Lords Sitting of 21 July 1998

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

Baroness Uddin
Mrs. Manzila Pola Uddin, having been created Baroness Uddin, of Bethnal Green in the London Borough of Tower Hamlets, for life—Was, in her robes, introduced between the Lord Carter and the Lord Shore of Stepney.

Lord Alli
Waheed Alli, Esquire, having been created Baron Alli, of Norbury in the London Borough of Croydon, for life—Was, in his robes, introduced between the Baroness Jay of Paddington and the Lord Montague of Oxford, and made the solemn Affirmation.
Viscount Downe—Took the Oath.

No. 10 Downing Street: Security Gates
2.48 p.m.
Lord Morris of Manchester Lord Morris of Manchester asked Her Majesty's Government:
Whether they see any early prospect of being able to have the security gates at the entrance to Downing Street removed.
Lord McIntosh of Haringey: My Lords, access to Downing Street has been controlled for security reasons for many years. Given the range of possible threats to Downing Street, the gates currently provide the most efficient and cost-effective means of controlling access. If at some time in the future the threats were to diminish sufficiently to allow us to reconsider the status of the gates, we would of course do so.
Lord Morris of Manchester: My Lords, I thank my noble friend for his reply, up with which, as he will know, at least one former celebrated occupant of No. 10 would not have put. Does he recall that, even in the Second World War, when Britain's very survival was at stake, access to Downing Street was not obstructed? And is he aware that, even when the police went on strike and marched there in 1919, our deeply symbolic open access to Downing Street was not curtailed, and indeed that Lloyd George negotiated with the strike leaders from a window at No. 10?
Again, if security gates are so crucially important at one end of Downing Street, why is comparable provision not equally important at the other end? Finally, is my noble friend aware of the widely-held
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view that we lost something very special when the existing barrier appeared and of the widely-held concern that the barrier seems now to be increasingly regarded in Whitehall as permanent?
Lord McIntosh of Haringey: My Lords, I think that none of your Lordships would wish to have gates at the Whitehall entrance to Downing Street. We would all prefer to go back to the time when the Prime Minister lived in a house which was immediately accessible. Indeed, I cherish a photograph of my youngest son, taken some 30 years ago when he was campaigning for nursery education for all, holding up a balloon outside the door of No. 10. It has taken 31 years for this Government to achieve what he was campaigning for at that time. There is a difference between the front and the back of the building. After all, the back is protected by a considerable flight of steps, which would make access for bombers difficult. But the whole House will sympathise with the views expressed by my noble friend
Lord Mackie of Benshie: My Lords, is the Minister aware that the gates may well be needed to hold back the crowds who want to cheer the friendship between the Chancellor of the Exchequer and the Prime Minister?
Lord McIntosh of Haringey: My Lords, the noble Lord must have been watching television on 1st May last year.
Lord Mason of Barnsley: My Lords, is my noble friend aware that he should strongly emphasise "not yet"? Is he aware also that there are too many dissident elements now under the umbrella of the so-called "real IRA" operating in the north and the south of Ireland and no doubt lurking in London and other parts of Britain? Therefore I emphasise most strongly that no security fences should be brought down.
Lord McIntosh of Haringey: My Lords, my noble friend is right. There is a continuing threat from the dissident bodies who rejected the Northern Ireland agreement. Indeed, it is plain that they regard their objective as an attack on the British Cabinet. To that extent my noble friend is unfortunately right.
Lord Marlesford: My Lords, does the Minister agree that, regardless of security, the gates add considerable distinction to what is otherwise a slightly dingy little street?
Lord McIntosh of Haringey: My Lords, it is a personal view, but I do not agree. They are grossly over-elaborate for the rather elegant Georgian buildings in Downing Street and even over-elaborate for the less attractive buildings in Whitehall.
Lord McCarthy: My Lords, is my noble friend saying seriously that assassins cannot run upstairs?
Lord McIntosh of Haringey: My Lords, not when they are carrying heavy bombs.
Baroness O'Cathain: My Lords, the Minister says that the noble Lord, Lord Mackie, must have been watching television on 1st May last year. I was watching television on 2nd May last year and saw cheering hordes in Downing Street. At that time I thought it signified the fact that the gates were no longer going to be operable. Is it the fact that they are flexible, depending upon whether or not there is something to celebrate?
Lord McIntosh of Haringey: My Lords, the noble Baroness is correct; I should have said 2nd May and not 1st May. The gates are flexible in the sense that, if notice is given—for example, if a petition is to be delivered to No. 10 notice can be given to Charing Cross police station—access will be made available to delegations for that purpose, as indeed access was made available on 2nd May last year.
Lord Ewing of Kirkford: My Lords, is my noble friend aware that the reason the gates were opened on 2nd May last year was to let the previous occupant out so that the new occupant could get in?
Lord McIntosh of Haringey: My Lords, I believe the horrible tradition we have in this country is that the departing Prime Minister leaves by the back door. I do not care much for that tradition either.

Social Security: SERPS
2.55 p.m.
Baroness Castle of Blackburn Baroness Castle of Blackburn asked Her Majesty's Government:
Why the leaflet Don't leave your pension to chance, issued by the Department of Social Security in June, does not refer to the arrangements to make proof against inflation the pension received under SERPS, occupational pension schemes and personal pensions respectively.
The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham): My Lords, I was encouraged by my noble friend's Question to read the new pamphlet on pensions distributed by the Department of Social Security. It presents the basic information about a complex matter in a clear, friendly, balanced, accessible and rather jolly way. I was impressed by it.
If my noble friend believes that the information in the pamphlets is in any way incomplete or less than balanced, I shall be happy to ensure that the contents are reviewed in time for the next edition.
Baroness Castle of Blackburn: I agree that it is very pretty. But does the Minister agree that pensions contributors, still reeling under the misselling scandal which affected millions of them, do not want prettiness, but precision? Does she accept that it is a grave imbalance to leave out of the picture the fact that only one of the pensions options set out in the pamphlet—namely, SERPS—as against occupational or personal pensions, guarantees by law that the contributions will
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be uprated in line with earnings during the building up of the pension and that the pension, when in payment, will be price-indexed? Surely that is not a minor omission. Will the Minister kindly arrange for somebody to look at the whole text to see whether or not there is an imbalance in the almost neutrality of the Government between private insurance companies and their state earnings related pension scheme'?
Baroness Hollis of Heigham: My Lords, my noble friend is entirely correct that SERPS has many advantages. That is one of the reasons why the Government are proposing to keep it as an option. As my noble friend said, SERPS is fully indexed; it is portable, it is cheap to run and it is safe against misselling. Those are important considerations.
Nevertheless, SERPS faces real difficulties in today's labour market. It does not cover the self-employed, people who are intermittent, part-time or temporary contract workers and, unfortunately, after the adjustments made to it by the previous administration, it is not of sufficient adequacy to ensure a comfortable old age. In forward projections somebody on a state pension of SERPS is likely to be receiving under 10 per cent. of average earnings by the year 2050. That is why those considerations and others will be reviewed later this year. I am happy to reconsider the entry in the leaflets in relation to SERPS and its indexation.
Baroness Carnegy of Lour: My Lords, does the Minister agree that the expression of her noble friend Lady Castle "not prettiness but precision" might be a good new motto for this Government?
Baroness Hollis of Heigham: My Lords, it is important to be precise and I do my best within this House to be precise. But we also know that information is useful only in so far as it is understood and accessible to people. One of the problems for the DSS—I am sure that I do not speak just for myself when I say this—is that DSS detail is obscure, difficult, complicated and intimidating. That is why so many people, including elderly people, do not take up the benefits to which they are entitled. If "pretty" is a shorthand for making something accessible and friendly, then it should not be at the expense of precision. We need it to ensure that people know their rights.
Baroness Castle of Blackburn: Is not the reason why the state pension is due to decline to 10 per cent. of average earnings the fact that the previous government abolished the link for the uprating with the movement of average earnings, which incidentally I introduced when I was Secretary of State, which is no doubt why Mrs. Thatcher abolished it? Is it not worrying that the only thing the Government propose to do in the lifetime of this Parliament is to extend the means-tested benefit—an improved form of income support—to the poorest pensioners when we need to get back to pensions as of right and which are adequate for people to live on?
Baroness Hollis of Heigham: My Lords, my noble friend makes two points. The first concerns the

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adequacy of SERPS. She is right to say that it was sliced away by the previous administration. To restore those slices—in other words, to reinstate the value of SERPS to what it was in 1978 when my noble friend had the pleasure of introducing it into our lives—would, by 2030, cost £29 billion extra a year. That is what we are talking about. That is why the Government do not feel that it is appropriate to go down that road.
My noble friend asked whether income support is an adequate alternative to raising the basic state retirement pension. At this stage we are not suggesting that these are alternatives. We are saying that we have a problem of poorer pensioners now; they are not in the labour market, but already dependent on pension; they are not claiming income support and are well below the poverty line. As my noble friend will know from yesterday's Question, we are seeking to raise their income support entitlement so that they have a basic pension of at least £75 a week from next April. But, for future pensioners, we believe that the right way to proceed is to continue to build the economy in order to produce decent jobs so that people can enjoy a decent second pension in their old age.
Lord Skelmersdale: My Lords, perhaps I may take the Minister back to her original Answer. As someone with an acknowledged interest in these matters, why did it take the Question of the noble Baroness, Lady Castle, to prompt her to read this pamphlet?
Baroness Hollis of Heigham: My Lords, I read a great deal of literature. This pamphlet came out a few months ago. I was not aware of the new cover or the rewriting of it. The content is the same as the basic DSS pamphlet but it now has the charter mark for the Plain English Award. I think it is delightful. However, if I were to bring to the House all of the literature produced by the DSS, I would need a couple of wheelbarrows or more.
Earl Russell: My Lords, while we speak of pensions as of right, will the Minister undertake to look again at the Goode Report on the regulation of private pensions to consider whether enough has been done to implement the safeguards it proposed and, in particular, whether it should be impossible for employer trustees to dismiss employee trustees or pensioner trustees?
Baroness Hollis of Heigham: My Lords, that is, if I may put it this way, a hang-over question from the Pensions Act 1995, with which the noble Earl, Lord Russell, and myself and others of our colleagues were very much concerned at the time. In a way we are waiting to see whether the fears we expressed at the time have been realised. I have not been made aware of any such fears being realised. That may be because, although it has happened, I have not been briefed to that effect. However, I will check to see whether my honourable friend Mr. Denham in another place, who has responsibility for that portfolio, has had any information to suggest that our worries, as illuminated by the Goode Report, have come to light and whether we need therefore to review this matter.
Baroness Byford: My Lords, the pamphlet refers to a variety of choices for second pensions. Is the Minister aware that great concern was expressed about the effect the abolition of the advanced corporation tax credit would have on individuals, businesses and local authorities with regard to pension provision?
Baroness Hollis of Heigham: My Lords, I wondered whether we would be revisiting ACT, as indeed we have. The Government's position has been made clear on several occasions. We believe that the best basis for a secure second pension is the nature of the economy, the quality of its growth and the security of its investment. Since 1992 the value of UK equities has risen by 107 per cent. Two-thirds of that has been capital growth and only one-third dividend growth, In other words, the value of the pensions we receive has depended on the capital increase in growth, which in turn depends on the investment in, the nature and the strength of our economy. What matters for someone's pension is the health of the economy, which in turn determines the investment record of the pensions portfolio, which in turn also reflects whether an individual may have a secure job and can build up that entitlement. It also depends on the investment track record of the individual pensions manager. It is perhaps worth noting that ACT represents just one-tenth of the difference between what a good pensions manager will do and a poor pensions manager will do to the same type of fund.

Japanese Economy
3.5 p.m.
Lord Newby Lord Newby asked Her Majesty's Government:
What action they are taking, in conjunction with their European Union partners, to prevent a collapse of the Japanese currency and economy.
Lord McIntosh of Haringey: My Lords, the economic situation in Japan is clearly of great importance to the recovery in Asia and the world economy as a whole. The UK, with its G7 and EU partners, has been actively engaged with Japan offering advice and encouragement as it seeks to resolve its economic problems. The economic and financial situation was discussed by heads of state at the Asia-Europe meeting in London, at the Birmingham G8 summit and by EU Finance Ministers at the Cardiff European Council. Officials have participated in extensive discussions, most recently at a meeting in Tokyo on 20th June between G7 and Asian Finance Deputies.
Lord Newby: My Lords, I thank the Minister for his Answer. But does he agree with me that, despite the importance of the Japanese economy to British and European economies, our response has been pretty inadequate, particularly in relation to that of the US and China, not least because of Europe's preoccupation with preparations for the single currency? Does he further agree that the sooner the single currency is in operation, with Britain as a full participant, the sooner Europe will be able to punch its weight in international financial affairs?
Lord McIntosh of Haringey: No, my Lords, I would not agree that our response has been "pretty inadequate". Clearly, the United States has a particular interest, but we have been fully pulling our weight with our European partners. However, the fundamental fact is that we have no status to intervene with the Japanese economy any more than the Japanese have to intervene with ours.
Lord Dean of Beswick: My Lords, my noble friend said that we have been offering advice and assistance. But have the Japanese Government indicated any intention to abandon some of their disgraceful restrictive practices which over the years have prevented people like us from exporting more to Japan?
Lord McIntosh of Haringey: My Lords, I think my noble friend is referring to alleged restrictive practices of a considerable time ago. The difficulty with British exports to Japan is much more in relation to the ability of the Japanese to pay rather than restrictive practices.
Lord Moynihan: My Lords, given that Japan has the second largest economy in the world, that its foreign exchange reserves stand at more than 200 billion dollars, that its personal savings are around 10 trillion dollars and that eight of the world's largest 15 banks are Japanese, does the Minister agree with Chancellor Kohl's assessment that, if Asia is ailing now, then Europe will be ailing tomorrow?
Lord McIntosh of Haringey: My Lords, I can broadly confirm the accuracy of the noble Lord's figures about the Japanese economy. Our immediate concern with the Japanese economy is not about its overall strength. Even pessimistic forecasters are looking to a decline of only 0.9 per cent. this year and some increase next year. Our particular concern has to be with the stability of the Japanese financial system and, as the noble Lord rightly said, the importance it has in world financial markets. That is the crux of our concerns.
Lord Grenfell: My Lords, does my noble friend agree that while we talk about what the rest of the world can do to help Japan, in fact what needs to be done is for the Japanese themselves to sort out their financial system? We have given them great encouragement to do so. When a new Prime Minister has been appointed, we hope that the new government will do that. Does my noble friend agree that in the end everything will depend on whether the Japanese Government have the courage to take some very tough decisions, which they must take? Otherwise any assistance from the rest of the world will be meaningless.
Lord McIntosh of Haringey: My Lords, my noble friend is right, as I indicated in the answer I have just given to the noble Lord, Lord Moynihan. We have welcomed the "Comprehensive plan for financial restructuring" which the Hashimoto Government introduced earlier on this month. We have welcomed the "bridge-bank" plan which will help to ensure that the collapse of one bank does not bring about the collapse
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of others. My noble friend is right in that we need credible and rapid action. As the Chancellor of the Exchequer said on 3rd July,
"We look forward to the speedy implementation of these measures, and the steps necessary to restore the health of the financial sector and stimulate demand. This will be vital for sustained economic recovery in Japan and Asia as a whole".
Lord Razzall: My Lords, following up the answer which the Minister just gave, will he confirm what I believe he said; namely, that he agrees with the view of every economist that I have read which indicates that the one thing that is necessary in Japan above everything is a significant boost to demand—probably by significant tax cuts? Does my noble friend agree that the financial world is very mystified as to why that is not happening? Does he further agree that that is what should happen and that the Government will press the Japanese Government to do that?
Lord McIntosh of Haringey: My Lords, I agree very strongly with the noble Lord. What is needed in Japan is good, old Keynesian counter-cyclical measures. Perhaps one of the problems that the Japanese have is too much devotion to monetarist heresy.
Lord Stoddart of Swindon: My Lords, is my noble friend aware that I, and I am sure a number of people, agree with him that the Japanese must deal with their economy themselves? It depends on their psyche, traditions and so on. Does he agree that if the single currency led to a recession—as it may very well do if the strict Maastricht criteria were applied—that would do enormous damage not only to the Japanese economy but to the economies of Europe and the world?
Lord McIntosh of Haringey: My Lords, I disagree with my noble friend as strongly as I disagreed with the contrary view expressed by the noble Lord, Lord Newby.
Lord Barnett: My Lords, I agree with what my noble friend has just said, but does he believe that the Chancellor of the Exchequer will agree with what my noble friend said a few moments ago?
Lord McIntosh of Haringey: My Lords, about Keynesian counter-cyclical policy? Yes, indeed.

Nigeria: Visa Restrictions
3.13 p.m.
Viscount Waverley Viscount Waverley asked Her Majesty's Government:
Whether, in the light of recent developments in Nigeria, they will encourage European Union and Commonwealth countries to lift visa restrictions on government personnel from Nigeria with immediate effect, with a view to facilitating dialogue with the new administration.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, many of your Lordships will be aware of General Abubakar's statement of yesterday, 20th July. We welcome his commitment to the restoration of democratic civilian government by May 1999, after free and fair elections in early 1999. We also welcome his undertaking to respect human rights and democracy, including the release of the remaining political prisoners. This is the best news that we have had from Nigeria for a long time.
The time has now come to re-establish dialogue between Nigeria and Britain and the wider international community. We will be working to secure the agreement of EU partners that members of the Nigerian Government should now be allowed to visit EU member states where that would help General Abubakar's programme and promote constructive dialogue.
Viscount Waverley: My Lords, I consider that an excellent response. I understand that Tony Lloyd has also reacted to this news. Not least, Britain's business community will breathe a sigh of relief. Has not General Abubakar acted in a responsible manner since taking office, driving Nigeria towards democracy on a firm foundation within a realistic timetable? Should we not now be extending our hand of friendship, not least with our European partners, most notably France, and easing restrictions commensurate with progress?
Baroness Symons of Vernham Dean: My Lords, we are still considering what more we can do to support General Abubakar and his political and economic programme. His emphasis on transparent and inclusive political and economic processes is extremely important. The Nigerian people have made it clear that they want action and not just words. General Abubakar has set out a detailed plan of action by which they, and the international community, will be able to monitor progress. Britain is ready to help General Abubakar and his new administration with speedy and credible implementation of this difficult but essential programme.
Lord Moynihan: My Lords, given recent developments, can the Minister update the House on the prospects for Nigeria's future participation in the Commonwealth?
Baroness Symons of Vernham Dean: My Lords, as noble Lords will know, Nigeria was suspended from the Commonwealth for its non-compliance with the Harare principles of good governance. We shall be willing to look at re-admittance once Nigeria returns to compliance by restoring the democratic, civilian government, which they will be doing next year. That is implied by last night's statement. The next steps are through the Commonwealth ministerial action group. It is for that group to come together and to look at what the Commonwealth as a whole should be doing in order to help Nigeria in this much welcomed initiative which the general has taken.
Earl Russell: My Lords, I believe that the whole House will join the Minister in welcoming recent announcements from Nigeria. Does she agree that the situation remains unstable? There are slips between cup and lip. Until these changes are in place, does the Minister agree that existing asylum seekers from Nigeria should be given the benefit of the doubt and not returned there?
Baroness Symons of Vernham Dean: My Lords, it will be action and not words that count in relation to Nigeria. We must be as encouraging as possible of the reforms which the general announced yesterday. For example, we welcome the release yesterday of a further 10 political prisoners. They were civilians charged with being involved with a coup in 1995. We shall be looking very closely at these questions. I am unable to say anything enormously helpful at the moment to the noble Earl as regards asylum. I am sure that he will understand that yesterday's statement will have to be examined very closely by Her Majesty's Government and within the Commonwealth, as I explained to the noble Lord, Lord Moynihan, and in the EU as well, as I indicated in my original response to the noble Viscount, Lord Waverley.
Viscount Waverley: My Lords, will the Minister confirm that there is now a real possibility that British Airways will be able to recommence its flights to Lagos?
Baroness Symons of Vernham Dean: My Lords, General Abubakar's statement is fairly lengthy. I shall make arrangements for a copy of the speech to be put in the Library of the House. I can tell the noble Viscount that there was a commitment in the statement to restore air links. I do not know whether that specifically covers British Airways. More light may be shed on that by the whole of the speech, but I am not clear on that point. I hope that I shall be able to give the noble Lord a detailed answer in a letter.

Business
Lord Carter: My Lords, at a convenient moment after 3.30 p.m., my noble friend Lord Williams of Mostyn will, with the leave of the House, repeat a Statement that is being made in another place on the outcome of the Comprehensive Spending Review for criminal justice.

School Standards and Framework Bill
3.19 p.m.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, I beg to move that the Commons amendments and reasons be now considered.
Moved, That the Commons amendments and reasons be now considered.—(Baroness Blackstone.)
On Question, Motion agreed to.

COMMONS AMENDMENT TO A LORDS AMENDMENT, COMMONS AMENDMENT IN LIEU OF CERTAIN LORDS AMENDMENTS, COMMONS REASONS FOR DISAGREEING TO CERTAIN LORDS AMENDMENTS AND COMMONS AMENDMENTS TO CERTAIN WORDS RESTORED TO THE BILL BY THEIR DISAGREEMENT TO CERTAIN OTHER LORDS AMENDMENTS
[The page and line refer to Bill (94) as first printed for the Lords.]

LORDS AMENDMENT
34 Leave out Clause 23.
The Commons disagreed to this amendment for the following reason—
34A Because the amendment is inconsistent with securing local decision-making on school organisation and a mechanism for resolving conflicts between the interests of admission authorities and wider community interests.
Baroness Blackstone: My Lords, I beg to move that the House do not insist on their Amendment No. 34 to which the Commons have disagreed for the reason numbered 34A. In speaking to those amendments, perhaps I may speak also to Amendments Nos. 35 and 35A, 198 and 198A-C, 199 and 199A.
As amended in this House at Third Reading, the Bill no longer provides for local decision-making on school organisation matters; nor for adjudication where there are objections to these or to local admissions arrangements. I invite the House to agree with the continuing view of another place that that is not the right way forward. I also invite the House to accept the words restored to the Bill, which comprise those amendments to these provisions previously agreed in Committee.
We have covered the ground on this issue in some detail on more than one occasion. We have listened carefully to the points made, both here and in another place. We have also sought to explain why we continue to believe that the Government's proposals are desirable and an improvement on the present arrangements, and how they will work in practice. There is, I hope, agreement between us that we are right to pursue local decision-making on school organisation. These are local issues and ought to be capable of being decided locally.
The noble Lord, Lord Tope—I see that he is not in his place—and his noble friend Lady Maddock have argued that such decisions should be taken by the democratically elected local authority. I entirely agree with them that LEAs are, and must continue to be, key players in school organisation matters. Nothing that we propose reduces their contribution to decision-making in this important area. Local education authorities can already decide their own proposals where they attract no objections. That will not change. But I must say to the noble Baroness that LEAs have never been the only decision-maker in the system, even at local level, and we do not believe that it would be right to make them so now. For example, LEAs cannot in the current arrangements decide their own proposals where they attract objections; nor can they decide any proposals made by voluntary or by grant-maintained schools, as the right reverend prelate the Bishop of Ripon and the noble Baroness, Lady Blatch, have reminded the House from time to time. At present those proposals must come to my right honourable friend the Secretary of State. That external input is significant.
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It helps to maintain the balance between local partners in providing places locally. It is because we want to maintain that balance that we believe that a school organisation committee is the way ahead.
School organisation committees will bring together all the main partners in school provision at local level to consider and, wherever possible, agree proposals to provide sufficient and appropriate school places. The committees will be able to disagree with LEA proposals, although they will not be able to reject them unless the LEA group on the committee itself agrees. That, too, demonstrates the balance between partners that our proposals secure; ensuring that all partners in local provision get an equal say. I have said before that I hope—indeed, that I expect—the new arrangements to make it more likely than now that final decisions, with which all parties are satisfied, can be reached at this stage. But whether or not we call it a veto, any group on the committee, where it feels sufficiently strongly, will be able to ensure that a proposal is referred to the adjudicator for decision.
The adjudicator will look again at proposals, comments and objections and the reasons for disagreement at local level. He will consider all cases in the light of principles set out in public guidance from the Secretary of State and, as appropriate, in the school organisation plan and the code of practice on school admissions. Adjudicators will be able to receive representations, including from Members of another place or this one; and will decide whether to take oral representations. But the key point is that the adjudicators will make an independent judgment on each case. They are a necessary part of the system. This may also be the right place to remind the House that without adjudicators there is no mechanism for securing final resolution of local disputes about school admission arrangements. Such a mechanism is essential to our manifesto commitment, implemented elsewhere in the Bill, to make school admissions arrangements at local level more coherent and transparent for parents and children.
My right honourable friend the Secretary of State will issue guidance on the consideration of school organisation plans and school organisation proposals. Both school organisation committees and adjudicators will be required to take that guidance into account in reaching their decisions. Also, both school organisation committees and adjudicators will be required to be satisfied that adequate financial resources will be available to implement proposals if they are approved.
I do not accept, as some have argued, that these arrangements are more bureaucratic and less transparent than what we have now. There is always a balance to be struck between due process and equity on the one hand and speed on the other. The Government's proposals do the minimum necessary to ensure, first, that all the key players at local level are fully involved; secondly, that a context for decision-making is provided through a school organisation plan setting out in broad terms the future needs of the area; thirdly, that individual proposals are explored properly by those who have to implement and live with them; and, fourthly, that final decisions are made independently where it is not possible to resolve differences at local level.

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These new arrangements are, in the Government's view, the right way to secure local decision-making on changes to school organisation. I hope, therefore, that the House will accept the view reiterated in another place, that these provisions on school organisation committees and adjudicators should be restored to the Bill. I commend the amendments to the House.
Moved, That the House do not insist on their Amendment No. 34 to which the Commons have disagreed for the reason numbered 34A.—(Baroness Blackstone.)
Baroness Maddock: My Lords, these Lords amendments were moved originally from the Liberal Democrat Benches. We are extremely disappointed that the Government are not prepared to listen to the overwhelming view of this House on school organisation committees and adjudicators. The Minister has said that this is about local decision-making. Those are precisely the arguments that were advanced not only from the Liberal Democrat Benches, but also from the Conservative Benches. It is not often that I find myself with the Conservatives defending the right of local democracy, but in this case the Conservatives were wholeheartedly behind us.
I am not convinced by the arguments which the Minister has advanced today. The noble Baroness made great play of the fact that this is local decision-making. We believe that local decisions should be made by locally elected members of local councils. We have been told that in this place we cannot have a view about, for example, the issue of fees because we are not an elected body. Precisely the same argument is being used here in relation to local education authorities. The Minister said that no powers will be taken away from LEAs. However, the reality is that if somebody objects to the plan, it will not be the LEA which will make the decision on it because that decision will have to go to the local adjudicator. I am not convinced—I am sure that many others are not convinced—that the Government have listened carefully to our views on this matter.
The adjudicator is the subject of another amendment. We are told that those provisions involve the devolution of decision-making and that that decision-making will be independent. However, most of us are concerned above all lest the line of democratic accountability be lost. At present, decisions about school closures are made locally and, in good authorities, after much consultation. If there is still disagreement, the decision then comes up to the department and the Minister. Others have a democratic right to lobby their Member of Parliament and to meet Ministers. Admittedly, the Minister said today that Members of Parliament and your Lordships would have the right to lobby the adjudicator. That was not clear from our earlier discussions. However, I maintain that that is not the same as democratic accountability which runs right from the bottom to the top.
I know that others will be very disappointed that the Government have not listened on this matter. We had a good number of discussions earlier. The Government had the opportunity to make this advisory. The arguments put forward by the Minister today spell out why this should be an advisory body and not a body that in the end can
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override the decision of a democratically elected local body. That was our original objection and it remains our objection.
We do not intend to press this matter any further today. However, it will be interesting to see how matters turn out. If one person on the schools organisation committee objects, an enormous amount of bureaucracy will have to be gone through before a decision can be taken. I sincerely hope that for the sake of everyone in our schools the Minister was right when she said at earlier stages of the Bill that this would not happen very often. If it happens very often there will be total chaos. It is another layer of bureaucracy that will not achieve what the Government intend. We are with the Government in their intention to involve people other than the local council in best practice, but it should be advisory, and that is where we differ on this matter.
3.30 p.m.
Baroness Blatch: My Lords, I stand up again enthusiastically to support all that the noble Baroness, Lady Maddock, has just said. In some ways I am sorry that the matter is not to be pressed any further because the arguments used by the Government here and in the other place are just plain wrong. The only defence that has been put up by the Government is that this proposal will improve local decision making.
Perhaps I may give an example with which I hope the noble Baroness, Lady Maddock, agrees. One considers all of the processes that a local education authority has to go through in order to come to a view about some form of reorganisation in its area, whether it be mergers, closures or whatever. There must be consultation and the matter goes through the appropriate sub-committee, working party, full education committee and then the full council. Normally, in the past the decision of the council has gone to the Secretary of State. Let us for a moment imagine what happens with the proposals in place. It will no longer be a decision but a recommendation. That will go to the organisation committee. If the organisation committee comes to a different view from that of the local authority and the one dissenting voice is the local authority itself the matter is then even further removed because it has to go to an adjudicator who cannot possibly be local to every single community in the country. There are to be only 20 adjudicators which means putting two or perhaps three local education authority areas together. Let us say that the adjudicator comes to a view that is consistent with the majority view of the organisation committee, not the minority view of the local education authority. The decision that is binding will not be the view of the most local democratically elected councillors. There is nothing more local than the local authority and the local authority must come to a decision. I find it deeply depressing.
I am sorry to invoke the name of the noble Baroness, Lady Farrington of Ribbleton, who has given such distinguished service to local authorities but has not come to their defence in this matter. This is a second-guessing body which is undemocratic, unelected and not local. It cannot be argued that the FEFC is local. It may be that a rather remote person is put up by the FEFC to operate in a local area. The notion that this is done in the name of local democracy, transparency and openness cannot be argued

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by the Government. This is not a democratic proposition. This second-guessing, unelected body will be there at the expense of the budgets of local authorities which would be better spent in the classroom on our children. Those budgets will be top-sliced in order to pay for accommodation, membership, attendance and all the trappings that go with the setting up of the organisation committee and the office of the adjudicator. I do not find that consistent with good local government.
Local government will be deeply depressed by this proposal. As the noble Baroness, Lady Maddock, has said, we shall also be watching very closely to see how it works out in practice. Local decisions particularly in relation to mergers, closures and reorganisation are always sensitive matters and lead to tension in local communities. The responsibility for making those decisions should remain with locally elected members with an appeal to an elected member of the Government. The decision should not lie with an adjudicator against whom there is no appeal whatever.
Baroness Farrington of Ribbleton: My Lords, I am quite sure that the noble Baroness, Lady Blatch, intended no discourtesy in referring to me by name. I know that from her long experience as a member of the previous government she is fully aware that Ministers may not speak in support of government policy in departments for which they do not speak and for which they have no responsibility.
Lord Dormand of Easington: My Lords, can the noble Baroness, Lady Blatch, tell the House of the essential difference between this matter which affects the education system and those matters dealt with by the many quangos which were instituted by the previous government, of which she was a member? I was a member of Teesside Urban Development Corporation. The noble Baroness played a very important part in those bodies. I believe that the noble Baroness is objecting to something that the previous government did dozens and dozens of times. Does the noble Baroness accept that she owes the House an explanation as to the essential difference between the matter that she is now pressing and the matter to which I have just referred?
Baroness Blatch: My Lords, I can provide the noble Lord with a precise answer. First, there was no other adjudicating body beyond the urban development corporation. The noble Lord will be aware that I served on the Peterborough Urban Development Corporation. I also served in the North-East of which the noble Lord is a well known and well respected resident. There was no second-guessing of the local authority. The area of responsibility of the urban development corporations was very clear. The corporations worked in co-operation with the local authorities and did not second-guess them in any sense. These are decisions taken by local authorities which do all of the spade work: they carry out the consultation work with local parent groups, local schools and governing bodies. After that work is done it is passed to another body that tries to come to a decision. If it does not come to a decision it goes to an adjudicator who is one
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removed. There is no comparison between this proposition and the way in which development corporations operated.
Baroness Blackstone: My Lords, I am very sorry that neither of the noble Baronesses on the Benches opposite has been convinced. I had hoped that I might have persuaded them—perhaps it was a forlorn hope—that the Government's proposals were the most effective way of securing local decision making on school organisation. However, I am surprised that anyone should seriously argue that the existing system—I emphasise that it is the only other option—is to be preferred. There is a local partnership in the provision of places and our proposals enable that partnership to make decisions in spite of the comments of the noble Baronesses, Lady Maddock and Lady Blatch.
Where agreement cannot be reached we believe that it is right that there should be an independent means by which a decision can be arrived at. That is what the adjudicators will provide. I suppose that there is just a difference between us as to how often agreement will be reached. Both noble Baronesses are exceedingly sceptical about it. The Government are rather more confident that these committees will be able to reach agreement for the most part. Where that is not possible it is important that the adjudicators who will be trained and expert people are able to reach decisions on the basis of the facts of each case and the principles set out in the guidance.
The noble Baroness, Lady Blatch, made reference to the Further Education Funding Council. It might be right for me to clarify here that the FEFC will not have a vote on any matters relating to pre-16 issues. Post-16, the FEFC has a statutory duty to secure sufficient education, and it is therefore entitled to play its part in school organisation committees. The Government will endeavour to ensure, wherever they can, that any FEFC representative is knowledgeable about local matters—something about which the noble Baroness was concerned.
Baroness Blatch: My Lords, I listened to what the Minister just said. That has not been made clear during the course of the Bill. Does it mean that if a decision comes to the organisation committee, which has no bearing on the diocese, the Church does not have a vote? If it is a decision that does not involve governors, for example, does it mean that governors do not have a vote? I had not heard that interpretation of how the body will work. My understanding was that it is an organisation committee with a number of different interests represented, and that each section has one block vote. It is deemed to be a committee for all purposes flowing from the organisation development plans.
Baroness Blackstone: My Lords, the FEFC obviously has a special role to play on school organisation committees, because it is concerned with post-16 education only. Therefore it would be right to restrict its voting power in a way that is different from all the other members of the school organisation committee.
As the noble Lord, Lord Tope, pointed out when summing up on Third Reading, everyone is a local person somewhere. The current arrangement provides that where

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there is an objection by a local person to a proposal for change to school organisation, the decision on that proposal is removed immediately from the local arena to my department in Sanctuary Buildings. Wherever possible, local decisions should be taken by local people. The arrangements we have put in place should encourage them to search for ways to build and secure agreement. That seems to us to be a sensible approach. The committees provide a way in which that can be achieved, with adjudicators as a necessary and responsible longstop, in what I believe will be a limited number of cases where it cannot be achieved. I invite the House to support that view by reinstating the relevant clauses and schedules in the Bill, and ask that the House does not insist on their amendment to which the Commons have disagreed.
On Question, Motion agreed to.

