HL Deb 16 July 1998 vol 592 cc458-94

House again in Committee on Schedule 3.

Lord Mackay of Ardbrecknish moved Amendment No. 127:

Page 61, line 43, at end insert—

("(4) The standing orders shall include provision that a committee, which may not delegate its functions to another committee or sub-committee, shall be appointed with the function of considering accounts and reports laid before the Parliament in pursuance of section 66(1).

(5) The standing orders shall provide that—

  1. (a) no member of the Scottish Executive may be a member of the committee appointed under sub-paragraph (4), and
  2. (b) the person chairing that committee may not be—
    1. (i) a person representing a party of which any of the Scottish Ministers are members, or
    2. (ii) if each of the parties in the Parliament have one or more of the Scottish Ministers as a member, a person representing the party of which the First Minister is a member.").

The noble Lord said: This is an important amendment because it deals with the financial controls which will be exercised in the new parliament. In Clause 66 there is sketched out for us the financial controls which the Government will put in place from day one for the new parliament. As far as they go, they are reasonable. They deal with accounting and auditing matters. In particular, subsection (1)(f) refers to, the publication of parliamentary accounts and of reports on such accounts and for the laying of such accounts and reports before the Parliament". So the parliament will get reports. It will get reports from the government of Scotland, if I may call it that, and from the auditor general, who will have exercised his independent and very important function.

However, as far as I can see, there is little detail—I may be wrong about this—about how the parliament will exercise control and oversight over financial matters, and in particular over the reports of the auditor general. My amendment specifies essentially the system of parliamentary controls which are in place in the other place, which is where these financial matters are dealt with. My amendment would ensure that there is provision in the standing orders for the equivalent of the Public Accounts Committee, with some of the important safeguards associated with that committee.

Subsection (5) of my amendment states: no member of the Scottish Executive may be a member of the committee".

I would not expect a member of the executive to be a member of the committee. However, for the removal of any doubt, I have included that provision. What is more important is subsection (5)(b)(ii) which concerns the person chairing the committee. That makes it perfectly clear that the chairman should not be a member of the governing party or parties. That is very much in accord with what happens in the other place, where, always, the chairman of the Public Accounts Committee is a member of the Opposition party.

I have also taken into account what might happen if all four parties got into a grand coalition, although I suspect that that is taking consensus politics about 10 bridges too far. The governing party here cannot conceive of such an amazing consensus. If I had not put that in, it would have been conceiving of it and telling me that that is why my amendment was defective. I have got to the pass before it. The amendment says clearly that, if all four parties form a grand coalition—there would be no chairman of the public accounts committee—the debar would be on the party of which the first minister was a member. It could be any of the other three parties, but not the one of which the first minister was a member.

I am sure that I do not have to explain to your Lordships the importance of the Public Accounts Committee in the other place. It is an extremely influential committee. Its reports are highly influential and are read with great care by governments. They are taken into account in a very serious way. Arguably, the chairman of the Public Accounts Committee is by far the most powerful Back-Bencher in the House of Commons; and so he would be in the Scottish parliament.

My right honourable friend in the other place, who is the current chairman of the Public Accounts Committee, Mr. David Davis, proposed a number of amendments to the Bill at the Committee stage in the House of Commons. He received a number of assurances from Mr. Henry McLeish, the Minister in charge of devolution. Referring to the whole question of the standing orders and what is in the Bill, Mr. McLeish said: It is only a framework. For the reasons I have given, the Parliament must be responsible for the detail". I have no great argument with that. He went on to say: In framing that detail, it can incorporate—if it so wishes—the suggestions featured in these amendments"— the amendments regarding a public accounts committee— such as the establishment of a Committee similar to the Public Accounts Committee. I have no hesitation in saying that I hope that the Parliament will do that. My experience as a member of the Committee was excellent, and it does invaluable work. However, the Parliament should be able to decide on the best way forward, even though my preference would be to go for a Public Accounts Committee".—[Official Report, Commons, 12/2/98; col. 637.] So the Government were saying that if it were left to them—if they were in the Scottish parliament—they would have a public accounts committee, but they were not going to go as far as to say that there ought to be one.

The position improved a little because on 19th May on Report, when my right honourable friend returned to the matter, Mr. Henry McLeish said: On a second and perhaps more positive note, a meeting of the all-party consultative steering group yesterday agreed that, as part of the Standing Orders, we might want to identify a few Committees to recommend to the Scottish Parliament, and that one would be the equivalent of the Public Accounts Committee. Hopefully, that will satisfy the Chairman of the Public Accounts Committee, and ensure that the integrity of the person who chairs such a Committee is beyond doubt".—[Official Report, Commons, 19/5/98; col. 763.] My right honourable friend Mr. David Davis had started his speech with the words, "Clearly, I welcome", when the curtain came down in the other place and mystery surrounds what he was welcoming. I am sure that I can speak for him when I say that I welcome the assurances. But given the assurances, I fail to see why we cannot put something on the face of the Bill along the lines I suggest.

I can understand it if the Government say that they do not want to specify everything on the face of the Bill and that they must leave such matters to the parliament or, in this case, to the consultative steering committee, which is working on this matter. But this is rather a zig-zag issue in that some matters clearly ought to be left to the parliament; some ought to be dealt with by us in the Bill; and some matters fall in the middle. I am sure that we could have many happy hours of argument—and we will have—as to where each one falls. I think the equivalent of the Public Accounts Committee falls firmly as something that ought to be put on the face of the Bill. There are far less important matters on the face of the Bill regarding how the parliament will work than a public accounts committee.

I appreciate that this House has less to do with these matters than the other place. It is after all the other place which votes the money and which is responsible for raising the money. The other place is also responsible for spending it. As the great bulk of the money going to the Scottish parliament will come from the United Kingdom Parliament, and as the spending of that money will be very much left to the Scottish parliament—I have no complaint about that—there is something to be said for this Parliament laying down clearly to the Scottish parliament that we expect a public accounts committee, or something named differently if that is what is wanted, as we do not want to call the first minister the Prime Minister and we do not want to call the presiding officer the Speaker. I have avoided all that by not naming the committee at all but by referring to it as a committee for, considering accounts and reports laid before the Parliament in pursuance of section 66(1)". We should put that in the Bill and make sure that the standing orders make provision for the committee. I am not bothered about its total formation but the chairmanship, which is all-important. There may be a parliament with four parties where no one has an overall majority. There may be a temptation not to make the stipulation that the chairman ought not to be a member of the governing party. While I do not believe my previous point about taking account of a situation where all four parties would be in a grand coalition, I suspect that two or three may be in a coalition and they may not be very happy about a member of the fourth party being given such a powerful position. I can imagine a situation where that might arise. We should not leave it to the parliament to do what Mr. McLeish said he clearly hoped that it would do. This is a case where we should turn the hope of the Minister and of the other place into clear detail in the Bill. I beg to move.

Viscount Thurso

I have listened attentively to the argument put forward by the noble Lord, Lord Mackay of Ardbrecknish. I find it persuasive in some respects. I am certainly sympathetic to the thrust of what he is trying to do. The core of the matter is in the principle of what we allow the Scottish parliament to do and what we do not. The litmus test must be that whatever we oblige it to do from this Parliament, it is clearly something where we believe that there is a danger in some form so that we must oblige it to have the committee.

It is important that we have considerable trust in the Scottish parliament and the people in it. Therefore, we should allow them to make the decisions. Having weighed up the balance of the two arguments, I come down on the side of allowing the Scottish parliament to make up its own mind. Having listened to the Minister's response to my last question, which greatly reassured me, I feel certain that that is the correct way forward.

Lord Sewel

I do not believe that there is any difference at all between us as to where we want to get to on this matter. I suppose a difference is whether we want to provide a framework that enables the parliament to make its own decisions and accept responsibility for its own affairs or whether we want to provide a nanny Bill which tries to cross every "t" and dot every "i". I have made it clear that the approach we have tried to adopt all the way through is to give as much decision-making power in its internal affairs to the parliament itself.

It is paramount that the parliament puts in place the appropriate machinery to examine the financial affairs of the executive. The Bill already provides for that in Clause 66(3) which states, Standing orders shall provide for the consideration by the Parliament of accounts and reports laid before it in pursuance of", the subsection which the noble Lord, Lord Mackay, quoted. There is a little more in the Bill than the noble Lord indicated. There is a requirement to produce standing orders that put in place how reports and accounts will be considered by the parliament. That is pretty well a sufficient degree of detail.

As I said, the Bill requires that, but how the parliament achieves it in its committee structure is for the parliament itself to decide. I make it clear that there is absolutely nothing to stop it having the equivalent of the PAC and adopting the Westminster model. That may not necessarily be the case. I appreciate the words of my honourable friend in another place, Mr. McLeish, on how much value he puts on the PAC model. I offer the thought that that might not be the only model that the parliament wishes to consider. It may consider that another approach may be more effective; for example, subject committees, which might also play a role in the scrutiny of value for money. That would give real responsibility for investigating performance as well as policy in particular areas.

Under that regime any audit committee might then concentrate on regulatory and propriety matters. The difficulty with the amendment as phrased is that it makes that kind of arrangement impossible. It is very tightly and deliberately drawn by the noble Lord, Lord Mackay of Ardbrecknish. It reads, a committee, which may not delegate its functions to another committee or sub-committee". So it is actually forcing consideration very much into the relative straitjacket of the PAC-type model. It does not allow for the degree of flexibility which would, on the one hand, allow for the audit committee but, on the other, allow some of the probing on consideration of accounts, and particularly in relation to the value-for-money area, to be carried out by subject committees. In that capacity one would have thought that the specialist knowledge that the subject committees built up might play a useful and helpful part in the considerations.

As I say, there is nothing between us in terms of the degree of importance that we attach to making sure that the parliament puts in place the appropriate mechanisms to enable proper audit and the consideration of financial reports and accounts. That is covered and envisaged in the Bill as it stands in Clause 66(3). I imagine that that is going to be one of the first matters that the parliament will set its mind to; namely, how to bring that to reality. We have been making sure that the parliament and the executive are given the best possible advice on the matter. The consultative steering group and the financial issues advisory group have been charged, as the noble Lord indicated, and they are beginning to come to conclusions about the best way forward. Because there is a general recognition of the need to have robust mechanisms in place, the actual details are best left to the parliament itself.

