HL Deb 14 July 1998 vol 592 cc188-250

8.38 p.m.

House again in Committee on Clause 4.

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 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 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.

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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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—

  1. (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;
  2. (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 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 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.

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 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. 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 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. 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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—

  1. (a) any court or tribunal or any judge, chairman or officer of a court or tribunal,
  2. (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 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 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 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, 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 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 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 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 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 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 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 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 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 moved Amendment No. 117:

Page 10, line 22, at end insert— ("() Where the Parliament makes or remakes standing orders, it shall publish them. ( ) 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 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 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?

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 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.

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 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 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.