Scotland Bill

HL Deb 08 July 1998 vol 591 cc1277-301

5.55 p.m.

House again in Committee on Clause 1.

Lord Mackay of Ardbrecknish moved Amendment No. 2: Page 1, line 11, leave out subsection (3).

The noble Lord said: In moving the amendment, I speak to the amendments standing in my name on the Marshalled List which are grouped with it.

This is a straightforward amendment. We do not need to worry too much about the consequential amendments that go with it. The amendment relates to the voting system. Not only are the Government proposing major constitutional changes to the way we have governed the United Kingdom for many years; they are also proposing major changes to the voting system. It is a system to which we have become accustomed and one which I and many others believe has served this country and the rest of the English-speaking world extraordinarily well over the long march of history.

In this Bill, the European Parliamentary Elections Bill, and the Welsh Bill, the Government intend to replace the traditional first-past-the-post system with a system of proportional representation. The amendment removes from the Bill all those parts which introduce proportional representation. If I were successful, and the Committee were to agree with me, the Bill would have a first-past-the-post electoral system for the Scottish parliament.

I have no doubt that the Minister will tell me—if he does not someone else will—that I am looking a gift horse in the mouth. Earlier today the noble Lord, Lord Gordon of Strathblane, told me that the Government were magnanimously throwing a lifebelt to the Conservative Party in Scotland. That is the weakest of all arguments for a change in electoral systems. (I thought that I might receive support on that!) I do not believe that one should campaign to change electoral systems simply because at one point in time a party would gain some electoral advantage from it; and, conversely, because the electoral system that we have had for many years has worked against a party in one or more elections. That is not a good argument for choosing electoral systems.

The Bill creates two classes of Members of Parliament in the Scottish parliament. Two-thirds will be elected in a conventional first-past-the-post system. The other one third will be wholly unaccountable to the electorate as individuals. Because of that, it will also transfer power from individuals to the political parties. It will add complication to what I believe is a simple democratic system which has served this country well for a long time.

At present—I hope that it may soon end—the case for the first-past-the-post system is not being heard as clearly as it should be. The commission set up by the Government has been told not to consider the merits of the first-past-the-post system. It has only to consider proportional representation—the different methods of fiddling the voting system and what fiddle tune should be chosen. As I have said before to your Lordships, it seems odd that a review of the electoral system should be set up consisting entirely of people who are signed-up members of not first-past-the-post.

6 p.m.

Earl Russell

I have asked the noble Lord before to withdraw that representation of the Jenkins Commission. It is inaccurate. The commission is not designed to review the electoral system. It is designed to produce one runner from a stable to run against first-past-the-post. Any supporter of first-past-the-post on the commission would suffer from a severe conflict of interest. I hope the noble Lord will not repeat that argument.

Lord Mackay of Ardbrecknish

I shall, because every time I repeat it I receive the kind of assurance that I have just had. The more times that I have that assurance, the better I am pleased. The fact is that when the Jenkins Commission brings forward its proposals, we can rest assured that the fanatics for PR will not make that fine distinction. It will be said, "That is the proposal these wise men have come up with to knock down first-past-the-post". The fact that the commission has not considered first-past-the-post means that such an argument would be bogus. Therefore, I welcome the noble Earl to my side in that regard. I shall quote him, as I shall be quoting the noble Lord, Lord Williams of Mostyn, when the Jenkins Commission reports. I shall remind the world, or the country at least, in the words of both noble Lords that that commission did not even consider first-past-the-post. It did not look at it merits or demerits. No judgment was made against first-past-the-post. The members of the commission are a narrowly drawn band of brothers and sisters who believe fervently and who have tried to choose the best system to run against first-past-the-post. It is interesting that it is such a complicated world that a commission has to be set up to decide that.

Lord Gordon of Strathblane

I agree with the final point which the noble Lord made. But does he agree that perhaps the best way to test out PR is to see whether it actually works? Perhaps the Scottish parliament proposal that we have part first-past-the-post and part PR might be a very good litmus test.

Lord Mackay of Ardbrecknish

It is an interesting thought that Scotland should be used as a guinea-pig for first-past- the-post. I can see that Members of the Committee appreciate the argument and I shall not go further with that.

First-past-the-post gives us clear accountability at constituency and national level. The accountability is clear. It allows the electorate to remove the governing party if it no longer retains the confidence of the electorate. That is something that my party experienced fairly severely a year ago. Under the British system, by and large, the verdict is decisive. An unpopular government cannot be kept in office by a minor party against the will of the electorate. Nor can a minor party decide to change the government without going to the electorate. There is clear accountability.

I suppose it is my advantage, or sometimes my disadvantage, that I am involved with all three Bills, so I can read across the government case from one to the other. However, it is interesting to note what the noble Lord, Lord Williams of Mostyn, said on the European Parliamentary Elections Bill when advocating the list system, which the Government hope to introduce into the European parliamentary system.

In his comments on the Bill both on Second Reading and in Committee, the noble Lord, Lord Williams of Mostyn, underlined the important difference between the European Parliament and the other place and the elections to the European Parliament and the elections to the other place. We must also bracket with the other place both the Welsh assembly and especially the Scottish parliament, which is a much more powerful body than the Welsh assembly.

The noble Lord, Lord Williams, pointed out to me that the European Parliament does not have a government arising from it. Of course, the Scottish parliament will have. The noble Lord pointed out to me when we were discussing the Bill that: Different elections require different systems and the key determining factor is the nature and functions of the body or legislature that is being elected". He added later, The European Parliament, unlike our own, is not one from which a government is drawn". The Scottish parliament will be a body from which a government is drawn, so to that extent it is more akin to the House of Commons and to the arguments used by the noble Lord, Lord Williams of Mostyn, regarding the House of Commons than to the European Parliament.

The noble Lord went on to say: We take the view that electoral systems should be appropriate for the particular bodies being elected. Our Parliament has a very different function from that performed by the European Parliament and we believe that different considerations obtain".—[Official Report, 9/4/98; cols. 857–9.] Amen to that, I say.

Summing up later in the debate he said: It is not, I repeat, a Parliament from which a government is chosen".—[Official Report, 9/4/98; col. 899.] But like the other place, this Scottish parliament is a parliament from which a government is chosen.

I mentioned accountability and direct accountability and the fact that the first-past-the-post system is extremely efficient at removing an unpopular party from power. Proportional representation can keep one party, usually a very small party, in power for almost ever and ever. It just shifts its alliances and partners in an elaborate dance and is never properly accountable to the electorate.