Lord Thomas of Gresford

In supporting what the Minister said a moment ago, I make this point. It is certainly right that the Scottish parliament meets and, as its first matter, brings a committee of this sort into reality. If in practice that committee, first formed, does not work in the way envisaged, the Scottish parliament can immediately, and without returning to Westminster for primary legislation, change the system it has put into operation.

It is not simply that the Scottish parliament chooses the first way of running various things, but it is its ability to alter in the light of experience and circumstances which is important. For that reason we believe devolution means no more than placing a framework around the structures and organisations of the Scottish parliament and of the national assembly in Wales and leaving it to those bodies which will be elected to use their common sense in order to produce the right solutions to meet the problems that they have to face.

Lord Mackay of Ardbrecknish

I suppose that I should be grateful to the noble Lord, Lord Thomas of Gresford, for adopting his usual position and coming to the defence of the Government. It may be that I should welcome the Scottish Bill. I suspect that the noble Lord is here to wreak vengeance on the Scots for my appearance from time to time on the Welsh Bill. Perhaps I should apologise to the Committee for taking that point of view.

I have listened to the Minister with care and his reply half satisfies me. I listened to the words used. There is no difference between us as to where we want to go. However, I want to make sure that we get there. The Minister is content to leave it to the parliament or the advisory committee. However, the committee, unless it is misnamed, is only advisory and the parliament need not accept its advice. I fully understand that we do not want a Bill which appears to nanny the Scottish parliament into existence. There are already many provisions in this Bill that deserve that description and are less important than a properly constituted public accounts-type committee to monitor how the executive spends its money.

I do not believe that subject committees are a substitute. Like local authorities where subject committees as opposed to finance committees are keener on spending money than controlling it, the subject committees of the Scottish parliament will be in the same vein. I prefer to have a committee whose exclusive purpose is the control and monitoring of the way that the executive spends its money.

While I am pleased to hear the assurances of the noble Lord, as my colleague was pleased to hear the assurances of Mr. McLeish, they do not go far enough. I do not know who will be successful in the elections to the Scottish parliament. When I look at the lists of the parties I see a fair clutch of councillors. When I look at Scottish councils, North Lanarkshire and East Ayrshire do not spring to mind as role models for financial probity. As this Parliament is to send a considerable amount of money to the Scottish parliament, I believe that it has the right to suggest that the latter sets up a public accounts committee. I regard this matter as very important and I desire to test the opinion of the House.

9.2 p.m.

On Question, Whether the said amendment (No. 127) shall be agreed to?

Their Lordships divided: Contents, 34; Not-Contents, 70.

Division No. 1
Astor, V. Mackay of Drumadoon, L.
Attlee, E. Norrie, L.
Balfour, E. Quinton, L.
Brougham and Vaux, L. Rawlings, B.
Byford, B. Renton, L.
Campbell of Alloway, L. Rowallan, L.
Carnegy of Lour, B. Saltoun of Abernethy, Ly.
Courtown, E. [Teller.] Sanderson of Bowden, L.
Denbigh, E. Seccombe, B. [Teller.]
Dundee, E. Selkirk of Douglas, L.
Hardwicke, E. Sempill, L.
Kingsland, L. Skelmersdale, L.
Kintore, E. Stair, E.
Lane of Horsell, L. Stodart of Leaston, L.
Lucas, L. Trefgarne, L.
Lyell, L. Wedgwood, L.
Mackay of Ardbrecknish, L. Wise, L.
Addington, L. Islwyn, L.
Alderdice, L. Janner of Braunstone, L.
Allenby of Megiddo, V. Jay of Paddington, B.
Archer of Sandwell, L. Jeger, B.
Avebury, L. Kennedy of The Shaws, B.
Blackstone, B. Kilbracken, L.
Borrie, L. Lester of Herne Hill, L.
Carlisle, E. Levy, L.
Carter, L. [Teller.] Linklater of Butterstone, B.
Chandos, V. McIntosh of Haringey, L. [Teller.]
Clinton-Davis, L.
Cocks of Hartcliffe, L. Mackie of Benshie, L.
Davies of Coity, L. McNair, L.
Davies of Oldham, L. Maddock, B.
Desai, L. Mar and Kellie, E.
Dixon, L. Molloy, L.
Donoughue, L. Monkswell, L.
Dormand of Easington, L. Montague of Oxford, L.
Dubs, L. Pitkeathley, B.
Ewing of Kirkford, L. Ramsay of Cartvale, B.
Falconer of Thoroton, L. Randall of St. Budeaux, L.
Razzall, L.
Farrington of Ribbleton, B. Redesdale, L.
Gilbert, L. Rendell of Babergh, B.
Gordon of Strathblane, L. Richard, L. [Lord Privy Seal.]
Grenfell, L. Russell, E.
Hacking, L. Scotland of Asthal, B.
Hanworth, V. Sewel, L.
Hardie, L. Simon, V.
Hardy of Wath, L. Symons of Vernham Dean, B.
Haskel, L. Thomas of Gresford, L.
Hilton of Eggardon, B. Thurso, V.
Hoyle, L. Tope, L.
Hughes, L. Watson of Invergowrie, L.
Hughes of Woodside, L. Whitty, L.
Hunt of Kings Heath, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

9.10 p.m.

[Amendment No. 128 not moved.]

Lord Mackay of Ardbrecknish moved Amendment No. 129:

Page 62, line 5, at end insert—

("Scrutiny of delegated legislation

The standing orders shall include provision for the exercise of appropriate control by the Parliament over the passage of delegated legislation created by a Scottish Minister by virtue of this Act or under powers conferred by the Parliament.").

The noble Lord said: I beg to move Amendment No. 129. This amendment is about the scrutiny of delegated legislation. Under governments of all political parties the amount of delegated legislation has increased enormously. In this House we have set up a Select Committee on Delegated Powers and Deregulation. Indeed, I was one of its founder members. Then I fell to be one of its victims when some of my legislation was called into question by that committee. I have to say in my defence that I immediately took on board what that committee said and tabled suitable amendments.

That Select Committee looks for Henry VIII clauses in particular, and tries to judge, and to point the House in the direction of, the correctness of the chosen route for the approval of secondary legislation. I refer to whether it should be by the affirmative procedure or the negative procedure. Occasionally the committee tells Ministers and the House that perhaps a power is a Henry VIII-type power and that rather than using the negative procedure, approval should be by means of the affirmative procedure. I think I can safely say that the previous government very much listened to what the committee said and that so far this Government have done likewise. However, that is just one aspect of this. I refer to looking at powers as they are constructed in primary legislation.

This amendment deals with what we do with delegated legislation when it comes before a parliament. In this House we have a convention not to divide. The noble Earl, Lord Russell—he is unfortunately not in his place although I saw him earlier—has found some ingenious ways round that convention without actually breaking it as I also know—not, I am happy to say to my cost as I always managed to win, but at least it caused a little trouble.

Under the Statutory Instruments Act 1946, both Houses must consider all affirmative orders. A huge number of negative instruments are laid before Parliament and never discussed. The figure runs into hundreds in a Session. The House, of course, has a right to discuss them as we have 40 days in which to table a prayer. In the other place, if it is agreed to have a debate (through, I suspect, the usual channels) they are Standing Committee debates of an hour and a half. Noble Lords who were once Members of the other House will remember some happy hours and a half dealing with secondary legislation. The Joint Select Committee of both Houses considers statutory instruments as to the form in which they are and the legal propriety. The financial ones are laid before the Commons alone and treated by a Commons committee.

Lord Renton

I am grateful to my noble friend for giving way. It is important that he should stress that it is a question of whether they are ultra vires, within the power, that that joint committee has to consider above all.

Lord Mackay of Ardbrecknish

I am grateful to my noble friend, who knows a great deal about these matters. By "legal propriety" I meant that they are within the vires of the original Act. My amendment does not lay down what should be the appropriate controls. I am content that the detail should be left to the Scottish parliament. It may wish to use a method different from the one used here. It might be too much to hope that it would use a method which would improve the scrutiny of secondary legislation, and that more secondary legislation might be scrutinised by the Scottish parliament than is scrutinised here. That might come about, because the Scottish parliament will obviously not have as much as the other place does. One can only hope.

I am not laying down the details; I am merely saying that the: standing orders shall include provision for the exercise", of such delegated legislation, when the Scottish parliament comes into being. It is an important matter. Many Members of the Committee take part in serious debates on legislation on the propriety of the Government seeking powers via secondary legislation. Part of that argument is always the lack of control by both Houses of this Parliament of secondary legislation. I hope that the parliament in Scotland might do rather better. I beg to move.

9.15 p.m.

Lady Saltoun of Abernethy

We should not forget that this Holyrood parliament will not have a second chamber. This is an important amendment which should receive serious consideration by the Government.

Lord Hope of Craighead

The amendment touches upon the area of judicial scrutiny as well as parliamentary scrutiny, because if there is a defect in the delegated legislation, because it falls outside the competence of the parliament—I am looking particularly at Schedule 6 which lists the devolution issues—the legislation will be vulnerable to attack. I think that I am picking up the point made a moment ago by the noble Lord, Lord Renton: one of the crucial points of scrutiny is to scrutinise the vires of the delegated legislation.

In the case of the Scottish parliament, that will raise a number of complex issues affecting European Community law, human rights law and the rights of the Scottish parliament itself. Anything that could be done to ensure that delegated legislation was as secure as possible against challenge should be done. In that connection, I was struck by a point made by the noble and learned Lord the Lord Advocate when Clause 1(4) was being discussed. He may well remember that the noble and learned Lord, Lord Simon of Glaisdale, was suggesting that that clause was unnecessary. If I picked up correctly the reply made by the noble and learned Lord it was that it was desirable to include that subsection in Clause 1 to ensure the provisions passed by the parliament were as secure as possible against attack.

I support entirely that philosophy. The amendment falls into that category. It is a mechanism which will tend to make the delegated legislation as secure as possible against attack. Some steps have been taken in the Bill to try to provide protection. I can see in paragraph 2 of Schedule 6 a provision which attempts to deal with the possibility of frivolous or vexatious complaints. It may be difficult for a court, when faced with a complaint challenging delegated legislation on the ground of lack of vires, to say immediately that that complaint is frivolous or vexatious. My concern is that delegated legislation may be subject to question and cause uncertainty. The amendment is a step at least in the direction of securing certainty.