LORDS AMENDMENT
35 Leave out Clause 24.
The Commons disagreed to this amendment for the following reason—
35A Because the amendment is inconsistent with securing local decision-making on school organisation and a mechanism for resolving conflicts between the interests of admission authorities and wider authority interests.
Baroness Blackstone: My Lords, I beg to move that the House do not insist on their Amendment No. 35 to which the Commons have disagreed for the reason numbered 35A.
Moved, That the House do not insist on their Amendment No. 35 to which the Commons have disagreed for the reason numbered 35A—(Baroness Blackstone.)
On Question, Motion agreed to.

LORDS AMENDMENT
42 Clause 35, page 31, line 22, at beginning insert ("Subject to section (Grouping of community, voluntary aided, voluntary controlled and community special schools under a single governing body),").
The Commons disagreed to this amendment for the following reason—
42A Because each of the schools concerned should have its own dedicated governing body to oversee standards at the school.
Baroness Blackstone: My Lords, I beg to move that the House do not insist on their Amendment No. 42 to which the Commons have disagreed for the reason numbered 42A. I am speaking also to Amendments Nos. 43 to 49 and 43A to 49A. We have listened carefully to all the arguments advanced by those who wish to maintain a system which permits a number of schools to be grouped under a single governing body. Some noble Lords have offered judgments about the appropriate administration of schools. Others have emphasised a wish to maintain the traditional governance arrangements of their local schools. We have thought hard about the points made, in particular by the noble Baroness, Lady Seccombe. But I am afraid that we have concluded that, in this case, our wider policy objectives of modernising the role of governing bodies and sharpening their focus on
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raising standards require us to stick to our guns. I shall be asking the House to confirm that view, as reiterated in another place.
In a system where the governing body is there to take the lead on the day-to-day management of the school, I can see the argument for saying that it is more convenient for some schools which share a site or indeed a common history to be grouped under a single governing body. Our discussion would then be about the best system to facilitate this. However the focus of governing bodies is not day-to-day management, but strategy.
Even with the best of intentions, it is inevitable that a single governing body, with responsibilities for more than one school, may be more easily side-tracked into considering cross-school management issues. We want each and every school to have its own governing body because that is the best way to ensure that the governors focus on our number one objective of raising standards. A dedicated governing body will have more direct responsibility for the performance of pupils of a specific age range and will be able to exercise this responsibility more effectively precisely because they are able to focus on those needs. It will also be more directly accountable to parents and others for the performance of the school.
There is another reason why we believe that grouped governing bodies are an increasingly outmoded idea. The Excellence in Schools White Paper made clear our commitment to strengthening parental representation on governing bodies. I had thought that this was one area where there was a strong measure of agreement between both sides of the House. By definition, a dedicated governing body will benefit from full parental representation; grouped governing bodies can offer only a diluted version. All those are significant considerations, and important reinforcing elements in taking forward the Government's standards agenda.
I have particular difficulty with Amendment No. 45. Subsection (2) of that amendment makes it clear that in the case of a community or community special school the local education authority can propose to the Secretary of State that it should have a grouped governing body with one or more other schools whether or not the school objects. Indeed, if the proposal relates to two primary schools the consent of the Secretary of State is not even required—the LEA can just go ahead. In either case the LEA is required to consult the schools first; but it is not required to observe their wishes on the matter. That is not acceptable to us. We believe that schools are, within the scope of the law, best placed to decide for themselves what co-operative arrangements they should enter into.
We also believe that those who have argued for a different approach have overstated the difficulties our proposals will cause the schools in question. We see no reason why governing bodies should not be able to make their own arrangements for cross-representation and joint discussion.
It has been suggested from time to time that an education action forum in an education action zone would be acting as a grouped governing body for a significant number of schools. I have to say that this is a somewhat bogus comparison. In contrast to the amendments

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proposed in this House, in an education action zone no governing body will have such arrangements forced upon it. It will determine for itself whether it wishes to contract specific responsibilities or cede the majority of its powers to the forum. It is also the case that these arrangements are not permanent but are limited to the life of the education action forum—a period of three to five years.
I do accept that there is something to be said for maintaining the status quo on this issue. No one has any wish to fix something that is not broken. But on balance we have concluded that grouped governing bodies are a potential inhibitor of the much more fundamental policy objectives which underpinned our manifesto last year and were set out in the Excellence in Schools White Paper. Our priority must be to enable governing bodies to focus on promoting higher standards of pupil achievement; to sharpen their accountability for the performance of their school, and to improve parents' representation on governing bodies.
Moved, That the House do not insist on their Amendment No. 42 to which the Commons have disagreed for the reason numbered 42A.—(Baroness Blackstone.)
Baroness Seccombe: My Lords, I am speaking to the amendment as I moved it in Committee and on Report.
I am extremely disappointed, and despite the eloquent argument from honourable friends in another place, it seems sad that the Government were unable to accept a small amendment. After your Lordships made the decision and sent the issue back to the Commons, the governors, teachers, pupils and everyone else in the community was thrilled. That joy will now turn to sadness. A system which had been in place since Elizabethan days and had served the community well, making a centre of excellence, will now be disallowed. The Government have been mean and heavy handed in their rigidity. They think that they know best. I see it as a sad day for local democracy. However, I do not wish to push the matter further.
Baroness Blatch: My Lords, I wish to refer to something that was said in the Commons. Will the noble Baroness, Lady Farrington, say whether I am breaking the rules?
Baroness Farrington of Ribbleton: My Lords, I am not aware that there is a direct written rule. I think that it is unusual for two people to speak from the Front Bench on the same issue, but I stand to be corrected.
Baroness Blatch: My Lords, I look to the Clerk for advice. I do not believe that I am breaking any rule.
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I believe that any person in the House is free to comment on what was said in another place when considering these amendments.
Baroness Farrington of Ribbleton: My Lords, I was relying on advice given by the noble Lord, Lord Henley, when I was on the Bench now occupied by the Opposition.
Baroness Blatch: My Lords, I have no wish to break the rules of the House. I wait to be advised. I understand that I am in order.
I rise to defend my noble friend Lady Seccombe. In another place the Minister of State for Education said at col. 467 of the Official Report that he rejected the Lords amendment as it was "wrong-headed and foolish". I do not believe that my noble friend was being foolish. Nor do I believe that the House was being foolish when it passed the amendment. The school to which I refer goes back to medieval times. Two small schools shared a site for a long time, with a single governing body. It was only through the constraints of the site that the school became a separate infant and junior school. They continued with a single governing body. The Minister said:
"[The amendment] fails to recognise the important role that school governors play in raising standards; not the old approach that governing bodies used to have, but the new approach outlined in the Bill, giving every governing body the responsibility to raise standards".—[Official Report, Commons, 15/7/98; col. 467.]
I understand that this governing body is as responsible for raising standards in one part of the school as in another. It accepts that full responsibility. If Ofsted or some external body found it wanting in its responsibilities, it would be culpable and would accept that responsibility. However, to my knowledge it is an excellent school. It has never fallen down on the job and its primary responsibility is to raise standards in both parts of the school.
The noble Baroness, Lady Blackstone, raised the issue of action zones. That has been a criticism. The noble Baroness said that where governing bodies of schools in action zones cede their powers to another body, they do so voluntarily. That is precisely what that school is doing. The two schools wish to have a single governing body. The schools have ceded voluntarily to one governing body. In their wisdom, the Government have decided that they would prefer to second guess what that school wants. In rejecting the amendment the Government have come to the conclusion that they know best for that school.
During the previous amendment, the noble Baroness talked about flexibility, local decision-making and democracy. The rejection of the Lords amendment flies in the face of flexibility, local democracy and local decision-making. That is a great pity.
However, I spoke primarily to defend my noble friend and the majority of the Members in this House who voted for the amendment: that they were neither foolish nor unwise in determining that amendment.
Baroness Blackstone: My Lords, I have given a number of reasons why the Government object to the amendment. Those objections were put to another place and were fully endorsed last week. I must now ask this House to agree with that view and support the Government. I therefore ask the House not to insist on their amendments to which the Commons have disagreed.
On Question, Motion agreed to.

LORDS AMENDMENT
43 After Clause 38, insert the following new clause—
("Grouping of community, voluntary aided, voluntary controlled and community special schools under a single governing body

GROUPING OF COMMUNITY, VOLUNTARY AIDED, VOLUNTARY CONTROLLED AND COMMUNITY SPECIAL SCHOOLS UNDER A SINGLE GOVERNING BODY
.—(1) A local education authority may resolve that any two or more community, voluntary aided, voluntary controlled and community special schools maintained by them shall be grouped for the purposes of this Chapter.
(2) Where any schools are grouped under this section, they shall—

(a) be treated for the purposes of this Chapter as a single school; and

(b) have a single governing body constituted under a single instrument of government.

(3) A group shall be treated for the purposes of this Chapter—

(a) as a voluntary aided school, if it contains at least one voluntary aided school;

(b) as a voluntary controlled school, if it contains at least one voluntary controlled school and paragraph (a) does not apply;

(c) as a community special school, if it consists only of community special schools; and

(d) as a community school, if none of paragraphs (a) to (c) applies.

(4) In this Chapter—
"group" means two or more schools grouped under this section; and
"grouped school" means a school which forms a part of a group.
(5) Any reference in any enactment to the governing body or governors of a school shall be construed, in relation to any grouped school, as a reference to the governing body or governors of the group.").
The Commons disagreed to this amendment for the following reason—
43A Because each of the schools concerned should have its own dedicated governing body to oversee standards at the school.

LORDS AMENDMENT
44 After Clause 38, insert the following new clause—

CONSENT OF SECRETARY OF STATE AS TO GROUPING?
(".—(1) Subject to subsection (2), a local education authority shall, before resolving to group any schools under section (Grouping of community, voluntary aided, voluntary controlled and community special schools under a single governing body), obtain the consent of the Secretary of State to the proposed grouping.
(2) The Secretary of State's consent is not required if—

(a) the group will consist only of two primary schools;

(b) both of the schools serve substantially the same area;

(c) neither of the schools is a special school (as defined in section 337 of the Education Act 1996); and

(d) where they are in Wales, there is no significant difference between them in their use of the Welsh language.

(3) Where—

(a) two primary schools have been grouped in circumstances in which, by virtue of subsection (2), the Secretary of State's consent to the grouping was not required, and

(b) a change of circumstances occurs such that a proposal to group those schools made after that change would require his consent,

the local education authority shall obtain his consent to their continuing to be grouped.
(4) The Secretary of State may give his consent to any grouping (or continued grouping) of schools subject to such conditions as to the duration of the grouping as he sees fit to impose.
(5) Any dispute as to whether, for the purposes of this section—

(a) two primary schools are to be regarded as serving substantially the same area, or

(b) there is any significant difference between two primary schools in their use of the Welsh language,

shall be determined by the Secretary of State.").
The Commons disagreed to this amendment for the following reason—
44A Because each of the schools concerned should have its own dedicated governing body to oversee standards at the school.

LORDS AMENDMENT
45 After Clause 38, insert the following new clause—
CONSENT OF, OR CONSULTATION WITH, GOVERNING BODY AS TO GROUPING
(".—(1) A local education authority shall not pass a resolution under section (Grouping of community, voluntary aided, voluntary controlled and community special schools under a single governing body) applying to a voluntary school without first obtaining the consent of the school's governing body.
(2) A local education authority shall not pass a resolution under section (Grouping of community, voluntary aided, voluntary controlled and community special schools under a single governing body) applying to a community or community special school without first consulting the school's governing body.").
The Commons disagreed to this amendment for the following reason—
45A Because each of the schools concerned should have its own dedicated governing body to oversee standards at the school.

LORDS AMENDMENT
46 After Clause 38, insert the following new clause—
PROCEDURE FOR MAKING OR ALTERING THE INSTRUMENT OF GOVERNMENT FOR A GROUP
(". Schedule 12 shall apply, with such modifications as may be prescribed by regulations, for the purposes of making or altering the instrument of government of a group.").
The Commons disagreed to this amendment for the following reason—
46A Because each of the schools concerned should have its own dedicated governing body to oversee standards at the school.

LORDS AMENDMENT
47 After Clause 38, insert the following new clause—
ELECTION OF PARENT AND TEACHER GOVERNORS FOR A GROUP
(". The instrument of government for a group—

(a) may provide for the local education authority to have power to determine, in relation to every election of parent or teacher governors, the school or schools within the group—

(i) the parents of registered pupils at which are entitled to stand and vote at the election, or

(ii) the teachers at which are entitled to stand and vote at the election,

as the case may be; and

(b) where it so provides, shall require the authority to ensure that the position after any such election will be that there is no school within the group which will not have had an opportunity to participate in accordance with paragraph (a) in the election of at least one of the parent or (as the case may be) teacher governors of the group.").

The Commons disagreed to this amendment for the following reason—
47A Because each of the schools concerned should have its own dedicated governing body to oversee standards at the school.

LORDS AMENDMENT
48 After Clause 38, insert the following new clause—
REVIEW OF GROUPING
(".—(1) Where subsection (2) applies in relation to a school which is grouped with one or more other schools under section (Grouping of community, voluntary aided, voluntary controlled and community special schools under a single governing body), the local education authority shall review the grouping of those schools and consider whether or not it should be brought to an end.
(2) This subsection applies in relation to a school if proposals relating to it are made under any provision of Chapter II.
(3) Where on a review under this section a local education authority consider that any grouping of schools should be continued, and the Secretary of State's consent to the grouping, or to the continued grouping, of the schools was at any time required by section (Consent of Secretary of State as to grouping), the authority shall—

(a) report to the Secretary of State on the results of their review; and

(b) provide him with such information as he may reasonably require with a view to enabling him to consider whether or not the grouping should be brought to an end.").

The Commons disagreed to this amendment for the following reason—
48A Because each of the schools concerned should have its own dedicated governing body to oversee standards at the school.

LORDS AMENDMENT
49 After Clause 38, insert the following new clause—
TERMINATION OF GROUPING
(".—(1) The Secretary of State may by order bring to an end any grouping under section (Grouping of community, voluntary aided, voluntary controlled and community special schools under a single governing body) in respect of which his consent was at any time required by section (Consent of Secretary of State as to grouping).
(2) Any grouping under section (Grouping of community, voluntary aided, voluntary controlled and community special schools under a single governing body) may, if the group does not contain a voluntary school, be brought to an end by resolution of the local education authority.
(3) Any such grouping may, if the group contains a voluntary school, be brought to an end—

(a) by resolution of the local education authority made with the agreement of the governing body, or

(b) by one year's notice given either by the authority to the governing body or by the governing body to the authority.

(4) Any instrument of government for two or more schools which are grouped under section (Grouping of community, voluntary aided, voluntary controlled and community special schools under a single governing body) shall be taken to have been revoked—

(a) in the case of a group which was established for a specified period, at the end of that period, or

(b) at the time when the grouping is brought to an end in accordance with subsection (1), (2) or (3).").

The Commons disagreed to this amendment for the following reason—
49A Because each of the schools concerned should have its own dedicated governing body to oversee standards at the school.
Baroness Blackstone: My Lords, I beg to move that the House do not insist on their Amendments Nos. 43 to 49 to which the Commons have disagreed for their reasons numbered 43A to 49A.
Moved, That the House do not insist on their Amendments Nos. 43 to 49 to which the Commons have disagreed for the reasons numbered 43A to 49A.—(Baroness Blackstone.)
On Question, Motion agreed to.

LORDS AMENDMENT
50 Clause 42, page 34, line 24, at end insert ("; and
(c) the aims and values of the school, and the ways in which the school intends to promote the spiritual, moral, social and cultural development of its pupils.").
The Commons agreed to this amendment, with the following amendment—
50A Line 2, leave out from ("school,") to the end and insert—

("(d) how the spiritual, moral, cultural, mental and physical development of pupils is to be promoted at the school;

(e) how pupils are to be prepared for the opportunities, responsibilities and experiences of adult life and citizenship;

(f) the standards of educational achievement of pupils; and

(g) how the governing body are to promote the good behaviour, discipline and well-being of pupils.").

Lord Whitty: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 50A to Lords Amendment No. 50. I speak also to Lords Amendment No. 52 and the reason numbered 52A.
I hope that the House will recognise that the Government have shown themselves ready to listen to genuine concerns in this House and to respond positively, while at the same time not cutting across other aspects of government policy. We listened carefully to the arguments advanced by the noble Baroness, Lady Young. I note that the noble Baroness is not in her seat today, although I understand that she may well be there tomorrow.
Baroness Blatch: My Lords, it is unfortunate. My noble friend Lady Young understood that the Statement was going to be taken after the preceding amendment. She is not present because she thought that there was to be another Statement. I think it unfortunate that we have pressed on with the amendments without informing this Front Bench.
Lord Whitty: My Lords, we would normally break at the appropriate point in the Bill. I regret that any misinformation has been spread, but I do not believe that that went through the normal channels.
Before I begin on the amendments themselves, I can announce that we have inserted a reference to spiritual, moral, social and cultural development into our draft statutory guidance on home-school agreements in recognition of the concerns of the House on that front.
The main considerations which have helped us to frame the amendment are, first, that the Government acknowledge the importance of pupils' spiritual, moral, social and cultural development, and the right of parents to have an opportunity to discuss such matters at the annual parents' meeting.
Secondly, we recognise that parents have many other concerns about their children's education which deserve equal treatment. It would not be appropriate, in our view, to send a message that those other matters are of secondary importance.
The Government's first amendment builds on the proposition of the noble Baroness, Lady Young, in Committee by adding to the list of items that parents may discuss at their annual meetings. The noble Baroness's reference to the school's aims and values remains. Her other reference—to pupils' spiritual, moral, social and cultural development—is reflected in the wider description of the purposes of education set out in subsections (d) and (e) of the revised clause.
We have added two further items which we believe are of particular concern to parents: pupils' standards of achievement and the school's contribution to their behaviour, discipline and general well-being. The final word would embrace concerns about, for example, pastoral care, health and safety, and security.
It may be helpful if I explain why we have not simply adopted the noble Baroness's words. We wanted to describe pupils' entire educational experience in as clear
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a way as possible. While Section 10 of the 1996 School Inspections Act uses the phrase,
"spiritual, moral, social and cultural development",
the broader description in Section 351 of the 1996 Act refers to,
"the spiritual, moral, cultural, mental and physical development of pupils at the school, and of society",
and preparation for,
"the opportunities, responsibilities and experiences of adult life".
We have used that wording here, but with one addition. Subsection (e) of the revised clause refers to preparation for the opportunities, responsibilities and experiences of adult life and citizenship. My right honourable friend the Secretary of State has made clear over the past year his commitment to the development by schools of a proper sense of citizenship in their pupils, and I know that that is welcome to many noble Lords. We believe that this approach removes any doubt that this provision covers social development in its fullest sense.
We have also applied this wider description to the school, rather than just the curriculum. This makes it consistent with the noble Baroness's amendment, which reflects the whole-school approach to spiritual, moral, social and cultural development. We believe that the revised clause will help signal to parents the range of issues in which they have an interest. We hope that it will help encourage as many parents as possible to attend these meetings, and to contribute their views on the way their schools are run.
I believe that that is a generous and constructive response to many of the points made by noble Lords in Committee. But I am afraid that we have not been able to go so far in considering the noble Baroness's other specific proposal for a statutory requirement to produce an annual statement by the governing body on these matters. The Commons' amendment therefore deletes that responsibility and I ask the House to sustain it.
Writing a proper annual policy statement is not a "back of the envelope" job. It demands careful thought, discussion and consultation. And the accumulation of such duties rapidly becomes a burden on governing bodies—particularly the most conscientious—which we owe it to them to police with vigilance.
In any case, we would prefer to encourage schools to tackle the issues, rather than have them divert their energies in producing a standardised report. The Qualifications and Curriculum Authority's draft guidance, currently being piloted in schools, sets out a thorough approach to developing and implementing a whole-school policy. We are not convinced that a statutory requirement to produce an annual statement would add any significant value. Governing bodies can produce such statements should they so wish.
The QCA pilot is just one of the elements feeding into that part of the national curriculum review concerned with "preparation for adult life". The Government intend that the curriculum should give higher priority to this in future. We attach great importance to pupils' spiritual, moral, social and cultural

733
development. And we are left in no doubt about the importance your Lordships attach to moral and spiritual development in particular.
I hope that your Lordships will accept these amendments in the spirit they are offered. I commend them to the House.
Moved, That the House do agree with the Commons in their Amendment No. 50A to Lords Amendment No. 50.—(Lord Whitty.)
4 p.m.
Lord Pilkington of Oxenford: My Lords, it is with great regret that my noble friend Lady Young cannot be here to discuss the amendment. She expected a Statement to be made at this time and, unfortunately, is at a meeting. I believe—as perhaps does my noble friend—that the Commons amendments dilute the original intention of her amendment.
Traditionally in English history, the first style of education was purely Church-based. Spiritual, moral and social development was seen within the context of revealed Christianity. When state education was first introduced in 1870, the schools took spiritual, moral, social and cultural development still within the context of Christianity. Even those teachers in the new state schools who did not believe in revealed religion still saw their teaching as within the ethic of Christianity. Many noble Lords who are of my age will remember that their teaching, even in a secular state school, was of this type.
The Commons amendment is more in the tradition of French secular education and is therefore a break with the English tradition. In France, after the Revolution, there was an absolute division between the religious Catholic schools and the state schools. In the state schools there was introduced at the beginning of every morning a pattern of teaching which I believe was called morale. It was designed to give republican secular virtue with no mention of the Christian basis. It sprang from good citizenship.
I am not against good citizenship; nor am I against people jumping around in gymnasiums and being fit; nor am I against good discipline. But my noble friend's amendment was not about all those virtues. It was about developing what can only be described in the old phrase as "the interior life". Schools devoted themselves to developing a sensitivity to the richness of the world and to all that lay in it.
I do not want to give a sermon. I believe that there is a strong secularisation within the amendment. It is very much against the traditions of English education. We have never had a tradition of republican citizenship and for better or worse it cannot be built up at a time of moral confusion such as now exists. It would have been far better to have stayed with my noble friend's amendment and allowed it to develop in the schools.
I cannot but remember that many noble Lords opposite, with notable exceptions, voted against my noble friend's amendment. Therefore, one must be somewhat mistrustful of its expansion, which to my mind appears to dilute its intention. Furthermore, I hope
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that your Lordships will not think me cynical in saying that if one wants a school to value a certain aspect, it is often good to require that it should report on it.
In conclusion, the amendment is a dilution of my noble friend's amendment. It turns to a secular tradition which has no roots in this community. It is outside the context of what my noble friend proposed. It is unfortunate in coming from a party which owed more to Methodism than Marx and I believe that it is a bad amendment. I shall press it no further.
Lord Whitty: My Lords, the noble Lord, Lord Pilkington, has given us an interesting exposition of British and French educational history. However, he is reading far too much into the amendments which we propose. I cannot see that he can draw the conclusion that we are seriously diluting the decision of this House on the basis of the amendment tabled by his noble friend Lady Young. Indeed, in most respects the wording is the same. Our amendment clearly refers to spiritual, moral, cultural, mental and physical development. I believe that the noble Lord is reading too much into it.
Statements made in another place and elsewhere by my right honourable friend the Secretary of State show clearly that we attach great importance to spiritual development, as does the House. As I indicated in my opening statement, we must bear that in mind in developing the national curriculum and its outcomes. If behind the noble Lord's accusation of secularisation he believes that we are squeezing our religious education, it is no part of our strategy. I am happy to confirm that we have no plans whatever to get rid of statutory religious education in our state schools. Apart from anything else, it can make a significant contribution to the spiritual and moral development we are discussing here.
The decision of the Commons and of the Government not to require a report on the matter does not in any sense undermine its importance. In other instances, noble Lords opposite have argued that we are imposing too many bureaucratic report-writing duties on schools and we have applied that criteria in this and other respects.
The new clause in Amendment No. 50A recognises the main concerns of this House. We have considered them and tabled an amendment which in no way represents the revolutionary change in our school curriculum that was suggested by the noble Lord. As one who, one way and another, owes a great deal to Methodism and to Marx, I believe that we have struck a balance between the secular and spiritual aspects, both of which are important in a child's development and preparation for adult life. That is why we have written both spiritual development and citizenship into the clauses. That is the correct indication that we should he giving to schools and the noble Lord greatly exaggerates the implication. I commend the amendment.
On Question, Motion agreed to.

LORDS AMENDMENT
52 After Clause 42, insert the following new clause—
STATEMENT ON SPIRITUAL, MORAL, SOCIAL AND CULTURAL DEVELOPMENT OF PUPILS
(" . The governing body of every maintained school shall publish, once in each school year, a statement on the spiritual, moral, social and cultural development of its pupils which shall—

(a) describe how the school intends to promote such development;

(b) describe what targets the school has set for this development;

(c) describe what means of assessment will be used to monitor this development; and

(d) report upon the achievement or otherwise of those targets.").

The Commons disagreed to the amendment for the following reason—
52A Because the amendment would create an undesirable additional burden for schools.
Lord Whitty: My Lords, I beg to move that the House do not insist on their Amendment No. 52 to which the Commons have disagreed for the reason numbered 52A.
Moved, That the House do not insist on their Amendment No. 52 to which the Commons have disagreed for the reason numbered 52A.—(Lord Whitty.)
On Question, Motion agreed to.

LORDS AMENDMENT
139 Clause 120, page 91, line 24, leave out ("Subject to subsection (2),").
The Commons disagreed to the amendment for the following reason—
139A Because the amendment would alter the financial arrangements made by the Commons, and the Commons do not offer any further reason, trusting that this reason may be deemed sufficient.
Baroness Blackstone: My Lords, I beg to move that the House do not insist on their Amendment No. 139 to which the Commons have disagreed for the reason numbered 139A. I shall speak also to Amendments Nos. 140 and 140A.
The Government's position on independent schools is clear. We want to put aside the divisions of the past and to foster partnerships between the maintained and the independent sectors. Partnerships involve mutual benefit to both sectors. We are supporting pilot partnership schemes now. The regulations provided for under this clause will allow LEAs to foster similar partnerships, developed at genuinely local levels between schools. We shall be consulting on those regulations in due course. But buying full-time places for particular children in the independent sector is not a partnership. It should not be necessary for LEAs to ship out their most able children to the independent sector in order to fulfil those children's needs, and LEAs should be directing their resources towards ensuring that that is not necessary.
The Government's intention in introducing these provisions into the Bill, as I have said in previous debates and as my right honourable friend the Secretary of State has made clear in another place, is to prevent
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the replication of the assisted places scheme at a local level. Provision for pupils with special educational needs will not be affected by these proposals. We do not build partnerships between the maintained and independent sectors by funding places to take children wholly out of the state sector. A child does not need to take the whole of the curriculum at an independent school in order to benefit from its facilities for a particular activity, any more than a pupil at an independent school could only benefit from, say, language facilities at a maintained school by studying full time there. The partnerships that we have supported are based on precisely this sort of imaginative co-operation between the two sectors, and we shall look to see them flourish. I give noble Lords the example of a partnership of three schools in Kent—one maintained and two independent—in which all the schools will develop their modern language provision by building on the maintained school's excellent ICT facilities, and the independent schools' very good existing links with schools in Europe.
I repeat that the regulations we intend to make will do nothing to inhibit partnerships of that kind. I hope that noble Lords on the Liberal Democrat Benches opposite in particular will be reassured that local education authorities will continue to have the discretion to develop such partnerships within the policy framework that I have outlined. They will have every opportunity to explore the detailed implications of this further with us when we consult on the regulations later on.
Having said that, I make no apologies for reiterating the Government's view, which I believe noble Lords on the Liberal Democrat Benches share, that the thinking behind the assisted places scheme is divisive. The Education (Schools) Act 1997 provided for it to be phased out, in keeping with our manifesto commitment to do so. These provisions flow from that commitment: we are clear that local assisted places schemes would be equally divisive. I do not believe that it is appropriate for this House to revisit last year's debates in this way. LEAs should be, as the Government are, devoting their resources to the benefit of the many and not the few. That is what the regulations under this clause will secure, and why another place has offered privilege as its reason.
Moved, That the House do not insist on their Amendment No. 139 to which the Commons have disagreed for the reason numbered 139A.—(Baroness Blackstone.)
4.15 p.m.
Baroness Blatch: My Lords, as the Minister said, the reason given by the other place for disagreeing to our amendment was that,
"the amendment would alter the financial arrangements made by the Commons",
and no further reasons have been given. However, that is not so; indeed, there is no way at all in which the amendment would alter the financial arrangements made by the House of Commons, so it is not true. Moreover, there is an arrogance about producing that and no other

737
reason. The Minister knows that that is not the case, and I shall explain why. This is not new Labour, this is true Labour: the mean-spirited politics of envy.
Perhaps I may tell the House the history of this sorry saga. The abolition of the assisted places scheme was approved by both Houses of Parliament. Local authorities, which are obliged to provide for all the children in their care from the least to the most able, turned their minds to ways of providing for bright children from low-income families where they could not provide a fast-track academic education. At least one enterprising local authority—namely, Surrey—created a partnership with the voluntary and the private sector and established a scheme which would not increase local government expenditure at all. But such was the blind prejudice of the government that a clause was inserted in the Bill to prevent local authorities introducing such a scheme.
My understanding is—it certainly was when I was a member of a local authority; and, indeed, has always been—that local authorities have an obligation to meet the educational needs, special or otherwise, of all children within their area of responsibility. The special needs of some children derive from learning difficulties, while those of high ability may benefit from a fast-track academic curriculum. Indeed, the schools Minister is supposedly seeking ways to address the educational needs of very bright children, even to the extent of saying that they should be treated differently. However, having attacked assisted places, grammar schools, grant-maintained schools and selection, I have to say that one has to take such intentions with a pinch of salt.
When the assisted places scheme was abolished, those of us who disagreed profoundly with the Government nevertheless had to accept that Parliament as a whole had endorsed that proposition. What was extremely disappointing was the totally cavalier way in which the Government reneged on their commitment to those families whose children were awarded places at schools which catered for primary through secondary age ranges. Reassuring letters were written by Ministers and reassuring public statements were made by Ministers and indeed by the Prime Minister, but still children were made to abandon an assisted place prematurely. That is another example of rhetoric not matching practice.
When the noble Lord, Lord Whitty, spoke on the last occasion when the matter was discussed, he said that 140 applications had been received and remained to be considered for keeping assisted places and that 100 applications had been acceded to. My understanding is that that is not correct. If the Minister cannot correct the situation today, I hope that he will write to me and say whether those 100 applications have been agreed to.
The point of the amendment passed by the House of Lords was to allow local authorities to address the educational needs of the full spectrum of children from the least to the most able by having the flexibility to use public and/or private provision. Indeed, the scheme advocated by Surrey Country Council was particularly enterprising. It brought together in partnership the
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voluntary, the private and the public sector at no extra cost or even at a lesser cost, thus producing a saving to the local authority. The idea was to establish a fund by voluntary contribution to provide bursaries for bright children from low-income families to attend independent schools. The cost to the local authority would in fact have been equal to or less than the cost of educating the child with the authority's own schools. So the Government's claim to financial privilege is simply misplaced.
When referring to local authorities' wishes to assist able pupils to receive education within the independent sector, the schools Minister claimed:
"Regulations made under Section 518 of the Education Act 1986 already give local education authorities the discretion to pay the whole or part of tuition fees … and other expenses relating to the attendance of a pupil at a fee-paying school".
The schools Minister went on to say:
"If the local authority wants to use the money that it raises locally for this purpose, that is for it to decide. It"—
that is to say, the local authority—
"will be held accountable by Surrey people, it that is how it wants to spend money from the education budget. The authority has the freedom to exercise that power".
That is precisely what the House of Lords amendment would have achieved.
However, my honourable friend Nick St Aubyn in the other place referred in Committee to the partnership scheme in Surrey and invited comments from Ms. Estelle Morris, the schools Minister. She said,
"The department looks forward to receiving details of those plans and to hearing how children can be given more opportunities than at present. That is exactly the sort of co-operation that we want to see".—[Official Report, Commons, Standing Committee A. 5/2/98; cols. 346-7.]
The Minister went on to say at col. 351 on the same day,
"We welcome the partnership that is clearly being made in Surrey with the private sector, that is exactly what we want in the interests of children".
How can the Minister endorse the enterprise of Surrey County Council and then insert a clause in the Bill to outlaw such a scheme? There are a number of authorities—I believe that Bromley and Surrey are among them—where it would be more tax efficient to purchase places in the independent sector than to build extra classrooms and provide extra teachers for these children coming back into the state system. As I said, the reason given is plainly wrong. I ask the Minister to reconsider the reasons given in another place.
At col. 505 of Hansard on 15th July the Secretary of State for Education referred to a "manifesto commitment". The manifesto commitment—with which I take no issue at all—was to abolish the assisted places scheme in order to pay for more teachers to meet a class size pledge for five, six and seven year-olds. That has been done and the money is being saved at the moment, although as we all now know from the comprehensive spending review, it will not be enough. However, the manifesto pledge did not state that no local authority will provide for bright young children from low income families within the private sector. That was not a