It is interesting that in one or two of the countries where PR has developed there are occasions on which the larger parties get so fed up with the situation that they form grand coalitions in order to overcome the dictatorship of the minnows. Unfortunately, the grand coalitions do not usually last very well and they probably do not provide very good government. But they are an attempt to make sure that the tail does not continually wag the dog.

There is also the question of the accountability of Members of Parliament. Of course, the system that we are looking at today, unlike the European Parliament election system, will have members elected on a constituency basis. To that extent, I can see that the Government will argue that as regards the constituency base the additional member system is something of a compromise.

However, there will be 56 members of the Scottish parliament who will not be elected by constituencies as we know them. They will be elected because they have been put on the party list; and unless your Lordships are quite vigilant later on, the party list may not even appear on the ballot paper unless we do something about it. But there will be a party list; the party will decide the list; and there will not be much relationship between the electorate and the individuals. The individuals will have much more interest in keeping in with their party than they will in keeping in with the electorate.

Therefore, while I accept that the system before us has a certain element of constituency link, it is greatly diluted by the 56 additional members. Everybody who has been a Member of the other place knows that that link can sometimes be a bit of a pain on a wet Saturday morning at surgery. But it is a good way of keeping Members of Parliament in touch not just with the people who voted for them but also with a lot of people who did not vote for them. There will not be a single Member of your Lordships' House who was a Member of the other place who would not say that many of the people who came to surgeries in particular and who wrote letters never voted for the Member of Parliament in question. That was certainly my experience. I remember going with one noble Lord in an aeroplane when he was a Member of the other place. We were talking about our surgeries and he said he thought most of his people did not vote at all. I should not go quite as far as that, but certainly in any parliamentary constituency a number of the people who visit the surgery do not vote for the Member.

The problem with the additional member system is that it will be a case of, "Oh well, why don't you go and see Jimmy Smith who is a member of your own party? Why not go and talk to him? He will deal with you". There will be some shuffling about. Or it may be said, "Oh, that's not my expertise. The other regional member, that is his expertise. Why don't you go to see him?"

Members of the other place cannot do that and by and large—I go further—they do not do it. Indeed, if another Member of Parliament encroaches on their territory, they become stroppy about that. There is a convention in the other place that you do not take up cases of other Members of Parliament, because each individual member of Parliament is the sole representative of all his constituents. Therefore, that is an important link that will be lost in relation to the 56 members.

The first-past-the-post system has undoubtedly over time given us stable and effective government in this country. By and large, the governing party has had a working majority in the House of Commons and has been able to take its programme through the full course of a parliament. It has also enabled governing parties to get their business through another place and even to use that argument to get the business through your Lordships' House, even when your Lordships are not too keen on the business in hand. It also tends, because of what is called the "cube rule"—although perhaps now a square rule—to give the winning party a healthy majority. That means that it is able to govern effectively without having to rely on other parties, wherever they come from.

Therefore, on whatever basis one looks at it, it seems to me that first-past-the-post has served this country well. When it comes to continuing with electoral systems in Scotland and Wales, I believe that what we have in this country is every bit as good as anything that they have in any other part of the world. I am prepared to say that we ought to stick to our current system.

Moreover, it also has the advantage that it forces the the main political parties to take broad views. One of the problems of PR, especially with a multiplicity of small parties, is that the parties involved can become very narrow because they do not have to encompass a broad view. Normally we call it a "broad church" in this country. All the parties are a broad church. I suspect that the Liberal Democrats are a fairly broad church, as, indeed, is the party opposite. We have just had a defence Statement repeated in this Chamber, and you cannot get a broader church than the Labour Party has been over the years on defence. My party is also a broad church and that is only right. If parties narrow themselves, that is certainly bad for them, as well as being bad for democracy in the country. I believe that PR systems encourage that narrowness, whereas our first-past-the-post system discourages it; and, indeed, punishes parties which become too narrow in their appeal.

When it comes to choosing the governing party and selecting constituency representation, I believe that our system is the best one for us. I am not going to say that it is superior, and I do not want to hear anyone say that it is inferior; it is the best one for us. I would not go to those countries that have PR systems and tell them that they ought to change. Indeed, as I said in a previous debate, I do not want to hear about other countries that run PR and how magically they do so. We could trade countries on voting systems, but I believe that the voting system that a country arrives at is the one that suits it. That is what our amendments would do. It is interesting to note that New Zealand, which shifted to PR, is now desperately wondering how it can shift back to first-past-the-post.

Perhaps I may leave the Committee with a few additional words in case anyone in the party opposite or in the party beside me wants to get up and tell me that this is just the Conservative Party making a last ditch stand. I have with me a copy of a letter from the noble Lord, Lord Islwyn, printed in the Western Mail, which has become my morning reading with my interest in the Welsh Bill. Unfortunately, the noble Lord is not in his place today, but he is quite happy about his letter. In fact, the headline in the newspaper reads, "PR Could Be a Trojan Horse, Warns Islwyn", and the letter says: As an inveterate supporter of the 'First-Past-the-Post' system I believe that policies for a future government on an elected Assembly"— that is, the Welsh assembly— should be placed before the electorate by the respective parties at an election. What we have witnessed on the continent and elsewhere is policy decided after an election by a mish-mash of parties behind closed doors. This could now be the result for the Welsh Assembly under the additional member system of proportional representation". So the noble Lord is quite clear in that respect. Finally, those noble Lords who take part in the proceedings on the Welsh Bill will not be surprised to know that, on 1st July, after a debate about PR and while the Solicitor-General was replying to the debate and trying to explain all the complexities involved, the noble Lord, Lord Callaghan of Cardiff, was moved to intervene. He said that if anyone could make a subject clear he reckoned that it was the Solicitor-General, but that if he had made anything clear to the noble Lord, it was simply this: it confirmed him in his position that the first-past-the-post system is easily the best system. I concur, I trust that Members of the Committee will. I beg to move.

6.15 p.m.

Lord Mackie of Benshie

I listened with great attention to the noble Lord, especially his generosity in saying that the first-past-the-post system had rightly punished his party by extinguishing it from Scotland and putting the Opposition in with the biggest majority that we have seen for a long time. Those are noble sentiments, which I appreciate.

However, we are discussing the first-past-the-post system. I am a very old man and I remember many things about the system. I remember the time just after the war when we had nationalisation of steel, denationalisation of steel and renationalisation of steel. I also remember that we came out of the war with our industry intact and in a strong position; indeed, better than other countries in Europe. In our good government, through the first-past-the-post system, we have now come to a state where practically every country in Europe is better off than we are. For example, Germany, France and even Italy are much better off than we are under the different system.