Lord Selkirk of Douglas

I wonder whether in answering the amendment the Minister could turn her attention to the earliest date when the standing orders could be published. I am referring in particular to the draft standing orders. Will the Minister tell the Committee whether the draft standing orders are now in existence? Obviously the Government would wish to take into account the views expressed in Parliament and the wording of the statute. It would be of great help if the Committee could be told the earliest possible date that they could come into existence. In deciding such matters, the Scottish Parliament will want to have draft standing orders before it before it can approve them and before they receive the force which standing orders approved by Parliament receive. If the Minister can enlighten us on this point, it would be a great help.

Baroness Ramsay of Cartvale

My Lords, we have had now a number of debates about what it is appropriate for this Parliament to require the Scottish parliament to include in its standing orders. Amendment No. 129 raises yet another point on what is becoming familiar ground.

We stated in paragraph 9.1 of the White Paper that there should be a minimum of legislation and wherever possible we would leave it to the Scottish parliament to decide for itself what its procedures should be. While the Bill requires standing orders to address a number of aspects to do with the passage of primary legislation, it is, quite properly in my view, silent on the procedures for secondary legislation.

However, I agree entirely with the noble Lord, Lord Mackay of Ardbrecknish, that it is important that the parliament should have appropriate control over the passage of delegated legislation. I do not think that anyone would dispute that. I agree with the importance that the noble and learned Lord, Lord Hope, stressed, in his intervention on the amendment. Indeed, the amendment reflects a suggestion made by the Select Committee on Delegated Powers and Deregulation—in which the noble Lord, Lord Mackay of Ardbrecknish, has such a special interest—which drew attention to the Bill's lack of prescription on this point. Noble Lords will have noted that the report of the committee was generally favourable. On this particular point the committee accepted that, it will be for the Parliament to decide in the case of each new delegated legislative power what is the right measure of scrutiny and control". It did not make a recommendation but suggested that, the House may wish to consider whether Schedule 3 (Standing Orders) should be amended to make plain that Standing Orders will, in fact, address the issue". I hope that the noble Lord will forgive me if I repeat something which has been said a number of times now: that this new parliament will, we believe, without doubt be a responsible body. It must be right that the Scottish parliament is able to decide its procedures for itself. Since we are devolving power to the parliament, we are anxious to allow the parliament the discretion to exercise this power and we think we should trust it to exercise it properly.

Various provisions in the Bill envisage that the parliament will make provision for the scrutiny of legislation. For example, Clause 106 translates references to procedure at Westminster to procedure in the Scottish parliament for subordinate legislation-making powers which will transfer to the Scottish ministers. But we felt that the detailed parliamentary procedures for the subordinate legislation were better left for the Scottish parliament to devise.

The noble Lord, Lord Selkirk of Douglas, asked me about the publication of draft standing orders. There are no draft standing orders at present in existence because the consultative steering group which we have now talked about on various occasions, chaired by my honourable friend Mr. Henry McLeish with representatives of all the Scottish political parties, is still meeting on that subject. It is expected to report by the end of December. The Secretary of State will then prescribe an initial set of orders which will be available next spring.

I am sure that we can rely on the parliament to make provision for the scrutiny of subordinate legislation in its standing orders. The Select Committee made only one recommendation. It drew to the attention of the House the extent of Henry VIII powers and the suggestion that the affirmative procedure would be appropriate for the exercise of these powers. We are giving careful consideration to what the Select Committee said and we will certainly return to the issue when we consider Clauses 101, 102 and 103, which deal with subordinate legislation.

However, I do not wish to imply that the Government are intransigent on this matter. We are certainly willing to look at it again and tell the House how we feel at the next stage of the Bill. I invite the noble Lord to withdraw his amendment.

Lord Rodger of Earlsferry

I was comforted by the concluding words of the noble Baroness. As one looks at the schedule, it is hard to imagine that the Government did not believe that the parliament would make standing orders for the reporting and publishing of proceedings but nevertheless have included a particular provision for that. I cannot imagine that the Government would be happy if the parliament did not have some mechanism in place for reviewing secondary legislation. Indeed, it has been implied that that is expected.

In that situation, I cannot see that any harm would be done by including a provision along the lines outlined in the amendment. As my noble and learned friend Lord Hope said, it is a matter of the very greatest importance. Everyone wishes to ensure that the legislation is as secure as possible. I hope that on further reflection the Government reach the view that the provision should be included.

Lord Renton

I am pleased that the Minister has said that the Government are willing to consider the issue again. It is very important. She made one comment about which I hope she will be cautious in future. She said that we must assume that the parliament will be a responsible body. That greatly depends upon which party is government in that parliament. It is safer for us to get things right rather than to take chances of that kind.

Lord Mackay of Ardbrecknish

I am grateful to the noble Baroness for her last few words. At first I thought that we were going to get a "No, no, no". However, we got a "No, no" and then a "Maybe". Of course I appreciate that the Bill largely deals with procedures for primary legislation, but I hope that that does not imply that secondary legislation is of less importance. It can be of the greatest importance, especially as this parliament—and I have no doubt in future the Scottish parliament—tends to pass Bills of a more skeletal nature than was once the case with many order-making powers. Some Bills that were passed through this Parliament by my own party were very dependent on secondary legislation, and I have little doubt that the same will be true of the present Government. Therefore, the issue of secondary legislation is important.

While the Delegated Powers and Deregulation Committee rightly stated that the correct procedure must be highlighted in any legislation which the Scottish parliament passes for secondary legislation—the procedure that should be used and whether it should be an affirmative or a negative-type procedure—it did not say much about the control that the parliament might exercise on that secondary legislation.

The noble Baroness was wise to suggest that the Government would ponder on what was said because the noble and learned Lords, Lord Hope and Lord Rodger, had intervened to highlight the real problem about the vires and the requirement to make delegated legislation as secure from attack as possible. My noble and learned friend Lord Mackay of Drumadoon pointed me to Schedule 6, paragraph 1(b) where it seems clear that the courts might be asked to judge legislative competence even before the parliament has agreed to a piece of secondary legislation by whichever mechanism it is to decide on that. Therefore, the noble Baroness was wise to say in conclusion that she would take the matter away. With those first words of comfort which we have received from her in the course of the Committee stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

Baroness Linklater of Butterstone moved Amendment No. 129A:

Page 62, line 5, at end insert—

(""Regulation of lobbying activities

6. The standing orders shall include provision for the regulation of the lobbying activities of individuals and companies in relation to the work of the Parliament.").

The noble Baroness said: The purpose of the amendment is to ensure that lobbying in the Scottish parliament is regulated properly. That subject has become extremely topical once again with the Prime Minister being reported in The Times today as backing the idea of a statutory register of lobbyists and the introduction of a quarantine system for ex-political advisers before they join lobbying firms.

Whether we like it or not, lobbyists have increasingly become part of the paraphernalia of political life and have a role to play when they behave properly. When they abide by the rules, they can play a helpful role in such matters as interpreting Bills for companies or acting as go-betweens between industry and other groups and Parliament. However, they are go-betweens and in many ways, by coming between government and the electorate, they can interfere with the process of communication and even emphasise the gap between the two.

How a government communicate with their electorate says quite a lot about them and this Government seem to rely increasingly on that form of communication to interpret and spin, from Mr. Mandelson down.

The experience of the recent past—the zeal and enthusiasm for dealing in government information and selling it to clients and even selling access to a Minister—has demonstrated the risks associated with that activity. Such a way of dealing with government information is not something that we wish to see in Holyrood. Only last week the noble and learned Lord, Lord Fraser of Carmyllie—I am sorry to see that he is no longer in his place because I should like to hear his views—launched a new lobbying group of his own from the august premises of the New Club in Edinburgh. So, already the bees are preparing to swarm around the new honeypot. But the noble and learned Lord, Lord Fraser, has pledged that he would back a code of ethics and a system of regulation by the Scottish parliament.

The Cabinet Secretary, Sir Richard Wilson, is reported to be drawing up a new code of conduct for lobbyists in the next few days, an initiative which can only be warmly welcomed. I understand that it is on the cards that the Neill Committee could be asked to examine the role of lobbyists. So now at Westminster action is being taken to tighten up on the activities of that layer of political consultation.

Before the Scottish parliament comes into being we should like to see it laid down clearly that: The standing orders shall include provision for the regulation of [such] lobbying activities". The Government may take a lead from the Association of Political Consultants. Its code of conduct recommends, for example, that its members should not have passes to the Palace of Westminster and should not, place themselves in a position of a potential conflict of interest by appointing any MP, MEP or sitting Peer to their main or any subsidiary board or by paying any retainer or commission", to any of those people. One may well add MSPs to the list.

However, as we have already been discussing and agreeing at some length, precisely what form the regulations should take must be for the Scottish parliament to decide. But it is important that from the word go the new parliament is seen to protect itself as far as possible from the excesses that we have seen in the recent past at Westminster. I beg to move.

Lord Renton

I believe that the noble Baroness deserves support for this amendment as far as it goes. However, the trouble that we have learned about in recent months and about which I had a Starred Question last week is not merely the lobbying of Members of Parliament. The problem was—we are all very glad to note that the Government are doing something about it—that there was lobbying of civil servants and lobbying in relation to the work of the Government. Therefore, if this amendment is passed, on Report we should add an amendment to the effect that it should apply to the work of the parliament or of the executive.

Lord Watson of Invergowrie

I am grateful to the noble Baroness for raising this important subject. Perhaps I should declare an interest in that I am what she described as one of the "bees" who will perhaps be swarming around the "honeypot" of the Scottish parliament in years to come. As an alternative, I should very much like to be an elected member of that parliament, but that is for others to decide.

As the noble Baroness said, it is a topical issue and I welcome the very measured tones in which she introduced the amendment. In the light of media coverage over the past 10 days or so, I had become rather alarmed that it might be another "rant". I do the noble Baroness no disservice in suggesting that; indeed, that is not normally the way that she addresses this Chamber. However, there have been many contributions in that vein, so I welcome this proposal.

Not only have I no objection to there being regulation of lobbying within the Scottish parliament—indeed, I would welcome it—I am also an advocate of self-regulation for many of those involved within the lobbying profession, if I may use that expression, and in the wider sense. It is a much wider sense than is often understood, and that is not something which has come out in the recent media coverage over the past few days. There are many organisations, apart from lobbying companies like the one of which I am a director, which are involved in lobbying in and around this place, in local government and in the European Parliament—there are quangos, local authorities, charities, voluntary organisations, trade unions and trade associations—all of which indulge to a greater or lesser extent in lobbying.