739
manifesto commitment. The Secretary of State then said in the same column,
"The debate is not about reaching partnership agreements".—[Official Report, Commons, 15/7/98; col. 505.]
It is precisely about reaching partnership agreements between local authorities, the voluntary sector, the private sector, the independent schools and the families. In the same column the Secretary of State said,
"we should not waste each other's time. Enough time has been wasted in this Session putting this and other Bills on the statute book".
I do not regard considering and reconsidering Bills as they go through both Houses of Parliament as wasting time. I regard it as part of the democratic process. But as we know, that process irritates the present Government. They do not like it. They regard serious consideration of legislation as a waste of time. That is not a view I share.
My honourable friend Mr. St Aubyn in another place put it succinctly. I end my comments by quoting what he said at col. 506 on 15th July:
"Labour Members may ask what this has to do with the amendment. That is a very good point. The amendment does not ask the Government to rediscover or reproduce that £40 million a year. It simply asks the Government to accept that local councils, with the support of local schools, parents, charities and sponsors, should be allowed to take advantage of the chance to give some local children for whom the idea is appropriate their best opportunity in life. That chance should not be denied by the prejudice that Labour Members have displayed not only in this House but in another place".
I disagree profoundly with the reasons given by another place; namely, that this is about financial privilege, when not one single extra penny of taxpayers' money at national or local level is to be spent as a result of meeting the terms of the House of Lords amendment.
Lord Lucas: My Lords, perhaps I might say a few words as this was my amendment which I was rather surprised to win at the time. I was also surprised at the reason the Commons have chosen to give for rejecting it. If this is the extent of financial privilege, which the Commons now claim, I suspect that any reformed House will wish to challenge them on it at an early stage. That seems to me an extraordinary extension of the idea of Commons' financial privilege, and in this context, as my noble friend has said, a considerable arrogance, which I am delighted to say was not shared by the Minister opposite who chose to give us, in her terms, a reasonable explanation of what lay behind the rejection of this amendment.
I start by being fairly positive in my reaction to most of what the noble Baroness said. I am delighted that the Government are promoting a series of partnerships between independent and state schools. I hope that much good may come of this. I see considerable scope for that. It is a way forward. But what has been done as a whole by this Government is to increase the apartheid between the state and the independent systems, to increase the gulf and to make it harder to achieve one system with slightly different ways of managing schools and slightly different ways of looking at schools, which is what one understands from the Government's election manifesto is their eventual ambition.
740
If a local authority were to purchase a place at an independent school for a pupil, it would be doing no more than it already does with state schools or foundation schools, or whatever they will become, in that it would provide education for a child at an appropriate school. Within the state system parents have a great deal of choice, which this Government support—and, I hope, are increasing in this Bill—to choose which school they send their child to. The local authority is obliged to respect that choice and to provide the funding to the school the child ends up at. I cannot see any fundamental difference in providing £2,500 a year to an independent school or to a state school, if that is the school the parents and child happen to choose.
I cannot understand either the justification for the following. If, for example, there was a scheme in Winchester, Winchester schools could benefit from the facilities of the great independent school in that town. That would be nice for them, but there may be a child in Southampton who is peculiarly suited to the facilities which are on offer there to develop his own particular talent, but he would be denied that opportunity just because of where he lives. That is a philosophy which punishes the poor for being poor and living in poor areas which happen not to be next to good schools. Those children are denied the opportunity to attend schools which may not have great academic records but which offer facilities which are peculiarly suited to their talents. I pursue this much more from a basis of supporting what is best for the child rather than what is best for a political philosophy or what is best for a school and local authority system. I would like local authorities to have the discretion to look after the children in their area as best they see fit. I am sad that the Government oppose that but I suppose I must accept that there is a basic difference of political philosophy. I hope that the Government may one day come round to my way of thinking.
Baroness Blackstone: My Lords, the noble Lord, Lord Lucas, has mentioned political philosophy. I suggest that it is his political philosophy, which is clearly shared by the noble Baroness, Lady Blatch, that set up a scheme that this Government consider is highly divisive and which supports a small number of children who occupy more expensive places—in terms of the taxpayers' commitment—in independent schools when LEAs have a duty and obligation to provide adequately for all children, including those who are very able.
However, I am grateful that the noble Lord. Lord Lucas, was at least able to support the idea of partnerships, although the noble Baroness, Lady Blatch, I am afraid, did not, or certainly did not comment on them. There is absolutely no intention by the Government to create an apartheid between the two systems. Indeed I believe the assisted places scheme contributed to an apartheid by removing bright and able children from state schools and thereby denying those schools the opportunity to educate them and to educate them well. No, our proposals are not about apartheid. They are about bringing the independent sector and the state sector closer together. The right way to do that is not by plucking out bright individual pupils, but by

741
creating a genuine partnership within which large numbers of pupils can mix together and benefit from the best that the state system can provide and the best that independent schools can provide. I utterly refute the suggestion by the noble Baroness, Lady Blatch, that this is the mean-spirited politics of envy. It certainly is not.
Nor can I accept that able children will suffer as a result of these proposals. LEAs can, and do, enable the brightest children to fulfil their potential. They would be insulted by some of the remarks made by the noble Baroness, Lady Blatch, and the noble Lord, Lord Lucas.
The objections that the Conservative Party has to these proposals are a clear attempt to undermine government policy on the abolition of the assisted places scheme and to undermine provision in the maintained sector. I invite noble Lords opposite to accept that this is not an appropriate issue on which to challenge further the clearly expressed views of the elected House.
I now turn to the issue of privilege. Perhaps I should explain that it is not the Government who decide whether an amendment passed in this House and then considered in another place is a matter of privilege. It is the Speaker of the House of Commons who has ruled that these amendments involve matters of privilege. That is because they are telling LEAs how they may or may not spend their money. So questions of public expenditure are involved. The convention is that, where privilege is used, it is the only reason used.
The noble Baroness referred to a scheme in Surrey which was commented on and described by her honourable friend Mr. Nick St Aubyn in another place. The Government have invited Mr. St Aubyn to provide further details of the scheme but up to now they have not been provided. A scheme will be outlawed only if it replicates the assisted places scheme. From the information that we have, it is a local assisted places scheme. I understand that the education committee in Surrey has delayed consideration of it for the time being until the legislative position is clear.
The noble Baroness also asked about individual applications. That point is not particularly relevant to this amendment, which relates to local APS schemes. However, I understand that 100 out of the 170 individual applications have been dealt with extremely flexibly and the Government have used their discretion in favour of the parents.
Our approach makes a clear distinction between the demands of national policy and the scope for local action. As I have said, the regulations that we have proposed will not inhibit LEAs which want to form genuine partnerships with the independent sector. We have a mandate based on a clear manifesto commitment to phase out the assisted places scheme. A local scheme is no less divisive than a national scheme. It is not an appropriate use of public money. Our firm intention is that the regulation should stop LEAs going via the back door and replicating the scheme locally. I therefore ask the House not to insist on their amendment to which the Commons have disagreed.
Baroness Blatch: My Lords, before the noble Baroness sits down, it was my intention to insist on this amendment. I shall, however, bide by the Speaker's ruling in another place. I do not know whether there is now a mechanism for a Member of this House to ask a question. Where an amendment does not involve the extra spending of one single pound, how is it that financial privilege can be invoked? This scheme was intended to save, not spend, money. The noble Baroness gave another reason; namely, this would involve telling local authorities what to do. The amendment did not involve telling any local authority what to do. It was intended as an enabling power for the local authorities. So I—
Lord Carter: My Lords, the standing order is entirely clear. The noble Baroness is able to ask a question for clarification. My noble friend the Minister is not responsible for the Speaker's decision. I am absolutely staggered to hear that the noble Baroness proposed to divide the House on a question of financial privilege.
Baroness Blatch: No, my Lords, the noble Lord has got it wrong. I said that I do not intend to divide the House. I accept the Speaker's ruling that it is a matter of financial privilege. My understanding is that financial privilege is always invoked where extra funding is involved in an amendment. As I understand it, no money was involved in the amendment that was passed by this House.
On Question, Motion agreed to.

LORDS AMENDMENT
140 Clause 120, page 91, line 30, leave out from beginning to end of line 10 on page 92.
The Commons disagreed to this amendment for the following reason—
140A Because the amendment would alter the financial arrangements made by the Commons, and the Commons do not offer any further reason, trusting that this reason may be deemed sufficient.
Baroness Blackstone: My Lords, I beg to move that the House do not insist on their Amendment No. 140 to which the Commons have disagreed for the reason numbered 140A.
Moved, That the House do not insist on their Amendment No. 140 to which the Commons have disagreed for the reason numbered 140A.—(Baroness Blackstone.)
On Question, Motion agreed to.

LORDS AMENDMENT
198 Leave out Schedule 4.
The Commons disagreed to the amendment and proposed the following amendments to the words so restored to the Bill—

COMMONS AMENDMENTS TO WORDS RESTORED TO THE BILL BY THEIR DISAGREEMENT TO A LORDS AMENDMENT
198A Schedule 4, page 117, line 11, at end insert ("of those voting").
198B Schedule 4, page 117, line 11, at end insert—
("(3) Regulations under this paragraph must, however, include provision—

(a) for the members within each category of members of a committee to have collectively a single vote in relation to any decision to which this sub-paragraph applies;

(b) requiring any such decision which is taken by a committee to be a unanimous decision of those voting.

(4) Sub-paragraph (3) applies to any decision of a committee as to whether or not—

(a) to give any approval under section 25(4) or to prepare such a plan as is mentioned in section 25(5)(d)(ii);

(b) to give any approval under paragraph 3 of Schedule 6 or to—

(i) modify any proposals,

(ii) specify any date, or

(iii) make any determination,

under paragraph 5(2)(a) or (b) or (3) of that Schedule;

(c) to make, vary or revoke a transitional exemption order under paragraph 21 of that Schedule or paragraph 16 of Schedule 7;

(d) to give any approval under paragraph 8 of Schedule 7;

(e) to make any decision authorised by or by virtue of paragraph 6 of Schedule 23.

(5) Where regulations under paragraph 2(2) of Schedule 8 provide for either of the following provisions, namely paragraph 3 or 5(2)(a) of Schedule 6, to have effect in relation to proposals published under paragraph 2 or 2A of Schedule 8, the reference to that provision in sub-paragraph (4) above shall include a reference to it as it so has effect.").
198C Page 117, line 15, at end insert—
(". When taking any decision a committee shall have regard (so far as relevant) to the obligations which, by virtue of—

(a) Part III of the Sex Discrimination Act 1975, or

(b) Part III of the Race Relations Act 1976,

are owed by any local education authority or governing body which will be affected by the decision.").
Lord Whitty: My Lords, I beg to move that the House do not insist on their Amendment No. 198 to which the Commons have disagreed and do agree with the Commons in their Amendments numbered 198A to 198C in lieu thereof.
Moved, That the House do not insist on their Amendment No. 198 to which the Commons have disagreed and do agree with the Commons in their Amendments numbered 198A to 198C in lieu thereof.—(Lord Whiny.)
On Question, Motion agreed to.

LORDS AMENDMENT
199 Leave out Schedule 5.
The Commons disagreed to this amendment and proposed the following amendment to the words so restored to the Bill—

COMMONS AMENDMENT TO WORDS RESTORED TO THE BILL BY THEIR DISAGREEMENT TO A LORDS AMENDMENT
199A Schedule 5, page 118, line 32, at end insert—
(". When taking any decision an adjudicator shall have regard (so far as relevant) to the obligations which, by virtue of—

(a) Part III of the Sex Discrimination Act 1975, or

(b) Part III of the Race Relations Act 1976,

are owed by any local education authority or governing body which will be affected by the decision.").
Baroness Blackstone: My Lords, I beg to move that the House do not insist on their Amendment No. 199 to which the Commons have disagreed and do agree with the Commons in their Amendment numbered 199A in lieu thereof.
Moved, That the House do not insist on their Amendment No. 199 to which the Commons have disagreed and do agree with the Commons in their Amendment numbered 199A in lieu thereof.—(Baroness Blackstone.)
On Question, Motion agreed to.

LORDS AMENDMENTS
237 Schedule 9, page 138, line 20, at end insert—
("Minor authority governor
. In this Schedule "minor authority governor" means a governor appointed by the town or parish council or parish meeting which covers the locality of any community primary school, any voluntary controlled primary school or any voluntary aided primary school.").
238 Page 139, line 38, at end insert—

("Minor authority governors

0

0

1

1")

239 Page 142, line 22, at end insert—

("Minor authority governors

0

0

1

1")

240 Page 143, line 14, at end insert—

("Minor authority governors

0

0

1

1")

244 Page 143, line 25, at end insert—
("(3) If, in the case of any voluntary aided school which—

(a) is a primary school, and

(b) serves an area for which there are one or more minor authorities,

the governing body so determine, the instrument of government for the school shall provide for the governing body to include (in addition to the governors required by virtue of paragraph 14 and any required by virtue of sub-paragraph (1)) one co-opted governor nominated by the minor authority or (as the case may be) one of the minor authorities in question; and the governing body of any such school must decide whether or not to make a determination under this sub-paragraph.
(4) Where any such school serves an area for which there are two or more minor authorities, the relevant governors may, for the purposes of the appointment of any such co-opted governor, seek nominations from any one or more of those authorities as the governors think fit.
(5) In sub-paragraph (4) "the relevant governors" means those members of the school's governing body who are not co-opted governors.
Co-opted governors nominated by minor authorities
15A.—(1) In the case of any maintained school (other than a voluntary aided school) which—

(a) is a primary school, and

(b) serves an area for which there are one or more minor authorities,

the relevant governors shall, when making an appointment of a co-opted governor in accordance with paragraphs 9 to 13, consider whether to appoint as such a governor a person nominated by the minor authority or (as the case may be) one of the minor authorities in question (unless one or more such persons are for the time being so appointed).
(2) Where any such school serves an area for which there are two or more minor authorities, the relevant governors may, for the purposes of the appointment of any such co-opted governor, seek nominations from any one or more of those authorities as the governors think fit.
(3) In this paragraph "the relevant governors" has the meaning given by paragraph 15(5).").
The Commons disagreed to these amendments but proposed the following amendment in lieu—

COMMONS AMENDMENT IN LIEU
244A Schedule 9, page 143, line 25, at end insert—
("(3) The instrument of government for any community or voluntary school which—

(a) is a primary school, and

(b) serves an area for which there are one or more minor authorities,

shall provide for the governing body to include (in addition to the governors required by virtue of paragraph 9, 13 or 14, as the case may be, and any required by virtue of sub-paragraph (1)) one co-opted governor nominated by the minor authority or (as the case may be) one of the minor authorities in question.
(4) Where any such school serves an area for which there are two or more minor authorities, the relevant governors shall, for the purposes of the appointment of any such co-opted governor, seek nominations from such one or more of those authorities as the governors think fit.
(5) In sub-paragraph (4) "the relevant governors" means those members of the school's governing body who are not co-opted governors.").
Lord Whitty: My Lords, I beg to move that the House do not insist on their Amendments Nos. 237 to 240 and Amendment No. 244 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 244A in lieu thereof.
I hope that we shall bring our debate today to a positive conclusion. The amendments proposed by the Government provide a way forward that is a workable compromise on the issue of minor authorities. We have listened carefully to the concerns expressed by noble Lords as the Bill has made its way through Parliament. The case for minor authority governors in some schools has been made with skill and persistence. Our amendments now take account of that case within the context of our wider proposals for restructuring governing bodies.
As the House requested, governing bodies of community and voluntary primary schools will, under these proposals, have no option but to appoint a minor authority nominee. An additional place will be available for that purpose.
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I do not want to go over the history in detail. Suffice it to say that we have always wanted those with the greatest interest in the success of a school to be guaranteed representation. In adopting that approach we did not intend removing minor authority governors from governing bodies where that arrangement has worked well. There was every reason to suppose that the governing bodies would continue to invite them onto that governing body under the new framework. We certainly had no wish to under-estimate the valuable contribution that parish and town councils make to many primary schools. I am sorry if our proposals were interpreted in that way.
The government amendments build sensibly and constructively on those that were proposed in this House. First and foremost they provide a legally watertight version of those original amendments. That is not intended as a criticism of the amendments. I say that before the noble Baroness, Lady Maddock, admonishes me yet again. But, for example, when challenged, the noble Baroness, Lady Blatch, accepted that the original amendments failed to address the particular issue of Welsh community councils. The Government's amendments deal with that and other such issues.
Secondly, and more substantively, the government amendments provide for a more flexible mechanism than was proposed in the original amendments. Those original amendments would have restricted the nominating minor authority to the parish in which the school is situated. The position is frequently a good deal more complicated than that. A school's location may well be an historical accident. For example, where schools have merged, the location may depend on which of the previous schools was able to expand, or on the availability of building land for a new school to serve several villages, rather than on the location where the majority of children who attend the school happen to live. Furthermore, the original amendments would not have allowed for district council representation in an area which is not covered by a town or parish council.
Our approach allows all authorities which are minor authorities at present to continue to be minor authorities. In short, the appointment mechanism which we propose is much more likely than that put forward by this House to permit every school affected by this issue to work with the minor authority with which it has the closest relationship.
The Commons' amendment places the responsibility with the school governing body—where it should be—for settling its membership in a speedy and practical fashion. Where a primary school serves more than one minor authority, it will be for the governors to decide which authorities are the most appropriate to nominate governors. They may wish to invite a single minor authority to provide the nomination; in many cases, there will be that obvious choice. In some cases they may wish to invite more than one minor authority to nominate. That will not prevent minor authorities agreeing on a nominee, where they are able to do so, among themselves. In what I would expect to be the

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very few cases where minor authorities do not agree and more than one nominee is put forward, it is the governing body which will decide between them.
Someone has to take the decision in these circumstances, and the school governing body is best placed to make that choice. I do not believe that it is possible to defend the mechanism whereby failure to agree on a joint appointment means that a fundamentally local decision would end up being taken by the Secretary of State. We shall ensure that governing bodies have guidance to help them through the appointment process in a sensible and brisk manner.
I hope I have made it clear that the Government's amendment deals with the points made in this House and puts forward a mechanism which is positive and workable. I hope that the House will welcome it on that basis. I beg to move.
Moved, That the House do not insist on their Amendments Nos. 237 to 240 and Amendment No. 244 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 244A in lieu thereof.—(Lord Whitty.)
Baroness Blatch: My Lords, I rise to thank the noble Lord and his colleagues in another place for responding on these amendments. We heard a very different speech today from the one we heard from noble Lords on the Benches opposite when these amendments were discussed. They saw no reason for them and were vigorously opposed at each stage of the Bill, until finally the House took a view about the matter.
However, there is a problem. I spoke at length yesterday with an official in the Department for Education. The amendment is not as generous as would appear from the manner in which Mr. Byers spoke to it in another place, nor as generous as would appear from the manner in which the noble Lord, Lord Whitty, spoke to it today. It would be helpful if what the official said to me on the telephone could be repeated on the Floor of the House and recorded in Hansard. In these matters Pepper v. Hart will be important.
It is unfortunate that the initiative has been left with the governing body. It seems to me that, if it had been left to the mix of minor authorities, whichever they may be, whether they be district councils or parish councils, they could be given the opportunity to come together to determine their nominations. If it were a single nomination, that would be the nomination and the school would be bound to accept it. If, however, they came to a view that they wished to put forward more than one name, it would then be for the governing body to make the choice. Instead, it is the other way round. The governing body will simply approach one of those minor authorities. If that minor authority presents a representative, irrespective of what the other minor authorities think, that is the appointment that is made. I believe it is a great pity that that is the case.
When I spoke to the official on the telephone, I made it clear that we were pleased with the amendment and with the extra co-optive place for the minor authority representative. But I was told that the guidance which would go out to local authorities—not the regulations,
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because the primary legislation would not be consistent—would include a recommendation that, where possible, governing bodies should not approach just one of the minor authorities but should approach them all, encouraging them collectively to come to a view about their representative, and that, if there were a single nomination, that would be the nomination that would be accepted by the school.
A passage in the letter which the noble Baroness sent to me states that, where all the minor authorities collectively determine a single nomination, the school would be bound to accept it. That is not in the legislation; that is not in the amendment. What the official said to me was that the guidance which would go to local authorities would be to encourage minor authorities themselves to come to a view about who the representative should be and only in the event of its being more than one nomination would the school make the choice.
That is a view also held by the National Association of Local Councils, which, I believe, is also very pleased that the Government have gone the extra yard to accept the right of minor authorities to be represented on the governing bodies of their primary schools. But the council, too, would like to send out guidance which, I hope, would be consistent with the DfEE guidance to schools, encouraging them, where possible, to invite the minor authorities collectively to come to a view as to who should represent them on the governing bodies of primary schools.
I live in a village which has the primary school which serves many other villages. It is true that two or three of those villages have about an equal number of children who attend the school. It may well be that the minor authorities collectively will come to a view that they should rotate the membership on the governing body between those villages that have comparable numbers of children attending the school. That would make a great deal of sense. But it may not always be consistent with what the governors want. That is the concern I have about putting governors in the driving seat in this amendment.
Nevertheless, I thank the noble Lord and his colleagues in another place for conceding what I believe was a very important amendment which was supported throughout the whole country.
4.45 p.m.
Baroness Maddock: My Lords, perhaps I may say how much we on these Benches welcome this amendment. We spent a lot of time pushing the Government and I am very disappointed that they did not start to lean earlier. I agree with everything that the noble Baroness, Lady Blatch, said. At this stage, when amendments have been tabled in the other place and come back here, we are pushing to obtain clarification. The matter could have been sorted out much earlier if we had been listened to. We have debated the matter at great length. It is now clear that there is no disagreement between us, except perhaps on the detail. I repeat that I cannot understand why the Government were so intransigent and why they appear to be so unsure of

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themselves when they have a huge majority and, by all accounts, are still popular out in the country. This measure does not change the direction of the Bill one iota. It is something on which everybody, it now appears, is agreed; yet here we are, at this very late stage, concerned about one or two minor details.
We welcome the improvements. I had always understood that the point of going through legislation in stages was to improve it as we went along. We could have made some of these improvements earlier. We particularly welcome the fact that Wales will be included and are appreciative of the fact that an extra governor will be co-opted. However, I agree with the noble Baroness, Lady Blatch, that there is a worry about paragraph (4) of the amendment. As the noble Baroness said, we are not sure where the authority lies.
I received a copy of the letter which the noble Baroness, Lady Blackstone, sent to the noble Baroness, Lady Blatch. That letter contains a passage which I believe it would be helpful to have confirmed on the Floor of the House. I quote from the letter:
"Consideration would allow the governors to decide on the minor authority or the authorities who would be able to make nominations".
I believe that this is the key phrase:
"Whilst it would be open to the governors to approach only one minor authority, if all the relevant minor authorities wished to continue to co-operate by putting forward an agreed nominee, the governors would have no choice but to make the appointment".
I believe it is important that that be confirmed in the House today.
I do not agree with the proposition that it is difficult for different authorities to come to an agreement about school governors. I have been a member of a local authority in which we agreed with other local authorities of different tiers on the nomination to represent us on governing bodies. It is not difficult and it is not an excuse not to confirm that this can be the situation. We welcome this amendment, though I am amazed that the Government could not introduce it earlier.
Lord Whitty: My Lords, if the only thing we are to be berated for is coming back at this late stage, I am happy to accept that criticism. However, all sides of the House must recognise that in this case, it is the Commons listening to the Lords and coming back with a better amendment. I would have thought it could have been more graciously accepted.
On the question of who decides and whether the minor authorities can agree among themselves, it is the case—this confirms what was said in the letter from my noble friend the Minister—that the governing bodies will decide who to approach and there will be guidance for them, as the noble Baroness, Lady Blatch, said, to interpret the provision. However, it will be for the governing bodies to decide who to approach.
Within that context it is clearly possible and desirable, if more than one authority is involved, for the minor authorities to reach agreement among themselves as a matter of practice. The comments of my honourable friend Stephen Byers and myself referred to that kind of
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informal agreement. In those circumstances, the governing body would adopt the proposition agreed between the various minor authorities.
In the few cases where no agreement is achieved, the governing body must have the final responsibility for deciding; otherwise, we shall need to include a whole new structure of decision making between the minor authorities. We consider the governing body of the school to be in the best position to decide. Though there may have been some criticism of that, the local authority associations considered the amendment to be sensible. They are grateful that we are proposing change and indicated that they hope that the Lords agree to the amendment. I hope so too and commend the amendment to the House.
Baroness Blatch: My Lords, before the noble Lord sits down, I hoped he could agree with the official who spoke to me on the telephone and would make it clear that, where the minor authorities came together and presented a nomination—we are not discussing where they disagree; we have already referred to that and in that case it would be a decision for the governing body—then the governing body would be bound to accept that nomination. Those were the words of the letter and it would be helpful to have it on the record for the purposes of the governing body.
Guidance will be sent out to governing bodies to encourage the minor authorities to produce a nomination and the governing body will only resort to making the appointment in the event of there being disagreement among the minor authorities. That was what the official said on the telephone and felt that it was possible for that to be confirmed on the record today. If it is not, then our worst suspicions are realised once again.
Lord Whitty: My Lords, I am not sure that it is proper to quote a telephone conversation with an official.
Baroness Maddock: My Lords, I am grateful to the Minister for giving way. I quoted the words of a letter sent from the noble Baroness, Lady Blackstone, to the noble Baroness, Lady Blatch. It would be helpful if the Minister could either confirm or deny those words because the whole matter hinges on it.
Lord Whitty: My Lords, I thought I earlier confirmed what was written in my noble friend's letter; namely, that where the governing body approached a number of minor authorities and they agreed on a nominee, then that nominee would be appointed to the governing body. I thought the noble Baroness was trying to push me to say that the minor authorities could decide who they were in the first place; whereas the amendment provides that the governing body, subject to flexible and positive guidance, would decide which minor authorities to approach. If those that were approached then agreed, the nominee which emerged from that process would be bound to be appointed to the governing body.
Baroness Blatch: My Lords, I am sorry to be pedantic about this but that is not consistent with the

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words on the page of the letter. The words on the page of the letter say that, where the minor authorities come together collectively and produce a nomination, the governing body would be bound to make that appointment. If the governing body does not want to make that appointment but wants to make another appointment under the legislation as it is in the Bill, it is free to do so. That is what we were told, not only by the words on the page of the letter signed by the noble Baroness, Lady Blackstone, but also by the official on the telephone. I do not know why I cannot refer to that 'phone call; it was extremely material to our understanding of the amendment.
Lord Whitty: My Lords, I thought I had already said that, where the minor authorities have been approached by the school and they agree, then the governing body is bound to accept.
Baroness Blatch: My Lords, the difference is that we are not talking of the minor authorities being approached by the schools, but the minor authorities themselves coming to a view about their representative, not having already been approached by the governing body. In that situation they can actually present their own nomination.
Lord Whitty: My Lords, I believe that we are dancing on a pin head. However, the intention is clear. Under the guidance, the governing body would approach as many authorities as were relevant and those authorities, if they agreed among themselves, could produce a candidate which the governing body would be bound to accept. If further clarification is required, no doubt another letter can proceed.
On Question, Motion agreed to.

Business
Lord Haskel: My Lords, before we move to the Statement on criminal justice, I take this opportunity to remind the House that the Companion indicates that discussion on a Statement should be confined to brief comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords.

Comprehensive Spending Review: Criminal Justice
4.56 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn): My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Home Affairs. The Statement is as follows:
"With permission, Madam Speaker, I should like to make a Statement on the Comprehensive Spending Review and the criminal justice system.
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"May I open by expressing my gratitude to the Liberal Democrats for accommodating this Statement on their Opposition Day, and say that I am making it not least in response to representations from them?
"In our election manifesto we promised to reform the criminal justice system, to tackle youth crime and to reduce levels of crime and disorder. I therefore welcome the outcome of the Comprehensive Spending Review which has targeted resources where they are most needed to deliver these manifesto commitments. The Home Office will receive an additional £3 billion over the next three years. This money will be invested in modernisation and reform to help us build the safer, fairer society to which we are committed. Across government, the Comprehensive Spending Review represents an end to short-termism and will allow departments to plan with greater confidence over a longer period.
"We need first to improve the performance and management of the criminal justice system overall. We have to provide clear, strategic direction to ensure that the different parts of the system work efficiently and coherently together. So, for the first time, the Government have agreed new over-arching aims for the criminal justice system. These are: to reduce crime and the fear of crime and their social and economic costs; to dispense justice fairly and efficiently, and to promote confidence in the rule of law.
"These aims will drive government policy and planning for the criminal justice system as a whole. To modernise the services we shall be: establishing joint strategic planning across the system as a whole; improving and integrating services' information technology; and aligning their boundaries more closely. I have today placed in the Library a copy of a more detailed statement about these plans.
"To oversee these structures, the Prime Minister has asked me to chair a new ministerial group, which will include my right honourable and learned friends the Lord Chancellor and the Attorney-General and my right honourable friend the Chief Secretary to the Treasury.
"But the criminal justice agencies cannot by themselves deliver the safer society we all want. If we are to make an effective attack on crime and its causes, we need to work in partnership right across government and beyond.
"The Crime and Disorder Bill therefore provides for statutory partnerships to analyse local crime problems and then draw up strategies to reduce crime and disorder at local level. The new antisocial behaviour order will tackle the problem of criminal anti-social neighbours, who can make life a misery for those who are affected by them.
"The Crime and Disorder Bill radically reforms the youth justice system. It establishes new multi-agency youth offending teams, a new police final warning scheme and new court orders. These will ensure that young offenders make reparation to victims or the community and their parents take greater responsibility for their offending behaviour.