As regards New Zealand, if it had had first-past-the-post, analysis says that it would have been in exactly the same position as it has come to under PR. Therefore, I do not believe that the first-past-the-post argument is any good. All the amendment would do is destroy the regional system. I do not want to say that it will benefit us in the Liberal Democrat Party because it will not. The evidence suggests that we will gain a large number of seats under the first-past-the-post system and that under the system proposed we probably would not gain any extra seats. However, despite that, we are still for PR. We are still for the Tory Party being represented in Scotland. It is certainly right and proper that the Tories should be represented, however badly they perform.

I turn now to the question of the 56 members who are elected having a lovely time doing nothing and passing the buck from one to the other. Of course, there may be something in that, but most Members today spend far too much time on constituency matters which should be handled by local government. They are hog-tied to constituency work when they should be thinking of other matters. Indeed, it would not be a bad thing at all to have someone to help in that process.

I think that this is a bad amendment. I shall not go into all the issues which spring from it because we will be discussing such matters later. We are rather against the amendment; in fact, we are totally against it.

Lord Hughes of Woodside

I listened to what the noble Lord, Lord Mackie, said about constituency responsibility and whether Members or Parliament spend too much time on such work, and that reminded me of an argument which has been going on for a very long time. I remember Nye Bevan once chastising Jennie Lee on the basis that she spent too much time in her constituency and telling her that she had not been elected to be a social worker.

In my experience, constituency work has increased over the years largely because of centralisation of power and many local government councillors have given up the ghost of being able to do anything at all. I have no particular romantic attachment to constituency work. In my view, the only thing worse than the situation described by the noble Lord, Lord Mackay, of being involved in such work on a wet Saturday morning is being involved on a bright Saturday morning; indeed, that is infinitely worse. Of course, there are two schools of thought as to whether constituency work is of any benefit to a sitting Member of Parliament. Some people take the view that the more people you see at a constituency surgery the less chance you have of being re-elected because you satisfy very few people.

However, I shall leave that aside and pass on to the main argument about proportional representation versus first-past-the-post. I must admit that I am at times a little old fashioned. I was certainly brought up in the tradition that the purpose of having an election was to gain a majority of seats in Parliament so that, thereafter, you could implement your election manifesto and exercise power.

Contrary to the views of the noble Lord, Lord Mackay, I am not sure that the first-past-the-post system has punished parties which have become out of touch with the electorate. In my view first-past-the-post kept the previous Conservative government in place long after it should have expired. It appeared that over the 18 years nothing we could do in subsequent elections could budge the then government. None of us knows why people vote as they do at a certain time. Some people say that the Falklands war saved Mrs. Thatcher, now the noble Baroness, Lady Thatcher. However, I must admit that I have a sentimental attachment to first-past-the-post.

However, I am primarily opposed to the amendment of the noble Lord, Lord Mackay, because it does away with regional representation. I know in the part of the world I come from, the city of Aberdeen and its surrounds, there is a great deal of distrust of the central belt. I do not wish to upset my honourable and noble friends who come from the Forth/Clyde Valley. However, in the north east of Scotland we have a healthy disrespect and suspicion of people in the Forth/Clyde Valley. At the time when the SNP was at its height, I received a letter with the heading, "Labour voter turning SNP". The letter contained a great tirade about the great number of people coming to Aberdeen to work in the oil industry. They were referred to as foreigners and classic Alf Garnett types. According to the letter writer, these people were simultaneously taking the best jobs and living on the dole. They were causing overcrowding in the schools and lengthening the housing waiting lists. The letter comprised several pages. It finished, "Send them all back where they belong, to Glasgow". That is a true story.

Another anecdote reminds me of how people feel in our part of the world. I recall that during the devolution debates in the other place in the 1970s I made what I thought was a spoof speech to illustrate the way in which the people of Grampian in particular had their own almost sub-nationalist feeling of alienation from the rest of Scotland. In the speech I said that I intended to establish a new political party, the Grampian unilateral independence party, to be known as the GUIDIES for short. I said that if we drew the boundaries correctly—it would be a narrow band along the coast of Grampian, including the city of Aberdeen—we would have a parliamentary socialist majority. If we then projected the lines out in the right way, it would be a case of Grampian's oil and not Scotland's oil. I thought that was a funny speech. Some of my friends—I still had a few in those days—told me they thought it was a funny speech. I thought it was funny until over the next two to three weeks I received about 50 letters from people asking how they could join the party. Irony never comes across on paper.

However, there is a serious point here. Although I do not know Caithness and Sutherland as well as some noble Lords, my wife comes from a small village, Canesbay, in Caithness. I am a frequent visitor there. People in that village have their own culture and are almost sub-nationalists. I am sure that the noble Lord, Lord Mackay, who comes from the southern part of the country, will recognise in his heart of hearts that in the Borders there is also scepticism about the centre. We have to live with the fact that the Scottish population is concentrated in the Forth/Clyde Valley. I can understand that the members for the Forth/Clyde Valley take a great interest in what is happening there. The greatest deprivation in Scotland is to be found in the Forth/Clyde Valley. I have been to some parts of Glasgow where the poverty and deprivation are enormous. It is a culture shock to see that, especially when one comes from the north east of Scotland where we have a first-class health service. However, nothing is perfect. We have to address certain issues. We have nothing in the north east of Scotland. People will argue that rural poverty is worse than urban poverty, but I do not agree with that. If you suffer from poverty and deprivation it does not matter whether you live in a city or in the country. Therefore I can understand that members for the Forth/Clyde Valley will seek to address those problems, but they should not ignore what is happening elsewhere.

People in the new Scottish parliament will want to prove that their actions are effective. It is natural, however, that they will seek to look after the interests of those areas where the majority of the population live. That is where the majority of the members of parliament will come from. Despite my reservations about the arguments for first-past-the-post versus proportional representation, I believe that this additional member system with the eight regions and seven additional members from each region is an honest attempt to spread the influence of the parliament to enable it to be truly representative. It is worth while pursuing on those merits alone, and on that basis alone I believe that the amendment of the noble Lord, Lord Mackay, should be defeated.

Baroness Carnegy of Lour

I am trying to envisage what the parliament is likely to look like. As a result of the list system there is likely to be a wider spread of parties in the parliament. It appears that everyone will have to be a little more consensual. We have been discussing the pre-legislative scrutiny of Bills. If a Bill is to go forward in the parliament, both its drafting and its content will have to be examined. I can picture a scene where it will be hardly possible at all to get a Bill about schools in Scotland, for example, launched in the parliament as there will not be sufficient agreement about the content to launch it. Will the Minister reply to that point?