It is part of the hypocrisy of the press coverage over the past few days that two of the most assiduous lobbyists of the Newspaper Publishers Association indulge in lobbying in respect of regulation of what they are or are not allowed to print, the ownership of the media, and the BBC in terms of its licensing fee. I am sure that a great deal of it goes on behind the scenes in a way that they have criticised others for employing. I reject that approach.

It is important that the Scottish parliament should start on the right footing. I believe that the noble Baroness mentioned an organisation called the Association of Professional Political Consultants. That is a self-regulatory body which operates in and around these Houses of Parliament. Unfortunately, it has been shown to be ineffective. I understand that two of the three organisations highlighted in the Observer reports last week were in fact members of that association. Therefore, the dangers or limitations of self-regulation are evident for all to see.

Having said that, I and several other people concerned with lobbying in its various forms in Scotland have been involved over the past six months in putting together a self-regulatory organisation aimed at operating around the Scottish parliament. I am sure that that will continue until its conclusion, but I believe that it could quite easily be complemented by some form of regulation from the parliament. I cannot really see that there could be any objection from those who operate any form of lobbying. The way in which I operate when I have to approach someone on behalf of a client, whether it be a Member of Parliament or a Minister, is to be absolutely open and transparent. I say what I am doing, outline the argument and say on whose behalf I am making it. I firmly believe that if you have nothing to hide you have nothing to fear. If you are up front and open, there is absolutely no reason to fear any kind of regulation as to what you do. It is only those who want to operate behind the scenes and under cover who have something to fear. It is within that context that I support the noble Baroness's amendment.

Viscount Thurso

I rise to express my support for my noble friend and kinswoman in her amendment. This is one of the subjects which is not only topical at present but something which is of such importance that the principle deserves to go on the face of the Bill. The important part about my noble friend's amendment is that she leaves all the decisions as to how such regulation should be enforced to the Scottish parliament.

Lord Mackay of Ardbrecknish

This is an important subject. Well, it is mildly important in comparison with the two matters that we have already discussed. I believe that the noble Lord, Lord Watson, summed it all up and that there is very little to add to what he said. Like the noble Lord, I believe that there is nothing wrong with lobbying by companies, and so on. It would seem remarkable if we had a parliament where the only people who were not allowed to lobby were those people who actually create the economic wealth but every pressure group which wanted to spend that wealth were allowed happily to carry on lobbying. Therefore, we should be careful before we decide that lobbying ought not to be allowed. Frankly, it will always take place. Like the noble Lord, Lord Watson, I believe that it is important for it to be done openly and above board. Indeed, he made that point most clearly.

I turn now to the remarks made by the noble Baroness. I hope that she gave my noble and learned friend Lord Fraser of Carmyllie some notice that she was going to do a little advertising for him. I am not entirely sure that he would be happy with being described as someone hovering around a honeypot. My noble and learned friend could perhaps do without hovering around a honeypot. However, I would caution the noble Baroness against saying anything like that outside this Chamber. What intrigues me about the source from which this came is the fact that, in the great levels of importance, I should have thought that a public accounts committee and the scrutiny of delegated powers were hugely more important.

Earlier I discussed the matters I thought we should leave to standing orders and the matters I thought we really ought to set down. I think this matter comes pretty low down the list. When we discussed a public accounts committee the noble Lord, Lord Thomas of Gresford, said that that was a matter that should be left to the Scottish parliament and this Parliament should not set down anything in that regard. I am amazed that just a little while later a Liberal Democrat demands that standing orders will include provision for regulating lobbying activities. A few moments ago that party said we should not include a provision that made it compulsory to have a public accounts committee.

Lord Mackie of Benshie

The noble Lord may appreciate that this is a new form of trouble which has been revealed in recent weeks, whereas a public accounts committee is absolutely essential. The matter we are discussing is something new which we think should be taken into account.

Lord Mackay of Ardbrecknish

I suppose that if you have to defend holding two opposite positions within an hour, that is as good a defence as I have heard. However, it does not convince me. If I had heard the noble Lord, Lord Thomas of Gresford, roundly condemning my suggestion that standing orders should include provision for a public accounts committee, if I had been the noble Baroness I would have decided quietly not to move my amendment. I do not know what the Government will say about this, but I believe this matter falls well inside those matters that can safely be left to standing orders of the parliament.

Lord Sanderson of Bowden

Before the Minister replies to this point, I should say that I have no objection to what is being proposed in this amendment. All I would say as someone who may have to do some kind of work—in connection with a company I am involved with—to ensure that the Scottish parliament gets the right idea about certain matters is that I consider this matter of far less importance than that of the amendment which was defeated recently. I advise Ministers that I believe one needs to look closely at what was proposed under Amendment No. 127 which was defeated. The whole credibility of the parliament, its functions and its financial arrangements will come under intense scrutiny by business up and down Scotland and beyond the borders of Scotland. It will be vitally important to the parliament's future credibility to examine its accounts and the reports laid before it.

The Lord Advocate (Lord Hardie)

The amendment tabled by the noble Baroness raises an important issue, as is apparent from the many contributions made by the Committee this evening. It is an issue which obviously requires careful consideration. We believe that it is important—I am sure the Committee will accept that this is important—that the Scottish parliament should establish from the outset a reputation for the utmost probity in the conduct of its members. I do not think there can be any question about that. Having said that, I cannot support this amendment. I share the view of the noble Lord, Lord Mackay of Ardbrecknish, and that of the noble Lord, Lord Sanderson of Bowden, on the relative importance of this matter. I also am of the view that this is clearly a matter which can safely be left to the Scottish parliament.

The amendment proposes that there should be a duty on the parliament to make standing orders to cover such lobbying activities as are specified. I do not believe that standing orders are the right means to regulate lobbying activities of individuals and companies. The means by which the noble Baroness has sought to regulate this matter in this amendment are in my view, not appropriate. Standing orders are concerned with regulating the proceedings of parliament and the conduct of members of the Scottish parliament who are participating in those proceedings. But to regulate the evil or ensure that the proper remedy is provided this proposal would be extending the scope of standing orders too far to encompass matters proposed in the amendment.

If there is to be statutory regulation of the lobbying activities of individuals and companies—and I do not demur at the suggestion that that matter may well have to be considered, and considered seriously—I suggest that it would be more appropriate for such regulation to be by an Act of the Scottish parliament. I can assure the noble Baroness that it would be within the legislative competence of the parliament to enact such legislation if it concluded that that was the right course.

Clause 22 covers matters of members' interests and also the question of lobbying in relation to paid advocacy of a particular cause or matter on behalf of any person. We shall deal with these matters further in considering a later group of amendments. However, I think it is important that noble Lords should note subsection (4) of Clause 22. That provision makes it clear that standing orders must prohibit a member of the Scottish parliament from advocating or initiating any cause or matter in return for payment or benefit in kind. That is a matter which, I note, the noble Lord, Lord Watson of Invergowrie, would be content to accept.

I would further remind the House that in its first report the committee under the noble and learned Lord, Lord Nolan, which considered standards in public life concluded firmly against the establishment of any form of public register of lobbyists and specifically against a statutory register. I mention that in the context of the comments by the noble Baroness. The thinking behind the recommendation was that the committee recognised that it was the right of everyone to lobby Parliament and Ministers. Moreover, it foresaw a danger in the creation of a register in that it might create the impression that the only way to approach an MP or Minister was through a registered lobbyist. That is clearly not in the interests of democracy. These arguments will still have to be addressed.

To assist the parliament in addressing these issues, it is my understanding that the Consultative Steering Group will cover this matter in its report. I understand that the committee is expected to consider the issue at its next meeting and that further work will be undertaken over the next few months to allow the group to make recommendations to my right honourable friend the Secretary of State and ultimately to the parliament to consider in due course.

With that explanation, I hope that the noble Baroness will accept that it is not appropriate to press this amendment, certainly at this stage, and I invite her to withdraw it.

9.45 p.m.

Baroness Linklater of Butterstone

This has been an interesting short debate. I am glad that, if nothing else, there seems to be a consensus around the Chamber that this an issue of great importance. I am grateful to the Minister for clarifying his position. This amendment was more in the nature of a probing amendment and he has made matters very clear.

However, I noted the feeling of the noble Lord, Lord Renton, that the amendment could possibly go further, thus disagreeing with some noble Lords on his side who feel that it is almost an entire irrelevance.

I took great heart at the words of the noble Lord, Lord Watson, and was grateful to him. As I understood it, the noble Lord welcomed the amendment. I know that he is a distinguished lobbyist of the best kind. The fact that he welcomes some kind of regulation from parliament is good to hear.

I suppose that I did not expect much more from the noble Lord, Lord Mackay, than to have this proposal dismissed. However, I indicated clearly that the shape and form of any regulation should be left to the parliament itself. Under the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 3 agreed to.

Clause 22 [Members' interests]:

The Earl of Mar and Kellie moved Amendment No. 129B:

Page 10, line 25, leave out ("Standing orders") and insert ("An Act of the Scottish Parliament").

The noble Earl said: Amendment No. 129B deals with the registration of members' interests. It was suggested to me by the Law Society of Scotland. The amendment would ensure that this important public issue of members' interests is dealt with in primary legislation. There needs to be adequate parliamentary scrutiny of the subject, especially in the light of recent allegations. We have heard that the consultative steering group will report in December. The draft standing orders must be made readily available to the public for their scrutiny and peace of mind.

Standing orders strike me as being too easily amended merely by resolution of the parliament. I would prefer that the Scottish parliament put the issue of registration of members' interests into primary legislation. Any changes would then have to be given proper scrutiny prior to amendment. Standing orders seem not to be a suitable vehicle for the regulation of members' interests. Although Clause 22 creates a framework for an offence provision, surprisingly that provision is delegated to standing orders. I say "surprisingly" because it could involve serious offences such as bribery, corruption and fraud. I beg to move.

Lord Hardie

Again, in relation to the noble Earl's amendment, I remind the Committee that Clause 22 has provisions to ensure that the parliament puts in place a framework within which it will regulate members' interests. I am sure that the electorate would expect no less.

