Lords Sitting of 14 July 1998

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Oxford.
Lord Macaulay of Bragar—Took the Oath.

Russian Federation: Border Disputes
The Earl of Carlisle The Earl of Carlisle asked Her Majesty's Government:
Whether they believe that the Russian Federation has done all in its power, in accordance with its request for membership of the Council of Europe, "to settle outstanding international border disputes according to the principles of international law, abiding by the existing international treaties".
Lord Whitty: My Lords, Her Majesty's Government share the Council of Europe's assessment of 22nd June that the Russian Federation has made significant progress towards meeting its membership commitments. There are a number of outstanding questions, including the borders with China and Japan, where Russia has worked hard to find a solution, and those with the Baltic states. The Government have encouraged Russia to sign border agreements with Latvia and Estonia, without linkage to other issues, as soon as possible. We shall continue to watch the situation closely.
The Earl of Carlisle: My Lords, I thank the Minister for his helpful reply. Does he agree that seven years is a long time to negotiate a border treaty? Does he further agree that since the Baltic states regained their independence, the Russian Federation has put every obstacle in the path of recognising the borders that Lenin recognised in 1920 in the Treaty of Riga and the Treaty of Tartu respectively? Will the noble Lord ask the Foreign and Commonwealth Office to send Foreign Secretary Primakov a pen so that he can sign the treaties with Latvia and Estonia?
Lord Whitty: My Lords, I am sure that even in these days the Russian Ministry has pens. It does not, however, yet have the political will to sign those treaties. The 1920 treaties do not involve exactly the same borders as have now been technically agreed. Those borders have been agreed at the technical level, but the Russians are not signing the treaties. However, while we do not want any explicit linkage with other issues, it is also the case that in Estonia and Latvia the treatment of the Russian minorities is an important issue both in this context and in the context of application to join the European Union.
Baroness Rawlings: My Lords, given the Foreign Secretary's ethical foreign policy stance, does the
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Minister think it appropriate for one member state to have territorial claims over another member state within the Council of Europe?
Lord Whitty: My Lords, it is undesirable. However, a number of such claims are still outstanding. The whole point of the Council of Europe is to ensure that such issues are settled amicably within the commitments made when one becomes a member of the Council of Europe.

Liquor Licensing Laws
2.40 p.m.
Viscount Montgomery of Alamein Viscount Montgomery of Alamein asked Her Majesty's Government:
Whether they have any plans for further reform of the liquor licensing laws.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, the Government announced on 5th May that they were starting work on a wide-ranging review of licensing law. We shall be looking at all licensing issues, with the aim of creating a system which properly reflects the needs of modern businesses and consumers and which provides effective safeguards for local communities.
Viscount Montgomery of Alamein: My Lords, the review of these arcane procedures—the licensing laws—will be widely welcomed by the hospitality industry. I must declare an interest as the honorary patron of the Restaurateurs Association of Great Britain. However, as reviews by nature take a long time, will the Minister consider some partial deregulation of the permitted hours and entertainment requirements for restaurants licensed under Part IV of the Licensing Act 1964? Cannot that be achieved by a simple order or a minor amendment to the Act?
Lord Williams of Mostyn: My Lords, the noble Viscount makes a valid point. We are willing to make improvements in the short term if a persuasive case is capable of being made. We would certainly he willing to consider the use of deregulation orders if they seem appropriate.
Lord Peston: My Lords, like other noble Lords, I welcome the inquiry. I do not wish to be regarded as an ultra free marketeer, but is my noble friend the Minister able to explain why, with the 20th century virtually at an end, we have to have licensing laws? Why are not the normal laws of the land suitably applicable for this quite small branch of British industry?
Lord Williams of Mostyn: My Lords, we have to bear in mind the dangers of lack of regulation on weak and susceptible people. In your Lordships' House, apparently, liquor is available from 11 o'clock in the morning, so the Chief Whip has told me. It has bad effects. It leads to poor judgment and sometimes mulish

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stubbornness in considering perfectly reasonable proposals from the Commons on Scottish higher education.
Lord Dixon: My Lords, while reviewing the licensing laws, will my noble friend bear in mind that a recent survey conducted by CAMRA found that only 20 per cent. of pints sold in licensed premises actually contained a pint of beer? Is he aware that my honourable friend Dennis Turner introduced a Private Member's weights and measures Bill in another place which would have ensured that people buying pints in licensed premises would be given a pint and not 95 per cent. of it? That Bill was sabotaged by Tory MPs. Will my noble friend press on the Minister for Competition and Consumer Affairs the banning of rim measures?
Lord Williams of Mostyn: My Lords, that issue is not entirely within the ambit of the present survey, but it is a perfectly legitimate point. I shall certainly transmit it and hope that one day, I, too, will be part of a survey on real ale to see whether a pint pot is 100 per cent. full. I suppose that as the evening goes by one is more and more certain that it does not.
The Viscount of Falkland: My Lords, can the Minister assure the House that when the Government are examining all the aspects of licensing, which he has mentioned, they will pay special attention to the huge rise in under-age drinking, in particular selling drink to young people? Will he ensure that those who knowingly do so face penalties somewhat in line with those levelled at people who pass drugs to youngsters?
Lord Williams of Mostyn: My Lords, the noble Viscount makes a good point. The industry is well aware of such difficulties. Sections of the industry are intent on producing a proof-of-age card. The noble Viscount will know of the difficulties about prosecution of employees of large organisations who are employed by the organisation and not the licence holder. That issue is specifically within the scope of the review.
Lord Jenkins of Putney: My Lords, does my noble friend agree that alcohol is a drug? Although it is a drug in which most of us here participate, including myself, is it not reasonable that all drugs should be under some degree of control?
Lord Williams of Mostyn: My Lords, alcohol is a drug, which is why people take it. Of course, it ought to be under a degree of control, but not all drugs are the same in their consequences or effects.
Lord Henley: My Lords, is not the solution to the problem enunciated by the noble Viscount, Lord Falkland, about under-age drinking that one must rely on the "laws of the land", as the noble Lord, Lord Peston, put it, and that one need not bother at all about licensing controls? At this point, I wish to
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welcome the noble Lord, Lord Peston, to the views expressed from this side of the House and suggest that he might like to join us!
Lord Williams of Mostyn: My Lords, licensing controls are part of the law of the land—that is the whole point of it all. The question is whether the law of the land is efficient and suitable to modern day conditions. As regards many aspects of licensing law, we are still dealing with the Sunday Observance Act 1780, or, in Wales, the Sunday Closing Act 1881, so perhaps the law needs to be reviewed and brought up to date.
Lord Campbell of Croy: My Lords, was the Minister's initial Answer restricted to England and Wales, or is there also to be a review of Scottish licensing laws, which are entirely separate and dealt with by the Scottish Office? Alternatively, will that be left to the proposed new parliament in Scotland, which would be appropriate as it is to be built on the site of a former brewery?
Lord Williams of Mostyn: My Lords, I believe that licensing in Scotland ought properly be left to the parliament in Scotland. There is a dreadful rumour, which I am not propagating, that the new assembly building in Wales may be wholly dry.
Baroness Masham of Ilton: My Lords, in the course of the review, will the Minister consider the training of publicans in dealing with under-age drinking, because the legislation is vague?
Lord Williams of Mostyn: My Lords, that issue will be considered. Before anyone is granted a licence he or she has to demonstrate knowledge of the relevant law. However, I agree that one needs to be astute, particularly these days when without a proof-of-age card it is difficult to know whether a proposed customer is over 18 years.
Lord Davies of Oldham: My Lords, will the Minister proceed in this area with some caution? Will he recall that at least one administration, according to the Prime Minister of the day, he contended was borne out on a torrent of gin and ale and that therefore one must be careful with licensing laws?
Lord Williams of Mostyn: My Lords, one does need to be careful. However, the Sunday Observance Act 1780 has been around and about for 220 years and therefore I do not believe that we are hastening too quickly.
Baroness Sharples: My Lords, is the Minister aware that many years ago I owned and ran a pub and that I never gave a short pint?
Lord Williams of Mostyn: My Lords, I did not know of the noble Baroness's licensing past. I can say that in Great Tew, which is the family estate of the noble

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Viscount, Lord Falkland, there is a most excellent public house called the Falkland Arms, which I have patronised.

Eurostar: Services North of London
2.48 p.m.
Lord Berkeley Lord Berkeley asked Her Majesty's Government:
What technical, commercial and frontier control reasons still prevent Eurostar services from operating north of London.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Baroness Hayman): My Lords, the technical issues which prevent the operation of regional Eurostar rolling stock on parts of the existing network relate to electrical interference associated with track circuits. Those matters have prevented the issue of safety clearances which are required before passenger services can be operated. Commercial decisions on the provision of regional Eurostar services are a matter for London & Continental Railways. The Government have, however, asked the consortium chosen by LCR to operate Eurostar to report urgently on the feasibility of such services. There are no frontier control reasons why Eurostar services north of London should not be operated.
Lord Berkeley: My Lords, I am extremely grateful to the Minister for that very full reply. As the Minister mentioned, the Government have asked the consortium running Eurostar to study the commercial viability of services north of London. That is the same consortium which proposed new services to Heathrow Airport; namely, British Airways and National Express. Does the Minister believe that that consortium will produce an objective report when it may be that the same trains are required for either north of London or Heathrow?
Baroness Hayman: Yes, my Lords, I believe that the consortium will produce an objective report. The Deputy Prime Minister made very clear the Government's view that they wish to see Eurostar operating regional services and made very clear, both to LCR and to the consortium, that they wanted an objective report by the end of the year on the viability of such services. It is absolutely correct that the consortium has proposed services from Heathrow, but we do not believe that that should in any way act against the possibility of an objective assessment of the possibility of regional services.
Lord Cadman: My Lords, given that Eurostar trains cannot at present physically gain access to Heathrow station and that any future connections of that facility with the Channel Tunnel rail link when constructed will be somewhat convoluted, how can the establishment of an international rail transport hub at Heathrow Airport be described as "innovative" and be of benefit to rail passengers from other parts of the United Kingdom?
Baroness Hayman: My Lords, if one looks in detail at the suggestions which are being put forward by the
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consortium which represents the national railways of France and Belgium, British Airways and National Express, which all have a great deal of experience in that field, one sees that the possibilities of an inter-modal hub service from Heathrow, both serving other parts of the United Kingdom and promoting interchange between different modes of transport onto Eurostar services, are extremely exciting. We believe that they should be explored. However, as I said earlier, we recognise also the very strong desire for through services to the regions. That is why we have asked for a report on the viability of such services.
Lord Hunt of Kings Heath: My Lords, is my noble friend aware that the problem of a lack of regional Eurostar services, certainly to the West Midlands, is intensified because of the poor quality of the ordinary London to Birmingham Virgin rail services? Is she aware of genuine concern in the region that the "double whammy" effect is causing a real problem in terms of attracting inward investment into the area?
Baroness Hayman: My Lords, I am aware of the concern that there should be good regional access because of its important economic potential benefits. As my noble friend is aware, the investment in the West Coast main line by Railtrack will be an extremely important aspect of that. But I recognise also that a desire for the extension of the Eurostar services to Birmingham and, indeed, beyond would be a valuable component.
Baroness Thomas of Walliswood: My Lords, bearing in mind the importance which is placed by noble Lords on all sides of the House on the early introduction of services north of London, will the Minister confirm that any such services operated through Heathrow could hardly operate before a time at some distance from now because the lines are simply not available? Will she tell us whether or not there is any view as to whether the Virgin rail proposals offer an opportunity for an earlier introduction of such services?
Baroness Hayman: My Lords, it is obvious to us all that there is no early answer on the question of Eurostar regional services. That is a matter of regret for many people because of the delay to the original CTRL project and the fact that we have had to renegotiate the extremely flawed arrangements which we inherited.
As the noble Baroness is aware, proposals have been made by Virgin in relation to the possibility of regional services. The Deputy Prime Minister has asked that those proposals be assessed, together with the consortium's assessment of regional services, so that we can look closely at all the options which might be available in order to bring in regional services as soon as possible.
Lord Bowness: My Lords, the noble Baroness told the House on 8th July that the Government would have to consider whether the Virgin proposal would divert revenue from the existing Eurostar service, undermining its viability and the viability of the deal with CTRL. But

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the Virgin proposal is to run regional services without subsidy, without changing trains, using the seven units currently available. Does the Minister not agree that it is surely the case that regional services will create new passengers, whether business or leisure, and that services originating north of Watford will not divert revenue from existing Eurostar services?
Baroness Hayman: My Lords, the issues are slightly more complicated than the noble Lord suggests. There is seldom anything such as a free lunch and seldom anything such as completely free regional services. We must look objectively at what is being offered by Virgin to see whether there are possibilities there. There are implications for the core services which Eurostar would be offering under the agreement made with London & Continental Railways. The House would expect that the proposals should be assessed in the round rather than simply leapt at because, on the surface, they look very attractive. That is not to pass judgment upon them, but they must be considered properly in the context of the review for which my right honourable friend has asked.
Lord Randall of St. Budeaux: My Lords, will my noble friend confirm that I have interpreted her answers correctly; namely, that the impediments to the provision of those additional services are really caused by the companies and the market and not in any way by the Government?
Baroness Hayman: My Lords, under the Channel Tunnel Rail Act, the Government's responsibilities are to provide the infrastructure which is available for direct regional services. Those obligations will be honoured under the deal which I announced to the House when repeating the Statement of my right honourable friend. Those obligations are in relation to infrastructure. Services have always been a matter of commercial concern for Eurostar. It is absolutely true that we must look—it would be wrong for any of us to deceive ourselves—at the market which exists. The noble Lord, Lord Bowness, talked about creating passengers for the services. We must look at how real that market is; at what the journeys would cost; and at the length of journey time. That is all part of the assessment which is being undertaken at present.
Lord Monkswell: My Lords, will the Minister confirm that while the proposals by Virgin and Railtrack to reduce the journey times between London, the West Midlands and the North West on the West Coast main line by introducing tilting trains will reduce journey times to London, they will result in Eurostar-type trains going from the North West and the West Midlands across into Europe effectively being consigned to the slow lane? Will that not inhibit the development of commercial passenger traffic from the North West and the West Midlands across into Europe?
Baroness Hayman: My Lords, my noble friend is being unduly pessimistic about the effects of investment in the West Coast main line. However, I suggest that it
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is another example of the ramifications and implications which must be taken into account in the review which is taking place at present.

Gulf War Veterans: Inquiry Request
2.58 p.m.
The Countess of Mar The Countess of Mar asked Her Majesty's Government:
What is their response to the request of the Royal British Legion that they commission a public inquiry into the way the aftermath of the Gulf War has been handled.
The Minister of State, Ministry of Defence (Lord Gilbert): My Lords, the Prime Minister has received a letter from the Royal British Legion and, more recently, a petition from the National Gulf Veterans and Families Association calling for a public inquiry. The Government are considering the matter carefully and will respond formally to both organisations shortly.
The Countess of Mar: My Lords, I thank the noble Lord for that reply. Is he aware that, while I acknowledge the great efforts made by the present Government to improve the situation with sick Gulf veterans, it is now nearly six-and-a-half years since the Gulf War and many of the veterans are seriously ill? Many of them are now committing suicide: I believe that the suicide rate is running at about one a month. They have met with nothing but procrastination, obfuscation and economy with the truth. They are rightly anxious that something should be done extremely quickly to sort out their situation.
Does the Minister acknowledge that the United States of America seems to be further ahead than us, in that it is ordering proper clinical research into its Gulf veterans' illnesses, while we, with two small exceptions, seem to be sticking to epidemiological studies? Therefore, is there not a need to look into the way this whole situation has been handled?
Lord Gilbert: My Lords, I certainly respond with gratitude to the first part of the remarks made by the noble Countess in which she paid tribute to the work done by my honourable friend the Minister for the Armed Forces. However, I am sure that she will not expect me to agree with her that the veterans have received nothing but "obfuscation and economy with the truth". As I am sure the noble Countess is well aware, we are doing everything we can. So far as concerns how far advanced the US is, as the noble Countess will know, the Americans are in a position to put far more resources to work in this matter than we are. However, my best information is that they are no further towards finding a solution than we are at this stage.
Lord Molloy: My Lords, is my noble friend the Minister aware that the Question tabled by the noble Countess is vital to our former servicemen represented through the Royal British Legion? Indeed, I cannot imagine a more worthwhile organisation nor one which

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deserves the full and unmitigated support of any government or any opposition in either House. The legion expects just that. Does the Minister also recognise the fact that the noble Countess will be acknowledged for what she has done? I hope that our Government and the whole House will give her full support on behalf of our Royal British Legion.
Lord Gilbert: My Lords, I have no difficulty whatever in sharing my noble friend's tribute to the Royal British Legion and to the noble Countess, whose tenacity in these matters deserves the admiration of everyone in this House. I can only ask my noble friend to accept that the Government are doing everything that they possibly can in these matters. As I am sure my noble friend is aware, we have announced additional resources in various directions. In addition, in the Strategic Defence Review, we announced that we will be allocating something of the order of £40 million a year extra to defence medical services over the next three years. Moreover, we are setting up a cell in the Ministry of Defence for veterans' affairs to which they can apply for help with all the problems that they may face.
Baroness Masham of Ilton: My Lords, can the Minister say whether service personnel are still being given multiple vaccination when they go abroad?
Lord Gilbert: My Lords, so far as I know, the circumstances have not arisen.
Earl Russell: My Lords, does the Minister agree that the contrast that the noble Countess has made between our reactions and those of the United States is a real one? Further, does he agree that that difference is a good reason for welcoming the commitment of this Government to freedom of information and wishing well those Ministers who attempt to deliver it?
Lord Gilbert: My Lords, I would not for one moment recognise in the words of the noble Countess an intention to say that the attitude of this Government, or their predecessor, is different from that of successive American administrations. Indeed, I do not accept that at all. We are working very closely together with the Americans. They have more resources than we have, but we have full disclose of information with them. We are both seeking to get the answers to these very difficult questions.
Lord Mowbray and Stourton: My Lords, is the Minister aware that I too am a president of the Royal British Legion—in Tayside? The members of the legion are the most loyal of people. They are not complainers and they are not whingers. Therefore, on their behalf, I should like to ask the Minister to accept that they would not want to be given anything that was not deserved. However, if it is deserved, should we not give it to them? Let us not give the impression that the whole of the Royal British Legion is on the march in an attempt to demand more money.
Lord Gilbert: My Lords, I hope that nothing I have said from this Dispatch Box has given that impression. I am certainly happy to repeat the tribute that I paid to the
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Royal British Legion, whose work everyone in this House will have admired for many years. As I am sure the noble Lord is aware, I should possibly add that the letter from the Royal British Legion goes far wider than just questions on Gulf illnesses. That is one of the reasons why its suggestions must be treated very carefully by the Government.
The Countess of Mar: My Lords, does the Minister accept that it is not only the Gulf Veterans who are ill at present who are important? Of course, that is the reason why this public inquiry has been requested, but the confidence of our troops in the future is important also. They must feel sure that they will be protected against as many as possible of the assaults of any enemy that they may come across. That confidence appears to be lacking at present and seems to be reflected in the noble Lord's failure to answer my question of 7th May regarding how many people had refused anthrax vaccinations.
Lord Gilbert: My Lords, the noble Countess is quite right. There is a question of confidence that we are having to address at the Ministry of Defence. I do not have the figures with me as regards the number of people who have refused anthrax vaccinations. However, the policy is voluntary. At present, the number who have refused is really quite small, especially among those troops who are serving ashore. The number who declined it among those who are serving afloat is considerably higher, and that is probably because they do not see the urgency or immediacy of it.
The noble Countess is quite right, the Government have a responsibility, which they seek to discharge, to ensure that, where Her Majesty's Forces may be exposed to chemical and biological warfare in future conflicts, protection is given on the best medical advice available to us, as the previous government did with the best medical advice available to them. Indeed, we must ensure that resources are made available for inoculations and injections. To that end, my right honourable friend the Secretary of State and my honourable friend the Minister for the Armed Forces both voluntarily submitted themselves to inoculations to set an example for everyone else.

Business
3.7 p.m.
Lord Carter: My Lords, at a convenient moment after 3.30 p.m., my noble friend Lord McIntosh of Haringey will, with the leave of the House, repeat a Statement that is to be made in another place on the comprehensive spending review.

Business of the House
Lord Carter: My Lords, before the House proceeds to deal with the next business on the Teaching and Higher Education Bill, your Lordships may like to know that my noble friend Lady Blackstone has tabled an amendment which is now available in the Printed Paper Office. It has

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been agreed through the usual channels that I should move that the House do now adjourn until 3.20 p.m. to allow noble Lords to collect and study the text of that amendment.
Lord Strathclyde: My Lords, on behalf of this side of the House perhaps I may say how grateful we are to have this opportunity to examine the amendment tabled in the name of the noble Baroness, Lady Blackstone. The Government Chief Whip will have noticed that we have a very full House today. A great many Peers will wish to see and study the amendment. Is the noble Lord in a position to confirm that the Printed Paper Office has a substantial supply of copies of the amendment? If it has not, and if not all noble Lords are satisfied with the amount of time that has been given, could there perhaps be an extension to this adjournment?
Lord Carter: My Lords, if it is easier for the House, I am happy to move that we commence consideration of the Commons Amendments at 3.30 p.m. I am assured that there are enough copies of the amendment in the Printed Paper Office. Accordingly, I beg to move that the House do now adjourn during pleasure until 3.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 3.8 to 3.30 p.m.]
Lord Carter: My Lords, since the tabling of the Government amendment, the Opposition have tabled some manuscript amendments which your Lordships will wish to study. Therefore, I beg to move that the House do now adjourn during pleasure until 3.45 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 3.30 to 3.45 p.m.]

Teaching and Higher Education Bill [H.L.]
3.45 p.m.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, I beg to move that the Commons Message be now considered.
Moved, That the Commons Message be now considered.—(Baroness Blackstone.)
On Question, Motion agreed to.

MOTIONS TO BE MOVED ON CONSIDERATION OF COMMONS REASON FOR DISAGREEING TO A LORDS AMENDMENT IN LIEU OF WORDS LEFT OUT OF THE BILL BY A COMMONS AMENDMENT TO WHICH THE LORDS HAVE AGREED
[The page and line refer to Bill (145) as first printed for the Commons.]
COMMONS AMENDMENT
123 Clause 25, page 22, leave out lines 31 to 39.

LORDS AMENDMENT IN LIEU
The Lords do not insist on their disagreement to Commons Amendment No. 123, on which the Commons have insisted, but do propose the follow ing amendment in lieu of the words so left out of the Bill—
123E Clause 25, page 22, line 30, at end insert—
("(3H) In exercising his powers under this section, the Secretary of State shall ensure that any arrangements for the payment of grant in respect of tuition fees for the fourth year of study for a first degree course at a higher education institution in Scotland apply equally to a student whose parental home or normal place of residence for purposes other than attendance at that institution is in England. Wales or Northem Ireland as they do to a student whose parental home or normal place of residence for purposes other than attendance at that institution is in Scotland.").
The Commons disagreed to this amendment for the following reason:
123H Because it involves charges on public funds, and the Commons do not offer any flintier reason, trusting that this reason may be deemed sufficient.
Baroness Blackstone Baroness Blackstone rose to move, That this House do not insist on their Amendment No. 123E, to which the Commons have disagreed for their reason numbered 123H, in lieu of the words left out of the Bill by Commons Amendment No. 123 to which this House has agreed, but do propose the following amendment in lieu thereof—

MOTION MOVED ON CONSIDERATION OF COMMONS REASON FOR DISAGREEING TO A LORDS AMENDMENT IN LIEU OF WORDS LEFT OUT OF THE BILL BY A COMMONS AMENDMENT TO WHICH THE LORDS HAVE AGREED
123HB Clause 20, page 15, line 40, at end insert—
("(4) The Secretary of State shall, not later than six months after the passing of this Act, appoint an independent body to review the arrangements for England and Wales relating to the payment of grants in respect of fees payable in connection with attendance on the final honours year of first degree courses at higher education institutions in Scotland.
(5) The Secretary of State shall invite—

(a) the Scottish higher education principals,

(b) the Committee of Vice-Chancellors and Principals, and

(c) such other bodies as he considers appropriate,

to make representations to the body established under subsection (4): and the report of that body shall be laid before each House of Parliament not later than 1st April 2000.
(6) If that body recommends that the arrangements referred to in subsection (4) should be modified in accordance with this subsection, the Secretary of State may modify those arrangements so as to secure that they are no less favourable than the arrangements made by regulations under section 73(f) of the Education (Scotland) Act 1980 for the payment of allowances in respect of fees payable as mentioned in subsection (4).
(7) In subsections (4) and (6) any reference to the arrangements for England and Wales is a reference to arrangements made either under the Education Act 1962 or under section 19 of this Act.").
The noble Baroness said: My Lords, I beg to move the Motion standing in my name. This gives effect to the undertaking that my right honourable friend the

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Secretary of State for Education and Employment made in another place last night to review payment of fees for the fourth year of a university course in Scotland.
The Motion I am moving follows closely the proposal of the noble Lord, Lord Thomson of Monifieth, in his amendment that is before the House this afternoon. We are happy to accept the principle of his amendment, and I pay tribute to him for bringing forward a very helpful proposal. However, the noble Lord's amendment is not in the Government's view tabled at quite the right place in the Bill. It would need some technical redrafting. For that reason we have tabled our own amendment in lieu, which I move with this Motion. I hope that the noble Lord, Lord Thomson of Monifieth, will be content that the Government's amendment meets the substance and intention of his amendment and gives effect to it in the right form on the face of the Bill.
Perhaps I may say a little about the review which is the subject of the amendments before the House. In response to the concerns expressed in this House and elsewhere, my right honourable friend in another place last night offered a future independent review of fee arrangements relating to Scotland. It will be a serious review, and not cosmetic. In line with our stated intention to monitor the effect of tuition fees as they are introduced, we are willing to set up an independent review of the arrangements for fee support for students in the fourth year of Scottish honours degree courses. The fact that it will be independent is stated in the amendment. Such a review would take place next year in the light of evidence on applications and admissions to four-year courses in 1998–99 and early evidence on applications to four-year courses in 1999–2000. This will allow for all the evidence to be assessed, including the impact on Scottish universities.
To give statutory effect to this review, I am therefore moving a government amendment which will require an independent review body to be set up within six months and to take representations from the parties most closely concerned: the Scottish Principals, the CVCP and others. The provision in our amendment for the Secretary of State to invite such other persons as he considers appropriate could, for example, cover other interested bodies such as political parties. This is very similar in purpose and effect to the amendment tabled in the name of the noble Lord, Lord Thomson of Monifieth. However, it will amend Clause 20 rather than Clause 25 because it is Clause 20 that will govern the arrangements for financial support for fees that is available to students ordinarily resident in England and Wales.
An amendment to Clause 20 to refer to Northern Ireland is unnecessary. We fully recognise that this is an issue which has implications for students from Northern Ireland as much as from England and Wales. However, provision for Northern Ireland will be made, as is customary for Northern Ireland, by means of an Order in Council made under Clause 31 of the Bill. That order will be made very shortly after the Bill receives Royal Assent. It will make provisions corresponding to Clause 20 of the Bill as to other clauses and will fully reflect the changes set out in the Government's amendment today.
Until the need for such arrangements has been proved and weighed against the greater anomaly that they would create for students in the fourth year degree courses at institutions in the rest of the UK, the Government are not prepared to make special provision. But if the independent review were to recommend that the absence of special arrangements for students from England and Wales and Northern Ireland in the fourth year of degree courses at Scottish institutions should be modified, then we should, of course, be prepared to look again at the arrangements for providing financial support with fees for such students.
I hope that the House will accept our proposal. The review, combined with the rest of the Bill, now gives us the way forward.
Let me now rehearse again some of the main reasons for the Government's decision to make a concession in the first place to Scottish students in the fourth year of honours degree courses in Scotland. That arose directly out of recommendations from the Dearing committee of inquiry into higher education and its Scottish committee under Sir Ron Garrick. Their recommendations in turn stem from the difference between the Scottish education system and that in the rest of the United Kingdom. There has been much argument in this House over the extent of the difference between the two systems. Of course, the difference can be exaggerated, but I have to say that if there were no difference at all, then there would be no argument for any concession in the first place.
We have heard arguments over whether Scottish students enter higher education after one year's extra education after statutory schooling at around the age of 17 or whether they do so later, after two years. I wholly accept the fact that many Scottish students stay on for a second year and enter higher education later, but I do not think it is entirely relevant. The point is that Scottish students can qualify for university entry on the basis of higher qualifications, while students in the rest of the UK have to do a two-year course leading to A-levels or the equivalent, in order to qualify for entry to higher education. It is that which has led to Scottish honours degree courses normally lasting four years as opposed to the three years in the rest of the United Kingdom.
Students from the rest of the UK can obtain an honours degree for a maximum contribution of £3.000 in tuition fees. By meeting the full cost of the tuition fee in the fourth year, my right honourable friend the Secretary of State for Scotland is ensuring that Scottish students can also obtain an honours degree for a maximum of £3,000 in tuition fees, just like students in the rest of the United Kingdom.
We have heard many arguments that our policy will result in unfairness. But, on the contrary, let me repeat that our proposals mean that all students in the UK will have the opportunity to study for an honours degree for a maximum contribution of £3,000 towards tuition costs. Our policy thus recognises and, indeed, preserves the diversity of the UK higher education system which we value, while offering equality of opportunity.
Let us be quite clear that this is not an issue of nationality or country of birth; it is simply about two different education systems. Scottish higher education

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has a very high reputation around the world and my right honourable friend and I have a very high regard for it. The Government recognise that many students in the rest of the UK can and wish to benefit from studying at a Scottish university, in particular those who may have Scottish family ties. We quite understand that they may wish to study for an honours degree at the same institution as their parents. But let us also be clear that no student from any part of the United Kingdom will be prevented from attending a Scottish university or college because they cannot afford a fourth year of tuition fees. Students from outside Scotland who come from low income families will in any case be entitled to free tuition and many more from middle income families will receive financial assistance with their fees.
To extend free tuition to all UK students in the fourth year of honours courses at Scottish institutions, regardless of financial circumstances, would help only those from better off families. It would be of no benefit whatever to students from less well off backgrounds because, as I have already explained, they will already be entitled to free tuition. Moreover, to pay the whole tuition fee for all English, Welsh and Northern Ireland students simply because they are on the fourth year of a degree course in Scotland, which could be completed in three years elsewhere, would create unfairness. It would be unfair on those students studying for a fourth year at a university outside Scotland who still have to pay fees. Why should, say, an English student from a well off family get free tuition for a fourth year at Edinburgh or St. Andrews University but not at Newcastle University? Why should a student from Northern Ireland have all his fees met if he is in the fourth year of a course at Glasgow University, but not at the Queen's University of Belfast?
As I have indicated, extending the concession in itself would create a bigger anomaly and would, no doubt, lead to mounting pressure on the Government to meet the fees for all UK students on the fourth year of degree courses at institutions all over the UK, whether or not there were a legal obligation on us to do so. Putting right that anomaly would cost more than 10 times as much—in the region of £27 million a year and possibly quite a lot more. Such an exemption would benefit the well off, since only they would be required to contribute towards tuition fees. I repeat that it would do nothing to benefit those most in need of assistance and in practice a subsidy of £27 million or so for better off families would mean £27 million less in public funding for universities and colleges. The money would have to come from elsewhere in the higher education system and we simply do not agree that a significant part of the £165 million that we have invested this year in higher education in England or of the new investment that my right honourable friend is announcing today should be diverted away from improving access, providing extra university places or funding research.
The cost is significant, but the principle is just as important. We believe that, as Dearing recommended, those who benefit from higher education should share its costs. There is no reason that those students who
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voluntarily choose to undertake four-year courses and who come from families that can afford to do so, should not contribute towards the cost of all four years.
Our proposals are in tune with the principles of Dearing and Garrick. They protect the diversity of the higher education system in the UK without giving an unfair advantage to Scottish institutions over other institutions in the UK. They promote equality by ensuring that across the school and higher education systems as a whole no students in Scotland are disadvantaged in the number of years of education they can receive at public expense compared with students from elsewhere in the UK. They provide all students in the UK with the opportunity to study for an honours degree for the same maximum contribution towards tuition costs. That is why the Government disagreed with the last amendment that was passed in this House and reversed that amendment in another place yesterday.
I hope it was helpful that I should re-explain the Government's position. I commend the amendment to the House.
Moved, That this House do not insist on their Amendment No. 123E, to which the Commons have disagreed for their reason numbered 123H, in lieu of the words left out of the Bill by Commons Amendment No. 123 to which this House has agreed, but do propose Amendment No. 1123HB in lieu thereof.—[Baroness Blackstone.]

AMENDMENT TO BE MOVED ON CONSIDERATION OF COMMONS REASON
[Amendment No. 123HC, as an amendment to Amendment No. 123HB, not moved.]
4 p.m.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved, as an amendment to Amendment No. 123HB, Amendment No. 123HD:

AMENDMENT TO BE MOVED ON CONSIDERATION OF COMMONS REASON
123HD In subsection (6), leave out ("may") and insert ("shall")
The noble Lord said: My Lords, in moving Amendment No. 123HD I want also to respond to the major points made by the noble Baroness and the amendment that she moved. As there was going to be such a major change in the Government's position it might have been for everyone's convenience if this matter had been held over until tomorrow. We have not spent a very edifying hour since 20 minutes to three when the proposed Motion appeared in our hands. However, one must look on this as a little bit of progress and that, after all these months, somebody somewhere is doing some listening—perhaps not quite enough but at least some.
I congratulate the noble Lord, Lord Thomson of Monifieth, on being a little closer to the Government than I am, despite the fact that I have been leading on this issue for many months. However, I can understand why the noble Lord, Lord Thomson, had his amendment taken over and re-worked by the Government. It would

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be churlish of me to do other than congratulate the noble Lord on being with me in this successful operation—not completely successful, but nearly.
I welcome the noble Baroness to the Dispatch Box. On every occasion that we debated this matter—I believe this is the seventh time on the Bill itself and the Commons reasons—it has been the noble Lord, Lord Sewel, who has had to come to the Dispatch Box and defend what we considered to be indefensible. I am not sure what one reads into that. Does the noble Baroness come as the gods bearing gifts? In that case, I am not sure whether or not she supplanted the noble Lord, Lord Sewel. I am not sure that it is not a little unfair to the noble Lord, Lord Sewel, who has been beaten about the head for weeks now in relation to this issue, that he cannot come with at least a small olive branch to your Lordships' House.
I am not surprised that the noble Lord, Lord Sewel, has not done that because I received a letter, as did many other noble Lords, from no less an organisation than the University of Aberdeen, in which the noble Lord, Lord Sewel, was a distinguished academic. That letter makes it absolutely clear that it would be,
"absolutely unfair to choose courses or universities dependent on where people live in the United Kingdom. We consider the issue to be one of equality and the Government's failure to recognise this is angering and worrying students across the United Kingdom".
I do not know whether Claire MacBride was an ex-pupil of the noble Lord, Lord Sewel, but clearly she has not been convinced by his argument.
The noble Baroness made a half-hearted attempt—I do not blame her for that—to defend the Government's position over those many months. She attempted to revisit the question that Scottish education is somehow different and that Highers courses last a year. However, she moved away a little from that and conceded that most students in Scottish schools spend two years after 16 in education and therefore the reality is that they are in exactly the same position when they go to university as students from elsewhere in the United Kingdom.
I do not want to lecture your Lordships on Scottish education, but the fact is that one needs a fair clutch of Highers in order to achieve university admission. The cleverest youngsters achieve them by the end of their fifth year—I grant that—but the great majority of youngsters go to university after the sixth year. It is worth saying that more youngsters go to university from schools in Scotland than in England. The Scottish education system therefore has something to say to the rest of the country in that regard.
Most youngsters need two years to take one of the Highers in order to reach the necessary standards. Therefore, many youngsters need the two years in secondary school after 16 in order to achieve the entrance qualifications. As I said, and as the honourable Member Dennis Canavan, who was also a principal teacher in mathematics, as I was, said to the other place, most youngsters, even the cleverest ones, stayed on for an extra year when they did the sixth year of studies when he and I were teaching.
The idea that somehow Scottish youngsters went off to university at the end of the fifth year is simply not true. In recommendation 81—I say this as charitably as
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I can—the noble Lord, Lord Dearing, got it wrong, or the Government did not read it properly. They should only have used the argument for those few youngsters who went immediately after the fifth year. There is, therefore, a difference in Scottish education and I am glad to hear the noble Baroness accept that this afternoon. Indeed, that is a great deal more charitable to Scottish education than our right honourable friend David Blunkett was last night, when my most un-Scottish nationalist hackles were raised by the way he suggested that Scottish students need another year at university to make up for their school education. As I say, considering we send more youngsters to university than they do south of the Border, we do not need to take lectures in that regard.
The noble Baroness also talked about the anomaly that English students who take four-year courses—they are in the minority—might expect their fourth-year fees to be paid. But that is not the anomaly. As I explained, the anomaly is this. In the same queue in Scottish universities in their fourth year will be youngsters from Scotland who are only paying £3,000 and not paying at all for the fourth year; there will be youngsters from European Union countries—dare I mention Italy?—who will not be paying at all for the fourth year, and there will be youngsters from England, Wales and Northern Ireland who will pay £1,000 for the fourth year. That is at the centre of the inequity.
If we look to an English university, there will be no anomaly in the queue. All the youngsters in the queue will be paying for the fourth year, if that is the queue they are in, wherever they come from. I am amazed that the Government have not been able to understand the huge difference between the Scottish and the English positions. However, they are beginning to show some understanding.
I notice that neither here nor yesterday in the Commons was much made of the anomaly of the European Union students, except that they were dismissed as just a few. I know it is hard for new Labour to understand, but principles do not involve the number of people affected by something; they are actually principles. If we consider Ireland, about which we are all worried at the present time, it is indefensible that a youngster going to the university of Abertay—which is 14 per cent. down on its applications this year—coming from Limerick will only be asked to pay for three years, but a youngster coming from Limavady will be asked to pay for four years. That does not send out the right picture and I was not surprised therefore that the noble Baroness made no attempt to defend that.
I turn now to my amendment. I am happy to hear from the noble Baroness that this will be an independent review; I am glad about that. I hope it is undertaken by somebody who knows about Scottish education and the British education system and will be aware of what is happening. I understand the Northern Ireland point; I thought that was it and I am grateful to her for spelling it out from the Dispatch Box. When it comes to,
"such other bodies as he considers appropriate",
I take it that that means bodies and persons. It is not just bodies; it is persons as well so that individuals can give evidence. I will be grateful if I can have that assurance.
I wonder also whether, when the Scottish parliament is set up as it will be next May, I am right in thinking that the question of university fees will become a matter for that Scottish parliament and that the Scottish parliament will be able to revisit this issue and decide what it wants to do. In the manifesto which my party shall write for the Scottish parliamentary elections, whatever the outcome of this review, we will pledge to deal with this anomaly and find the £2 million.
However, accepting the independent review, accepting the evidence, the information I have indicates that bodies such as the Scottish Higher Education Principals, the Committee of Vice-Chancellors and Principals, the National Union of Students, the Association of University Teachers, all the teacher unions, I suspect, in Scotland, the Education Institute for Scotland and other unions, will all come and present overwhelming evidence along the lines of the speeches that I have made to your Lordships over the past few months. The only people coming forward with a contrary view will be those who give evidence for Her Majesty's Government. If the body is independent it will conclude that something should be done and that the fourth-year anomaly should not exist.
It is not that I distrust government ministers but I know a lot about them. I have had experience of them. I can see that if I get a report from the commission saying, "Yes, it is an anomaly. We do not believe that you should charge fourth-year fees to students from England, Wales and Northern Ireland. We think you should sort it out", the Government will say, "Very kind. Thank you for your advice. We will not sort it out because the Bill just says 'may.'" That is why I am putting in "shall". If the Government have confidence in the case that they can present to the independent committee and believe that they can persuade all these bodies to change their current view and come forward with evidence to say that there is no problem, then they should be confident enough to accept my amendment and incorporate "shall".
The Lord Privy Seal (Lord Richard): My Lords, I thought the noble Lord had given way. I hoped he had subsided finally but he obviously has not. Perhaps the noble Lord can help me with this question. Can he think of any instance in which a government, in advance, have agreed to be totally bound by the decision of an independent committee which has not yet been set up and which has not started considerations? I cannot.
Lord Mackay of Ardbrecknish: My Lords, I see the point that the noble Lord the Leader of the House is making. As the amendment is only an hour and 20 minutes old, I cannot answer that question. He has the power of government behind him. Even in 20 minutes I have no doubt that he will answer it for me.
Lord Richard: My Lords, does the noble Lord agree that the insertion of the word "shall" into the
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amendment as he proposes has that effect? If it does, and if I am right that there is no precedent that I know of for that, he is embarking on constitutionally thin ice.
Noble Lords: Oh!
Lord Mackay of Ardbrecknish: My Lords, many happy hours have been occupied by committees in this place and the other place discussing "may" and "shall"—whether "shall" means "may" or "may" means "shall". I see the point that the noble Lord is making.
Earl Russell: My Lords, the noble Lord the Lord Privy Seal if I heard him right, said that he could not think of any case when government agreed to be bound in advance by the decision of another body. Does that not happen every time a government go to court?
Lord Mackay of Ardbrecknish: My Lords, I must say that I find it more comfortable to have the noble Earl batting on my side than against me. I was about to say that the noble Baroness should take that on board. When she replies perhaps she will give me some comfort that the word "may" is a little bit stronger than "maybe" and that the Government will commit themselves to taking very seriously what the commission says and to enacting its recommendations unless there are compelling reasons for not doing so. I need some words of comfort.
I do not want to go on because we have been over this issue many times. We have made a little progress. It would have been much wiser for the Government to have made the progress some time ago—perhaps when the Bill was in this House or in the other place—instead of digging in their heels. They have discovered today that your Lordships are indeed a revising chamber. We have been at least partially listened to. I thank the Government and the noble Baroness for that. I thank also the noble Lord, Lord Sewel. No doubt he has reported back to his colleagues that he has been drubbed something dreadful on a number of occasions on this issue. I thank the Government as far as it goes. I would like them to go further. I look forward to hearing what the noble Baroness has to say about "may" and "shall". I beg to move.
Lord Thomson of Monifieth: My Lords, the immediate response from these Benches is to express our gratitude to the Government for accepting the amendment that we tabled earlier today and for adapting it, through the technical resources available to them, to improve the terms of it. The Government and the Minister have certainly taken the House by surprise. We have rarely had so much pleasure—we have had it twice this afternoon—as a result of the Government having to act without more notice to the House. It is a welcome surprise.
I agree with the noble Lord, Lord Mackay of Ardbrecknish, that it does not solve the problem of the principle of equal treatment of tuition fees for students who come from other parts of the United Kingdom to Scottish universities. On that point both the Official Opposition and ourselves are in agreement. The

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government action today, coming so swiftly after the events in the other place last night, shows what we can all regard as sensible flexibility over what is a difficult issue for both sides. It shows a willingness to allow the issues to be examined before the final arrangements are formally in place.
Our role is to be a revising Chamber, to give the government of the day the opportunity to think again. That is what we have been seeking to do during the long game of ping-pong over these provisions. The independent review body proposed orally last night in the other place and to be enshrined on the face of the Bill here provides that opportunity for thinking again.
This was never a great constitutional issue, although, on reading some of the speeches, one would have thought that there were some who sought to make it a conflict between Lords and Commons. No-one in your Lordships' House—certainly no-one on the Front Benches—denies the legitimacy of the elected Chamber, especially when it involves raising money through taxes. But the Government have stubbornly refused to recognise adequately over quite a long period—in your Lordships' House and, certainly, in another place—that, particularly on educational issues, your Lordships' House has a special right to be listened to. This House contains within its membership a wide range of people with great experience of education gained during their professional lives. The Government would have been wise to have given much greater weight to the doubts expressed in this House at a very much earlier stage. I beg the Government at this stage not to under-estimate the all-party opinion outside this House that is on our side of the argument rather than theirs over Scottish university tuition fees.
I had to miss the previous game of ping-pong last week because I was in Scotland. I was attending the degree ceremony of the University of Dundee, with which I have had a long association. During that ceremony the principal of the University of Dundee, Professor Ian Graham-Bryce, used these words:
"Whatever rationalisations arc put forward, the practical effect is discriminatory. If this leads to a decrease in the diversity of the student body"—
which has been enjoyed in universities like Dundee where there is a very significant group of students from outside Scotland—
"it will he Scottish higher education and ultimately Scottish interests which will he the losers".
The principal of the University of Dundee reported that he was already experiencing a fall in applications for places—a 14 per cent. fall this year—and that the outlook was not good at present.
A great many conflicting figures have been given about whether the provisions of the Bill are already having an effect on applications to Scottish universities from other parts of the United Kingdom. One of the useful purposes of the proposed review may be to clarify this situation because the effect of the provisions will become clearer and clearer as the review body sits—and that may greatly help to make the debate as cool and as rational as possible.
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I welcome the Minister's assurances that this is to be a truly independent review. It is not to be a "cosmetic operation", to use her phrase. The implication is that we are entitled to assume that the Government will approach the review in that spirit and will ensure that the members of the review are truly independent people and that the review is able to tackle the problems that lie before it ab initio with an open mind. For that reason, I do not propose to follow the example of the noble Baroness the Minister, who seemed to be rehearsing the evidence that presumably she will in due course give to the review; nor the example of the noble Lord, Lord Mackay, who was either rehearsing the evidence he will give in the future or was going over the evidence he has given frequently in these debates in the past. I do not think much is to be served by doing that at this stage.
The Government have made a very important concession. I recognise that it is not easy for the Government to make such a concession at this stage of a Bill that has aroused passions as deep as this one has aroused. Therefore, I welcome the fact that the Government have done so; I welcome the proposal for the review; and I welcome the way they have taken our amendment and incorporated it onto the face of the Bill. I am a very happy man this afternoon.
Lord Dearing: My Lords, during the passage of the Bill I have become accustomed to accepting chastisement from the noble Earl, Lord Russell; the noble Lord, Lord Beloff; and no less from the noble Lord, Lord Mackay, although I invite the noble Lord to read Clause 81 again and to change his mind. While I have become used to that chastisement, I was perturbed when during our previous debate the right reverend Prelate the Bishop of Ripon described me as a man without principle. Being of a certain age, and thinking that in the fullness of time, like perhaps several other noble Lords, I shall be moved to yet another place, I thought that I would write him an epistle—an epistle of five pages—lest I be condemned to a purgatory of everlasting ping-pong. I am glad to tell your Lordships that the right reverend Prelate was kind enough to ring me this morning, fearing yet another even longer epistle, to authorise me to say that I was forgiven.
I welcome the initiatives that have been taken to relieve us of a difficult problem. We all need time, just as the National Union of Students told me that it needs time when I asked for its position on a certain matter which was very relevant and to which I referred on another occasion. I am delighted to support the government amendment. I agree that "may" is the better word, but with an edge of "shall" about it.
Lord Callaghan of Cardiff: My Lords, I believe this is the fourth time that we have discussed this matter. I apologise for the fact that I have not been present on earlier occasions. However, I have followed all the arguments and on the whole have agreed with most of them. So I came here this afternoon, assuming this was the fourth time and that we were thinking of sending the Bill back, to make a great constitutional speech, but somehow the air seems to have gone out of the balloon.