In the report of the Constitution Unit on the way in which different parliaments are set up and whether they have a second chamber, it is stated that PR is a helpful system and that it should be helpful as regards the parliament we are discussing. I can see that working as regards European-type legislation, which is framework legislation within which one administers, but our kind of legislation is precise. It is not just that every word matters but the precise content is clear. Will it be possible to achieve agreement at the start in an evenly balanced body? That is a question that is well worth thinking about.

Earl Russell

When I listened to the noble Lord, Lord Hughes of Woodside, I was reminded that every time I have been in Glasgow I have been complimented on how well I speak English and that I speak it awfully well for a foreigner. In the context of this Bill, whenever I think of the noble Lord, Lord Mackay of Ardbrecknish, I think of Italy. I cannot think why that is the case. I am therefore reminded of an incident right at the end of the war when my parents had an Italian cook. She was a partisan and a refugee with a passionate hatred of fascism. To my parents' great astonishment, on the news of the death of Mussolini, they found her in a profound state of grief. They asked her why she felt such grief. She replied, "He not suffer enough". As Mussolini was hanged with thin wire, this caused my parents some surprise.

When I listened to the noble Lord, Lord Mackay of Ardbrecknish, speaking of his party and first-past-the-post in the Scottish parliament, I am much reminded of that Italian cook. I know the noble Lord, Lord Mackay, says that this is a weak argument and that he has a soul above such things. He reminds me of the magnificent dedication to principle of Sir Stafford Cripps in 1951, arguing that a pre-election Budget must be immoral, and therefore forcing his party into a February election in the most appalling weather, which it lost by a whisker while winning a majority of the votes.

The noble Lord's principle does him great credit. His self-denying ordinance moves me to some admiration. But even though he is under that inhibition, I am under no such inhibition. I am entitled, even if he is not, to believe that in the Scottish parliament first-past-the-post would work to the systematic disadvantage of the Conservative Party. I believe that that is bad for democracy, even if he does not.

We hear constantly about the virtues of the single-member constituency. Those virtues are sung much more often by single members than they are by voters. When I look at my own postbag, I am constantly reminded of the weakness of the single-member constituency. A great many people write to me and, I am sure, to many other Members of this House because they are not covered by the Bridlington agreement against "poaching" which prevents MPs from taking up each other's cases. I cannot count the number of letters I have received about the Child Support Act from people who have written to their constituency MP and found absolutely no sympathy or understanding whatever. There are a great many people who can get along and communicate with one MP and not with another. There are a great many subjects that can be taken to one MP and not to another. We should have a slightly more open mind about the virtues of the single-member constituency. A choice of members can be very much to the advantage of the voter.

The noble Lord argued, as he always does, about the power of third parties. He appears to think that third parties exist in an electoral vacuum and that they never have to compete for votes. However, if he studies, for example, the history of the Federal Republic of Germany, he will observe that the behaviour of the third party there has been much influenced by the changing attitudes of the electorate. In many parliaments a third party will be given only one option by voters. So in those cases voters must dictate its option. In others, third parties are no more immune to electoral considerations than first or second parties. So the voters will have a considerable input. The hermetic ceiling that the noble Lord, Lord Mackay of Ardbrecknish, supposes is a great deal less likely than he thinks.

The noble Lord talked about stable and effective government. Stable? I am not quite sure that the noble Baroness, Lady Thatcher, would have agreed. Effective? It depends what is meant by the word. I said last Monday that I was dealing with the second measure that I had seen through from Second Reading to repeal; namely, the Child Support Act. The other was the poll tax. There is a certain relativeness about the concept of effectiveness. I am inclined to think that the Government who came to power under the first-past-the-post system were, in practical terms, not quite as effective as the noble Lord thought.

I recommend to the noble Lord the maxim of John Stuart Mill: "When has there been a dominion which has not appeared natural to those who possessed it?".

6.30 p.m.

Lord Waddington

I have been interested to hear some of the comments in this debate about the role of the constituency Member. I remember being told many years ago about the way in which Duncan Sandys responded when he was called to account for rarely turning up in his constituency. He replied robustly that his job was to represent Streatham in Parliament, not Parliament in Streatham. On the whole, I believe that one of the most important of all the activities carried out by a Member of Parliament, and the one which keeps his or her feet on the ground and makes him or her a useful Member of Parliament is contact with ordinary people in the constituencies. I assure the noble Earl that when I was first elected to Parliament for Nelson and Colne, there were not that many Conservatives about the place. My postbag was certainly not full of letters only from Conservatives. I received letters from members of all parties. It did me a lot of good to have to deal with the problems of all manner of people and hold surgeries which often kept me on a Saturday from 9.30 in the morning to three or four o'clock in the afternoon. It was character-forming. I did not like it all the time, but it is certainly an important part of an MP's work.

It is crucially important to bear in mind that this new system of voting will produce two classes of members of parliament—one class whose members will be accountable to the electors and another class who will have no specific responsibilities to any particular group of electors and who will not be accountable to any group of electors within the region.

Lord Hughes of Woodside

Surely the noble Lord has not really examined the Bill. Those from the regional lists will be responsible to the people in the regions. Their duty will be to look after the regions. A false dichotomy is being thrown up.

Lord Waddington

That depends on the size of the region and the part of the region from which the individual comes. Someone who is plucked off the party list, for whom nobody will have voted as an individual, will then be expected to have a relationship with a particular person who comes along and asks him or her for assistance. I cannot believe that that will result in members of the parliament plucked off the regional lists feeling that they have a relationship with the electorate remotely like the relationship between a Member of Parliament and the constituency that he represents on a first-past-the-post basis.

Lord Mackie of Benshie

There are amendments coming up for debate which would connect the voter.

Lord Waddington

I know that very well. But at present we are confronted with a scheme put forward by the Government which does not connect the member of parliament plucked off the party list with any particular voters.

I know that the noble Earl did not raise the argument today but very often one hears Members from the Liberal Benches talking as if the only object of an electoral system is to produce members of parliament who reflect with mathematical accuracy the strength of the parties in the country as a whole. That is an absolute nonsense. It may be important to have some equivalence between the votes cast for a party and the number of people who are elected, but it is much more important to finish up with effective government, and with members of parliament who give good service to their electors. Without wishing to repeat myself, my worry is that this scheme, by creating two classes of members of parliament, will in fact create one class of members who will be of very little service to the electors to whom, nominally, they are supposed to be responsible.

I agree with my noble friend's opening remarks. Our traditional system has served us well. We are not in the business of supporting one particular system because we believe it may give us an advantage at this point in time. Shifting coalitions have not produced good government in other countries. I strongly believe that our system of first-past-the-post has created in this country governments which, broadly speaking, have represented the wishes of the public, and when they have ceased to do so at the ensuing general election, the public, have let them know quite forcefully, as they did a short time ago, that they have lost the confidence of the electorate.