Paragraph 9.8 of the White Paper made it clear that there would be minimum requirements, among other things with respect to rules about members' pecuniary interests. I should explain to the Committee that, in common with other parts of the Bill, we are establishing in the legislation basic provisions which will require to be filled out in the standing orders by the parliament itself. I have no doubt that the parliament will take a keen interest in that area and will want to build on best practice. The work which has already been done by the Nolan committee and the continuing activities of the Neill committee and the joint Select Committee on parliamentary privilege will also be pertinent. I am sure it will be of invaluable guidance to the parliament.

The Government recognise the need to keep this matter under review and doubtless the Scottish parliament will also do so. I have already referred to the consultative steering group which will also address the matter.

Amendment No. 129B in the name of the noble Earl would oblige the parliament to put down the detail of rules in respect of members' interests in an Act of the Scottish parliament rather than in standing orders.

We agree absolutely that the issues raised in relation to members' interests are serious ones which deserve to be handled in an appropriately serious manner. I do not, however, agree with the noble Earl that the detail of those rules needs to be specified in legislation. As I have already explained, in Clause 22, as in other parts of the Bill, we have taken the view that standing orders are the appropriate vehicle for setting out the detailed rules for the internal working of the parliament, with the Bill simply laying down the key issues which those standing orders must cover. Against that background, we believe it would be anomalous to have the detail of the rules relating to members' interests contained instead in primary legislation.

I understand the concerns expressed by the noble Earl, but do not see any particular difficulty with linking the creation of an offence with the breach of the provisions contained in standing orders rather than in an Act of the parliament. I do not think that there is a significant practical distinction. There will be no scope for standing orders to be capricious or unfair. The parliament will clearly need to keep firmly in mind that the standing orders, not only in this case but in general, will need to be rigorously drafted. Members of the Scottish parliament will be entitled to set, and I have no doubt will demand, clear and fair rules. With that explanation, I invite the noble Earl to withdraw the amendment.

The Earl of Mar and Kellie

I thank the noble and learned Lord for his explanation. Those who were advising me encouraged me to think that primary legislation may be more secure. They will read Hansard, as will I, and come to a conclusion in that regard. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 130 and 131 not moved.]

The Earl of Balfour moved Amendment No. 132:

Page 11, line 12, leave out subsection (6).

The noble Lord said: This is a probing amendment. Subsection (6) of Clause 22 states that, Any member of the Parliament who… (b) contravenes any provision made in pursuance of subsection (4), is guilty of an offence

My question is: who will investigate the prosecution? I beg to move.

Lord Mackay of Drumadoon

The amendment moved by my noble friend Lord Balfour and Amendment No. 133 in my name are important amendments dealing with another aspect of the relationship between the new parliament and the courts.

The purpose of these amendments—mine in particular—is to enable the parliament to deal with the behaviour of any of its members who act in breach of the standing orders relating to the registration of their interests or who act contrary to the provisions of Clause 22(4). As the noble and learned Lord the Lord Advocate said a short time ago, it will be important for the Scottish parliament to establish at the outset a need for financial probity on the part of all those who are members of it.

The statutory powers which the new parliament will have under subsection (5) to make standing orders which will allow it to regulate the behaviour of, and to discipline, its members are sufficient. They provide that when any member fails to comply with or contravenes a standing order, the parliament may withdraw his rights and privileges for the period of his exclusion.

If the courts are involved, far from helping the parliament to achieve the objective of high probity, that may cause difficulties. Any possible prosecution would require to be investigated by the procurator fiscal. No doubt in such cases the procurator fiscal would seek to discharge his duties as an independent prosecutor in as fair and objective a manner as possible. But he will inevitably require to become involved in investigating the behaviour of members of the parliament and possibly some aspects of parliament's conduct of its business in a manner which would occur only unusually in regard to the affairs of either your Lordships' House or another place. That might unavoidably, and certainly unintentionally on the part of the procurator fiscal, lead to some tensions and conflict between his office on the one hand and members of the parliament on the other.

More importantly, any such criminal investigation or criminal proceedings that might follow from it may delay the parliament invoking its own powers contained in standing orders made under Clause 22(5). If any proceedings were commenced, the sub judice rule which the standing orders must contain would ensure that the investigation would require to be put on ice until the criminal proceedings had run their course.

Without mentioning any examples, we are all aware in recent years of allegations in relation to the lack of probity of Members of Parliament and, indeed, members of local authorities. When the parties concerned try to investigate those matters and sometimes discipline the individuals involved, they are delayed while the criminal investigation takes place. Therefore, delay may be inevitable.

Furthermore, if on investigation the procurator fiscal decides that no proceedings are appropriate, were the parliament then to act, there might be perceived to be a difference of approach between the procurator fiscal on the one hand and the parliament on the other. It is perfectly competent for such a difference of approach to arise, but it may nevertheless provoke an element of controversy.

Another situation might be when the member had been prosecuted and convicted. Some people might feel that in that situation, if he had been prosecuted in a criminal court and punished there, it would be wrong for any further punishment to be visited upon him by the parliament, whatever the standing orders might provide. I perceive a further difficulty in these criminal proceedings. They are to be summary criminal proceedings before a sheriff court. If they ever occur, they will occur very rarely. With the best will in the world, it may be difficult for a sheriff trying a case in summary proceedings to get a clear feel as to the gravity or otherwise of what may or may not have been going on.

From time to time members of society are prosecuted for breaching the rules of their profession. Insider dealing by those involved in the financial services industry is one example of that. Some of the more abstruse provisions of the health and safety legislation is another example. Because these cases come along so rarely, and because they involve actions on the part of those highly experienced in areas of society where people may not have an in-depth knowledge of what goes on, it is sometimes difficult for the lawyers and the sheriff fully to grasp the gravity of what is involved. When someone has been accused and convicted of some of these offences and a fairly modest fine has been imposed, many lawyers have said privately that their impression was that the court did not fully appreciate the gravity of what had occurred. If that happened in this case, and only a modest fine was imposed and then the parliament proceeded to suspend the member for six months and to withdraw his salary and other privileges, there might be some scope for an appearance of conflict between the parliament on the one hand and the courts on the other.

I have a further difficulty. If the member was prosecuted for breaching the standing orders, in all probability he would be acting on behalf of some other person who had paid him the consideration, had given him the benefit in kind, and had asked for a particular cause to be advocated. However, under this provision it would not be competent to prosecute the individual—the member of the public—for being the other party to the criminal enterprise that took place.

I am not suggesting that there are not other statutory provisions around which might well found the basis of a prosecution against the member of the public or the company involved. But, if the criminal law is to be brought in, it seems to me that all those involved in the criminal enterprise should be capable of being prosecuted under the same statute. That would not be competent here.

A further and slightly more technical objection is that the offence would depend upon the precise terms of standing orders which are yet to be made and which, when they are made by the parliament, would not have the standing of secondary legislation. Their vires would not be a devolution issue in terms of Schedule 6. I am not saying that in some circumstances they might not be open to challenge in the court—I do not want to go over that ground again—but certainly they will not be scrutinised by the parliament, following the detailed procedure that would apply either with primary legislation or secondary legislation. I may be wrong but I think it would be very unusual for someone to be prosecuted in a court of law for breaching standing orders which did not have the force of primary legislation or secondary legislation, with the exception possibly of by-laws made by a local authority or some other public authority in accordance with powers given to them. That is a further technical reason.

The main thrust of my argument is this. The parliament will have powers to discipline its members. How it chooses to go about investigating such allegations is for the parliament. I believe that it would be competent to set up a particular committee to deal with it such as the Select Committee for Standards and Privileges in another place. It would be competent for it to appoint some form of parliamentary commissioner, such as exists in another place, to carry out the investigation and to lay details of the complaint before the committee concerned.

If the committee, and ultimately the parliament, has power to suspend the member, possibly until the date of the next election and therefore effectively exclude him for the remaining term of the parliament, that seems to me to be more than enough power of punishment. I beg to move.

Lord Hope of Craighead

There is another aspect to this matter which I mention by way of supplement to what the noble and learned Lord, Lord Mackay of Drumadoon, has said. One of the features of the criminal law is that it deals with the offence after the event. That is the nature of the criminal process. But the problem with lifting the lid, as it were, on the affairs of the parliament in the way that these subsections do, is that they introduce the possibility that someone may attempt to deal with the matter in advance by means of the civil process.

I have in mind the court being invited to pronounce an interim interdict to prevent the member acting in a way which would attract the offence. I do not know whether it is envisaged by Ministers that the courts in their civil capacity should be intervening in the affairs of the parliament in that way. My own view is that it would be preferable, so far as possible, that the parliament should be left to regulate its own affairs, including this particular chapter. But the presence of these offences in this clause tends to suggest that if someone were seeking to bring an interdict in the civil process, the courts should entertain that matter to deal with the matter which is expressly stated to constitute an offence under the Bill.

Baroness Carnegy of Lour

I am deeply worried about this from my amateur and lay knowledge of the way in which the law works. A really rather serious offence is being considered, with a fine of up to £5,000 or three months' imprisonment. I see in subsection (8) that the Lord Advocate and the Solicitor-General are included, whether or not they are members of the parliament. Can the noble and learned Lord describe the scene in which the Sheriff tries the Lord Advocate or the Solicitor-General and all the other things that the noble and learned Lord, Lord Hope, has been talking about with the possibility of an interdict against the Lord Advocate behaving in a certain way? It seems slightly Alice in Wonderland and also rather terrifying.

Lord Hardie

I do not find it terrifying at all. I have confidence in the holders of the office of Lord Advocate and Solicitor-General for Scotland. I am certain that they would never commit a criminal offence. But, if they did, whether it was under this provision or not, they, like any other members of society, are subject to the law and they would be prosecuted.

There are two matters raised by these amendments: the short question referred to by the noble Earl, Lord Balfour, and the more substantial one touched upon by the noble and learned Lord, Lord Mackay of Drumadoon. Without disrespect to the noble Earl, I shall deal with his question in the body of the response to the substantive issue. As I understand the argument, the noble and learned Lord suggests that the powers under subsection (5) of Clause 22 are sufficient. Therefore, one can delete subsections (6) and (7) which create the criminal offence and the penalty. As to the latter, subsection (7) simply imposes the penalty of a fine. There is no equivalent period of imprisonment. The maximum penalty is a fine of £5,000, which is level 5 on the standard scale.