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I had intended to say that this unelected and unaccountable Chamber was unrepresentative and, therefore, with a clear conscience, I could vote with the Government. Now that I am reduced to voting apparently between "may" and "shall", I feel rather as though I have been let down by the Government's concession. However, I think they have done the right thing. I think your Lordships can retire with honour from the major constitutional battle. The Government have listened. They have gone the extra mile.
From my close experience over a period of 10 years with the Committee of Vice-Chancellors and Principals, I have no doubt that it will approach this from the point of view not only of the interests of the universities and the higher education institutions, but also from that of the students. It is a great pity that we did not have a solution to this problem when the noble Lord, Lord Dearing, considered it. But we did not. So I think now that we can safely leave it to the review to make recommendations that will certainly be realistic and practical and will get rid of as many difficulties as possible.
With regard to "may" and "shall", I can see the hands of the parliamentary draftsman in this. As anyone who has been a Minister knows, no parliamentary draftsman would ever agree to "shall" if he could get away with "may". I do not blame him either. As noble Lords on both sides of the House know—a number of former Ministers are present—although one may be in full agreement with whatever a committee of outsiders—and they are outsiders—proposes, it is for Parliament to take the final decision on what form legislation should take. That is how it should be. I do not think that Parliament can hand over the final responsibility for this matter, even to a committee as eminent as my friends, the Committee of Vice-Chancellors and Principals and all those associated with it. Now that the Government have gone the extra mile, on which I congratulate them, it would be a great pity if we were to send the Bill back to the Commons again and say, "We insist on 'shall'", when it is well known that this is not the way in which legislation is normally drafted.
I would also say to my noble friends on the Front Bench that if the committee came back with a recommendation which was seriously interfered with, which was weakened by the Government or which was not accepted by them, a number of us would find it difficult to support them. It should weigh with all Members of your Lordships' House that in this place we think as independently as we can even though we try to follow the Government Whip and to do what we can. Nevertheless, having committed themselves to this course of action, the Government are morally bound to accept all the major conclusions that follow from it. If they could not, it would put some of us in a great deal of difficulty.
On that basis I hope the House will agree that we have achieved something on the Bill. It has now been considered so many times by this House and it has gone through the Commons. It contains a number of measures on which many hours have been spent by the noble Baroness, Lady Blatch, the noble Lord, Lord Mackay of
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Ardbrecknish, and my noble friends, who have worked very hard this Session. I feel sorry for them, having seen them come here day after day to consider all the amendments. I hope the House will agree that we need not send the Bill back to another place and can accept that what has happened reflects well on the persistence of this House.
The Earl of Perth: My Lords, I am sorry I could not be present when we discussed the Bill on 7th July, but I had an accident and I needed five stitches in my head. Noble Lords now see me standing here and I am all right.
Shakespeare said,
"A plague o' both your houses!".
If I were an outsider and had seen the debate I would think that a very apposite comment. But we are not outsiders but insiders. We cannot take comfort in what happened in Shakespeare's day.
There is one point which has hardly been mentioned by anybody; namely, what would have been the effect if the Government had succeeded in getting their Bill through and what would have been the effect on Scotland in particular? I am quite clear that the only people who could have benefited were the Scottish Nationalist Party, because they seek independence. What would have happened? When the first election came up we would have heard the cry, "Remember the poll tax and the Scottish Education Bill!" Luckily, that second part need not arise now in the light of the amendment of the noble Baroness, Lady Blackstone, which we are considering today. Without it, we would have suffered the very real danger that both students and principals, and indeed the whole of Scotland and the other parts of the country, would have good cause for resentment. I cannot stress enough how much I believe that that could have affected the whole issue of the Union with Scotland.
I had prepared a good, long speech but it is not going to be spoken. I say, "thank you" to the Government for having met our points. As I see it, as regards the question of "may" or "shall", I hope that the Government will remember the point made by the noble Earl, Lord Russell, because it is a very real one. It would be very helpful if the noble Baroness, Lady Blackstone, can help us in the way the noble Lord, Lord Mackay, suggested and give us some extra comfort on that particular issue.
4.30 p.m.
Lord Beloff: My Lords, my difficulty is not with the words "shall" or "may". My difficulty is much more fundamental and with the word "independent" as describing the composition of the body which is to make recommendations. After all, we have listened to debates on this Bill on several occasions, as we have been reminded. I have found no one in this House who can be called "independent". They take one view of the issue or the other. If one went outside this House into the country at large, I believe that it would be almost equally difficult to find people who genuinely began with an open mind on an issue of principle of this

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importance. I believe that the only conceivable independent body would be one nominated by, let us say, the president of Harvard or the Collège de France. The nomination would have to be from outside this country; outside Scotland, Northern Ireland and Wales. Therefore, I cannot regard the offer of a commission—which would be selected by the Government which must have some bias in the people they look to—as a concession on the main issue of principle.
Lord Peston: My Lords, perhaps I may say a word in support of my noble friend's statement. She and the Government have behaved in a most conciliatory fashion. They have done all they can to move us forward on this matter. I say en passant that until the noble Lord, Lord Beloff, spoke, it had never occurred to me that anyone would query the question of independence. I have not the slightest doubt that this Government are as capable in this field, as in others, of appointing a body which is able to come to a reasonable conclusion on the facts.
We do not want to debate the matter this afternoon because we have other business before us, but the four-year degree question in England and Wales is the same as the four-year degree question in Scotland. I believe that my noble friend said that and on straight education grounds I believe that she is completely right. It does not mean that there is not an interesting question there, but it is not the same question.
I enter a plea. There is no one more obsessed in your Lordships' House with the "may-shall" question than I. However, when I sat on the Front Bench where the noble Lord, Lord Mackay of Ardbrecknish, now sits, I constantly raised the question, as regards the legislation of the then government, as to why "may" instead of "shall'. Very frequently the only word that would make any sense was "shall". It was often said that. "The Secretary of State may lay regulations". The point is that if he did not lay them the whole Bill failed. But I often asked why "may" and not "shall". The noble Lord, Lord Mackay, and his friends had no difficulty in telling me that "may" was the right word and that it sort of meant "shall", as my noble friend Lord Callaghan said.
Beyond that, I find inconceivable—should this independent body query the arrangements and say that something different must be done—the notion that the Secretary of State would not then do it. That is preposterous. Of course he or she would do it. I do not say that I shall abandon my own "may-shall" interventions in future because when I am short of an argument those two words tend to pass the time away when I cannot think of anything substantial to say. The noble Lord, Lord Mackay of Ardbrecknish, has handled this matter extremely well. He has been helpful to your Lordships in moving the matter forward. However, I hope he decides that we do not need to spend any more time on this issue by dividing the House, although it is his decision and not ours. I believe that we have taken the "may-shall" matter as far as it can go, at least for today.
Baroness Young: My Lords, I believe that I would not be alone in saying that while we are pleased that the
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noble Baroness, Lady Blackstone, has brought forward this amendment, she has done so at a very late stage in the day. If it had come to us earlier it would have been infinitely better. The argument of principle has not changed at all. I reinforce what the noble Lord, Lord Thomson of Monifieth, said on this matter: that there is no organisation—I believe my noble friend Lord Mackay also made the point—outside concerned with university education that does not believe that the Government's position has been totally inequitable and wrong. Many of us went outside the university world in the course of the weeks that this matter has been under consideration, and all kinds of representations were made by people who have never considered these matters before. They were astonished at the inequity and unfairness that has been presented. It is not just a question of university courses; there are also very important questions concerning the purposes of universities and the unity of the United Kingdom.
In looking at this matter we need a very strong assurance from the noble Baroness, Lady Blackstone, that she takes on board the very important point made by the noble Lord, Lord Callaghan. I do not believe that it is good enough for us to say that we will accept this committee. As far as I can see, it is going to take nearly two years to report and cost a great deal of money. It will occupy the time of many people who could well be employed doing something else in the universities of direct benefit to the students. We can accept all of that, but the provisions will not come into effect until the year 2000. That means that for two years students will be caught in the trap described.
I agree that there has been a concession, but it is not a very big one from the students' point of view. We need very much to hear from the noble Baroness, Lady Blackstone, that her interpretation of the matter is our interpretation; namely, that there is an independent body giving independent advice and that the Government will come to the right conclusion when they receive the report. I hope that it will not be left on the shelf and that it will not just be overruled. If there is any danger of a decision being reached which appears to us not to meet the very real concerns expressed time and again in this House, I hope that we shall have an opportunity to debate and go over the issue again.
Baroness Carnegy of Lour: My Lords, before the House descends into sweetness and light, I should like to point out that the setting up of this committee is entirely unnecessary. It is a concession and an admission that the Government have made a mistake. We are grateful for that. It is very much better than if the Government had stuck to their position and not set up this committee. But this matter could be sorted out now by the Government agreeing that the Scottish Office should fund students in their fourth year at Scottish universities. When the report of the noble Lord, Lord Dearing, appeared, this anomaly was pointed out. Referring to the way in which that anomaly should be dealt with, the noble Lord said that it would be a matter for the Secretary of State for Scotland. He did not refer to the Secretary of State for Education and Employment. If that advice had been taken and the Government had

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agreed to spend £2 million from the Scottish Office Vote—it would have had to come from somewhere else in the Scottish system—the problem would not have existed.
The Scottish system in both law and practice is quite different from the position in England, Wales and Northern Ireland. In Scotland, a four-year degree is the norm; South of the Border, it is the exception. There is no need for this great committee to consider whether £29 million—it will be more in future—should be spent in order to achieve equity as between English and Scottish students who attend courses in England and Wales that last for four years and those who do so in Scotland. The system is separate. By the time all of this takes place, the Scottish parliament will be in existence and Scotland may have made different arrangements. I regard the setting up of the committee as entirely unnecessary. However, the House may wish to accept it because at least the Government have confessed that they have made a mistake.
4.45 p.m.
Baroness Blackstone: My Lords, it appears to be the wish of the House that I now respond. I am grateful for the general welcome that has been given to the Government's proposal to have a review on this matter. I shall follow the noble Lord, Lord Thomson of Monifieth, and not engage in debating the issue again. This is now a matter for the review. However, in reply to the noble Baroness, Lady Carnegy of Lour, in proposing this review the Government do not admit that they are wrong. The Government are responding to the concerns that have been expressed. There is a difference. I believe that that is the right approach to take.
One or two specific questions have been raised. The noble Lord, Lord Mackay of Ardbrecknish, sought reassurance that "bodies" included "persons". I confirm that the review should take evidence from individuals who want to make representations.
The noble Lord, Lord Beloff, questioned whether the review would be independent. The Government are utterly committed to an independent review. On that point, I am grateful for the comments of my noble friend Lord Peston. I hope that I can reassure the noble Lord, Lord Beloff, that the Government have every intention that the review should be completely independent.
To deal with one matter raised by the noble Baroness, Lady Young, I do not believe that the review will cost a great deal. I am sure that all noble Lords agree that the money will be well spent since such a review is welcome and we all believe that this is the right step to take.
I turn now to the issue of "shall" as opposed "may". I am grateful to my noble friend Lord Callaghan of Cardiff. He spoke with all the authority of a former Prime Minister and from his immense experience. I do not believe that any Secretary of State can properly fetter his discretion if the word is changed to "shall". The Government will take this review seriously. Therefore, this will be about the strongest "may" that Members of your Lordships' House have ever seen. The
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Secretary of State will consider the recommendations of the independent review very carefully indeed. But I believe it is agreed that it is not right to bind the Secretary of State and his successors to follow automatically any recommendation that a review may make. Circumstances can change. No government can write a blank cheque cashable by an independent body in this way. I believe that that is widely understood by noble Lords this afternoon. Although the Government are unable to accept "shall", I reiterate that this is a very strong "may". When the review is completed, Ministers will have to explain themselves to Parliament in the usual way if changes are to be made to arrangements which are found to be unsatisfactory. Any changes would have to be implemented by regulations which Parliament could debate if it wished.
Finally, I return to the comment of the noble Lord, Lord Thomson of Monifieth. I assure the noble Lord that the review and the Government's response to it will be carried out in a cool and rational way. I shall not rehearse any of the arguments on this issue. However, I am grateful to Members of your Lordships' House that an agreement has been more or less reached and that we shall not be condemned to the everlasting ping-pong to which the noble Lord, Lord Dearing, referred.
Lord Thomson of Monifieth: My Lords, before the noble Baroness sits down, I owe it to the House to make clear our position on the question of "may" or "shall". We considered this matter very carefully in drafting our amendment. We took the view that has been expressed by the Government Front Bench. Speaking for myself, I know of no case where any government would be ready to be mandated on a compulsory basis to accept the financial and taxation consequences of the recommendations of any independent review, however distinguished. That is our position on this matter. I very warmly welcome the way in which the noble Baroness has finally put this matter to rest by using the warmest possible "may".
Lord Mackay of Ardbrecknish: My Lords, I congratulate the noble Baroness on dealing with the issue with considerable skill. I do not believe that when I had to back-off or climb down before your Lordships I ever thought up such an elegant phrase as "responding to the concerns that have been expressed". I congratulate the noble Baroness on that. Regardless of the elegance of that phrase, this represents a considerable climb down on the part of the Government. We and, I am sure, students are grateful for that.
The noble Lord the Lord Privy Seal challenged me to quote some precedents. In a few minutes' research I have discovered that my right honourable friend John Major undertook to implement the recommendations of the Nolan Committee when that committee was set up. The Lord Privy Seal may say that that was not in legislation, and I accept that. However, I also understand that under the Northern Ireland (Sentences) Bill that is now before the House the Secretary of State must release a prisoner if the commission says so. So I do not believe that this is absolutely without precedent.

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The important point about this Chamber is that all noble Lords listen to the debate. Your Lordships clearly listened to the debate on previous occasions and agreed with me overwhelmingly when I argued that the Government were wrong. I am sure that noble Lords have listened with care this afternoon. The noble Lord, Lord Peston, has pointed out that we can have—and we have had—happy hours discussing "may" and "shall". When the lawyers told me what those two words meant I was never entirely sure why it should not be one, but should be the other.
The noble Lord, Lord Callaghan, spoke, I think, for most of us when he said—I hope that I have him right—that if the committee's recommendations were not accepted, many of us would be in a great deal of difficulty. The one organisation that would be in great difficulty would be Her Majesty's Government.
I was grateful for the noble Baroness's comment that this is the strongest "may" your Lordships have ever seen. A Minister cannot get much closer than that; and Ministers would have to explain themselves if they did not follow a very firm recommendation of the committee.
I accept those assurances in the spirit in which they were given. I look forward to the commission hearing the evidence. And I look forward in two years' time to the Government having to say, "Yes, we were wrong." With that, I beg leave to withdraw the amendment.
Amendment No. 123HD, as an amendment to Amendment No. 123HB, by leave, withdrawn.
[Amendment No. 123HE, as an amendment to Amendment No. 123HB, not moved.]
The Chairman of Committees: (Lord Boston of Faversham): My Lords, the Question is, That the House do not insist on their Amendment No. 123E, to which the Commons have disagreed for their reason numbered 123H, but do propose Amendment No. 123HB in lieu thereof.
On Question, Motion agreed to.
[Amendments Nos. 123J and 123L not moved.]
Bill returned to the Commons with an amendment.

Comprehensive Spending Review
4.52 p.m.
Lord McIntosh of Haringey: My Lords, with the leave of the House, I shall now repeat a Statement made by the Chancellor of the Exchequer on the Comprehensive Spending Review.
"This Government's central objectives are high and stable levels of growth and employment, and sustainable public services, built from a platform of long term stability. And to achieve this, two fundamental economic reforms have been undertaken for the long term—to take monetary policy out of party politics through operational independence for the Bank of England, and to impose a new framework
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of financial discipline, through fiscal rules that achieve a current budget balance and prudent levels of debt to national income.
"Last May we imposed a two-year spending limit and we have kept to this limit. We promised to cut public borrowing, and it has been cut by £20 billion; a fiscal tightening that will be locked-in into next year. And to meet our fiscal rules and in line with cautious and published assumptions audited by the independent National Audit Office, we plan current surpluses for the next three years of £7 billion, £10 billion and £13 billion. And as a proportion of national income, debt will fall below 40 per cent.
"By the end of this Parliament debt interest payments will be £5 billion a year lower than if we had simply left borrowing at the level inherited from the last government.
"In the last economic cycle, under the previous government, the current budget deficit averaged at 1.5 per cent. of national income, the equivalent of £12 billion of extra borrowing every year. And during the 1990s national debt doubled.
"Over this economic cycle and for the first time for decades, Britain is set to have both a current budget in balance and a sustainable approach to debt—an approach that is among the most prudent of our G7 partners, and more prudent than our predecessors.
"All the allocations we make this afternoon are made within and subject to this overall financial discipline, as I set out in the Economic and Fiscal Strategy Report published last month. And through our New Deal for the unemployed, we are tackling the bills of economic failure and under the plans published today the growth in social security spending for this Parliament will be significantly lower than in the last Parliament.
"Working within this framework, the Comprehensive Spending Review has examined the most effective use of public money across and within each department and I am grateful to the Chief Secretary and to the Public Spending Committee of Cabinet for their work.
"By looking not just at what Government spend but at what Government do, the review has identified the modernisation and savings that are essential. The first innovation of the Comprehensive Spending Review is to move from the short-termism of the annual cycle and to draw up public expenditure plans not on a one-year basis but on a three-year basis.
"And the review's second conclusion is that all new resources should be conditional on the implementation of essential reforms, money but only in return for modernisation: Government moving out of areas where they need not be, and—in those areas where public service matters—Government setting clear targets for modern, efficient and effective services.
"So today we begin not, as all spending announcements for the last 30 years have traditionally done, with annual allocations but by setting out the new three-year objectives and targets for each service

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and therefore the results we are demanding; the new standards of efficiency which will have to be met to ensure every penny is spent well; the procedures for scrutiny and audit that will now be set in place; and the reforms we have agreed. And all based on a clear and modern understanding that Government should not only do what they have to do, but do what they do to the highest standard.
"So let me set out the essential changes. First, each department has reached a public service agreement with the Treasury, effectively a contract with the Treasury for the renewal of public services. It is a contract that in each service area requires reform in return for investment. So the new contract sets down the new departmental objectives and targets that have to be met, the stages by which they will be met, how departments intend to allocate resources to achieve these targets and the process that will monitor results.
"The Prime Minister has decided that this continuous scrutiny and audit will be overseen by a Cabinet committee, continuing the work of the existing Public Spending Committee, and money will be released only if departments keep to their plans.
"Secondly, the contract will stipulate new three-year efficiency targets for the delivery of services—targets that range between 3 per cent. and 10 per cent. The terms of these will be made public. The purpose of these efficiency targets is to ensure more resources go direct to front line services—to patient care in the NHS, to classroom teaching, to fighting crime—a policy of promoting front-line services, so that by securing greater value for money, we secure more money for what we value.
"Thirdly, in addition to efficiency targets we have embarked upon a programme of radical reforms. To achieve our priorities, difficult decisions and choices have had to be made. We have already reformed student finance and begun welfare reform—matching rights with responsibilities. And as a result of the comprehensive review, further reforms will be announced in legal aid, procedures for asylum, in child benefit, youth justice and with the withdrawal of unjustified subsidies. And in defence and the Foreign Office, we have achieved the changes necessary to provide us with the defence and diplomatic capability we need while making the savings necessary—for example, in the number of warships, and with a new public/private partnership for the Defence Evaluation and Research Agency.
"Fourthly, for central and local government we have now agreed a programme for releasing assets we do not need to fund £11 billion of additional new investment in health, education, housing, transport and other capital projects that we urgently do need. And with a number of further announcements today our policy of promoting public/private partnerships is extended into new areas, including national science policy, urban policy and overseas development.
"Fifthly, while we are raising capital investment for a fixed period of three years in order to tackle a backlog of under-investment, current spending will
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grow by no more than 2.25 per cent. And we must ensure that public sector pay settlements are fair and affordable and do not put at risk our targets for public service improvement in each of the next three years for which we have budgeted.
"So in line with the three-year allocations, the independent review bodies will now report not just to the Prime Minister but to the departmental Ministers who have to meet these public service improvement targets and who will now respond to the recommendations.
"And consistent with three-year allocations, we are announcing a further strengthening of the pay review system. Having spoken to the chairmen, the Prime Minister has confirmed that their remits—in addition to their responsibility to recruit, reward and motivate staff—and therefore their role will be strengthened with three responsibilities: their recommendations will take account of affordability (in other words, the current departmental spending limits); they will take account of the Government's inflation target of 2.5 per cent.; and they will take account of the need to achieve the Government's targets for output and efficiency.
"This reform offers the opportunity for public services to manage their pay and conditions more directly, but also gives departments a responsibility to ensure that pay settlements cannot be determined without regard to the demands of the service. In this way, as in every other organisation, pay decisions will now be made in relation to the overall objectives of the service.
"But perhaps the most important advantage of conducting a comprehensive spending review is the opportunity it allows for individual Secretaries of State to put in place a substantial reallocation of resources within their departments—from bureaucracy to front-line services, from dealing with the symptoms of problems to dealing with causes—and to consider a co-ordinated approach that breaks free from old departmental fragmentations and duplication.
"As a result of interdepartmental reviews, services for asylum seekers will now be managed by one department rather than five; the three departments responsible for criminal justice will work together to one set of objectives; children's services and the urban regeneration budgets and our approach to tackling fraud will be reorganised, achieving both efficiencies and savings.
"Our prudence has been for a purpose. It is because we have set tough efficiency targets, and reordered departmental budgets that our top priorities, health and education, will receive more new money than the other 19 government departments combined. To accommodate this, we have had to take a firm line with other spending programmes, and rigorously select priorities.
"As a result, more than half today's allocations—over 50 per cent.—will be invested in health and education. So there will be additional resources, but it is money in return for modernisation.

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"Now the allocations to individual services. Here, the main conclusion of the comprehensive spending review is that it is not just a social duty for government to invest in good public services, to improve our social fabric, and to tackle poverty and deprivation by extending opportunity. Most people in Britain, apart from a small and extreme minority, also agree that it is in the economic interests of the whole country to create an infrastructure of opportunity, and invest in education, science, transport and strong communities so that individuals can contribute to the economic and social well-being of the country.
"I turn to education. Invest in the education of our children and we are investing in our future. In the old economy, it was possible to survive with an education system that advanced only the ambitions of the few. The new economy demands an education system that advances the ambitions of all. But investment will take place only in exchange for further modernisation and reform.
"The Education Secretary has agreed not just to set numeracy and literacy targets for 11 year-olds but to set government targets for nursery education, for cutting truancy, for higher attainment by teenagers, for improved standards of teaching including a qualification for head teachers, for greater efficiency in further and higher education and for the inspection of schools. In return for investment, there will also be further reforms in teacher training and in the administration of school budgets.
"At every stage, we are linking investment to reform and it is on this basis that the Education Secretary tomorrow will announce the biggest single investment in education in the history of our country. In this and in other services there will be separate announcements based on the Barnett formula for Scotland, Wales and Northern Ireland.
"In the last three years of the previous Government growth in education spending was £7 billion. For the next three years, I can announce additional education spending of £19 billion. In total, we will spend £3 billion more next year, £6 billion more in 2000 and £10 billion more in 2001. That is what we mean by education, education, education; honouring our commitment to the British people.
"In 18 years of the last Government, spending on education rose on average by 1.4 per cent. a year. Education spending will now rise in real terms by an average of 5.1 per cent. a year till the end of Parliament.
"We said that we would devote a rising share of national income to education—and we have. Spending on education will now rise to 5 per cent. of national income.
"Today, around a million children are still being taught in classrooms built before 1914. Six thousand schools are already being refurbished. On top of this, over the Parliament capital investment to re-equip our schools will double. And after our reforms in student finance, there will now be an expansion in the number
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of students in higher and further education—by the end of this Parliament more than 500,000 additional students.
"We said that we would meet our pledge on school class sizes for five, six and seven year-olds. Under the proposals the Education Secretary will announce tomorrow our pledge will be met—as we promised.
"Investing in education is essential to secure both a fairer society and an efficient economy. And if our country is to be prepared and equipped for the competitive challenges ahead the Government also have an economic responsibility to invest in science and innovation; in the transport infrastructure, and in building safer and stronger communities.
"Net public investment will be doubled as a result of the Government's new Investing in Britain Fund, but in every area investment is conditional on reform. It is the development and application of ideas and inventions in science that hold the key to improved national competitiveness.
"As a result of a reduction in subsidies that can no longer be justified, and as a result of £400 million in support from the Wellcome Foundation, which I thank, the Government are able to announce the biggest ever government-led public/private partnership for science. A total of £1.1 billion will now be available to provide modern facilities for science research at our universities and support science teaching and research throughout the country. This innovative step-change in our approach to science will lay the foundations for putting Britain at the forefront of the next generation of scientific and industrial research.
"Anyone who travels on our roads and railways knows that after years of neglect and under-investment Britain suffers from an overcrowded, under-financed, under-planned and under-maintained transport system. So for transport we propose a new investment strategy involving new public/private partnerships—like those for the Underground and Channel Tunnel rail link—and a commitment to integrated planning. In return for these innovations there will be £2 billion more investment. From a 25 per cent. decline in transport investment in the last Parliament, there will be a 25 per cent. increase in the next three years—for investment in public transport and meeting our environmental objectives. Full details will he set out by the Deputy Prime Minister in his transport White Paper.
"Economic success and social cohesion both depend on safer and stronger communities. That is why we will now invest more in crime prevention. And that is why today also we propose policy reforms to tackle the underlying causes of poverty.
"It is because we are announcing major modernisations that put legal aid on a fairer footing and reform youth justice that more resources will be made available for policing and for the first time substantial resources for innovative evidence-based crime prevention work. Measures to tackle drug abuse

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will have a new priority, with a 25 per cent. increase in funding. All details, including the new targets that will be met, will be given by the Home Secretary.
"To build stronger communities, we need also to renew our housing stock. To cut out waste and ensure best use of resources, the Deputy Prime Minister will impose new guidelines for greater efficiency in construction and repair. And a new housing inspectorate will audit housing management in every local authority.
"With the help of these reforms we will be able not just to tackle homelessness but to renovate 1.5 million homes and to do so we will allocate, from capital receipts, £3.6 billion. Our commitment to the environment recognises the need for responsibility in the use of energy and it means that there will be a new programme for home energy efficiency.
"We are committed to a comprehensive programme of welfare reform. Since coming into office, we have introduced the New Deal, the reform in student finance, the working families tax credit and a new approach to child benefit. The Prime Minister has set up a welfare review which led to the welfare Green Paper and a long-term framework for the provision for future pensions and for the reform of disability benefits will be announced later this year.
"Last week we announced reforms in the Child Support Agency and yesterday new measures to combat social security fraud. Today I announce further changes in welfare policy. The New Deal for the unemployed is based on opportunities matched by responsibilities. It is now time to extend this approach to communities by tackling the underlying causes of poverty. For our most deprived estates, the key problems are not just poor housing but lack of employment and economic opportunity. In exchange for long-term targets for improving business start-ups, skills and educational qualifications, a total of £800 million will be allocated to the New Deal for communities. And a New Deal helping the young unemployed to become self-employed will be launched on Friday.
"A further reform will make it possible for thousands more young people to stay on in school and go on to further and higher education. To raise Britain's appallingly low staying-on rates, a new educational maintenance allowance, linked to attendance and based on parental income, will be piloted for 16 to 18 year-olds. If, as we expect, the new educational maintenance allowance succeeds in encouraging young people to stay on in education, we plan to introduce it nationally, using the money currently spent on child benefit post-16.
"As the interdepartmental review of children's services has uncovered, we spend £10 billion on young children but do so in an unco-ordinated and piecemeal way with thousands of the youngest children—those under three—missing out. Plans for a sure-start programme will be announced later this month, to bring together quality services for the under-threes and their parents—nursery, childcare
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and playgroup provision, and post-natal and other health services. One new feature will be to extend to parents the offer of counselling and help for them to prepare their children for learning and school. This is a significant step in the development of a family policy for our country, supporting family life and encouraging stable families, and building on our national childcare strategy. The Home Secretary's group will bring forward further recommendations on family policy.
"At the heart of our review has been a determination that we fulfil our duty to the oldest members of our society. First, pensioners will benefit most from a better health service. And it has always been wrong that charges are levied on pensioners for the eye sight tests that they regularly need to preserve sight and protect against disease. So for pensioners, from next April, eye test charges will be abolished.
"Secondly, the elderly who rely heavily on public transport need a fairer deal to enable them to be more mobile. In his Transport White Paper the Deputy Prime Minister will announce plans for nationwide help with transport for the elderly.
"Thirdly, the elderly fear their winter fuel bills. As a result of the cut in VAT, our winter fuel payment and other changes, average pensioner fuel bills are up to £100 lower this year. Later this week the Social Security Secretary will announce our further plans for help with fuel bills for the rest of the Parliament. And she will also announce further financial proposals to help pensioners who need it. Here also we are prepared to make reforms that will help alleviate poverty. From next April every pensioner and pensioner couple will have a minimum income guarantee.
"We shall also set a minimum tax guarantee: that no pensioner will pay income tax unless their income rises above a specified level. The Government will also announce measures to ensure that more people receive the income that they are due. As a result of our proposals, thousands of pensioners will be relieved from poverty. A total of £2.5 billion will be set aside for this programme.
"Further reforms in other services have made possible new investments that improve the quality of our community life. As a result of cutting wasteful bureaucracy and quangos and a new targeting of resources on priorities, £290 million extra will be invested in museums, the arts and sport over the next three years, not just repairing the damage of the previous Government's cuts but a real increase of 5.5 per cent. making possible improved access to museums and galleries.
"As a result of assets sales in areas where spending is no longer needed, the Foreign Office budget will not only ensure more resources for the proper representation and promotion of Britain abroad, but also the Foreign Secretary is announcing today that our support for the BBC World Service will be raised by a total of £44 million over the next three years.