It may well be that normally the Free Democrats in Germany manage in some mysterious way to sense the general views of the electorate and throw their weight on the side of this or that larger party. But it seems a very unsatisfactory way of doing things. It seems much more important that there should be absolute clarity in these matters and that when the electorate says clearly, "You, the Government, have lost our confidence", that government disappear simply because they do not have enough seats. I wholeheartedly support the scheme which is proposed by the series of amendments moved from these Benches.

Lord Gray of Contin

I rise to support the amendment moved by my noble friend Lord Mackay of Ardbrecknish. I listened carefully to the noble Earl, Lord Russell, whose speeches in this House I frequently find fascinating, but I have to admit that I found him less than impressive tonight.

I also listened carefully to the noble Lord, Lord Hughes. He and I got into another place at the same election, in 1970. I was elected for a highly marginal seat which I had to nurse for 13 years and to which I hung on by the skin of my teeth at most elections. He was fortunate enough to be elected for a very safe seat and, like all Members for safe seats, had very little worry when an election was announced. The difference between us is reflected in the views which we have put forward this evening. For example, the noble Lord indicated that he did not consider that the constituency link was vitally important. As one who sat for 13 years for a highly marginal seat, I found it extremely important. Indeed, when I lost it, I was out.

However well intentioned the Bill may be in proposing two different types of MP, that situation will have consequences with regard to the constituency link. I believe that that link is of vital importance. You cannot hope to know the down-to-earth problems of your constituency unless you hold regular surgeries and meet regularly with those who voted for you and those who did not. Someone said that most of the people who go to surgeries vote for no one, and there may be some truth in that, but one meets a wide cross-section of one's constituency. For that reason, I believe that that link is an essential ingredient which should not be cast aside lightly.

The Bill tries in various ways to do things differently from the way they are done at Westminster. The great idea seems to be, "Let's do it differently from Westminster". The noble Lord, Lord Steel, referred to leaving it to the Scottish parliament to decide various things. That is all very well, but good guidelines must be given in the first instance. The Scottish parliament will have a great many members who have never been members of a parliament before and have no experience of government or parliament. It is up to us in this Parliament to set out as clearly as possible what might be for the best.

I do not want to continue for too long. This has been a fairly lengthy debate for a small amendment, and most of what I had intended to say has already been said. However, I wish to put one point to the Government. If this system is so wonderful and so ideal, why is it not to be introduced for Westminster at the next election? I would have thought that, if it represented the best way forward, the sooner it were introduced, the better. There must be a reason. I have my own theory, but I will not deploy it at the moment.

Lord Hughes of Woodside

Before the noble Lord sits down, I am sorry if I gave the impression that I discounted entirely the constituency connection. I find it extremely valuable. But I am not sure that the best way of learning how a constituency operates is through the Saturday morning surgery. I believe that the value of the constituency link is in the meetings with interests of business, trade and education and the whole panoply of issues which come up in constituency party work. That link will be maintained by the constituency-elected members. I do not think that those who do not have a constituency are any less worthy because they do not have that link.

Lord Gray of Contin

I accept what the noble Lord said, and I know the point he is making. I do not believe that experience in other countries where the constituency link has been dispensed with necessarily indicates that that is a good system. I disagree with those who say that better government has been provided by that system than by first-past-the-post.

Like the noble Lord, the former Member for Aberdeen North, I was brought up on the first-past-the-post system, and I suppose that I have a bias towards it because of that. Where anything in which one believes strongly is concerned, I think that the argument for change must always be made by those who want the change. The argument for change in this case has not convinced me.

6.45 p.m.

Lord Sewel

The Committee will not be surprised to hear that the Government cannot support the amendments, which seek to remove the provision in the Bill for regional members. Perhaps it would be useful if at this stage I dealt with the specific questions put to me by the noble Baroness, Lady Carnegy of Lour, and the noble Lord, Lord Gray of Contin.

As far as I understand the question—I hope I have got it right—the noble Baroness, Lady Carnegy of Lour, asked how a Bill could be launched when there was not an automatic majority for it in the Scottish parliament because the electoral system would not produce a straight majority. We see as one of the great merits of what we are proposing the fact that it will be necessary for the executive, in putting forward a Bill, not simply to introduce it and rely on simple majoritarianism to get it through, but to build support and argue its case through the process of scrutiny and deliberation, to which we referred on the earlier amendment. One hopes that the electoral system itself will generate the working together and consensus and support building that is necessary.

Baroness Carnegy of Lour

I do not wish to hold matters up, but I believe that this is a quite different point from any others that have been made. I gave an example of a Bill about schools. I have great difficulty in imagining how one will achieve this lovely consensus for a Bill that will make the radical changes that are perhaps necessary in Scottish schools. I personally think that something has to happen; I am prepared to go in for a lot of give and take. Does the noble Lord really believe that such a Bill would get off the ground? Given the disagreement that will exist, I wonder how many Bills will get started in this parliament.

Lord Sewel

No one is trying to pretend that consensus building is easy; it is not. It involves a lot of hard work and difficulty in persuading people of the nature of the argument and the case that is being made. It is not a case of all being jolly good chaps or "chapesses" together.

Earl Russell

If I may offer a little comfort to the Minister, what he describes is the way in which Bills have gone through the Westminster Parliament for at least seven-eighths of its history; and it has worked.

Lord Sewel

I was going to say, "as always", but, as in the majority of cases, I am enormously grateful to the noble Earl.

I now turn to the point made by the noble Lord, Lord Gray of Contin, about why we are not immediately introducing a similar electoral system into Westminster elections. In this case we are setting up a new parliament and are making a judgment about what is the appropriate electoral system for that parliament. At Westminster we have an established Parliament. We have indicated that the Jenkins Commission is considering an alternative to the present system. That alternative will be put to the people in a referendum and they will be able to decide whether to stay with the status quo or move to a new system. When one is dealing with an established parliament, that seems to be a sensible way in which to proceed.

Perhaps it would be useful if I reminded noble Lords of the Government's position on this issue. We wish to create a Scottish parliament by means of a combination of the simple-majority system and the additional-member system of proportional representation. That was proposed in the White Paper and endorsed in the referendum. The noble Lord's amendments strike at the heart of the electoral arrangements that were proposed.

We stated in the White Paper that, while a constituency link will be the essential foundation of the parliament, we wanted to provide for greater proportionality to build stability into the overall settlement. We proposed that there will be a significant number of additional members elected on a wider and proportional basis in order to bring a closer relationship between votes cast and seats won. That is what is being delivered in the Bill and I hope that Members of the Committee will be able to support it.