Turning to the powers of the parliament to take action under subsection (5), the noble and learned Lord will be aware that this is not an unusual situation. For example, in employment law it is not uncommon for an employer to have civil remedies that include the dismissal or suspension of an employee, whereas if the employee has been engaged in criminal activity he will also be subject to the criminal law. People outside politics view very seriously any abuse by Members of Parliament. We have determined that from the outset there should be no room for doubt that members of the Scottish parliament are expected to adhere to rigorous rules of conduct in relation to declarations of interest.

If the Committee turns to Clause 22 it will see that the first four subsections indicate what members must do. They have to register their interests in the appropriate register. There is also an obligation under subsection (2) to declare a financial interest in any matter before the member takes part in any proceedings. It may be that standing orders will prevent the member from taking part in proceedings once that financial interest is declared. Subsection (4) is concerned with lobbying. A member must refrain from taking money from people to advocate a particular cause in parliament. I am sure no one doubts that these are reasonable obligations and ones that the public may reasonably expect to be imposed upon members of the Scottish parliament so that they retain the trust the electorate has placed in them.

Having gone that far, the Government wish to emphasise the importance that they place upon the integrity of members and their requirement to meet standards which are not unduly onerous. In that context we do not believe that it is unreasonable to create a criminal offence if a member of parliament chooses to ignore these obligations. Therefore, there are two sanctions. If the member decides not to comply with subsections (1) to (4) and fails to declare an interest or accepts money in exchange for advocating a particular cause the parliament make take action or the criminal authorities may take action, or both. I have no difficulty with that. If members of parliament are aware from the outset that that is what is expected of them and that it is a criminal offence to fail to comply with these obligations, then they know the risks that they are taking. That would bring home to them the importance of being open and frank about their involvement and their interests. I hope that there would then be less risk of a member straying from the straight and narrow.

I turn to the question of whether summary proceedings are appropriate because of the possible conflict between the criminal courts and the parliament. I do not find any difficulty with that. It is not unusual for the criminal authorities to investigate alleged misconduct by elected members, whether of local authorities or other bodies. With respect to the noble and learned Lord, to say that the sheriff does not or may not fully appreciate the significance of the action is not a proper answer.

It would not be difficult for the sheriff to determine whether a member has failed to register an interest which he or she ought to have registered—assuming the evidence is before the sheriff. It would not be difficult for the sheriff to determine whether a member had a financial interest in a matter that was being discussed at the relevant time—assuming that the evidence was there. Those are simple points of fact. It would not be difficult for the sheriff to determine that a member had received some payment in kind or money—if the evidence was available. Again, those are matters of fact.

Having established the guilt of a member, the sheriff is then faced with determining the appropriate penalty. The maximum penalty is fixed at £5,000. The sheriff, as in other cases, will have to determine where, within the range of zero to £5,000, he thinks that this particular offence falls. If it is a blatant offence, it is at the higher end; if it is not blatant, it will be towards the lower end.

To deal with the point raised by the noble and learned Lord, Lord Hope of Craighead, I do not envisage that the creation of a criminal offence would have the effect of someone bringing interdict proceedings. I am aware, of course, that if one is apprehensive of someone committing a wrong, it is possible in some circumstances to bring such proceedings. But the likely situation is that if there is an apprehended wrong, an interdict may be sought.

We shall come later to the question of the relationship between the courts and the parliament. I hope that the concerns of the noble and learned Lord will not be realised.

As far as the amendments are concerned, given the importance that we place upon members complying with their obligations under Clause 22, and given that we see the creation of the criminal offence as an important step in bringing home to members and emphasising in public that we consider the probity of members to be of the utmost importance, I would respectfully submit that it is appropriate to have such an offence.

I turn now to the point made by the noble Earl. The offence would be investigated in the same way as any summary criminal offence: first, by the police reporting the matter to the procurator fiscal, but the fiscal would be the person who would be responsible for taking summary proceedings. With that explanation, I invite the noble Lord to withdraw the amendment.

Lord Clyde

Before the noble and learned Lord sits down, I wonder whether he could set my mind at rest about one aspect of the matters which were raised earlier, which causes me considerable concern. It is of course elementary that in defining any criminal offence, one has to do so with the utmost precision, otherwise the criminal law comes into disrepute, and no one can know for certain whether they are offending.

Here we are apparently giving the Scottish parliament the opportunity, in the devising of its standing orders, to define an offence. While I am sure that we have immense confidence in it in the preparation of its standing orders, do we have the confidence to be sure that in defining registrable and financial interests it will do that with the complete precision which is the necessary ingredient for defining a criminal offence?

I confess that I have in the past found it extremely difficult to identify with exactitude what is meant by a registrable interest in such circumstances. Financial interest may be easier but is, to an extent, uncertain. I am anxious that what we are doing here is letting loose an undefined potentiality for criminal prosecution which would be offensive to the criminal tradition.

Lady Saltoun of Abernethy

I am absolutely amazed that the Government are anticipating that members of the Scottish parliament will be such a dishonest, sleazy lot that they will not themselves be able to regulate the registration of their interests and matters such as that, and that it will be necessary to introduce into the Bill criminal sanctions, quite apart from those available outside the Bill, to keep them under control.

Lord Monson

My noble friend might be unaware that a precedent was set recently in the Government of Wales Bill.

Viscount Thurso

Perhaps I may ask the Minister one question. It is sometimes possible for people, when registering their interests, to have a slip of memory or make a small mistake. In those circumstances, is it appropriate that the full weight of the law should used against them? If it is, when would the Government consider bringing such strictures to bear on another place?

Lord Hardie

To deal with the point raised by the noble Viscount, it is not unusual for people to have slips of memory and to make errors. Those are issues which are frequently addressed by the procurator fiscal when investigating other cases and they are taken into account. If the investigation by the fiscal indicated that it was a genuine error or slip of memory which was obviously not blatant, the likelihood is that the fiscal would not take any proceedings. That would be a matter for him or her to assess.

Perhaps I may deal with the point raised by the noble Lady, Lady Saltoun of Abernethy, and refer her to the answer given by the noble Lord, Lord Monson. The Government are not showing a lack of confidence in members of the Scottish parliament; they are recognising the importance that people place on the probity and integrity of Members of Parliament and people who stand for public office. It is right that in setting up such a body there should be no doubt that that is one of the fundamental principles which we believe should be enshrined in the legislation.

I turn to the point raised by the noble and learned Lord, Lord Clyde. The question of course is whether we are confident that the Scottish parliament will be able to frame standing orders with sufficient precision as one would expect of a provision in a criminal statute. I ask the noble and learned Lord: why not? The parliament will have power devolved to it to create criminal offences in the body of legislation. If the expertise is available to the parliament to frame such provisions, that expertise will be available to it in the formulation of the standing orders.

As regards subsection (1) and a registrable interest, the noble and learned Lord will see that that is to be defined in the standing orders. One would expect it to be defined with the precision necessary for the creation of a criminal offence.

Lord Clyde

Perhaps I may intervene. That is my exact concern. We are creating a criminal offence without knowing what it is.

Lord Hardie

With respect, we are not. We are creating a criminal offence which is quite clear: the offence of contravening the subsection which refers to any member who takes part in proceedings without having complied with, or in contravention of, the provisions of subsections (1) to (3) or contravenes any provision made in pursuance of subsection (4). I do not understand the noble and learned Lord's difficulty in this regard, given that the parliamentary counsel involved in drafting legislation will also be available to the parliament to draft the necessary standing orders.

Lord Monson

Does the noble and learned Lord agree that while it is fairly easy to define financial interests, it is extremely difficulty to define non-financial interests?

Lord Hardie

I accept the point made by the noble and learned Lord, Lord Clyde. The definition of registrable interests will have to be particularly specific.

Lord Mackay of Drumadoon

I am grateful to the Lord Advocate for setting out the Government's position, which I fully understand. We are at one that it is essential that the highest standards of probity are established from day one of the new parliament. We differ on how that is best achieved.

Although it is entirely a matter for my noble friend Lord Balfour to decide what he does with his amendment, I should indicate to the Committee that when Amendment No. 133 is called I intend to seek the opinion of the Committee.

The Earl of Balfour

I am not quite certain where I stand now. Perhaps someone can help me.

Lord Mackay of Drumadoon

Perhaps I may give some free legal advice, which I have been endeavouring to give to the Government. The Committee is waiting for my noble friend to indicate whether he intends to press the amendment to a vote or to seek leave to withdraw it.

The Earl of Balfour

The answer has taken something like 25 minutes. I should have thought that it was a fairly straightforward question. I wish to read in Hansard what has been said. If I beg leave to withdraw the amendment at this stage, I can come back with further questions at the next stage of the Bill. With those few words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon moved Amendment No. 133:

Page line 12, leave out subsections (6) and (7).

The noble and learned Lord said: I have already spoken to the amendment. I beg to move.

10.29 p.m.

On Question, Whether the said amendment (No. 133) shall be agreed to?

Their Lordships divided: Contents, 28; Not-Contents, 59.

Division No. 2
Astor, V. Mackay of Drumadoon, L.
Attlee, E. Minto, E.
Byford, B. [Teller.] Monson, L.
Carnegy of Lour, B. Rawlings, B.
Clyde, L. Renton, L.
Courtown, E. [Teller.] Rowallan, L.
Cranborne, V. St. John of Bletso, L.
Denbigh, E. Saltoun of Abernethy, Ly.
Dundee, E. Sanderson of Bowden, L.
Hope of Craighead, L. Selkirk of Douglas, L.
Kintore, E. Sempill, L.
Lucas of Chilworth, L. Stodart of Leaston, L.
Lyell, L. Wedgwood, L.
Mackay of Ardbrecknish, L. Wise, L.
Addington, L. Jay of Paddington, B.
Alderdice, L. Kennedy of The Shaws, B.
Allenby of Megiddo, V. Lester of Herne Hill, L.
Blackstone, B. Linklater of Butterstone, B.
Borrie, L. McIntosh of Haringey, L. [Teller.]
Carter, L. [Teller.]
Chandos, V. Mackie of Benshie, L.
Clinton-Davis, L. McNair, L.
Cocks of Hartcliffe, L. Maddock, B.
Davies of Coity, L. Mar and Kellie, E.
Davies of Oldham, L. Molloy, L.
Desai, L. Monkswell, L.
Dixon, L. Montague of Oxford, L.
Dormand of Easington, L. Pitkeathley, B.
Dubs, L. Ramsay of Cartvale, B.
Ewing of Kirkford, L. Randall of St. Budeaux, L.
Falconer of Thoroton, L. Razzall, L.
Farrington of Ribbleton, B. Redesdale, L.
Gilbert, L. Rendell of Babergh, B.
Gordon of Strathblane, L. Richard, L. [Lord Privy Seal.]
Grenfell, L. Scotland of Asthal, B.
Hacking, L. Sewel, L.
Hanworth, V. Simon, V.
Hardie, L. Stair, E.
Hardy of Wath, L. Symons of Vernham Dean, B.
Haskel, L. Thurso, V.
Hoyle, L. Tope, L.
Hughes of Woodside, L. Watson of Invergowrie, L.
Hunt of Kings Heath, L. Whitty, L.
Islwyn, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

10.37 p.m.