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"For 20 years overseas aid has been falling as a proportion of national income. Under this Government it will rise. As a result of a decision to sell a majority stake in the Commonwealth Development Corporation, and of a new decision to target overseas development assistance on health, education and anti-poverty programmes, the Secretary of State for International Development will announce today that Britain will, during this Parliament, increase overseas aid from the low of 0.25 per cent. of national income—the budget figure we inherited last year—to 0.30 per cent. of national income. Britain will enter the millennium at the forefront in pressing for debt reduction for the poorest countries. And aid which was falling by 2 per cent. a year under the last Government will rise in each of the next three years.
"The National Health Service is compassion in action; what its founder, Aneurin Bevan, rightly called the most civilised achievement of modern government. The final conclusion of the Comprehensive Spending Review is that it is fair and efficient to provide the best health service we can on the basis of need, not the ability to pay, and that under this Government health services will never be left to the hazards of private or charitable provision. Yet half the beds in NHS hospitals are in accommodation built before the First World War. And three-quarters of ward blocks are hand-me-downs from the days of charity, voluntary, municipal and emergency wartime hospitals. Investment in the NHS is long overdue. And we will recognise the care, the responsibility and the dedication of doctors, nurses and all staff to the patients of the NHS.
"The Secretary of State for Health will announce on Thursday in this House targets that tackle inefficiencies in hospitals and cost overruns, that simplify management structures and give a new emphasis to long-term planning. On quality, all hospitals will be required to publish league tables measuring the success rates of their treatments. Over the lifetime of this Parliament over £1 billion will he saved from red tape and put into patient care, in part by scrapping the costly and time-consuming annual round of contracts.
"So on the 50th anniversary of the NHS this Government will now make the biggest ever investment in its future, giving the NHS for the first time for decades the long-term resources it needs. Under the last government the increase for the last three years was £7 billion. For the coming three years, I am announcing an increase in health service funding of a total of £21 billion.
"Health department spending rose by an average of 2.5 per cent. a year during the last Parliament. Next year it will rise by 5.7 per cent. and the year after by 4.5 per cent. For the rest of the Parliament this Labour Government will achieve yearly real growth averaging 4.7 per cent. Every hospital will benefit from the 50 per cent. increase in investment in equipment and buildings and the £5 billion fund for NHS modernisation will give us the largest hospital
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building and modernisation programme this country has seen. As we start its next 50 years, the National Health Service is safe in this Government's hands.
"This Government have made the choices necessary to deliver stable and sustainable public finances. We have been steadfast in our priorities—the nation's priorities. As a result of prudence and a commitment to an investment in return for reform, a total of £40 billion will be invested in the nation's priorities—health and education. We are a Government whose prudence allows us to build modern public services and to renew Britain; a Government keeping our promises to the people of Britain; a Government line by line delivering on our manifesto; a Government step by step making Britain stronger. I commend this Statement to the House".
My Lords, that concludes the Statement.
5.18 p.m.
Lord Higgins: My Lords, during the high drama of the earlier debate, I was reminded of an occasion on which I had to compete in the only race which took place after Roger Bannister's first four-minute mile. There was a slight sense of anti-climax then and to some extent there is a slight sense of anti-climax in your Lordships' House now.
The major difference is that while the matter we were discussing earlier is of great importance, there cannot be the slightest doubt that the Statement we have just heard is of far greater importance both in quantitative terms and in terms of the future of our country. Therefore, I begin by thanking the Minister for his stamina in the way in which he presented and repeated the Statement made by the Chancellor of the Exchequer. Since I have been in your Lordships' House, I have been vastly impressed by the way in which the noble Lord masters his briefs. I have a number of clear and specific questions to ask him in a few moments.
The wording of the Statement is in many ways, as the noble Lord, Lord Barnett, will know, rather precise. I should like to pin down a number of points. However, before I do so, I wish to refer to the extraordinary way in which the contents of the Statement were leaked in the national press this morning. In more than 30 years in politics I cannot recall any similar event. As far as The Times is concerned there were specific quotes from the document itself. In the Financial Times there were statements attributed to the Prime Minister's official spokesman and I understand, although I did not hear it myself, that the Chancellor of the Exchequer, before appearing in another place, did a broadcast which revealed a considerable amount of what appears in the Statement. Hugh Dalton must be turning in his grave.
This is a matter of great concern. The tactic is very simple. You release the good and the bad news beforehand, you put your spin on the good news, and the bad news is dead news by the time Parliament has an opportunity to comment on it. That is serious. In another place Madam Speaker has stressed that Statements should, in the first instance, be made to Parliament. I hope that the noble Lord, Lord Richard, in his role as Leader of this House, will support Madam

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Speaker in saying that this kind of practice is not one which the Houses of Parliament, either in another place or in your Lordships' House, should approve or condone. It has gone far enough and it is high time it stopped.
I turn to the proposals. We have to recognise that the Statement reflects a major reversal of policy. The policy set out by the present Prime Minister before the last election was very clear in statement after statement, in broadcasts, and so on. It was that priority would be given to certain areas, notably health and education, and that was to be financed by savings as far as the social security budget was concerned. That was the policy, clearly stated. But it is equally clear that that has been reversed. It is quite true, and certainly one must welcome this, that there are to be substantial increases in both health and education. But it is certainly not the case that the Government's programme of welfare reform has been operated in such a way that the total of public expenditure on it has been cut. Of course, there are careful words in the Statement saying that the rate of growth has been reduced but that was not what the policy was. The policy was that there should be cuts. Instead, in the Statement and the detailed supporting documents, we find an increase. The amount spent on social security is to go up from £95 billion in 1998–99 to over £108 billion by the end of the planned period. So the whole strategy has changed. That obviously has important implications as far as the management of the economy is concerned—implications for taxation, borrowing, inflation, interest rates and so on.
Before I go into the details, perhaps I may stress another point. To a large extent there is what I think the Americans would call a question of "smoke and mirrors" as far as the presentation is concerned. In order to give the impression that there have been reductions in social security spending, the working families tax credit has been taken out of the public expenditure figures and something like £5 billion has been allocated to what is called an accounting adjustment.
I come to my first question for the Minister. Is it not the case that the Office for National Statistics is opposed to this reclassification? Clearly, as far as part of the working families tax credit is concerned, it is a hand-out and cannot conceivably be regarded as a reduction in taxation. It clearly is a hand-out. If we look at all the total for the so-called accounting adjustments, we find that something like £15 billion has been stuffed into this rather convenient receptacle making the prudence of the operation look a great deal better than it might have done.
There are other aspects that give one cause for concern. It is rather extraordinary that when the previous government were dealing with social security fraud, the previous opposition said that it was exaggerated at £2 billion. Only a little while ago it was said to be £4 billion. Suddenly it has grown to £7 billion and apparently this is to be part of the savings that the Government are to make. I ask the Minister why is it that these estimates of social security fraud have more than doubled in quite a short period of time?
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I turn to a broader issue raised by the Statement. In the Budget Red Book as short a time ago as last March we were told that by the year 2000 there would be a budget surplus in each year to the end of the planned period. I ask the Minister not to look at the carefully-worded Statement. Can we have a straight answer? Is that any longer true? Secondly, we were told that there was to be a reduction in the national debt. Again, I ask the Minister not to look at the Statement. If we compare it with the Red Book is that any longer true? Thirdly we were told that there would be a reduction in the percentage of national income taken by the state. Is that statement made in the Red Book any longer true? I hope that we can have a clear answer from the Minister.
I turn to some of the individual items. As far as education is concerned, there is certainly a substantial increase. Earlier in the afternoon we were debating whether £2 million or—a debateable figure—£27 million could be afforded. Apparently, there is to be an increase in educational spending, which of course in many ways is welcome, of £8.5 billion. How is it that the Minister could have stood earlier at the Dispatch Box, when the Government are proposing an increase of that size, arguing the point as to whether the amendment cost £2 million or £27 million? I think that some question of priorities inevitably arises.
Perhaps I may also raise a matter we debated earlier on the Social Security Bill and the promise made in the Chancellor's Budget that he would raise tax thresholds for individuals at a cost of £1.3 billion. It will be in the recollection of your Lordships that we were told that that was something which would happen sometime later, although the impression was given that it would be immediate. Has that £1.3 billion been taken into account in the review we are considering this afternoon?
There are a number of difficult issues involved in the review, especially as far as concerns pensions. That also is to be welcomed. However, the move towards a guaranteed minimum pension inevitably suggests that the Government are moving towards means testing the national insurance pension. That is implicit in what is now proposed, I think it would be true to say. I am glad to see that I have some support from nods on the other side of the House. Despite all the protestations to pensioners of "Do not worry. Regardless of your income level we will not means test the national insurance pension", once you go for a guaranteed minimum pension in the way now proposed, it seems to me that that proposal, that basis of the national insurance scheme, is in danger of being undermined.
Finally, I should like to say a word or two about the implications of the change in policy which I referred to at the beginning of my remarks. The reality is that there is a huge increase in expenditure with no corresponding savings of the kind which the Government clearly intended to make. Perhaps I may ask the Minister a very simple question. As a result of the proposals set out in the Statement, does he think that the pressure on interest rates will be upwards or downwards?
The Chancellor of the Exchequer has been very clever in trying to hive off the responsibility for seven successive hikes in interest rates on to the Bank of

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England. Let us be absolutely clear: the decisions made by the Bank of England are determined by the decisions made by the Chancellor of the Exchequer. The Chancellor cannot avoid responsibility for them.
Given the overall approach of the Statement, it seems very clear that the Monetary Policy Committee of the Bank of England is likely to be very concerned about the situation which will follow. We are seeing an overall increase in public expenditure at a point where, if we are not actually at the peak of the cycle, we are certainly approaching very close to it. Indeed, it is a very strange policy in many ways designed to ensure that we have a sensible economic policy—a policy which the Chancellor says is prudent. If one looks at the Statement, it does not seem that the Chancellor's claims of prudence can really be justified.
Therefore, although there are clearly many things in the Statement which will be welcomed—indeed, anything which increases public expenditure for this or that individual on a massive scale is likely to get a welcome—the long-term proposals will go a long way towards undermining what the policy of the Chancellor of the Exchequer has previously been; in fact, this is a reversal of it. I believe that the claims for prudence are now very difficult to justify. I fear that, as a result, we are heading back to what may still appropriately be called "stagflation".
5.31 p.m.
Lord Taverne: My Lords, the Statement is one about long-term strategy. I should like to begin by making some general observations. It would be a tragedy if our society became one of ever lower taxation and declining public services. A high quality society requires high standards in education, in health, in public transport and in a number of other public services. By their original pledge to keep public spending within the limits set by the previous government—certainly for the first two years—it appeared as if the Government were opting for the American rather than the more civilised European model. We on these Benches are not asking for the average European levels of state pensions in this country or for European levels of income tax. However, we have always accepted that there may be a need from time to time to increase taxation, or charges, if a civilised level of public services is to be maintained.
Now the Government have relented from their very rigid control of public expenditure. In the Statement there are unexpectedly large increases in spending on education and on hospitals. The latter have to be seen in perspective. The average increase in spending over the lifetime of this Parliament is not that enormous in the case of health expenditure. It has been announced that there will be an average increase of 4.7 per cent. in real terms for the next three years. By my calculations that means that over a period of five years, the full length of a parliament, the average increase in spending on the health service will be about 3.6 per cent. On figures I have obtained from the Library of the House, in the period from 1989–90 to 1996–97 the average increase under the previous government was some 3.3 per cent. Therefore, it is a very welcome and sizeable increase, but it is not an enormous one. There may need to be
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more revenue for the health service from one source or another if the decline in the standards of the health service is to be arrested. This may be a temporary boost; but, unless the extra high level of spending is maintained, one may simply be standing still or there may even be continued decline.
As for education, there is to be an increase of 5.1 per cent. for the last three years of the Parliament. Again, looking at the very low levels of the first two years, that means that the average will be 3.5 per cent. That is substantial and very much better than was obtained under the previous government. Therefore, all in all, I believe that these increases are to be warmly welcomed but they must be seen in perspective. I shall not go into other items, except to mention in passing that I greatly welcome the extra spending on science and the increase in the allocation to the World Service of the BBC.
As for the techniques of securing greater value for money, I must declare a certain scepticism. Since I was a Treasury Minister over 30 years ago, I have noticed that every new administration always claims that it will have a wonderful new weapon for extracting better value for money out of its public expenditure. Sometimes one sees that improvements are made, but the claims are always vastly exaggerated. I hope that the Chancellor of Exchequer will not count on too many savings.
However, if one looks at the overall scheme, there is no doubt that it depends on inflation being kept low. Indeed, if inflation goes higher, the plans cannot be maintained. They rely very heavily indeed on a rigid control of public sector pay. Do the Government not realise that this may be a very weak part of the strategy? Do they not realise that you cannot, indefinitely, keep public sector pay below private sector pay? That is not only grossly unfair for teachers and nurses and not only conflicts with trying to get the best value out of public services; but, also, it will not hold. It is demoralising and, in time, it will not be possible to recruit people to perform the services that we need. Have the Government not looked back and realised from history that our experience has been that this kind of policy of trying to keep public sector pay increases below those in the private sector cannot be maintained?
I turn now to my other reservation; namely, that what may turn out to plague the Government and undermine these splendid plans is the failure of the first two Budgets effectively to attack consumption. The Government have announced a tough fiscal policy. However, it is not quite as tough as it was. Their policy has been tough on companies, but it has not been tough on consumption. In that respect, it does not compare favourably with the policies followed after the 1992 devaluation by Chancellor Lamont and, in his earlier days, by Chancellor Clarke. It means that the Government are relying too much on interest rates to keep down inflation. That may lead to a recession and, if there is a recession, the three-year plan will have to be modified as a result. So there is a weakness here. I do not know whether there will be a recession, and I am not saying that there will be one because I do not

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believe that anyone can predict that. However, if this does lead to a recession, it may undermine the three-year plan. It has certainly already hurt investment and manufacturing.
The Government have accomplished many good things, quite apart from this change of tack over public spending. The methods of controlling the latter are, on the whole, to be welcomed. The Statement which was made on public accounts the other day was also most welcome, as indeed is the long-term approach of today's Statement. I very much hope that the Government will achieve their aims. However, there are many uncertainties and some weaknesses in the Government's strategies. I have in mind their failure to tackle consumption and perhaps their excessive reliance on restraining public sector pay. I hope that those weaknesses do not lead to disappointment.
5.38 p.m.
Lord McIntosh of Haringey; My Lords, I am grateful to both noble Lords for the way they responded to the Statement. It is interesting to note that whereas public attention will be very largely focused, I believe, on the spending plans as regards health and education, and so on, both noble Lords, being highly intellectual persons, have chosen to focus on the issues of economic management in general rather than on the spending plans. In a way I welcome that approach, because it is appropriate for this House.
The noble Lord, Lord Higgins, started by saying that he had to run in the race after the four-minute mile. I lived in Iffley Road at the time of the four-minute mile, but, after I had seen the record being broken, I have to say that I went away and did not see the noble Lord running. It is a matter which has not been of regret to me for the past 44 years, but no doubt it will be for the rest of my life.
The noble Lord, Lord Higgins, said that he regretted the leaks in the press. Of course, the Government regret any speculation in the press. In particular the Government regret it when the lobby briefing which is given as normal by the Prime Minister's official spokesman is then quoted in the press against all the rules on those briefings. The Chancellor spoke on the radio this morning but my understanding is that he spoke entirely in generalities and certainly did not give any market sensitive information and gave no significant leaks of what was contained in the Statement. As regards the quality of the speculation in the press, we have only to look at the totally opposing views in the Guardian and the Independent on what is proposed for public sector pay to realise that what we are talking about are not leaks or any breach of parliamentary privilege but simply legitimate and sometimes rather inaccurate speculation.
The noble Lord, Lord Higgins, spoke about our approach to savings in the social security budget. He mentioned Labour Party statements made both before and after the election and said that we would have to make savings to pay for the improvements we propose in health and education. The noble Lord ought to
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recognise that the social security budget plans for the next three years contain a 2 per cent. growth in real terms, which is lower than the growth in public spending and in GDP which is projected for that period. If I had been a Labour Party activist and this was being proposed by a Conservative government I would march down the high street with a banner saying, "Oppose Tory Cuts", because that is really what it is in comparison with the expenditure plans for virtually all other public services.
The noble Lord made an interesting, difficult and technical point about the classification of the working families tax credit in the Government accounts and the views of the Office for National Statistics on the reclassification of those accounts. We have taken into account the views of the Office for National Statistics on this matter. The accounting adjustments referred to in the White Paper are in line with its definitions of national accounts. I hope that that will satisfy the noble Lord, but if he is not satisfied we can engage in correspondence about it.
The noble Lord referred to social security fraud. It is true that when we were in opposition we were not convinced of the value of the estimates made by the then Conservative government of social security fraud. When we were in opposition we did not know as much as we do now. I believe that my honourable friends in the social security department are now being realistic in their estimates of social security fraud without in any way saying that this will not continue to be an intractable problem in many ways.
The noble Lord asked me to confirm what is being said in the Red Book rather than in the Statement. Clearly, there is a difficulty here for opposition spokesmen who have a short time to read these documents. However, there is a real difference between the way in which we present public expenditure now and the way in which it was presented in Red Books in the past. All Red Books right up until March of this year have talked in traditional terms of a control total and then various non-control items. What we are doing now is rather different. We are distinguishing between departmental expenditure limits, annually managed expenditure and total managed expenditure which is the addition of those two items. It may help noble Lords to think of them as three children: Del, Amy and Tim. What we are doing in this redefinition of public expenditure is to distinguish between those items which can and should be controlled by departments in the way in which they set their targets and the way in which they spend money to achieve those targets—and will be held to account for that—and those items, such as the vast bulk of social security expenditure, which are demand led and therefore are annually managed expenditure items. They are both brought together in total managed expenditure and the comparisons are not quite as direct as the noble Lord would perhaps wish.
As regards the noble Lord's specific questions on the Red Book, I can confirm that we still expect a £30 billion surplus cumulatively over the next three years in accordance with the golden rule forecast. We expect a reduction in the national debt of 4 per cent. over that period. We expect public expenditure as a

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percentage of GDP to go down below 40 per cent. by the end of the three year period, in contrast, of course, with an increase of nearly 17 per cent. of GDP under the Conservative government. The noble Lord will forgive me if I do not enter into the arguments about £2 million or £27 million of student finance.
The noble Lord asked about the means testing of what he called the national insurance pension. We have said in the Statement that there will be a guaranteed minimum income for all pensioners and that there will be a guaranteed maximum tax take from all pensioners. I think that gives pensioners the assurance they want, even if it does not satisfy the noble Lord.
The noble Lord's final question concerned whether this public expenditure programme would produce pressure on interest rates. The public expenditure programme in total does not arise from this Statement but results from the Economic and Fiscal Strategy Report last month. It was that report and that announcement in Parliament which set out the global figure expected for public expenditure over the next three years. The Monetary Policy Committee has met since that figure was made public and has not seen fit to propose an increase in interest rates. I hope therefore that the noble Lord will to some extent be reassured on that, although of course the Monetary Policy Committee does not control interest rates around the world.
The noble Lord, Lord Taverne, had an interesting approach to the Statement. He quite rightly said that there are two ways of looking at the balance between taxation and services. You can have what he described as the American model of low tax and low services, or you can have what he presumably applauds as an alternative; namely, a high tax, high spend model. We did not win the election on a high tax, high spend model of the economy. We won it on a fair tax and protection of public services model which is not quite the same thing.
If we have tried to achieve anything in our past two announcements it is that public services can and will be protected but will be protected at least as much through improvements in efficiency and targeting as through increases in taxation. The noble Lord is, of course, quite right to take the three year figures we have presented today and recalculate them to cover the whole five years of this Parliament, including the two years for which we accepted the public spending plans we inherited from the previous government. I do not apologise for that. In the light of the effective work that has been done on public expenditure over the past 15 months, it was clearly the right decision to tackle the issue in that way. The benefits and rewards are apparent in the Statement I have repeated.
The noble Lord talked about the dangers of a rigid control of public expenditure. He went on to specify public sector pay as being, as it were, the leading edge of that criticism. The Statement is inevitably elliptical. What we mean to say about public sector pay is that there will be an extension of the remit of the public sector pay review bodies; that they will be responsible for recommendations to government about the level of public sector pay in the light of our requirement on each
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spending department to fulfil its outcome targets—in other words, it has to produce the goods first—and our inflation targets. However, it will be for the departmental Ministers, the Secretaries of State for the spending departments, to make the final decision. If a convincing case is put to them that it is not possible to achieve the output targets in education, health or any other public service without increases in public sector pay, that that can be afforded within their budgets and by achieving their targets, and that it will not breach the Government's inflation targets, then that is a matter for the spending departments and the Secretaries of State concerned. Neither the pessimistic view of today's Guardian nor the optimistic view of the Independent properly represents the Government's view.
5.51 p.m.
Lord Barnett: My Lords, I know the noble Lord, Lord Higgins, to be characteristically not as churlish as he was made to sound this afternoon. He is basically quite a nice fellow. However, he must feel, because he is speaking from the Opposition Front Bench, that he has to behave in the way that he has. I wish to make it clear that I warmly welcome the Statement. Listening to it, I thought that we were going to have a general election next week!
I wish to ask a few specific questions. First, it was previously stated by the Chancellor that there was a "golden rule" that current revenue would always exceed current expenditure, which we are now told will be 2¼ per cent. a year. Indeed, even with public capital investment, public expenditure is expected to grow from only 39 per cent. to 41 per cent. of GDP. Given the Bank of England's current role of considering inflation first and everything else second, including government economic policy and presumably including the Chancellor's Statement today, we shall not know what the revenue is to be over the next three years.
I am not suggesting, as the noble Lord, Lord Higgins, seemed to do, or implying that the Monetary Policy Committee will be obliged to increase interest rates arising out of this. Fortunately, no one from the Monetary Policy Committee is likely to be listening to him. The Bank of England and its Monetary Policy Committee do not know what is going to happen in regard to inflation or anything else this month, let alone over a three-year period.
Never mind whether there is to be a hard landing, a recession or whatever, if economic growth and revenue are nothing like as high as is assumed in the Chancellor's Statement, have departments been warned that there may be a need for cuts in their departmental expenditure? That consideration is not unimportant and I assume that it may well happen, despite the reserves that are built into these matters.
There is to be a new Cabinet committee to oversee departmental expenditure. Am I to take it that that is the first announcement of a reshuffle—namely, there will no longer be a need for a Chief Secretary to the Treasury? If that is not the case, will my noble friend say what the Chief Secretary will do in future?

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Finally, I note from the Chancellor's Statement that the Government are to retain the Barnett formula. I should be flattered—at least so far as Wales is concerned. However, so far as Scotland is concerned, I am not flattered. I have made clear that in my view the Barnett formula should not be continued as it is, and certainly not for three years, given the state of income per head in other parts of the UK including the north of England by comparison with Scotland. There is clearly a need for a review. I know that the Government are very fond of reviews; they have just announced another one. I should have liked to hear, and perhaps my noble friend will confirm, that there is at least to be some review of the Barnett formula as I have suggested, in order—not to do away with the name, because I have grown very fond of it—but to have a Barnett formula mark II. That certainly needs to be done, and perhaps my noble friend will tell me that that is the Government's intention.
Lord McIntosh of Haringey: My Lords, my noble friend asked first about the golden rule. However, he over-simplified it grossly. He said that revenue should exceed expenditure. The golden rule states that it should exceed expenditure over the period of the economic cycle—the difficulty being that we do not know what the economic cycle is. My noble friend is being, uncharacteristically, too simplistic.
He asked what would happen in a worst case scenario: if there were to be a shortfall in revenues or an increase in demand for expenditure. The estimates that we have made are extremely cautious and conservative. They have been audited by the National Audit Office. Even after that, we have erred on the side of pessimism rather than optimism. Therefore I do not believe it would be appropriate for us to be warning departments now about a matter for which we have fully provided in the projections and allocations that we have made.
My noble friend asked whether the new Cabinet committee will involve changes in responsibilities within the Treasury. I am sure that he will await, as I shall, with interest the Prime Minister's decisions on that matter in due course.
My noble friend asked about a "Barnett formula mark II", for which he understandably has a concern. We made it clear last year that we would continue the Barnett formula, particularly in the context of Scottish and Welsh devolution. It works, it is well understood by what are called the home countries, and we have no particular plan to change it.
My noble friend also asked about the number of government reviews taking place. If we examine the White Paper, we see the result and completion of major reviews that have taken place over the past 14 months and which have resulted in the interdepartmental spending programmes to which there has been no reference in this debate but which form an important and valuable part of the Government's proposals.
Lord Peston: My Lords, I congratulate my noble friend and, through him, my right honourable friend the
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Chancellor of the Exchequer on this tremendously important Statement. That said, it is a terrible state of affairs when a major Statement of this kind, containing enormously important policy initiatives, is not debated in this House. We can spend only 20 minutes on it, and we have to share that time with my noble friend the Minister. I do not say that with any disrespect to him. When I think of how much time we have wasted on ludicrous legislation over the past few weeks and the fact that this House will not be debating an incredible number of important initiatives, I feel very sad. That point might be noted by the usual channels.
I cannot have a great row with the noble Lord, Lord Higgins, on the classification of the accounts, on whether the policy is contractionary or expansionary and, above all, on leaks—except to say that I strongly believe that there should not be any leaks, because all documents should be placed in the public domain immediately they are produced, even though that would put at least one very important journalist out of business.
First, I wish to ask my noble friend whether there is a document called the Comprehensive Spending Review? Shall we receive a bigger document which we can read in due course which would contain a good deal of the detail in which we are interested?
My second question was raised by my noble friend Lord Barnett. The Statement says that:
"current spending will grow by no more than 2; per cent."
It does not say "per annum" so I wonder whether it means "per annum". It also does not say "at constant prices". Does it mean that? Those are specific questions.
With regard to the departments, I welcome the three-year approach to public expenditure. I totally support my noble friend's view that those of us who favour public expenditure, as I do, have a particular responsibility to support those who wish to see resources used efficiently. There is no argument about that. As a result of the Statement, I ask my noble friend whether it will bring to an end the second-guessing of the departments by the Treasury. In particular, will the departments be set free to manage the resources that they are given so that they can both manage them efficiently and be brought to account? Can my noble friend give me the answer?
I entirely support the extra funds for science. I have some questions on which my noble friend may wish to write to me. Will the new level be a plateau to which science will grow, as I hope? Alternatively, will it simply be a once-for-all change which means that we will have another crisis in science financing before we can turn round? I certainly wish to know the answer to that.
One of the document's great initiatives is the new educational maintenance allowance. Some of us have been looking for this for 25 years on grounds of both efficiency and equity. It has never been obvious why one could find money for university students but none for 16 year-olds. I am slightly confused; in one part of the Statement it is said that the Government will introduce it and in another it is said that if it succeeds they plan to introduce it nationally. The first statement seems to imply that the allowance would apply to

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everyone, so I do not understand the second statement that if it succeeds it would be introduced nationally. Could we be given the answer to that?
As my noble friend is well aware, I could produce many more questions but it would be unfair to other noble Lords who wish to speak. However, we ought to have a chance to debate such matters in detail.
6.1 p.m.
Lord McIntosh of Haringey: My Lords, I am sorry that we only have 20 minutes, but it always seems that some part of the 20 minutes is taken up by people complaining that we only have 20 minutes.
My noble friend asked whether there is a document. There is indeed and it is called: Modernising Public Services for Britain: Investing in Reform. It is available in the Printed Paper Office and will be followed by a series of documents to be produced between now and the end of the month by each individual department. It would certainly not be appropriate for the Chancellor of the Exchequer to set out or present the detailed expenditure plans of each department. Those will be presented by the appropriate Secretary of State in due course. All we could do this afternoon was give the financial framework in which those spending plans will be formulated and a flavour of the targets which the Government will set for departments.
My noble friend asked whether the growth was in constant prices. Yes, of course it is. We are talking about real growth, although it may vary between years.
The issue of management by departments is extremely important. My noble friend was quite right to raise it. Our intention is set out clearly in Modernising Public Services for Britain and also in the document entitled Aims and Objectives which sets out the departmental aims and objectives for each department and each agency. It is our intention that departments should be held to account, as private businesses are held to account. They should say what they are going to do and know what money they have to do it with. If they cannot do it within that sum then they are in trouble because the targets are firm and agreed between the departments and the Treasury. They will have to be adhered to.
My noble friend asked about the educational maintenance allowances. The Statement said that the first step would be pilot projects, but that they would be followed by national implementation if—as my noble friend and all of us hope—it is shown that educational maintenance allowances encourage greater staying on in education by students after the age of 16.
6.4 p.m.
Lord Marlesford: My Lords, I welcome the whole approach that the Government have taken towards public spending. In its methodology it very much builds on the remarkable changes which my noble friend Lady Thatcher introduced during the 18 years of Conservative government. In particular, it does so through such avenues as the private finance initiative—a huge change. I note from the publication to which the Minister referred that that is to be enhanced and
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increased. Most important, in my view, that is to be done by judging new expenditure against old expenditure rather than new expenditure against new expenditure, so that resources can be shifted to today's priorities.
Having said all that, I found what the noble Lord, Lord Barnett, said rather ominous. I am afraid that I very much agreed with him. The Minister knows that the OECD economic report for June anticipated that economic growth in the United Kingdom will he 1.7 per cent. of GDP for 1998—only half the 3.4 per cent. that it was in 1997. If that is the case, I wonder whether the Government have been wise to put forward major increases in public spending—desirable and popular though they may be. I ask the Minister whether it is not harder in political terms to cut spending than it is delightful in political terms to increase it. It might not be the fault of the Government, it might be world affairs, but if the economy develops a significant downward rate of growth and the Government are forced to choose between increasing taxation or cutting the new spending plans, can the Minister give me the assurance that the Government would not increase taxation as the noble Lord, Lord Taverne, seemed to indicate? If they were to do so, it would shoot out of the water the whole of the sound approach the Government have been taking on economic policy.
Lord McIntosh of Haringey: My Lords, I agree with only one point in what the noble Lord said about the Thatcher Government. I agree that it is right that the private finance initiative should continue and will continue. As for the rest of the inheritance from the previous government in public finance management terms, the two most conspicuous characteristics of the Thatcher Government were that they took enormous amounts of windfall receipts—£65 billion from privatisations and all the receipts from North Sea oil and gas—and spent it all on current expenditure, with no provision for investment.
The Earl of Stockton described that as selling off the family silver. I contrast it with what we are doing, which is totally different. We are taking unused and unwanted items from the attic and using the proceeds from their sale for the restructuring of the economy, the restructuring of the building and—to continue the analogy—the rehabilitation of the building for the benefit of its inhabitants. That is the huge difference between us and the Thatcher Government. What we are selling off will be used for investment and not in order to cut taxes for the better off.
The noble Lord echoed the concerns of my noble friend about forecasts of growth for this year. He quoted the OECD figure of 1.7 per cent. If it is any reassurance to him, the Treasury expectation is a figure considerably lower than that. The public expenditure plans are based on the lower figure and, if it is a further argument against the wonderful situation we inherited from Mr. Kenneth Clarke, I think the noble Lord will agree that growth in 1998 is more dependent on Mr. Clarke's policies than those of the present Chancellor.
Lord Elis-Thomas: My Lords, will the Minister accept that I am not interested in discussing the past

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legacy of the Thatcher Government? However, as he will understand, I am interested in assessing the relevance of the Statement to the Wales block as it is transferred to the national assembly.
Does the Minister accept that, although I warmly welcome the key approaches in terms of investment in education standards, particularly the commitment of the HE sector to develop a more effective role in the Welsh economy, I am concerned about the adequacy of the allocation in terms of ensuring that the objectives of Pathway to Prosperity—published last week by the Welsh Office—can be enacted? In other words, we are talking in an official statement by the Welsh Office of a job shortfall of 200,000.
Is the Minister aware that some of us may be concerned that although that represents an additional £2.2 billion over the next three years to invest in the Welsh economy, it may not bring the level of performance of that economy up to the UK and European average? There may even be a need to revisit the public expenditure levels in Wales in line with those indicated in passing earlier by the noble Lord, Lord Barnett.
Lord McIntosh of Haringey: My Lords, I referred to the Thatcher Government when the noble Lord, Lord Marlesford, defended them. I do not tend to engage in disputes unless I am invited to do so.
The noble Lord, Lord Elis-Thomas, is right that the spending plans proposed for the next three years provide an additional £2.2 billion over the next three years. Coupled with the additional resources already committed to health, education and transport, that will meet the commitments made in our election manifesto. I hope that that will reassure the noble Lord.
In relation to the distribution and control of that expenditure, it will increasingly become the responsibility of the Welsh assembly and nobody in this Chamber will be able to answer for it.

Scotland Bill
6.11 p.m.
The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Sewel.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Lyell) in the Chair.]
Clause 4 [Candidates]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 34:
Page 3, line 3, leave out from ("election,") to end of line 4 and insert ("a person may stand for return as a constituency member and may also stand for return as a regional member.").
The noble and learned Lord said: After a long wait, we begin with a small amendment which I hope will not detain us very long.
Amendment No. 34 is a small drafting amendment to subsection (1) of Clause 4. As drafted, this subsection may not make it entirely clear, certainly to lay readers of the Bill, that the same individual can stand as a constituency member and as a regional member. Some Members of the Committee will be aware that there is a considerable body of case law in the courts as to what the word "or" means when it is used in an Act of Parliament.
It is most undesirable that there should be any misunderstanding or scope for dispute on an issue as important as whether or not one person can stand for the two forms of membership which the Bill provides. Amendment No. 34 makes it abundantly clear that one can stand for both. I beg to move.
The Deputy Chairman of Committees: I must warn the Committee that if Amendment No. 34 is agreed to, I shall not be able to call Amendment No. 35.
The Lord Advocate (Lord Hardie): The purpose of this amendment, as the noble and learned Lord, Lord Mackay of Drumadoon, stated, would appear to be to make it clear that a person may stand as both a constituency member and as a regional member.
In our view, the wording of Clause 4(1) does not prevent a person doing that. Even if there were thought to be scope for argument on that point, the position is put beyond doubt by other provisions of the Bill; for example, subsections (7)(c) and (8)(c) of Clause 4. Members of the Committee will see that registered parties' regional lists must not include a person who is a candidate to be a constituency member for a constituency not included in the region. That suggests by implication that it could include a candidate for a constituency which was within the same region. Clause 4(8) states that,
"A person may not be an individual candidate to be a regional member for a particular region if he is …
(c) a candidate to he a constituency member for a constituency not included in the region".
Again, the implication of that provision is clear. If we look at Clause 7(3) it will be seen that,
"An individual candidate already returned as a constituency or regional member shall he disregarded"—
that is in the allocation of regional seats. In that situation, therefore, someone who has been returned as a constituency candidate is discounted in the calculation for the allocation of regional seats. That clearly indicates that he or she may stand for both.
There may be difficulties in the amendment since it may have the effect of providing that a person could stand as a regional member only if he or she were standing also as a constituency member. I do not believe that that limitation was intended by the noble and learned Lord; nor would it be desirable. With that explanation, I hope that the noble and learned Lord will feel able to withdraw his amendment.
Lord Mackay of Drumadoon: I am slightly disappointed with the response of the Lord Advocate.

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I have worked my way through all the other provisions of the Bill and I do not for one moment suggest that the correct construction was that one could stand only for one or the other. However, in a Bill of this nature it is important that lay people reading it should be able to look at an individual subsection and from that alone understand what the draftsman intended.
I am disappointed that my helpful suggestion is not accepted, but in view of the fact that we have not made much progress so far, I will not press it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 35 and 36 not moved.]
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 37:
Page 3, line 8, leave out ("or individual candidates").
The noble Lord said: This is a large group of amendments and I apologise to the Committee for that. I would have separated the amendments out, but was conscious of the fact that we had slight difficulties with timing this afternoon and so decided to put them together. They relate to the same underlying argument, although they address slightly different issues.
Perhaps I may remind the Committee of the voting system proposed for the Scottish parliament. Scotland will be divided into the European regions and in each of the regions there will be conventional first-past-the-post elections in the Westminster constituencies. That is fairly straightforward. On top of that, we will all have a second vote when we will vote for the party of our choice or for an individual. At the end of the day, all those votes will he added up and, using a formula devised by a Belgian mathematician—d'Hondt—the returning officer will give parties additional members. Up to seven additional members will be available.
The idea behind this is that, by the use of those additional members, any disproportionality in the first-past-the-post system can be remedied so that the final outcome is nearer to proportionality than was the first-past-the-post system originally. However, a problem arises which I want to address.
First, I am puzzled as to why, if the second vote is intended to ensure that there is proportionality in the total number of seats based firmly on the number of first-past-the-post seats gained, we are introducing individual candidates into the second ballot. Any votes the individual candidates achieve will be at the cost of the political parties. Proportionality in the first ballot may therefore be upset.
The problem is greater than that. If people shift their votes on the second ballot the proportionality on the first vote will never be achieved. I can, without too much trouble, produce examples which show that to be so. Parties that under-perform at first-past-the-post and yet have a sizeable vote, could easily find themselves very badly off if the second vote moves away from them. I do not need to remind your Lordships that I do not agree with any PR systems: I am now being a purist on the subject. If the additional member system is designed
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to "correct" any imbalance in the first-past-the-post, the second ballot and the individual member could easily frustrate that.
Last evening I did a rough calculation that if an individual candidate were to poll 8 per cent. in the second ballot—which is a huge "if"—the votes would have to come from the political parties who fought the first-past-the-post. In that case it could deprive one of the political parties of the very proportionality that the AMS system is designed to achieve. If the second ballot is designed to deal with party balance, it is inconsistent that individuals should be allowed to stand.
I doubt that any individual would be able to stand and achieve the 5 per cent. needed to win the very last place in the d'Hondt calculations. I suspect this was put in for Mr. Peter Peacock, the chairman of the Highland Regional Council, who wished to stand as an independent at the time. The Government wanted to keep him on side. They no longer need to bother about the Peacock amendment to the additional member system, they can forget about it. Mr. Peacock has decided to throw in his lot with the Labour Party. Looking at the opinion polls he may be wondering if he has made the right decision, but that is another matter. He is off the screen. The idea of individual candidates in the second ballot is a bit of a nonsense, partly because it is just pretending that individuals will achieve the 5 per cent. required in a regional vote of maybe seven, eight, nine or 10 Westminster MPs. We are talking about a lot of votes over a very big area. It is Cloud-cuckoo-land, but an individual candidate could poll enough votes to frustrate the proportionality.
Another more insidious problem is the split ticket. One of the problems of doing the Government of Wales Bill and the Scotland Bill is that I find myself treading some of the same ground. The audience changes a little, although not entirely. I see that the noble Lord, Lord Thomas of Gresford, is here, probably to check that I am consistent from one Bill to the other. As there are two votes there is the potential for political parties to register themselves as a sort of shadow party, although it is not really different from the main party. For example, the Conservative Party could register itself as the Conservative Party and as the Unionist Party. The Registration of Political Parties Bill as presently constituted would allow for that. There is no bar in the Bill to that. The Conservative Party would then stand in the first ballot and the Unionist Party would stand in the second ballot. I will explain further to your Lordships, but I shall not use the Conservative Party as a working example. The point is rather better achieved by looking at the Labour Party, given the fact that the Labour Party won a few more seats than the Conservatives in Scotland at the last election.
The problem started in a paper by Michael Dyer of the Department of Politics and International Relations at no less than Aberdeen University. The noble Lord, Lord Sewel, will be well aware of the gentleman. We have to say in the presence of the noble Lord, Lord Sewel, that we treat anything an academic says from Aberdeen University with the utmost seriousness. Dr. Dyer wrote a very interesting paper which drew

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everyone's attention to this sleight of hand—for that is what it is—of splitting the ticket of an alter ego party. He illustrated it in a very interesting paper.
The paper was taken up by no less a person than Mr. Ian Davidson, the Member of Parliament for Glasgow Pollock. Mr. Davidson described what I am about to explain to your Lordships as not necessarily a manipulation of the system. He went on to say in Hansard on 28th January 1998 in the other place that it would be a good idea for the Co-operative Party to register itself as a separate party. That was the essence of the Dyer paper.
Let me explain. If the Co-operative Party registers itself as a separate party and stands not for any first-past- the-post seats but entirely in the list, and the Labour Party does not stand in the list but in the first-past-the-post, then serious distortion of the principle of proportionality—which is the object of starting this new system—is possible. I take the results in the city of Glasgow at the last General Election as an example. I have to make an assumption that the second vote would fall the same way as the first vote. I suspect that, by and large, in the city of Glasgow it might.
In the city of Glasgow, 10 first-past-the-post seats were won by the Labour Party with varying degrees of convincing victories—substantial victories in most cases. If that happened in the Scottish parliament, the Labour Party would have 10 first-past-the-post seats. There are seven additional seats. The total votes were taken and the Labour Party achieved over the whole of Glasgow 193,000 votes; the Scottish National Party 62,000; the Conservative Party 27,000; the Liberal Democrats 23,000, and others 8,000—largely for Mr. Tommy Sheridan and his Socialist Party.
Those totals are then divided to start with by one more than the number of seats achieved. As none of the parties other than the Labour Party has any seats, their original vote holds. The Labour Party has its seats divided by 11, which reduces its votes considerably to approximately 170,000. I shall not go through the d'Hondt system. Without an overhead projector it might even defeat my skills of explanation—unless I want to put your Lordships off proportional representation in a very big way, and the temptation is there. Under the d'Hondt system these devices are put in and we come to allocate seven seats. The Scottish National Party gets three seats; the Conservative Party gets one; the Liberal Democrats get one and the Labour Party get two. So we end up in Glasgow with 12 Labour seats, three SNP, one Conservative and one Liberal Democrat. They are not awarded in proportion to the vote. There is a German term for the problem: you have got too many seats; you have got more seats than you deserve under proportionality. I accept that is part of the game of having some first-past-the-post and I do not complain about that.
There is then the problem that the Labour Party has 12 out of the 17 seats in Glasgow. If however the Labour Party does not stand in the second ballot and the Co-operative Party does, the Labour Party can advise its voters to vote Co-operative on the second ballot—and they will have no trouble in doing that because its voters
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will see quite clearly that it is a wise ploy in order to maximise their parties' representation in the Scottish parliament. When that happens and the votes are distributed under the d'Hondt system, the Co-operative Party will get six seats, the Scottish National Party one and the poor old Conservatives and Liberal Democrats will get none at all. So the Labour Party ends up with 16 seats instead of 12; they gain four. It is Labour and Co-operative. People in West Central Scotland have been used to Labour and Co-operative for years and years and years. They will not think that there is anything strange about this. That is a real problem. Dr. Dyer has written an academic paper about it and Mr. Davidson and others have said that it is an attractive proposition. I believe that we should try to do something to prevent it happening.
At the last election, exactly the same kind of thing would have happened in central Scotland; it would have happened in the west of Scotland; it would have happened in Lothian; and it would have happened in mid Scotland and Fife. In the Highlands, where the Liberal Democrats do very well, if I may worry them a little about proportional representation, they would not gain any additional seats because, although they have done well under first-past-the-post, they have not achieved a very high percentage of the votes. They gain hugely by first-past-the-post. However, if the Liberal Democrat Party decided to form the Liberal Party and the Democrat Party, which it would be able to do without any trouble, it could gain many more seats in the Highlands and Islands.
During the proceedings on the Government of Wales Bill, the Minister accepted entirely the strength of my argument. He did not deny that what I was suggesting could happen and was perfectly possible. All the comfort he gave me, as did his colleague in another place, was a guarantee that the Labour Party would not do it. I achieved the same guarantee from the noble Lord, Lord Thomas of Gresford, on behalf of the Liberal Democrats. I achieved the same guarantee from the noble Lord, Lord Elis-Thomas, on behalf of Plaid Cymru. I gave the same guarantee on behalf of the Conservative Party. However, as I explained to your Lordships earlier today, I have enough experience of Ministers to know that one cannot trust the breed for ever and ever. Other Ministers come along who are not bound by the promises parties have given. Frankly, I think we should do something about it.
The way to do something about it is to say that there will be only one vote—a constituency vote. Then one adds up the constituency votes for all the parties and distributes them using the d'Hondt system. There is then no prospect of a party dividing itself into two, like an amoeba, and therefore getting round the system. There is then no prospect of that happening 10 or 20 years down the road. Equally, it resolves the question of independents standing. It also means that the proportionality is based on the number of first-past-the-post wins. Therefore, we are doing what I thought the whole system was devised to do—making sure that the wrinkles, so to speak, and the unfairnesses that could happen in a first-past-the-post electoral system are ironed out. I think I have shown that, while