The Government believe that the regional member system in the Bill is an essential part of the arrangements for the Scottish parliament. Its purpose is to reduce the imbalance in political representation which can arise when one depends solely on the simple majority system at elections. As members of the Committee will appreciate, the "winner takes all" aspects of the simply majority mean that a party can secure a significant number of votes but gain no seats. As a result, the electorate can feel disenfranchised and distanced from parliament because they feel there is no one to reflect their views.

It is not simply a matter of which system benefits individual parties; it is the relationship that the elector feels with the political system as a whole. If, somehow, their preference cannot be reflected through the seats gained by the party they support, there is a risk of a deep cynicism and alienation overtaking the electorate and that is something of which we should be wary.

There is also the problem, particularly in a multi-party system—this is the case much more so in Scotland normally, though there is the argument that one could offer a Society for the Preservation of Parties at Risk in Scotland; I do not know how many members would subscribe to it, but it is growing—that a relatively small change in the distribution of votes can result in an enormously disproportionate effect on the number of seats won. That is one of the well-known and recognised problems of multi-party systems.

Perhaps I can refer to the election of 1997, though it is borne out in a number of other elections in Scotland. If we look at the relationship between votes cast and seats won, my party in that election obtained 44.5 per cent. of the vote and secured 78 per cent. of the seats in Scotland. The Conservative Party obtained 17.5 per cent. of the popular vote and obtained no seats. The Liberal Democrats obtained 13 per cent. of the vote and 14 per cent. of the seats. The Scottish National Party obtained 22.1 per cent. of the electoral vote and 8 per cent. of the seats. If that sort of imbalance was sustained over a period of time, there would be a sense of deep unfairness within the electorate of Scotland. People would demand change, and I believe rightly.

One of the concerns expressed in 1978 was that the parliament then proposed would be dominated by members from the central belt. We have tried to construct an electoral system which answers that sort of case. The system we propose in the Bill will create an opportunity for parties to have members returned from parts of Scotland which have hitherto been a lost cause. There will be no wasted votes in Scotland because of the electoral system. Each region should have representatives from each of the parties, thus ensuring a balance of views in the parliament and avoiding the dominance of one area over another.

We will end what in some elections has been a dramatic, geographical segmentation of party representation in Scotland where one party has been associated with a specific geographical area of Scotland and only with that geographical area. That is wrong. This electoral system means that all the political parties in Scotland will be truly the parties of the whole of Scotland, drawing their support and their representation from all the regions. I believe that that is fundamentally healthy for the Scottish political system.

The Earl of Lauderdale

Before the Minister leaves that subject, can he say whether there is a danger in having two kinds of MSP—regional members and constituency members? Anyone who has sat as such, as I have, and my noble friend, will know that one is chased by constituents with a problem and very often the problem is insoluble. At that point one says, "Ask your regional MSP to deal with it." There is a good deal of passing the buck between the two, if not direct rivalry.

Lord Sewel

I do not believe that there will be a case of passing the buck. What will happen is that the individual constituent will have a choice of people to whom he can go. Again, that is to the good. The individual constituent will decide whether he wishes to write to, or see, the member of the Scottish parliament who is returned for the constituency in which he lives, or whether he writes to, and sees, one of the regional representatives. The point is that regional representatives are also constituency representatives as well as those members who are returned in the first-past-the-post system. Both have constituencies. Nobody will somehow be returned to the Scottish parliament on some sort of national list or something like that. It is the difference between individual first-past-the-post constituencies and regional constituencies.

Lord Simon of Glaisdale

As always, the noble Lord puts his argument most persuasively. But there is another aspect. Are not the party managers the preponderant influence on who is returned in the region for regional votes? Does not that militate against the immediacy of the relationship of the member of the parliament and his constituents?

Lord Sewel

I think not. Nothing fundamentally changes. Parties have always brought their candidates to the electorate and allowed the electorate to make a decision. It is exactly the same in the case of the first-past-the-post candidates as it will be with people on the list. Parties bring their candidates to the electorate and the electorate makes a judgment.

Lord Simon of Glaisdale

Surely the noble Lord recognises the difference between what happens at present when the local party organisation chooses the candidate—albeit one proffered by the party—and one where the regional list is graduated according to how far the party managers favour the names on it.

Lord Sewel

It is up to the parties themselves to decide what procedures and processes they will use in selecting both their individual constituency candidates and those who will represent them on the party list. That is a matter for the parties, and rightly so.

We want to ensure that the parliament we are establishing is inclusive and represents the diversity of Scotland. We believe that the electoral arrangements for the Scottish parliament will ensure a fairer balance of representation than would be achieved by reliance on a simple majority system. While the constituency seats will be contested in the traditional manner, the regional seats will be allocated on the basis of proportional representation but with a corrective element. Taken together, that should achieve a fairer distribution of seats and ensure that this is a parliament for all of Scotland representing a wide range of political persuasions.

I agree that the system for returning regional members can be seen as complex. But the actual voting process will be relatively straightforward for the voter. Each elector will be able to vote for a constituency candidate and cast a separate regional vote for the party or independent candidate they favour.

In the White Paper we promised that the electors would have two votes. Members of the Committee are seeking to remove those rights with the amendments before us. We have the opportunity to create a fair and representative parliament for Scotland and I hope that the noble Lord will feel able to withdraw his amendment.

7 p.m.

Lord Mackay of Ardbrecknish

I am grateful to those noble Lords who have taken part in the debate and to my noble friends who have supported me. If it makes up a little for yesterday, perhaps I may tell the Minister that he is the fourth Minister to defend this system to me over the Dispatch Box and he has made by far the best fist of it. He has not convinced me but he has made a far better job of it than his noble friends have done.

I shall not go over the arguments again. They have been gone over. We are coming to the question of the balance in different parts of Scotland, as the noble Lord, Lord Hughes of Woodside, mentioned. In my Amendments Nos. 8 and 9, I try to deal with that specifically. I was interested to have another joust with the noble Earl—I nearly called him my noble friend—Lord Russell. I must say to him that the Free Democrats in Germany are an interesting proposition. They just manage to struggle over the threshold of 5 per cent. on many occasions and yet, if one takes a tiny look at it, they have a lot more than 5 per cent. of the time in government in Germany, whether they have it with one party or another. I do not think that is particularly fair. They probably have more time in government than the two major parties because they switch allegiance. As to the noble Lord, Lord Mackie, who hopes that MSPs might spend less of their time on constituency matters, coming from the party that invented pavement politics, I thought that really did take the biscuit for this evening.