Clause 22 agreed to.

Clause 23 [Power to call for witnesses and documents]:

Baroness Linklater of Butterstone moved Amendment No. 134:

Page 11, line 28, at end insert— ("( ) matters involving the British Broadcasting Corporation and the Independent Television Commission,").

The noble Baroness said: The purpose of this amendment is to give the Scottish parliament the power to call for witnesses and documents on matters involving the BBC and the ITC.

While broadcasting has clearly remained a reserved matter under Schedule 5, under the Charter of the BBC, responsibility for broadcasting in Scotland is in large measure devolved already to the Broadcasting Council for Scotland under the chairmanship of the national governor for Scotland. That body produces a rigorous annual performance review as well as the BBC Scotland annual review.

Broadcasting in all its forms has a profound and permeating influence on all our lives in Scotland, culturally, socially and economically. It affects and influences our perceptions and thinking in a multitude of ways, including how we see the new parliament and how we relate to it. It is an enormously important element in the fabric of our democratic society.

In that situation, it seems to me extraordinary that the Scottish parliament should have no say in that element of public life and it seems only logical and right that it should be able to scrutinise the activities of the BBC and ITC and that they in turn should be accountable to it. The parliament should be able to ask questions of the BBC and the ITC and in turn, they should be expected to justify their actions. That would be particularly important if they were thought to be failing in some way.

The role of the Scottish parliament would not be to instruct or control but it should be able to have its voice heard and its influence felt. This amendment would also build into the structure an element of dialogue as well as accountability from which everyone should benefit. I have spoken with several top executives in broadcasting in Scotland who say that they have no problem at all with this proposal and would not object to being called as a witness or to producing documents. The BBC already expects to lay its annual report before the parliament.

If those most intimately concerned with the implications of this amendment see no problem with it, I cannot see why the Government should. Without the benefit of this amendment, the Scottish parliament would have no right to have a say in broadcasting in Scotland, nor would the BBC or the ITC be accountable to it in respect of an activity which is absolutely central to Scottish life. This is a situation which is surely both completely illogical and highly undesirable. I beg to move.

Viscount Astor

I should like to express my support for the principle behind the noble Baroness's amendment. I notice that she also has three other amendments on broadcasting which will require annual reports of the BBC to be laid before the parliament, as well as the, promotion and funding of Gaelic broadcasting in Scotland", and the, appointment of the National Governor for Scotland". My criticism would be that the noble Baroness's amendment does not perhaps go far enough. It seems to me that broadcasting is very separate in Scotland. In effect, there is almost a separate BBC, there are separate ITV regions and there are separate radio stations. Of course, the BBC is national and Scotland is part of the national system. One must also recognise the fact that the BBC is, as it were, the cement which holds much of this country together. Indeed, it is a national institution and should remain so. I am not suggesting that it should not.

There was a debate on the subject in another place in Committee which seemed to focus on two issues. The first was whether broadcasting should be responsible to a Scottish parliament and whether that parliament should be able to call witnesses from broadcasting, and so on, and have reports laid before it. The other issue was whether broadcasting should be an entirely separate matter for Scotland and thereby devolved. That was very much the proposal put forward by the Scottish National Party.

The debate in another place got somewhat out of kilter because it was automatically assumed that any form of change would result in some form of hypothecation of revenue and that, therefore, the BBC in Scotland would only be able to survive with the licence fee raised there. I do not believe that to be the case. However, it is true to say that the Scottish parliament will be responsible for arts policy, museums and galleries and many other matters which all come under the Department of Culture, Media and (Mr. Bank's) Sport, but it will not be responsible for broadcasting. That seems to me to be odd. The Government did not really come clean in another place on why broadcasting should be left under the control of Westminster.

If you want to start a Gaelic radio station in Dundee, it seems to me to be odd that you will have to go to Westminster for permission. There ought to be a mechanism for the devolving of powers of the ITC and the Radio Authority to Scotland within a national framework. As Members of the Committee will be aware, the BBC was created by Royal Charter. Schedule 5 to the Bill says that the BBC is a "reserved matter". Can the Minister say whether that means that the Bill will, as it were, supersede the Royal Charter or whether that reference merely applies to the transmission part of the BBC which, of course, is covered by Act of Parliament?

In the other place in Committee on 4th March of this year, the Secretary of State made two slightly contradictory statements in answer to such a point. At col. 109 of Hansard he said that, a separate charter is not needed, because we can devolve broadcasting in Scotland within the BBC charter". Then, further on in the debate he said: However, in terms of statutory power—the legislative power that is at the heart of the Scottish Parliament—there is very little that could be devolved. Even the BBC would be extremely difficult to devolve because, as I said in an intervention, it is a creature not of statute but of royal charter. Therefore, in effect, we are discussing very little". That seems to be slightly contradictory. The Secretary of State did, however, give a crumb of comfort to the Scots—it really was a crumb—when he said, the Government intend that the appointment of the national governor for Scotland will be made after full consultation with Scottish ministers".—[Official Report, Commons, 4/3/98; col. 1128.] He described that as an important safeguard. I do not think that it is much of a safeguard. He also said at col. 1127 that, The draft executive devolution Order requires consultation with Scottish Ministers in connection with the appointment of the Scottish member of the ITC, and we propose similar provisions for appointments to the Broadcasting Standards Council and the Radio Authority". That also is rather a crumb of comfort.

It seems to me that the Government have not thought out their policy on broadcasting clearly. I am not saying in any way that broadcasting should be totally devolved to Scotland but it seems to me that the Government should consider making the institutions that are totally reserved cross-border bodies. After all, the ITC has a separate office in Scotland. I do not know about the Radio Authority, but I am sure it will have one. Digital broadcasting and digital radio will mean that more channels will appear. I believe that the Scottish parliament ought to be able to have a role in this and ought to be able to call to account those who are responsible for Scottish broadcasting. They ought to be accountable to the Scottish parliament, albeit within a national system.

It has been suggested that the BBC is rather against this proposal. The chairman of the BBC, Sir Christopher Bland, came to the all-party media committee recently. When I asked him about this matter he said the BBC did not have a view on it and that it was a matter for Parliament to decide. I hope that the Minister will explain why this policy exists and the reasons behind it. I do not think the reasons put forward in another place are good enough. The Government ought to consider how to bring broadcasting within the orbit of the Scottish parliament.

10.45 p.m.

Lord Gordon of Strathblane

I speak briefly at this late hour. In the light of the heightened sensitivity on declarations of interest after the previous debate, I should immediately declare that I am chairman of Scottish Radio Holdings, which owns several radio stations in Scotland. The amendment, quite remarkably, mentions, matters involving the British Broadcasting Corporation and the Independent Television Commission", but makes no mention of the Radio Authority. One might perhaps assume that this is an oversight from people who do not realise that the Broadcasting Act 1990 is, unfortunately, on the statute book. Indeed one of the more attractive arguments that the noble Viscount, Lord Astor, advanced concerned that matter. If it were possible to turn the clock back on the 1990 Broadcasting Act throughout the UK, I think we would all be enthusiastic about that, but to do it uniquely in Scotland I do not believe to be practical.

I think the difference is that the content of broadcasting is vitally important to the people of Scotland, as is the content of the press. What we are talking about is not the content of broadcasting; for that you would hold to account people such as the chief executives of my company, Scottish Radio Holdings, the director of BBC Scotland, John McCormick, and people like that, not parliament and regulators. We have in this country a system under which Parliament has stood back from broadcasting and regulates it at arm's length through buffer bodies such as the Independent Television Commission, the BBC board of governors or the Radio Authority.

For that reason it is difficult to see Scotland having separate legislation for broadcasting. But that is what we are talking about, if we are talking about the Scottish parliament. What bit of legislation about broadcasting could conceivably be different in Scotland from the rest of the UK? If we take the example of the 1990 Act, if Scotland was not bound by that Act, radio in Scotland would still be under an independent broadcasting authority, while south of the Border it would have been moved to the Radio Authority. That would not make sense. The important point is that the broadcasting authorities will clearly want to co-operate with the Scottish parliament, and we shall discuss broadcasting.

If we examine the amendment, we see that it deliberately adds, uniquely, apart from the devolved subjects, the ITC and BBC. The amendment would seem to express the wish that broadcasting should be a devolved subject. I believe, however, that the Government are right to leave it as a reserved matter.

Lord Mackay of Ardbrecknish

The Liberal Democrat amendment would allow the parliament to summon to its committees anyone involved in the BBC and ITC. The noble Lord, Lord Gordon of Strathblane, rather beat me to it in wondering why radio was not included. I wondered why cable and satellite were not included. They are increasingly important in people's lives, in Scotland as elsewhere.

My noble friend Lord Astor wants to go slightly further and remove the reservation so that broadcasting matters are devolved. I can see the difficulties surrounding that approach. They were pointed to by both the noble Lord, Lord Gordon of Strathblane, and my noble friend. However, I cannot believe that it would be any less difficult to deal with devolving broadcasting and yet retaining some form of national overview than it is to devolve fishing and farming and yet keep the powers of negotiation with Europe in this place; or to break up the Forestry Commission into its component parts and yet try to think that one forestry commission can operate for the United Kingdom in the three different parts of the kingdom. So it is not so difficult as the noble Lord, Lord Gordon of Strathblane, suggested.