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they can be ironed out in some circumstances, there are circumstances in which they will not be ironed out. In fact, any unfairnesses will be reinforced by the additional member system.
I accept that the Government will have the additional member system in the Bill. Therefore, that is the system we will use. But I should like to think that we could find a solution to this problem. Another version of the solution will come up later, but, for now, because it ties in with the individual person standing in the second ballot, I am offering the Government the solution of the single vote. It removes the problem of the individual person standing; it removes the problem of alter ego parties—split parties; and I also believe that it will achieve in a more guaranteed way, if I may put it like that, the proportionality on the first-past-the-post seats that the Government wish to achieve by having AMS.
Perhaps I may point out that, initially—I fully accept that it was initially—West Germany, as it then was, used one vote. It then went to two votes. But in Germany the regional constituencies are huge and it is a 50:50 system. Half the members are elected by first-past-the-post and the other half are elected on the additional member system. So I do not think it would be quite so easy in Germany for parties to do that. I accept that it could be done; I believe it has not been done; but that does not mean to say that it would not be done.
When we pass legislation, especially legislation such as this, it is the duty of both Houses to look at how people might abuse the legislation and see whether there are ways of preventing that happening. I offer my amendment to the Government in good faith. I assume that I shall be given assurances that the Labour Party will not perform this operation. I assume that I shall be given assurances that the Liberal Democrats will not perform this operation. I can give assurances for the Conservative Party. But there is a party represented here which, as far as I know, has refused to give that assurance. That, if nothing else, should worry the Government. I beg to move.
6.30 p.m.
Lord Mackie of Benshie: The noble Lord, Lord Mackay of Ardbrecknish, has made his usual persuasive case. However, the great snag of using the first-past-the-post system and simply counting the votes is the fact that one then adds to the party the responsibility of providing a list of people who have not stood for Parliament, who have not gone to the electorate, and who are simply party nominees. One can point to cases in all kinds of parties where the crony system would work. We think that is a bad thing. Although there are anomalies in the system proposed, it is better than leaving the nomination of half the members of the parliament to a party headquarters. That is our objection to that system.
We also do not see why an individual should not stand in a region. He will be required to get massive support in terms of people nominating him and he will have to put up a great deal of money, but if he wants to, and if he can obtain that support—there are
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individuals who could—I think that is a democratic alternative. It may not be taken up but it is a reasonable one to offer.
The noble Lord, Lord Mackay, is probably on stronger ground when he says that precautions should be taken against fiddling the party system. I do not think that we would have a good case in the Liberal Democrats. Perhaps he will explain how we could take advantage of it. But, seriously, there is no case for the splitting of parties. It is certainly true that there is a Co-operative Party in the Labour Party. I never knew that there was a separation between the unionists and the Tory Party. However, we need to take precautions. I shall be interested to hear what the Government say. I am convinced that we have to work out a decent system of proportional representation and voting. Later amendments will address that point.
Baroness Carnegy of Lour: I think there is a real danger. To me, looking back over a number of years of fairly hot local government politics as well as observing the scene from this House, I do not give great credence to assurances for the future. I do not think you can do that. It seems to me that you could manipulate the question of individuals standing. You could work out what might happen in a region and what the result might be and then talk to sympathetic individuals and suggest that your party will vote for them.
There are many ways in which the system could be abused. I have not been into it in great detail, but it sounds to me as if my noble friend Lord Mackay of Ardbrecknish has an answer. There is a price to pay and the noble Lord, Lord Mackie, has explained what it is. If it prevents abuse and gets the kind of result that the Government are trying to achieve in terms of proportionality, we should consider it.
Lord Thomas of Gresford: The amendment which the noble Lord, Lord Mackay, is addressing includes the words "or individual candidates". He said that he could not envisage any single individual being elected under the proposed system. That very much depends on the form of the ballot paper. If the party lists do not appear on the ballot paper at all it would say, for example, "Liberal Democrats", "Conservatives", "Labour Party" and the "Scottish National Party". Then one would turn to individuals such as "Mr. Billy Connolly", and "Mr. Sean Connery". There are people with known views who are popular figures in Scotland who might find themselves elected as individuals. One has to think only of the recent Irish presidential election to appreciate that people well known in other fields played a part in that election. The Government should take on board that individual candidates may declare themselves as individuals and be sufficiently popular to be elected, but nevertheless have known political affiliations.
The noble Lord also addressed the issue of phantom parties. He suggested that they might split themselves into two. As a party the Liberal Democrats have given an undertaking as regards Wales that we would not do that. My noble friend Lord Mackie has also given such an undertaking on behalf of the Liberal Democrats for Scotland. It seems to me that the public are not so easily

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fooled as to ignore breaches and undertakings that are solemnly given by political parties to Parliament in the passing of this Bill. Knutsford is an example of what can happen where there is a complete turnround in a political party, where the public take a strong view about the activities of a candidate or of a party.
As regards the single vote as opposed to a vote for the constituency candidate and for the region, to say that only one vote should count for both elections is to deny choice to the elector. I had hoped that both in Wales and in Scotland we were moving to a less adversarial style of politics so that the voter could choose perhaps an outstanding personality in respect of one party, but nevertheless give his support to another. To have a single vote for both the constituency and the regional candidate suggests that the vote of an elector must be fixed in stone for one party or another. It is rather like every person,
"born into the world alive,
Is either a little Liberal,
Or else a little Conservative!"
That is not the case: people think and they choose. I hope that both in Wales and in Scotland the electorate will consider more than a single party. It would be a missed opportunity if we were not to allow a full choice to the Scottish electors.
6.45 p.m.
Lord Howie of Troon: I have made my views clear on a previous occasion as regards the party list system. I regard it as totally deplorable. I cannot stand it at all: it is wholly wrong. I shall not rehearse the arguments again because once is quite enough. The way to get round this particular problem of dealing with party nominees and individuals is to utilise the single transferable vote. There would be no problem and none of that worry would afflict us here.
The noble Lord, Lord Mackay of Ardbrecknish, has spoken of phantom parties. I know he is a Highlander and they go in for phantoms, but I am a Lowlander and I do not go in for that kind of thing at all. I believe that he is whistling in the dark. It is wonderful stuff, but there is no reality about it.
He is a great advocate of the first-past-the-post system. He must realise that there have been peculiarities in that system as well. People have stood under the same name as other candidates. I remember a man who called himself "The real Liberal" or something of the kind. He caused an upset in the European elections a year or two ago. Most systems have these problems, but all of them can be ironed out if one uses the single transferable vote. As I have pointed out before, it has precedents in the other place.
Baroness Ramsay of Cartvale: With such a large group of amendments it is important to cut through to the main effect of this particular group, the main effect being to restrict the electorate's choice in two ways. The first way is by preventing independent candidates from contesting regional seats and, the second, by proposing that electors should have only one vote instead of two. The noble Lord, Lord Mackay of Ardbrecknish, ranged
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over wider issues about phantom parallels—whatever one would like to call them—and other parties. These matters will be dealt with in much greater detail when we reach Amendments Nos. 41, 42 and 46. In the very next group of amendments we shall be dealing with what goes on a ballot paper.
I would like very much to concentrate on what this particular group of amendments will achieve if it is carried. I shall deal with Amendments Nos. 37, 44, 45, 51, 58, 59, 60 and 65, which hang together as one particular group. The Government are completely opposed to these amendments because they would prevent independent candidates from contesting regional seats in the Scottish parliament.
I find myself more than a little astonished that Members of the Committee would want to bring forward in, of all places, this House, which prides itself on the independence of mind of many of its Members and on its Cross-Bench traditions, amendments which deny the Scottish parliament the opportunity to have independent candidates elected to it in regional elections. Why should the electorate be denied the choice of voting for an independent MSP as these amendments try to do?
As we have said before—there have been echoes today from the Liberal Democrat Benches—the Government are keen to ensure that there is an inclusive parliament which represents the diversity of Scotland. Allowing independents to stand in the regional election where it is likely they will have a more realistic chance of success, is one way in which that can be ensured. We want parliament to be able to draw on the widest range of talented people. We recognise that not all of them have a party political affiliation, but we are keen not to exclude them from standing as independent candidates just because they do not have that affiliation.
It has been suggested that that would lead to another category of MSP. I do not agree with that. They will have just as important a part to play in the parliament because they will be representing those who elected them. It has been claimed that there is little prospect of an independent candidate being returned. The noble Lord, Lord Mackay or Ardbrecknish, put forward that view. I am surprised that Members of the Committee are so pessimistic. Clearly, much will depend on the pattern of voting. However, using last year's general election results as a model, an independent candidate who secured some 25,000 votes, which in some regions would be around 5 to 6 per cent. of the electorate, could have been returned as a regional MSP. It is not beyond the bounds of possibility that that could happen.
These provisions have received considerable support particularly in those parts of Scotland where there is a long tradition of independents in local government. Many people, for whatever reason, do not feel properly represented by the political parties. By allowing independent candidates to stand in the regional election, we can ensure that the electorate has as wide a range of candidates to choose from as possible. The Government believe in giving the electorate more choice. Noble Lords opposite would by this amendment restrict that choice. I do not believe it would do credit to them to

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say to the electorate that it cannot return an independent as a regional member if that is what the electorate wishes.
Amendments Nos. 47 to 49, 52, 53, 56, 57, 74 and 75 propose that voters in Scottish parliament elections should be entitled to only one vote where they vote for a constituency candidate standing for a party. The vote for a candidate representing a political party in the constituency elections would then be deemed to count as a vote for that party in allocating the additional regional seats. The Government cannot agree to that approach. It is quite simply another attack on voters' choice. The Scottish electorate voted overwhelmingly in favour of the electoral arrangements set out in the White Paper. Voters endorsed our proposal that they would be entitled to two votes: one for a constituency candidate and one in the additional member section of the poll, for a party list or individual. The proposed amendments greatly limit their right of choice in the additional member poll.
It may well suit the larger political parties to limit the opportunity for electors to switch their votes in the two polls, but is it right to deny voters that democratic choice? For various reasons not all electors may want their constituency vote also to count as a vote for the candidate's party: for example, they may consider that a particular candidate would make a good constituency MP and vote accordingly, but their natural political sympathies may lie elsewhere and they may revert to them in casting their second vote. It would be wrong to deny the electorate this opportunity.
The amendments would also tend to work against the smaller political parties which may be able to gather more support for regional candidates than they could achieve in the individual constituencies. The amendments would force such parties to contest all the constituencies in a region when it might be more sensible for them to focus on the regional poll.
I have already said that one of the Government's aims is to encourage greater participation in the elections to the Scottish parliament. These amendments would prevent that and would restrict voter choice. I hope that on reflection noble Lords opposite will agree to withdraw their amendment.
Viscount Thurso: Before the noble Lord, Lord Mackay of Ardbrecknish, responds, does the Minister agree that the appropriate place to consider the question of hanky-panky and split names, to which the noble Lord referred, is the legislation dealing with the registration of political parties rather than this Bill?
Baroness Ramsay of Cartvale: That is not necessarily so.
Lord Mackay of Ardbrecknish: In response to the noble Viscount, as currently framed the Registration of Political Parties Bill does not address this problem. Even as we speak some of my right honourable and honourable friends in another place are trying to devise amendments—whether or not the Government accept them remains to be seen.
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Although we have had an interesting debate, far from my fears being allayed on these matters they have been increased. Despite the kind intervention of the noble Lord, Lord Thomas of Gresford, I did not hear the noble Lord, Lord Mackie, say that his party would not indulge in this kind of activity. Before the noble Lord rises to his feet, perhaps I may outline to him the advantages to his party if in the Highlands and Islands it did what I suggested. The calculations before me may not be precisely accurate. In the previous election, the Liberal Democrats did extraordinarily well in the Highlands and Islands. The Liberal Democrats gained five seats; the Labour Party gained three seats; the SNP gained two seats; and the Conservative Party gained one seat. I apologise: the Conservative Party gained none. I am looking at the d'Hondt divisor. Phantom parties, phantom seats! One must take one off each of those results. I have told the Committee that PR is complicated! So, the Labour Party gained two seats; the Scottish National Party gained one; the Conservative Party gained none; and the Liberal Democrats gained four. Under the additional member system, using the results of the previous election and assuming that the first and second votes are the same, the Conservative Party would gain two seats (which is fair given its 37,000 votes, just half the Liberal Democrat figure, resulting in the Conservative Party gaining no seats and the Liberal Democrats four); the SNP would gain three seats; the Labour Party would gain two; but the Liberal Democrats would have none. They gained a considerable advantage under the first-past-the-post system on a minority of the vote.
However, if members of the Liberal Democrat Party are not men and women of high principle and if the party decides to divide itself, as I suggested it might, the Labour Party would gain one seat; the SNP would gain two; the Conservative Party would gain one; and the Liberal Democrats would gain three. By that method, the Liberal Democrats would gain three more seats. Having reflected on that matter, I look forward to hearing assurances from the noble Lord, Lord Mackie of Benshie.
Lord Mackie of Benshie: I am glad that the noble Lord has been able to explain it to me. I would have thought that the intended humour with which I asked for this would be sufficient assurance that we would never even think of it. We know quite well that because of the quality of our candidates in the Highlands we gained seats under the first-past-the-post system. We are perfectly well aware of the system. We would not gain extra seats in the Highlands in this way, but because we believe in proportional representation and a fair show we are willing to hand the Conservatives some seats in the Highlands.
Lord Mackay of Ardbrecknish: I am grateful to the noble Lord, Lord Mackie, for that assurance. I am also prepared to give an assurance that the Conservative Party would not indulge in this little game. I did not hear the noble Baroness, Lady Ramsay of Cartvale, give that assurance on behalf of the Labour Party. I shall be

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happy to give way to the noble Baroness if she wishes to give such an assurance. That will certainly help me when I come to decide what to do with this amendment.
Baroness Ramsay of Cartvale: I am delighted to give the noble Lord that assurance.
Lord Mackay of Ardbrecknish: That is fine as far as it goes. We have had assurances from the Conservative Party, the Liberal Democrats and the Labour Party, but we do not have an assurance from another party that is not represented here. I do not believe that that party has given any such assurance. If I were the Government, I would be cautious about brushing aside this problem. The noble Baroness, the noble Lord and I may be great people in our time, but we shall not be here for ever. Our successors may not feel bound by the commitments that we have given today. That should worry the Committee quite considerably. However, we have made some progress on this issue.
The idea that parties could indulge in this practice is something that at least the noble Lord, Lord Mackie, recognised. He indicated that precautions should be taken to guard against it. I do not say that my precaution is necessarily the best one. I understand that it prevents people switching their vote between constituency and additional member, but no one should be fooled by this. The basis on which the current system is now devised means that the second vote is the important one. It is the second vote on which the proportionality will be built, not the first-past-the-post vote. I do not think that that is the principle underlying the additional member system but it is the reality.
The noble Baroness said much about restricting the electorate's choice by having only one vote. However, as the noble Lord, Lord Howie of Troon, said, if one wants to give electors choice, the additional member system does not give them much choice. We shall consider the open and closed list in a moment. If the Government wish the electorate to have choice, and they want proportional representation, as the noble Lord said, they should be going for the single transferable vote. But the noble Lord, Lord Howie of Troon, is now almost alone on that island because the Liberal Democrats have deserted the single transferable vote in the three variations of proportional representation before the House in the Welsh Bill, the European Parliamentary Elections Bill and now this Bill.
7 p.m.
Lord Mackie of Benshie: The noble Lord goes too far. In Scotland we have been talking about proportional representation for 50 years.
Lord Mackay of Ardbrecknish: As the noble Lord knows, there are more varieties of proportional representation than even the 57 varieties of Heinz.
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I understood that the Liberal Democrats believed, as the noble Lord, Lord Howie, explained, in the single transferable vote. They have now abandoned it.
Lord Howie of Troon: I thank the noble Lord for his kind words. However, in fairness I should say that the noble Lord, Lord Alton, still believes in it as well, so there are two of us.
Lord Mackay of Ardbrecknish: The noble Lord, Lord Alton, finds that he has had to leave the Liberal Party.
Lord Thomas of Gresford: The noble Lord. Lord Mackay, should appreciate that the STV is the policy of the Liberal Democrats, and always has been. It is also the policy of the Liberal Democrats to have a Scottish parliament up and running as soon as possible. To that end we are prepared to go along with the system the Government propose.
Lord Mackay of Ardbrecknish: We know now that we are compromising on a single transferable vote, but we can have it in the European Parliamentary Elections Bill. The Liberal Democrats could at least advance the case. It will be interesting to see whether they vote with the noble Lord, Lord Alton, on the European Parliamentary Elections Bill.
It is a bogus argument to say that I am restricting electors' choice and the Government are not. The Government are restricting electors' choice to a considerable extent, as we shall see when we debate the open list. As we shall see when we debate further amendments, by choosing the d'Hondt system they are choosing the system of additional member that is least friendly to independents and small parties, and most friendly to large parties. As for what the noble Baroness said in this debate, she will have to eat her words when we have further debates. If the Government wished to be fair to small parties they would not have chosen the d'Hondt system. They would have chosen other variations that are available and used elsewhere in the world to give the additional member seats.
There is no point in Ministers shaking their heads. It is a simple mathematical truth, which I shall explain after the dinner hour. That is what Members of the Committee might call a trailer!
There are two large groups. I am sorry that the noble Baroness did not seem to like the grouping. I grouped the amendments so that we could have one debate and make some progress on an issue which has an underlying relationship. The two problems are different but the solutions are the same. It was the solution that I was considering.
The double voting is not a problem. I am prepared to wear the proposal in respect of independents. I think that the Government tried to buy some support in those parts of the country which still have independents. But any independent who is able to add two and two and make four can see that there is nothing in this system for an independent candidate. Any successful independent will have to find a way to stand in the first-past-the-post

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system in a smaller constituency where fewer than 25,000 votes will gain. I doubt whether even Tommy Sheridan will gain a seat in Glasgow despite the efforts of the Labour Party in Glasgow to advance his cause by the incompetent way it runs the council; but that is another matter.
We shall return to the problem of the alter ego parties with another solution of mine later. I shall be interested to hear what the Government say. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 38:
Page 3, line 12, at end insert (", and the regional returning officer shall publish the list at the earliest opportunity").
The noble Lord said: Amendment No. 38 provides that,
"the regional returning officer shall publish the list at the earliest opportunity".
Amendment No. 39 states that the list shall appear on the ballot paper and that the order shall be determined by the party. I accept the closed list as proposed by the Government. We shall debate later whether or not that is a good thing but I accept it because I wish to narrow the debate to one issue.
When the party delivers the list to the returning officer before the election, where will that list appear? How will it be published? Will it be in general terms in the newspapers? Will it simply be put up on a notice at the polling stations? Or will it appear on the ballot paper? I believe that it should be published in newspapers, at the polling station—as is the ballot paper currently—and on the ballot paper. When those noble Lords who will have a vote vote on that second vote the names should be there. I know that there will be up to 12 names. But I have seen examples of European ballot papers where that can be and is done. The argument that the ballot paper will need to be rather large does not convince me.
If we can move, as we are doing in the Registration of Political Parties Bill, to putting the parties' symbols on the ballot paper, it seems to me important—the noble Baroness considers it important that people know for whom they are voting in the second ballot—that the names appear on the second ballot paper. The ballot paper should contain the list of candidates' names. If the electorate in whatever area it will be sees at the top of the list the magic name of Sewel in the Labour column, it will inexorably decide how it will vote. However, leaving aside the plug for the noble Lord, it is important that when the voters go into the polling booth they know for whom they are voting on the list.
I hope that the Government will be able to accept the amendment. It is straightforward and simple. I may be told that it will be in regulations. There is much in the Bill that is less important than the names on the ballot paper. I believe that the provision should be on the face of the Bill. I beg to move.
The Earl of Mar and Kellie: Amendment No. 43 is grouped with the amendment. It is aimed at increasing the democratic accountability of the regional ballot.
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I can agree with the amendments which call for the early publication of party lists and for the parties to determine the order in which the candidates will be elected if the party is successful in the regional ballot. A minor competition evolves between Amendments Nos. 39 and 43. The wording in Amendment No. 43 is more precise and almost incapable of being misinterpreted.
The latter part of Amendment No. 39, which provides that the list shall be ordered by the party, makes explicit an implicit feature of the closed list system. Amendment No. 39 falls short in that it does not require the parties to order their lists by a one member one vote postal ballot as practised by these Benches. The criticism of the closed list system is, as we have been regaled by some noble Lords, that the party bosses can fill the lists with their pals. Perhaps a further amendment is necessary to limit the range of methods of ordering the regional candidates.
Amendment No. 43 ensures that voters have the names of every candidate on each party list in front of them in the polling booth at the point of ballot. So far we are led to believe that these details will be available only wherever the returning officer decides to publish them, in campaigning literature and on a piece of paper pinned up on an internal wall of the polling station. I cannot see that as particularly informative. Polling stations are alien places at the best of times, with handwritten notices abounding; that is if Clackmannanshire polling station is anything to go by. The electorate have enough on their minds without trying to read the party list on the wall and find a booth with the correct combination of, presumably, coloured ballot papers.
Given the unfamiliar position of the regional members and the unhelpful comments of those proponents of proportional representation, I hope that there will be a government-led education campaign about their role and democratic validity. Our amendment calls for the name to be printed on the ballot paper, together with the party name and possibly the logo.
It may be worth mentioning a weak compromise to meet the Government's possible objection about the increased cost of printing the whole list on each ballot paper. That poor compromise would be to place a list securely—preferably by Sellotape—in each polling booth. However, it would be out of the direct focus of the voter at the point of ballot. The amendment would increase democratic effectiveness and would no doubt be opposed on grounds of political or financial expediency.
Baroness Ramsay of Cartvale: The Government believe that the electoral arrangements for the Scottish parliament will ensure a fairer balance of representation than could 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 with a corrective element. Taken together, that should achieve a fairer distribution of seats.

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The system for returning regional members is complex, but so far as the voter is concerned the voting process as envisaged in the Bill is relatively straightforward. Each elector will be able to vote for a constituency candidate and cast a separate regional vote for the party or independent candidate he favours.
I fear that the amendments would lead to confusion. I agree that printing each party's list on the ballot paper would not in itself change the voting system. But I maintain that it would certainly lead to confusion for voters who might reasonably conclude from seeing the list that they were supposed to express a preference from among the listed candidates. I have no doubt that there would be far more spoilt ballot papers if we went down that road.
On another practical note, perhaps I may remind the House of what was mentioned by the noble Lord, Lord Mackay of Ardbrecknish; that each party's list can contain up to 12 names. Bearing in mind that it is likely that the major parties will run large slates of candidates, it is not difficult to imagine that there could be 40 or considerably more party list candidates in each region. I invite the Committee to consider the piece of paper which would confront voters if all those names were included on the ballot paper.
Some of the candidates may also be standing as constituency members. In fact, I understand that the Conservative Party intends that all its candidates should do so. Voters would then face a name appearing on both ballot papers and that could well add to their confusion.
At a time of numerous changes to electoral systems, surely we need to make life as easy as possible for the electorate. Ballot papers should seek to make clear the nature of the voter's choice. In the poll for regional members, we are asking voters to choose between parties and independents, and that is the choice with which they should be presented on the ballot paper.
None of that is to deny the importance of voters being able to exercise their regional vote in proper knowledge of which individuals are being proposed by each party. I believe that in Amendment No. 38 the party opposite considers that it is going some way towards ensuring that. However, all we are saying is that such a level of detail is not appropriate for the face of the Bill.
The detailed provisions about the conduct of the elections will be made in an order under Clause 11. We will of course wish to ensure that regional lists are published in good time. It is one of the issues that has been considered by the working group on electoral arrangements. In addition to expert interested organisations, the group includes representatives from the four main political parties in Scotland. We fully intend that in addition to the formal notification by the returning officer, the contents of lists should be well publicised to electors; for example, by means of notices in polling stations. An order under Clause 11 will give us flexibility in deciding what provision would be appropriate. I can assure the House that there is no idea that the list should be kept secret. The question is simply
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how we provide electors with all the information to which they are entitled in a way which is most helpful to them.
The Earl of Balfour: I am sorry to interrupt the noble Baroness. As a result of what she said, there is considerable doubt in my mind about the position of people standing as independents. The intention of the amendment tabled by the noble Earl, Lord Mar and Kellie, is to allow the ballot paper to contain all the names of the political parties and individual candidates. I may be wrong, but her comments have confused my mind on that issue.
7.15 p.m.
Baroness Ramsay of Cartvale: No, I was talking about the names of the parties. If someone is standing as an independent, his or her name will have to appear on the ballot paper, because it could be nothing other than the name of the person standing. We are arguing that printing on every ballot paper the names contained in every party's list is not the best way of informing the electorate and giving them a clear choice. In voting for a party, their vote will be for the party and not for any individual on the list. I hope that that clarifies the point.
The Earl of Onslow: The noble Baroness is saying that people are too stupid to understand the names on the list. I find that rather offensive. She also said that people will have to make up their minds for party and party alone. If you are a wavering party voter, it is possible to see list A and say, "He is a bounder and I don't want him. He is all right and I will change my mind because of the name on the ballot paper". Surely we should not treat people like children; we should give them the information they want. If they can read a leader in the Sun they can read a ballot paper for the Scottish regional assembly.
Baroness Ramsay of Cartvale: I am sorry that the noble Earl gained the impression—I do not know where from—that I was in any way implying that the Scottish electorate were unable to read a ballot paper. We are talking about producing a ballot paper which gives the electors the information they need to make their choice of vote. Under the regional list system, that choice will be for the party. We have already said that we are looking at every possible way of publicising the names on the party list. All we are saying at the moment is that names on the ballot paper do not appear to be the best option. However, I have also said that an order under Clause 11 will give us the flexibility to consider the best and most appropriate way of dealing with this matter. I have said also that there is a working group on electoral arrangements on which all interested parties, including the four main political parties, are represented. It is working on all the issues which we are now discussing.
Lord Kirkhill: I thank my noble friend for giving way. I accept the premise of my noble friend's argument. I do not dispute at all her general propositions. I admit immediately that I am going back 20 years, so I speak with that proviso. I have some

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experience of the activities of the Scottish Office. Something which the Scottish Office did badly in my time—and now that I am out of it, I still believe that it does it badly—was to advertise clearly in the correct way, using the right point of media, the various propositions which it needed to convey to the general public. I hope that the noble Baroness will emphasise to the working group that it must keep a close eye on what happens after it makes its proposals because all too often such matters die an untimely death.
Baroness Ramsay of Cartvale: I assure my noble friend that the working group will take every care to ensure that its decisions are carried out. We are all anxious that the greatest possible publicity is given to the names on the list and to the independents. Everyone who is standing will be given the greatest possible publicity.
However, we need the flexibility which the Bill provides to develop solutions to those problems, solutions which work. We believe that these amendments would complicate matters for the electorate. We believe that they would lead to confusion and an increased risk of spoilt ballot papers. Therefore, I ask the noble Lord to withdraw the amendment.
Baroness Linklater of Butterstone: The noble Baroness, Lady Ramsay, said that there may possibly be confusion. I have seen a sample ballot paper produced by the Electoral Reform Society. It is perhaps a matter of layout, but it is not necessary to be confusing. If the voters see only the names of parties, they may be given the impression that they are merely voting for someone who will be a party placeman. The voters will have no idea who they are voting for. That gives out a dangerous message because it is rather anti-democratic.
There must be a vital link between the voter and the candidate. A great deal of research has shown that voters feel very strongly that there should be a link between themselves and the candidate.
There is a second fear and worry that if the names are not permitted to go on to the ballot paper, the Government will be feeding the cynicism which already exists in relation to the political process in this country. There is a sense that we may be being manipulated by the party managers. That undermines the credibility and confidence which the Government should otherwise enjoy.
Even if lists are spread about in polling stations and so on, it is impossible to ensure that every elector across the region has been given the same opportunity to examine the lists. If this amendment were accepted, it is one way in which to ensure that at the point of voting, the people have access to that information. It is a matter of openness, transparency and accountability, all the things which the new parliament is meant to stand for. I hope that it is worth more than the breath with which one speaks those words.
Lord Sempill: The concern which some of my colleagues and I have is in relation to the independent having his name on the ballot paper while the parties are just there as amorphous numbers. There is a strong
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possibility—and I put this slightly tongue-in-cheek—that an individual could be fortunate enough to be born with the name, or could have his name changed by deed poll to, Billy Connolly. I suspect that if he put his name down as an independent, he could well be mistaken for the genuine article and may win a substantial number of votes from people who believe that in casting their first vote, they have done their duty to their party and feel that the second vote can be used more emotionally. They may think, "He is a man I like. I will vote for him".
Therefore, I believe that an independent may have an unnecessary advantage over the party machine. I should appreciate it if the Minister would enlighten me on that point.
Baroness Ramsay of Cartvale: I shall deal first with the point made by the noble Lord and then deal with that made by the noble Baroness, Lady Linklater.
As I tried to make clear, minds are not completely closed on this issue. The working group on electoral arrangements is looking at the question of what are the best solutions as regards the introduction of the order under Clause 11. Everyone wishes to ensure that there is maximum publicity. I agree with what the noble Baroness, Lady Linklater, said. It is extremely important that whatever solution is arrived at—and I do not believe that to put the names on the ballot paper is the answer—we must keep matters as simple and as straightforward as possible for the electorate so that the people can see what is the real choice. At the same time, they must know exactly who is on the party lists. There is agreement on all sides of the Committee about that.
Baroness Carnegy of Lour: If, on the second ballot paper, there are the various parties and Sean Connery, does not the noble Baroness agree that Sean Connery has a big advantage?
Baroness Ramsay of Cartvale: I am not sure what I think about Sean Connery. However, I must repeat that the working group on the electoral arrangements is looking at the whole question of what is the best way to achieve what we all want; that is, that the electors of Scotland can see the choices clearly in front of them. They must know who is on the party lists. When that order is made under Clause 11, we shall have what is considered by the working group to be the best solution. As I said, on that working group there are representatives of all the expert interested organisations plus representatives from the four main political parties in Scotland.
Lord Mackay of Ardbrecknish: We have had an interesting debate and I am grateful to all Members of the Committee who have taken part in it. It has brought together Members on all the Benches opposite the Government, which is quite interesting. My noble friend Lord Sempill made a very good point about the independent candidate. The one name which will be on the ballot paper will be that of the independent. I have read the Registration of Political Parties Bill and there is nothing to prevent an independent changing his name by deed poll and appearing as Sean Connery or whoever

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he may wish to appear as. I do not think he would wish to appear as John Mackay because he would not win many votes that way. However, he would be able to do that and the Registration of Political Parties Bill does not prevent it.
The real point of my noble friend's intervention is that the only names on the ballot paper will be those of the independents. Those standing for the political parties will not be there. The noble Baroness's best argument was that it would be too complicated, difficult and would lead to confusion. My noble friend Lord Onslow was quite right in his intervention. Do the Government believe that the Scottish electorate is not capable of understanding that? If it is capable of understanding the PR system, it will be quite capable of wading through a ballot paper. As the noble Baroness, Lady Linklater, said, there are layouts published by the Electoral Reform Society which are perfectly clear.
As the noble Baroness, Lady Ramsay, will know, in Germany, although not all the 150 or so names are put on the ballot paper, the top clutch of names is put on the ballot paper. As we are talking about only 12 names, that is not at all impossible.
It seems to me that leaving the matter to the working group is not good enough. We could leave a great deal of the first part of the Bill to that group because it deals with the way in which the whole system is to work. I believe that this is sufficiently important to be on the face of the Bill and for that reason, I wish to test the opinion of the Committee.
7.29 p.m.
On Question, Whether the said amendment (No. 38) shall be agreed to?
Their Lordships divided: Contents, 59; Not-Contents, 85.

Division No. 1

CONTENTS

Balfour, E.

Lyell, L.

Beaumont of Whitley, L.

Mackay of Ardbrecknish, L.

Belstead, L.

Mackay of Drumadoon, L.

Berners, B.

Massereene and Ferrard, V.

Blatch, B.

Mersey, V.

Brabazon of Tara, L.

Minto, E.

Burnham, L. [Teller.]

Monson, L.

Carnegy of Lour, B.

Montgomery of Alamein, V.

Carnock, L.

Montrose, D.

Chesham, L.

Mountevans, L.

Chorley, L.

Northesk, E.

Clanwilliam, E.

Onslow, E.

Cope of Berkeley, L.

Palmer, L.

Craig of Radley, L.

Park of Monmouth, B.

Cranborne, V.

Patten, L.

Cross, V.

Pilkington of Oxenford, L.

Darcy de Knayth, B.

Prior, L.

Dixon-Smith, L.

Radnor, E.

Dundonald, E.

Rawlings, B.

Fookes, B.

Rowallan, L.

Harmsworth, L.

Saltoun of Abernethy, Ly.

Hemphill, L.

Sanderson of Bowden, L.

HolmPatrick, L.

Selkirk of Douglas, L.

Kintore, E.

Sempill, L.

Lindsay, E.

Sharples, B.

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Skelmersdale, L.

Strathclyde, L. [Teller.]

Stair, E.

Trefgarne, L.

Vinson, L.

Stodart of Leaston, L.

Waddington, L.

Strange, B.

Wise, L.

NOT-CONTENTS

Amos, B.

Jeger, B.

Archer of Sandwell, L.

Jenkins of Putney, L.

Berkeley, L.

Judd, L.

Blackstone, B.

Kilbracken, L.

Blease, L.

Kirkhill, L.

Borrie, L.

Levy, L.

Brooks of Tremorfa, L.

Lockwood, B.

Bruce of Donington, L.

Lofthouse of Pontefract, L.

Burlison, L.

McIntosh of Haringey, L. [Teller.]

Carew, L.

Merlyn-Rees, L.

Carter, L. [Teller.]

Milner of Leeds, L.

Chandos, V.

Molloy, L.

Clinton-Davis, L.

Monkswell, L.

Davies of Coity, L.

Montague of Oxford, L.

Davies of Oldham, L.

Nicol, B.

Dean of Beswick, L.

Orme, L.

Desai, L.

Pitkeathley, B.

Dixon, L.

Ponsonby of Shulbrede, L.

Donoughue, L.

Prys-Davies, L.

Dormand of Easington, L.

Puttnam, L.

Dubs, L.

Ramsay of Cartvale, B.

Falconer of Thoroton, L.

Randall of St. Budeaux, L.

Rea, L.

Farrington of Ribbleton, B.

Rendell of Babergh, B.

Gallacher, L.

Richard, L. [Lord Privy Seal.]

Gilbert, L.

Scotland of Asthal, B.

Gordon of Strathblane, L.

Sefton or Garston, L.

Gould of Potternewton, B.

Sewel, L.

Graham of Edmonton, L.

Simon, V.

Grantchester, L.

Smith of Gilmorehill, B.

Grenfell, L.

Stoddart of Swindon, L.

Hanworth, V.

Stone of Blackheath, L.

Hardie, L.

Symons of Vernham Dean, B.

Hardinge of Penshurst, L.

Taylor of Gryfe, L.

Hardy of Wath, L.

Thomas of Macclesfield, L.

Haskel, L.

Turner of Camden, B.

Hogg of Cumbernauld, L.

Varley, L.

Hollis of Heigham, B.

Watson of Invergowrie, L.

Howie of Troon, L.

Whitty, L.

Hoyle, L.

Williams of Elvel, L.

Hughes, L.

Williams of Mostyn, L.

Hughes of Woodside, L.

Winston, L.

Islwyn, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendment No. 39 not moved.]
Lord Hoyle: I beg to move that the House be now resumed. In moving this Motion, perhaps I may suggest that the Committee stage begins again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Provincial Repertory Theatres
7.38 p.m.
Viscount Montgomery of Alamein Viscount Montgomery of Alamein rose to ask Her Majesty's Government whether they have any proposals for reviving provincial repertory theatres.
The noble Viscount said: My Lords, I hope we are moving into calmer waters, on which we might be more able to agree on the subject of the plight of provincial repertory theatres.
As I have no right of reply in this debate, perhaps I may say how grateful I am that a number of distinguished Peers concerned with the theatre have put down their names to speak. I shall not refer to them all by name, but I should like to mention the noble Lord, Lord Jenkins of Putney. Later this month he has a significant milestone in a long and varied life and we hope we shall have him long with us in this cause.
Theatre is at the heart of British cultural life. Germany is famous for music, Italy for the visual arts, but Britain is the world centre for drama. The repertory theatre system is at the core of all this and historically has been community-based and a focus for community life. Repertory theatre is essentially building-based as opposed to touring company productions, most of which start in the regional and repertory theatres.
There are many good reasons why we need repertory theatre. I suggest that, foremost, repertory theatres are the cradle for the acting profession. Many of our great actors and actresses learnt their craft in repertory. Perhaps I may name but a few: Donald Sinden, Derek Jacobi, Albert Finney, Ian Richardson and John Gielgud. That is just a number from a huge selection who could be mentioned, not least the noble Lord, Lord Rix, who is with us tonight. The noble Lord subsequently became, among other things, a trustee of the Theatre of Comedy, a position in which I succeeded him some years ago. However, many famous directors, such as Richard Eyre and Trevor Nunn, also started in repertory.
All this is momentarily in crisis due to the year-on-year reduction in funding by the local community, by the regional arts boards and by central government. There is also competition from television and other activities. That has produced pressure to generate income, which means that marketing and administration costs tend to rise and artistic effort has to be curtailed. Moreover, sponsorship is daily getting more difficult and scarce. So there is a dreadful cycle of low salaries, reduced cast sizes and minimum sets, all of which is most unfortunate.
The fact is that symphonies are not created in concert halls, but plays are created in theatres. Indeed, not just actors and directors but playwrights, musicians, dancers, craftsmen and masses of technicians are all involved in this important process. The building-based reps are factories and retail outlets, all combined together in one great effort. It is a very unusual situation. There is also a mass of local people involved. Most front-of-house personnel work on a voluntary basis. The support and friends' organisations arrange open days, garden parties, fund-raising activities and events which are attended by celebrities. Those activities used to happen at the Redgrave Theatre of which, during the decade of the 1980s, I was the honorary president and which, sadly, has gone dark since that time like many other theatres.
Perhaps I may give another example of local support. During the past week or so I have received a deluge of correspondence from the Watermill Theatre near
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Newbury which demonstrates massive local support for a most worthy cause. All that seems to me to be of vital importance to our national life. If all that local activity, built up so meticulously over a hundred years is to survive, it must receive national support. If theatres continue to close at the present rate—and they are going dark in a steady stream—they may never re-open. It will be a permanent loss to a vital part of our national heritage.
This is not a catastrophe waiting to happen; indeed, it is a tragedy which is unfolding week by week and month by month. I urge the Government to act now before it is too late.
7.43 p.m.
Lord Jenkins of Putney: My Lords, it is very important that this debate has been initiated from the Opposition Benches. In paying tribute to the noble Viscount, Lord Montgomery, I do so not in any formal way but with sincere respect and appreciation of the strong realisation that he has that there exists in the theatre what I like to call a "complementary economy"—that is to say, not entirely mixed but working together and depending upon each other. It has long been my conviction that this is the way as far as concerns the theatre and it may also be the way as regards other economic areas. I am, therefore, very pleased to see my successor as chairman of the Theatres Advisory Council, the noble Lord, Lord Birkett, with us this evening. That council is an example of a body which covers the whole area of the theatre, both commercial and supported. It is an organisation which I believe to be valuable and one of which I now have the honour to be president.
In the four minutes at my disposal, and having thanked the noble Viscount for introducing the debate, I should like to stress that the emphasis here is on regional theatre. I shall concentrate my remarks on the absolutely vital importance of state support for regional theatre. Regional repertory theatre depends upon local government and national government money. If it does not receive that reasonable degree of support, it cannot survive. The record shows that such support has been declining, and there is already great difficulty in that respect with one or two valuable theatres being forced to go dark, while others are in peril. Therefore, we are in a position tonight where we must urge the Government to take positive action if we are to prevent what might be something in the nature of a disaster to this most valuable centre of British entertainment provision.
These regional theatres can act as a local focus to a community, as many noble Lords will know. They serve their localities, entertain visitors and can also act as a means of expressing regional and local identities. They are often a key educational resource. They can give children their first taste of live performance through theatre-in-education programmes, now severely curtailed by financial cuts, and they can help educate young people over a wide range of issues.
The subsidised regional repertory sector supports local economies, provides direct employment and helps in trade and local industries ranging from building

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contractors and printers to tourism. All are involved and helped by local theatre. It is vital to recognise and acknowledge the links which have been established between the subsidised and the commercial theatre sectors. As the noble Viscount said, this sector has been the training ground for a whole host of our theatrical stars who have then proceeded on to the commercial theatre as well as to films and television. In addition to the names mentioned by the noble Viscount, I should like to add just a few more; namely, Dame Judi Dench, Anthony Sher, Nigel Hawthorne and Diana Rigg. Indeed, dozens more could come to mind.
I should like to conclude by using a short quote from Sir Cameron Mackintosh, one of this country's leading commercial theatre producers and someone who learned his craft in the subsidised repertory sector. He said:
"The reason that British theatre is the envy of the world—both artistically and financially—is that public money was invested in revitalising regional theatre from the 1950s onwards … most UK theatres outside the West End were built, saved or funded by public money."
That has got to continue and be increased; indeed, if it does not, we shall have a disaster. However, if we take the right course the future is assured.
7.48 p.m.
Lord Beaumont of Whitley: My Lords, what I have to say in the very short contribution to which I am limited largely comes from the experience of Jill Freud (the wife of Sir Clement Freud, who was one of my colleagues in another place), who has run the Southwold summer repertory theatre for the past 15 years and has done the same at Aldeburgh for the past three or four years. Last night Mr. Mark Fisher made a speech there celebrating those 15 years.
Since the war Britain has built up the best regional theatre in the world, which is now seriously threatened by cuts, as previous speakers have said. This success has been possible because subsidy has allowed the producing companies to work with a high standard of actors, sets, costumes and good technical back-up and still sell tickets at a price that the public can afford.
In London the theatregoer has a large number of theatres from which to choose and he shops around for what appeals to him. With repertory, a town has one theatre with a variety of plays on a take it or leave it basis. The best reps build up a solid habit of theatre-going within the community. From the artistic director this requires a constant awareness of what his particular audience will enjoy. A new artistic director, taking up his appointment, may easily antagonise the local people by being too adventurous too soon, as happened in Salisbury with Deborah Paige and in Ipswich with Andrew Manley. Both are highly thought of, but neither took the time to bring their audiences with them. On the other hand, too many subsidised companies with a previously loyal audience have been given grants dependent upon their presenting work the Arts Council wishes to promote. One understands the principle, but audiences are easily lost and do not always come back.
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The overall aim of grant giving bodies, whether local or national, should be to enable people to see the plays, shows, musicals, operas etcetera that they want to see. The prime objective should not be to promote innovative, "meaningful" or worthy theatre, although that can be part of it. In essence, it is patronising to say that to the public, "This is a play you should see; this is music we think you should learn to like". People will return to the theatre if they have had a good time there, and their tastes will develop and their judgment improve without any help from high-minded officials. No one reads Enid Blyton all their lives. Let people choose what they see but make sure that whatever is produced is of a good standard and affordable.
The financial help that all theatres need can come from several sources; commercial sponsorship backed by the Government's Pairing Scheme is a healthy compromise. When the Arts Council is involved there should be some element of subsidy given as a reward for having increased the percentage of seats sold. Funds should not be used solely to compensate a theatre for a half-empty house with a politically correct play. Part of the council's objective should be to fund work that will appeal—even sell out—and thereby ensure that everyone can afford a ticket.
The Minister should keep it in mind that a healthy theatre playing to good houses not only pays 60 per cent. of its way, but brings benefits to the whole locality—shops, restaurants, hotels and boarding houses, printers and other trades. Subsidiary jobs within the theatre provide full and part-time employment within the town. For example the Theatregoers Club of Great Britain sends six coachloads holding 53 ticket holders to the Southwold theatre each summer. They all shop and have a meal in the town. The local restaurants now advertise pre-theatre suppers and the Swan Hotel sends out the season's details on its mailing list in January.
The Government must see that it is the really successful good theatres which have a following and are supported. If they achieve that, good and meaningful theatre will follow.
7.53 p.m.
Lord Rix: My Lords, I believe I can claim to be the only Member of your Lordships' House who has performed in well over 100 plays in weekly rep for nigh on three years; lost his trousers 12,000 times in 12 plays over 27 years as an actor-manager at the Whitehall and Garrick Theatres and served as chairman of the drama panel of the Arts Council for nearly eight years before resigning at the Arts Council's own cuts in drama subsidies—subsidies which have struggled to maintain our regional theatre.
When I was nobbut a lad in Yorkshire, weekly rep was the norm in most towns and cities. A few such as Manchester, Birmingham and Liverpool were rather grander with two- and three-weekly rep. But, in spite of only five days to rehearse and study, everyone concerned gained valuable experience enabling them to go on to bigger and better things, as we have already heard from the noble Viscount, Lord Montgomery, and the noble Lord, Lord Jenkins of Putney.