The noble Lord, Lord Sewel, has brought to bear the manifesto, the White Paper and the referendum. I know when it is not worth pursuing these matters. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon moved Amendment No. 3: Page 1 line 15, leave out subsection (4).

The noble and learned Lord said: This is a small drafting amendment which seeks to remove from the Bill what I believe to be an unnecessary provision. At the outset, perhaps I may say with the sense of modesty which characterises members of the Mackay clan in your Lordships' House that this is not my own idea. The amendment is in identical terms to an amendment moved at Report stage on the Government of Wales Bill on 1st July by the noble and learned Lord, Lord Simon of Glaisdale, who I am happy to see is in his place this evening.

Although the legal nature of the assembly for Wales is of a different character from that which the Scottish parliament will have, I believe that the same principle applies; namely, that the statute book should not include any provisions that are unnecessary and merely state the law as it would be. The amendment is focused on subsection (4) of Clause 1, which provides: The validity of any proceedings of the Parliament is not affected by any vacancy in its membership".

When one considers the provisions of Clause 8(4) of the Bill, it is obvious that the Scottish parliament is intended to be able to function competently even though there is a vacancy among the constituency members. That subsection provides that a by-election to fill a constituency vacancy should not be held if the latest date for holding the poll would fall within the period of three months ending with the day on which the poll at the next ordinary general election would take place. It is clear from that provision that such a vacancy could exist for up to three months prior to a general election.

It is inconceivable that this Parliament would intend that the Scottish parliament would be powerless to act competently during such a three-month period. Indeed, I would go further. It is inconceivable that Parliament would intend that the Scottish parliament would be afflicted by some form of legal paralysis each and every time a vacancy in its membership might occur. It is equally inconceivable that any court would seriously entertain any such proposition. For those reasons, I move the amendment and I look forward to such support as I get for it from the noble and learned Lord, Lord Simon of Glaisdale. I beg to move.

Lord Simon of Glaisdale

Without hesitation, I support the amendment. The subsection is utterly unnecessary and, being unnecessary, it should be removed. An unnecessary provision not only clogs up the statute book but is liable to give rise to undesirable arguments, sometimes very far-fetched.

When I moved a similar amendment to the Government of Wales Bill, I introduced it by describing to your Lordships, and with a statistical basis, how the statute book had swelled inexorably ever since the Renton Committee on the preparation of legislation had described it as already far too prolix. That being so, we should make every effort we can to remove unnecessary provisions.

I take it—perhaps the noble and learned Lord the Lord Advocate will correct me if I am wrong—that this being a Westminster statute, it will fall to be construed by English law, although I cannot imagine that the law in Scotland is any different. By English law, I have no hesitation in saying that the provision is entirely unnecessary. If it were removed, exactly the same events would occur. If there were a vacancy, the parliament would still continue to operate, just as the House of Commons continues to operate, notwithstanding a by-election or the death of a Member, or your Lordships' House, for that matter, notwithstanding a disqualification of a Member or his absence.

The only difference I can see from the Government of Wales Bill is that the Welsh assembly was specifically called a body corporate; in other words, a corporation aggregate. It is a fundamental feature of a corporation aggregate that a decision of the majority binds the whole body. That being so, a vacancy or absence of a member cannot make any difference. The majority decision binds.

So if this provision is unnecessary, I wholly support the amendment of the noble and learned Lord that we should remove it, and with thanks to have at least got rid of a few words from the over-prolix statute book.

Lord Renton

I, too, support the amendment. I am very grateful to the noble and learned Lord, Lord Simon of Glaisdale, for what he has said, although I feel obliged just to modify one of his arguments. He said that this would be interpreted under English law. With deep respect, I say to him that this is a Bill of the Parliament of the United Kingdom and would be interpreted according to the law of the United Kingdom, whatever that may be. If it were to be interpreted according to a law of Scotland, it would not worry me very much because I think that the Scottish courts are so wise that they would realise that the proceedings of the Scottish parliament could not possibly be held up merely because a by-election was pending.

Whichever view one takes with regard to the interpretation of this subsection, I would say that it is unnecessary. I am very glad that the amendment has been moved.

Lord Steel of Aikwood

Perhaps I may indicate in one sentence that it gives me great pleasure on this occasion to indicate support from these Benches for the Mackay twins and their amendment.

The Lord Advocate (Lord Hardie)

As the noble and learned Lord, Lord Mackay of Drumadoon, said, this amendment is similar to the one tabled by the noble and learned Lord, Lord Simon of Glaisdale, at Report stage in the Government of Wales Bill on 1st July. The report appears in Hansard at cols. 671 to 674.

Members of the Committee have suggested that this provision is unnecessary, as did the noble and learned Lord, Lord Simon of Glaisdale on the previous occasion.

Lord Simon of Glaisdale

Does the noble and learned Lord contest that, if this provision were removed, legally exactly the same situation would obtain?

Lord Hardie

I shall come to that. The short answer is: yes, I do contest that. Perhaps I may deal with the point that I was about to make. I share the desire of Members of the Committee for legislative economy, but do not agree that it would be appropriate to omit this provision on this occasion. As my noble and learned friend the Solicitor-General explained at Report stage in the Government of Wales Bill, and as Members of the Committee are aware, this provision has considerable precedent. I would not argue—and nor did my noble and learned friend the Solicitor-General—that we should include the provision simply because in the past we have always done so. However, I believe it is appropriate in this case to have the provision.

By omitting the provision on this occasion we would run a risk of giving someone the opportunity of challenging the parliament's actions by calling into question the validity of its actions because of a vacancy in its membership. That is particularly so, given that the argument to the effect that the provision is unnecessary, was, as I understand it, on the previous occasion based on the law of corporations aggregate.

In this case the Scottish parliament is not declared to be a body corporate, as is the case in Clause 1(2) of the Government of Wales Bill. Indeed, Members of the Committee will see, in reference to the Bill, that it is clear that the parliament is not a body corporate because Clause 20 makes provision for a particular body corporate to act—

Lord Simon of Glaisdale

If it is not a body corporate, is not the nearest analogy the House of Commons?

Lord Hardie

As I was explaining, it is not a body corporate because Clause 20 specifically sets up a body corporate entitled "The Scottish Parliamentary Corporate Body", which is obliged to carry out certain functions on behalf of the parliament. The corporate body comprises the presiding officer and four members of the parliament appointed in accordance with standing orders. One of the functions of the body corporate is to take proceedings by or on behalf of the parliament and to defend proceedings instituted against the parliament. It is my position that the parliament itself is an unincorporated body. It would be for the unincorporated association to regulate its own proceedings.