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"A new national Youth Justice Board will be established. This will administer a development fund for local programmes including bail supervision and mentoring. The board will set standards for the youth justice service.
"We will also be taking forward a programme of work to reform the quality and delivery of secure accommodation for sentenced and remanded juveniles. In the short term, this includes work which the Prison Service has in hand to improve the care and quality of regimes for young people held in young offender institutions. In the longer term, we aim to provide for greater coherency and efficiency in the delivery of secure accommodation through extending the role of the new Youth Justice Board for England and Wales to include the commissioning and purchasing of places. Additional resources are being made available for new secure facilities and to improve the constructive regimes for juveniles when our new detention and training order comes into force in 1999.
"As part of these changes we will deliver our pledge to halve the time from arrest to sentence for persistent young offenders. When we came to office we found it took on average 142 days from arrest to sentence. The Lord Chancellor and I have worked hard to persuade the youth courts to introduce fast track schemes and over 160 schemes have been introduced or are planned, compared with just 12 when we took office. We shall be using some additional resources to ensure our pledge is fully delivered within the next two to three years.
"In our manifesto, we said we would be tough on crime and its causes. Individuals have to take responsibility for their criminal behaviour. But we also recognise that crime breeds where there is family breakdown and social exclusion.
"For many years, governments have concentrated on the effects of crime, to the detriment of its causes. But we can only make a long-term impact on crime and disorder by concentrating on both.
"Since the 1920s, the underlying rate of crime has risen at about 5 per cent. a year. There have been two periods when it has fallen: one from 1948–53, the other since 1992. The first proved short-lived; the danger is that the second may too. Increases in crime have, to many, appeared inexorable. 'There is nothing you can do', is the claim; 'It is a fact of life'. The assumption has been that 'nothing works'—that nothing could be done to reverse this long-term rise in crime. I disagree.
"As part of the Comprehensive Spending Review, therefore, I asked the research and statistics department of the Home Office to undertake a thorough investigation of all the available national and international evidence to identify 'what works' to reduce crime and disorder. Its conclusions are included in a report, entitled Reducing Offending, which I am publishing today. This report provides concrete research evidence that we can make a difference. It shows that investing resources where it
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matters can have long-term benefits in reducing offending. It also shows that the most cost-effective strategy for reducing crime has three strands. These are: to promote a less criminal society, by preventing young people from becoming criminals, and investing in measures which reduce the opportunity for crime; to prevent crime in the community, by acting on the social conditions that sustain crime, and by effective policing; to use sentencing policy effectively to change the behaviour of offenders, including drug users.
"I am therefore pleased to announce today that the Government will be investing £250 million over the next three years on a crime reduction strategy which draws on the findings of this research. This will be the first time a centrally co-ordinated programme of such magnitude, based on comprehensive research evidence, and with built-in evaluation, has been put in place anywhere in the world. As a result we should be able to make a significant contribution to reducing crime and the number of victims.
"This programme will tackle the social causes of crime through long-term investment in children, families and schools. We will target crime prevention measures on crime hotspots, and reduce the opportunities for crime. There will be new investment to tackle burglary. We will help the police target their efforts to reduce the pattern of repeat attacks on the same victims. And where prevention has failed, the Prison and Probation Services will work with offenders to help cut reoffending rates.
"Some of these initiatives—for example, with children and families—will take up to 10 years to make an impact on crime. But even these programmes will have earlier impacts on the factors which predispose people to later criminality. But some measures will work quickly—for example, burglary prevention makes a speedy and tangible improvement to people's lives as the Safer Cities programme of the previous administration illustrated.
"As well as proposals to tackle crime and its causes, the Government will give more attention to the needs of victims and witnesses, particularly those who are vulnerable or intimidated. We will provide extra resources to improve services in the magistrates' courts and for the support of victims. The strategy I have described should do much to lessen the impact of crime and the misery it causes.
"The Comprehensive Spending Review for the Home Office also makes substantial additional provision for the Police, Prison and Probation Services. Currently, the police spend £7 billion a year. We will be allocating an extra £1.24 billion over three years. But this has to be accompanied by improved efficiency, with the savings recycled into frontline policing priorities. The police settlement will therefore include targets for efficiency improvements of 2 per cent. a year. Part of the additional funding for the second and third years will be dependent on the police achieving these targets.

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"For the Prison Service the settlement provides an additional £660 million over the next three years. Some of this money will be used for additional prison capacity to meet the pressure of rising numbers, and to clear the backlog of urgent repair and maintenance.
"But prisons will only fully protect the public if they not only incarcerate prisoners securely during their sentence, but also reduce reoffending on release. So we are providing for a significant increase in purposeful activity in the next three years. There will be more sex offender treatment programmes; extensions of the welfare to work pilots in prisons; improvements in education for juveniles and adults; and increases in the number of probation officers providing throughcare support. To meet part of the costs of these initiatives, I am looking to the Prison Service to implement a new efficiency strategy. Every pound saved will go back into the Prison Service to help fund more programmes to reduce reoffending.
"For the Probation Service, next year there will be an additional £18 million of grant instead of the £6 million cut planned by the previous government. In total, the settlement gives an extra £127 million to the Probation Service over three years. This will enable the service to take up important new responsibilities under the Crime and Disorder Bill, such as extended supervision of sex offenders and involvement in the new youth offending teams. The service will be required to make further improvements in efficiency. This drive will be reinforced by improved joint working between the Prison and Probation Services. We will shortly be publishing a consultation document on our proposals.
"Taken all together, the measures I have announced today will help bind and strengthen our communities, build a safe, just and tolerant society and make Britain a better place to live".
My Lords, that concludes the Statement.
5.8 p.m.
Baroness Anelay of St. Johns: My Lords, I thank the Minister for repeating his right honourable friend's Statement. I wish to make a few general points and then I have some questions to put to the Minister. Naturally, I can agree with the proposition in the Comprehensive Spending Review that the job of the Home Office is to build a safe, just and tolerant society in which the rights and the responsibilities of all are respected. After all, that is exactly what my right honourable friends and noble friends sought to do while they were in office. I have some serious concerns as to whether this spending review has made it possible for the Home Office even to begin to meet this objective over the next three years.
There is a second, more general, but nonetheless vital issue of whether any of the spending review can be carried through effectively against the background of the economic downturn which has begun to hit the United Kingdom as a direct result of this Government's policies.
The Government inherited a healthy economy last year but are already squandering that inheritance. The report published by Ernst and Young points out that the
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Chancellor's ambitious spending plans will make it very difficult to reduce interest rates—all at a time when the UK economy is heading for a sharp downturn.
The Statement makes great play of extra funds to be allocated to Home Office responsibilities. Of course, I shall, along with other noble Lords, look forward to examining those figures more closely when time permits. I note that the presentation of figures in the spending review itself, which was published last week, is novel, to say the least. Pieces of the Home Office budget are dotted around all over the place in the document, making it very difficult to judge which sums are separate and which overlap or indeed duplicate each other.
I also note the reference to a new ministerial group which is being formed and that the Home Secretary has placed in the Library of the House a detailed statement of plans to modernise services. I am disappointed that we have not had an opportunity to see that statement along with this Statement. I hope that we shall have the opportunity to debate it at a later stage, perhaps in the spill-over of this Session.
There is much that I would welcome in the projects proposed by the Home Office both today in announcements made in another place and, I understand, announcements to be made by the Home Secretary at a special event at the Café Royal. I certainly welcome those projects and also those already announced in the Crime and Disorder Bill. It is sensible to encourage better parenting; it is sensible to try to reduce truanting. It is of course sensible to try to reduce anti-social behaviour. In all of those objectives it is sensible to involve local authorities, the Probation Service and the non-governmental organisations in all the crime reduction strategies. They all have valuable expertise to impart. It is not sensible to launch strategies such as this without a proper assessment of their costs, and that is exactly the trap which this Government have jumped into head first.
The Chancellor has combined being spendthrift in some departments with concealing the true costs of services in others. In the Home Office that means that costs have been off-loaded to service providers, many of them charities and non-governmental organisations. But there are serious implications, too, for the budgets of local authorities and of the Probation Service. I am aware of course that the Minister has referred to the additional £18 million which has been granted to the Probation Service. I welcome that. I am sure that it will make very good use of it.
The Statement also makes a passing shot—or attempts to make it miss its target—about the fact that, had we remained in office, there would have been an alleged £6 million reduction in budget. I happily accept that we were always prudent in setting budgets. The Minister might ask, "What is new?", in perhaps not going as far as allowing the Probation Service £30 million which it sought from this Government on this occasion.
What is new is that we did not, unlike this Government, seek to transfer to the Probation Service a huge raft of new tasks and then fail to fund them. The

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Statement refers to the fact that the extra £18 million is intended to cover the extra costs of tasks transferred under the Crime and Disorder Bill. I look forward to seeing precise costings of those because I suspect that at the moment they cannot be covered effectively by £18 million. After all, I note that last week the Probation Service itself was saying that the cost of supervising sex offenders for an extended period would be a great burden which would certainly require more than £18 million extra for their budget.
What is the Government's estimate of the extra costs which will be incurred by the provisions of the Crime and Disorder Bill and their other pronouncements on the work of the local authorities, including their social services departments and Victim Support? The noble Lord made reference very properly indeed in the Statement to the welcome changes that will be introduced—I hope in the near future—to the support given to witnesses in court. Certainly those extended services will put a strain on Victim Support. There will be costs loaded onto charities and on organisations like the citizens' advice bureaux.
In passing, as always, I make a statement of a small personal interest. It is small only because it is not paid but great because it is an interest as president of my local CAB. I have asked these questions throughout the passage of the Bill, but I have not as yet received any satisfactory answer.
I welcome the idea of mentoring announced today. The Youth Justice Board will fund this network of mentors—older friends and adults to act as role models. That is an excellent idea. That will be under the chairmanship of Mr. Warner, who is soon to join the Government Benches in this House. No doubt we shall welcome him here, especially as his recent experience as special adviser to the Home Secretary will no doubt give him a unique insight into the aspirations of the Government.
Mr. Warner will be responsible for leading the volunteer mentoring project. Volunteers are not free labour and they should not be cheap labour. Do the Government's estimates of the costs of the mentoring scheme include the full costs of the following: recruiting, security screening, goal setting, monitoring of performance and the outcome of the mentors' work? Volunteers work best when they are well managed and that costs money. For over half my life I have worked in the voluntary sector and I have learnt that to my cost at first hand.
As regards the police, how do the Government intend to achieve the efficiency savings referred to in the Statement? There has been reference to this on the ITN Newsline on the Internet. The implication there is that the Government have told the police forces that they are to prevent people retiring early and that they are not to go on sick leave. Has the Minister any information as to whether such advice has been given by the Government to the police?
The Government have already warned police forces, as mentioned in the Statement, that some of the projected cash increases will be withheld if efficiency
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savings of at least 2 per cent. are not achieved. What kind of efficiency savings will the Government insist on without jeopardising the security of the public? I notice in the Statement that there are references to hot spots and that police patrols should be targeted at times when crime is expected to occur.
I wonder what the Minister intends as regards those who live perhaps in bungalows in leafy streets in Hampshire. I carefully avoid the county in which my mother lives so that I can deal with the matter with impartiality. I wonder what the Minister intends for police patrols there where the incidence of crime is luckily much lower than it is in inner cities and where it is more difficult to predict where crime will occur; and it is certainly more difficult to predict repeat crime on the same victim. Will such areas and people perhaps not qualify as hot spots? Will they not receive the same attention and protection from the police as they currently do?
I noted in the spending review document itself that the large, real increase in the Home Office budget for 1999–2000 reflects the Home Office taking over responsibility for support costs for asylum seekers from the DSS and the Department of Health. I read that in paragraph 11.5 on page 61. I am being rather pedantic here. I mention that particularly because I noted earlier on that, when responding to the Statement in another place, the Home Secretary replied to my right honourable friend Norman Fowler that he was mistaken when he said that earlier on on the radio. But this is something stated in the spending review itself.
The Home Secretary went on to say that next week a White Paper would be issued on immigration and the asylum system, with full costings. I should be grateful if the Minister could give us some indication today as to the true situation concerning the budget that has been taken from the DSS and the DoH and transferred to the Home Office. I am confused as a result of what appear to be two different types of statement from the spending review and today's Statement.
I also note that the Home Secretary has said that he will make a Statement next week about the White Paper. In my two years here this is my first ever Statement. I find perhaps an embarrassment of riches if the Home Office is to impose two Statements in two weeks on me, but perhaps I still look forward to it.
As regards asylum seekers I note that in my previous incarnation as a spokesman on social security, noble Lords on the Government Benches, when they were in Opposition, criticised us vehemently for withdrawing income support from asylum seekers who did not make their claim at the point of entry. Do the Government intend to reinstate those benefits? If so, where do those costs appear in the spending review? Since, after all, the Home Office appears to have taken over those costs, they should be reflected in its budget if they are to be reinstated.
Any sociologist would tell the Minister that the behavioural changes upon which the Government are depending to achieve those efficiency savings are unpredictable at worst and take a long time to achieve at best. The Statement refers to 10 years. For the sake

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of the criminal justice system and the public, I hope that the Government achieve those objectives, but I fear that they may not. To me, the spending review remains a bundle of inconsistencies, contradictions and conjuring tricks. I believe that the country deserves better than that.
5.20 p.m.
Lord McNally: My Lords, I shall not tour the horizon quite as widely as the noble Baroness. Perhaps I may thank the Home Secretary for the tribute that he paid in another place to my colleagues there for their assiduity and interest in these matters.
The key to the Statement comes in paragraph 15, which states that for many years, governments have concentrated too much on the consequences of crime to the detriment of its causes. In that key statement we see a change of tack which we very much welcome. It is certainly a change of tack from the empty rhetoric of the previous Home Secretary. However, I shall not make party points because it is a welcome change of tack.
Perhaps I may ask the Minister a few questions. I understand that the new Grand Committee which is to oversee strategic planning will include the Lord Chancellor, the Attorney-General and the Chief Secretary to the Treasury, which is probably a very wise move. Will membership of that committee encompass also the departments of state relating to education and employment and the environment? Surely the input of such other departments at the earliest stage will be important in achieving the right answer.
Perhaps I may refer to the point made by the noble Baroness about promises of cost-effectiveness with regard to the police. The police should understand that, although Parliament and the public are willing to vote them extra resources, we want to see cost-effectiveness. The recent report of the House of Commons Select Committee on Public Accounts into police illness and early retirement shows certain deficiencies in terms of management and accountability which the public will rightly want to see put right if the police are to have extra resources for fighting crime.
Perhaps I may put to the Minister one point which is not covered in the Statement but which we on these Benches would very much like to see addressed as part of the review. There still does not seem to be any sense of urgency about bringing our ethnic communities within our system of justice in terms of police recruitment and—perhaps this is even more important—police retention of recruits. We also need to bring members of our ethnic minorities into the Probation Service and the judiciary. Our justice system must not be something that is "done to" our ethnic minorities; it must be something of which they are a part. About 20 years ago in another place, I asked questions about the efforts being made by the police to recruit members of our ethnic minorities. I still feel that all our police forces are lagging behind on that. That issue could well be considered as part of the review of the whole system.
My only other doubt about the review is that there is always an element of "up the down escalator" about putting more money into the Prison Service and
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arguing—we support this—that it should be for education and rehabilitation when at the same time we are piling more and more people into the prison system and when that overcrowding will eat up those extra resources. Anyone who wishes the programme well should ask Ministers to what extent they can retain the extra money that is going into the system for the good works that they want to see carried out rather than spending it simply on holding the system together.
The Minister will be well aware that we on these Benches have always been tough on cheap rhetoric and on the electoral causes of that cheap rhetoric! Therefore, we support the thinking behind the Statement. The Minister and, I am sure, the whole Home Office will have read today's Evening Standard, which reports that a recent poll shows that the present Home Secretary enjoys an almost unprecedented level of public support. I believe that that public support and confidence should be used by the Home Secretary to educate and to lead. If that is the intention behind the Statement—I believe that it is—we on these Benches welcome it as a step in the right direction.
5.25 p.m.
Lord Williams of Mostyn: My Lords, those were characteristically generous closing words from the noble Lord, Lord McNally. Part of the virtue of these proposals is that they were not produced simply as a knee-jerk reaction. They were carefully considered by my right honourable friend Jack Straw and his colleagues in opposition over a period of time. The noble Baroness is right that one of those colleagues was Mr. Warner, who has an extraordinarily distinguished record as a director of social services and as the producer of a notable report. I believe that the Home Secretary is fortunate to have an independent adviser of that quality.
It is true that the Home Secretary has had a good deal of public support. I believe that that is because people appreciate, as he undoubtedly emphasises whenever he may, that one of the duties of government is to provide a calm, settled life for people in all parts of our community so that they can have the opportunity to lead fruitful lives themselves and enjoy the legitimate hope that their children's lives may be better.
I do not deride or despise the calm leafy suburbs. People living in them have every right to proper consideration. However, we know that levels of certain crimes are much higher in inner-city areas than in the leafy suburbs. We owe a duty to those areas of our inner cities and to those who live in what are called, in that appalling phrase, the "sink estates". They have been overlooked in terms of practical consequence and results for a very long time. Their schools have been poorer. Their social services have been weaker. The delivery of the ordinary amenities and conveniences of every-day life has been lacking. The Home Secretary has said time and time again that he will not turn his back on those areas.
The joint statement was placed in the Library today. It is extremely important. Noble Lords will not have had the time to study it, but it is intended to show that we

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mean business. The group is chaired by the Home Secretary. One member is the Lord Chancellor, another is the Attorney-General and a further member is the Chief Secretary to the Treasury, so it is not pie-in-the-sky. Vast amounts of money are spent by the Home Office, the Lord Chancellor's Department, the Crown Prosecution Service, the Prison Service and the Probation Service—historically in rather competitive isolation, one against another. We shall not be able to do anything unless we move forward on an integrated basis.
The noble Lord, Lord McNally, is right that that ministerial group does not include the Department for Education and Employment or the other departments that he mentioned. However, as part of the crime reduction strategy, there will be a separate ministerial group which will have a much wider membership and include the Departments for Education and Employment and for Health. I take the noble Lord's point entirely. It is intended to be a focused, strategic group, but it is not intended to stand without assistance from other colleagues. I touch briefly on the work of that group, recognising that noble Lords will not have had a chance to study it. What is intended—it is a self-imposed discipline and is the only way in which to achieve results—is the production by that group of a three-year strategic plan, an annual forward business plan and, of critical importance, an annual report of performance against objectives. If we can make that work we shall take a very important step on this very difficult journey.
The noble Lord, Lord McNally, asked generally about ethnic minorities. In this country we have been shamefully slow in dealing with the problems of ethnic minorities for a very long period of time. We shall provide extra grants to organisations which are not limited to those available to local authorities under Section 11. We are consulting with the Commission for Racial Equality on its recommendations and encouraging the establishment of a European monitoring centre on racism and xenophobia. We have already abolished the primary purpose rule which was a cause of significant complaint.
Not least it is extremely important to recognise the significance of the step taken by the Home Secretary and its inevitable consequences. Knowing the difficulties, he set up a public inquiry into the murder of Stephen Lawrence. It is not for me to pre-judge or even guess at the conclusions and recommendations of that inquiry, but there is no doubt in my mind that as a matter of absolute moral certainty in five or ten years' time we shall look back at those recommendations, first, with a feeling of deep shame and, secondly, it is to be hoped with the ability to do better in future. For too long one has heard, "I do not have a racist bone in my body. Neither I nor my organisation is racist". I do not believe that there is any senior police officer in the land who disagrees that the police have a long way to go. Of course it is a matter of persuasion and changing attitudes. The first important step to changing attitudes is to get to the truth, which in the Lawrence case is deeply ignoble.
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As to the Prison Service, the comments that have been made are well justified. Part of the extra money is to be spent on additional places. I have never been one to say that it is all the fault of the previous government. I simply observe the objective fact that custody as a sentencing alternative in the Crown Court has substantially increased. That form of sentence has also significantly increased in the magistrates' court. The Government have the constitutional obligation to provide prison spaces if independent judicial tribunals want to impose those sentences. As we have sought to do under the Crime and Disorder Bill, with the philosophy shortly set out in the spending review, it is much more fundamental to see whether we can stop small children of 10 years getting into a system which everybody in this House knows causes them to be recidivists, offers them no benefit and puts upon the public purse an enormous burden in terms of both finance and fragmented societies. We are however going to spend £79 million, which is quite a sum, on improving constructive activity including education, which so many of your Lordships have rightly stressed in recent times. An announcement will be made very shortly by my right honourable friend Mrs. Taylor about access to drug-testing and treatment programmes in prison. Perhaps that is best left for her announcement.
The noble Baroness began in a way to which I am well accustomed; namely, constructively and reasonably. However, she was led into social misbehaviour when she commented on the whole of the Comprehensive Spending Review and raised the question whether we had inherited a marvellous situation and whether Sodom and Gomorrah—doom and destruction—lay just around the corner. I do not think noble Lords would expect me to join that particular jousting, because the noble Baroness is a politician and I am not—presently.
Very important questions arise as to how resources are to be provided and divided up. On the transfer of resources from the DSS and Department of Health for asylum support, the costs are provisional at present and more work needs to be done on the details. As to the Probation Service, we do not anticipate that the full costs of the Crime and Disorder Bill will be incurred in year one. For that reason we have built in £18 million for the first year, £42 million for the second year and £67 million for the third year, making £127 million in total. We believe that that is sufficient to meet the additional burdens that are placed on the Probation Service.
It must be borne in mind that when the review of the Prison Service/Probation Service relationship is finally concluded there will be savings, in part because of efficiency and in part because if crime falls there will be a reduction in cost. It is impossible to state categorically the exact fall in particular crimes by year one, year two or year three. As the extremely important document Reducing Offending points out, some trends are underlying and cannot be pinpointed. I believe that this is the first time that such a comprehensive review of ways of dealing with offending behaviour and preventing it has been produced anywhere in the world.

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The costs of monitoring and vetting offenders are covered in these estimates. A particular question was raised about police efficiency. That is a perfectly reasonable question. The noble Baroness asked how we would achieve the 2 per cent. efficiency savings. Part of the answer lies in the product of the Public Accounts Committee. The chairman of that committee, the right honourable David Davis, who has done notable work, points out that there is an enormous variation in the performance of police forces. The controller of the Audit Commission has said that more money does not always buy better policing. There are enormous differences in performance within similar forces which I find difficult to explain. For example, in 1996–97 Surrey received a 4 per cent. increase in expenditure per head of population. Kent received 2 per cent. However, Kent's detection of violent crimes and burglaries increased by 9 per cent. and 20 per cent. respectively, whereas in Surrey the detection of violent crimes and burglaries dropped by 5 per cent. and 18 per cent. respectively. I do not know the answer to that. I do not know the fundamental reason why a large authority like the Metropolitan Police has a considerable number of officers taking significant sick leave. Nor do I know why there should be an enormous variation between one constabulary and another in terms of how much of the annual budget is paid out for early retirement of officers. Many if not all of us find the figures extremely alarming. There is an enormous amount of work to be done, bearing in mind that we do not have or wish to have a national police force in this country. Nevertheless, police authorities and chief officers of police have a duty to account prudently, efficiently and appropriately for the expenditure of public money. I do not know all of the answers to those questions, but that there are serious issues that create great concern in the public mind cannot be denied.
I am grateful for the general welcome given to this matter by both the noble Baroness and the noble Lord, Lord McNally. The Home Secretary does not pretend or claim that this is anything more than a determined first beginning, but it certainly is determined. I do not believe that over the past 25 years such a beginning has been made in the Home Office. That is perhaps one of the reasons why at the moment—I strike out the words "at the moment"—the Home Secretary enjoys enormous public confidence and support.
5.38 p.m.
Lord Renton: My Lords, in developing this policy, will the Government bear in mind two matters in relation to young offenders? The first is that custodial sentences should be regarded by the courts as a last resort. The other factor closely related to the first—this is not a matter so much for the courts as for the Government and persuasion—is that the responsibility of parents should be increased. They should bear in mind that there are powers to make parents pay fines and compensation for damage or loss. I hope that those two factors might help.
Lord Williams of Mostyn: My Lords, I agree with everything that the noble Lord said. I know that we
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share the experience of having sentenced many young people. Most sentencers genuinely wish to look at a custodial outcome as the very last weapon at their disposal. The Crime and Disorder Bill is trying to go beyond the stage of sentencing what is still a child of 16 and to see what led that child to being in the dock, with a custodial sentence contemplated. That will almost inevitably be the final incident in a long history of offending. I think that most people would find that to be their sentencing experience.
If a child is running wild late at night, why is that? If a child is not attending school properly, why is that, and how can we deal with it? Because there is no doubt that poor school attendance and low educational achievement lead to a significant part of juvenile crime. That is how we have structured the Crime and Disorder Bill which, by and large, received a good welcome in your Lordships' House. There is no doubt that parents have to be involved, which is another significant and deliberate aspect of the Crime and Disorder Bill under which we can have parenting orders, where parents who may not be sufficiently equipped to be good parents will be encouraged rather than bullied or threatened to see whether, as I said earlier, their children's lives may not be better than were their own.
Equally—I take up the point made by the noble Lord, Lord McNally—this is not just a Home Office point, because it depends upon education. It is of great importance that my right honourable friend Mr. Blunkett is putting such emphasis on a broad education in schools to include parenting responsibilities. I know that that is jargon, but it is jargon that contains an important point. I agree with the noble Lord.
Lord Hylton: My Lords, the Minister mentioned the heavier use of imprisonment as a penalty, and longer sentences. We all know that that is what is happening. Will the Minister explain why the Statement makes no reference to non-custodial sentences, to getting mentally ill offenders out of prison, or the long-standing question of access by all prisoners to the NHS?
Lord Williams of Mostyn: My Lords, I did not say longer sentences. I said that Crown Courts and magistrates were using imprisonment more readily than they formerly did. It is not right to say that the Statement does not consider alternatives to prison, because it spends a great deal of time on increased investment in the Probation Service, for instance. It does not include the question of access to NHS facilities. I think that I answered that Question yesterday in a different context. There are arguments on both sides. The noble Lord is right: the Statement does not mention that point.
The whole of the Crime and Disorder Bill, which is the Government's flagship strategy in dealing with the prevention of crime, seems to me to devolve entirely upon alternatives to prison. The whole construct of the Bill is to try to deal with people at a young age, before they go to prison. The Statement has to be seen in the context of what we have already done and what your Lordships have, as I think I said earlier, almost unanimously approved.

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We deal with children in a non-custodial way, but there are children who will go into custody and there are adults who will go into custody. It is our duty as a civil society to provide better régimes for them, not least productive activity and education. The Statement deals with that issue. There will never be a time in this country when some people will not be in prison. Our aim should be to have as few people in prison as is sensibly consistent with public confidence in the judicial system and public safety and security.
Lord Waddington: My Lords, will the Minister bear in mind that modest sums of money might make a difference in our prisons? While I do not suggest that this is one of the major issues, will the Minister look favourably upon charities such as Natural Justice which is looking at the link between diet and violent behaviour, particularly in prisons?
Lord Williams of Mostyn: My Lords, I can agree with two points that the noble Lord has made. I recognise his enormous experience in this area. First, volunteering and charitable work is important; and, secondly, it can be achieved at a relatively modest cost. We intend to provide over £5 million to support volunteering. I cannot deal specifically with the question of diet. I am aware that the noble Earl, Lord Baldwin, has frequently asked Questions, orally or in writing, about that. I cannot say that there is anything in the Statement that points to that. It is an important question, so I will have further research done and write to the noble Lord, if that is helpful, and put a copy in the Library.
Lord Waddington: My Lords, I hope that the Minister heard the name of the charity which is Natural Justice.
Lord Williams of Mostyn: My Lords, I did.
The Earl of Longford: My Lords, it would be churlish not to pay tribute to the Government for their good intentions, so ably expressed by the Minister. Without studying the proposals in detail, it would be imprudent to offer any view as to whether they represent a repudiation of the disastrous policies pursued over the past few years by various governments, which won almost universal condemnation in your Lordships' House, as illustrated in the debate initiated recently in your Lordships' House by the noble Lord, Lord Allen.
Lord Williams of Mostyn: My Lords, I believe that they are a repudiation. What has bedevilled us in the past is that every approach has been made piecemeal, often as an over-reaction to a limited problem. In the Crime and Disorder Bill we are looking at the causes of crime, and setting out the statutory purpose of that new regime; namely, to prevent people offending. The Statement of course does not recite the whole philosophy behind the Crime and Disorder Bill. I do not think that it could have. It is saying that we must look at the judicial system; the sentencing regime; the prison
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régime; the Probation Service regime; and alternative community disposals, all in the whole. I do not believe that that has ever been done before; it certainly was not done in the past 20 years.
Lord Mishcon: My Lords, perhaps I may be permitted to congratulate my noble friend the Minister on his ability to make this historic Statement, as I believe it to be, this afternoon. I pay tribute to the part that I know he played in making possible this Statement and the policy that is contained in it. Am I, as an amateur politician—my noble friend referred to his being in that category—permitted to dream for a moment, that the subject of crime, the causes of crime and how to deal with it, could be taken out of the political arena?
I do not think that the nation will enjoy the speech of the noble Baroness, Lady Anelay of St. Johns, from the Front Bench opposite. It is only fair that I allow her to hear what I am saying.
Baroness Anelay of St. Johns: My Lords, I apologise to the noble Lord. No discourtesy was intended. It was merely a matter of referring to the timing of the next Business. I do apologise to him that I was not paying attention.
Lord Mishcon: My Lords, no one would ever accuse the noble Baroness of being discourteous. However, I venture to suggest that she might refrain from making such political speeches in the future, which I do not think that the nation would appreciate in view of its great concern about crime, its causes, and the way to deal with it.
I have just two observations. I borrow a phrase used by my noble friend the Minister who said that he obviously would not wish to anticipate the results of the inquiry into the Lawrence case or the recommendations that might be made. The reputation of the police—the people who represent law and order to the man in the street—which in my youth was so high, is suffering a deterioration unworthy of the great traditions that the majority of the police still uphold.
Quite apart from enquiries being made into early retirements, sick pay, and so on, I hope that when communicating with the heads of the various police forces it will be emphasised by the Government that the conduct of the police is of supreme importance in connection with the battle against crime. I yearn for the day when the police were regarded as the friends of school children and others alike. They were the honoured guests of schools. Their bands played and school children and youngsters loved them. I wonder whether that position can be still be secured.
I have only one other question. Expenditure was mentioned in connection with much that would help with juvenile crime. However, I found no reference in the Statement to the encouragement and extra financing of youth clubs. One of the chief causes of crime is the

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lack of activity for youngsters, and especially the young unemployed. The youth clubs are doing a wonderful job. They deserve to be helped.
Lord Williams of Mostyn: My Lords, my noble friend is right: there was no specific reference to youth clubs. But again one goes back to the Crime and Disorder Bill, and considers the strategies with which local authorities, voluntary organisations, chief officers and police will be involved. I am happy to reaffirm that there is no doubt that all voluntary organisations, including youth clubs which do such useful work, will be included in that co-operative regime.
I can say no more about the inquiry into the murder of Stephen Lawrence except this. I do not think that it can be doubted that the present Home Secretary has an absolute commitment to doing away with that endemic vice, not simply in setting up that inquiry, but also in the introduction of the offence of racial harassment. Having listened with care to amendments that both my noble friend Lord Mishcon and the noble Lord, Lord Dholakia, wished, we were able to respond in a firm and constructive way.
My noble friend Lord Mishcon referred to me as an amateur politician. I assume that he refers to the extremely modest remuneration that Ministers in your Lordships' House receive. It is not a perfect amateur but very close to it. I chided the noble Baroness gently because I am happy to say in all honesty that in every contact we have had across the Dispatch Box and, more importantly, in private letters and conversations, the noble Baroness has never sought to make these matters a party political football. I believe that she was led for a moment into temptation; and, as Oscar Wilde said, the one thing to do with temptation is to give into it.
Baroness Thomas of Walliswood: My Lords, I declare an interest, as I have done before, as a member of a probation committee. It is not a financial interest.
First, I welcome the reference in paragraph 30 of the Statement to increases in the number of probation officers providing throughcare support. That has varied over the years as prison officers manage their budgets. Are the Government telling us that they have some method of ring-fencing the budget for probation officers within prisons?
My second question relates to the additional annual grant to the Probation Service. At first glance it is an enormous improvement on the year on year reduction in real budget from which the Probation Service has been suffering. However, it would be useful if the Minister will tell us the likely percentage increase year on year. Is this a real increase, or is it an increase that has to be discounted by inflation?
Lord Williams of Mostyn: My Lords, it is a real increase. The figures I have given start at £18 million as opposed to a cut of £6 million increasing to an additional £127 million, with factors for anticipated inflation—the Treasury factors—taken into account.
As regards ring-fencing and further working, the relationship between the Prison Service and the Probation Service will be part of the review.
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A consultation document will be published shortly. That will set out the Government's proposals more fully. I dare say that the question of funding, and whether or not specific funding should be ring-fenced will be addressed there. In effect, the provision for the service mentioned in the context to which the noble Baroness referred will be ring-fenced. However, one should wait, I think, for the fuller consultation document. The Home Secretary firmly believes that it is artificial in many ways, and certainly inefficient and often not productive, to have the Probation Service in one box and the Prison Service in another. The boxes are not different. It has always been my view that they are different aspects of the same spectrum of dealing with people who have offended. They are the same people who have offended, whether they are in prison or outside—sometimes as a result of a sentencing decision and sometimes not.

