
The answer to his question is that I am perfectly satisfied that the Title of the Bill is adequate and proper in relation to the contents of the Bill.
Lord MONSON: The noble Lord, Lord Morris, has made out a good, if

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not necessarily a watertight case for this Amendment. Is there not a great deal to be said for giving the House of Commons a chance to examine it? If they reject it, so be it. But at least give them the chance to have a look at it.
Earl FERRERS: Before this finally disappears, may I just say this. It is the last Amendment on this Committee stage. I should like to thank the noble and learned Lord, Lord McCluskey, the noble Lord, Lord Kirkhill, the noble Baroness, Lady Stedman, and the noble and learned Lord the Lord Chancellor, because they have stuck at this Bill. They have displayed immense courtesy and immense patience. We are extremely grateful to them for that. If I might be permitted to say so, the noble and learned Lord, Lord McCluskey, has borne the burden and heat of the day with this Bill. We have been quite amazed at the way in which he has been able to take this Bill up and refer to different sections of it as if he knows the thing by heart, which I am sure he does, and it must be written on his heart as no other Bill could have been.
It is not insignificant to think that we have achieved all of this Bill in 13 Committee days without the guillotine; that compares with 14 Committee days in the other place with the guillotine. What reflections one draws from that is up to individual people, but it is remarkable. In thanking the noble and learned Lord and his team for their courtesy, I should like also to thank the staff of the House who have made it possible for us to do this in a very agreeable fashion.
Lord MACKIE of BENSHIE: Before the noble and learned Lord replies, I should like to associate myself without reservation with everything the noble Earl has said. It has been an extraordinary amount of work. I have greatly admired the work of the Government Front Bench team and I must say that I have rather admired the work of the Conservative Front Bench team, in that there is no question that every clause and every Schedule has been examined seriously. Although I have not agreed with what was done in some Amendments, it has been serious and an object lesson in the working of democracy, I should think. There have been one or two noble Lords who have aroused my ire
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by the length of time they have gone on; but if they do not watch it, far from being popular and liked, it will come to be that people will not mind what sort of bus runs down the noble Lord, Lord Harmar-Nicholls. I have greatly enjoyed his wit, but there has been a little too much of it. With these remarks, I will sit down.
The Earl of PERTH: May I from the Cross-Benches also thank all those who have spoken. A short while ago, I said that if the two Front Benches are in collusion it is a bad thing and a had reason for agreeing to do anything. In this case, I am sure that the Government are going to say the same thing as the noble Earl, Lord Ferrers, has said; and, in this case, I would go along with that entirely. It has been a remarkable occurrence in the Committee stage which has gone through so quickly and in such good temper. I think that we send back to the other place a Bill—well, perhaps, it is too early to say that, for we yet have to have the Report stage. But we have a Bill for the Report stage which is a better Bill than when it came to us.
10.30 p.m.
Lord McCLUSKEY: Perhaps I might be allowed to say one or two words. First of all, I acknowledge and thank very much indeed those noble Lords who have said such kind things about the Front Bench team here. I am going to be very naughty and not reciprocate the compliment simply because I am waiting to see how the Front Benches opposite behave on Report stage. I can say this: if they behave as well and as responsibly on Report stage as they have in Committee, then we will have done an excellent job on the whole Bill, as indeed I believe the Committee have done in looking at the matter in detail. The lesson I would draw about the guillotine is that a very generous period of time was allowed in another place, as we have demonstrated.
The staff have been mentioned, and we owe them an immense debt. I should like publicly to acknowledge that. They have uncomplainingly put up with our weird hours. In relation to what the noble Earl, Lord Perth, has said, one begins to feel that one is a member of a small esoteric club here: perhaps we ought to strike a tie, although I am not quite sure how many knots we would have to tie in it!
Lord MORRIS: While agreeing with all those noble sentiments stated by my own Front Bench, the Liberal Bench and the Cross-Benches, I must say that I am extremely disappointed. I have never felt more like Back-Bench "fodder" than I do at the moment. This is demonstrated by the hideous silence from my own Front Bench in regard to the Amendment. May I ask their advice in this matter? I feel very strongly about this and I am disposed to press this Amendment to a Division. I must ask my Front Bench to advise me whether or not I should do so.
Lord CAMPBELL of CROY: In answer to that invitation, we have the Report stage coming, and I should be very surprised if there are not going to be further Amendments which will be accepted by the Government or pressed and divided upon. Then there is the Third Reading and there may also be other Amendments. So I do not think one can at this stage know what the final content of the Bill will be, and I should have thought that the right move for my noble friend at this moment, having made this point now, would be to withdraw,
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because until one sees what will be in the Bill in the end, one cannot take a final decision on the Title. That is the reason why this is always taken at the end of the proceedings. I hope that that advice seems reasonable.
Lord MORRIS: It does sound very reasonable indeed. Unfortunately, I misled myself because I asked advice on this point and I obviously completely misunderstood it. In the light of what the noble Lord has said, I am happy to withdraw this Amendment.
Amendment, by leave, withdrawn.
Title agreed to.
House resumed: Bill reported with Amendments.

ADOPTION (SCOTLAND) BILL [H.L.]
Reported from the Joint Committee with an Amendment, and recommitted to a Committee of the Whole House; Bill to be printed as amended.
House adjourned at twenty-six minutes before eleven o'clock.