As regards this Bill, we are anxious to ensure that there is never any question of a challenge to the proceedings of the parliament by virtue of a vacancy arising. In answer to the point raised by the noble and learned Lord, Lord Simon of Glaisdale, it is my understanding that the Westminster Parliament is a corporation sole.

Baroness Carnegy of Lour

What does that mean?

7.15 p.m.

Lord Hardie

The position appears to be that it is a parliament regulated by English law. In dealing with the question of the law which would apply to the interpretation of the legislation once it is enacted, I respectfully agree with the noble Lord, Lord Renton, that it would be interpreted in accordance with the law of that part of the United Kingdom where the issue was raised. If it were raised in Scotland, it would be determined in accordance with Scots law; if it were raised in England, it would be interpreted according to English law.

Clause 1(4) of the Bill puts the question of the validity of proceedings beyond any doubt, and that can be no bad thing. In those circumstances, I urge the noble Lord to withdraw this amendment.

Lord Renton

Before my noble friend replies, and the noble and learned Lord, the Lord Advocate sits down, I invite his attention to Schedule 2, which he has already mentioned. On page 60 paragraph 6(1) of the schedule states, The validity of any proceedings of the corporation shall not be affected by any vacancy among the members", and I need not go any further.

If we accept that it is right to put the provision there, surely it becomes unnecessary to include it also in Clause 1(4). What is the point of a phrase being repeated twice in the same Bill?

Lord Hardie

Phrases are often repeated in the same Bill for different purposes, and that is the position here. In Schedule 2 one is dealing with the body corporate which is going to act on behalf of the parliament. Schedule 2, paragraph 6 relates to the proceedings of the corporation. So the validity of the proceedings of the corporation cannot be challenged because one of its five members is not available—that is, the presiding officer or one of the four elected members.

Lord Renton

The heading to Schedule 2 is, "Scottish Parliamentary Corporate Body". Is that not the parliament itself?

Lord Hardie

No. I have obviously been unclear in my explanation. Clause 20 sets up the Scottish Parliamentary Corporate Body. Members of the Committee will find that on pages 9 and 10 of the Bill. Clause 20(1) states that, There shall be a body corporate to be known as 'The Scottish Parliamentary Corporate Body'". The members of that body in subsection (2) are,

1. "(a) the Presiding Officer, and
2. (b) four members of the Parliament appointed in accordance with standing orders".

If Members of the Committee read on to subsection (9), Schedule 2 is applied. Schedule 2 is related to that corporate body. We are talking about a vacancy which does not invalidate the actions of the corporate body, whereas Clause 1(4) relates to a vacancy in the parliament, which does not invalidate the actions of the parliament.

Lord Renton

I am grateful to the noble and learned Lord. He has got that point absolutely right, but it does not make Clause 1(4) in the least necessary.

Lord Simon of Glaisdale

In the end, the noble and learned Lord's case for Clause 1(4) was that it is there to prevent an argument arising. Does he really think that if the argument arose in England any court would possibly hold that a vacancy in the Scottish parliament invalidated the proceedings? Nor can I believe, unless the noble and learned Lord assures me to the contrary, that if the same question arose in Scotland any Scottish court could possibly hold that the vacancy impugned the validity of the proceedings of the parliament and that a by-election, for example, would render the parliament impotent.

If the aim is to obviate an argument, there is almost no limit to what one can do. Every silly and futile argument, of which that is one, would have to be anticipated—and the statute book would continue to get more and more inflated. In the end, it comes down to this simple point: could any such argument possibly be maintained in any sensible court? The noble and learned Lord said that this provision has appeared in previous statutes. Ever since the earliest statutes, has any such argument even been put forward, much less been successful?

Lord Hardie

I am unable to answer the noble and learned Lord's last question as to whether such an argument has ever been advanced in any case, just as my noble and learned friend the Solicitor-General was unable to answer a similar question—

Lord Simon of Glaisdale

Perhaps I may put it more accurately. Have the Government any record of such an argument being advanced, still less of that argument being successful?

Lord Hardie

The answer is the same. I am unable to give the noble and learned Lord an answer because I have no briefing to that effect. However, I shall of course undertake, as did my noble and learned friend the Solicitor-General, to write to the noble and learned Lord on this matter once the necessary research has been undertaken.

On the question of the risk of such an argument being upheld in the courts either in Scotland or in England, with respect to the noble and learned Lord, that is not the Government's initial concern. The Government are concerned lest a challenge be taken which would unnecessarily take up time and cause unnecessary anxiety. This provision which, as I have already said, is consistent with provisions in many previous statutes over the years puts the matter beyond any doubt.

Lord Simon of Glaisdale

Perhaps I may ask the noble and learned Lord whether there is any record of anybody arguing that the House of Commons' proceedings are a nullity because a by-election is pending.

Lord Hardie

I am not aware of any such case but, in my respectful submission, that is not the point. I formally invite the noble and learned Lord, Lord Mackay of Drumadoon, to withdraw his amendment.

Lord Mackie of Benshie

If subsection (4) would stop this kind of legal argument taking place in the Scottish parliament, let us keep it in!

Lord Mackay of Drumadoon

I hope that during the dinner hour the noble Lord, Lord Steel of Aikwood, will seek to convince his noble friend that there are occasions for agreeing with "the Mackay twins", as he happily refers to us!

This has been an interesting trailer to some important discussions that we shall have later in Committee about the relationship between the courts of the land—I include not only the Scottish courts, but also the courts in England, Wales and Northern Ireland—and the legislation emanating from the Scottish parliament.

I am grateful to the noble and learned Lord the Lord Advocate for seeking to explain the Government's position in response to this amendment. I fully accept what the noble and learned Lord said about the legal nature of the Scottish parliament being different from that of the Welsh assembly. It is clear that it is not a "body corporate" as that term is used both in this Bill and in the Government of Wales Bill. I also agree that if this matter fell to be considered in the courts of Scotland, the law of Scotland would be applied. Whether there would be any difference between that law and the law of England or the law that applies in Northern Ireland may be open to question. Undoubtedly, however, the law of Scotland would apply.

On corporations sole, I am not in a position to offer any further assistance other than to say that I understand that it is not a type of fish that my noble friend Lord Mackay of Ardbrecknish will be hoping to chase tomorrow!

When the noble and learned Lord, Lord Simon of Glaisdale, referred to this point on the Government of Wales Bill, he made it clear that this is not an issue on which it would be appropriate to seek to divide the House. However, he said that he hoped that the Government would reflect further on the discussions that had taken place. Echoing those words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 4 and 5 not moved.]

Clause 1 agreed to.

Lord Rowallan moved Amendment No. 6: After Clause 1, insert the following new clause—