§ 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.
409 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 410 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.
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 411 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 412 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.
413 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 414 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.
415 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.
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 416 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- 417 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.
418 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 419 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 420 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 421 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 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 422 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
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 424 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.
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.
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 426 "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 wordsthe 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 427 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 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,").428
§ 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 429 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 430 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.
431 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 432 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 433 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 434 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.
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 moved Amendment No. 342:
§ Page 90, leave out lines 41 and 42 and insert—
§ 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 435 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.
§ Amendment, by leave, withdrawn.
§ Schedule 17 agreed to.
§ Clause 81 [Period between general election and referendum]:
§ 9 p.m.
§ 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 436 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?
§ Clause 82 agreed to.
§ Schedule 16 [Amendments of enactments]:
Lord KIRKHILL moved Amendment No. 385:
Page 82, line 30, at end insert—
(1A) The Minister shall not give a direction under this section in relation to land in Scotland unless—
(1A) The Minister shall not give a direction under this section in relation to land in Scotland unless—
§ 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. 438 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 439 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 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 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 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 440 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 441 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 442 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 443 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 444 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 445 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 446 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 447 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 448 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 449 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 moved Amendment No. 293:
Page 85, line 44, at end insert—
§ "( )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.
§ Amendment, by leave, withdrawn.
§ 9.40 p.m.
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 451 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 452 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 453 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 455 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.
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?
With respect it does not. Assuming that there is a difference 456 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 457 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 458 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.459
§ 10.2 p.m.
§ In the Title:
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, 460 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.
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 462 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
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.464 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 465 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.
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.
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 466 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—
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 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. 467 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 468 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 469 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.
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 470 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!
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, 472 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.
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.