There are two aspects to this matter: the technical aspect and the question of who runs the show in relation to transmission and broadcasting. When I became a Member of the other place in 1979, one great problem at that stage was that many parts of my constituency, along with the rest of the Highlands, did not receive television pictures. An "active deflector" had been devised, which could be sited on the top of a hill, and the signal was bounced—with a little help (that is where the "active" came in) down into the glen so that people could receive television pictures. Those who looked after the airwaves did not approve of that at all; nor indeed could they understand that there was anywhere on earth that was hilly and unable to receive television pictures without interference from hills.

Unfortunately for them, one of my constituents, the late Colonel Archie Fletcher, who had been a commanding officer in the Scots Guards, was not a man to take those kinds of decisions lying down. His Member of Parliament was marched on parade, and we both conducted a campaign. We should have had no trouble had the matter been decided in Scotland. People would have understood immediately. But we had an immense amount of trouble persuading the guardian angels of the airwaves that this was a real problem and that it could be solved only by the means that we proposed. So there is much to be said for matters surrounding the frequencies of services and so on being devolved to Scotland.

After all, it may be that in Scotland we do not want many of the radio programmes that are broadcast on a national basis, such as Talk Radio. In Scotland, we might prefer to use that slot, as my noble friend Lord Astor said, for Gaelic. I understand that the Radio Communications Agency could contemplate a degree of autonomy within its Scottish operation if it were not inhibited by legislation which applies throughout the United Kingdom. These are important matters.

There is the question of the digitising of TV and the use of multiplexes. The digital multiplexes will reach only between 66 and 90 per cent. of the population in the UK. It is not hard to see where most of the missing percentages will be. They will be in rural Scotland, to an extent in Wales, and maybe in Cumbria. So there is a problem which it might be better to devolve to Scotland.

Turning to those who provide the viewers with pictures and sound, as the noble Lord, Lord Gordon of Strathblane, indicated, we have very robust media groups in Scotland. There is the Scottish Media Group, which includes Grampian and STV. We have Radio Clyde, which the noble Lord mentioned. I do not know it by the grand title of Scottish Radio Holdings because the radio station I listen to is Radio Clyde. The noble Lord will be delighted to hear that I listen to it and I will give him my complaints about some of the programme changes later. Those are Scottish organisations.

Then we come to the BBC, which is not. Or is it? No organisation has done more to advocate and push devolution over the past 20 years than the BBC at Queen Margaret Drive. With a few honourable exceptions, its broadcasters have never disguised the desire for devolution. There were a few exceptions, whether it be "Good Morning Scotland", "Newsdrive", the lunchtime programme, "Headlines", or a whole host of other current affairs, the broadcasters have plugged the devolution line. One of the recent national governors tried to pretend to us that he was neutral. The moment he was released from the BBC he went off to a political post somewhere, propagating devolution, without any hindrance. So it was no great surprise to us that his organisation had been oblivious to all the complaints we had made about bias.

It is the BBC I am looking at, like my noble friend Lord Astor. The BBC fought the campaign in favour of devolution. Many of the journalists and people who supposedly chaired discussions in which I have been involved made no attempt to disguise their bias. If the BBC had advocated devolution, should it not share in the devolution? Why should all the rest of us have it and not the BBC?

Lord Gordon of Strathblane

Is the noble Lord suggesting that a Scottish parliament should legislate for the programme schedule of BBC Scotland? The degree of devolved programming at the moment is entirely within the gift of the BBC, unless the noble Lord wishes a Scottish parliament to insist that there should be more.

Lord Mackay of Ardbrecknish

I am not asking the Scottish parliament to control it, I am simply saying that the BBC should be a devolved matter and there should be a Scottish BBC, just as there will be a bit of the Forestry Commission which will be the Scottish forestry commission. I see no problem about that at all. If other things are to be devolved, like great departments of state such as health, education, and many others, it seems to me that there is a lot of sense in the BBC in Scotland cutting itself free of the shackles—those are the words used—of London, Whitehall and all the other places. It should be a Scottish organisation. I am amazed that those keen advocates of devolution in the Committee are not keen on this. I wonder why.

It is right and proper that the BBC should be devolved and I share the view of my noble friend Lord Astor. I look forward to the pro-devolution Front Bench opposite agreeing with the points made.

11 p.m.

Lord Hardie

I am conscious of the hour and that the House is sitting tomorrow morning, so I shall try to be brief. Amendment No. 134 would give the Scottish parliament power to summon witnesses in connection with matters involving the British Broadcasting Corporation and the ITC. Perhaps I may say to the noble Lord, Lord Mackay of Ardbrecknish, that the ITC includes cable and satellite broadcasting.

As the Committee will be aware, broadcasting is a matter which is reserved to the UK Parliament and Government. The Government believe that there should be clear lines of accountability. It is right and proper that it should be for Westminster to investigate matters which are reserved, such as broadcasting. The Bill therefore does not give the Scottish parliament a power to summon witnesses in connection with reserved matters, except with regard to matters in relation to which functions have been executively devolved to Scottish ministers. This amendment seeks to have broadcasting treated differently from all other reserved matters. We do not think that that would be right.

The Government's policy about the power of the Scottish parliament to summon witnesses and documents from bodies operating in Scotland which have responsibilities only in reserved areas was clearly set out in paragraphs 2.10 and 2.11 of the White Paper. We recognise the importance of those bodies in the economic and social life of Scotland and for that reason the parliament will be able to invite such bodies to give evidence.

The Bill needs to make no provision to allow it to do that. We have no reason to believe that representatives of the BBC, ITC and other bodies concerned with broadcasting in Scotland will be reluctant to give evidence to the Scottish parliament. We do, of course, recognise that broadcasting will be of interest to the Scottish parliament. I hope that the Scottish parliament will stimulate an informed debate on broadcasting matters, and I anticipate that broadcasters in Scotland will be sensitive to the views of the members of the Scottish parliament.

The amendment in the name of the noble Viscount, Lord Astor, would remove broadcasting from the list of reserved matters altogether. I have already explained that our policy is and remains as set out in Schedule 5; that is, that broadcasting should be a reserved matter. The Government feel, first, as a matter of principle that the standards applied to broadcasting should be established at national level and that the proper independence of broadcasting should be established and maintained at that level. Secondly, we believe that it is in the interests of Scottish viewers and listeners and of the broadcasting organisations that broadcasting should be dealt with at a UK level. Indeed, the noble Viscount recognised that the BBC was a national institution.

The view of the Government is also the view of broadcasters in Scotland. Scottish production and broadcasting have made a substantial contribution to the quality of television and radio in the whole of the United Kingdom. Equally, we benefit from a free flow of broadcast material within the United Kingdom. It may be objective that devolving broadcasting would not necessarily detract from the unified regulatory framework for broadcasting in the UK. It would be possible, and in view of the technical complexity of broadcasting it might be sensible, for the Scottish parliament not to use the power to make laws if that power were devolved. But the assumption will be that if broadcasting were to be devolved, different laws could be made and different regulatory bodies could be set up. If there were different programme codes, there could be a situation in which a programme was permitted in Scotland but not allowed in England, or vice versa. In such circumstances, there would be a serious disincentive to companies investing in production in Scotland. The confidence of the industry is a factor which we take seriously and I am sure Members of the Committee share that concern.

The noble Viscount noted that the BBC is largely governed by its own charter. But that does not mean that parliament cannot provide in this Bill for the BBC to be reserved. Nor does it mean that the BBC will be caught by the reservation of the Crown. It would be within the competence of Westminster legislation to modify prerogative instruments. Indeed, the present Bill provides for ministerial functions conferred by such instruments and exercisable in relation to matters which are not reserved to be exercisable instead by Scottish Ministers. In other words, the Bill would modify certain Royal Charters. That would be the case for ministerial functions conferred, for example, by the Royal Charters of the Scottish Sports Council and the Scottish Arts Council.

Although broadcasting is to be reserved, it is intended that some changes will be made in relation to the various broadcasting authorities. For example, as the noble Viscount noted, my honourable friend the Minister in another place recognised that the national governor for Scotland of the BBC is appointed under the provisions of the Royal Charter. But it is intended that Scottish Ministers will be consulted by the Secretary of State for Media, Culture and Sport on future appointments.

Its own charter provides that an annual report of the BBC shall be sént to the Secretary of State and shall be laid before both Houses of Parliament. In future the report will also be sent to Scottish Ministers and presented to the Scottish parliament, and similar arrangements will be made for the other broadcasting authorities.

With those explanations, I invite the noble Lord to withdraw his amendment.

Viscount Astor

The noble and learned Lord gave a clear explanation of the BBC and the Royal Charter and how that works under the Bill, for which I am extremely grateful.

Will the Government consider the ITC, which has not so far been mentioned? The ITC has a separate office in Scotland that largely deals with matters in Scotland. Will the Government look at whether that body should be responsible for cross-Border matters or be given some form of authority within Scotland so that it can make local decisions without always having to refer to Westminster when those matters did not affect, for example, broadcasting on a national basis?

Lord Hardie

The point raised by the noble Viscount is covered by the comments that I made in relation to the BBC. The ITC is also concerned with national broadcasting and the same considerations would apply.

Viscount Astor

Perhaps I may come back to the noble and learned Lord. The difference between the BBC and the ITC is that the ITC—this applies also to the Radio Authority—is responsible for local services.

When digital comes in, the ITC will be responsible for local television services and local cable services. That is what makes the ITC different from the BBC.

Lord Hardie

I do not think that the position is essentially different for the ITC. The Government do not intend to distinguish between the BBC and the ITC.

Baroness Linklater of Butterstone

I thank the noble and learned Lord for his reply and his explanations, which I found very helpful. I must also say that the stories of the noble Lord, Lord Mackay of Ardbrecknish, about people who live in the hills having problems with television reminds me of my home in the hills of Perthshire. My father refused to pay his television licence because he could receive only one channel, and very badly at that. In the end, he was fined and he was all over the local papers as the "revolting colonel".

I thank the noble Viscount, Lord Astor, and the noble Lord, Lord Mackay, for their support. I take the point of the noble Lord, Lord Gordon, about radio. Although we are well aware that the BBC and ITC can be invited to appear before the Scottish parliament, as the Bill stands they may not be required to appear. That is only really relevant when there is an issue of some importance. I feel, as everyone in the Committee appears to feel, that this is a matter of great importance and one to which we shall probably wish to return at a later date. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Ramsay of Cartvale

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.