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With the advent of television those so-called commercial reps began to disappear and subsidised regional reps came into being—many operating in equally new, purpose built theatres—but now presenting plays every three or four weeks with a resident company.
Alas, although there are approximately 69 producing regional theatres, cuts in grants force the majority to produce smaller cast plays and the idea of a resident company has long gone out of the window. Indeed, the Wyndham Report, published tomorrow by the Society of London Theatre, emphasises this lack of investment and reminds us that,
"Regional theatre is the birthplace of most new work and the training ground for our industry."
So, without repertory, how can young theatre professionals gain experience before being thrown into the all-consuming maw of television? I consulted three knowledgeable theatre gurus: Ian Brown, the professor of drama at Queen Margaret College in Edinburgh, the oldest and largest drama conservatoire in Scotland who was, at one time, the drama director at the Arts Council when I was the chairman there.
Then comes Peter James, another principal of a distinguished drama college—LAMDA, the London Academy of Music & Dramatic Art—and the former artistic director of the Lyric Theatre, Hammersmith, and finally my son Jonathan who is a writer and a lecturer on theatre. Their suggestions might stir up some interest in the outer reaches of officialdom, bringing forth fresh ideas for funding their development. Ian Brown takes advantage of the debate today on the Scottish system of four-year honours degrees by offering a final year in which a significant part requires students to gain experience by forming and performing in an acting company, presenting work, mainly on tour, but sometimes in a short resident season elsewhere in Scotland.
Peter James also favours tours to small arts centres and rooms that are not formal, purpose-built theatres—such tours to be undertaken by so-called "fringe groups", noting that,
"The Fringe is a post-war phenomenon that grew almost simultaneously with the Rep's decline and the range of work is admirably wide—vital to the maturing of young writers, designers and performers. Indeed, so important is Fringe theatre that LAMDA is including a course for its actors and technicians, on the business and budgetary matters of theatre, so when they leave the academy they will he capable of starting up and successfully running a small Fringe company".
My son Jonathan, too, tackles the problem of highly populated urban areas, suggesting that we should learn from the time when theatre was at its most popular, when it was primarily a varied and lengthy entertainment which audiences could join at any time. A night at the theatre could include short plays, improvisations, singing, dancing, video, stand-up comedy, acrobatics, satirical sketches, local crimes and political shenanigans created afresh each evening, thus allowing young writers, actors, singers, comics and all those other practitioners a chance to try, to fail, to learn, to produce innovative work. It will create new
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audiences, new ways of audiences interacting with performers and will give theatre the new direction it needs.
Well, there you have it—three ideas which are all complementary and worthy, perhaps, of a modicum of the £290 million promised today for new companies, new work, new venues and new audiences, thus ensuring that the one profession in which we are world leaders will continue to recruit the artists it deserves. Let the Government heed Matthew Arnold,
"The theatre is irresistible; organise the theatre!",
but don't let the Arts Council make a mess of it.
7.57 p.m.
Lord Trefgarne: My Lords, I too wish to thank my noble friend Lord Montgomery of Alamein for raising this important matter. At this point I should declare two interests. First, I am a governor of the Guildford School of Acting, near where I live, and, secondly, my son and my daughter-in-law are both in the acting profession.
I want to start by referring to the sad plight of the Greenwich Theatre which was forced to close in March after its grant was slashed by the London Arts Board, which I understand is a subsidiary—if that is the right word—of the Arts Council. The situation faced by the Greenwich Theatre is not an isolated one. Many small regional theatres are worried about their future. Of course, I understand the distinction between a theatre such as the Greenwich Theatre and the true repertory to which the noble Lord, Lord Rix, referred. There is a difference there that I recognise. The true repertory theatre is a rather rare phenomenon these days, sadly so in the light of the incredible experience it has provided for actors in the past and for the profession taken as a whole.
It is ironic that the Greenwich Theatre has suffered in the way that it has. Before the election, noble Lords opposite, and their right honourable colleagues in another place, wrote in their manifesto:
"We consistently undervalue the role of the arts and culture in helping to create a civic society—from amateur theatre to our art galleries".
Those are encouraging words. I hope they will he translated into action before too long.
The Greenwich Theatre had a very wide appeal. A large take-up on concessionary tickets is generally accepted as a good indicator of the diversity of an audience's economic profile. The theatre sold many more of those kinds of tickets than theatres of a similar kind in the district. Given that background, it was all the more surprising that the London Arts Board cut the grant to the Greenwich Theatre. I can only think that that unfortunate decision was based on some other motive, possibly along the lines referred to by the noble Lord, Lord Beaumont of Whitley.
The London Arts Board, presiding over a number of theatres in terms of grant, has apparently lost track of £650,000 in its current budget. Let us hope that when it finds the missing money, which was referred to recently in publicity, it will be able to reallocate it to the Greenwich Theatre. I very much hope so. I hope that the noble Lord will make inquiries into the matter. It

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was rather disturbing and worrying when it came to light recently. I hope that the London Arts Board will find an opportunity, under its new chairman, Trevor Phillips, to look into the matter again.
The Greenwich Theatre was the only repertory-style theatre in the south-east of England. I am told that it was the only one anywhere between London and Calais. Calais is not in Britain, and not in the compass of the London Arts Board. But the fact is that there are very few theatres of that kind in the south-east and this one should not have been allowed to sink.
Of course, the crisis facing the Greenwich is not unique. In my own town, Guildford, the Yvonne Arnaud Theatre, which is well managed and has offered many excellent productions recently, is also facing a funding crisis. It, too, has experienced a cut in funding not dissimilar to that at Greenwich.
I fully appreciate that it is not possible wholly to support theatres by grants alone. But perhaps I may make a final constructive point. One way forward would be to exempt the cost of live theatre tickets from VAT. Such a concession would do more than anything else to help the arts nationwide and increase their viability at a stroke. I hope that the Government will give serious consideration to that proposal. I very much look forward to hearing the Minister's reply.
8.2 p.m.
Lord Chorley: My Lords, I, too, thank the noble Viscount for initiating this short debate. In view of the number of speakers—including, I hope, the noble Lord, Lord Puttnam, who is to speak in the gap—I suspect that I shall have time to make only one main point, which can be easily stated. It is that healthy and vibrant regional repertory theatres are of considerable importance—some would say vital importance—to the work of our great national theatres, and, I suspect, also to what is usually known as West End theatre, the so-called commercial sector.
I shall not, therefore, go over the ground that has already been well covered by the noble Viscount and other speakers, who have amply demonstrated the funding problems which beset our regional theatres. "Crisis" would not be too strong a word.
My appreciation of the importance of our regional repertory theatres arises from the period from the early 1980s when I was a director of the Royal National Theatre, and subsequently a trustee of the National Theatre Foundation. One came to realise how important regional repertory theatre was in feeding the great national theatres, and the West End. Regional rep fed us with productions, with new writing and scripts, gave new writers their first chance, and provided what might be called "on-the-job training" for young actors destined to go on to higher things. A number of noble Lords have referred to that. Similar points can be made as regards young directors and producers. The noble Viscount referred to Sir Richard Eyre, who started in provincial rep and is tireless in drawing attention to its importance. It is provincial rep that is our great, and perhaps unique, nursery school for talent.
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I could go on in this vein at some length. However, time is short, and I shall therefore confine myself to one other example; namely, the importance of provincial rep in bringing on, and training in the craft skills: the costume makers, the set designers and builders, the lighting people—the back-room boys who are an essential component in making a play a great experience. The effect of the budget cuts is to economise on sets in the extreme, that leads to bare stages and modern dress. Sometimes that can be effective. I well remember Sir Peter Hall's brilliant production of "Coriolanus", which for budget reasons had to be done in modern dress. As a result it was a much more immediate production. Nevertheless, relentless budget pressures mean that the craft side of our theatre is dying.
There is another side to all this; namely, the effect of budget cuts on the national theatres which feeds back to the regions. Last year, for example, the Royal National Theatre could afford to play only 60 per cent. of repertory compared with five years ago; nor can the National afford to take the same risks with new productions as it used to. It simply has to play safe as a result of budget constraints. That has affected the amount of work taken from regional rep.
Britain unquestionably has by far the best theatre in the world. It has depended crucially on the symbiotic relationship between the three sectors. It has depended also on an imaginatively devised, adequately funded, arm's length system. We are in danger of killing it by starvation. One expects a rather less philistine attitude than is so far evident from the party that devised the system when it was in power in the late 1940s.
The noble Lord the Minister is an honourable man, and a cultivated man. His right honourable friend the Secretary of State is equally honourable and cultivated—we are lucky to have him. I do not wish to seem a Mark Antony making his funeral oration, because undoubtedly the Secretary of State is no Brutus; he is indeed an honourable man. I do not say that in any sarcastic sense; nor do I think anybody could accuse the noble Lord, Lord McIntosh, of being, in Shakespeare's words, a lean and—
Lord Birkett: Hungry?
Lord Chorley: A lean and hungry man, my Lords. I suspect that the devil is in the Treasury.
8.7 p.m.
Lord Birkett: My Lords, I am relieved to know that the noble Lord is not Brutus after all. Thanks to the noble Viscount, we are debating provincial repertory theatres. But my remarks apply to music and dance, and indeed to all the performing arts. We hear much about education in the arts—by which I mean not only schools, colleges and universities, but all the specialised academies of music, film, dance and drama. Indeed, I am fortunate in being chairman of the governors of a very special school for the performing arts, the BRIT School in Croydon.
We also hear much of the great national showcases—the pinnacles of achievement—the Royal National Theatre; the Royal Shakespeare Company; perhaps

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I may add nowadays the Globe; the Royal Ballet; the English National Ballet; the Royal Opera; the English National Opera; and all the great provincial companies, not to mention the wonderful orchestras of the land.
But between education and those pinnacles of excellence there must be a great hinterland of opportunity. If opportunity to practise their art professionally, within modest circumstances, opportunity to grow, to improve and refine their art, is not provided for our young artists, then the arts themselves will wilt and perish.
Ministers in governments of all complexions are fond of paying tribute to the enormous artistic riches and the brilliant individual talents that are to be found in this country. But, unless governments pay serious and timely heed to this great middle ground of repertory work in all the arts, a nationwide infrastructure of opportunity, there will be no more ministerial speeches of congratulation because this country will no longer be pre-eminent in the performing arts. The speeches may not be missed, but the pre-eminence most surely will. The nation will be the poorer for it.
8.10 p.m.
Lord Puttnam: My Lords, I thank noble Lords very much for allowing me to speak briefly in the gap. As some may know, I was given the opportunity by the Government this week to contribute somewhat towards discovering, supporting and helping talent in this country. I felt that this debate, thanks to the noble Viscount, was an opportunity to touch on the subject.
What I see as needed in order to bring forth and sustain repertory in this country is something of a new paradigm. There is no point in pretending that things can go on exactly as they have in the past. I spend much of my time at the moment in the North East, I came back last night from Sunderland. What has evolved in the North East over the past half-dozen years is interesting. I would describe it as an instinct for partnership. Brand new forms of partnership are being created, libraries are being reconsidered, museums are being rethought as part of the community. These partnerships tend to be formed between the education sectors, further and higher education colleges, local authorities and the private sector. It is in that area that the future for regional and repertory theatre must lie.
Frankly, we are already benefiting enormously from the enthusiastic co-operation that is arising, but it is arising only patchily and in various parts of the country. I urge the Minister to look at good practice where it occurs around the country, look at where local authorities are showing an interest, look at where universities are becoming involved and interested in the opportunities for theatre in their localities and see what can become of it.
It is clear that the resources are available, the talent is available. The noble Lord, Lord Birkett, rightly pointed out that we desperately need the opportunity for talent to display itself and gain the confidence to move on to bigger and, in many cases, better things. I am quite convinced that around the country the opportunity for partnership is bringing together differing groups who
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know that by using the theatre as an essential component of the community they can develop something of which that community will be proud. Eventually, talented people will make us as a country very proud of it.
8.12 p.m.
The Viscount of Falkland: My Lords, I too thank the noble Viscount for the chance to speak about repertory theatre. I am glad that in the gap we had an interesting and instructive intervention from the noble Lord, Lord Puttnam. Perhaps I may pick up one point that he made, that it is unrealistic not to expect things to change. I am passionate about performance, whether it he in theatre, dance or film. In my younger years I worked as an agent and I have much experience of repertory from an agent's point of view. I must have travelled the length and breadth of the country, rather like a trainer of race horses, examining how his string was getting along.
To an agent, the repertory system in those days, 30 or 40 years ago, was that if a young student at a drama school was lucky enough to be taken under an agent's wing, the agent would first try to get him into a repertory company. It was all very well to come from a drama school with a good reputation, sometimes with prizes, but students learnt in repertory how to develop a range and to prove their stamina. That is very important in acting, and we have here today the noble Lord, Lord Rix, who is a living testament to stamina and good health. That is much needed in the theatre. I do not say that nowadays young people who are not able to get into the fewer repertory companies do not need the qualities of strength and stamina. I am quite sure they do. Those qualities are needed in the fringe theatre which has to an extent taken up some of the students who, 30 years ago, would have gone into repertory.
What worries me is the effect of the decline of repertory companies. If one is realistic, the decline will continue in the same way as music hall unfortunately ultimately came to an end with the disastrous effect that has had on British comedy. I hope that the disappearance of the repertory company will not have the same effect on the legitimate theatre.
I do not know what proposals the Government have, but it seems to me that the training of young talent is one of the most important aspects. As has been mentioned, the drama schools cater for the need in Wales, and LAMDA has been mentioned where the course includes theatre management and other aspects which would have been rare in the old days. Multi-talented graduates are coming out of the drama schools, but whether they will go on to become brilliant performers such as Prunella Scales I do not know. The other night in a fascinating interview on television, she gave great credit to repertory when she was complimented on her great range. She said that without repertory and playing a number of exacting parts over a year, she would not have had the range which has been one of the characteristics of her fine career.
Another point which bothers me is that when and if the repertory theatre almost disappears. I hope that where it is still relatively strong, we shall find a way of sustaining it. I hope that if the repertory theatre goes,

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the great repertoire of British drama which is suitable for repertory will not also disappear. I take a rather sceptical view of radio, but it was one of the great ways of giving young people the opportunity of hearing our drama and encouraging them to go to the theatre when it was available. Scores of plays were regularly broadcast by repertory companies and it would be terrifying if in our great literary culture, they were to disappear. They represent a big link in our great literary tradition which has grown into broadcasting and theatre, and for which we are nationally known.
I end on that note. There is a great need to train young people in a way that makes up not only for the disappearance of repertory companies but also the content of British theatre, which was ably and on low budgets displayed by repertory companies the length and breadth of the country. What will the Government do? Perhaps the Minister will have something to say about it. The Government have a useful role in ensuring that the great repertoire does not disappear.
8.17 p.m.
Baroness Rawlings: My Lords, I should like to thank my noble friend Lord Montgomery for introducing this debate with impeccable timing, on the very day of the Comprehensive Spending Review announcement.
The Treasury's allocation to the DCMS, representing an extra £290 million over the next three years, is disappointing. As Chris Smith said,
"Without culture, there can ultimately be no society and no sense of shared identity or worth. For a government elected primarily to try to re-establish that sense of society that we had so painfully lost, this is a very important realisation".
Yet that very same government do not live up to this extraordinary realisation. It does not bode well for the DCMS clients. We urge the Minister to give the House assurances that within those constraints, the provincial repertory theatres are going to be given the utmost priority, not just vague phrases like
"building new audiences for the performing arts",
to quote from the review.
I wish to congratulate the noble Lord, Lord Puttnam, on becoming the first chairman of NESTA. With its initial endowment of £200 million I am sure he will fulfil the role admirably. He was most supportive of NESTA during the lottery Bill and, as a past member of the Arts Council, responsible for distributing funds, he will surely do it well. Knowing his interest in acting, I hope he will not forget the regional theatres, especially as the Government have announced extra funding for the sciences.
I shall not detain the House except to make two points. First, as many noble Lords highlighted tonight, the theatre funding crisis is only partly a problem of revenue funding. Many theatres are in desperate need of refurbishing their buildings, but they are unlikely to benefit from the National Lottery as a consequence of the recently introduced changes.
The Conservatives set up the lottery in recognition of the long-standing neglect of the fabric of our cultural institutions, including theatres. The Theatre Trust
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believes that 10 years of substantial investment would have put right the disrepair of our theatrical heritage. To date only 10 per cent. of the most important theatre buildings in Britain have benefited fully from the lottery. Only three years after its inception this Government diverted lottery funds to new causes and away from the buildings. Theatre people who have worked hard to develop schemes and lottery applications will therefore be bitterly disappointed. We opposed many aspects of the National Lottery Bill and shall continue to expose its pernicious impact on existing good causes.
Secondly, we urge the Government to look properly at the Italian funding arrangements for lyric theatres—adaptable to dramatic theatres. They are neither wholescale privatisation nor mere partnership. I know it is unusual to give an Italian example. However, the Italian Government are seeking to reduce public expenditure by encouraging the private sector to fund theatres up to 40 per cent. of their budget. In order to do so, it allows individuals and businesses to deduct from their tax liability 30 per cent. of contributions of over £300,000 made to a theatre and given repeatedly for three years.
The founders are entitled to AGM votes. If their contribution amounts to 12 per cent. of the grant-in-aid, they are entitled to a place on the board. The board approves the artistic programme, as proposed by the Sovraintendente, who appoints the music and artistic directors and prepares them with the artistic programme. The balance between public and private as well as the management structure appears to shield artistic policy from undue interference on the part of the founders.
Those arrangements would seem to be an imaginative way to secure funding for cultural institutions by creating a private-public partnership—exactly as the noble Lord, Lord Puttnam, said. I trust that he, and it, can be a source of inspiration for the much needed overhaul of arts funding.
8.22 p.m.
Lord McIntosh of Haringey: My Lords, we are all grateful to the noble Viscount, Lord Montgomery of Alamein, for introducing this debate on an extremely serious subject and for attracting such a remarkable range of well-informed speakers this evening. It is a tribute to their professional training that they have been able to do it so effectively within the short amount of time available for speeches.
I am only disappointed in the noble Lord, Lord Rix. I thought that, after 10,000 examples, he might have given us a tip or two about how to find one's trousers in a pool around one's shoes. Is it by loosening the braces? Is it by special arrangement connecting the braces and the trousers?
Lord Rix: My Lords, it is Velcro.
Lord McIntosh of Haringey: My Lords, at last we have discovered the secret! I am enormously grateful to the noble Lord.

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The noble Lord, Lord Chorley, accused me of not having a lean and hungry look. Perhaps it is because I am hungry that I am not lean. However, I shall do my best, whatever my girth, to satisfy noble Lords.
The noble Baroness, Lady Rawlings, referred to the timing. But, to adapt Dickens, this is the best of timing and the worst of timing for this debate. It is the best of timing in the sense that this afternoon we had the Comprehensive Spending Review, and I shall say a word about that in a moment. But the Comprehensive Spending Review has so far only been announced by the Treasury and over the next two weeks or so we will have a spate of announcements by different spending departments, including the Department of Culture, Media and Sport, in relation to the detail of how they will use the money made available. That will not be over just one year, but over three years. The effect of that is that I cannot say anything precise about what the DCMS spending programme will be, even for the theatre in general and still less for the repertory theatre—indeed, not even for the Arts Council, which covers a lot more than the theatre.
Apart from the noble Baroness, Lady Rawlings, let us be pleased with the result of the Comprehensive Spending Review this afternoon. As the Chancellor's Statement said, £290 million extra will be invested in museums, the arts and sport over the next three years. That will not just repair the damage of the last government's cuts, but will be a real increase of 5.5 per cent., making possible improved access to museums and galleries. The Chancellor picked that out because that has always been at the forefront of the department's objectives. Yet the noble Baroness, Lady Rawlings, called it disappointing. If the noble Baroness compares a real increase of 5.5 per cent. per annum over the next three years with her own government's record, she will not be quite so ready with that description.
The funding from the Treasury—I now speak wearing my DCMS and not my Treasury hat—will be used to deliver the new department's principal objectives of promotion of access for the many and not just the few and the pursuit of excellence and innovation. The noble Lord, Lord Beaumont, was afraid of politically correct theatre—what he called "innovative, meaningful or worthy" in somewhat disparaging terms. I do not believe that innovation should be equated with worthy. Excellence and innovation are perfectly proper targets and need not be politically correct; but excellence requires continuing innovation in order to thrive, though I accept that it must be on a sound basis.
The nurturing of educational opportunities, to which my noble friend Lord Jenkins properly referred, and the fostering of the creative industries are the economic base out of which a substantial amount of artistic effort derives.
I cannot give even the broadest indications of how the extra funding will be used. But it is important to stress that there will be three-year funding agreements; in other words, the allocation to the Arts Council, whatever it may be, will be for a three-year rather than a one-year period. That will make a huge difference when, in the autumn, the Arts Council comes to state its allocations
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to individual institutions, individual theatres or orchestras and so forth. It will have the security of knowing what will be available for three years rather than for one.
That is the good side and the bad side of what we know about the Government's intentions. But the important thing is that the Chancellor, in his Statement this afternoon, recognised the importance of the arts and our cultural life. They have been a political afterthought and have never been referred to in a public expenditure statement as specifically as they were this afternoon.
The comprehensive spending review placed art and culture at the heart of government. They have done so not only for themselves, but also because of the contribution the arts make to all the other priorities of the Government: that is, our priority for rebuilding communities; our priority for restoring community and personal life; our priority for education; our priority for the economic benefits from the creative industries in our society—an enormously important part of our gross domestic product and a major attraction for inward investment.
That is all very positive. The noble Lord, Lord Chorley, says that the devil is in the Treasury. I hope that he will recognise that the Treasury has done something to exorcise that devil in the course of today and that the Department of Culture, Media and Sport will do more in the coming weeks.
The Government recognise the importance of British regional theatre and, within that general category, the particular importance of repertory theatre. It is one of the country's great artistic strengths. The examples that have been given of actors and directors and craft skills coming from the regional theatres and repertory theatres is evidence enough of that, as the noble Lord, Lord Chorley, has said.
I do not need to tell the House that it is the Arts Council and its regional arts boards that take the decisions on individual funding. Ministers do not interfere with those decisions. I have been challenged to comment on some individual funding decisions that have already been taken. The noble Lord, Lord Trefgarne, referred to the Greenwich Theatre. The Greenwich theatre has had £500,000 in public money from various sources since 1996. It has ended up with a deficit of £200,000 and audience figures which have fallen from 40 per cent. in 1996 to 35 per cent. in the first half of this year. It was denied funds by the London Boroughs Grant Unit before the London Arts Board decided to withdraw its funding. Under those circumstances, it would be difficult to make a case for the £400,000 a year which would now be necessary to revive it and to pay off its debts.
The noble Viscount, Lord Montgomery, referred to the Watermill Theatre. That has had standstill funding. He knows that the good management of the theatre has resulted in a £50,000 accumulated surplus rather than a deficit, in considerable contrast to the Greenwich Theatre.

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I do not know the answer to the question of the noble Lord, Lord Trefgarne, about a deficit in the London Arts Board figures. I shall find out about that and write to him. My officials do not know about it either, so we are somewhat taken aback.
Although we are not responsible for their decisions, the Arts Council and the regional arts boards will spend over £50 million of Government grant in aid on drama in England. That is a quarter of the Government's total grant in aid to the council. It will include at least £20 million on regional theatre activity in support of more than 50 regional theatres. I have seen from the excellent briefing of the National Campaign for the Arts how many theatres are in desperate situations. We must not think of Arts Council subsidies, central government subsidies, as being the centre of their funding. They have their own box office takings which, in a healthy theatre, could be 60 per cent. of the total requirement, as the noble Lord, Lord Beaumont, has said. They can generate other income through local authorities and local businesses. I appreciate the difficulties in individual theatres but the amount of contribution is not insignificant.
Similarly, the lottery has made a major contribution. The noble Baroness, Lady Rawlings, somewhat surprised me by suggesting that we should be going back to funding buildings and not people. All of the pressure that I have encountered from the arts world has been to fund people as well as buildings. Some £150 million has gone to capital expenditure in theatres. The Arts for Everyone programme set up by the previous government amounted to less than £8 million. The balance that we propose between buildings and people is not wrong. I would be sorry to go back to the more rigid and restricted provisions of the previous Arts Council lottery expenditure rules.
Let me now say something about what the Government plan to do. That is the basis of the noble Viscount's Question. Above all, we are committed to increasing access to the arts. Public funding carries with it the right to better public access. Without going into details, we will be using some of the extra funding to build on the new audiences initiative to extend access to the arts, both geographically and in terms of new target audiences. The new audiences fund was established at the time of the Budget in March. The funds are targeted to help arts organisations extend their audiences and to bring new young people to the arts. We agree with the noble Viscount, Lord Falkland, about the importance of training young talent and encouraging young people in particular to broaden their experience of different art forms.
Among the range of projects which are not part of this debate, the Sheffield Theatre project will, over the next two years have £300,000 of new audience funding. Sheffield is very suitable for this because it has a very high proportion of 16 to 25 year-olds, including approximately 50,000 students, and three regional theatres—the Lyceum, the Crucible and Crucible Studio. It will carry out a whole range of projects on ticket pricing discount schemes and will produce a publishable study at the end of this exercise. It will
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experiment with pay-what-you-can nights in different configurations, one-price productions at different price levels, matinée performances for school groups, bring-a-friend schemes, variations in performance days, times and types, workshop opportunities and transport to and from the theatres. It sounds a small amount of money but if it can be made to work and encourage theatres in other parts of the country it will be very valuable.
As I said at the beginning, this is the best of timing and the worst of timing. If the question were being asked after 24th July I would be able to give considerably more detail. I hope noble Lords who have taken part in the debate will understand the Government's commitment to—indeed the Government's passion for—the theatre and regional theatre.

Scotland Bill
8.38 p.m.
House again in Committee on Clause 4.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 40):
Page 3, line 12, at end insert—
("( ) The list shall appear on each ballot paper.
( ) The order of names on the list shall be determined by the party, except that the regional returning officer shall rotate the list such that the name of each candidate of the party appears at the top of the list on approximately the same number of ballot papers issued at the election as every other candidate of the party.").
The noble Lord said: In moving Amendment No. 40 I shall speak also to grouped amendments. This debate is about the names on the ballot paper. I shall be praying in aid the noble Baroness, Lady Ramsay of Cartvale. I have notes of her comments in a recent debate.
Let me take the Committee back a stage to the additional member system. The voter will be voting on a second ballot paper which will be entirely on a party basis—except for those lucky independents who will be able to put their names on the ballot paper—the Government having resisted my amendment that we should have names on the ballot paper for the additional member system. This amendment takes us to a position where we will have to have names on the ballot paper, thereby giving the electors the opportunity to choose the candidate they wish to represent them. On an open list system, instead of voting for a party on the second ballot paper, one will be confronted with the names of the 12 candidates of the party. In order to vote for the party one will place the "X" before the name most approved of. For example, at the risk of further embarrassment to the noble Lord, Lord Sewel, if it is the list he is on, no doubt your Lordships, if you live in his area, will flock to vote for the Labour Party. But, more than that, you will not be voting for the Labour Party; you will be voting for the noble Lord, Lord Sewel. The great strength of this is that it allows people to vote outside their party allegiance for someone they consider to be of merit and who they think ought to be in the Scottish parliament even if that person is not in their party.
Under the normal first-past-the-post system, I suspect that most people will do as they always do and vote for the party of their choice regardless of who the candidate is, even if they do so with closed eyes in some cases. But in the second vote they will have the ability to move their vote around. That does not mean simply moving it around between parties. It means deciding, "I would prefer to give my second vote to the Liberal Democrat Party because the noble Viscount, Lord Thurso, is top of the list for that party" or "Perhaps I will not give my vote to the Liberal Democrat Party because I do not wish to give it to the noble Viscount, Lord Thurso." I think that people should be entitled to decide who in their party's list they wish to vote for. That is proper democracy. It is giving the people choice.
Earlier today, when I wanted to reduce the number of votes from two to one, the noble Baroness, Lady Ramsay, told me that I was absolutely wrong because the Government wanted to give people choice. She is still in favour of that. The choice people will have in the second ballot is Labour Party, Liberal Democrat Party, Scottish National Party, Conservative Party or, if there is an independent, the independent. That is the choice they will have. If they vote for the Labour Party they will get whoever is number one on the Labour Party's list. If they vote for the Tory party they will get whoever is number one. The same is true for the Liberal Democrats and the Scottish National Party. They will have no choice at all. It will be Hobson's choice.
So the noble Baroness's words, which she used so eloquently against me in the first debate, come back to haunt her. I see now that the noble Lord, Lord Sewel, has been put up to defend this one. Well, that shows a certain amount of cunning on behalf of the Government because the noble Baroness would have had to eat her own words. The noble Lord, Lord Sewel, does not have to bother about digesting the noble Baroness's words. However, the noble Baroness said on behalf of the Government that they were interested in choice. Yet the closed list system gives the electorate no choice at all. If they vote for the Labour Party, they get the list determined in Walworth Road by Peter Mandelson and Tony Blair. That is the blunt fact of the matter. That is the list they get. They do not get any choice at all.
I do not think that is right. If we are to go down the road of the additional member system I think the electorate should have some say about who their additional member is going to be. Your Lordships know that I do not want to go down this road. I am a first-past-the-post man. Even when it produces results that my party does not like in one election, I still think that it is the simplest and best system. It is not the most difficult thing in the world. All that happens is that after the ballot papers are collected the returning officer counts up the votes for each candidate. All the Labour candidates are added together and that is the total Labour vote. The same is true for the Liberal Democrats, the Conservatives and the Scottish Nationalists. The d'Hondt principle is then applied. Let us assume, for a moment, that the Labour Party gets three members in the additional member system. The returning officer then goes to the list and looks at the three the electorate have chosen—not the party but
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the electorate. He says, "Who is the first choice of the people who voted Labour? It is so-and-so." That is the first elected. He then says who is the second choice and the third choice.
That is called the open list and I believe it is well called. It is the most open system. It does not allow the decisions about the list to be left to the party and the patronage of the party. We have all seen the patronage of the governing party and how it has operated. Members of Parliament down the corridor who have represented Labour constituencies successfully for years have been put off the list because they are not considered to be sound people, new Labour or whatever it may be. I have to say that those who heard Mr. Dennis Canavan's speech last night will be very puzzled as to why he is not a fit person to represent the Labour Party in the Scottish parliament.
It is important that the electorate has some choice. The noble Baroness made much of that. It is now up to the Government to honour her words and explain why they are so determined to give the electorate absolutely no choice at all. I beg to move.
8.45 p.m.
Lord Mackie of Benshie: I am glad to hear once more the eloquence of the noble Lord, Lord Mackay of Ardbrecknish. It might have been more logical had he not forced a vote on the list whereby we are now talking rather illogically. In this Committee we have hitherto been talking in a reasonable manner and exploring a number of possibilities. Now we have closed the door on one possibility. The noble Lord called a Division and was defeated. He referred to the order of the names on the list. If you really want confusion you should tell the returning officer that he must rotate all the names of all the parties in proportion. That appears to be as illogical as the noble Lord's calling of a Division on the previous point.
Perhaps I may speak briefly to Amendments Nos. 50, 62 and 68. They are designed to do the very thing the noble Lord was talking about—to give choice. Amendment No. 50 refers to a candidate who is a member of a registered political party which has submitted a regional list. Clause 7(4) states:
"Seats for the region which are allocated to a registered political party shall be filled by the persons in the party's regional list".
We say that it should be done in the order as voted by the electors on the paper.
Printing a list is different from printing a ballot paper. We are asking for a ballot paper and not a simple list. If the noble Lord will back me on that, at least we will have something logical to proceed on. Amendment No. 62 introduces a real element of democracy. I do not accept the argument that it is too complicated. It certainly means printing lists from all four parties. It certainly means electors have to understand that when they vote for a name they have only one vote and they vote for that party. But that should be simple. If the Irish have worked for years with STV, surely the Scots can manage? I do not suggest for a moment that we are superior in intellect to the Irish. Or do I mean that? I do

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not really know. The system has worked well in Ireland. There should be no question of the voters of Scotland not working the system.
The question of a list of candidates in their order of merit being produced by party headquarters is one that worries people enormously. The point was eloquently put by my noble friend Lady Linklater. It is a great worry in people's minds. The events in the governing party have exacerbated that feeling. We must take account of it in Scotland. It is not enough to say that you have one vote in your constituency and one vote for a party. People have got to come into it. These amendments try to bring people into it. They mean printing, they mean explaining, and they mean producing a decent ballot paper and putting it over. It is worth it if it satisfies the voters that they are voting not only for a party but also for the people within that party and that they are not at the mercy of party headquarters.
Lord Rowallan: I support this amendment. One of the saddest things happening in politics today is that we are moving more and more away from the personal vote. In the good old days of the hustings when one went along to a crowded place and there was barracking, one found out which candidate was the best. Those days have gone. In this country we have very much taken up voting for the party machine as well as voting tactically for particular parties. The open list proposed here is a much better idea than a closed list. I dislike intensely the idea of voting for a party. It is much better to continue voting for individuals wherever possible.
Lord Sempill: Perhaps I may make just one observation on this matter. It is a point which was discussed in Committee last Tuesday; namely, the Government declared their intention to go ahead on the day of the election with local council elections as well. One of the strong reasons for that was they felt that the electorate was more than capable of handling two different ballots. I support the open list. To a large extent, part of the problem is logistics. Might it not be an opportunity to consider the suggestion of moving the local elections so that the open list can be given more airing at the time of this critical election?
Lord Sewel: These amendments relate to the open list and touch on the business of the ordering of candidates on the ballot paper. In speaking against these amendments, I confine my comments to one practical point and one point of principle. The point of principle boils down to what role and value is attached to parties. I know that it is fashionable to decry parties, but we live in a form of democracy in which the party is of vital importance. Traditionally, parties have selected candidates and brought them in front of the electorate, inviting the electorate to make a judgment on those candidates. Parties have been absolutely essential in that particular aspect of the democratic process. They have also been essential in bringing policies together and giving them coherence in an integrated programme that forms the basis of the manifesto.
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Although it is perhaps fashionable, understandable and somewhat populist to decry the party, our form of democracy depends very heavily on it for its organisational basis. So I do not dismiss the party as the noble Lord, Lord Mackay of Ardbrecknish, appears to do.
As I said, traditionally, in our system the role of the party has been to select candidates. That is built in to the way in which we operate the first-past-the-post system. It is not necessary under that system to have that predominant role allocated to the party. In other political systems, it is not the party that carries out the selection of candidates. In open and closed primaries in the United States, a group much wider than the party, narrowly defined, plays an important role in the selection of candidates.
If the argument of the noble Lord, Lord Mackay, is to have consistency and power, he will have to argue not only that the list should be open and that the party should not have control over the order and structure of the list, but also that candidate selection for the first-past-the-post system should be subject to the same kind of influence. He should be advocating something like open primaries. The noble Lord is not doing that for the simple reason that, quite understandably, he recognises the important contribution that parties make through their own process of candidate selection and choice.
Lord Mackie of Benshie: I thank the noble Lord for giving way. It is all very well to say that the party is important, but its important role is selecting the candidate. Although headquarters may have to approve a list, the selection is normally carried out—certainly in the Liberal Democrat Party—by the constituency. After that, the candidate has to fight the seat. In our party it means a great deal of personal work. There is not the automatic vote that one used to get in central Scotland for the Labour Party. The constituency has to be fought for, which is different from saying that the party is everything.
Lord Sewel: I am making a different point. Traditionally, the party has had the role of selecting candidates and bringing them before the electorate so that voters may make a judgement on them. That is the system we have always adopted and it is a right, sound and proper system.
Lord Rowallan: I am sorry to come back again. Surely the Minister accepts that these days no-one goes to the hustings. Every village had meetings with candidates about 20 years ago, but now everyone pays attention to what is happening on television and in the media so one does not meet the candidate. We are voting entirely for parties. There are two parts to these elections. The party machine will provide the first-past-the-post person and one should then vote for individuals. That is the point which is being made. That cannot be done when one votes for the parties.
Lord Sewel: I believe that the noble Lord, Lord Rowallan, misunderstands my point completely. He has

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made a concession which destroys his own position. He said that no one knows who the candidates are. In that case, what is the purpose of having an open list? If candidate recognition and awareness is so low—to paraphrase the noble Lord, Lord Rowallan—that voters are not in a position to make up their minds on the characteristics and qualities of an individual candidate, what is the purpose of an open list and how can it function?
I am making the point that it is the parties which bring the candidates to the electorate. They make a judgment, but not on an individual basis and that I accept. The electorate primarily makes its judgment through the ballot box on the basis of party. The party is the fundamental organising principle in our democratic process. I do not think it right to decry or devalue that because it is the basis on which the democratic system operates. I believe that that argument is one of proper principle in terms of our debate.
I move on to the difficulty of ordering the ballot paper. There have been some suggestions as to how that may be done. Amendment No. 40 contains a rotating idea, which is novel. I plead guilty in that for much of my life I drew up questionnaires which asked people to rank items in order. Anyone who has done that or taught that particular branch of research methodology will know that lecture two deals with the problem of response fatigue. People will order first, second and third and then fall back into a pattern and go through the list as it is printed with no great discrimination. The ordering of the list becomes vitally important lest it contains a structured preference which it would be very difficult to overcome.
If we go down the track suggested by the noble Lord, Lord Mackay of Ardbrecknish, which is the idea of rotation and fluctuation—that is novel—we cannot stop where the noble Lord would wish us to. One has to go the whole hog to remove the bias. One would have to have separate ballot papers in the order of factorial 12. I have never been a principal teacher of mathematics, but I believe that factorial 12 comes to slightly more than the electorate in any regional constituency. Therefore, one would have more individual ballot papers than electors in the constituency. The system cannot work. It has a built-in bias that cannot be removed by formally inviting the electorate to change the order. Response fatigue will set in and to a large extent voters will go down the list; or it will be dealt with by rotation. That is a very partial or limited solution; indeed, it is no solution at all.
To draw upon the experience of other political systems, there are systems in which open lists operate to the extent that the electorate is given the opportunity to change the order in which the party presents the candidates. I provide the following information without making a judgment upon it. Under that system there is intense internal competition within the parties. The parties turn in upon themselves and groups begin to organise sub-parties and sub-divisions in order to get their people higher up the list than would be the case if the electorate did not have the opportunity to change the order. I simply give that as a description of what
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happens when there are open lists. One virtually has institutionalised factionalism within parties at election time.
9 p.m.
Lord Mackie of Benshie: Does the noble Lord agree that that in itself is a form of democracy?
Lord Sewel: I have merely described it without making a value judgment upon it. It is for others to make a value judgment upon it if they wish to see their parties develop that characteristic.
I shall not labour the problem about confusing the electorate by different names being published in a different order from the order which they have seen on the ballot paper. I believe that that is a minor matter. There will be some confusion but I do not believe that that is a major, principled basis for opposition. There is an unsurmountable difficulty in trying to deal with the structured advantage that arises from any form of ordering. There is no practical way round that. Further, I believe that we are perhaps a little too glib in dismissing the important role of party in our electoral politics not only in creating coherent policies and a platform but in carrying out the vital job of selecting candidates for the electorate to judge in the ballot box. On that basis, I hope that on reflection the noble Lord will feel able to withdraw his amendment.
Baroness Linklater of Butterstone: I support the remarks of my noble friend Lord Mackie. I should like to draw the attention of the Committee to one small area that has been ignored: the view that the voter takes about this matter. I refer to three studies that have been conducted. I quote from the McDougall Trust, which carried out a survey based on a series of focus groups last January, and a Home Office survey last February. The findings of both were almost exactly identical; namely, that voters reacted strongly to the removal of the right to select a candidate themselves. I believe that one can overdo party. I am slightly alarmed by the emphasis placed by the noble Lord, Lord Sewel, on the fact that party is almost all. The character of individuals in politics is of supreme importance. Voters should have the chance to express their views about individual politicians, not just about the party with which they are associated. Finally, a survey was carried out by Professor Patrick Dunleavy. He also concluded that the majority of voters preferred the open list system.
I had hoped that the Government would give an indication that there would be an element of choice here. I conclude from what has been said by the noble Lord, Lord Sewel, that as to members on the list there will be no choice at all. I find that very depressing.
Lady Saltoun of Abernethy: I am not concerned with surveys and matters of that kind. However, I talk to people. One matter which people are thoroughly fed up with is that in all parties their candidates are chosen

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for them by head office. They want local candidates who are chosen by the local party machinery, not candidates who are imposed upon them from above.
Lord Sewel: To make it absolutely clear, I have said nothing about the central party imposing candidates on the electorate. When talking about "party" I include constituency parties, local parties or whatever structure the parties themselves wish to use.
Lord Thomas of Gresford: Does the noble Lord agree there is a danger that the central party will, as I believe Labour has already done, produce a list of approved candidates—approved in the sense that their views accord with the views of the leadership—and the role of the constituency parties will be to choose candidates from those who are centrally approved? Surely the element of local control and democracy is lost in that process.
Lord Sewel: That is a total travesty of the situation in my party. That approved list of candidates includes myself and a certain Mr. John McAllion. I believe it is fairly well known that there are certain areas in which Mr. McAllion and I are not in total agreement.
Lord Mackay of Ardbrecknish: We have had an interesting debate. I enjoyed the last intervention of the noble Lord, Lord Sewel to the effect that his party was not controlling the system from the centre. I do not think that that will be the view of the constituency Labour Party in Glasgow Pollok, which has been told that it will not be allowed to consider its current Member of Parliament, Mr. Ian Davidson, who would like to be a member of the Scottish parliament. Nor will it find much accord with the constituency Labour Party in Falkirk West, which has indicated, I understand by an enormous majority, that it would very much like to have Mr. Dennis Canavan as its constituency member for the Scottish parliament. But the constituencies have not been allowed to make that choice because the centre party has decided that those two gentlemen are somehow or other not New Labour and therefore must be banned from the list.
It is rather heavy handed of the party opposite. The noble Lord, Lord Sewel, must not come to the Dispatch Box and try to pretend that all is open and democratic in his party. He is about to try to do so again.
Lord Sewel: Perhaps the noble Lord will give us the benefit of a description of the way in which the Conservative Party selects and approves its candidates.
Lord Mackay of Ardbrecknish: That is rather a diversion. However, I am one of a team of three people who considers, listens to and chats to everyone who wishes to stand for the Scottish parliament. We are two wise men and one wise lady, and we make wise judgments. I have to say seriously that we would have to think long and hard before we decided that someone who had been a Member of Parliament for our party was not fit to be a member of the Scottish parliament. We
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have not done that as regards any of the people who have come before us and asked to be considered for the Scottish parliament. I believe that all those people who are Members of Parliament are worthy of being allowed to be considered by the constituencies.
I can understand the Labour Party's problem. It is a control job nowadays. Those of your Lordships who watched the House of Commons last night saw an example of that. Apart from Mr. Dennis Canavan and Mr. Tam Dalyell, all the others found other things to do—including most of the former members of the National Union of Students. However, I must not revisit that argument even though it is nice to see the noble Lord, Lord Sewel, again at the Dispatch Box. I rather hoped that he might have been more co-operative. Having failed to co-operate with me for months, he had to be replaced by the noble Baroness this afternoon, who was a little more co-operative.
However, it is a serious matter. I mentioned that the words of the noble Baroness, Lady Ramsay of Cartvale, would come back to haunt her. In the first debate, where she insisted that we had two votes, her words were that we must not restrict the electorate's choice. What is more restrictive of the electorate's choice than saying, "You must vote for the Conservative Party but you do not have any choice about which of those 12 people the Conservative Party should put top of the list"? That is not a choice. It is simply saying, "You will kindly vote for the party and you will leave us to choose".
The noble Baroness should revisit her previous speech. Of course the parties are important; none of us would deny that. That was the whole point of one of my earlier amendments: that we are considering the proportionality of the parties.
I listened to the noble Lord, Lord Sewel, and was puzzled by his answers. He said that there would be electorate fatigue. The electorate will be asked to put only one cross. We are not asking for up to 12 crosses, but simply one cross. The elector decides to vote Labour; he thinks, "The man I want most is Sewel", and he puts his cross against "Sewel". Nothing could be simpler. I suggest that even the simplest Labour voter might get that right. That is the proposal. The figure is then added up. It is a simple business; it is not complicated.
I accept that in Amendment No. 40 I am being a purist in proportional representation matters. As the Liberal Democrats have vacated the pure world of proportional representation, I feel obliged occasionally to put forward such amendments. However, I concede that it would be complicated to make the ballot papers entirely neutral by mixing up the names so that the advantage of the first name on the ballot paper would not come into play.
I should be prepared to see the order of the list determined by the party. It would seem to me to give the party and the party's decision-makers some advantage. But thereafter those people who will vote for the Labour Party—and there will be a few left despite the efforts of the Scottish National Party to erode its vote—should be able to decide which of the 12 they consider should be the top dog. It is quite simple.