Scotland Bill
5.56 p.m.
The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Sewel.)
Lord Mackay of Ardbrecknish: My Lords, before your Lordships agree to move into Committee, I feel obliged to make similar remarks to those I made on the last Committee day. In the words of F. E. Smith, your Lordships will have taken cognisance of the position of the hands of the clock. They will see that the hands of the clock are not in the position one would expect them to be at the beginning of a Committee day on an important Bill.
It is almost six o'clock. One would normally expect to start this Bill today shortly after three o'clock. It would be bad enough, but something one could put up with, if this had been the first day on which we had made a late start; but it is not. In fact, we are marginally better today, starting at three or four minutes to six than last Tuesday when we did not begin until ten past six. On Thursday we did not begin until five minutes past seven. For three out of the four days we have had truncated Committee days.
As I said last Thursday, we agreed—I stated quite clearly at Second Reading that I had every hope and expectation of it—that we would clear the Committee stage of this Bill before the Recess with something like eight Committee days. This is now the fourth Committee day and we have had only one complete day. I make no complaint about Statements. They are an inevitable part of the parliamentary process; we are used to that. However, it is the other business, albeit agreed through the usual channels, that the Government need to squeeze into the programme which is causing this important Bill to start at such a late hour, and therefore for important issues to be discussed late into the night.

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It is not satisfactory. Before we agree to go into Committee, I wish to log again the fact that we are now well behind any undertaking I made at Second Reading to complete the Committee stage of the Bill in eight days or before the Recess. I hope that the Government will take some account of this when discussing the pattern of future business for the Bill.
6 p.m.
Lord Kirkhill: My Lords, before the noble Lord sits down, I should like to make one point. Harking back to the earlier stages of our proceedings this afternoon, has the noble Lord talked to some of his very voluble colleagues on the Benches on which he sits?
Lord Mackay of Ardbrecknish: My Lords, the noble Lord refers to earlier stages of our proceedings this afternoon. I thought perhaps he was meaning previous stages of this Bill. I have not talked to them, but my noble friends are fully entitled to make the points they wish to make on important government business; and, frankly, whatever time today's business took we would still have an erosion of the fourth day in Committee on this Bill.
Lord Kirkhill: My Lords, I think that excessive volubility is to be deplored if there is now a complaint about the time factor.
Lord Sewel: My Lords, the alleged difficulties that we find ourselves in are a consequence of the weight of business to an extent and perhaps to a stringing out of business beyond the time that is absolutely necessary. However, I understand that these matters and the programme have been discussed between the usual channels, and I do not think there is cause for the type of comment made by the noble Lord, Lord Mackay of Ardbrecknish. If I could make just one plea, is it this: it is still possible for us to make progress expeditiously.
Lord Hughes: My Lords, does my noble friend still expect to complete the Committee stage this month, without unacceptably long sittings?
Lord Sewel: My Lords, that is a matter for the Chief Whip—who happens, by perfect happenstance, to arrive in the Chamber at this very moment. I have an answer ready if he does not.
Lord Hughes: My Lords, could I ask my noble friend whether he has heard my question, and will he be able to answer it?
Lord Carter: My Lords, I did not hear the question but I am prepared to answer it.
Lord Hughes: My Lords, I asked my noble friend whether he still expects to complete the Committee stage of this Bill this month without unacceptably late sittings.
Lord Carter: My Lords, it is fair to say that it will be quite difficult. I have not heard what has gone on,
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but I can guess. I am sure that the noble Lord, Lord Mackay of Ardbrecknish, has made a point about the late start on the Scotland Bill today and the progress, or lack of it, that might be made. I can only repeat the answer that I gave on the last occasion when he raised this point. I sympathise with him. But I hope he understands the problems that I face with the Northern Ireland Bill, to which I have had to give priority because it has to receive Royal Assent, as part of the peace process, before the Summer Recess. There was at one stage a discussion as to whether we should continue the Scotland Bill during the first week of August, and it was agreed through the usual channels that this would not be the case and that we would not sit in the first week of August for reasons which I know the noble Lord understands.
I can only suggest that we make the best progress that we can today. I understand the problem; of course I do. I have been in Opposition for enough years to understand that some years a big Bill comes along and it is started late in the evening. I hope the House will understand the problem that I face with Northern Ireland legislation and the landmines legislation, all of which has been agreed through the usual channels and between the parties. This legislation, it has been agreed, must be completed by the Summer Recess. We have had to fit in a major Bill around this one. I apologise and I suggest that we now continue with the Committee stage and make all the progress that we can. As always, the usual channels will be in constant touch over the progress of the Bill.
Lord Mackie of Benshie: My Lords, may I ask the noble Lord whether it is true that there has been a great change of heart in this House? It used to rise in August so as to prepare for the grouse season. Has this now been changed for fishery?
Noble Lords: Ah!
Lord Carter: My Lords, the noble Lord perhaps has some information that I do not have. It is interesting to remember that in an equivalent Session during 1979 there was a government who had similarly come into office after a long period in Opposition and during that summer they actually sat until 8th August. We have decided that we will rise on 31st July, for reasons which the House understands, and we are coming back on 5th October.
I apologise again for the problem and I suggest that the best thing we can do, now that we know the reason for it, is to make all the progress that we can on the Bill. Let us see where we shall be next week. We have the rest of today; we have Thursday; we have next Monday, next Tuesday and next Thursday; and with the brevity and succinctness of which I know the noble Lord, Lord Mackay of Ardbrecknish, is a past master, aided by the noble and learned Lord, Lord Mackay of Drumadoon, I am sure that we will finish the Committee stage.
On Question, Motion agreed to.
House in Committee accordingly.
The DEPUTY CHAIRMAN OF COMMITTEES (Lord Lyell) in the Chair.]
Clause 23 [Power to call for witnesses and documents]:
[Amendment No. 135 had been withdrawn from the Marshalled List.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 136:
Page 11, line 33, at end insert—
("( ) The power in subsection (1) is not exercisable in relation to a Minister of the Crown").
The noble and learned Lord said: For the sake of making progress, this amendment is linked with Amendment No. 137. It raises a very short but important point as to whether in any circumstances the Scottish parliament, or one of its committees, should have the power to require a Minister of the Crown to attend upon the parliament's proceedings for the purposes of giving evidence or producing documents in his custody or under his control.
It is obvious from the clause as drafted that the right to summon Ministers of the Crown to appear before the parliament or to produce documents is not an unqualified power. It is restricted by the provisions of subsection (4). Nevertheless, it is there and so in certain circumstances it could be used. I believe it would not be appropriate for the Scottish parliament to have such a power. No doubt from time to time the parliament or one of its committees may feel that its deliberations would be assisted if Ministers of the Crown were to attend and be willing to answer questions. That would apply not only in respect of those Ministers whom it has power to require to attend, but it would also apply to other Ministers whose attendance would be precluded as a matter of requirement by the way subsection (4) is framed.
The willing attendance of Ministers of the Crown to assist the parliament is a very different matter from their being required to attend in a situation where they do not wish to do so. I believe that the existence of the power and its use would be very unhelpful towards maintaining good relations between the United Kingdom Government on the one hand and the Scottish parliament and the Scottish executive on the other hand.
Obviously, this parliament can require Ministers of the Crown to attend and, if they are required to do so, to turn up at a suitably convenient time—sometimes somewhat prompter than might be the case if it were a matter of their own choosing. However, so far as the courts of the land are concerned there can be little doubt that if a party wishes a Member of Parliament or a Minister of the Crown to attend they do not have the right to summon them before the court in the way that they can summon other members of the public.
That is the situation that I believe should apply in the Scottish parliament. By all means invite them to attend and also make it clear why you wish them to attend, but do not insist on having in this clause an absolute right to do so because, far from fostering good relations, it
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could well lead to unnecessary tension between the Executive of the United Kingdom Government and the new institutions being set up in Scotland. I beg to move.
Lord Fraser of Carmyllie: This matter relates primarily to the situation of a Minister of the Crown, and particular provision is made for someone who remains a Minister of the Crown. The issue which seems to me still to require clarification is that of someone who has been a Minister of the Crown and has dealt with matters covered by this clause but where that person is no longer a Minister but a Member of the House of Commons. In such circumstances, am I to understand that for the purposes of hearing evidence the Scottish parliament could not require that individual to attend but would be able to require him to attend so long as he remained a Minister of the Crown? If I have understood that position correctly, it does seem to me to be a rather curious anomaly. Clearly the House of Commons must be taken as being on notice that one of its Members might be required to attend. They have already dealt with this provision. Given the change of Ministers that there may be, perhaps as soon as the end of this week, those no longer in office might have evidence which a Scottish parliament considered appropriate for its deliberations. I should be grateful if the Minister would clarify that matter.
Baroness Carnegy of Lour: I support the amendment. I believe that enabling the Scottish parliament to ask United Kingdom Ministers, who are answerable to the electorate through a different set of elected representatives, to submit to questions, whether on small or large issues, merely because their responsibilities overlap in affecting devolved matters is asking for trouble and confrontation. This Parliament and the Government have an enormous responsibility to reduce the areas which invite confrontation, provided that the parliament works as is intended.
I see from the notes on clauses that Ministers of the Crown include Treasury Ministers. One can imagine a Chancellor of the Exchequer of a Conservative government being summoned before the Scottish parliament, which is perhaps Labour or SNP dominated, to be questioned about why the grant from Westminster is so small and results in Scottish income tax being raised by 3p. in the pound. According to my reading of the Bill, that could happen. Could the Prime Minister be summoned to be questioned about the Government's policies, vis-à-vis the policies of the Scottish parliament and how they conflict?
On reading the Bill, it appears that the policies which have evolved from the thinking of the civil servants in the Scottish Office have not been adequately tested for their political effect by the Government or by the House of Commons. I can understand people's belief before the Bill came to Parliament that this part would work well. But the political effect is likely to be fairly catastrophic for the good working of the Scottish

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parliament and Westminster together. I believe that the Government should consider the amendment because it is very important.
Baroness Linklater of Butterstone: We do not follow the argument that the provision in the Bill will create further tension or difficulties. If a Minister of the Crown outside Scotland has functions or responsibilities relating to devolved matters concerning Scotland, the Scottish parliament should have the power to require him to attend. It is a simple question of accountability. There is no reason why anyone—particularly someone of importance as regards Scottish matters—should not be accountable. We believe that the Bill is rightly specific on that and we oppose the amendment.
Baroness Carnegy of Lour: Does the noble Baroness consider that the Chancellor of the Exchequer is accountable to the people of Scotland through their elected members to the Scottish parliament or to the Westminster Parliament? How can she use that argument?
Lord Mackie of Benshie: The noble Baroness has made her point. I do not wish to offend the dignity of the Chancellor of the Exchequer or anyone else, but I point out that when a Minister does not want to answer questions the answers are most vital and necessary.
6.15 p.m.
The Lord Advocate (Lord Hardie): The amendments raise the issue of the circumstances in which a Minister of the Crown may be summoned before parliament. As I explained earlier, under the Bill as drafted, those who are responsible only for reserved matters cannot be summoned in connection with those matters, although they can of course be invited to attend and to submit documents. The noble and learned Lord, Lord Mackay of Drumadoon, thought that that was appropriate if they wished to attend in response to an invitation. For UK Ministers and civil servants, we have in particular had to be careful to avoid what might be described as "double accountability". We absolutely accept that Ministers of the Crown exercising functions in reserved areas will be using resources voted by the United Kingdom Parliament and should be accountable to it, and to it alone, and not to the Scottish parliament.
We have also ensured that where it is provided in, say, an executive devolution order under Clause 59 that the Scottish Ministers must be consulted or their agreement sought about the exercise of a function by a UK Minister which concerns a reserved matter, that in itself provides no basis for summoning UK Ministers and their civil servants before the Scottish parliament. Similarly, they will not be summonable in relation to a function which they share with Scottish Ministers by virtue of Clauses 52, 53 or 59. For those functions they will be rightly accountable to Westminster.
Bearing in mind the principles underlying these provisions, I have to say that the amendments tabled by the noble and learned Lord go further in restricting the power of summons in relation to Ministers of the Crown
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than we think is justified. They would prevent the parliament from being able to call Ministers of the Crown to give evidence to the Scottish parliament in any circumstances. In particular, they would prevent a Minister of the Crown from being summoned where he exercises a function in relation to devolved matters concerning Scotland instead of the Scottish Ministers. In reply to the point raised by the noble Baroness, Lady Carnegy, that would apply to the Chancellor of the Exchequer.
There will continue to be what are known as "cross border public authorities". These bodies will have responsibilities for devolved matters in Scotland as well as matters elsewhere. Examples include the British Tourist Authority. Appropriate arrangements for their control and accountability will be made under Clauses 83 and 84. In some cases concerning those bodies, it will be appropriate for ministerial functions in relation to devolved matters concerning Scotland to be exercisable by UK Ministers. For example, it may not make practical sense for a ministerial power of direction, say of the form of accounts, to be split between the Scottish and UK Ministers. Rather, it might be more appropriately exercised by a UK Minister after consultation with the Scottish Ministers. In that case, it makes perfect sense for the Scottish parliament to be able to summon UK Ministers.
Another example of circumstances where it would be appropriate for a UK Minister to be subject to summons would be where he exercises a function in relation to a devolved matter in Scotland instead of a Scottish Minister by virtue of an Order in Council under Clause 98. For example, it could be administratively more convenient for a UK department to conduct certain statistical surveys for the whole of the UK. In that situation, it would be appropriate that the UK Minister ought to be capable of being summoned to the Scottish parliament.
If the amendments proposed by the noble and learned Lord were to be accepted, the parliament would not be able to fulfil properly its role in holding Ministers to account for their functions in relation to devolved matters. I hope the noble and learned Lord will agree that that would be an undesirable outcome.
Finally, I should perhaps mention that the matter was raised in another place. The Opposition Front Bench spokesman, Mr. Jenkin, welcomed government amendments to Clause 23 precisely in order to clarify the issue we are now discussing. Mr. Jenkin offered the view that the Government had "responsibly addressed" the issue of double accountability, which he explained had prompted the Opposition to put down in that place amendments similar to those we are now considering. There appears to be a change of heart on the part of the Opposition.
I hope that with that explanation, the noble and learned Lord will withdraw his amendment.
Lord Fraser of Carmyllie: Before the noble and learned Lord sits down, I addressed a specific matter in relation to former Ministers. In drawing together Clause 23, I believe that there must be some risk of that. I am not saying that it is necessarily a bad thing that such a

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Minister, if he has evidence to give, should not be summoned before the Scottish parliament. However, as it impinges upon the privileges of this Parliament, I believe that the issue should be spelt out clearly in the legislation.
Lord Hardie: I apologise to the noble and learned Lord. Indeed, I meant to deal with that position. Clause 23(1) allows the parliament to require any person to attend to give evidence or produce documents relating to any matter mentioned in subsection (2). There is no exemption for former Ministers, but the question is whether such an individual would have much information of relevance to the parliament. There would also be an issue of parliamentary privilege of a Member of Parliament whose first priority must be to the House of Commons. In practice, it is anticipated that the parliament in that situation would proceed by invitation.
Lord Fraser of Carmyllie: I am sorry to press this, but I do think that the matter of parliamentary privilege is most important. The practical way that the noble and learned Lord has spelt out is indeed what I would guess would be the way that the two parliaments would satisfactorily resolve matters. However, it is possibly a matter of keen conflict. We cannot allow proceedings and our debates to go forward on the basis that relations between this Westminster Parliament and the Scottish parliament will always be amicable. I am sure that the entire membership of this Chamber would wish that to be the case, but it might not always be so. Therefore, it seems to me that we must clarify the matter.
Lord Mackay of Drumadoon: I am slightly amused by the way that the noble and learned Lord has relied on the wise words of my honourable friend Mr. Jenkin in another place. Bearing in mind the way that his colleagues normally regard what Mr. Jenkin and others say and how they are criticised up hill and down dale for not understanding the Bill, it is mildly amusing that the noble and learned Lord should now seek to turn Mr. Jenkin against me.
The intervention by the noble Baroness, Lady Linklater of Butterstone, illustrated the purpose which lies behind the amendment. She said that it was a simple question of accountability. If it is supposed that Ministers of the Crown will be accountable to the Scottish parliament, then I perceive that there will be serious difficulty in the years ahead. If Ministers of the Crown do not wish to answer a question, they will, as the noble Lord, Lord Mackie of Benshie, said, theoretically be open to prosecution in a Scottish court under the provisions of the next clause.
We are discussing an important matter. Having raised it tonight, I had hoped that a more constructive response would be more forthcoming. However, the noble and learned Lord gave a number of explanations as to why he considered such a power was necessary. Therefore, rather than put the matter to a Division this evening, I intend to read most carefully what he said. As presently advised, I believe that it will be necessary to revisit the matter on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 137 not moved.]
The Deputy Chairman of Committees (Lord Lyell): I should inform Members of the Committee that if Amendment No. 137A is agreed to, I shall not be able to call Amendment No. 138.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 137A:
Page 12, line 9, leave out ("which exercises the judicial power of the State").
The noble Earl said: This amendment deals with the Scottish parliament's powers to summon witnesses and documents. The amendment seeks to clarify which judges and which tribunal members are exempted from such a summons. The Bill refers to judges and tribunal members who exercise,
"the judicial power of the State".
That is rather imprecise. What is the extent of that exemption? Will it extend to members of a children's panel or, for example, to the members of the Scottish Solicitors' Discipline Tribunal?. It is worth pointing out that the latter have to forfeit any fines to the Crown, much to the disappointment of aggrieved clients.
Beyond that, does it extend to judges of the European Court of Justice, of the European Court of Human Rights or indeed of the International Court of Justice? It would be helpful to understand the exact extent of this exemption. I beg to move.
Baroness Carnegy of Lour: This is an amendment in which I know the Law Society of Scotland is interested. Consequently, we shall all be interested to hear the Minister's reply.
Lord Hope of Craighead: I am bound to say that I also think that the phrase to which the amendment draws attention is in need of clarification. In addition to the reasons given by the noble Earl, the word "tribunal" is used elsewhere in the Bill. It appears in a number of places in Schedule 6, where a court or tribunal is required to deal with matters in particular ways should devolution issues arise. I can see the point to which the words are being directed. It may be that a distinction is being drawn between private tribunals—and I am thinking in particular of arbitration tribunals—and public tribunals. It is possible that there is a better way to define the kind of tribunal to which the provision refers; for example, by reference to the definition in the Tribunals and Inquiries Act 1971.
However, the point arises as to whether the word in that context is intended to have the same meaning in Schedule 6. It will be of great interest to those who sit on any kind of tribunal to know whether they are obliged to fulfil the duty imposed upon them under Schedule 6 to deal with devolution issues in the manner which is there set out. I support the suggestion that the phrase is in need of clarification. I do so not in any way to be obstructive, but simply in order to ensure that everyone can understand what the Bill seeks to do.
Lord Mackay of Drumadoon: I rise to express my support for the noble Earl's amendment, which raises

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the same issue as that contained in Amendment No. 138. When the Minister replies, it would be most helpful if he could us some examples of tribunals which exercise the judicial power of the state and of others which exercise a power of the state that is not judicial. That is where I have some difficulty. It would be of considerable assistance to know whether there are certain criteria by which one would work out which tribunals fall within the term which is used in Clause 23(6)(c).
Lord Hardie: As the noble and learned Lord, Lord Hope of Craighead, anticipated, the question of tribunals which exercise the judicial power of the state is distinct from private tribunals such as arbitrations. However, they may also be distinct from certain administrative tribunals which do not exercise the judicial functions of the state. That is the distinction which is sought to be drawn in this provision.
Perhaps I may advise Members of the Committee that there is a precedent for this phrase. In particular, there is reference to tribunals exercising the judicial power of the state in the Contempt of Court Act 1981 and in the Deregulation and Contracting Out Act 1994. That is where the phrase has been borrowed from by parliamentary draftsmen.
In answer to some of the points made by the noble Earl, Lord Mar and Kellie, I should point out that the European Court of Justice, the European Court of Human Rights and children's panels would all be tribunals exercising the judicial functions of the state. The issue of children's panels was specifically raised in another place. It was explained then that they would be included in the category of tribunals exercising a judicial function of the state. As I have already said—and I take here the point raised by the noble and learned Lord, Lord Mackay of Drumadoon—tribunals not exercising the judicial function of the state would, for example, be private arbitrations in relation to a commercial contract, or certain administrative tribunals which did not have a judicial function.
Subsection (6)(b) makes it clear that a "judge of any court" cannot be summoned. As I have said, this would include a judge of the European Court of Justice or the European Court of Human Rights. As regards administrative tribunals which exercise judicial functions of the state, I have in mind such tribunals as social security appeal tribunals, immigration appeal tribunals or industrial tribunals. They are also tribunals exercising judicial functions of the state. With that explanation I hope that the noble Earl will feel able to withdraw his amendment.
6.30 p.m.
Lord Hope of Craighead: Before the noble and learned Lord sits down, I raised an issue about Schedule 6. I appreciate that is not the matter we are discussing now, and it may not be a matter which can be dealt with immediately, but I would be grateful if the
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point I raised could be attended to because of the possible doubt about a difference in meaning in the two contexts.
Lord Hardie: I apologise to the noble and learned Lord. I would prefer to reflect upon that and come back to it when we discuss Schedule 6, or I may write to the noble and learned Lord on that matter before then.
The Earl of Mar and Kellie: This is a probing amendment. I believe that we have made some progress. We may return to it later. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 138 not moved.]
The Earl of Balfour The Earl of Balfour moved Amendment No. 139:
Page 12, line 21, at end insert—
("( ) A notice required by subsection (8) to be given to a person shall be given at least two weeks before the day on which the proceedings are to take place, or by which the documents are to be produced, unless he waives that requirement.").
The noble Earl said: This amendment seeks to give a witness some time in which to get his papers together. It could be some time since the problem arose, but I feel that a witness must be given some warning. I have suggested that he should be given two weeks in which to get himself together before he appears in any court or before any inquiry. I beg to move.
The Earl of Mar and Kellie: We on these Benches have some sympathy with the noble Earl's amendment but we are concerned as to whether a two-week time delay would be helpful in the event of a witness being required to give evidence during an emerging crisis.
Lord Monson: I, too, have some sympathy with what the noble Earl has said. If someone from Cornwall, Carmarthen or Carrickfergus is summoned to Edinburgh to appear before the Scottish parliament to give evidence, will his travel and accommodation expenses be paid?
Lord Hardie: I would certainly expect that to be the case. That is the normal situation with the citation of any witness to any court. I appreciate that the Scottish parliament will not be a court, but I do not see why it should be exempt from those normal rules. As regards the amendment, I, too, have considerable sympathy with the noble Earl's point. We have no argument whatever with the proposition that the parliament should exercise its powers in a responsible way and that appropriate notice should normally be given. However, I do not accept the amendment for the reason given by the noble Earl, Lord Mar and Kellie. There may be circumstances where there is particular urgency or expediency to require the witness to attend and produce documents much earlier than within two weeks. For that reason it is not appropriate to lay down a period of two weeks' notice in every case.
Clause 24(3) states that there would be a general defence of reasonable excuse. Therefore if a particularly short period of notice was given to a witness to appear

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or to produce a document, he would have the defence that he could not comply for a good reason. I am reminded that Clause 25(4) makes specific provision to allow the parliament to pay expenses of witnesses, as it chooses. Therefore the point raised by the noble Lord, Lord Monson, appears to be covered by that.
Baroness Carnegy of Lour: I hope I have understood all this correctly. If a Minister of the Crown is required to appear before the Scottish parliament, and in the event he is required to be in his own Parliament at Westminster, who wins?
Lord Hardie: In that situation I am sure that the Minister of the Crown would be able to claim parliamentary privilege here and would not be required to attend. However, I anticipate that normal channels would operate and that the Minister of the Crown would advise the Scottish parliament of the difficulty and an alternative date would be set.
The Earl of Balfour: I have considered Clause 24(3) but that concerns an offence that has been committed. That is rather different from what we were dealing with under Clause 23. I want to make certain that a witness has some time in which to produce documents. I rather hoped that the final phrase of my amendment,
"unless he waives that requirement"
might have covered that. Perhaps the noble and learned Lord the Lord Advocate will consider this between now and Report as I feel that a witness should not be expected simply to turn up in court the next day with all his papers. From a practical point of view that is not an easy thing to do. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 139A:
Page 12, line 32, at end insert (", or in a court exercising jurisdiction of the United Kingdom in which the person resides or works").
The noble and learned Lord said: I apologise for not speaking to this amendment earlier. However, I wish to move it and I believe it is competent for me to do so. Even if it were not, I am sure the noble and learned Lord would be willing to address the issue which it raises. The amendment seeks to provide a level playing field for witnesses who are summoned from England, Wales or Northern Ireland to appear before the Scottish parliament, or one of its committees, to give evidence. Clause 23(10) provides that,
"A person is not obliged under this section to answer any question or produce any document which he would be entitled to refuse to answer or produce in proceedings in a court in Scotland".
The purpose of the amendment is to add to that subsection the following words,
"or in a court exercising jurisdiction of the United Kingdom in which the person resides or works".
The fact of the matter is that many will live and work in England and a few will live and work in Wales and Northern Ireland. If such persons were entitled to refuse to answer questions in any proceedings—whether civil
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or criminal proceedings—in the courts of England, Wales and Northern Ireland, they should be accorded the same privilege of being entitled to refuse to answer as is accorded to people who live and work in Scotland and who may be answerable to the courts there. The policy seems entirely valid. The Government recognise in the Bill that the interests of justice require that in certain circumstances witnesses summoned to the parliament should not be required to answer questions. I seek to apply that provision uniformly throughout the United Kingdom. I beg to move.
Lord Fraser of Carmyllie: I support my noble and learned friend's amendment, but with this restriction. I do not know why he requires that it should be only,
"in a court exercising jurisdiction of the United Kingdom in which the person resides or works".
It would seem to me more appropriate if the amendment stopped at "United Kingdom". Perhaps I may explain my point.
I take as an example a particularly vile Scotsman who lives and works in Scotland but travels to a place in the north of England and purchases for the purposes of distribution north of the Border particularly vile child pornography. It is not difficult to think that in those circumstances a Scottish parliament, faced with such a scourge, would decide to examine the issue in order to determine where such pornography was purchased and how it was distributed. One of the first questions that the parliament would wish to ask such an individual would be: where did you get it; from whom did you purchase it? In such circumstances he might also be committing, or solely committing, an offence in England. I can think of other examples where an individual would be committing an offence only in England, and where he would be entitled in those circumstances not to answer the question.
There are two ways to approach this matter. It could be approached in the fashion proposed by my noble and learned friend Lord Mackay, by adding the reference that he is able to decline to answer the question if able to do so in any court in the United Kingdom. An alternative route would be to say that any answer he gave before the Scottish parliament was not admissible in a court of law in any other part of the United Kingdom. The preferable course would be not to restrict this provision merely to Scottish courts but to extend it throughout the United Kingdom. That would be a more appropriate way to arrange matters.
Lord Hardie: The thinking behind this provision was that we considered it right that the parliament meeting in Scotland and making laws for Scotland should, in requiring someone to give evidence, recognise the same rights of refusal as are available to a person in the Scottish courts under Scottish law. To take the example given by the noble and learned Lord, Lord Fraser of Carmyllie, if the individual appeared in a Scottish court and was asked the question there, an issue would arise as to whether he had to answer it. We do not see that

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the rules should differ in any way in relation to the proceedings of the Scottish parliament. Accordingly, we are not minded to accept the amendment.
Lord Fraser of Carmyllie: Before the noble and learned Lord sits down, I shall go away and refine my examples. I can think of a number of instances where I can see, legitimately, the Scottish parliament wishing to investigate a matter that it regards as a social evil, or some broader matter where the only criminal activity identified takes place south of the Border. As I understand the matter, under the Bill as presently drafted if the criminal offence were committed in Scotland, he would not have to answer that question. It would be a matter on which he was entitled to refuse to answer in Scotland.
It would seem more appropriate that if he has the right to refuse to answer that question in any court in the United Kingdom, he should be entitled to refuse to answer it before that part of the Scottish parliament that wishes to ask him questions. If the noble and learned Lord wants me to go away and refine my examples, I have little doubt that, without too much fertility of imagination, I shall manage that.
Lord Mackay of Drumadoon: While my noble and learned friend is refining his examples, I think I should take away the amendment and refine the drafting. Clearly, certain words were left out, as will be obvious to more than one noble Lord.
I did not feel that the noble and learned Lord the Lord Advocate gave a full answer. I hope that while my noble and learned friend and I are reflecting so, too, will the Government. This seems a perfectly innocuous suggestion. Time and again Ministers have said that they are prepared to look constructively at ideas which do not in any way attack the integrity of the Bill. This seems a very good example. I hope that when we return to the matter on Report, it may be possible to reach agreement on all sides. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 agreed to.
Clause 24 agreed to.
Clause 25 [Witnesses and documents: general]:
6.45 p.m.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 140:
Page 13, line 22, after ("oath") insert ("or affirmation").
The noble and learned Lord said: This is a small amendment which seeks to make it clear that a person taking the oath in terms of Clause 25 can either take the oath or affirm.
I fully accept that under Section 5(4) of the Oaths Act 1978 the definition of "oath" includes "affirmation". Therefore, as a matter of law this amendment could no doubt be said to be unnecessary. I nevertheless believe that it would be sensible to make it clear on the face of the Bill that, when the question of administering an oath arises, it can be either an oath or an affirmation. Lest
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I need support for that constructive suggestion, I point to the provisions of Clause 20 of the Government of Wales Bill, where that is made clear. Subsection (2) states:
"The oath shall be taken (or the affirmation made) before a person appointed by the Assembly".
What is good enough for members of the Welsh assembly would seem sensible for members of the Scottish parliament. I beg to move.
Baroness Carnegy of Lour: Wales apart, in this case it is very important that the Bill should be clear to ordinary people. One can be fined up to £5,000 for refusing to take the oath. It would be terrible if there were a misunderstanding because someone did not know that he could affirm, perhaps because he had not read the 1978 Act. That is a point on which the noble and learned Lord should be flexible.
Lord Hardie: As the noble and learned Lord, Lord Mackay of Drumadoon, explained, it is unnecessary to have a reference to "affirmation" in terms of the Oaths Act 1978. The Government of Wales Bill deals with a different type of assembly. But for the Scottish legislation, we have taken to heart the suggestions of noble Lords opposite that we should not put in unnecessary provisions.
Lord Mackay of Drumadoon: If the noble and learned Lord the Lord Advocate expects me to believe that, not having heard that very cogent argument from myself and the noble and learned Lord, Lord Simon of Glaisdale, on the first day of Committee, he has another think coming.
I regret once again that a small suggestion which would make clear to the people of Scotland the procedure to be followed is rejected out of hand. I cannot see how it makes any difference whether one is a member of the assembly in Wales or the parliament in Scotland as regards this small matter. One begins to gain the impression that on even the smallest of details this Government, who claim to be a listening Government, are not paying any attention whatever to what is said in this Chamber. There are more important matters than this on which to divide the Committee. However, it is a matter of regret that I have not received a more constructive response on such a small issue. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 agreed to.
[Amendment No. 141 not moved.]
Clause 26 [Participation of the Scottish Law Officers]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 142:
Page 14, line 8, at end insert—
("(4) Any decision by the Lord Advocate or the Solicitor General for Scotland to decline to answer a question or produce a document under subsection (3) shall not be reviewable by any court.").
The noble and learned Lord said: This is a small but important amendment to Clause 26, which deals with the participation of what are described as "the Scottish Law Officers" in the deliberations of the Scottish parliament and provides in subsection (3) that:
"The Lord Advocate or the Solicitor General for Scotland may, in any proceedings of the Parliament, decline to answer any question or produce any document relating to the operation of the system of criminal prosecution in any particular case if he considers that answering the question or producing the document—

(a) might prejudice criminal proceedings in that case, or

(b) would otherwise be contrary to the public interest".

What is set out in subsection (3) accords with what I understand to be the current practice which successive Lords Advocate have adopted in this Parliament, whether they have been Members of your Lordships' House or Members of another place, when they have been asked to respond to questions about individual criminal cases or the operation of the criminal prosecution system. The practice that has been adopted is reflected in the standing orders of another place and in the remit which has been given to the Parliamentary Commissioner for Administration. Therefore, I warmly welcome what I find in subsection (3) of Clause 26, which would apply whether or not the Lord Advocate is to be devolved, an issue which we shall address some days hence.
The protection which that subsection provides is linked to other protections which the Lord Advocate enjoys in his role as an independent public prosecutor. The courts in Scotland, and in particular the High Court of Justiciary, have over the years consistently declined to inquire into or to review any decision by the Lord Advocate, or one of his Advocate Deputes acting in his name, or by the procurator fiscal as to whether an individual accused should be prosecuted, the charges upon which a prosecution is brought or the charges on which a restricted plea of guilty has been accepted by the Crown.
Linked with that has been a refusal on the part of the court to expect the Lord Advocate to give reasons for his decision, a stance which has been widely welcomed in many quarters for protecting the interests of potential accused, the accused themselves, the victims of crime and witnesses, whether or not they are cited to give evidence in court. It is also welcomed because it protects the confidentiality of the criminal investigations carried out by the police force and the Lord Advocate's consideration of the evidence which has been placed before him by the police and other criminal investigation agencies such as Customs and Excise and others.
It was established during the debates on the Human Rights Bill that under certain limited circumstances, contrary to the practice which I have described, decisions of the Lord Advocate will be reviewable against convention rights. I believe that to have been a significant change in the practice of the criminal law in Scotland, but it is not necessary to revisit that issue today. I accept that it may happen in occasional cases, and I accept that, when it does, the Lord Advocate may have to give reasons for his decision, and indeed may be required by the court to do so to enable the court to address the issue as to whether or not the convention
784
rights of an individual have been infringed. They could, of course, be the convention rights of an accused person or those of his alleged victim.
It nevertheless seems appropriate to try to keep the role of the courts in this matter as tightly controlled as possible. That is the purpose behind the amendment. I have little doubt that the provisions set out in subsection (3) will be strictly administered by the presiding officer and his deputies. I have little doubt that they will be respected by the members of the Scottish parliament who seek to question the Lord Advocate or the Solicitor-General for Scotland. But in many instances those questions which are asked will have originated from constituents of the members of the parliament. Indeed, with regional members, they need not even be constituents. Whether they be alleged victims or accused persons, they will go to a member of the parliament and ask for the matter to be raised. If the Lord Advocate or the Solicitor-General decides, for perfectly valid reasons, not to answer the question, while the member of parliament may accept that, the victim or the accused may not.
I have a concern that, faced with a refusal in the open court of parliament by the Lord Advocate to answer the question, the disgruntled victim or accused may then go off to the courts. The purpose of the amendment is to cut off that route and to protect, as far as humanly possible, the independent role of the public prosector in Scotland which subsection (3) has been drafted to protect. It is a small amendment, but I believe it is an important one. I beg to move.
Lord Hardie: The amendment raises an important point, on which we have been interested to hear the views of the noble and learned Lord, Lord Mackay of Drumadoon. Clearly there is a delicate balance to be struck between the independence of the Lord Advocate in exercising his prosecution function, an independence which both the courts and Parliament recognise, and his political accountability. As the noble and learned Lord observed, Clause 26 is one of a number of provisions in the Bill which safeguard the independence of the Lord Advocate and the Solicitor-General. However, the Lord Advocate will be politically accountable to the parliament.
There are some circumstances in which it will be right and proper for the Lord Advocate to answer questions and give information about particular cases. I would cite as a precedent the former Lord Advocate, the noble and learned Lord, Lord Mackay of Clashfern, who explained to this House in 1982 the reasons why a case had not been prosecuted. That case became known as the Glasgow rape case.
However, it is also right that the Lord Advocate and the Solicitor-General should be given a discretion to decline to answer questions or to produce documents relating to the operation of the system of criminal prosecution in a particular case if he considers that it might prejudice criminal proceedings in that case or would otherwise be contrary to the public interest to disclose the information. It should clearly be within the

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discretion of the Lord Advocate and the Solicitor-General to decide when to decline to answer a question or to produce a document on these grounds.
The noble and learned Lord raises a very interesting point. It is an aspect of the wider question as to the extent to which anything said or done in Parliament should be the subject of judicial proceedings and also of the wider question, to which the noble and learned Lord, Lord Hope of Craighead, referred in previous proceedings, in relation to the question of interim interdict.
I agree that this is a matter which needs careful reflection. I can assure noble Lords that the Government are considering the matter at present. We shall look carefully at the point raised by the noble and learned Lord to see whether any amendment to the Bill is needed which is consistent with what is in the Bill. I hope that the noble and learned Lord will accept that we are a listening government. With that explanation, I trust that the noble and learned Lord will withdraw his amendment.
7 p.m.
Lord Fraser of Carmyllie: I was hoping that the noble and learned Lord would give a much more robust answer and indicate that in no circumstances whatever might the decision of the Lord Advocate and Solicitor-General be reviewable in a court of law. But I can understand his caution.
I am sure that my noble and learned friend and the Committee are grateful to the Minister for indicating that this matter will be reflected upon further by the Government. However, the one aspect of it that I hope will be clearly within the focus of their reflection is the difficult point raised by my noble and learned friend in relation to human rights legislation. As we are all grappling to understand what will be the potential extent of the right to have decisions by the Lord Advocate and Solicitor-General reviewed in courts, perhaps I can put the noble and learned Lord on notice that when we return to this matter, we will expect a specific answer on that issue.
Lord Mackay of Drumadoon: I wish my advocacy was always as effective. I am genuinely grateful to the noble and learned Lord for a constructive response. This is an important issue. It is a question of balance. I believe that at the present time the balance is not quite right. However, I am reassured that the matter will be looked at again and on that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 26 agreed to.
Clause 27 [Acts of the Scottish Parliament]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 143:
Page 14, line 24, leave out ("section") and insert ("Act").
The noble and learned Lord said: In moving Amendment No. 143, I shall speak also to Amendments Nos. 145 and 146. I understand that the noble Lord, Lord Steel of Aikwood, wishes to add Amendment No. 144 to the grouping and I have no objection to that.
Amendment No. 143 is a small drafting amendment to Clause 27(7) and its terms are self-explanatory. It seeks to delete the word "section" and substitute the word "Act" to make clear that nothing in the proposed Act, not just in the proposed section, affects the power of the United Kingdom Parliament to make laws for Scotland.
Amendment No. 145 is again a small drafting amendment and seeks to add, at the end of line 25 of subsection (7), the words,
"which may not be amended or repealed by the Scottish Parliament".
In other words, it is proposed that the Bill, when it becomes an Act, makes it clear to all those who read it—not just lawyers, but also laymen—that this Parliament retains the right to make laws for Scotland which it can entrench in the sense that they are laws which cannot be amended or repealed by the Scottish parliament.
That may have some practical implications. I do not in any way wish to embarrass the noble Lord, Lord Sewel, by reminding him of the fact that this Chamber and another place have been engaged in a form of ping-pong over the past few weeks. It is not impossible to imagine that a few years down the line another form of ping-pong might emerge, though it may not be quite as fast a game as the one played in this Palace, where one stroke is played in one Chamber one day and the return stroke in the other Chamber the next day.
It is not impossible to imagine, even on the question of student fees, legislation emerging from the Scottish parliament which is unacceptable to a British government, it being in conflict with certain laws passed here. And who knows what may happen thereafter? That is a constitutional possibility. The second amendment would make clear to those who read Clause 27(7) that there can be no doubt that the final say will rest with this Parliament.
In Amendment No. 146 I set forth three additional subsections to be added to Clause 27; that is, subsections (8), (9) and (10). These are also self-explanatory. The new subsection (8) is based on provisions that one finds in the Human Rights Bill and is to the effect that,
"So far as it is possible to do so, Acts of the Scottish Parliament and any instruments made under an Act of the Scottish Parliament must be read and given effect in a way which is compatible with Convention Rights".
The new subsection (9) will state that,
"So far as it is possible to do so, Acts of the Scottish Parliament and any instruments made under an Act of the Scottish Parliament must be read and given effect in a way which is compatible with primary legislation enacted by Parliament".
For the same reason one finds the provision in the Human Rights Bill, it is a wish to resolve any conflicts between constructions which are compatible with convention rights and those that are not by favouring the former in preference to the latter. It seems to be sensible to have a similar rule for resolving conflicts between the construction of Acts of the Scottish parliament on the one hand and primary legislation passed by this Parliament on the other in a way which would avoid recourse to courts where that can be prevented.
It is a reasonable presumption that, when the Scottish parliament is up and running, it will enact legislation which is in conformity with the existing body of statute law which, in the first years at least, will have been enacted entirely by this Parliament. It must be the presumption that unless it explicitly decides to repeal legislation passed by this Parliament as a matter of policy, it does not intend to do so by implication. That is what the new subsection (9) seeks to achieve.
The new subsection (10) is again relatively self-explanatory. It provides that,
"In the event that it is not possible to read and give effect to an Act of the Scottish Parliament or an instrument made under an Act of the Scottish Parliament in a way which is compatible with an Act of Parliament, then the provision of the Act of Parliament shall prevail".
I believe that they will be useful additions to Clause 27. I beg to move.
Lord Renton: I wish to support my noble and learned friend with regard to these three amendments. We have now reached the three most important clauses of the Bill—I am glad to see the noble Lord, Lord Sewel, nodding in agreement—which define the legislative powers of the Scottish parliament. The detail is vast—around 30 pages of the Bill are involved—and is largely contained in Schedules 4 and 5.
As a background to the amendment moved by my noble and learned friend, I draw attention to Clause 27(7). That is to be welcomed because it makes it abundantly clear that the Parliament of the United Kingdom is to remain sovereign in legislative matters. In order to put that beyond doubt, we should accept the amendment which seeks to replace the word "section" by the word "Act" as proposed by my noble and learned friend.
As my noble and learned friend says, Amendment No. 145 is simply a drafting amendment. But Amendment No. 146 is fundamental for the removal of doubt. In England and Wales, as well as in Scotland, there will no doubt be controversy from time to time when it may be alleged that a conflict exists between the national law and the European Convention on Human Rights. It is right therefore that we should include the new subsection (8) in order to remove any such doubt. The new subsection (9) and the new subsection (10) are essential in order to clarify the matter. These three clauses are necessarily very complicated. It is right that Amendment No. 146 should be there in order to clarify matters.
Lord Kirkhill: I wish to support Amendment No. 146 and in particular subsection (8) which is contained within it. I should explain why I give my support. The position in the meantime, at least until 1st November, is that in Strasbourg there is a part-time commission and a part-time court. The countries which at present incorporate the European Convention on Human Rights are, in terms of their constitutional courts, fairly relaxed about the ultimate decision-making which occurs. They are fairly relaxed because at the moment the commission weeds out a good many of the complaints laid before it and the part-time court. Subsequently, because the court
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is part-time, it takes an inordinate length of time to reach a conclusion. The part-time commission and the part-time court will cease and a new full-time court will come into being. Clearly, it will form into chambers and so on, and there will be an element of vetting. Nevertheless, the decision-making process will speed up enormously. This country, having now incorporated the European Convention on Human Rights into its domestic law, will be faced with quick decision-making, or fairly quick decision-making, and will be asked for reasonably quick implementation. For that reason alone, it would seem to be sensible to accept Amendment No. 146.
Lord Hope of Craighead: I share the views of the noble Lord, Lord Kirkhill. However, there is a provision in Clause 28—subsection (8)—which, it might be said, has precisely the same effect as subsection (8) of the amendment. No doubt the Minister will make that observation in due course.
The reason for my intervention is to put in a plea that the various rules which the court is being asked to apply in construing legislation both in this Bill and in the Human Rights Bill be cast in the same terms. There is also a provision in similar terms in the Human Rights Bill. When I last saw it, it was not in identical terms. It would be helpful if the same terminology were to be used.
Subsection (9) of the amendment raises a point which might be worth considering. The width of the subsection is such as to give rise to the possibility that this Parliament might legislate on a matter such as education for England and Wales in a way that was not compatible with legislation which the Scottish parliament might wish to enact for Scotland. If the amendment is directed to primary legislation enacted by Parliament relating to Scotland, the possibility of collision could arise and may need to be addressed. However, as the clause is phrased at the moment, it seems so wide as to be likely to give rise to great difficulty about the powers of the Scottish parliament.
7.15 p.m.
Lord Sewel: I think it is better that we have a separate debate on Amendments Nos. 143, 145 and 146 and then have another debate on Amendment No. 144. Amendment No. 144 heads off in a totally different direction.
It was said that Amendment No. 145 is a relatively minor amendment—almost a drafting amendment. I do not share that view. Amendment No. 145, as it is written, strikes at the very heart of the devolved settlement. Let me make it clear at the outset that I consider that to be a major issue of principle in the legislation.
The Government cannot accept any of the amendments, although there may be some opportunity on Amendment No. 146 at least to seek the views of the parliamentary draftsman on the points that were made by the noble and learned Lord, Lord Hope of Craighead. Amendment No. 143 proposes an entirely unnecessary amendment to Clause 27(7). Clause 27 makes it clear

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that the parliament will be able to pass laws. Subsection (7) of that clause then goes on also to make it clear that the power thus conferred does not affect the powers of this Parliament to make laws for Scotland. There is therefore no need at all for any further clarificatory provision.
As I said, I consider Amendment No. 145 to be of significant importance because it would strike at the heart of the Scottish parliament's ability to enact legislation. The amendment would appear to be intended to prevent the parliament from amending or repealing legislation passed at Westminster even where that legislation relates to devolved matters. This would effectively undermine the devolution settlement itself. The Scottish parliament must have the competence to amend legislation passed at Westminster in respect of devolved matters and to the extent permitted by Schedules 4 and 5 in relation to reserved matters. If not, then I cannot see how devolution can work.
After all, we are creating a devolved parliament. We have to give it the competence to get on with the job of legislating in its appropriate areas. The Scottish parliament will be able to develop and build on the foundation of legislation already established at Westminster. In a way, that is its legislative inheritance. It should also be able to develop and adapt any future legislation which may, for good reason, be enacted by this Parliament.
Accepting the noble and learned Lord's amendment would fix any legislation enacted at Westminster in aspic. It would remain constant, unmoveable, unmodifiable, unamendable and unchangeable. It could not be changed by the Scottish parliament even if circumstances changed and consequential amendments were needed. Is the noble and learned Lord saying that the parliament should have no power to amend existing legislation on, for example, planning, housing or education because they are covered by legislation enacted at Westminster? That is what I meant when I said that the amendment as presently drafted strikes at the very heart of the devolved settlement.
The whole point about devolution is that this Parliament is entrusting the Scottish parliament to make laws for Scotland in respect of the devolved matters. That is the proposal which was endorsed by the Scottish people in the referendum and that has been the basis of this legislation. If there are disagreements about what matters the parliament should be able to legislate on, those should be addressed in the context of amendments to Schedules 4 and 5 to the Bill, not by legislating for a blanket ban on the parliament's legislative competence.
The noble and learned Lord expressed fears about legislation being enacted in Scotland which would not be passed at Westminster. But that is one reason why we are establishing a Scottish parliament, so that it can actually develop Scottish solutions to Scottish problems, not following Westminster all the time and not being bound by how Westminster wishes to legislate. Again, that is the underlying philosophy and basis of the devolved settlement.
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The noble and learned Lord suggested that we could end up in a situation where legislation was constantly being subjected to the ping-pong approach, constantly being amended by each parliament because they could not agree on the right way forward.
Lord Mackay of Drumadoon: I am grateful to the Minister for giving way. I am not offering any criticism but he has completely misunderstood the purpose of Amendment No. 145. I have no intention of pressing it to a Division today. But I shall have to look carefully at what he has said because the explanation he has given for rejecting the amendment flies in the face of provisions set out in Schedule 4 as it is currently framed and as it is shortly proposed to be amended in terms of a government amendment.
I give the example of student fees. If a Scottish parliament were to enact legislation that it was illegal to charge students from England more in fees than students from Scotland for studying the same course, and if that conflicted with the wishes of the British Government as to the manner in which they funded English students attending universities throughout the United Kingdom—which I understand is one of the reasons lying behind the Government's attitude in recent weeks—is the Minister saying that, as a matter of constitutional theory, it would be impossible for this Parliament to enact legislation which had the legal effect of overruling the Act of the Scottish parliament making it illegal to charge English students more than Scottish students? If the Minister is saying that, I do not understand how that can be consistent with the supremacy of this Parliament, which I do not understand to be infringed in any way by the constitutional settlement which the Government have brought forward, which I fully accept has been overwhelmingly endorsed by the Scottish parliament, and which I accept in putting forward my Amendment No. 145.
It might be helpful if the Minister addressed that practical example. He has clearly misunderstood my amendment. I want to make it quite clear that I do not understand the answer which he has given because the amendment recognises that this Parliament would retain the right to make laws for Scotland which may not be amended or repealed by the Scottish parliament. That does not mean that every Act passed by this Parliament falls into that category or indeed that any Act it might pass in the future fell into that category. All it recognises is the right to entrench certain provisions, which is one of the matters addressed in Schedule 4, and rightly so.
Lord Mackie of Benshie: We, too, completely misunderstood the amendment. If it is being said that it is a drafting amendment, it appears to us to strike at the very root of the Bill.
Lord Sewel: Perhaps I may read out what the effect of the noble and learned Lord's amendment would be. Clause 27(7) would read:
"This Act does not affect the power of the Parliament of the United Kingdom to make laws for Scotland, which may not be amended or repealed by the Scottish parliament".

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To me that seems to create what has been described in the phrase used earlier in this Committee: namely, a degree of ambiguity that legislation passed by this House on devolved matters relating to Scotland could not be amended or changed by the Scottish parliament. That is the danger that the noble and learned Lord is getting into.
As regards the general point he made about the ping-pong problem, Clause 27 makes it clear that the devolution of legislative competence to the Scottish parliament does not affect the ability of Westminster to legislate for Scotland even in relation to devolved matters. Indeed, as paragraph 4.4 of the White Paper explained, we envisage that there could be instances where it would be more convenient for legislation on devolved matters to be passed by the United Kingdom Parliament. However, as happened in Northern Ireland earlier in the century, we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament.
If problems do arise the solution is for the Scottish executive and the United Kingdom Government to resolve the matter through political dialogue. That is what differences between mature parliaments and executives will be concerned with. That is what happens in other political systems. I cannot believe that it is beyond our wit to develop such a convention. That is much more suitable than through the business of legislative ping-pong or tennis. If this Parliament thought the situation had got to a stage of total impasse, it would be possible to look again at the Bill and enact primary legislation affecting the reserved matters. That is the ultimate route. There should be mature political dialogue to resolve a difference, which is better than legislative tennis. If an impasse results there is the ultimate fallback position of looking at Schedule 5 and changing the devolved powers.
Turning to Amendment No. 146, we fully agree with the intention behind the new Section 27(8). It is clearly right to ensure that the courts should, in cases of doubt, tend towards a stricter interpretation of the effect of Acts of the Scottish parliament, thus reducing the scope for practical problems in consequence of the declaration of an apparently valid ASP as ultra vires. But the new subsection is simply unnecessary, as it would duplicate provision already made by Clause 28(8) and (2). Read together, these require that a provision of an Act of the Scottish parliament is to be construed so far as possible as within legislative competence and therefore as being compatible with the incorporated European convention rights.
I refer to the point made by my noble friend Lord Kirkhill, who is in his place. Government Amendment No. 164, to which we shall come later, seeks to adjust the wording of Clause 28(8) to make its meaning absolutely clear. As I said, I accept the point made by the noble and learned Lord that there may well be an opportunity to make absolute consistency in phrasing. We shall discuss that point with the parliamentary draftsman.
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The new subsections, Clause 27(9) and (10), are in fact in a different category. The devolution proposals which the Scottish people endorsed last year were for a parliament able to make primary legislation by providing for Holyrood legislation to be read as being compatible with Westminster legislation or if that were not possible, for the latter to prevail. These new subsections would subvert that policy by rendering the Scottish parliament unable to make distinctive primary legislation except where there was no existing Westminster enactment. I believe that that would be a clear nonsense. In those circumstances I ask the noble and learned Lord to withdraw his amendment.
Lord Mackay of Drumadoon: I was interested to hear what the Minister had to say about political dialogue being the way to resolve disputes between the new Scottish institutions, the Westminster Parliament and the United Kingdom Government. That approach will be very welcome when we come to consider in due course the provisions of Clauses 33 and 54.
As I indicated when I intervened as the Minister was replying, I do not intend to divide the Committee on these amendments at this stage. However, I repeat what I said earlier. The way in which the Minister began to respond, particularly to Amendment No. 145, failed to acknowledge what I understand to be an inevitable consequence of the supremacy of parliament, that not only will it be competent to enact legislation relating to devolved matters in the future, but that it may be appropriate in rare cases to make it clear that this further legislation cannot be amended by the Scottish parliament. Perhaps we could develop this argument later when we discuss the ability of the Scottish parliament to amend the provisions of Clause 89.
I listened with interest to what the Minister said about subsections (9) and (10) which Amendment No. 146 seeks to insert. There remains, in my mind at least, some concern about how a court will resolve differences between an Act of this Parliament and an Act of the Scottish parliament dealing with similar issues, but not exactly the same point. I can envisage problems of construction as to the way in which such matters are resolved in relation to convention rights under subsection (8). There should be some scope for seeking to guide the courts as to the way in which this Parliament wishes them to approach the problems on which subsections (9) and (10) focus. Although the noble and learned Lord, Lord Hope, was slightly critical of the drafting of subsection (9), which I seek to add by way of Amendment No. 146, I understood him to support the general principle that it would be preferable to set out on the face of the Bill how the legislation of the new parliament is to be construed.
We have had a useful debate. I suspect that noble Lords on all sides will read with interest what has been said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.30 p.m.
Lord Steel of Aikwood Lord Steel of Aikwood moved Amendment No. 144:
Page 14, line 25, at end insert ("in relation to reserved matters").
The noble Lord said: In moving Amendment No. 144, I should like first to point out that Clause 27 as a whole was never discussed in the other place because of the way in which the timetable Motion fell, and it is therefore right that we should pay closer attention to its provisions. Curiously enough, however, it so happens that there was a Division in the other place on an amendment identical to Amendment No. 144, but without any discussion. That strikes me as peculiar, but it was the way in which the timetable Motion fell.
Subsequent clauses which we shall reach—presumably after a welcome break—deal with the correct limits which the Bill seeks to set down on the powers of the Scottish parliament. In other words, a whole series of clauses and schedules defines what the parliament may not do and where it may not trespass on the responsibilities of Westminster.
My amendment seeks, at the end of line 25 on page 14, to set a similar limit on what Westminster may not do within Scotland. It seems peculiar to leave subsection (7) to read:
"This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland",
without making it clear that in future, once the Scottish parliament comes into being, we do not expect the Westminster Parliament to make laws for Scotland except in those matters which will be set out as "reserved matters" in this Bill. My amendment seeks to set out that boundary more clearly.
As the Minister said, various mechanisms are set out in the Bill to deal with disputes over the rights of the Scottish parliament and of the Westminster Parliament in future. It is inevitable that there will be some such disputes. However, what I do not understand, and the question that I should like to ask the Government, is: if we do not pass my amendment, what is to stop the Westminster Parliament attempting to legislate on precisely the same ground as the Scottish parliament which we are now setting up? I do not want to go into the example of student fees, which is admittedly cross-border and complicated, so perhaps I may take another example at random. Let us suppose that the Scottish parliament took it into its head to decide that, for various good reasons, there should be a tax on caravans in Scotland. That would be within its competence. Are we then saying that the Westminster Parliament could suddenly, a few months later, say, "There shall not be a tax on caravans in Scotland"? That is a recipe for continued ping-pong of a new variety, using Hadrian's Wall as the net. That does not seem to be a sustainable and arguable position.
My final point is that we are dealing here with the theology of sovereignty. This is where I disagree with the noble Lord, Lord Renton. I must remind the Committee that the whole of this legislation is based on the findings of the Scottish Constitutional Convention and that its work was in turn based on the Claim of Right, which sought to assert yet again in Scotland that the people of Scotland are sovereign. That is a
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completely different concept from that of the sovereignty of parliament in England and Wales. Although we cannot create two sovereignties in any devolved structure, nonetheless we want the Bill to reflect as far as possible the spirit of the Claim of Right which made it clear that the Scottish parliament, when it comes into being, should be sovereign in relation to internal matters in Scotland. To leave what I see as a loophole (by which Westminster could at any time override the legislation of the Scottish parliament) is a mistake. I believe that adding the words,
"in relation to reserved matters",
is the correct solution to this dilemma. I beg to move.
Lord Gordon of Strathblane: Before the noble Lord sits down, I wonder whether he would consider rephrasing his amendment to take account of the point to which the Minister referred; namely, paragraph 4.4. of the White Paper which states that there may be instances, such as international obligations, which touch on devolved as well as reserved matters, and it may therefore be convenient for Westminster to legislate for both. If we could narrow Westminster's power to those areas, we might be satisfied on all sides.
Lord Steel of Aikwood: My quick answer to the noble Lord is that I am, as he knows, an eminently reasonable man and I would, of course, be willing to adjust the amendment in that respect. There is no desire on my part to have the Scottish parliament coming into conflict with international obligations in a way that muddies the waters here at Westminster.
Lord Renton: I wish to assure the noble Lord, Lord Steel of Aikwood, that there is no real conflict between us. We have reached a rather extraordinary position. The noble Lord was wise to move his amendment because, obviously under Clause 27, the Scottish parliament is given various powers which will be defined in an adverse and negative way by deciding what matters are reserved and what matters are not. It would frequently be confusing and chaotic if the Scottish parliament legislated in one way and the Parliament of the United Kingdom legislated in a different and conflicting way. To the extent that the noble Lord's amendment would resolve that matter, it deserves serious consideration.
Baroness Carnegy of Lour: Except that this amendment seems to conflict with what the Minister said earlier to the noble Lord, Lord Gordon! It seems to me that something has to happen to subsection (7) or people will simply read it as it is, as did my noble friend Lord Lang at Second Reading in his speech which contained much anxiety about the parliament. My noble friend read out those provisions and they struck me as comprising an extraordinary statement by which ordinary people, if they read it just as it is, will be most surprised.
The sovereignty of Westminster has been maintained by devolving matters to the Scottish parliament. Westminster has devolved that power. It has kept sovereignty. To an extent, the people of Scotland can

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see that they have regained an element of sovereignty in that matters have been devolved. Perhaps the people of Scotland will pick up on that point. It certainly does not match the Claim of Right in any way. It can be put to the people of Scotland that matters have been devolved to them for them to decide.
However, it turns out that matters may not have been devolved because some matters may be dealt with by both parliaments. The Minister is living in fairyland—he is a politician and I am sure that he knows that—if he thinks that two parliaments of different political persuasions will settle any conflict on such matters by mature discussion. That is not the way that the political world works. The Government must deal with this in some way. I do not know what the answer is but they must do something.
Lord Fraser of Carmyllie: I am not in the least surprised that there was a Division on this matter in another place. This apparently inconsequential amendment reveals a fault line between the Government and other participants in the constitutional convention that is incapable of being reconciled. The sooner that is understood the better and we can reach a proper understanding of what is being put forward in this legislation and its limitations.
If one turns to subsection (7) one finds an unbroken line going all the way back to Professor Dicey and all those who followed his constitutional tradition. This Parliament is reserving to itself the right to make laws about anything and everything in Scotland. It retains the totality of the sovereignty that it presently enjoys. It is saying in an Act of the Westminster Parliament that it will allow these matters to be dealt with in a devolved fashion and it can at any time and in any place alter that. This Bill does not provide a set of entrenched constitutional changes that cannot be changed by Westminster. I do not know whether the Government are particularly pleased by this observation, but I happen to believe that they are right to approach the matter in such a fashion. But it demonstrates the fundamental difference that has arisen in this case.
The noble Lord, Lord Steel, has said repeatedly in this Chamber and elsewhere that in Scotland there is a significantly different basis of sovereignty. To say that sovereignty is vested in the people is rather crackpot constitutional theory. Where else in the United Kingdom is sovereignty ultimately vested other than in the people? Sovereignty is expressed in what happens in the House of Commons and in this Chamber. Sometimes I have very considerable sympathy for the observations of the very great Lord President Cooper in McCormack v. HE Advocate which have been used as a mother-lode for every curious constitutional argument that I have ever heard deployed in relation to Scotland.
I suggest to the Government that they make absolutely clear that Clause 27(7) is the central piece of this legislation that spells out clearly the relationship between the Westminster Parliament and the Scottish parliament. The sooner that is clearly understood the sooner we can set about examining very carefully these most important provisions in the Bill and determine whether the line that the Government have drawn
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between what is to be devolved and what is to be reserved is appropriately drawn. There may be circumstances in which it is more desirable—this may surprise some noble Lords—to move some matters that are presently reserved to the Scottish parliament and to draw back other powers. We must reach an understanding as to what is at issue rather than engage at great length in the constitutional basis of the establishment of the Scottish parliament.
7.45 p.m.
Lord Hope of Craighead: This was a point to which I attempted to draw attention in my speech at Second Reading. There is a great deal of force in the points that have been raised by the noble and learned Lord, Lord Fraser of Carmyllie. The basic principle as I understand it is that the Parliament at Westminster cannot abandon its own sovereignty. One may even say that subsection (7) is unnecessary because it simply states the obvious. It is absolutely fundamental to the whole arrangement that the Parliament at Westminster can take away what it gives at any time. That must be the basis on which the arrangements for devolution proceed.
Lord Desai: We should make clear that we are intending to devolve power, not create a federation. That is the crucial distinction. Perhaps I may refer again to the constitutional reform debates on India in this Parliament. The Government of India Act 1919 created what was called provincial dyarchy. Some subjects were reserved and some subjects were devolved. What is being proposed is that on devolved subjects the Scottish parliament can legislate but it cannot do so on reserved subjects. However, Westminster can legislate on all subjects. That is the principle of sovereignty. Whatever the Scottish convention may or may not have done, it did not win sovereignty in a battle. There is no war. We are devolving power within the context of Westminster, and therefore Westminster cannot give up any of that power.
Lord Mackie of Benshie: We accept that this Parliament is sovereign, but if it passes an Act devolving power to Scotland it can remove that power only by another Act. This Parliament cannot play games with powers that it has already devolved.
Lord Kingsland: The noble and learned Lord, Lord Hope of Craighead, is absolutely right. The sovereignty of Westminster is inalienable even by Westminster. The question raised by Clause 27(7) is whether we need to say it. We had precisely the same problem with Stormont in 1921. Save for one occasion, which ended almost in political farce, there has been no attempt by Westminster to interfere with the powers devolved to Stormont. Indeed, there has been a rule in another place that matters dealt with by Stormont are not touched upon if they fall within the powers not reserved. Since it is implied in our constitution that Westminster will have the power, if necessary, to pass any enactment it likes in Scotland, whether or not it is

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contained as a reserve power in this Bill, there is absolutely no necessity to rub it in. Therefore, I believe that Clause 27(7) is otiose.
Lord Graham of Edmonton: Sock it to them!
Lord Sewel: I do not believe that it is a matter of socking it to anybody at this stage. This has been an important and valuable debate. The Government's defence of Clause 27(7) is that they believe it is an essential constitutional statement of the nature of the devolved settlement. That is the whole business of devolution as opposed to other forms of constitutional settlements. If we do not recognise that from the start we go down the very seductive path that the noble Lord, Lord Steel of Aikwood, invites us to tread and come close to, if not actually to arrive at, a destination called federalism. That is not what this Bill is about. This is designed to put in place a devolved settlement which was the product of the constitutional convention which the noble Lord, Lord Steel, served with distinction. That was put before the people of Scotland in the White Paper and it was endorsed by them.
It was never our intention to create a federal settlement. I understand that that may be the long-term objective of noble Lords on the Liberal Democrat Benches but that is not what this Bill is about. This Bill is about the establishment of a stable and secure devolved settlement within the Union. On that basis sovereignty rests with this Parliament. There is no escape from that and no attempt to duck it. We make that point explicit in the Bill in Clause 27(7). There is no possibility of having any form of dual sovereignty. That is not a concept that is capable of any rigorous scrutiny.
It is strange that in arguing for this particular type of arrangement the noble Lord, Lord Steel, asks the Committee to take on a very old fashioned and (if I may use the word) conservative definition of federalism. It is a very early United States model based on a layer-cake form of dual federalism. As we know, US federalism has changed from that rigid separation between the federal government and the government of the states. That was found not to be a workable basis upon which a modern government can exist. It has evolved over time. We do not propose federalism; we propose devolution.
To take up another point, the solution is simple. It is before us in what this Parliament—I say this to the noble Baroness, Lady Carnegy—achieved following the Government of Ireland Act. Basically the conventions were established that this Parliament would not become involved in those matters which had been devolved to Stormont. That is the way in which we properly and rightly deal with and solve those issues.
Lord Molyneaux of Killead: Perhaps the Minister will give way for a moment because he has tempted me to comment. The fault did not lie in the structures of the devolution to Stormont. The Stormont departments worked well. They delivered an excellent service to the people who elected them; for example, in the field of
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agriculture we had the computerisation of animal health which saved us from BSE and so forth. It worked well in education and health and many of the fields which are now being considered for devolution to Scotland.
I am not certain that Members of this place or the other place fully realise how their powers will be curbed. A noble Lord on the Front Bench some weeks ago, when asked whether Scottish Peers and presumably Scottish Members of Parliament would be able to ask Questions about matters which had been devolved to the parliament, to my amazement assured us that of course they would be able to ask Questions. I am sorry to have to disillusion him. The Table Office would have something to say about that. When I came here in 1970 I was not permitted to table Questions on anything other than defence, foreign policy, and an obscure section relating to imperial pensions.
When Stormont was abolished that all came back into our lap for two years until the Faulkner government were put in place. I remember innocently going down to the Table Office with three or four Questions relating to different departments and being told, nicely but firmly by the young clerk, "I am sorry, sir, but you cannot have any jurisdiction or say on that".
It was said that if there were a conflict between Parliament here and the parliament in Scotland, it could be resolved by political dialogue. I am sorry to say that when it came to an internal dispute within Stormont (it had nothing to do with devolution or administration) and Northern Ireland on nationality—"To which nation do you want to belong?"—that was where Stormont became unstuck. The dialogue which ensued lasted for about 11 days, at the end of which this sovereign Parliament abolished the subordinate parliament.
Lord Sewel: I am grateful to the noble Lord for that intervention. It makes out the case for having Clause 27(7) in the Bill, in that it makes explicit the relationship and nature of devolution. It is only fair and proper that we do that.
On the point of resolving conflicts by political dialogue, that is the way in which I envisaged conflicts being resolved. As I said, if matters reach a pass on great issues of principle in which there is no way to reach an adjustment, the opportunity exists for this Parliament to decide that it will revisit the whole issue of the devolved settlement and promote primary legislation. I say that in a purely theoretical way. I do not see that as a basis of practical politics in the foreseeable future.
Lord Stewartby: Before the Minister sits down perhaps I may ask him a simple question arising from the explanation that he has just given us. Clause 27(7) states:
"This section does not affect the power of the Parliament of the United Kingdom".
Does that mean that this Act, as it will be, does not affect the power of Parliament? Because Clause 28(7) provides:
"An Act of the Scottish Parliament may modify a provision made by or under an Act of Parliament".