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The same argument applies to the Conservative Party. I suggested idly at the beginning of the debate that the simplest way would be for me to decide the order of the list and that would save argument. I should make terribly wise decisions. However, wisely, my party decided that that would not be entirely democratic and it decided to go for a more open system of choosing. But that is open only within the party membership. No party has a membership anything approaching its voter power—the electorate's power—and I am thinking about that.
As regards the statement that the voting paper will be complicated, I have, courtesy of the Electoral Reform Society, an open list AMS ballot paper. It is not complicated. It is a good deal less complicated than the Inland Revenue self assessment form; and it is no doubt a good deal less complicated than all the survey material which the noble Lord, Lord Sewel, circulated in his capacity as a lecturer at Aberdeen University.
I am afraid I must tell the Government that people are used to filling in forms and ticking boxes. It is happening to us daily. It is like assuming people do not understand computers when so many people have them in their homes. I do not believe that the argument about the ballot paper being complicated stands up. It will be different, but the system will be different in any event. I must repeat that I do not greatly approve of the different system, but if we are to have it let us do it properly.
I am disappointed that the Minister has set his mind against even considering an open list ballot paper, especially when his noble friend Lady Ramsay wishes to ensure that the electorate's choice is not restricted. I should have thought that she would be entirely on my side. But there you are, I live and learn!
We must give some thought to this issue in order to decide the best way to pursue an open list. I beg leave to withdraw my amendment, but shall return to it after the Recess, during which time I hope that the Government will give some thought to the matter.
Amendment, by leave, withdrawn.
9.15 p.m.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 41:
Page 3, line 12, at end insert—
("( ) No party may submit a list of candidates to be regional members for an electoral region unless there is a candidate of that party in at least half of the constituencies included in that electoral region.").
The noble Lord said: In moving Amendment No. 41, I shall speak also to Amendment No. 42. It will not take long. Perhaps Members will cast their minds back to the Committee stage immediately before the dinner hour, when I exposed the problem of the alter ego party, the phantom party and co-operative party standing in the list system and the Labour Party standing in first-past-the-post system. There would be no difficulties for the party which did so, but advantages would fall to the party deciding to play that game, whether it be the Labour Party, the Liberal Democrat Party in the Highlands, the Conservative Party if it can win some
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first-past-the-post seats, and, most assuredly, the Scottish National Party, given its rating in the polls. I could easily paint the whole of the Scottish map yellow, which is the SNP's colour, if it decided to play this game. My understanding from the latest poll is that the map is pretty yellow already, but it would be entirely yellow if this loophole were left in the Bill and the SNP decided to play the card which the Government have willingly handed to them. And why should they not if they are determined to have an independent Scotland?
The Government did not like a single vote. They pointed out that it would remove independent candidates, but I might put a large wager on any independent candidate winning on an additional member seat. I will accept that the Government are keen to encourage independent candidates. They are probably not too keen to encourage them if they believe that they will beat the Labour candidates, but they are keen to encourage them. The Government also believe it is important that in the second ballot people have a choice which allows them to move their vote around. I do not particularly agree with that because the proportionality is supposed to correct the first-past-the-post vote and not the other way around, which it will be.
I accept that the Government do not like a single vote and I have tabled this amendment. It provides that any party whose candidates stand in more than 50 per cent. of the first-past-the-post seats must put up a regional list; and that any party which does so must stand in 50 per cent. of the seats. I do not believe that that would be a huge hurdle, but it stops dead in its tracks any attempt at split voting or alter ego parties. There is no question in my mind about that.
I have little doubt that the Government will tell me that the measure will stop minor parties standing. No doubt the Greens will come into it—I heard all about them in Wales. It will not stop them, but it will mean that if they want to be on the list they will have to stand in half the first-past-the-post seats. I do not see that as a great problem. If the Government are worried about the money they can reduce the deposit. It is not the most difficult thing on earth. In any event, a party standing only in the regional list system, unless it is in collusion with another party, will not find it easy to canvass across the whole regional seat when it is not canvassing for individual first-past-the-post seats. I suspect that the electorate's attention, at least initially, will be on the first-past-the-post seats and the winning of them. However, let us assume that the Greens want to stand. I believe that they should be asked to stand in half of the first-past-the-post seats. That would stop the alter ego party position dead in its tracks.
I am trying to help the Government to get out of what could be a real dilemma further down the road. When the Scottish Nationalists have used that loophole and gained more than half the seats in Scotland and taken Scotland out of the Union, I should hate them to come back to me and say, "Boy, you were right and Michael Dyer was right that that could be done". While Michael Dyer's piece of paper was directed at the Labour Party in Scotland, suggesting that the Labour Party should do it, the party opposite should consider that, even if they are going to be men and women of honour. which

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I accept they are in that regard, unless there is a commitment from the Scottish National Party, the problem remains live for the next time round. In my view, it remains live away into the future.
If in 20 years' time, my party decided to play that game, I cannot believe that its members would say, "Ah, but Lord Mackay of Ardbrecknish gave an assurance from the Dispatch Box in 1998". The question would then be, "Who's he?" It would be the same for the noble Baroness, Lady Ramsay of Cartvale, and even the noble Lord, Lord Mackie, in 20 years' time.
Therefore, I believe we owe it to the public, on whom we are inflicting this electoral system, to guard against that eventuality. This is a method of doing that which overcomes all the objections which the noble Baroness, Lady Ramsay, gave to me in relation to a single vote. I hope the noble Lord, Lord Sewel, who is to reply to this amendment, will give me a little more encouragement. I beg to move.
Lord Thomas of Gresford: I do not propose to repeat what was said in the earlier debate on the issue of phantom parties. That issue was fully covered on all sides and there is no point in repeating that argument.
However, grouped with this amendment is Amendment No. 46. I did not hear the noble Lord, Lord Mackay of Ardbrecknish, refer at all to Amendment No. 46. That seems to me to be a serious question of principle because that amendment deals with the people who wish to stand as individual candidates. If that amendment were accepted, it would seem that, unlike members of registered political parties who may stand in constituencies and also for the regional list, an independent candidate can stand as a constituency member for a constituency but may not be a candidate to stand on the regional list at the same time. He may not be a regional member.
I do not understand why that particular form of exclusion should enter into the matter. I have not heard the noble Lord, Lord Mackay of Ardbrecknish, refer to it. If I have misunderstood the purport of the amendment, no doubt he will say so. But at the moment it seems to me that this is just another example of the Conservative Opposition seeking to limit the way in which members of the Scottish parliament can be selected.
Lord Sewel: The noble Lord, Lord Mackay of Ardbrecknish, is to be congratulated. He has weaved a totally seamless web. He started off on one side praising the idea of choice. With the very next amendment, he comes forward with a measure which totally restricts and removes choice. That is not done on an individual basis. He takes whole parties out of the game. That is the big denial of choice which the amendment in the name of the noble Lord, Lord Mackay of Ardbrecknish, would bring about.
Let us not beat about the bush. This amendment is designed to make it virtually impossible for minor parties to be in a position in which they can contest regional seats. That is what it is about. It is trying to
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make sure that the regional seat option is one which is available only to the big battalions. I do not think that is a pleasant prospect. As we heard earlier, there is a real chance to encourage and have diversity in our representation by small parties, albeit that small parties may be gaining something like 5 to 6 per cent. of the electorate on a regional basis, and thus some form of representation. The amendment of the noble Lord, Lord Mackay, would make it difficult for minor parties to start contesting seats at that level. It would make it impossible for them to contest at the regional level. Let us not beat about the bush. We know what it is about and I think that we have to dismiss it.
I had been waiting, like other noble Lords, to hear the defence for Amendment No. 46. I had been waiting to hear what Amendment No. 46 was all about, but we have heard nothing—total silence. If the noble Lord, Lord Mackay, wishes to enlighten the Committee on the purpose and intention of Amendment No. 46, I am happy to give way—"But answer came there none". I can only conclude that the effect of Amendment No. 46, as I read it, is to remove the safeguard in the Bill which ensures that a candidate cannot contest a constituency seat as a party candidate and at the same time stand as an independent candidate in the regional poll. That would be the effect of Amendment No. 46.
Lord Mackay of Ardbrecknish: The noble Lord has tried to duck the main argument by saying that I seem to be trying to block out minor parties. I am not doing that although I did not disagree with the fact that that might be a problem for minor parties. My concern is about what I call the alter ego parties, the split ticket: the Labour Party and the Communist Party, the Conservative Party and the Unionist Party, the Liberal Party and the Democrat Party. That is the real problem I would like the Minister to address. As far as this amendment is concerned, if we are to have voter choice, why can somebody not stand for a party in one place and be an independent in the other? A few minutes ago the position of independents was extolled by the Minister's noble friend.
Lord Sewel: Consistency has never been the strongest suit of the noble Lord, Lord Mackay of Ardbrecknish. What are voters to make of a ballot paper on which they are asked to vote in a constituency for Tom Brown, the Conservative Party candidate, when on the same ballot paper in the regional list they are invited to vote for Tom Brown, the independent candidate? Is that the degree of inconsistency that the noble Lord, Lord Mackay, is advocating? That is exactly the effect that Amendment No. 46 would have, if passed.
I return to the substantive point that the noble Lord, Lord Mackay, made in relation to Amendments Nos. 41 and 42. I think the answer to this is quite simple. It is not about trying to contrive some formal means of dealing with the problem. The solution is quite simple and it is, "Trust the electorate". The electorate will realise if a party is trying to "pull a fast one"—trying either to collude with an opposition, another party, or to create, as the noble Lord, Lord Mackay of Ardbrecknish, calls them alter ego parties. I think that in

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those circumstances that party would be open to public ridicule. The electorate would make a judgment about the integrity of that party—and not just on the narrow issue of how it was fighting the election. The electorate would take that as symptomatic of the lack of integrity within the party and would punish the party. I have faith that the electorate would deal with the problem.
9.30 p.m.
Baroness Carnegy of Lour: Members of the Committee have the right to ask the Minister if, instead of knocking down one amendment after another, he would address the main issues which are being proposed. For example, the noble Lord has just said that his solution to the problem is to trust the electorate. I am not sure how much campaigning the noble Lord has done in the area dominated by the Scottish National Party, but I have done so and I watched closely the way that that party operates in my area of Scotland. I believe that not only the SNP but also its followers would find it rather clever to invent two parties which wanted independence with people voting for one candidate under the first-past-the-post system and for another from the list. I simply do not believe that that is an answer.
The Government really ought to address the problem. They will lose out, and the country may well become independent simply because they are so stubborn, as they were on a matter with which we dealt earlier today. They just will not listen to the arguments. I hope that the Government will face up to the situation and think about it seriously. They should not happily knock down different amendments and criticise my noble friend for approaching some amendments from different angles. They may conflict with one another, but my noble friend's hope is that one of them might be accepted.
Lord Desai: We should not legislate solely to prevent the SNP doing what it wants to do. We are legislating for a long time. This obsession that we must do everything to prevent the SNP doing what it wants is ridiculous. As my noble friend the Minister said, we must trust the electorate. Indeed, the electorate of this country is a very mature and thoughtful one. If it happens to choose one party rather than another, it is not our purpose to bar such parties from winning elections. I believe that that would be the beginning of the end.
We must all calm down and consider such matters on a more long-term basis. We are trying to set up conditions for the Scottish parliament which will give proper representation to the Scottish people. That is what we want. We should not become involved with these arcane possibilities that the SNP will do one thing or another.
Viscount Thurso: I have one brief question for the Minister which I previously asked of the noble Baroness, Lady Ramsay of Cartvale. Am I right in saying that this is not the proper place to consider the question as we are now dealing with the registration of political parties? Before the previous answer is repeated, may I suggest that if there were provision in the legislation for some form of ombudsman who would simply be required to ensure fair play, surely the matter
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could be dealt with quite simply at that level and therefore we would not need to concern ourselves with it in this legislation.
Having said that, I must say that I agree wholeheartedly with the Minister that, ultimately, the correct place to put one's trust is in the electorate. For the first time in my life I did so with a very small electorate on behalf of the Liberal Democrat Party in the Highland region and discovered that it has a rather pleasant effect. Indeed, I rather enjoyed it. Therefore, I am all for putting my trust in the electorate.
Lord Sewel: Quite honestly, the difficulty with this whole area is that, essentially, it is a political problem and one not capable of being resolved through a legislative solution. That is the basic difficulty here. I appreciate that the noble Lord, Lord Mackay, is absolutely genuine in his wish to try to remove what he sees as a potential abuse. The difference between us is that I do not believe we can actually remove it through the process of legislation. As I said, I think that we must rely on the electorate and on exposure and ridicule. I believe that that will be effective.
Perhaps I may now reply to the point on the basis of the involvement of the SNP. I shall use that only as an example, because I do not really wish to pin everything that is horrid and awful on one particular party. Indeed, from time to time, we have all had our fair share of the latter. We must take into account the nature of party support. It is absolutely true that there is a relatively small band of core fanatical supporters who I can well see would argue for such a strategy; in other words, "This is a way to get it, lads!"
However, if you are going to win—I dare say that this is a lesson that my party learned and one which the noble Lord's party is now in the process of learning, although somewhat later than us—you must be able to extend beyond that core of committed fanatical voters. You have to persuade people of judgment, reason and decency that your party has something good to offer as a party of honour and integrity. If any party chose to behave in the way that has been mentioned, it would find those key potential supporters running a mile in the opposite direction. In a way nothing would please me more than if my political opponents got up to the kind of skulduggery that the noble Lord, Lord Mackay of Ardbrecknish, anticipates. I hope that the noble Lord will feel able to withdraw his amendment.
Lord Mackay of Ardbrecknish: The noble Lord, Lord Sewel, talked about people being involved in the political process and feeling they have a role to play. That seems a little inconsistent with saying that we cannot have an open list with regard to deciding who should be the additional members. One must occasionally try to be consistent in these matters. It is not a problem that the Opposition need to worry too much about, but the Government ought to try to be consistent.
I am still not persuaded that there is not a real problem here. If I were the Labour Party apparatchik in Glasgow I believe I would have little trouble in explaining to people the huge merit of voting Labour in

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first-past-the-post and voting Co-operative as regards the additional member. I have tried out that argument on a number of people I meet. None of them have said, "That is the kind of trick that I would not involve myself in". They all say, "That is the kind of trick I would expect the other parties to involve themselves in". It is quite interesting that they see the advantage of it. If parties are really hard pressed and wish either to hold on to power or to gain power in order to achieve objectives that they might not achieve otherwise, I believe it is an enormous temptation to use this loophole.
It is unusual for me not to agree with the noble Lord, Lord Desai, as I often agree with him on economic matters. But on this occasion I do not agree with him. I believe that the electorate are mature and will understand and approve of this as regards their own parties. The rest can disapprove of it from now until kingdom come, but it is not the other people that I am worried about; it is the people within the party who are carrying out this trick who I think would mightily approve of it. I can think of some Tories who may think that I ought not to give these commitments because they think this may be a good way to achieve a better result using proportional representation. They do not want it but it has been delivered to them. I think all parties will have people in them who will say, "Why are we not trying this?" Mr. Ian Davidson has come out from the covers and asked why we should not try this. But I do not believe he is the only person in Scotland who has studied this system and who thinks it is worth trying.
An ex-colleague of the noble Lord, Lord Sewel, Michael Dyer, has written the paper we are discussing. This is not something that is in Cloud-cuckoo-land; it is something that could be done. I am disappointed that I am not getting much understanding from the Government on this issue. They just say, "It will never happen and you do not have to worry about it". I do not agree that that is a reasonable position to take. I believe that we need to worry about this.
In Amendment No. 46 I was attempting to provide a little more choice. It seems to me that if someone can get a nomination for his party in a seat that may not offer good prospects, that is restricting the person's choice and the electorate's subsequent choice if that person cannot stand as an Independent if the party has blackballed him from the list. But clearly the Labour Party, being control freaks nowadays, do not want anything like that. I am content not to argue too strongly on Amendment No. 46. The Government ought to consider Michael Dyer's paper much more seriously than they appear to have done so far.
When we talked about this matter in connection with one single vote, I believe that the noble Lord, Lord Mackie of Benshie, indicated that he saw this as a fiddle which ought to be dealt with and that we must take precautions. The words I noted were, "We must take precautions". So I am not absolutely alone in this.
The noble Viscount has a point about the Registration of Political Parties Bill. But we should have to give considerably wider powers to the registrar than are currently envisaged in that Bill before we could stop
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this. Frankly, under the Bill, he has very little power. There would then have to be some form of appeal by the parties to say: that party, whatever it may be, is not a real party at all and is registered only in order to fiddle the AMS. It may well be that we shall have to return to the matter. I may return to the point in relation to this Bill and also when we debate the Registration of Political Parties Bill. For the present, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 42 to 46 not moved.]
Clause 4 agreed to.
Clause 5 [Poll for regional members]:
[Amendments Nos. 47 to 49 not moved.]
Lord Mackie of Benshie Lord Mackie of Benshie had given notice of his intention to move Amendment No. 50:
Page 4, line 2, at beginning insert ("a candidate who is a member of").
The noble Lord said: This amendment deals with the very serious question of giving the electorate the kind of choice that it is universally thought it desires. It is certainly a healthy choice for democracy. We shall return to the matter at a later stage. In the meantime, I shall not move the amendment.
[Amendment No. 50 not moved.]
[Amendments Nos. 51 to 53 not moved.]
Clause 5 agreed to.
Clause 6 [Calculation of regional figures]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 54:
Page 4, leave out lines I 1 to 16 and insert ("a regional figure shall be calculated for the purposes of section 7 as follows—

(a) where no candidates of the party have been returned as constituency members in a region, the figure shall be the total number of regional votes given for the party in that region. multiplied by five and divided by seven;

(b) where at least one candidate of the party has been returned as a constituency member in a region, the figure shall be the total number of regional votes given for the party in that region, divided by one less than twice the number of candidates of the party returned as constituency members in that region.").

The noble Lord said: In moving this amendment, I shall also speak to Amendment No. 55. Those noble Lords who have studied this issue will, I trust, have spotted the deliberate mistake. It is the schoolmaster in me setting homework! I imagine that it gave the Minister's poor officials some considerable trouble. If it did, I shall be content to withdraw it and return to the matter later. However, it may be more convenient to deal with it now.
In both amendments, the fourth line of sub-paragraph (b) reads:
"divided by one less than twice the number of candidates",
It should of course read, "divided by one more than twice the number of candidates". That will be obvious to any noble Lords who have studied all these voting systems and their fancy names. It should have been

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obvious to me. However, I am afraid that until I started to work on my speaking notes, I had not appreciated that there was a mistake.
All it illustrates is the complexity of the proportional representation system. It is so difficult to explain in writing so far as concerns the calculations that even my skilled advisers managed to get the matter wrong, and I omitted to notice that they had got it wrong until I came to write my notes today.
This proposal is important. Amendment No. 54 offers a modified version of a system known as the Sainte-Lague system. Noble Lords will remember that I recently explained that in order to decide the number of additional member seats a system devised by a Belgian mathematician, d'Hondt, has been used. Essentially, d'Hondt takes the total number of votes and divides it by the number of seats that the party has won by first-past-the-post, plus one. Somebody then obviously has the largest number of votes in the roll and that candidate gets a seat. Clearly, he or she now has another seat, and there is another divisor applied to them, and so it goes on down the list. It is quite complex on paper, but I point out to the Government that it is relatively simple when one comes to work it out in practice.
The problem is that it helps the larger parties. That is where I return to the poor old noble Baroness, Lady Ramsay of Cartvale, who accused me earlier of trying to be nasty to the smaller parties. Nothing is nastier to the smaller parties than using the d'Hondt system as the dividing system for the additional member seats. The two systems I propose are much fairer to smaller parties than d'Hondt.
Essentially, Amendment No. 54 is what is called modified Sainte-Lague. One divides first by 1.4, then by three, five and seven. The second amendment is Sainte-Lague pure, which divides by one, three, five and seven. So if a party has no seats and then it gains a seat, the next divisor is three not two. It clearly means that the number of votes the party has, if it is a big party, reduces quite quickly when we get down to the sixth and seventh seats, where much lower figures are being called into play than with d'Hondt. I reckon that with d'Hondt no one would get a seat unless they had at least 5 per cent. of the votes. It rather depends on how the ball breaks between the parties, but it would be at least 5 per cent. However, both versions of Sainte-Lague are better than that and help smaller parties.
It is a perfectly legitimate method of doing it, as any Member of the Committee who has studied the issue will understand. Some countries use the Sainte-Lague method, or a modified Sainte-Lague method. The real reason I put it forward is to allow the noble Baroness, Lady Ramsay of Cartvale, to live up to her two pledges: first, that she wants to make sure that smaller parties have a chance and, secondly, that she is keen to help independent candidates. Not only would it help smaller parties, it would also help independent candidates.
Frankly, the Government have chosen, by the selection of the d'Hondt method, the method least likely to produce an additional member from a minority party like the Greens or an additional member who is an
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independent. The use of either modified Sainte-Lague or Sainte-Lague would give parties like the Greens a greater chance of winning. It would give an independent a greater chance of winning. Given the defences we have heard against some of my previous amendments, I expect the Government to say that, once they have corrected the mistakes in my amendments, they will be happy to come back and choose either modified Sainte-Lague or Sainte-Lague as the dividing method for the form of PR in the Scottish parliament. I beg to move.
9.45 p.m.
The Deputy Chairman of Committees (Baroness Lockwood): I must point out that if this amendment is agreed to, I cannot call Amendment No. 55 on the pre-emption rule.
Lord Thomas of Gresford: The first point that needs to be made in relation to the counting systems is that from the voter's point of view it is a simple matter of putting a cross in a box. The voter is not concerned with how the votes are counted. But the two main systems which are employed in counting can make a considerable difference. The Government have chosen the d'Hondt system, which tends to give the last seat in a region—for example, Scotland has seven seats—to one of the larger parties. That would limit the number of groups gaining representation, making it less likely that an independent or a member of the Green Party would acquire the final seat.
Perhaps I may correct the pronunciation of "Sainte-Lagüe" by the noble Lord, Lord Mackay. The Sainte-Lagüe system is more sympathetic to medium-sized parties and extends choice and representation across a wider spectrum. The Sainte-Lague system is the system that is used in New Zealand and widely in Scandinavia. Each party gains an additional seat by reason of priority value. Based on Wales, for example, on the 1997 general election results, Labour would win 80 per cent. of the seats on 55 per cent. of the votes under d'Hondt. But, using the Sainte-Lague method, Labour would have won 60 per cent. of the seats. That is clearly a much fairer and more proportional system. The Plant report, which considered these systems in 1991, concluded that:
"The question of whether to use the d'Hondt system is not made by invoking the idea of fairness so much as the idea that the system should discriminate in favour of large parties".
Having received that report and realised that the d'Hondt system favours the large parties, what have the Labour Government chosen to do? They have chosen the d'Hondt system; the one that favours them and excludes smaller and minority parties.
The Home Secretary discussed the issue at Second Reading and suggested that, based on the 1994 Euro election results, d'Hondt was more proportional in six regions. However, Professor MacLean of Nuffield College, Oxford, showed that the calculations were incorrect and that the Saint-Lagüe system is more proportional than d'Hondt. The Home Secretary's argument therefore was based upon incorrect information which has since been put right.

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I return to my first point. From the elector's point of view there is nothing complicated. He has a list of parties and possible individual candidates. He puts a cross in the box. It is how the machinery works thereafter to achieve a proper proportion that is important. Why should the Government choose the one that favours them? We support the amendments of the noble Lord, Lord Mackay of Ardbrecknish.
Lord Hardie: I am sorry to disappoint the noble Lord, Lord Mackay of Ardbrecknish, in rising to speak instead of my noble friend Lady Ramsay. I am pleased to note that the noble Lord identified and acknowledged that there was an error in the amendments as framed. I was concerned when I saw the amendments. As framed, they gave an extra advantage to the Conservative Party based on the vote in Scotland at the last election and I could not believe that that was the intention.
The noble Lord explained the intricacies of the systems and the importance of the choice of divisor when it comes to allocating additional member seats. In describing the effect of Amendment No. 54, the noble Lord, Lord Mackay of Ardbrecknish, outlined the advantages of adopting an interpretation of a modified Saint-Lague divisor proposed in his first amendment. The noble Lord, Lord Mackay, will note that in relation to pronunciation at least, we are at one; whether we are both right or both wrong remains to be debated.
This is based on the Saint-Lague divisor, which has been applied in list elections in Scandinavia, in preference to the pure form of divisor set out in Amendment No. 55. As the noble Lord, Lord Thomas of Gresford, observed, that is used in New Zealand. As has been noted, the Government favour the d'Hondt divisor as set out in the Bill and, with respect to the noble Lord, Lord Thomas of Gresford, it is not because they favour the Labour Party. In fact, we have done calculations to see how the different systems would operate applying the vote cast in Scotland at the last election. The difference between the two systems is only two seats—one going to the Conservatives and one going to the Liberal Democrats. I can understand therefore why the Liberal Democrats support this other form.
The reason for the Government favouring the d'Hondt divisor is that it is simple to understand and more logical to apply. It is also easier to explain to the public and to those who have to apply it. It has the virtue of being consistent with the approach proposed for the European Parliament elections and the elections for the Welsh assembly. Moreover, it is the approach set out in the White Paper.
The alternative approaches suggested by the noble Lord, Lord Mackay of Ardbrecknish, may have some benefits for smaller parties, but, having made the calculations, I suggest that the only smaller parties that would benefit—assuming that the same votes were cast in Scotland as in the previous election—would be the Conservative Party and the Liberal Democrats. None of
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the arguments set out by noble Lords opposite persuades me that we should change horses in mid-stream and change the Bill.
The benefits claimed for the Sainte-Lagüe system—in its amended or unamended form—do not outweigh the advantages of the d'Hondt system, which I have already outlined. To summarise the advantages, the d'Hondt system is simpler to understand; more logical to apply; easier to explain to the public at large and to those operating it; is consistent with the approach adopted for the European Parliament and the Welsh assembly and it is the system explained in the White Paper. For those reasons I invite the noble Lord to reconsider and to withdraw the amendment.
Lord Thomas of Gresford: The reason why I say it is Sainte-Lagüe is the umlaut over the "u". I suspect that alters the pronunciation from that which one might expect.
The noble and learned Lord defends the Government's decision to use the d'Hondt system by saying that the public will understand it better. The only difference of any significance between the counting systems is that the d'Hondt system uses the divisors 1, 2, 3, 4, 5 and the Sainte-Lagüe system uses the divisors 1, 3, 5, 7, 9. Are any of your Lordships any the wiser because I have said that?
If the public see that 55 per cent. of the electorate vote Labour and Labour get 55 per cent. of the seats under the Sainte-Lagüe system whereas under the d'Hondt system they get 80 per cent. of the seats, the public might smell a rat and find that there is something unfair about that. It is not enough to say that the d'Hondt system is simpler and more easily understood.
Lord Hardie: As I explained to the Committee earlier, the position in Scotland is not reflected in the percentages indicated by the noble Lord. In Scotland the difference between the two systems—amended or unamended, Sainte-Lague or Sainte-Lagüe—is simply two seats. The disparity to which the noble Lord refers—if it is correct—does not apply.
Lord Thomas of Gresford: We appreciate that the Scottish figures may work differently, but why should not the public understand that a more proportional system is fairer than a less proportional system? Supposing the Sainte-Lagüe system produces one extra seat for the Liberal Democrats and one for the Conservatives, in so doing it would only be more closely reflecting the wishes and the views of the people who have voted. What is wrong with that?
Lord Mackay of Ardbrecknish: I am in a dilemma. Do I agree with the pronunciation of my fellow Scot or with that of the noble Lord, Lord Thomas of Gresford, who, on this issue, is on my side? I shall not refer to the name again or allow myself to take sides on this. In Scotland they talk of little else and it is probably Sainte-Lague or Sainte-Lagüe or "What is that?". The noble Lord, Lord Thomas, makes a good point that these are matters about which the electorate does not need to concern itself. The essential point is the voting paper.

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I fully accept that d'Hondt is a simpler system to explain, but I think most people will be interested only in the outcome and how they are allowed to vote, which takes us back to the previous issues.
The real point is that, modified or not, Sainte-Lague is more beneficial to the smaller parties. I regret to say to the noble and learned Lord the Lord Advocate that in Scottish terms the Liberal Democrats and my party are the smaller parties. We are even smaller than they are in terms of seats but not in terms of the number of votes cast, which should actually drive me into the arms of the proportionality people. But it has not, as your Lordships know.
I think there is an argument here that the Government are setting aside. Normally, we hear from the Government that if it is done in Scandinavia it must be close to the perfect solution. In this case, Scandinavian usage is being set aside. I suppose that shows the Government to be unslavish followers of the Nordic example, despite the noble Baroness's long experience and residence in that part of the world. I come back to the real point. It is difficult to decide that the second vote will be cast in the future in the same way as the first votes were cast in the past. If the Government are right and some independents may stand and get reasonably decent votes, if they have to jump the d'Hondt hurdle it will be much more difficult. The Sainte-Lague hurdle for an independent would be that much easier. The same is true for a party like the Greens.
The Government seem to want to have it both ways. Earlier, on my amendments to try to prevent what everyone seems to agree would be a serious abuse of the system by a political party, the objection given to all my amendments was that they were unfair to independents and unfair to parties other than the four main parties. Now, when we are saying to the Government, "Yes, but the mathematical system you are using is unfair to lesser parties and to independents", that argument can be set aside. There is a degree of inconsistency about the Government's argument. However, at this time of night it would not be right for me to take this any further, especially as my amendments are defective and do not deliver Sainte-Lague in any shape or form but would make it much more difficult for smaller parties. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 55 to 57 not moved.]
Clause 6 agreed to.
Clause 7 [Allocation of seats to regional members]:
[Amendments Nos. 58 to 63 not moved.]
Clause 7 agreed to.
10 p.m.
Clause 8 [Constituency vacancies]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 64:
Page 5, line 7, leave out from beginning to ("within") in line 8 and insert ("An election to fill a vacancy shall not be held if the vacancy occurs").
The noble and learned Lord said: In moving this amendment I shall, with the leave of the Committee, speak also to Amendment No. 69. As noble Lords will be aware, Clauses 8 and 9 deal with the procedures for filling vacancies among the membership of the parliament. Clause 8 deals with constituency vacancies and Clause 9 with regional vacancies. The purpose of these two amendments is to seek to ensure that constituency vacancies and regional vacancies are treated in the same way so far as possible. Obviously, in the one case a by-election is required, but there is no such requirement for a regional vacancy. It is the similarity of the timing that the amendments address.
Clause 8, as drafted, means that if a constituency vacancy occurred up to one day short of six months before the next ordinary general election, such a vacancy would not require to be filled. That would mean that the constituents would go unrepresented by a constituency member for up to six months. If my calculations are correct that is one-eighth of the life of a parliament. Indeed, it could be slightly worse than that were the presiding officer to exercise the power contained in Clause 2(5) of the Bill which allows a measure of variation in the date as to when an ordinary general election is to be held. That period of six months could extend to almost seven months.
However, the effect of Clause 9, as currently drafted, is that if a regional vacancy occurs it can be filled almost automatically. As soon as the matter comes to the attention of the regional returning officer he can notify the presiding officer following the procedure set out in the clause. The only circumstances in which such a vacancy would not be filled are if the regional member concerned was an individual member or there were no further names in the party list to which the retiring or deceased member had been originally elected; or if none of those in the list appeared to serve any longer as members of the Scottish parliament.
It seems to me wrong in principle to allow such a discrepancy to continue with the constituency vacancy remaining unfilled for up to six months, and possibly slightly longer, and the regional vacancy being filled virtually overnight even if the general election is the following week. The purpose of these two amendments is to bring the procedures together as far as is practical. The effect of the amendments would be that both types of vacancy would not be filled if the vacancy itself occurred within a period of three months leading up to the date for the next ordinary general election. That date is set out in the Bill; namely, 1st May of the particular year. That appears to me to be a fair way of proceeding with this practical problem. I beg to move.
The Earl of Mar and Kellie: Amendment No. 64 is quite straightforward and clear. I like the fact that it reduces the amount of time that a constituency would be vacant. It also allows more people to gain albeit brief experience. That sounds very good, but when one comes to the grouped Amendment No. 69 it seems to reverse the procedure and prevent someone getting albeit two to three months' experience. The fact is, they are available. If it occurs, one of the phenomena is it may well not be the next person on the list who comes to the parliament.