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There may well be other places in the Bill where a similar clarification is needed.
Lord Sewel: I do not think that that is necessary. With Clause 27 and subsequent clauses we are dealing with the basis of the parliament's legislative competence. That clause covers the whole legislative process.
To sum up, we are setting about a devolved settlement—nothing more, nothing less. It is not the first step on the road to some other settlement, whether that be independence or federalism. It is a self-contained settlement, based on the principles of devolution. Essential to that is the recognition that sovereignty remains with the UK Parliament. The UK Parliament retains the ability to legislate on all matters, but it devolves the power to legislate, other than on reserved matters, to the Scottish parliament. The way forward with disputes is one that is not unknown to this country's political history.
Baroness Carnegy of Lour: I do not want to hold things up, but the Minister mentioned the White Paper. I am worried about the Government's integrity in dealing with the people of Scotland on this. Where in the White Paper was it made plain to the people of Scotland that this Westminster Parliament can make laws on any subject, whether devolved or not? Where does it say that?
Lord Sewel: I am at a total loss. The White Paper was about devolution. The constitutional nature of devolution is as I have set it out. I do not believe that anyone will disagree with that, in all honesty. That is the difference between devolution and federalism. If the noble Baroness wishes to argue the case for federalism she is at liberty to do so, but that is not the case we put before the people of Scotland.
Baroness Carnegy of Lour: My question is about what the people of Scotland think they voted for. Does the Minister—
Lord Sewel: I answered that question.
Baroness Carnegy of Lour: Does the Minister believe that the people of Scotland think that devolution means that the Westminster Parliament can still legislate on all subjects, whether or not they are devolved? Is that made plain in the White Paper?
Lord Sewel: I am happy to be of assistance to the noble Baroness. Perhaps I may refer her to paragraph 4.2 on page 12 of the White Paper which reads:
"The United Kingdom Parliament is and will remain sovereign in all matters".
Lord Steel of Aikwood: We have had an interesting little debate on this issue, and I am glad that I tabled Amendment No. 144. I assure the Minister, and other Members of the Committee, that, whatever the aspirations of this party to seek a federal structure, we recognise the difference between federalism and devolution. There is no argument between us that in the end what this Parliament at Westminster gives, this Parliament at
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Westminster can take away. That is not in dispute. My noble friend Lord Mackie of Benshie was correct when he said that if at some future point—we hope that it never happens—this Parliament decided to undo the whole of the legislation, it could do so. That is clear, and it was clear in the section of the White Paper that the Minister read out.
What is not acceptable is the idea that could be read into Clause 27(7) as drafted: that notwithstanding the devolution settlement, the Westminster Parliament can meddle whenever it feels like it in internal Scottish matters. The noble Lord, Lord Molyneaux, did us a service by pointing out that some Minister—I know not who—indicated recently that questions would be allowed in the Westminster Parliament on devolved matters.
That surely cannot be. I take what the Minister said about the convention to be correct: that once the Scottish parliament is under way, in future the convention will be that neither House of the Westminster Parliament deals with legislation or Questions to Ministers on those matters that have been devolved. That is what the Minister told us. That is what the convention should be. That being so, I think that subsection (7) as drafted is unwise. The noble Lord, Lord Kingsland, may have hit on the right compromise by suggesting that the subsection should be removed from the Bill.
As do other noble Lords, I wish to reflect further on the matter. I do not press my amendment further at this stage. However, I indicate to the Government that we remain profoundly unhappy at what appears to be an open invitation on the face of the Bill for Westminster to intervene in devolved matters. I understand that that is not what the Government intend; but I would rather see some reference to the convention about which the noble Lord, Lord Molyneaux, spoke as regards Northern Ireland. Perhaps at Report stage, we can find some mutually agreeable words which establish what the convention will be without what I regard as the rather offensive statement in subsection (7). I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House be resumed. In moving the Motion, perhaps I may suggest that the Committee stage begins again at not before nine o'clock.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Arts Strategy
8.1 p.m.
The Earl of Clancarty The Earl of Clancarty rose to ask Her Majesty's Government whether they have an overall integrated arts strategy for the United Kingdom and, if so, what it is.
The noble Earl said: My Lords, perhaps the first thing I want to say is that there is a need for us to be more aware of what a government's cultural policy is, along

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with its ensuing art strategy. One's sense is that the voice of this Government as directed towards the people is not only rather soft but evasive. The nebulousness, for example, surrounding what the Government's term "access" means, does not promote debate. It merely promotes speculation. Individuals within government should, I think, actively speak out much more on the questions of culture, and themselves take much more of a public part in that debate. Perhaps as a non-politician I am being rather naive here, but there is this particular problem with the arts and culture in Britain. It has to be said that more than in any other area of government, the atmosphere does not properly exist for a true public discussion on matters of cultural policy.
But there is a question, too, of whether what a government may themselves call a cultural policy is in fact that. At the weekend an artist friend said to me: "What you should ask on Tuesday is 'Do the Government have a cultural policy and, if they have, tell them to scrap it—. I said to my friend: "Well what would you do?" and he said, "Give them"—the artists, he did not say "us"—"£.5 billion or whatever, and simply let them do what they want with the money". That is to say, a pure gift from society to the artist, and let us see what comes out of that. The arts have not received quite that amount in last week's spending review, although it has, with £290 million, received a lot more than people expected, but there are strings attached.
The spending review says,
"The government places a high value on culture, media and sport. They are central to what it wants to do, whether in the economy, quality of life or tackling exclusion".
In other words, rather than dealing with social problems on a social level and cultural problems on a cultural level, the Government are stating an intention to use art as a tool to achieve something else—as a medicine to cure social ailments and as a method of making savings on the economy through greater efficiency. Apart from neatly averting questions of culture the danger is that art becomes an excuse to make people conform to a certain social model. It is, however, a route down which broadly socialist governments seem to go.
What tends to be easily neglected today is not only the idea that if art has a function it might be a questioning one, but that questioning may be antagonistic towards given social values. The Independent on 1st July reported Tony Blair as saying at the meeting that took place between mainly arts executives and politicians, "I believe in investment in the arts, but how do I know that you're spending my money correctly?" You don't—that's the beauty of it. That's how it should be. We do not allow enough space within the arts for the component of failure. It is accepted in scientific and technological research. For example, I suspect you could not have something that accounts for the elements of failure more than a military research budget.
The most interesting question about the Government's key term "access" is not whether it is defined in terms of education (and there are good aspects to the Government's approach on this) or "free entry" or whatever, but in fact access to what? Is
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it access to a heritage, something that is already known; or access to what we might term "cultural possibilities", to the possibility of an allowing of something to happen for people individually, or as a group? In terms of museums and galleries, for instance, perhaps we need to be moving away from the old absolutist language that surrounds the whole concept of heritage: "the eternals", "excellence", "great art", and towards a sense of access as "contemporary event". We might start to see an emphasis placed less on whether an exhibition is of Bruce Nauman or 17th century Dutch painting for instance, and more on the sense that culture is actually being created in the here and now through the visits that people make to exhibitions, and, through their own particular experience, the contact that is made. There are implications here for the existing relationships between different governmental bodies including the Arts Council, although here we must bear in mind that significant shifts in the structures of arts bodies may be signalled this week.
In the spending review this Government headline museums and galleries. In relation to the question of free entry to the national museums, although the Government in March stopped things getting worse, the reality is that more museums charge now than when Labour took power. The Government still have yet to make any museums free, and two have introduced charges. Of these two museums, the latest figures are that at the national museums and galleries on Merseyside there has been a 38 per cent. decrease in visitor numbers in the one year that has now passed since charges were introduced—a drop of almost half a million visitors—and at the National Museums of Scotland there has been a drop in attendance of 45 per cent. since January of this year. Those are atrocious figures. To add insult to injury, in the Department of Culture's annual report the Government cite the introduction of the entry charge for Merseyside—the so-called Ei8ht Pass—as a "success" and a "key achievement for 1997". With such a dramatic decrease in attendance how can the introduction of the Ei8ht Pass by any stretch of the imagination be considered a success? But on top of this, to achieve their negative result, the National Museums and Galleries on Merseyside have spent an inordinately large amount of money—over £100,000 on the marketing of their entry pass including TV and radio advertising. And to cap even this, I read in this month's Museums Journal that this same admissions pass has won a major marketing award—a certain case of blind commercialism. I do not really blame National Museums and Galleries on Merseyside for all of this, but I do blame the Government for allowing them to introduce charges in the first place.
Let us free the museums on Merseyside, along with all the other national museums. Everyone will win—the National Museums and Galleries on Mersey side for a start, the Government with their access programme and, as I understand it, a desire to broaden audiences, but most of all the people who will flock hack to visit their museums, bringing new people with them.

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I hope that the Minister will now concede that free entry is the initial key element of access to museums and that it is the main route by which broader audiences will be brought in. If the Government are seeing access in terms of education then it has to be said that it is all very well to bring parties of schoolchildren into museums—something which many museums take very seriously—but will those schoolchildren return if they or their parents then have to pay to get in? For the most part they will not, except perhaps on a rare day trip. If the Government insist on seeing museums in terms of efficiency, or value for money for the taxpayer, then there is nothing more inefficient than a charging museum. The subsidy per visit at Merseyside has leapt from £10.73 in 1996–97, the year before charging, to over £16.93 in the last year, in line with the Natural History Museum and the Victoria and Albert Museum.
There has to be a concern, too, for the lack of urgency being shown in consideration of the many public local authority museums which are on the brink of charging. This is the first use to which the £7 million set apart for museums by the Heritage Access Fund should be put, but the guidelines which have been made available today on the use of this money do not even mention the issue. Despite the clear highlighting of museums and galleries in the literature associated with the spending review, the term "free entry" seems to have magically disappeared from the Government's vocabulary.
I will be disappointed if a pledge is not made this Friday to start removing charges from those public museums which charge. This should not be done in a piecemeal fashion but in one go, which in the long run would be much the cheaper option. The £40 million needed to free the national museums is such a small amount of government money in comparison to the cultural gain for the nation, which would be immeasurable.
I have concentrated in my opening remarks on aspects of cultural policy rather than arts strategy, and it is perhaps because of this that I have appeared critical. I would be much less critical of many aspects of the Government's specific projects for the arts. For instance, the funding of individual artists through NESTA will be an important development. I look forward very much to the Minister's reply and I hope that he will give us as much information as possible about what we are likely to hear this coming Friday.
8.12 p.m.
Lord Strabolgi: My Lords, I am sure that we are all grateful to the noble Earl, Lord Clancarty, for tabling this Unstarred Question for debate. In the limited time at my disposal, I am afraid I cannot follow the many interesting points that he made because I should like to say a few words about the problems facing the new British Library, which is one of our greatest cultural assets and national responsibilities.
I do not wish to go over past history and the sad story of its construction, mainly during the last Administration, with the long delays and Treasury cuts, so that the new library has only 12 per cent. more seats than were available at Bloomsbury. It took so long to
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build that the new French National Library in Paris started construction after ours and was finished well ahead. The British Library has been granted additional funding towards the costs of moving from Bloomsbury, but it is already beset with financial problems. The library has put in a bid for extra government funding but this has not been met, I am sorry to say. The result is that the grant-in-aid for 1998–99 is £8 million below requirements. This means that charges for access to the reading rooms of about £300 per annum per reader may have to be made. The library may also have to cut down on its comprehensive collecting of printed material under the legal deposit requirement, and it may have to reduce the collecting of material from other parts of the world.
The library has further responsibilities to provide a national bibliographical service, to arrange special exhibitions in its public galleries, to arrange lectures and to provide an education service. All these services, essential to scholarship and education, may be put in jeopardy. The Government are making available £290 million over the next three years for arts and sport. This is greatly to be welcomed. May I ask my noble friend whether some of the £290 million can be granted to the British Library, to help it to meet its essential costs? It would be paradoxical that while we strive to keep our museums free—and we are not always successful in this, as the noble Earl said—the British Library could be obliged to charge readers for the first time in its history.
I should also like to ask my noble friend about the site to the north of the library, which at present is used to store construction material for the extension to the cross-Channel rail link. In five years' time this site should be free, I understand. I hear that the Treasury want to sell it off for development, just as at one time it wanted to sell off the Hampton site next to the National Gallery, on which now stands the splendid Sainsbury Wing.
Will the Government confirm that the St. Pancras site will be kept for the future expansion of the British Library, where it is expected that demand will continue to increase, due to more students receiving higher education and the increasing demands of industry? I hope that the Government will ensure that the British Library has adequate finance and ample space to be able to continue providing its essential and historic services.
8.16 p.m.
Lord Hindlip: My Lords, I too would like to thank the noble Earl, Lord Clancarty, for giving your Lordships the opportunity to debate once again the Government's art policy. Like other noble Lords, I welcome the Chancellor's increased funding, announced in another place last week. I was interested by what the noble Earl said. I am not quite sure that I understand what an integrated arts policy ought to be, but I hope that it does not put too much emphasis on the new at the expense of the old.
It is with this in mind that I would like to draw your Lordships' attention to Clause 25 of the Finance Bill and its implications for the reservoir of works of art

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remaining in this country. I suppose I should declare an interest in this Question, as chairman of an auction house. However, I hope that the noble Lord the Minister will at the end of this debate be able to give us all some assurance that the Government might be prepared to somewhat revise or to relook at its views on conditional exemption. If the noble Lord the Minister cannot, then I am sadly certain that many works of art, which would not otherwise do so, will appear at auction. Ironically, I shall be slightly better off.
Since its introduction in 1896, conditional exemption has been an almost unqualified success. It has not been just a tax break for the very rich: it has done what it was intended to do, and has ensured that works of art remain in this country. It may have been subject to some abuse, particularly in respect of public access—that is another point which was made by the noble Earl—and I accept that the Government are right to address this. They are also right to be exercised over where public money is spent, because in such a case public benefit must result.
However, the present system needs some change. What is proposed under Schedule 25 of the Finance Bill—the abolition of viewing by appointment and the abolition of the V&A list—is, in the opinion of those involved with exempt works of art, slightly ill-considered. There are now approximately 20,000 objects on the V&A list in about 8,000 houses throughout the United Kingdom. In large country houses which are open to the public, access is not a problem. However, there are many important works of art in small houses, which do not lend themselves to regular public opening, with all the inherent problems of security and insurance. Furthermore, the majority of these owners over the years have actually enjoyed sharing their possessions, mainly for free, with those genuinely interested and they have been generous over loans to museums, whose directors on the whole, I believe, support the status quo, with some limited modifications. They support the system because conditional exemption has meant that the number of important works of art coming on to the market is a trickle and not a flood, and this "flood barrier" gives the nation a much better opportunity to acquire the things that they want when they are sold.
Under the new proposals where such owners are forced to pay tax on previously exempt works of art, they will sell. Furthermore, the flood will continue because on new deaths many owners who cannot open their houses will no longer have the option to retain works of art, exempt at home, and again they will just sell them. Is this, in the cause of public accessibility, what the Government want? I suggest that they will have public accessibility for about a week in the salerooms or at Grosvenor House, and after that in Malibu.
At this eleventh hour, I would ask the Government, please, to consider allowing the V&A list to continue, allowing viewing by appointment at least under certain conditions. First, I suggest that works on the V&A list are placed on an easily accessible website. I know that my own firm will be prepared to assist in setting up such
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a website. Secondly, will the Government consider that works of art still retained in homes which are not regularly open could be loaned for a portion of the year to local museums? Almost all the owners to whom I have spoken would be prepared to do so. Furthermore, the maximum number of people are able to see them. Perhaps some of the Chancellor's very welcome generosity can go to local museums to enable them to display the works of art which have been loaned to them.
Finally, will the Government look carefully at their definitions? I believe that while the old criteria for exemption was too low and was allowed to fall even lower the new criteria sets the limit too high. And what is not pre-eminent today will often become pre-eminent tomorrow, when it will be too late. We will all regret that loss.
8.21 p.m.
Lord Sandberg: My Lords, like the noble Lord, Lord Hindlip, I was not sure what an "integrated" arts strategy was. However, the Question has enabled me to seize on a subject which has been aired previously in this House and was aired as recently as last week in the other place when the Secretary of State for Trade and Industry made a helpful statement.
The overriding impression as regards various taxes on art shows an element of "dog in the manger" attitude from Brussels. We already have VAT and it seems idiotic to increase it. It does not help the other EU countries, but merely inhibits the art market in London and increases the attraction of New York, Geneva and so forth. Therefore, if VAT is increased the amount of tax collected is likely to decrease.
Similarly, droit de suite helps artists in theory but hardly at all in practice. The expense involved in collection seldom leaves anything for the painter—certainly not the painter in the garret. Whether artists such as the Picassos and Chagalls of this world, or their successors need the money, is beside the point. The likely cost to a purchaser of such works means that the vendor will almost certainly sell outside the EC. Again, that brings no help to Europe.
It is an absurd situation, but I well understand that it is difficult for the Government to obtain a majority in Brussels, let alone unanimity, as the art market in EU countries is minimal. Only London and the British economy will suffer. Consequently, I do not apologise for raising the subject again. It is important, because we are talking about the possible demise of a major British asset and a major British industry, with all the potential unemployment that that entails.
8.24 p.m.
Lord Freyberg: My Lords, I, too, would like to thank the noble Earl, Lord Clancarty, for initiating this important debate. Last Tuesday's announcement that an extra £290 million is to be made available for museums, the arts and sport to improve access is welcome news.
However, it should be stressed that for children and students, access on its own is of little use without proper hack-up. Physical access and intellectual accessibility

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are twinned. Entering a gallery is not enough; you must also know why you are there. This is why it is essential to have some basic introduction to the visual arts—painting, sculpture and architecture—incorporated in the school syllabus, even if not as an examination subject. This provides the intellectual accessibility to the visual arts which can and should be related to those cultural subjects that are in the strict sense academic; history, literature and foreign languages, for example.
Since the 1960s, the quality of art and design teaching in schools has largely depended on the support and guidance offered to teachers by qualified arts advisers, who are employed by local educational authorities. They visit schools, work with pupils, provide on-site training, help to appoint art teachers and encourage curriculum development and innovation.
In the past few years, many of these specialist arts advisers have been required to undertake a "general" role, supporting a group of schools in activities unrelated to art and design, but enough of their programme has been devoted to the subject to maintain its status, and ensure that standards were high. In recent months, however, arts advisers have been dismissed and not replaced and the steady decline in their numbers has dramatically accelerated.
In part, this has been because of local government re-organisations. These, by breaking down the local educational authorities into smaller units, have steadily reduced their ability to provide adviser support; the smaller portions of funding that each unit has inherited only permit them to afford a share of a specialist adviser post. The tendency is therefore to appoint a non-specialist, if at all.
Let me give two examples. In Scotland, the already sparse number of arts advisers has been reduced from 30 to six. In well-heeled Berkshire, the situation is even worse. Its number has been reduced from a pathetic six to none—and one local education authority in that county is on record with this statement:
"advice and support is not what an LEA should do".
Those who remain in their posts have in many cases been required to spend the time on literacy and numeracy rather than the arts, which is scarcely relevant to their purpose.
Furthermore, under the proposed fair funding initiative, individual schools can choose which "curriculum and advisory" services they wish to buy into. This will mean that the very existence of a local adviser system will be at the whim of individual head teachers and governors, who are already being pressed to concentrate on core subjects and encouraged to think of the visual arts as a luxury. They are not. They should be available to everyone.
It may be that some part of the £290 million will be used to improve the educational services provided by many museums and galleries. However, visits to these educational institutions should not be regarded as treats, but as part of a coherent educational programme in which the children are already well-founded by lessons given them in school. Only within the school can any education in the visual arts be so closely related to the
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cultural aspects of the core curriculum. Visits to museums and galleries then act as an extension to the further opening of the doors of perception.
Any integrated arts policy should recognise how important it is for children to realise that the world about them that has been created by man is an educational concern and not an entirely separate activity that need not, because it is outside the school, be taken seriously. It is of vital importance that in an integrated arts policy the part played by arts advisers in the work of the LEA is recognised, valued and reinstated. Some part of the £290 million should be applied to this.
8.28 p.m.
The Earl of Carlisle: My Lords, I, too, thank the noble Earl, Lord Clancarty, for once again bringing your Lordships' attention to the need of the government of whatever political persuasion to focus on the arts and to do all they can to encourage them. I have one minor quibble. For the word "integrated" I would substitute "visionary" or "generous". Resources are always finite. On occasion, conflicting demands on scarce resources may mean that the arts become the Cinderella of the public services. I believe that we have already reached that situation.
The arts are not considered in connection with those Leviathans of the spending departments—health, social services and education. All three of them need the services of the arts. Health, because the arts provide mental and spiritual stimulus; social services, because our old and very young always have less money or no money to spend, and need access to our public galleries and libraries up and down the country; and education, because the training of the minds of all our people demands that, without an understanding of the arts and culture, no person in these islands can consider him or herself a fully developed being.
I welcome the Government's policy to support cultural activities in television, design, film, and architecture; and, indeed, even in the Millennium Dome. Although I believe that the Government are genuine in seeking greater access to arts and heritage of the highest quality, the jury is still out on their stated intention of whether or not free admission can be maintained at the National Gallery, the National Portrait Gallery, the Tate, the British Museum and the Wallace Collection. The examples of those core museums, whose trustees have been compelled to impose charges, show in their entry figures a stark and disastrous decline in the numbers entering the front door.
As before, I shall concentrate on one core gallery; namely, the smallest, the National Portrait Gallery. Under the directorship of Dr. Charles Samaurez-Smith—one of a long line of outstanding directors over the past 30 years—his highly professional but over-stressed and hard-pressed staff are identifying serious difficulties which may arise over the next five years. Governments would do well to heed to their corporate plan, and I hope that they will do so.
Government are not assisting when they cut the grant in aid by more than 5 per cent. over two years. Indeed, if it is cut again by 2.3 per cent. in the year 1998–99

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that will, in real terms, be a cut of over 15 per cent. Cuts are not conducive to the staff. If the Government can find themselves able to increase the grant by 6 per cent., then, by the year 2000, the National Portrait Gallery will have increased in size by 80 per cent. since 1992, visitors will hit the one million mark and half a million extra people will come to see various exhibitions, including 40,000 students. Moreover, opening hours will be extended by about 20 per cent. and a web site will be installed with access for half a million people. New displays will also he mounted in regional centres, such as Wales, Yorkshire and Somerset. In the words of the Cortes Constitution of Castille, "And if not, not".
I cannot anticipate the Statement that will be made at the end of this week; nor will I attempt to do so. However, perhaps I may remind noble Lords of the aim of the National Portrait Gallery. It is:
"To promote through the medium of portraits the appreciation and understand of the men and women who have made and are making British history and culture";
and, indeed, to show this national collection to everyone.
The other day I looked forward to seeing the portrait of the Secretary of State for the Minister's department. It is excellent. Moreover, I look forward one day to gazing in admiration at the portrait of the noble Lord, Lord McIntosh of Haringey, on the walls of the National Portrait Gallery—but I would prefer to see it in the guise of Dr. Jekyll and not that of Mr. Hyde.
8.34 p.m.
The Viscount of Falkland: My Lords, I, too, should like to express my gratitude to the noble Earl for introducing tonight's debate. In the short time available to me, I should like to follow the noble Lord, Lord Freyburg, on the subject of education.
Last night there was a television programme on the Royal Opera House. Again, it was both titillating and very sensational. Nonetheless, it was quite enlightening. One of the most enlightening aspects of the programme was a clip from the "Kilroy" programme, where the presenter found himself in a confrontation with a number of ladies who were challenging him with the idea that kidney machines are more important than opera houses. Indeed, as we know, that is a difficult argument to refute. The reaction of someone else on the programme was to say that that illustrates an underlying antipathy to the arts among the British public. I do not actually believe that that exists. However, what exists is an education system which does not give enough access to young people to the arts to enable them to have a fulfilling life as regards their own culture.
As a result of a previous debate in this House on drama and schools, I had the pleasure last week of being invited to a school in south London which staged a play for the first time. It was its first performance of "Macbeth". It was indeed an ambitious production and played entirely by males who were mostly of West Indian and Nigerian extraction. It was quite clear that they had done a great deal of work. It was a rough-hewn production and was performed with enormous energy
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and enthusiasm. Afterwards, I was told by the master who directed the play that he had gone over every line of the script with the cast and they had shown enormous interest in it. I think he chose a difficult play, but one which is perhaps the least difficult of all Shakespearian plays for boys in such a school to perform. However, he said that, regardless of the rough-hewn character of the performance, I must not overlook the fact that the whole ethos of the school had changed since they started rehearsals. Those boys are now eager to take part in another production. It would, perhaps, be unwise to try another Shakespeare, but that is an illustration of an ambitious and encouraging move by a school to open doors to young people which might not otherwise ever be opened to them in their lives.
Of course, some of us were lucky enough to be introduced quite early to the arts. My mother was a painter, but I showed extreme reluctance as regards being taken to art galleries and to antique shops, both of which ranked among her favourite pastimes. However, in return, my mother had to come and enjoy Laurel and Hardy and other films which were extremely tedious to her. Nevertheless, that exposure later stood me in good stead as regards developing what she had shown me by way of excellence. I suppose I unconsciously learned some kind of discernment, which is what young people need.
Without that discernment and education I do not see how you can arrive at an arts policy or an integrated arts policy with the proper funding. I say that because, in order to get a proper funding for an arts policy such as we have seen in other countries, you must have a consensus among the public to commit taxpayers' funds to it. I do not believe that that consensus exists entirely today. We are grateful for the sums which are being committed to the arts, although we shall not know until the end of the week exactly how those funds will be allocated. However, I am very optimistic that education will form an important part of that allocation, however it is done. Indeed, if there is integration, I should like to see integration between the Department for Education and Employment and the Department for Culture, Media and Sport to a greater degree. That is most important; indeed, it would ensure that we never have again the kind of debates that we have had about, for example, the funding of the Royal Opera House.
As a parting shot, I should like to recommend to noble Lords a quite lengthy and involved document. I have in mind Sir Richard Eyre's summary of the plight of the Lyric Theatre. However, the foreword is a masterpiece of beautiful English and a concise tour d'horizon of the arts situation. It behoves everyone to read it; to have it by his or her bedside, and to read it and read it again. I am quite sure that the Minister has done so.
8.38 p.m.
Baroness Rawlings: My Lords, I should also like to thank the noble Earl, Lord Clancarty, for yet again keeping the arts on the agenda and initiating this debate. As "the arts" encompass such a wide variety of areas, we have been very fortunate to hear from noble Lords who really know their individual fields of art so well.

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I always feel that these debates often show your Lordships' House at its best. They demonstrate the true independence of the Members, their great and detailed knowledge on an amazingly wide variety of subjects, all so eloquently delivered that it would be difficult to find the like in any other legislative House.
An integrated arts strategy is a difficult concept to imagine, as my noble friend Lord Hindlip said. I looked up "integrated" to try to get some clues. I found such words as accommodate, amalgamate, assimilate, blend, coalesce, merge, unite, intermix; even the dreaded "harmonise" word featured, all of which I feel decidedly ill at ease with concerning the arts. Perhaps I could help the Minister in his reply today. He might well use Mr. Prescott's speech on integrated transport strategy, inserting the arts each time instead of transport. Just think how thrilled the arts lobby would be. They would go wild with excitement at the thought of all that promised money. Sadly, the arts are never this favoured.
Further high hopes for the arts which were conjured up before the election with the department's change of name have, alas, come to nothing. A new arts strategy is being mooted only after mounting criticism that New Labour is betraying many of our cultural talents. The Prime Minister has been attacked as being more interested in rock music and films than opera. I have always felt that excellence in any of these areas is to be welcomed; one should not exclude another. But only after criticism and after a year in office did the Prime Minister finally invite senior people from the arts for a meeting at No. 10 Downing Street to discuss arts policy. It was said that he was in "listening mode". I hope that the Minister listened carefully to the litany of problems and suggestions made by the noble Earl, Lord Clancarty, and in the eloquent speech of the noble Earl, Lord Carlisle, on the National Portrait Gallery. That is one of my favourite museums, so superbly run by Charles Saumarez Smith.
The signals that have come from the Government seem well described by Mr. Tusa in The Times earlier this year when he wrote,
"I am worried about the Prime Minister because he is signalling that Oasis is as important to Britain as opera; that chat shows are as important as novels; that television soap-operas are more valuable than live theatre".
The plight of the provincial repertory theatres was discussed only last week in your Lordships' House.
We on these Benches would not support an overall integrated arts strategy, which could easily become far too dirigiste. However, there are so many exciting ideas that could be incorporated into an inspired new arts strategy that is combined with learning, especially as Her Majesty's Government have laid so much emphasis on education, as mentioned by the noble Viscount, Lord Falkland. I offer a few suggestions. Why not have schoolchildren learn a talent for life, so that when they leave school they will have an active talent to take with them for all their lives rather than a passive one such as watching television? Why not encourage music in schools again by making musical instruments more easily available and by supporting libraries that specialise in music scores and drama scripts?
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I am wary of phrases that we have heard earlier today from the noble Baroness, Lady Hollis, on funding. I refer to the phrase,
"it depends on the health of the economy".
I hope we shall not be hearing this as a new, New Labour mantra. We have already suffered lottery funds being diverted from the arts through the new lottery Bill which we opposed at every stage. As I said last week, we shall continue to expose its pernicious effect on the good causes.
Finally, I think we could well ponder the words of Somerset Maugham:
"For art, if it is to be reckoned with as one of the great values of life, must teach man humility, tolerance, wisdom and magnanimity".
And I would add that the value of art is not just beauty but right action. I look forward to Her Majesty's Government taking the right action.
8.44 p.m.
Lord McIntosh of Haringey: My Lords, when we debated a more limited aspect of the arts last week, the regional theatre, I said that, to adapt Dickens, the debate was the best of timing and the worst of timing. I am afraid that that still applies because we are still in the interregnum between the general announcement on funding for the arts which was made last Tuesday in the Comprehensive Spending Review, and the more detailed statement which, as a number of noble Lords have recognised, will be made on Friday of this week. Even then much will not be revealed. We shall be able to say more about the total amount of funding going to the Arts Council, for example, but the Arts Council itself will, over the coming months, consider its funding allocations to individual recipients.
However, on Friday the broad allocation of arts funding will be announced for a period of three years to provide the stability which I believe all arts organisations need in order to make proper plans for the amount of public funding they will receive to put beside their other sources of income. The announcement on Friday will reveal our longer term plans, but the funding bodies will still have to make their own decisions. Friday's announcement will mention the consultation document. The noble Earl, Lord Clancarty, made the perfectly valid point that we need to have a public debate on arts funding and on the arts in general. We hope that the consultation will fuel that debate. Last Tuesday the Chancellor announced plans for the next two years. As noble Lords have recognised, that involves an extra £290 million over the period to 2002. That is a significant increase in real terms after a number of years in which funding in real terms has declined. On 24th July we shall not only announce the broad headings of funding as regards the Comprehensive Spending Review, but we shall also announce proposals for revising the structure and mechanisms through which Government support for the arts and other culture, media and sports sectors will be channelled.
I share the feeling of a number of noble Lords that there is not too much mileage in the concept of an integrated arts strategy. I tried to think what an

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integrated arts strategy for the United Kingdom might involve. I wondered whether it was a strategy for integrating arts funding, for example, in England, Scotland, Wales and Northern Ireland, but that does not seem to be in your Lordships' minds, at least judging from this debate. I wondered whether there was some concept of integration of strategy across different art forms, but I detect some resistance to that, which I share.
I shall not follow the noble Baroness, Lady Rawlings, into speculating on the analogy between an integrated arts policy and an integrated transport policy. Transport is about moving people and things around. If there are different modes of doing that, integration is likely to make transport policy more efficient. I do not think the analogy with the arts works particularly well, even for what I was interested to hear called a broadly socialist government.
Without following the noble Earl on the route of integration, we can say a few things about the way in which we approach arts policy, even if they do not define any particular decisions on the allocation of resources. The first is rather obvious and has been a theme of the debate this evening. I refer to the promotion of access for the many, not just the few. We want access to museums and galleries not only because of numbers. It is because the arts have the power to illuminate and transform us all for the better that we want as many people as possible to share that experience.
We could define our strategy as being the pursuit of excellence and innovation. Some people seem to think that by "innovation" we mean something that is politically correct. That is not the case at all. With respect, I do not think that the Prime Minister's taste in pop music has anything to do with arts strategy. He likes what he likes, and I do not happen to agree with him. But we shall not be determining our policy on our particular proclivities. Even if he likes Oasis—and I do not know whether he does—he is not for that reason saying that Oasis is more worthy than opera. The noble Baroness, Lady Rawlings, is right. We have to pursue excellence in a wide range of art forms. Some may well be popular forms as well as highbrow.
A number of noble Lords rightly pointed to the importance of education in the arts. It is true that the education system is the seed bed. It engenders the creativity on which the arts depend. The noble Lord, Lord Freyburg, made useful points about the school curriculum and concentrated on the need to restore the number of advisers in the visual arts. I entirely agree with him. The noble Lord may not have seen the work that we have been doing and have published over the past month or so in relation to music education and music advisers, and in particular on creating new funds for the provision of musical instruments—without which active musical education, other than music appreciation, could not be made to work at all. The noble Lord is right. Unless effective artistic teaching of all kinds can be restored in our schools, what we do about access to museums and galleries, concerts and theatre will not be effective.
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On a point to which no one has referred in the debate, we see our policies on the arts as including the fostering of creative industries. There is an element of cynical calculation in that. If we can convince other government departments that the creative industries are wealth creators in their own right, then it is more likely that they will be treated seriously across government as a whole.
To return briefly to the point about arts education, it is widely recognised that there is a precondition for the improvement of standards in our schools which we have debated over the past 12 months. It is that unless we get reading and writing correct in the first place, everything else will suffer. It means that we shall need to give our schools more flexibility in arts teaching. It does not mean that we are down-grading arts education.
I now turn to the national lottery. Clearly, what we can do for the arts in general is dependent on the amount of money available. Very large amounts of lottery money have been spent on the arts—over £1 billion. Despite the remarks of the noble Baroness, Lady Rawlings, the new Lottery Bill will not mean that money will be diverted from the arts. On the contrary, it means that lottery funding will now be used for people, not merely for bricks and mortar.
I now turn to the new audiences fund, which has been debated on a number of occasions. It is relevant to the whole question of access. It is targeted to help arts organisations extend their audiences, to bring new people to the arts, to encourage young people in particular and to broaden their experience in different art forms. We set up the £5 million fund at the time of the last Budget. Details will be published in due course.
On access to museums and galleries, I know that the noble Earl, Lord Clancarty, will understand that we are not able to say before the end of this week what will be the precise formulation of our plans for access. However, we have made it clear, as we did immediately on the publication of the Comprehensive Spending Review that that is very high on our list of priorities. I sympathise with the noble Earl's remarks about the Merseyside museums and galleries. I accept that there has been a significant decline in the number of people visiting galleries as a result of the charges. If any way can be found to reverse that, we must certainly look for it.
To my noble friend Lord Strabolgi I simply say that I understand and admire his defence of the British Library. But no proposals have been put to the Government by the British Library for charging readers. If they were, it would not be up to the British Library. Under the British Libraries Act, it would be for the Secretary of State to decide whether charges should be made.
The noble Earl, Lord Carlisle, put forward the virtues of the National Portrait Gallery. I admired the prospectus that he offered if more money were available. Flattery will get him everywhere so far as I am concerned. But of course, I do not make the decisions.