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The next person may be in a good job and does not consider it is worth giving it up for what may be two months whereas someone further down the list might be available. A quite interesting phenomena could be forgone by the idea contained in Amendment No. 69.
Baroness Ramsay of Cartvale: The Government believe that there should be restrictions on holding a poll in a by-election for a constituency vacancy shortly before the poll in the next general election. That avoids the cost and the demand placed on the electorate to return a member for what is a short period of time. The Bill provides that if the latest date for holding the by-election, as provided for in Clause 8(3), is within three months of the next general election, then no by-election will be held. A similar approach applies to European parliamentary elections. It is not uncommon for countries with fixed date elections to make such provision. This is not something within our experience. The British experience is not to have fixed dates for general elections. However, in countries with those arrangements this is not an uncommon provision.
Amendment No. 64 would shorten that period. It could mean that by-elections were held within three months of a general election to fill vacancies that had arisen a few weeks earlier. It is always difficult to know where to draw the line on a matter of this kind, but we believe that the Bill strikes the right balance. However, this issue is not black and white.
However, Amendment No. 69 is quite different. It attempts to make a similar provision for filling regional seats but this is not necessary. Clause 9 of the Bill explains how the seats are to be filled. The seat will be filled by the next person on the party list. This is normal procedure in countries where there are lists. The Scottish Constitutional Convention straightforwardly noted that this would be the process for filling seats in the event of a vacancy. If that is not possible, the seat will remain vacant until the next general election. If it is found that it cannot be filled by the next person in the list then the seat will remain vacant until the next general election. Since no by-election is needed and there will be no cost and inconvenience to the electorate there appears to be no reason to make a similar provision. We see no point in making an issue or problem where there is none and where people can be represented immediately if there is no difficulty about the next person on the list. I urge the noble Lord to withdraw his amendment.
The Earl of Mar and Kellie: Before the noble and learned Lord rises to his feet, perhaps I may clarify one matter with the Minister. Am I correct in understanding that the returning officer will go down the list until he or she finds a candidate who is available?
Baroness Ramsay of Cartvale: I shall write to the noble Earl if my understanding is incorrect. On the basis of my briefing, I understand that if it is not possible to fill the vacancy with the next person on the list the seat will remain vacant until the next general election.
Lord Mackay of Ardbrecknish: Perhaps I may intervene because of my experience on the other two
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Bills. If I hear the noble Baroness aright, she says that if for any reason the next person on the list does not want to take the seat a vacancy arises. My understanding is that if the next person on the list does not want to do it then it falls to the next person on the list. One only considers a vacancy if one runs out of names on the list. That is a matter that I shall probably raise on clause stand part. I believe I am right that if the next person on the list cannot or does not want to do it, the offer is made to the person below.
Baroness Ramsay of Cartvale: I agree with the noble Lord, Lord Mackay of Ardbrecknish. It is only if the list is exhausted that the seat falls vacant. Therefore, one goes down the list until a person is found.
Lord Mackay of Drumadoon: I am in the happy position of being in agreement not only with my noble friend but also the Minister. It is always easier to agree with my noble friend Lord Mackay of Ardbrecknish rather than to try to disagree with him.
As the Minister has said, this is a question of balance. The purpose of my amendment, which I believe is self-explanatory, is to try to eliminate any unnecessary differences between regional members who can serve for a few weeks and constituency members who will be deprived of such an opportunity and to bring them together, albeit in an imperfect way. As the Minister says, it is a question of balance. It is not an issue of great principle. Having raised the matter, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 agreed to.
10.15 p.m.
Clause 9 [Regional vacancies]:
[Amendment No. 65 not moved.]
Lord Mackay or Ardbrecknish Lord Mackay or Ardbrecknish moved Amendment No. 66:
Page 5, line 25, after ("is") insert ("legitimately").
The noble Lord said: In moving Amendment No. 66, I speak also to Amendment No. 67. Amendment No. 66 involves a narrow and probing point. I suspect that I know the answer, but I wish to have it confirmed. I have introduced the word "legitimately". I am referring to a situation where there is a vacancy and the next person on the list is considered. I have said that,
"He must be a person who is legitimately included in that list".
I have inserted the word "legitimately" to hear the Government's view about someone who is put on the list by a political party but, unbeknown to them, is disqualified perhaps because he has decided to stand as an independent for another seat, or something of that nature. What would happen? At what stage is someone legitimately on the list?
I appreciate that the political parties will try to sieve through that. But what happens if they fail to notice, or are not told? It could happen, although perhaps not

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often; it might be quite unusual. If it transpires that that person should not be on the list, the returning officer can skip over him.
Amendment No. 67 is more important in many ways, and is more than probing. Let us assume that someone who is a member of the Scottish parliament either dies or decides to resign. The returning officer looks at the next name on the list. The next name says, "Yes, I am delighted to be elected to the Scottish parliament". However, in the years between having been put on the list, and having had the election, that person has fallen out with his party and has left it. It seems to me to be totally illogical that that person could then take up a seat which was the party seat even though he had left the party.
The Government should address this issue. I am being perhaps firmer than I should like to be, but I know the Government's views on these matters. I wish to guard against the party saying to someone, "We don't like the colour of you any more. You are far too red and we're not having you. Therefore we're not going to let you have this vacancy. We'll miss you out". We get into great complications there. Therefore I am prepared to aim rather lower than my real objective and suggest that if a person is not a member of the registered political party, he or she should not be offered the vacancy. If the party tells the regional returning officer that his name is not to be notified to the presiding officer as the name of the person to fill the vacancy, he would not have the offer.
It gives the party more power than perhaps I should normally like. I wondered whether I would admit to this reason until we came to the summing up. But in case whoever of the noble Lords approaches the Dispatch Box tells me that we do not need to have this on the face of the Bill—as, no doubt, my noble friend Lord Balfour has noted and will tell us—these words are on the face of the Welsh Bill. I had put down an amendment to deal with this problem and at the same time the Government came forward with their own amendment. On the face of the Government of Wales Bill are the exact words of Amendment No. 67. It states:
"This subsection applies to a person if he is not a member of a political party"—
the provision is slightly differently worded as the Bill is written differently—
"and the party gives notice to the regional returning officer that his name is not to be notified to the presiding officer as the name of the person who is to fill the vacancy".
Dare I say in the presence of the noble Lord, Lord Thomas of Gresford, that if it is good enough for the Welsh it is good enough for the Scots? I beg to move.
Lord Thomas of Gresford: With that introduction, I, too, strongly support the amendment. The suggestion that appears in the Welsh Bill, and no doubt in the Scotland Bill, that a person can be a regional member chosen from the party list and yet at the same time can change his party and cross the Floor, causes me difficulty. The idea that a person who has been on a regional list can subsequently be appointed as a regional member because of a vacancy when he has left the party
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and when the party does not want him to be a member, carries the situation of cross-over of existing members to a ludicrous degree. I hope that, as has happened with the Welsh Bill, the Government will accept the amendment.
I heard the noble Lord, Lord Mackay of Ardbrecknish, say that either paragraphs (a) or (b) would apply, but the critical word is "and" at the end of subsection (4A)(a). Both conditions must be fulfilled. It states:
"This subsection applies to a person if … he is not a member of the registered political party, and … the party gives notice to the regional returning officer that his name is not to be notified to the presiding officer as the name of the person who is to fill the vacancy".
When we discussed the Welsh Bill, I understood that the purpose of having "and" was to ensure that a person is not disqualified, for example, because he has failed to pay his subscription and at the time when the vacancy arises he has ceased to be a member. Therefore both conditions are necessary; first, that he has left; and, secondly, that the party accepts that he has left and has notified the presiding officer to that effect. I strongly support Amendment No. 67.
The Earl of Balfour: My name is on the amendment. I believe that when it was moved in respect of the Government of Wales Bill it was a very sensible amendment. I can do no better than to quote from the speech of the noble and learned Lord, Lord Falconer of Thoroton, on that occasion. He said:
"This government amendment deals with the concerns expressed about the fairness of allowing people who had left a political party to remain on a party list put forward at an assembly election by that party. We believe that it would be an injustice and a disservice to the electorate if we were to allow a casual vacancy in a party list seat to be filled by someone who had been on the list at the time of the election but who had since left the party.
The electoral region ballot in the assembly elections will involve a choice between party lists or independent candidates. If they choose to vote for a party list, most voters will be voting for the party list as a whole rather than for any individual candidate on that list. The allocation of the electoral region seats in each electoral region is determined so as to compensate for any disproportionality in the seats won by the parties in the constituencies within that region".—[Official Report, 11/5/98; col. 916.]
I cannot put it better and it is a fundamental reason behind the amendments to which my name is attached.
Lord Sewel: I ought to make clear at the outset that there is no difference between us in terms of where we want to get to. There may be a slight difference in terms of the various routes we choose, but there is no difference on the need to deal with the issues and on the outcome. We fully accept that we shall need to provide for the situation in which individuals have left a party prior to becoming eligible to fill a list vacancy for that party between the elections.
It may be helpful if I draw to the attention of the Committee the fact that we have accepted already that it is an important point and by amendment in the Commons we have extended the power to deal with this matter in an order under Clause 11. That amendment in the Commons provided the means by which we could

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deal with this. I believe that that occurred before the Welsh issue was dealt with, but I may be wrong about that.
That approach seems to us to have merit in that it provides a flexibility to tailor the necessary provisions on party lists to take account of changes and circumstances which may arise in the future. In that area, it is quite difficult to be absolutely clear about the whole range of circumstances which may develop.
However, I understand and fully accept the view that Parliament should be able to consider in detail the way in which we propose to exercise the powers we have taken under Clause 11. I hope that the noble Earl will feel reassured when I tell him that the order under that clause will be subject to the affirmative resolution procedure in both Houses. Therefore, we shall have the opportunity to return to that issue in due course.
In the meantime, I am happy to offer the reassurance that we have no intention of using both powers in order to give parties a general power of veto over list candidates. A candidate who has fallen out of favour but is still at the right stage of the list cannot be leap-frogged by those who may find him something of a troublesome colleague. Therefore, we shall not give parties a general power of veto which we believe would be an abuse.
It is absolutely fair to point out that it would have been open to us to adopt the alternative approach taken in the Government of Wales Bill, as suggested by the noble Earl. But in the light of the fact that this problem had been spotted in the other place and that in this Bill we have chosen to amend the Bill as I have outlined to deal with the matter by order under Clause 11, I hope that the noble Earl will recognise that there is no point of difference between us in terms of policy or principle. It is a slightly different way of approaching the matter which provides a greater degree of flexibility to respond to particular circumstances. There will still be parliamentary scrutiny because the order envisaged under the amendment is subject to the affirmative resolution procedure in both Houses. Therefore, we shall have an opportunity to scrutinise the proposals in detail. I hope that Members of the Committee are reassured in relation to that.
On Amendment No. 66, I can understand what the noble Lord, Lord Mackay, is trying to achieve and I do not have any difficulty at all with that. The difficulty is that in terms of our electoral practice, it has not been the job of the returning officer to involve himself up to that point in determining the bona fides, the legitimacy, of candidates. He has had a relatively formal role. Basically, his role has been nothing more and nothing less than ensuring that the forms have been filled in properly. His job has involved that degree of scrutiny.
It would be a departure from normal practice to extend the role of the returning officer to start inquiring as to whether or not a candidate is legitimate in the sense that he has not been disqualified because of some act of commission, or some omission, on his part. Under present arrangements, we have the means to deal with that; that is, through the court procedures.
10.30 p.m.
Lord Mackay of Ardbrecknish: I believe that the noble Lord was beginning to answer that point. The problem is that Clause 4 contains all the debars that a political party's regional list must not include "a person" etc., but it does not say who will blow the whistle. If the noble Lord is saying that other political parties or individuals will have to keep an eye open for this and go to court, that is fine, but it seems rather elaborate. The returning officer is obviously the person who is in the best position to make a judgment about the legitimacy of such things.
I am not sure that the noble Lord can help us any further although perhaps the Government should consider this point when we go into this new system under which 12 names might be presented to the regional returning officer. To what extent will he check them? Currently the checks are provided by the proposers and seconders of the candidates in the first-past-the-post system. They look at the electoral register to see that the person is registered there. The disqualifications, if I can call them that, in Clause 4 are a good deal more than just that. I wonder who will make these checks.
Lord Sewel: I have got close to answering the noble Lord on this point. As things are at the moment, a challenge would come through, be made to the courts and be resolved through the courts. I am not saying that I shall go away and think again on this issue, but it is something on which I am quite happy to reflect over the long summer evenings that lie ahead of us.
Lord Thomas of Gresford: I am encouraged by the response of the noble Lord, Lord Sewel. I am puzzled as to why Clause 9 exists at all if Clause 11 can, by order, make provision as to
"the return of members of the Parliament otherwise than at an election".
Why do we bother with a whole clause dealing with regional vacancies? I see no reason why provisions like those in the Government of Wales Bill should not be included on the face of this Bill to make the position absolutely clear.
The difference between Clause 9 and Clause 11 is that the provisions of Clause 9 are mandatory whereas Clause 11 sets out a discretion for the Secretary of State to make such provision as he thinks fit for all sorts of things. None of them specifically deals with the particular matter that is referred to in Amendment No. 67. The principle is clear. Why should it not appear in Clause 9?
Lord Sewel: I have given the assurance that we will be bringing forward an order under Clause 11 to deal with the point that the noble Lord has made. I have given that assurance. This Bill and the Welsh Bill have developed differently in the different Houses. You can have two routes to the same destination. I would

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have thought that this is a Scottish solution to a Scottish piece of legislation. There is quite appropriately a Welsh solution to a Welsh piece of legislation.
Lord Mackay of Ardbrecknish: I am grateful to the Government for seeing the point that we are making in Amendment No. 67 and in making it clear, as I think they did, that they intend to bring in an order. But I am in agreement with the noble Lord, Lord Thomas of Gresford. If he, as a lawyer, cannot read through Clause 11 and see that this issue could be dealt with under Clause 11, what hope is there for the rest of us? This is an important issue. It relates to who may be elected in a by-election. It is not exactly a small matter such as the size of the print on the ballot paper or other matters that can easily be dealt with in regulations. I believe this is quite an important issue.
The Earl of Balfour: In respect of the amendment which is tabled in my name, I must point out that the same provision was included in Clause 9 of the Welsh Bill. In respect of Clause 11, even in the Government of Wales Bill, it has exactly the same title:
"Power to make provision about elections etc.".
I accept that the wording of Clause 11 is rather wider in the Wales Bill than in the Scotland Bill. I did not necessarily mean to interrupt my noble friend Lord Mackay, but perhaps the Minister will take the matter away and just think about it between now and the Report stage. I believe that there may be a little more in this than I can read in the present Clause 11 of the Bill.
Lord Mackay of Ardbrecknish: My noble friend has made a fair point. I believe that the Minister has accepted the principle; indeed, there is no division on that point and I do not want to labour it. However, it is an important issue because by-elections are important. The Welsh Ministers obviously decided that it was important enough to have it made clear in the Government of Wales Bill. Therefore, why must we have in this Bill the words:
"He must be a person who … is included in that list, and is willing to serve"?
Why could not the reference to "willing to serve" be left to order-making powers?
I can see that there is a grey area here as regards whether it should be covered by order-making provisions or included on the face of the Bill, but I actually think that the balance is probably more in favour of it being included in the legislation. Under Clause 11, the Government will still retain the ability to make an order changing the issue if it requires to be changed and if anything needs to be done in the future because of a change in circumstances. Therefore, although we are all pleased to hear the Minister's assurance, I am sure that he is getting the general message from the noble Lord, Lord Thomas.
Lord Sewel: Perhaps I may intervene in an effort to try to be helpful to the Committee. As has been pointed out, there is no difference between us in terms of principle or of policy. Without giving any assurances, I shall be happy to think about the matter. I shall be
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guided in what I recommend at a later stage in terms of whether or not I am convinced that there is a need to retain the slightly greater degree of flexibility that the order route gives, rather than putting such provision on the face of the Bill.
Lord Mackay of Ardbrecknish: I am sure we all fully accept that, even if our amendment were placed on the face of the Bill, the Government would still have to put forward a legitimate case for having powers under Clause 11 to make changes in the future. There is not much between us on the issue, especially as the Minister has promised to think it over during the long summer evenings. However, if the summer continues as it is at present, he will do so accompanied by the pitter patter of raindrops rather than enjoying pleasant summer evenings with the sun shining. In the circumstances, I beg leave to withdraw the amendment in the hope that, when we return in the autumn, the Minister will bring forward his own amendment which will achieve what we all desire.
Amendment, by leave, withdrawn.
[Amendments Nos. 67 to 69 not moved.]
On Question, Whether Clause 9 shall stand part of the Bill?
Lord Mackay of Ardbrecknish: I have a small point to raise here which really came to my mind during the intervention made earlier by the noble Earl, Lord Mar and Kellie. It is really a cross-over to the European parliamentary Bill. If a vacancy occurs in a party's list in what I suspect would be very unusual circumstances—because I should not have thought that a party is likely to get more than three or four people elected from the list, even if it was doing very well indeed on the list vote and not so well on first-past-the-post—it is unlikely that the returning officer in the case of by-elections will ever come to the twelfth name and, so to speak, drop off the end because there is no "next person" to fill a vacancy.
However, if I understood the Minister's reply correctly, and in fact the Bill makes no provision in that respect, there will be no by-election. It is perhaps to the disadvantage of Members of the Committee that I am also involved with the European Parliamentary Elections Bill where, in such circumstances, there is provision for a by-election. I know that I have not tabled an amendment in this respect, but I shall be quite happy to receive a letter from the Minister on the matter. I can envisage the Minister saying to me that, while there are first-past-the-post seats, it is not such a big problem because all the European parliamentary seats are off the list. But there will still be one member of the parliament short and the proportionality which is desired will not be achieved. I think there may be some merit in considering a by-election provision in those circumstances, as is done in the European Parliamentary Elections Bill. As I say, I accept that I have rather sprung this on Ministers. I shall be content with a written reply later if I cannot have a reply now.
Lord Sewel: I think the most helpful thing I can do is to refer the noble Lord to Clause 9(2) which states,
"If the regional member was returned as an individual candidate, or the vacancy is not filled in accordance with the following provisions"—
we know what the "following provisions" are because the noble Lord, Lord Mackay, has described them—
"the seat shall remain vacant until the next general election".
The noble Lord is right in his assumption that the opportunity does not exist for a by-election.
Lord Mackay of Ardbrecknish: I do not wish to press this but why is the opportunity not available when it is in the European Bill?
Lord Sewel: That is again something that I shall reflect on during the long summer evenings.
Clause 9 agreed to.
Clause 10 [Electors]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 70:
Page 5, line 40, leave out ("local government") and insert ("Parliamentary").
The noble Lord said: In moving Amendment No. 70 I wish to speak also to Amendments Nos. 71, 72 and 73. The electoral register on which the Scottish parliament is to be elected is to be the local government register. I wonder whether that is not a case of equating the Scottish parliament with local government, and if we should not have the Scottish parliament elected from the parliamentary register with the addition of those Members of your Lordships' House who, of course, are debarred from voting. While this may look as if I am putting in a caveat for our own interests, to be honest in the seat in which I live in Glasgow I do not think it will make too much difference if I have a vote or not, but it may do as regards the additional member seats in Glasgow. I wonder, however, about the signal the Government are giving in that we are operating on the local government register and not on the parliamentary register. I beg to move.
Lord Mackie of Benshie: I am not in favour of this amendment. I do not have any daughters in Italy or anywhere else that I know of. It is logical that the local government electorate should elect the Scottish parliament. We have been through this argument. The parliamentary elections for the Westminster Parliament enable citizens living overseas and elsewhere to vote. But I do not think that those who are not living in Scotland are a logical electorate in the way that the local government electorate are. I do not approve at all of the amendment.
Lord Sewel: I thought we were heading towards the Italian "job" yet again, but that is not the case. The point, quite simply, is whether the franchise for the parliament should be drawn up on the basis of where people live currently or where people have lived in the past. We had this debate in the context of the referendum where we chose the local government franchise on the basis that it is the people who are living
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in Scotland who will be most directly affected by the decisions of the Scottish parliament because that parliament will have domestic responsibilities only. The referendum on whether there should or should not be such a parliament is a matter which should rightly be decided by those who will be most directly affected by it, and therefore the local government franchise is appropriate. The same argument holds with equal validity in relation to the question of who should vote for members of the Scottish parliament.
The basic difference is simply in the parliamentary franchise; namely, that British citizens who live abroad would have a vote. Under the local government franchise they do not have a vote, but European Union citizens resident in this country do. That kind of adjustment from the parliamentary to the local government franchise is wholly appropriate for a domestic parliament, as the Scottish parliament will be. I hope that the noble Lord will feel able to withdraw his amendment.
10.45 p.m.
Lord Mackay of Ardbrecknish: I am pleased that the noble Lord, Lord Mackie, remembers my interest in overseas voters, especially those who live in Italy. That was not my main reason for tabling the amendment, although I accept that the consequence would be that UK citizens living abroad who are normally resident and on the register in Scotland would have a vote for the Scottish parliament; and that European Union citizens temporarily in Scotland would not have a vote for the Scottish parliament.
I do not particularly want to rehearse that argument, although I believe that there is a good case to be made for it being UK citizens and people on the parliamentary register in Scotland who vote. My main point—and I am surprised at the view adopted by the Liberal Democrats and the Government—is that, if this is to be a serious parliament, as the noble Lord, Lord Sewel, has told me it is to be, and as I fully accept, then it ought to be based on the parliamentary register, not the local government register. However, at this time of night I see that I am not moving the Minister at all. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 71 to 75 not moved.]
Clause 10 agreed to.
Clause 11 [Power to make provision about elections]:
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 75A:
Page 6, line 5, after ("provision") insert ("other than provision relating to electoral offences").
The noble Earl said: We come to a grouping dealing with amendments to the powers of the Secretary of State to make provision about elections. In moving this amendment, I shall speak also to Amendment No. 253A. Both of these amendments were suggested to me by the Law Society of Scotland.
The purpose of Amendment No. 75A is merely to probe the extent to which criminal offences, under the Representation of the People Acts and other electoral legislation, may be applied to Scottish parliamentary elections by order of the Secretary of State.
The Secretary of State's wide regulatory powers under this measure require to be more closely defined. That is particularly so in respect of whether the criminal consequences of electoral fraud and similar issues can be applied by way of an order alone.
Amendment No. 253A is an amendment to Clause 40, which deals with calculating the time for the meeting of parliament. The amendment provides a clarification that public thanksgiving and public mourning are defined as being that, both in Scotland and in the United Kingdom. I beg to move.
The Earl of Balfour: Amendment No. 77 in my name relates to this matter. I took the amendment straight out of the Government of Wales Bill, from its equivalent to Clause 11.
Clause 11 commences with the words:
"The Secretary of State may by order make provision as to … the conduct of elections",
and so on. I feel the clause should spell out that criminal offences under the Representation of the People Acts and other electoral legislation may be applied to Scottish parliamentary elections by a Secretary of State's order. The Secretary of State's wide regulatory powers under this measure require to be more clearly defined, particularly in respect of whether the criminal consequences of electoral fraud and other similar issues are covered. I hope Ministers will bear that in mind.
As the amendment is grouped with Amendment No. 253A, it brings my mind to something rather different. The amendment is on page 28 of the Marshalled List, and is related to Clause 40. That clause, on page 18 of the Bill, deals with calculating the time for meeting of the parliament, as has already been pointed out by the noble Earl, Lord Mar and Kellie. However, I ask the Committee to turn to page 83 of the Bill, Schedule 5, Part II, Head 11, Section 5—Time. I am not sure that the amendment proposed by the noble Earl would fit in with either a devolved or non-devolved point under that. I shall repeat the reference: page 83, Schedule 5, Part II, Head 11, Section 5—Time.
Lord Mackay of Drumadoon: The amendments moved so far are grouped with others in my name: Amendments Nos. 76, 79, 80, 81, 82 and 83. This is a series of minor amendments designed to bring about certain small but potentially important alterations in the Secretary of State's order-making powers in relation to the laying down of rules for the conduct of elections.
Amendment No. 76 prevents the rules from making provision for disregarding alterations in the register of electors. If the register has been made up in accordance with the rules or altered in accordance with the rules, it does not appear that there could be any good reason why, for the purposes of conducting either a general election under the Bill or a by-election for a constituency member, a returning officer or anyone else
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should be given the alternative of disregarding alterations to the register that have been competently carried out.
Amendment No. 79 would require any rules relating to the countermanding or abandoning of elections which had been called to require an order from a sheriff rather than to be left to the administrative decision of the returning officer. Such events as the countermanding or abandoning of an election are likely to occur only infrequently. In those circumstances it seems better that the matter should be under judicial control so that any party who may wish to object to the making of such an order has the opportunity for a prompt hearing before the sheriff. Presumably that could be done by way of a summary application.
Amendment No. 80 is an amendment suggested and supported by the Law Society of Scotland and is arguably one of the more important ones in this grouping. It seeks to prevent the Secretary of State creating new criminal offences by secondary legislation. The power it is currently proposed to give to the Secretary of State is open-ended and, as my noble friend Lord Balfour indicated, it is one that needs to be more closely defined. If electoral fraud or other criminal conduct connected with elections is to be controlled, then this Parliament should lay down the necessary offences as it has done on previous occasions; for example, in the Representation of the People Acts.
The Bill as currently framed proposes that orders made by the Secretary of State under the order-making power shall be by way of affirmative resolution procedure. Indeed, in the memoranda submitted to the Delegated Powers Scrutiny Committee of your Lordships' House by the Scottish Office, it was stated that the matters to be dealt with in the order in relation to such offences are sufficiently important to merit the scrutiny which will follow in consequence of being debated in both Houses.
That is undoubtedly correct. But the problem is, as Members of the Committee will be aware, that, while the affirmative resolution procedure allows debate, it does not permit amendment of the order being debated. It seems wrong in principle for new electoral offences to be approved by your Lordships' House without it being possible to have them open to scrutiny and, if appropriate, amendment. Clause 101(9), which limits the penalties which can be imposed, does not go far enough to constitute sufficient protection for addressing the issue raised by the Law Society.
Finally, Amendments Nos. 81 to 83 seek to remove reference to the European Parliamentary Elections Act 1978 and other references to the European parliamentary elections from Clause 11. The Scottish parliament is to be a parliamentary body within the United Kingdom. I suggest that elections to the parliament be regulated so far as possible according to the law relating to the elections to this Parliament and that it is not necessary to involve any reference to elections to the European Parliament.
11 p.m.
Lord Hardie: I note that Amendments Nos. 75A and 80 to 82 are probing amendments to see how we intend to use the order-making powers to determine the conduct of elections. I appreciate the reasons for such probing amendments.
I should advise the Committee that the Government have already begun discussion with opposition parties and electoral practitioners aimed at devising the arrangements for the conduct of polls. The outcome of those discussions will influence the order which is ultimately provided.
Turning to the amendments, there is a focus in Amendments Nos. 75A, 77 and 80 in particular on election offences. We are aware that there is concern about what our intentions are in respect of those and why we wish the order to deal with them. We need to be able to draw on existing provisions governing the conduct of elections, including those for election offences, in setting out the rules for election to the parliament. I do not believe that Members of the Committee would disagree with that approach thus far. But it is also necessary, because of the changes, to make provision to take account of things which are new in the Bill—notably the introduction of the additional member. Therefore, we need the flexibility which Clause 11 provides. As the noble and learned Lord, Lord Mackay of Drumadoon, has observed, the Bill stipulates that the order will be subject to affirmative resolution. It will be subject to the scrutiny of both Houses of Parliament. Noble Lords and Members of another place will have an opportunity to discuss the details of the proposals. There is nothing unusual in enabling offences to be created by secondary legislation, particularly where it is to be by way of order subject to affirmative resolution.
Our basic approach will be to follow commonsense and previous practice in all the issues to be covered in the order. We are not going to start afresh. We shall look at the existing provisions. As I have already said, as far as we can we shall adapt them to meet the new situations. We shall obviously rely upon the previous practice which has served us well in the past. For that reason, we have drafted the Bill to provide the powers and flexibility which will enable us to do that.
Amendment No. 76 seeks to prevent the order-making provision for disregarding alterations in the register of electors. For parliamentary and local government elections, Section 11(3) of the Representation of the People Act 1983 provides that alterations to registers which are made on or after the date on which notice of an election is given do not have effect for the purpose of that election. There are good reasons for having a cut-off point. For example, there has to be a cut-off date to allow for the effective processing of absent vote applications. The system of having a cut-off point for alterations to the register has worked well in the past and we can see no reason to change it now. Clause 11(2)(b) will enable us to do that.
As to Amendment No. 79, it appears that the intention is to enable an election to be challenged before the poll has taken place. If my understanding is correct, we would resist this amendment. The present approach is
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that elections, generally speaking, are allowed to take place and are then challenged after the event. I accept that there is provision for countermanding or abandoning polls at present—for example, where the candidate dies—but that is not subject to judicial control; it happens automatically. It occurs only in that special situation, without the need for the intervention of the court. We see no compelling reason to change the approach for elections to the Scottish parliament.
As to Amendment No. 253A, the noble Earl, Lord Mar and Kellie, addresses the issue of how the periods between the elections to the parliament and its first day of sitting should be calculated. The noble Lord is particularly concerned about the treatment of days of mourning and thanksgiving.
Perhaps I may deal with the interesting point raised by the noble Earl, Lord Balfour, about the inter-relationship between Schedule 5 and this amendment. I had not thought of the point until it was raised by the noble Earl. It is an interesting proposition. Fortunately, it is not necessary for me to give any view on that this evening.
Clause 40 applies for the purposes of Clause 2 and Clause 3 of the Bill, which provide that after a general election the parliament must meet within a period of seven days beginning on the day immediately following the poll at that election. However, in calculating that period certain days must be disregarded. They are specified as Saturdays, Sundays, Christmas Eve, Christmas Day, Good Friday, Bank Holidays in Scotland, and days appointed for public thanksgiving or mourning.
As I understand the concern of the noble Earl, Lord Mar and Kellie, it is that the Bill should make it clear that all days of thanksgiving or mourning in Scotland shall be disregarded whether they apply in Scotland only or to the UK as a whole. The noble Earl may be pleased to know that it is our view that his amendment is unnecessary. As matters stand, references in electoral law already applying to Scotland, both for national and local elections, refer simply to days of mourning or thanksgiving, without the need being seen for any further qualification.
In practice, of course, days of mourning and thanksgiving have always been used to mark only the most significant of events, which are of the widest importance. I cannot think of any occasion in recent history when separate arrangements for such days have been felt to be appropriate for Scotland as opposed to the rest of the United Kingdom.
This group of amendments has raised a number of interesting points and provoked a constructive and stimulating debate. We appreciate that in certain respects the detailed rules about elections to the Scottish parliament will require to depart from the model of existing electoral legislation, not least because of the innovative aspects of some of our proposals for those elections such as the additional member system. However, we intend, in the main, to build on tried and

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tested procedures. We believe that Clause 11 as drafted at present will give us appropriate powers for those purposes and there are appropriate safeguards for your Lordships to supervise and scrutinise the order at the appropriate time. In those circumstances, I would urge the noble Earl to withdraw the amendment.
The Earl of Mar and Kellie: I thank the noble and learned Lord for his explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 76 to 84 not moved.]
Clause 11 agreed to.
Clauses 12 and 13 agreed to.
Clause 14 [Disqualification from membership of the Parliament]:
The Chairman of Committees: In calling Amendment No. 85, I must point out to the Committee that, if it is agreed to, I cannot call Amendments Nos. 85A to 88 inclusive.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 85:
Page 7, leave out lines 11 to 25.
The noble Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 86, 87, 88, 89 and 90. Amendments Nos. 85A to 85D stand in the name of the noble Earl, Lord Mar and Kellie.
We turn to disqualification from this new parliament. My amendments are something of a pick and mix. The first amendment, which might be described as the bolder amendment, seeks to leave out lines 11 to 25. The clause would then read:
"A person is disqualified from being a member of the Parliament (subject to section 15) if … he is disqualified from being a member of the House of Commons".
That seems straightforward and simple. We think there is merit in aligning the disqualification from the Scottish parliament with disqualification from the other place. That is clearly contained in legislation for the other place and does not need any more lines in a Bill. If the noble and learned Lord, Lord Simon of Glaisdale, were here at this time of night, he would no doubt say that superfluous words ought to be removed from legislation.
In this case, I think that some superfluous words could be removed from legislation. That is my bold suggestion—that we should simply align the disqualification with the disqualification for the other place. The Government should consider that. It would save them a lot of words and it would be simpler. If the other place decided to change the disqualification, that would carry over to the Scottish parliament. The Parliament of the United Kingdom is senior and the other is the devolved parliament. I do not believe that anyone is saying for a moment that someone could be disqualified for one and not the other. That is an illogical position.
Amendments Nos. 86 and 88 deal with Clause 14(1)(d) and subsection (2) where an Order in Council
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could be made in order to increase the disqualification in the Scottish parliament. Reference is made to,
"an office-holder of a description specified in an Order in Council".
We believe that disqualification should be decided either in the other place for both parliaments or it should be decided by primary legislation, but not by Order in Council. I do not believe that this is a matter for secondary legislation, but for primary legislation or, as I say, for the other place to deal with on behalf of both parliaments. Very simply, that explains Amendments Nos. 86 and 88.
Amendment Nos. 87 and 89 are linked with which electoral register is used, not so much for voting but for standing. Amendment No. 87 states,
"A citizen of the European Union who is not also a British citizen, a citizen of the Republic of Ireland or a Commonwealth citizen is disqualified from being a member of the Parliament".
That would put the Scottish parliament on all fours with the House of Commons. For myself I believe that to be right and proper. Amendment No. 89 is consequential on Amendment No. 87.
Amendment No. 90 leaves out of Clause 15 subsections (3) to (5). We have an interesting position in subsection (3) in that the parliament can decide in individual cases and waive the disqualification, if I read it right. It may be that I am wrong about that and I am misreading it. I do not believe that that is right. I am not sure that the parliament should have powers of that kind. Either a person is disqualified or not. There cannot be "disqualified but" because a person is disqualified or they are not. Essentially, it is a matter for the courts if the matter is disputed.
All these matters deal with disqualification. In the first instance they are an attempt to simplify. In the other amendments they are to lay out some sensible alterations to disqualification, one concerning citizens who are not British or of the Republic of Ireland with which we have had a long and special relationship—after all, that is in our current electoral arrangement for the other place—or for Commonwealth citizens who are not disqualified from being members of the other place. These provisions will bring the Scottish parliament into line with the Westminster Parliament. That is sensible. The last amendment means that Parliament is unable to say, "Yes, you are disqualified, but", which is how I read the last three subsections of Clause 15. I beg to move.
The Earl of Mar and Kellie: Amendments Nos. 85A to 85D in my name were suggested to me by the Law Society and continue the theme of looking at the disqualifications. Amendments Nos. 85A and 85B extend those to persons who are disqualified from membership of the Scottish parliament. The following issues of principle arise from this provision. The disqualifications in Clause 14 do not include the office holders described in Parts II or III of Schedule 1 to the House of Commons Disqualification Act. These disqualifications include members of various public bodies ranging from the Advisory Board for the Research Councils to the White Fish Authority and include the Accountant of Court and various other Crown appointees. They include standing counsel to any

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department of the UK Government. There appears to be no rationale for excluding these office-holders from disqualification.
I turn to Amendment No. 85C. This amendment amplifies the disqualification from membership of the parliament of Lords of Appeal in Ordinary to bring the clause into line with other provisions of the Bill. The disqualification of Lords of Appeal in Ordinary takes account of the fact that Part I of Schedule l to the 1975 Act includes various judges but does not refer to Lords of Appeal in Ordinary. Due to the role which Lords of Appeal in Ordinary perform in the judicial scrutiny of devolution issues under Clauses 91 to 96 and Schedule 6 to the Bill their exclusion is appropriate.
However, Clause 94(2) provides that the Judicial Committee shall comprise those who hold or who have held the office of Lord of Appeal in Ordinary or high judicial office as defined in Section 25 of the Appellate Jurisdiction Act 1876. Accordingly, retired Lords of Appeal in Ordinary or judges can sit on the Judicial Committee. Those retired judges on the face of it will not be subject to the disqualification, unless it is the Government's intention to include such office holders under the terms of Clause 14(1)(d) by making reference to them in an Order in Council.
Finally, Amendment No. 85D is extremely brief and is consequential to the previous amendment. Its effect is to amplify the disqualification from membership of the Scottish parliament of Lords of Appeal in Ordinary.
Lord Sewel: This group of amendments is intended largely to restrict further the categories of people who are eligible to become members of the Scottish parliament. The starting point is the Government's commitment to ensure that membership of the Scottish parliament is as open to as wide a range of people as possible while making provision for appropriate disqualifications. But it is quite right that those disqualifications must be individually justified. We do not accept that we should adopt en bloc disqualifications that apply to other parliaments.
I deal with Amendments Nos. 85, 86, 88 and 85A and 85B. These amendments attempt to prescribe that those people who are disqualified from being members of the other House by all of the provisions of the House of Commons Disqualification Act 1975 are also disqualified from standing for the Scottish parliament. Amendment No. 85 appears to go further and seeks to link the grounds of disqualification entirely to those applying to membership of the other place. The grounds of disqualification provided in the Bill already substantially match those applying to membership of the other House, subject only to a few exceptions which the Government believe are justified in the context of the Scottish parliament.
Section 1(1)(f) and Parts II and III of Schedule 1 to the 1975 Act are one of the exceptions. At present those provisions list a wide range of offices, the holding of which is considered to be incompatible with membership of the other place. In some cases those offices are in bodies whose remit does not extend to
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Scotland and so it should be considered whether there is really any reason to disqualify such office-holders from the Scottish parliament. In some cases it might be, and in others it might not. Conversely, there will be particular offices in Scottish bodies which might be set up in the future by the Scottish parliament which should disqualify the holder from being a member of the parliament although not of the other place.
Clause 14 confers powers enabling particular office holders to be disqualified from membership of the Scottish parliament. Amendments Nos. 86 and 88 remove this provision. I think it is right that there needs to be provision for specific office holders to be disqualified and for the list of such offices to be relevant to membership of the Scottish parliament and to be updated from time to time. I would have hoped that all noble Lords would agree that this degree of flexibility is appropriate.
On Amendments Nos. 85C and 85D, the Government cannot support the noble Earl. It was necessary in Clause 14 to make special provision disqualifying serving Lords of Appeal in Ordinary from becoming MSPs. This is because of the exception in Clause 15 for Peers. Without this express disqualification there would be nothing else disqualifying Lords of Appeal in Ordinary as they are not covered by the disqualification of judges under the 1975 Act.
I suspect that the noble Earl's amendments were prompted by concerns that past Lords of Appeal and retired judges may become MSPs and may also be eligible to sit on the Judicial Committee of the Privy Council to consider devolution vires issues. I think that the noble Earl worries without cause. There is, quite rightly, nothing to stop such well qualified people from becoming MSPs. However, the composition of the Judicial Committee to hear devolution cases will be decided by the senior Lord of Appeal in Ordinary. Clearly, the noble and learned Lord would want to consider whether it would be appropriate for an eligible member who was also an MSP to consider a devolution case. I would expect that he would consider that it was inappropriate. So I think the matter is dealt with best like that.
Amendments Nos. 87 and 89 seek to limit the EU citizens who can stand. The Government believe that it should be open for EU citizens resident in the United Kingdom to become members of the Scottish parliament. This was made very clear in the White Paper which said that those eligible to stand will be UK citizens, including Peers, Peeresses, priests, ministers of religion, Commonwealth citizens and Republic of Ireland citizens, as well as EU citizens resident in the United Kingdom. I have no difficulty with the concept that someone who was born in another country in the European Union but who is now resident in the UK should be able to stand for election. It is for the parties to select such people if they wish, and ultimately for voters to decide whether they wish to be represented by such a person, but I see nothing wrong or unacceptable in the idea that a citizen of a country in the European Union who is resident in this country should be able to stand for election. It is up to the voters ultimately to decide whether he or she would be suited to represent

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them. There is a strong argument that the parliament would benefit from the cross-fertilisation of ideas that people with such diverse backgrounds would bring.
In Amendment No. 90, noble Lords seek to discover why we think it appropriate that the parliament should be able to resolve to disregard a disqualification if it considers that the ground has been removed and that it is proper to do so. This reflects a provision in the House of Commons Disqualification Act 1975 on which the Opposition placed such store with their earlier amendments. Given that we have applied much of the 1975 Act, it is entirely appropriate that the Parliament should have the same powers as the other place to disregard qualifications under it in appropriate circumstances. For example, there may be circumstances where a member was unaware that he was disqualified, but, once he realised that he was, acted to remove the grounds for the disqualification. Alternatively, the member might have sought deliberately to hide the fact that he was disqualified and acted to remove the ground only when discovered. Surely, the parliament should be able to take different types of behaviour into account.
In the light of those explanations, I invite the noble Lord to withdraw the amendment.
The Earl of Mar and Kellie: Will the Auditor General for Scotland, who is mentioned in Clause 66, be disqualified? I appreciate that I have not tabled an amendment in relation to that.
Lord Sewel: I would be most surprised if the Auditor General for Scotland were not disqualified. If it turns out that he, she or, indeed, it is not disqualified I shall certainly write to the noble Earl.
Lord Selkirk of Douglas: I wish to ask a question in relation to Amendment No. 85C. If the Minister is saying that it is permissible for a retired judge or Lord in Ordinary to sit as a member of the Scottish parliament, surely there should be a bar on that person sitting as a member of the Judicial Committee of the Privy Council. It is not just a question of it being inappropriate, there should also be a bar. That person, he or she, will have a conflict of interest or will be unable to exercise impartiality in the consideration of any relevant matter which affected the Scottish parliament.
Lord Sewel: The selection of the judges to determine vires cases on devolution matters would be carried out by the senior Lord of Appeal in Ordinary. It is absolutely beyond belief that the senior Lord of Appeal in Ordinary would choose a retired judge who was an MSP to hear such a case. It is not something that could or would be contemplated.
Lord Mackay of Ardbrecknish: I am grateful to the Minister for his detailed explanation of why the Government do not believe that the various amendments are necessary or desirable. I remain of the view that if it is good enough for the House of Commons it is good
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enough for the Scottish parliament. But, clearly I cannot persuade the noble Lord about that and there is no point in trying at this time of night.
I am always surprised by the noble Lord's desire to allow European citizens to have the kind of voting rights in this country that he would not have in other countries. But I suppose, as my noble and learned friend Lord Mackay of Drumadoon said to me, it is not so much quota hoppers as voter hoppers on which the Government are keen.
However, we shall read with considerable interest what the noble Lord has said, compare it with the situation in the House of Commons and see whether there is anything to which we should like to return on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 85A to 86 not moved.]
Clause 14 agreed to.
Clause 15 [Exceptions and relief from disqualification]:
[Amendments Nos. 89 and 90 not moved.]
On Question, Whether Clause 15 shall stand part of the Bill?
The Earl of Mar and Kellie: I wish to raise a brief point about Clause 15. Line 28 reads:
"he is a peer (whether of the United Kingdom, Great Britain, England or Scotland), or".
I believe that that is in the wrong chronological order and that, judging by the precedence, the order ought to be England, Scotland, Great Britain and the United Kingdom.
Lord Sewel: I am obliged to the noble Earl.
11.30 p.m.
Clause 15 agreed to.
Clause 16 [Effect of disqualification]:
[Amendments Nos. 91 to 94 not moved.]
Clause 16 agreed to.
Clause 17 [Judicial proceedings as to disqualification]:
[Amendment No. 95 not moved.]
Clause 17 agreed to.
Clause 18 [Presiding Officer]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 96:
Page 9, line 12, leave out ("Presiding Officer") and insert ("Speaker").
The noble Lord said: This series of amendments basically does two very simple things: it takes two very inelegant titles and changes them into more elegant titles which the population will understand.
"Presiding Officer" seems to me to be even worse than "First Minister". When I first read the Bill, I thought that we were talking about the chap who sits at the polling station. It turns out that that is not the case. We are talking about the person who presides over the parliament.
All over the English-speaking world, in national parliaments and in provincial parliaments, where they have them, they call the person who sits in the chair the "Speaker". That is done in Canada, Australia and America—everywhere. Why the traditional name of "Speaker" has been created is lost in history and has no relevance to those countries, but it has become the accepted name for a person who chairs a parliament. It is quite simple. The person who chairs a parliament is called a "Speaker".
Indeed, already one sees that when articles are written in Scottish newspapers about this issue, they refer to "Presiding Officer or Speaker". I gather that there are one or two people who quite fancy themselves as "Speaker" or "Presiding Officer" of the parliament. If we are serious about it being a serious parliament, let us not beat about the bush. The man or woman is going to be called the "Speaker". We shall not get away from that simple proposition. Why do we not accept it?
As regards the first minister, I can see why the Government do not wish to use the title "Prime Minister". On balance, I believe that they are right. But they must choose a title that will stick. Interestingly enough, although I have not brought it with me, I received a briefing note from one of the various pressure groups which briefs us about issues from time to time, dealing with an issue not directly connected with this Bill. It dealt with something else. In its midst, reference was made to that man or woman as "First Minister (Prime Minister)".
At the risk of hearing some laughter from Members of the Committee, perhaps I may point out that I remember a time when a previous government attempted to call something a name by which the rest of the population did not wish to use for it. Despite the best endeavours of the previous government to call the community charge the "community charge", it very rapidly became the "poll tax". After quite some time my noble friend Lady Thatcher fell into the trap of referring to it herself as the "poll tax" and it then became the universal language of describing what in legislation was called the "community charge".
I know it is not a political issue of quite that regard, but this is a good indication of the fact that governments should be mindful that it is quite difficult to describe something in terms which are different from the public perception. The public perception will be of a "Speaker" and if we can get it to stick, I prefer the title of "Premier". I think that will be accepted because, occasionally, the Prime Minister of Britain is called the "Premier". It is not common usage, but the title is used. We should be well advised to use that term.
It is not a great point of principle, but it seems to me an indication that we are taking this parliament seriously. The Government keep telling me that they are taking it seriously, as do the Liberal Democrats. They keep telling me that I should take it seriously. I am taking it seriously. I believe that the person who presides over the parliament should be called the "Speaker", as happens in so many other parts of the word and that
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the first minister should be called the "Premier" as also happens in so many other parts of the world. I beg to move.
Lord Mackie of Benshie: Our amendment, Amendment No. 256, is grouped with this amendment. I agree totally with the noble Lord, Lord Mackay, about the term, speaker. Presiding officer is quite ridiculous. Speaker is known throughout the world and does not cut across any particular office which could give offence to this Parliament here. Prime minister I am not sure about. It always makes me think of "prime beef" and that is perhaps not the best indication. I do not mind first minister but the whole point of our amendment is that the Scottish parliament should decide. It should pick all these names. Obviously, it will consider the susceptibilities for the Prime Minister of Great Britain and everything else, but it should select the names of its officers. Speaker will be one of them. There are other Scots names in common use, such as convenor. That might be used, although I do not like it. But it is for the Scottish parliament to decide. That covers the points made by the noble Lord, Lord Mackay. I recommend Amendment No. 256.
Baroness Carnegy of Lour: The important point here is that the name should make plain to people from the start what the role of that person is. If the presiding officer was known as the speaker that would be absolutely plain. I do not think that any confusion at Westminster would arise because it would be the speaker of the Scottish parliament.
First minister I do not mind so much. It describes fairly clearly that person without creating confusion with the Prime Minister. Premier is possible. I am not sure that this matter should be left to the parliament. On the face of it, it might look a good idea. However, because the distinction is so important and because we want to know right from the start, even before the parliament is convened, what these people do, and to make clear to the public what they do, I believe they should be on the face of the Bill. I think that speaker is an excellent idea.
Viscount Thurso: I support my noble friend. I had intended to put down an amendment which would have been grouped with these amendments because I thought that the term presiding officer was not descriptive, would not be understood and is not particularly Scottish.
I was recently called upon to chair a meeting of a body set up under an 1841 Act of Parliament. I shall not mention it here because I have made a pact with the noble Lord, Lord Sewel, not to do so during the course of this legislation. However, when the clerk read out the notice convening the meeting, the first thing that was required was that a "precess" needed to be elected. That is apparently a term in Scottish legislation for someone who presides and it is quite widely used in Scottish affairs dating from that period. I had thought to put down an amendment changing presiding officer to precess. On seeing my noble friend's amendment, Amendment No. 256, however, it seemed perfectly clear

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to me that the principle which should rule is that the Scottish parliament should be allowed to choose whatever is appropriate.
We only need a term for the purpose of passing this legislation which allows us clearly to understand the powers we are giving to a particular person. Whatever the name may be, it is for that purpose of passing clear legislation that we need it at this stage. As the noble Lord, Lord Mackay of Ardbrecknish said, popular usage will determine what these people will be known as. In future, if the Scottish parliament wishes to change the names, then let us allow it to do so. The most sensible solution, for the sake of clarity, is to use the terms we have in the Bill for the moment and then enable the Scottish parliament to make a change at a later stage.
Baroness Ramsay of Cartvale: The Government cannot accept Amendments Nos. 96 and 99 to 101 which seek to change the title of the parliament's "Presiding Officer" to "Speaker", or Amendments Nos. 254 and 255 which seek to change the title of "First Minister" to "Premier". Amendment No. 256 goes further and would allow the Scottish parliament to change the titles of various officers in the parliament and the executive.
I appreciate the noble Lord's arguments and have much sympathy with them. He proposes that the parliament should be able to decide for itself the titles of its executive, its Ministers and its key officers. However, the Government believe that the certainty and the consistency achieved by prescribing the titles from the outset is essential. Prescription is necessary in order to maintain a consistency in references throughout the Bill and in future legislation, as well as in other formal documents through the successive sessions of the parliament.
We are well aware of the speculation and discussion about what other titles might be used. However, we believe that the titles used in the Bill are clear and unambiguous and suit the purpose. The noble Baroness, Lady Carnegy, said that the titles ought to be clear and recognisable to everyone. Indeed, that is what we believe these titles are; for example, the titles of "Presiding Officer" and "Deputy Presiding Officer" accurately describe the role of the individuals concerned. The title "Clerk" was chosen as it is a widely used and clearly understood title, as well as being respected. "First Minister" describes the role and avoids confusion with office holders in Westminster, yet it is consistent with the "First Minister" of the Northern Ireland Assembly and the Welsh assembly's "First Secretary".
Those titles were used all the way through the White Paper. Therefore, I do not know why the noble Lord, Lord Mackay, was surprised to find them in the Bill. Indeed, they were used throughout the White Paper and also throughout the subsequent referendum campaign, so they are familiar and accepted titles as regards the people of Scotland. The titles were carefully chosen to avoid confusion with the Westminster Parliament and with Whitehall Ministers.
No doubt people will develop their own way of referring to these people. I do not want to speculate on that, but different titles might be used in the day-to-day
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operation of the parliament. For example, for working purposes, it may prove necessary to add to the titles of Scottish Ministers so as to distinguish them according to their portfolios. Indeed, a Scottish Minister could be referred to as the "Scottish Minister for Health" or for education, and so on. However, the main point is that such titles would have no legal status. By prescribing simple and straightforward titles, we hope to ensure that there will be no confusion between officers and positions so that everyone knows where they stand and what their responsibilities are. In the circumstances, I ask noble Lords to withdraw the amendment.
Lord Selkirk of Douglas: I should like briefly to raise the question relating to the "Speaker". It seems to me that the word implies a great deal more than the words, "Presiding Officer". Ever since the Speaker said:
"I have neither ears to hear nor eyes to see, except as this House shall direct me",
it was known that the Speaker's role was to protect the rights of Back-Benchers and parliamentary privilege. A presiding officer is merely someone who presides, whereas a "Speaker" has a much more comprehensive role. It seems to me that the Minister is in danger of cutting down the role of the person concerned if this particular wording is used, although that is perhaps the Government's intention. However, I believe that the word "Speaker" reflects a much more comprehensive role and one which the public will more readily understand.
Baroness Ramsay of Cartvale: We must bear in mind the fact that we are considering a word like "Speaker" which has associated with it, in the person of the Speaker of the British House of Commons, much history, tradition and experience over the years. However, we are now discussing a new parliament. We are describing the office of the person who will preside over that parliament. I see no reason why we need to borrow from another Chamber's past in order to give to the presiding officer of the Scottish parliament the same kind of dignity and the same kind of qualities as we would all expect the person who is the presiding officer of the Scottish parliament to have. I believe the Scottish parliament would demand those qualities from the person it puts in that post, and would expect to get them.
11.45 p.m.
Lord Mackay of Ardbrecknish: I am not sure we got far there. When I see the noble Baroness rise to speak I am beginning to wonder whether it is straight bat time. There has not even been a nod in the direction of anyone's argument this evening. Of course people understand the concept of the Speaker of the House of Commons. As I said, all around the English speaking world there are national parliaments and provincial parliaments where the term "speaker" is used and is accepted. Whatever the legislation says, that term will be used and we had better accept that now. I absolutely agree with what has been said on that point by the noble Lord, Lord Mackie of Benshie, and by my noble friend Lord Selkirk of Douglas. I do not accept the argument that this was mentioned in the White Paper and that is

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what the Scottish people voted for, and therefore there will be riots in the streets of Edinburgh if they do not have the terms "presiding officer" and "premier". I have to say that they talk of little else in the pubs and the valleys than of having a presiding officer and a first minister.
The noble Baroness should try to read some of her own amendments. Amendment No. 169A to Schedule 4, in the name of the noble Lord, Lord Sewel, states,
"This Schedule does not prevent an Act of the Scottish Parliament amending any enactment (including this Act) by changing the name of—

(a) any court or tribunal or any judge, chairman or officer of a court or tribunal,

(b) any holder of an office in the Scottish Administration which is not a ministerial office or any member of the staff of the Scottish Administration".

The Scottish parliament seems to have the power to change just about everyone's name except those of the presiding officer and the first minister.
I would not particularly go to the stake for the term first minister. I see the argument and I accept that "premier" is not a term in common usage in the United Kingdom. But it might be worth attempting to introduce it because he or she will end up being called the Scottish Prime Minister; I have little doubt about that. If the Government are happy with that, that is fine. However, if they would like to make a distinction between a Scottish Prime Minister and the United Kingdom Prime Minister, I think they should at least try the term "premier". The term "first minister" will not wash. However, I find the Government's argument on the term "speaker" unbelievable. I believe we shall return to this matter after the Recess and perhaps the noble Lord, Lord Mackie, and I might get together to see whether we cannot do something about it. I give way to the noble Lord.
Lord Mackie of Benshie: Before the noble Lord withdraws his amendment, I must say I am terribly disappointed that the noble Baroness, whom I admire so much, has used such a ridiculous argument. Of course the titles are clear but they are clumsy and people do not like them. If the Scottish people can adopt this complicated voting system, they can surely understand, if the names are changed, that the new name means exactly the same as the old one. The argument about the term "speaker" is not logical because the term "speaker" is used all over the English speaking world and sticks out a mile. However, I now leave it to the noble Lord to withdraw the amendment.
Lord Mackay of Ardbrecknish: The—
The Earl of Mar and Kellie: I am most grateful to the noble Lord. I wonder whether history will help the noble Baroness. In the Scots parliament the presiding
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officer was the Lord High Chancellor. The First Minister would have been the Lord High Commissioner. I wonder whether that is of any help.
Lord Mackay of Ardbrecknish: I do not think that we can have two Lord High Chancellors. That is definitely forbidden—for the sake of the economy of the Scottish parliament, if nothing else.
We have debated this matter before. Like the noble Lord, Lord Mackie, I think that this matter of the speaker is ludicrous. We shall return to it after the Recess, when I shall have lots of evidence from both the popular and the serious press of the press simply ignoring the titles that the Government wish to inflict upon us. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 97:
Page 9, line 12, at end insert—
("( ) No two of the Presiding Officers and his two deputies may be members of the same political party.").
Then noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 98 and 102, to which I have put my name. These amendments concern the speaker and his two deputies. The present position is that in the Scotland Bill there is provision for them, and that is the end of it. My amendments seek to insert some qualifications to prevent those offices all being held by members of the same party.
Amendment No. 97 therefore states that,
"No two of the Presiding Officers and his two deputies may be members of the same political party".
Amendment No. 98 states that they,
"may not be members of the same political party"—
in other words, each of them must come from a separate party. Amendment No. 102 states that,
"One of the deputy Presiding Officers may not be a member of the Parliament who represents the same party as the Presiding Officer".
So there are a number of variations in the amendments in order to achieve a mix of political interests.
I have little doubt that, if it is the noble Baroness who will answer, she will tell me that this must be left—ah, it is to be the noble Lord, Lord Sewel; we might make some progress, then. The noble Lord will no doubt tell us that we should leave this matter to the good sense of the Scottish parliament.
The problem with that argument is that the Welsh do not think that they should leave the matter to the good sense of the Welsh assembly. In Clause 52 of the Welsh Bill, which sets up the post of presiding officer and deputy presiding officer, subsection (3) states:
"The presiding officer and the deputy presiding officer may not be Assembly members who represent the same party".
This is a brief but serious point. If we put that provision on the face of the Welsh Bill, we should do the same here and adopt one of the alternatives I have suggested.
I fully accept that in a four-party system, which is what we are likely to have way into the future, the ideal position would be to say, as Amendment No. 98 does, that,

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"The Presiding Officer and his two deputies may not be members of the same political party".
That makes for common sense.
I am prepared to step back a little from that position and probably take Amendment No. 102; namely,
"One of the deputy Presiding Officers may not be a member of the Parliament who represents the same party as the Presiding Officer",
so that we at least separate the speaker himself or herself from the two deputies.
That would make sense. It is no more detailed than many of the other provisions in the Bill. I hope that we may at least receive a reflective reply from the noble Lord, conceding that there is a point here, just as his Welsh colleagues have conceded it relation to the Welsh Bill. I beg to move.
The Earl of Balfour: I introduced Amendment No. 102 as a milder amendment than those in the name of my noble friend Lord Mackay, in the respect that, had there been only two political parties, at least both presiding officers should not be of the same political allegiance. I very much felt that, as we are to have a proportional representation system, the amendment would make the process more democratic. It is taken to some extent from Clause 52 of the Wales Bill.
While I am on my feet, I wish to say this. The interpretation clause, Clause 112, states on page 53 of the Bill:
"'proceedings', in relation to the Parliament, includes proceedings of any committee or sub-committee".
However, there does not appear to me to be anything in the Bill to prevent a committee of the parliament other than the executive committee from electing a sub-committee of members all of the same political party. In that respect, will Ministers look at Clause 55 of the Welsh Bill? It covers the point I make. The Welsh Bill goes on to deal with committees and sub-committees and so on but we, with our usual Scottish canniness, have cut that out and put the provision very sensibly in the interpretation clause to cover committees and sub-committees. We need to make certain that the sub-committee members do not come from the same party. That would be a serious mistake.
Baroness Linklater: I wish to add my support for the amendment proposed by the noble Lord, Lord Mackay of Ardbrecknish. I should add in passing that I give my support also for using the title of "speaker" as opposed to "presiding officer".
Of the two amendments, the first is slightly confusing in the wording,
"No two of the Presiding Officers",
and two deputies. I do not know how many people are involved. The principle of having people of two separate parties is important and consistent with the new and inclusive approach to the Scottish parliament that we envisage. So we on these Benches entirely approve and believe that it is highly desirable.
There is another point to be made in connection with that to which the noble Baroness, Lady Ramsay, alluded earlier in a different connection. It will take time to
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establish traditions in the new parliament. One of the most important points that should be established from the outset is the independence of the speaker, presiding officer or whatever he or she will be called. One thing that would help to endorse and underline such independence is spreading the membership of parties between the speaker and one or other of the deputies. For those reasons, it is important that we try to do something along those lines.
The Earl of Mar and Kellie: I believe that the amendments will be helpful because they will share out the experience and workload. That is relevant in a parliament where majorities will be extremely narrow and there will be no spare people to take on those roles.
Lord Sewel: Let us be expansive, inclusive and all the other nice traits. There is no difference between us on the need to ensure that there is a balance of party representation among the presiding officer and his deputies. It is most likely to be a 50–50 ball in terms of whether one lets the parliament itself get there on the guidance of the steering committee or whether the provision is put on the face of the Bill. There are good arguments in both directions. I am happy to consider it further over the Recess and see which way it goes. I make no commitment but I am happy to take it away and think about it a little more. It is virtually a 50–50 ball.
On the point made by the noble Earl, Lord Balfour, paragraph 4(2) of Schedule 3 makes it clear that the standing orders shall provide that, in appointing members to committees and sub-committees, the parliament shall have regard to the balance of parties. That quite specifically deals with the point that the noble Lord raised. On that basis, I hope that he can withdraw his amendment.
Lord Mackay of Ardbrecknish: I am grateful to the Minister for his attitude to this amendment. If he comes to a decision on this matter over the Recess, it would be helpful if he could let us know by letter. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 98 to 102 not moved.]
Clause 18 agreed to.
12 midnight
Clause 19 [Clerk of the Parliament]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 103:
Page 9, line 30, leave out ("Corporate Body") and insert ("Estait").
The noble and learned Lord said: In view of the lateness of the hour, I shall speak briefly to Amendments Nos. 103 to 116.
Members of the Committee will appreciate that Clause 20 of the Bill makes it clear that a corporate body is required to oversee the administration of the new parliament and to represent it in legal affairs. Unlike the Welsh assembly, the Scottish parliament will

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not be a body corporate in its own right. The amendments seek to change the rather inelegant and unedifying name given to the corporate body in the Bill of the Scottish parliamentary corporate body.
I have already achieved a measure of success with these amendments. When they were sought to be tabled in another place, the Table Office would not accept them on the basis that they sought to use a word which was not part of the English language, despite the fact that that word appears in a number of Acts of the old Scottish Parliament which are still the law of this land and fall within the term "public general statutes".
It seems to me that a more boring and colourless name could not have been chosen than that of Scottish parliamentary corporate body. It hardly trips off the tongue and it seemed to me that a more imaginative name could be found. I suggest one alternative which will strike a chord with some Members of the Committee and I hope that it strikes a chord with the Minister who is to reply. I beg to move.
Baroness Ramsay of Cartvale: I am sure that Members of the Committee opposite will not be surprised when I say that I do not see why the Government should accept these amendments. We have consistently made it clear that we see the parliament as modern, forward looking, accessible and relevant to today's generation of people living in Scotland. It therefore seems inappropriate to look back in time for old titles associated with a quite different parliament a long time ago. It is also extremely unlikely that the term proposed will mean an awful lot to many people nowadays.
It has been argued that "corporate body" had a Victorian ring to it and that "Estait" is more appropriate for this new body, as the noble and learned Lord, Lord Mackay of Drumadoon, said. Quite frankly, I find it difficult to comprehend that argument given that "Estait" is an even more old-fashioned, pre-Union term to which few people today would relate. I am certain that the general public and prospective parliamentarians of the Scottish parliament would find the title of the body more in line with what is in the Bill.
The Scottish parliamentary corporate body will essentially look after the housekeeping and administration of the Scottish parliament and its functions will be wide and varied, ranging from representing the parliament in legal matters to the organisation of the provision of services such as cleaning services. As the corporate body of the parliament the use of the title "corporation" is appropriate and is a term which will be understood by those dealing with the corporation. On the other hand, "Estait" is neither appropriate nor easily understood in this context.
"Estait" is an historical term formerly used in connection with the pre-Union parliament. It actually referred to the constituents of that parliament—the clergy, nobility and the burgesses—not its administrative functions. Therefore it is not appropriate for this body. Arguably, there is a closer analogy to the
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members of the Scottish parliament. The amendments therefore are misconceived and undesirable and I ask the noble Lord to withdraw them.
Baroness Carnegy of Lour: Will the noble Baroness say which focus group picked "Corporate Body" as a user friendly term?
Lord Mackay of Drumadoon: Once again I am very disappointed. I am not the only one. Despite the smile on his face, I think the Government Chief Whip is extremely disappointed at the lack of progress that has been made.
My amendment is criticised for introducing a term which the people of Scotland will not understand. I am sure the noble Baroness was in her place the other night when neither the Lord Advocate nor myself understood the discussion about corporations aggregate and corporations sole. I cannot believe that a layman in Scotland will fully understand what is meant by the term Scottish Parliamentary Corporate Body.
The amendment was tabled in good faith, albeit with a slight touch of humour, to suggest a more imaginative approach. The Scottish parliament is to look forward. Equally it is to have regard to the history of Scotland. Notwithstanding the lateness of the hour, I hoped for a slightly more encouraging response. We will not vote at this time of night on this issue. I shall not be surprised if someone on these Benches returns to the issue on Report, when the Government Chief Whip will again be disappointed at the lack of progress being made. I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
Clause 19 agreed to.
Clause 20 [Scottish Parliamentary Corporate Body]:
[Amendments Nos. 104 to 116 not moved.]
Clause 20 agreed to.
Schedule 2 [Scottish Parliamentary Corporate Body]:
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 116A:
Page 59, line 40, leave out ("to which this sub-paragraph applies") and insert ("belonging to a Minister of the Crown or government department").
The noble Baroness said: I beg to move Amendment No. 116A. I shall speak also to Amendments Nos. 116B to 116E, 175A, 271A, 271B, 271D to 271J, 271L to 271P and 292G to 292N. The amendments are intended to improve the provisions of the Bill dealing with transfer of property liabilities. Generally, these amendments cover the clauses in the Bill providing for transfer of property and liabilities from the UK government to the Scottish ministers, to the Lord Advocate and to the Scottish Parliamentary Corporate Body. A new provision is also made providing a mechanism for the transfer of property and liabilities from the Scottish executive to the UK government where the functions are also transferred.
While the amendments are of a generally technical nature, they simplify the transfer of property process. There will also be consequential amendments to

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Clauses 101 and 103. As we propose to make other amendments to these clauses, the amendments will be tabled later as a package.
I move these amendments formally. If Members of the Committee wish to ask any questions about specific amendments, I shall of course be prepared to answer them.
Lord Mackay of Ardbrecknish: I would not have stopped the Committee if the noble Baroness had not indicated that we would be getting even more amendments. We have already had one amendment today which was a tinge on the late side, but welcome nonetheless. If anything, all these amendments, with more to come, make my case in the very first debate about the need for a revising chamber in the Scottish parliament.
As to Amendment No. 116E, when subordinate legislation is passed in UK legislation, normally the terminology is something like "The Secretary of State if he considers it appropriate to do so", etc. It actually says "The Secretary of State" or "the Minister". I do not think I have ever come across legislation which has just said "the person". After all, one of our arguments earlier today concerned whether a provision should read "the Secretary of State may" or "the Secretary of State shall". I shall not argue about "may" and "shall" in the first line of Amendment No. 116E, although the temptation is there. What does "the person" mean? Is it a Minister? If it is a Minister, why does it not say so? Is it a member of the assembly—I have lapsed into Welsh-speak there? Is it a member of the parliament? If so, why does it not say so? Is it to be an officer of the parliament? Is it to be an official? I just wonder who is "the person" making the legislation. It strikes me immediately as very odd terminology.
I have no doubt that one will come across one or two other bits and pieces, but what I have said is an indication that we need the ability to scrutinise and to ask questions about these matters. I hope that the noble Baroness can give me some help on "the person".
Lord Mackie of Benshie: I was also struck by Amendment No. 116E; not so much by "the person" but by what he had to do,
"to enable the corporation to exercise its functions or to facilitate their exercise or in connection with their exercise or proposed exercise".
Are all those definitions necessary?
Baroness Ramsay of Cartvale: As a non-lawyer, I very often wonder whether all the words and phrases in these clauses are necessary. As to the question of what does "the person" mean, again as a non-lawyer, a person means a person. This is an open power. The legislation can be made by either a Minister of the Crown or by Her Majesty. Hence it is just "the person". One does not need to define whether it is the Minister. A person is a person. I am sorry that that does not please the noble Lord, Lord Mackay of Ardbrecknish. No doubt he is about to tell me why.
Lord Mackay of Ardbrecknish: It is partly because I did not hear who the "or" was—"a Minister of the
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Crown or". I got the impression that she fumbled over that. It is a little uncertain. I am even more puzzled, having listened to that explanation.
The Government cannot just say "a person" can do this. It must be a person with some standing. They must have some idea who "the person" is. Amendment No. 271G refers to "the person making the legislation". Either a Minister of the Crown makes the legislation or the parliament makes the legislation. Unless there are some other "persons" who are going to make the legislation, I cannot conceive of anyone other than those two groups; and if it is one of those two groups, it should say so on the face of the Bill.
Baroness Ramsay of Cartvale: The legislation can be made either by a Minister of the Crown or Her Majesty by Order in Council. That is why the provision states "the person".
Lord Rodger of Earlsferry: If it is not a Minister of the Crown, upon whose advice does Her Majesty make the Order in Council? It must surely be one or the other. Her Majesty does not make these orders unless advised. It must therefore be on the advice of a Minister of the Crown. It is one or the other.
Baroness Ramsay of Cartvale: Her Majesty, by Order in Council, makes her order on the advice of a Minister; or it could be a Minister of the Crown on his own authority.
Lord Mackay of Ardbrecknish: Perhaps I may suggest that, as we are going to get another batch of amendments on this subject, the Government should consider amending this provision and saying "Ministers of the Crown or Her Majesty by Order in Council". That would make it perfectly clear and it would not be, as it appears to be on the face of the Bill just now, any Tom, Dick or Harry.
On Question, amendment agreed to.
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendments Nos. 116B to 116E:
Page 59, line 43, leave out ("to which this sub-paragraph applies") and insert ("belonging to a Minister of the Crown or government department").
Page 59, leave out lines 46 to 49.
Page 60, line 3, after ("Crown") insert ("or government department").
Page 60, line 4, at end insert—
("( ) Subordinate legislation under sub-paragraph (2) may only be made if the person making the legislation considers it appropriate to do so to enable the corporation to exercise its functions or to facilitate their exercise or in connection with their exercise or proposed exercise.").
On Question, amendments agreed to.
Schedule 2, as amended, agreed to.
Clause 21 [Standing orders]:
The Earl of Balfour The Earl of Balfour moved Amendment No. 117:
Page 10, line 22, at end insert—
("() Where the Parliament makes or remakes standing orders, it shall publish them.

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( ) Where the Parliament revises standing orders (without remaking them as a whole), it shall publish either the revision or the standing orders as revised (as it considers appropriate).").
The noble Earl said: All persons connected with the parliament should be able to obtain a copy of standing orders. That should also apply to the availability of any revised standing orders. This amendment is grouped with others. I shall leave my noble friend Lord Selkirk to speak for himself.
As regards the amendments in Schedule 3, it is necessary to make the proceedings of parliament public knowledge except where standing orders provide otherwise. As regards Amendment No. 120, reporting of the proceedings should be done as soon as possible. Amendment No. 121 refers to the fact that members of the parliament should not be left in the dark over any proceedings which are either to take place or have taken place. Those proceedings should, in general, be made available to the citizens of Scotland.
Clause 70 of the Government of Wales Bill, entitled "Openness", is an extremely good clause. So far during the passage of this Bill I have had the rather unfortunate feeling that the present Government are not all that keen on everything being as open as I would like it to be.
The next amendment is Amendment No. 141. Members of the parliament must be able to obtain the documents, and those documents must be available for the general public and there must be provision for circumstances where there should be charges. There will be a very similar type of provision in most local government legislation. Again, that is taken from Clause 70 of the Government of Wales Bill. It is needed in the Scottish Bill because of the points that I have raised. I beg to move.
Lord Selkirk of Douglas: I shall speak briefly to Amendment No. 118. It relates to the well-known case of Pepper v. Hart which relies entirely on Hansard. It permitted reference to parliamentary materials where legislation is ambiguous or obscure, or leads to an absurdity; the material relied on consists of one or more statements by a Minister or other promoter of the Bill together if necessary to understand such statements and their effects; and the statements relied on are clear.
That case is binding on Scotland only in respect of Hansard reports. What the amendment seeks to do—and it may well be necessary—is to extend the advantages of Pepper v. Hart to the Scottish parliamentary record. There is now no provision for making use of the recording and broadcasting of parliamentary proceedings. This amendment would rectify that.
The case of Pepper v. Hart is in (1) All England Reports [1993] at page 42. At page 64, in obiter dicta, the noble and learned Lord, Lord Browne-Wilkinson, made clear his view that there are sound reasons for making a limited modification to the existing rule unless there are constitutional or practical reasons which outweigh them. Subject to the privileges of the House of Commons, references to parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal
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meaning of which leads to an absurdity. But even in such cases reference in court to parliamentary material should be permitted only where it discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words.
The noble and learned Lord said he could not foresee that any statements in Parliament other than those of the Minister or other promoter of the Bill would be likely to meet those criteria. All of those statements suggest that more conditions would have to be met than those indicated in his reasoning. He added that it was important that the judge refrain from impugning or criticising the Minister's statement or reasoning, which shows a suitable respect for Ministers of the Crown. I hope that the Minister will look sympathetically at this particular amendment that may be of assistance to those who seek to interpret legislation that is far from clear.
The Earl of Balfour: My noble friend mentioned broadcasting. Although we seem to have provided for the recording of proceedings in parliament there does not seem to be a provision to cover broadcasting. I raised the same question when debating the Government of Wales Bill. I draw the Committee's attention to Schedule 12 to that Bill and the Copyright, Design and Patents Act 1988, Chapter 48. The Bill does not apply to Scotland but I hope that the Minister will bear it in mind. Paragraph 28 of Schedule 12 provides:
"In section 163 (Crown copyright), after subsection (1) insert—
'(1A) For the purposes of this section, works made by Her Majesty include any sound recording, film, live broadcast or live cable programme of the proceedings of the National Assembly for Wales (including proceedings of a committee of the Assembly …) which is made by or under the direction or control of the Assembly".
I draw that to the attention of the Committee because I feel that perhaps an amendment can be inserted into this Bill to deal with the matter I have just raised.
Lord Rodger of Earlsferry: I am sure the Government appreciate that the decision in Pepper v. Hart is already embedded in the procedures of the courts. We are already quite used to dealing with references to proceedings in this House and another place in relation to legislation. It would be unfortunate if it were not possible equally for the courts to refer to the proceedings in the Scottish parliament in relation to the interpretation of Acts. On the other hand, I doubt that it is necessary to have that on the face of the Bill. If the Government give an assurance that they expect that in the interpretation of any Act the court can refer to the proceedings in the Scottish parliament in the same way that under the present regime courts refer to such proceedings under Pepper v. Hart I suspect that the matter raised by the noble Lord, Lord Selkirk of Douglas, can be adequately dealt with.
Lord Monkswell: Before the Minister responds to the debate initiated by the noble Earl, Lord Balfour, perhaps I may explain to the Committee my vehement objection to the construction of Pepper v. Hart: that legislation should be interpreted on the basis of what has been said from the Government Front Bench and recorded in Hansard. It is important for the proper

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judicial process for statutes to be interpreted on the basis of the words on the paper and that parliamentarians should ensure that the meaning in the statute is clear and unambiguous and not subject to ministerial utterances from the Dispatch Box.
Future legislators responding to the law of the land in the statute books should construe the legislation on the basis of the words in the statutes rather than the words in the statute books and the record in Hansard of the utterances of Ministers at the Dispatch Box.
However, that is an aside. I intervene in the debate to save the Committee time. We are involved in what might be described as a general debate initiated by the noble Earl, Lord Balfour, on the standing orders for the future Scottish parliament. I have a couple of questions for the Government's consideration. They may not be able to respond directly this evening but they are important questions that need to be addressed.
First, in my reading of the Bill, while the Government have powers in a number of different areas to issue interim provisions leading up to the initiation of the Scottish parliament, they have no power to draft standing orders for the Scottish parliament. I suspect that this may be an oversight. I gather that a committee is considering the interim issues which need to be deliberated upon by Government in the run-up to the Scottish parliament. The Government have power in a number of different areas to lay down in orders how the interim provisions should work, but they have no powers to provide initial standing orders for the Scottish parliament. This may be an oversight which the Government may wish to consider.
Secondly, a number of provisions in the Bill lay down that the Scottish parliament shall determine standing orders on a range of issues. I am sure we would all accept many of them as sensible and realistic involving the various aspects of parliamentary procedure which is custom and practice in Westminster. However, my question for the Government is this—
Lord Mackie of Benshie: If the noble Lord will permit me to intervene, what has this to do with the amendment we are discussing?
Lord Monkswell: I am trying to save the time of the Committee. We could have a separate debate on the Question of whether the clause shall stand part of the Bill and I could raise all the various issues. However, I hope that in responding to the amendments of the noble Earl, Lord Balfour, and the noble Lord, Lord Selkirk of Douglas, which I detect to be probing rather than definitive, the Government can respond to my questions and therefore save the time of the Committee in having a separate debate on the issues which I believe to be important. I hope that that has satisfied the noble Lord.
My final question is: if included in the Bill are all the various provisions which require the Scottish parliament to determine standing orders on a number and range of issues, what happens if it does not adopt standing orders which meet the provisions of the Bill? Does that mean that all the subsequent proceedings of the Scottish parliament are ultra vires and count for nought? What is the mechanism by which that would be determined?
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I put forward those two aspects. First, do the Government believe it right that they have no provision to draft standing orders for the Scottish parliament to adopt when it first meets? Secondly, what is the legal mechanism to determine matters if the Scottish parliament does not adopt all the standing orders which are delineated in the Bill in front of us?
12.30 a.m.
Lord Hardie: These amendments seek to prescribe some of the ways in which the parliament operates. We have made it clear on various occasions that we intend to ensure that the Scottish parliament should be able to decide for itself what its procedures should be. This is one area where it is appropriate to allow the parliament to make its own decisions.
Perhaps I may deal with the point raised by the noble Earl, Lord Balfour, as regards the comparison with the Government of Wales Bill. That Bill generally provides a greater level of detail about the assembly's working practices and procedures. We believe that that is appropriate as the Welsh assembly will be an executive body. However, such level of detail would not be appropriate for the Scottish parliament. As we made clear in the White Paper, we want to leave the detailed decisions on how the parliament will work to the parliament itself to decide.
Amendment No. 117 seeks to prescribe that the standing orders are published. I have no doubt that they will be published and that the amendment is therefore unnecessary. We have recognised that it would be unrealistic to expect the parliament to be in a position to put in place standing orders on day one of its operation. That is why my right honourable friend the Secretary of State for Scotland established an all-party steering group which will prepare a draft report recommending what the standing orders should cover. Initial standing orders will be in place for the parliament from the outset and it is intended that these will be published.
Perhaps I may deal with the point raised by my noble friend Lord Monkswell. There is provision in the Bill for this Parliament to make such orders. I refer to Clause 115(3), which gives a general transitional power to make such provision as necessary. That would enable us to make the necessary initial standing orders.
I would expect the parliament to publish its standing orders and do not believe that it is necessary that this should be prescribed. Nevertheless, as the noble Earl still has some concerns on this matter, I shall be only too happy to meet him in order to discuss them and how they might be met.
In relation to Amendments Nos. 119 to 121, a similar argument applies to the other amendments tabled by the noble Earl. Amendment No. 119 would require the parliament only to make provision to report its public proceedings. That appears to be narrower than the current provision. I refer Members of the Committee to Schedule 3, paragraph 3. It is important to allow the parliament to decide the detailed provisions relating to the reporting of proceedings. Amendment No. 121 requires the parliament to publish reports of its

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proceedings as soon as possible after the proceedings have taken place. Again, I do not think it necessary to prescribe that. I am sure that we can leave it to the Scottish parliament to publish reports of its proceedings tirelessly. I am sure also that the parliament will want to make use of new technology to ensure that reports of its proceedings are available to a wide audience.
In relation to Amendment No. 120, the noble Earl has tried to prescribe that the parliament makes public any document under its control which contains material relating to the proceedings of the parliament. Again, that is a matter best left to the parliament. It is not something we should prescribe. I can see no reason why the parliament would not want to make such documents available, but I should not wish to prejudge the parliament's consideration of that matter. I am sure the parliament will develop its own practices for ensuring that information about proceedings is accessible.
Finally, Amendment No. 141 directs the parliament to make copies of any document it publishes available to the public, although it allows it to make a reasonable charge for that. I agree that it is important that the public should be able to obtain documents published by the parliament but once again, that need not be prescribed on the face of the Bill. Again, I am sure that the parliament will develop an appropriate system without our direction.
However, I repeat to the noble Earl my offer to discuss any concerns that he may still have with a view to seeing how they may be addressed. With that, I urge the noble Earl to withdraw his amendments.
The Earl of Balfour: I have one other question. I want the noble and learned Lord, Lord Hardie, to satisfy me that members of that parliament will be able to obtain all the documents that they really need to carry out their functions. That is one of the reasons that I tabled these amendments. Regardless of anything else, the parliament will have to produce many copies of everything, in much the same way as this House does.
Lord Hardie: I agree entirely with the noble Earl. I am sure the parliament would not operate otherwise. I should certainly expect it to make available copies of any relevant documents to members of the parliament to enable them to conduct their business.
Before leaving the points raised by the noble Earl, I should deal with the point made in relation to the Copyright Design and Patents Act. Schedule 7 amends that Act to provide that copyright is not infringed by anything done for the purpose of the proceedings of the Scottish parliament.
I turn now to Amendment No. 118 in the name of the noble Lord, Lord Selkirk of Douglas. It goes further and would insert in the Bill a statutory provision as to how, in certain circumstances, Acts in the Scottish parliament should be interpreted. The Government do not consider that it is necessary or right to make such a provision. Interpretation of statutes, which is also addressed by this amendment, is, as the noble and learned Lord, Lord Rodger of Earlsferry, pointed out, a matter for the courts.
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As regards Acts of the United Kingdom Parliament, the position is that in certain limited circumstances, courts are prepared to look at Hansard to assist them in interpreting a statutory provision. Again, I agree with the noble Lord, Lord Monkswell, that it is important that we should endeavour to make legislation sufficiently clear that it is unnecessary to do that. But unfortunately, on occasion, we fail to do that; there are ambiguities; and accordingly, it is necessary to use the doctrine in Pepper v. Hart. The courts also have the assistance of the Interpretation Act and various other canons of construction.
The question of interpretation of the Acts of the Scottish parliament will be a matter for the courts. The Scottish parliament itself may pass legislation similar to the Interpretation Act to assist in the interpretation of Acts of Parliament. But unless such provision is made by the Scottish parliament about construing a particular Act or Acts of Parliament, in my submission, the courts would apply the same canons of construction, including reference to the proceedings in parliament in cases of ambiguity. I see no reason for any difference between construing an Act of the Scottish parliament by the courts and an Act of the UK Parliament. In certain limited circumstances, it may well be appropriate to look at the proceedings in the Scottish parliament. Against that background and with that explanation, I would hope that noble Lords would feel able to withdraw their amendments.
Lord Monkswell: Perhaps I may respond from my perspective and thank my noble friend for explaining the import of Clause 115. I have to admit to the Committee that I had misconstrued it. I read "subordinate legislation" as being "legislation" rather than "making provision". I readily accept that the misconstruction is entirely my own fault. I accept that my noble friend has advised me.
Could I just confirm that, if the Scottish parliament, even if it started off with standing orders provided by the interim committee, was to vary those standing orders contrary to the provisions of this Bill, then subsequent proceedings of the Scottish parliament would be, effectively, ultra vires?
Lord Hardie: That would not be the case.
Lord Mackay of Drumadoon: Before my noble friend indicates to the Committee what he intends to do with respect to his amendment, perhaps the noble and learned Lord the Lord Advocate could address, first, the issues raised by the noble Lord, Lord Monkswell. If the standing orders do not conform with this Act of Parliament, who has the right to challenge that, and by what statutory procedure is that challenge to be mounted?
Secondly, can I just be quite clear on what the Government's position is if an Act of the Scottish parliament is passed by proceedings which fail to follow the letter of the standing orders? Is the Government's thinking that under no circumstances could that failure found a challenge to the vires of the legislation? If that is the position, may I respectfully suggest that that

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should be stated explicitly in this Act of this Parliament, otherwise there may be considerable confusion? I should be grateful if the noble and learned Lord the Lord Advocate, despite the lateness of the hour and the fact that this does not arise directly out of Amendment No. 117 or Amendment No. 118, could indicate quite clearly what is the Government's thinking on this very important issue.
Lord Hardie: The noble and learned Lord the Lord Mackay of Drumadoon has recognised that this is an important issue. I would not wish to give a view here and now in respect of that. I would prefer to give proper consideration to the matter and to respond in writing to the noble and learned Lord. Of course I will put in the Library of the House a copy of the response.
The Earl of Balfour: I looked at Schedule 7 to the Bill in respect of the Copyright, Design and Patents Act 1988, but perhaps I may once again draw the Committee's attention to Amendment No. 118 standing in the name of my noble friend, Lord Selkirk of Douglas. The last sentence reads:
"The proceedings may he broadcast in any way which the Parliament may agree."
It was on that point that I quoted the Welsh provision, because I did not think that the Scottish legislation afforded the same copyright over broadcasting and recording as anything written. That was my reason for
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raising it. It is a technical point. I quite understand the position and I do not necessarily expect an answer tonight.
Lord Hardie: Again, I shall write to the noble Earl on the matter.
The Earl of Balfour: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 118 not moved.]
Clause 21 agreed to.
Schedule 3 [Standing orders—further provision]:
[Amendments Nos. 119 to 121 not moved.]
Lord Carter: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Shrewsbury and Atcham Borough Council Bill [H.L.]
Returned from the Commons agreed to.
House adjourned at fifteen minutes before one o'clock.