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I now turn to the important point raised by the noble Lord, Lord Hindlip. He may know that yesterday, Mark Fisher, the Arts Minister, met Sir Patrick Cormack, Robert Sheldon, the secretary of the Royal Commission on Historic Manuscripts, and representatives from the Inland Revenue to discuss the whole issue of the Finance Bill. I wish to make a number of points.
First, the Inland Revenue is drawing up guidelines which will contain enough flexibility to meet the concerns of the small number of owners who have objected to full public access, for reasons that we well understand. At Sir Patrick Cormack's suggestion, we are now thinking about the way in which the guidelines could be publicised, possibly in one of the leading arts periodicals; and that they should be in simple form and not too difficult to understand. The Inland Revenue acknowledged that it is not always necessary, and sometimes undesirable, to disclose the location of objects, and that access can be arranged at a location of the owner's choice. In particular, loans to museums and other public collections have always been accepted as a legitimate form of public access and will continue to be so.
The noble Lord asked about the V&A list. The Inland Revenue finances the V&A list, which is also on the world wide web, and is responsible for financing the website. But we are always grateful for contributions which would make that more effective.
We are sympathetic to the remarks of the noble Lord, Lord Sandberg, in relation to VAT on the art market. We are raising those concerns with the European Commission. Mark Fisher recently had a very useful meeting with Anthony Brown, the chief executive of the British Art Market Foundation to discuss that issue.
Noble Lords will forgive me if I go slightly beyond the 12 minutes allowed. It is not particularly desirable to have a two-minute break before we resume the Committee stage.
I wanted to say a few words about collaboration across the United Kingdom because it appears in the subject of the Question. Even though there is a great deal of devolution—if I am allowed to use that word in the presence of the Scots—of arts policy, there is at the same time a good deal of cross-country funding and collaboration: for example, in the Welsh National Opera, in National Lottery funded films and in the funding of cross-border touring, including funding by the Arts Council of England of tours in England by, for example, the Scottish Opera and the Scottish Ballet.
I believe it is evident from what I have said that, although we do not have a centralising tendency, we do not have any view that the arts should all be treated in the same way or that there should be a rigid Procrustean bed of artistic strategy. Nevertheless the concern not only of my department but of the whole of government for public funding of the arts has never diminished, will not diminish and indeed can be expected to increase.

Scotland Bill
9.1 p.m.
House again in Committee on Clause 27.
[Amendments Nos. 145 and 146 not moved.]
Clause 27 agreed to.
Clause 28 [Legislative competence]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 147:
Page 14, line 26, leave out ("so far as") and insert ("to the extent that").
The noble and learned Lord said: In moving Amendment No. 147, I shall, with the leave of the Committee, speak also to Amendment No. 148. These are two drafting amendments which also probe to see that I correctly understand the policy which lies behind the provisions in Clause 28, and in particular the first subsection of that clause.
I understand the policy to be that, if there is conflict between any of the provisions of an Act of the Scottish parliament and the legislative competence of the parliament—in other words, if those provisions are outside the legislative competence—only the provisions that offend against the definition of that legislative competence will be affected and will fall to be quashed by the courts. Putting it another way, those provisions that are found to be outwith the legislative competence can be severed from the competent provisions of the Act of the Scottish parliament and it would not be necessary for the whole of such an Act to fall merely because one or more of its provisions offended against the provisions of Clause 28.
What I would imagine happening in such a situation is that, among any other orders that it may be necessary to issue, the court would pronounce an order quashing or setting aside the offending provision or provisions. I should be most grateful if the Minister would confirm that my understanding of the position is correct in so far as it relates to Acts of the Scottish parliament itself.
A related issue concerns the vires of subordinate legislation made by the Scottish executive and confirmed, where appropriate, by the Scottish parliament. This is a matter where the competency is dealt with by Clause 50(2) of the Bill. This is again an issue which could profitably be clarified at this stage. If any provisions of subordinate legislation made by a member of the Scottish executive are outwith the executive's competence—and this could arise because such provisions would be outwith the legislative competence of the parliament had the same provisions been included in an Act of the Scottish parliament—does that mean that the whole instrument of subordinate legislation falls, or is it only the offending provisions that are quashed and not enforced? It would be most helpful if the Minister could confirm the position.
It will be appreciated that Acts of the Scottish Parliament and secondary legislation made by the Scottish executive will be open to challenge on other grounds. Not all questions of vires will fall to be

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determined by reference to Clause 28 of the Bill. It would therefore also be helpful if the Minister could say whether the same approach would apply. If the subordinate legislation could be challengeable on other grounds, would the whole instrument fall, or would it be only the offending provisions that would fall?
In raising these matters, I assume that there is no intention on the part of the Government to restrict the grounds upon which subordinate legislation made by the Scottish executive may be challenged because it is outwith the devolved competence of the executive. I seek an assurance that it is no part of the intention of the Bill's provisions to interfere in any way with either the existence or extent of the exclusive supervisory jurisdiction exercised by the Court of Session, a matter which we may well require to look at in greater detail at later stages of the Bill. It would, however, be helpful if that could be confirmed at this stage as part of the response to Amendments Nos. 147 and 148. I beg to move.
Baroness Ramsay of Cartvale: The noble and learned Lord suggested that Clause 28(1) might be interpreted as meaning that if one provision of an Act of the Scottish parliament is outside the legislative competence of the Scottish parliament then the whole of that Act is invalid. The noble and learned Lord's Amendments Nos. 147 and 148 seek to clarify that it is only the specific provision in question which is invalid and not the whole of the Act.
However, that is what Clause 28(1) already provides. It says that,
"An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament".
It does not say that an Act of the Scottish parliament is invalid if any of its provisions is outwith its legislative competence. An Act is invalid only "so far as" any provision is outwith the legislative competence of the parliament.
The wording of the clause has of course been considered very carefully, as has the amendment, and I am advised that the only way in which the clause can be interpreted is that it is the particular provision in question which is invalid and not the whole Act which is invalid. I must say that as a layman that is how I would read the clause. We do not believe that the form of words proposed by the noble and learned Lord—which would say "to the extent that" rather than "so far as"—would be any clearer.
I shall try to answer some of the direct questions put by the noble and learned Lord, Lord Mackay of Drumadoon. Where a provision of an Act of the Scottish parliament or of subordinate legislation is ultra vires, it is only that provision, to the extent to which it is incompetent, that is ultra vires and not anything surrounding it.
I hope that that reassures the noble and learned Lord that Amendments Nos. 147 and 148 are not necessary, though I accept his positive intentions in proposing them. However, the noble and learned Lord actually
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went wider than his two amendments in posing some of the questions in relation to the Court of Session. I should like to return to that at the appropriate part of the Bill or in some other way.
Lord Mackay of Drumadoon: I am grateful to the noble Baroness for her full reply, which completely meets the basic issue which I raised with these two amendments. The supplementary question which was tucked in as an extra was a difficult one and I can well understand why she would not wish to give a full response at this stage. However, it would be exceedingly helpful if a response could be sent by letter before we reach the subsequent clauses, in particular Clauses 92, 93 and that part of the Bill. It will be important there to have the Government's thinking before us as to the extent, if at all, it is intended that the Bill should interfere with the supervisory jurisdiction of the Court of Session.
In the light of that helpful response, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 148 not moved.]
Lord Sewel Lord Sewel moved Amendment No. 149:
Page 14, leave out line 33.
The noble Lord said: In moving Amendment No. 149, I shall speak also to Amendments Nos. 151, 153, 160, 161, 164, 165, 166A, 167, 167A to 167C, 168, 168A, 169, 169ZZA, 169ZA, 169A, 172, 173, 182, 204, 209, 259, 291A and 294.
The purpose of these amendments is to ensure that the Scottish parliament can legislate effectively about things which the White Paper intended should be devolved. At the same time, the amendments seek to ensure that there are adequate safeguards for those matters which the White Paper intended should be reserved.
The purpose of the amendments is essentially to clarify the operation of the legislation in this vital area. They do not represent a change of policy but they are rather complex and involve some quite difficult concepts. That, I am afraid is unavoidable. It is important, however, that Members of the Committee understand exactly what it is we are proposing and why and I hope that the Committee will bear with me therefore in what is a detailed explanation and exemplification of these government amendments.
The White Paper indicated that it was proposed to define the legislative competence of the Scottish parliament by listing the matters which were reserved. Everything not specifically reserved would be devolved. This approach is given effect to in the Bill by providing in Clause 28(2)(c) that the Scottish parliament can make laws except where the provision "relates to" the reserved matters listed in Schedule 5. In interpreting what is meant by "relates", it is intended that the courts should rely upon the respection doctrine which they developed in dealing with cases arising from the Commonwealth constitutions and the Government of Ireland Act 1920. The classic statement is found in the words of Lord Atkin in Gallagher v. Lynn in 1937 where he stated:

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"It is well established that you ought to look at the true nature and character … the pith and substance of the legislation. If, on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorised field".
In other words, it is intended that any question as to whether a provision in an Act of the Scottish parliament "relates to" a reserved matter should be determined by reference to its "pith and substance" or its purpose and if its purpose is a devolved one then it is not outside legislative competence merely because "incidentally it affects" a reserved matter. A degree of trespass into reserved areas is inevitable because reserved and other areas are not divided into neat watertight compartments.
Clause 28(4) and (5) were intended to achieve this. Clause 28(5) provides that a provision does not relate to reserved matters merely because it makes provision for purposes relating to devolved matters which incidentally affects reserved matters. However, there may be some doubt as to whether this provision is sufficient because it does not make it clear that in determining whether a provision relates to a reserved matter the court should determine this by reference to the purpose of the provision in question. In the absence of such a provision, it is possible that the courts would apply a literal approach and hold that a provision "relates" to a reserved matter merely if it affects it. If the courts were to adopt this approach, this would severely fetter the Scottish parliament's ability to legislate about subjects which are, in terms of the White Paper, to be devolved.
For example, the White Paper intended that pollution control should be devolved. However, an Act of the Scottish parliament containing provisions about water pollution from coal-mines or dust from open-cast coal-mining would affect the reserved matter of coal-mining. If the courts were to apply a literal approach, they could hold that these provisions related to the reserved matter and would therefore be beyond the legislative competence of the Scottish parliament. This would make a nonsense of the devolution of pollution control. The same point applies, for example, to planning or local government or even the courts and the administration of justice.
Amendment No. 153 is designed to solve this problem by providing expressly that any question as to whether a provision in an Act of the Scottish parliament "relates to" a reserved matter is to be determined by reference to its purpose. The courts can determine that a provision is for a permitted purpose, even if, as an ancillary matter, it affects reserved matters. In ascertaining the purpose of the provision, the courts are required to have regard, among other things, to its effect in all the circumstances. In my example of pollution control, the courts would take into account that the pollution control provision had an effect upon the reserved matter of coal-mining but may nevertheless consider that its purpose was about pollution control and not about coal-mining.
In the vast majority of cases the ancillary effects of such provisions upon reserved matters are likely to be minor but in some cases they could be significant.
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Whether the effect of a provision on reserved matters is minor or significant, if it is to be within the powers of the Scottish parliament it must in every case satisfy the test that its purpose is a devolved one. The Gallagher case which I mentioned earlier provides a very good illustration of how substantial an incidental effect can be. Northern Irish legislation about milk was found to be for the lawful purpose of promoting the health of the inhabitants of the Province, even though it had a substantial effect upon the reserved matter of cross-border trade by preventing such trade in milk.
An Act of the Scottish parliament reorganising local government would not be possible without ancillary effects on the functions of local authorities which concern reserved matters such as weights and measures, health and safety at work, data protection or the administration of housing benefit. Such legislation could have significant effects on the way in which the relevant services are administered, but they might be purely ancillary to local government reorganisation. The Scottish parliament should be able to legislate about which tier in a system of local government would administer these matters, but not to alter, for example, the rules on the administration of social security benefits, the funding of those benefits, or entitlements or specific duties of local government about reserved matters. The same point also applies in the case where the Scottish parliament amends the law of criminal evidence. This could have a significant and beneficial effect on the confiscation of drug trafficking proceeds, which is a reserved matter.
The result of the purpose test is that an individual provision whose purpose is reserved will be outside competence. However, another result is that there might conceivably be a provision which appears to deal entirely with a reserved matter but which can nevertheless be regarded as being within competence.
This might arise, for example, if there is an Act of the Scottish parliament about a devolved matter which omits to make a necessary consequential amendment to a reserved enactment. It would be possible for an Act of the Scottish parliament simply to make that missed consequential. By itself, it would appear to relate to a reserved matter but, when read in the context of the prior ASP, it can be seen to be for the devolved purpose.
Clearly, it is not the intention that these ancillary effects upon the law on reserved matters should be greater than necessary. Amendment No. 151 to Clause 28, together with Amendments Nos. 167 to 169 to Schedule 4, therefore erect a test in addition to the "purpose test" in Amendment No. 153. Its effect is that the Scottish parliament will be able to modify the law on reserved matters but only where the modifications are incidental to, or consequential on, provision which does not relate to reserved matters, and they do not have a greater effect on reserved matters than is necessary to give effect to the purpose of the provision. Therefore, if there was a way for the Scottish parliament to complete its legislative task without making modifications which have an effect on reserved matters, or if that is not possible by making modifications which have a lesser effect on reserved matters, then it would be required to take that route for otherwise it would be acting

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ultra vires. Provisions which seek to define the law in areas where there is no existing enactment or case law will nevertheless be modification of the law and will be subject to the additional test and to the powers of intervention in Clauses 33 and 54.
By,
"the law on reserved matters",
it is intended to mean the law which is about a reserved matter rather than, for example, planning law, which, although devolved, may apply to a reserved matter. The amendments therefore define the law on reserved matters as enactments and rules of law whose subject matter is reserved by Schedule 5. We recognise, of course, that it is important to ensure that the Scottish parliament can legislate on the general rules of Scots private law and criminal law across the board and without fragmenting the general principles which distinguish Scots law as a separate system of law. The new test in Schedule 4 applies generally. In the case of Scots private and criminal law, however, it applies only to certain specified aspects of private law and to the rules of Scots private and criminal law which are special to reserved matters—those which result in a distinct and separate treatment of a reserved matter. In the latter case, the rules will include not only those which exist at present, but also any private or criminal law provisions in future Westminster legislation which are special to reserved matters and which would, of course, supersede to that extent any general provision of Scots private law.
Examples of provisions of Scots private law and criminal law which are special to reserved matters are, first, Section 90 of the Copyright, Design and Patents Act 1988 which categorises copyright as moveable property and provides that an assignation of copyright is not effective unless it is in writing signed by or on behalf of the assignor. This is a special rule of Scots private law on a reserved matter designed to protect the interests of an owner of copyright; secondly, in the case of betting, gaming and lotteries, the rule that gaming contracts cannot be enforced on the basis that they are sponsiones ludicrae; and, thirdly, the provisions of the Proceeds of Crime (Scotland) Act 1995 which make special provisions about confiscating the proceeds of drug trafficking.
It would be inappropriate for the Schedule 4 test to apply to general provisions of Scots private or criminal law which reflect or are the application of their general principles or rules; for example, the rules about how a person may sign a document under Scots law, which may apply both to reserved and to devolved areas. However, Amendment No. 153 to Clause 28 in effect retains the existing test in Clause 28(3) that it will be within competence for the Scottish parliament to modify the Scots private or criminal law as it applies to reserved matters only if the purpose of the provision is to make the law in question apply consistently to reserved and to devolved areas. The courts would, of course, have regard to the effect of such a provision when assessing its purpose.
The amendments include a provision to ensure that the necessity test for effect on reserved matters is judged by reference to the legislative powers of the Scottish
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parliament. Thus, the fact that a consequential provision might be given effect by a Westminster Act or by an order made by a Minister of the Crown under Clause 95 of the Bill will not affect what is considered to be "necessary" for the purposes of this test. Clearly it is sensible to allow the Scottish parliament to complete its legislative task.
There are also a number of related amendments (Amendments Nos. 243 to 247 and 262 to 267) to Clauses 33 and 54, to which we will come when we reach those clauses.
As I said at the outset, these are essentially technical amendments designed to ensure that the Scottish parliament is not hamstrung from the start by a literal interpretation of the test of its legislative competence. However, I recognise that they are substantial and I hope that my explanation has been helpful. They do not represent any change of policy. The amendments are, however, vital to deliver the policy for which the Scottish people voted last September. Of course, we are testing the effect of the new approach on the definitions of reserved matters in Schedule 5 and it is possible that we shall table further technical amendments to Schedules 4 and 5 at Report stage as a result.
A number of minor and technical amendments are include in the group. These clarify the wording of Clauses 28, 50 and 54 and modify Schedules 4 and 5 in consequence of the amendments I have just described and amendments made in another place. In addition, there is an amendment to allow Schedule 4 to be modified by Order in Council in the same way as Schedule 5. I beg to move.
The Deputy Chairman of Committees (Baroness Lockwood): I must point out that if Amendment No. 149 is agreed to, I cannot call Amendment No. 150.
9.30 p.m.
Lord Mackie of Benshie: I rise to speak in the hope that the Minister understands his speech as well as those who wrote it. We do not believe that there is any evil intent. As far as my limited ability goes, I cannot find any evil intent, but I am sure that if there is any, one of the twin Lords Mackay will find it. In the meantime, I should be interested to hear what else is said on this amendment.
Lord Clyde: I regard this clause and these amendments as the most important part of this legislation. I doubt if there is serious dispute about that. It is essential that the limitations on the powers of the Scottish parliament are clearly, precisely and simply expressed. If not, the Scottish parliament will not have the confidence to know what it can and cannot do. Its work will be delayed by repeated attacks on the competence of its work in the courts and elsewhere. That will lead to a sense of frustration and despair which may have disastrous consequences. This particular provision must be drafted with immense simplicity and clarity.
I do not believe that there is any dispute about the end object to be achieved. There are perhaps three possibilities. A measure may be proposed that is

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concerned wholly with a devolved matter. There is no problem about that. A measure may be proposed that is concerned wholly with a reserved matter. There is no problem about that. The only other category is a measure that is concerned in part with a reserved matter and in part with a devolved matter. The solution that has been adopted—I do not have any dispute with it—is to determine its primary element. If it is merely a consequential effect of a reserved matter, it is properly within the competence of the Scottish parliament. That is the substance of what is sought to be achieved. I should like to see that expressed as clearly and simply as possible.
I was glad that the former three provisions disappeared, in particular subsection (5) which I found utterly impenetrable. As far as I could follow it, it made sense until its penultimate line but the last part of it led me into Alice in Wonderland. I remain unpersuaded that the provisions that are proposed to replace it are wholly satisfactory.
I start with Amendment No. 153. The test that is sought to be introduced under this amendment is purpose. I suggest that that test is too vague. It refers to
"the purpose of the provision, having regard (among other things) to its effect in all the circumstances".
First, that is too uncertain a standard by which to achieve the required confidence. How does one find the purpose? Where is the limit on the circumstances to which one has regard? Secondly, I suggest that the reference to "purpose" is not in point. My understanding, when first reading the 'amendment, was that if the Scottish parliament decided to adopt a measure with the purpose of discouraging crime—something that would be within its competence—and then realised that the supply, distribution and possession of certain drugs was an important feature that encouraged crime, it would be entitled to legalise cannabis. Yet that is, of course, interfering with the reserved matter—the Misuse of Drugs Act 1971. But if the test is "purpose", then it is done with the purpose which is within its competence. I am not sure that purpose is the proper test.
Thirdly, I suggest that the proper test is the substance of the subject matter. Indeed, to take the quotation from Gallagher, which the Minister mentioned, it is the pith, substance and nature of the matter to be regarded, not the purpose. Purpose, to my mind, is not the same as the pith and substance. So I am uneasy about the proposed new subsection (3).
When one comes to the next part of the amendment (subsection (3A)) one still has the reference to "purpose", but it brings in the further concept of consistency. I am not persuaded at the moment that it is necessary to embark upon questions of consistency, if one is merely concerned to deal with the cases where a provision may relate both to reserved and devolved matters.
How will that work? Let us suppose that the Scottish parliament proposed to standardise all public holidays throughout Scotland. That presumably would be within its competence. Within the course of that, it would want to fix the date of Easter. That is a reserved matter. But,
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provided that it does it consistently—that is to say, it fixes all the public holidays—presumably it can do it. Is that what is intended? Again, let us suppose that it required to make provision for a single tribunal to set proper professional standards. It would not be allowed to do that under the provisions for accountants, doctors and actuaries. But if it made it to apply to all professions in Scotland—teachers and lawyers as well as accountants, doctors, actuaries and dentists—could it do it because it is done consistently throughout the whole sphere? I have an anxiety that that provision will lead to more trouble than benefit.
Amendment No. 169 is the other important amendment in this group. Here one finds in subsection 3B the provision dealing with incidental matters where there is an overlap between devolved and reserved matters. I welcome that provision.
I am not so confident about the necessity for subsection 3A. May it not just be obscuring what can otherwise can be put simply and clearly? Subsection 3A(1) provides:
"The law on reserved matters shall not he modified".
But Schedule 4, paragraph 4 already says that clearly. Then subsection (2) seeks to define "the law on reserved matters". Is that necessary because Clause 28(2)(c), explaining what the competence is, says that the parliament does not have competence in a provision which relates to reserved matters? Of course the reserved matters cover matters of statute and of common law. That seems, as I see it, to be sufficient.
Subsection (3) introduces the matter of specialty, and if that was where it stopped, then it might be useful. But what concerns me is that the rest of that subsection has been plucked out of Schedule 5 and thrust into Schedule 4, and that seems to me to be unfortunate. There is a distinct structure here: Schedule 4 deals with things that cannot be amended; Schedule 5 lists the things which cannot be the subject of legislation by a Scottish parliament. Surely it was better to have the two matters referred to in subsections (3) and (4) in Schedule 5, where they used to be, rather than thrust into the amended Schedule 4.
I touch only on matters of importance. If we are dealing also with Amendment No. 169A, I wish to express two matters of anxiety. The amendment gives the power to restate the law with modifications, and to repeal. It may be necessary to provide for that, but there is a danger. It is difficult to restate the law without changing its meaning. One is dealing here with matters which may be of concern to the United Kingdom Parliament. That provision could involve the reorganising, rewriting or renumbering of sections in Acts of the United Kingdom. That would add to the complexity of a statute book which is sufficiently complex.
I make these observations with a view to being helpful. I am concerned to see whether we can secure a simple, precise and clear solution to a problem which I think everyone agrees exists. I respectfully suggest that much of the material here could be thinned out. I would welcome an indication from the Minister that he would

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give further consideration to the successful drafting of this admittedly difficult but critically important provision.
Lord Mackay of Drumadoon: I noted that the Minister did not indicate that he would be happy to take any questions on what he had read out. Having listened to the important issues raised by the noble and learned Lord, Lord Clyde, his reticence is understandable.
We are all agreed that this is an important area of the Bill. I welcome the fact that the Government have, to some extent on their own initiative, taken the opportunity to think again about the terms in which Clause 28 is currently drafted. As I recall, this was not a matter that was discussed at any length, if at all, in another place.
I noted that the Minister stated that it was possible that further amendments would be brought forward at Report stage. If that proves to be the case, it would be extremely helpful if they could be tabled as early as possible and, if possible, a letter setting out in advance the purpose of the amendments would be of assistance. In striving to understand certain of these amendments in preparation for this evening's debate, time and again I came back to the fact that I was unaware what problem the Government had detected in Clause 28 as currently drafted. It is only if one is aware of the problem that the amendment is designed to meet that one can address the secondary, but equally important, question as to whether the problem is met by the proposed amendment.
With the greatest of humility and respect, I agree with every point that the noble and learned Lord, Lord Clyde, raised. I tentatively pose a number of other questions, to which I hope the Minister will respond. While it is entirely a matter for him, I suspect that a considered response sent in writing would be the way forward, and one which, by one means or another, we can read into the debates at Report stage. Clearly when lawyers come to construe the Scotland Act in the years ahead, the speech that the noble Lord, Lord Sewel, made will be one of the most important parts of Hansard to which they will have regard.
As regards Amendment No. 153, I invite the Minister to address what happens if the courts are of the view that the legislation has two purposes and one of them cannot be set aside as being an ancillary purpose, and one of these purposes is within the legislative competence of the Scottish parliament and one is clearly outwith. It may well be that there is a fourth situation in addition to the three which the noble and learned Lord, Lord Clyde, identified earlier. I have some difficulty as to why one should have regard to the provision's effect in seeking to determine what a provision's purpose is. One is almost encouraged to ask: is that not an instance of putting the cart before the horse? Look at what the provision achieves and then work out what its purpose is intended to be—because if the purpose is not achieved, what then?
I should be grateful if the noble Minister could confirm whether the new subsection 3A is intended to replace the existing subsection (3) of Clause 28. If so, I
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should welcome his clarification of how the provisions of the new subsection 3A have a different purpose and indeed a different effect from those currently set out in Clause 28(3).
The next amendment I shall mention briefly is No. 165, which I welcome, subject to the question of a modification which we will turn to in a later grouping. Moving to Amendments Nos. 167B and 167C, which deal with the relationship between this Bill and the Human Rights Bill, I invite the Minister to address the point of why the reference to Section 12 of the Human Rights Bill is being removed—that is the clause in the Bill which deals with self-expression. More important, I ask why reference is being made to paragraphs 2, 3, 4, 5 and 6 of Schedule 2 of the Human Rights Bill, which, as the Minister is no doubt aware, deal with certain provisions for the making of remedial orders. I do not understand why they have any relevance to the making of primary legislation by the Scottish parliament.
Of all the amendments to which the noble and learned Lord spoke, Amendment No. 169 is the one that I found the most difficult to understand. I agree with what the noble and learned Lord, Lord Clyde, said, that a serious question arises as to whether the proposed subsection 3A is necessary. But, if it is, I reinforce the point that has been made; namely, that it is desirable that this matter should be expressed as simply as possible. I fully accept that one can sometimes err on the side of simplicity and end up achieving a result which is not what parliament intended. On the other hand, members of the public, and indeed members of the parliament, in the first few years will have regular recourse to the provisions of the Act to see what their legislative powers are. If they experience as much difficulty in understanding the provisions incorporated in Amendment No. 169 as I do, and as the noble and learned Lord, Lord Clyde, also seems to do, it can be anticipated that problems may lie ahead.
Finally, I turn to Amendment No. 169A, which deals with the question, among other things, of the restatement of the law by means of consolidation Bills. I would like the Minister to assure the Committee that the amendment is framed in terms which the Scottish Law Commission and the Law Commission in England are satisfied would enable the consolidation of legislation to proceed as it does at present. In other words, in addition to merely restating the law, will they be allowed to take account of amendments to the law, supported by Law Commission recommendations and in other technical respects, in which the absolute rule against making new law in consolidation is to some extent modified, subject as it is in this Parliament to a Joint Committee chaired by one of the Lords Appeal in Ordinary?
In the early years of the Parliament, it will be most important for the law to be consolidated as quickly and effectively as resources permit. When one parliament is amending law which was made by this Parliament, it will be even more difficult for members of the public to discover what the statute law currently is. Consolidation is one way of addressing that issue. We wish to be sure that nothing in either Clause 28 or Schedule 4 should prevent such a process taking place.

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As I said at the outset, I welcome the amendment. I cannot begin to suggest that I fully took on board everything the Minister said. He set some difficult homework for the Summer Recess; homework in respect of which I suspect I might seek assistance from others. I anticipate that we shall return to the matter on Report, I hope in a thoroughly constructive manner.
Lord Hope of Craighead: I speak briefly in support of the points made by the noble and learned Lords, Lord Clyde and Lord Mackay of Drumadoon. Clearly, the amendments will need to be studied with great care in the light of the points which have been made. I speak only to make two brief suggestions. The first relates to Amendment No. 153, which deals in the new subsection (3) with the purposes of the provision. These days, the courts are well used to interpreting statutes by references to the purpose of the statute. There is sometimes a debate as to whether the purposive approach is the right one to adopt. Sometimes the courts prefer to adopt a literal approach. Plainly, the intention is that the purposive approach should be adopted. It might be enough simply to stop at that point and delete the words from "having regard to" to the end of the subsection. It introduces material which simply complicates a fairly straightforward provision.
The second point relates to Amendment No. 169A. I do not wish to trivialise the debate, but it seems to me, looking at paragraph 13, that the idea of an Act changing the name of a judge is a little strange. I believe that the aim is the possibility of changing the name of the office held by a judge. It might be happier to insert the words,
"the office held by any judge, chairman or officer of a court or tribunal",
in order to make that position clear.
The Earl of Balfour: I would like to raise a question on Amendments Nos. 166A and 291 B. Amendment No. 166A provides that the Private Legislation Procedure (Scotland) Act shall not be modified. I am thinking of the position in which on so many occasions I have been a Parliamentary Commissioner dealing with opposed private legislation. With that in mind, I believe that the matter can satisfactorily be devolved to the Scottish parliament. However, Clause 88, which is set out under the heading of "Private legislation", deals with pre-commencement enactments. I am somewhat mystified as to whether Amendment No. 166A does not to some extent contradict the provisions in Clause 88.
Moreover, I also wonder why subsection (3) of Clause 88 says:
"Section 49 shall not apply in relation to the Private Legislation Procedure (Scotland) Act 1936",
because Clause 49 deals with the general transfer of functions to Scottish Ministers. I should have thought that that was an entirely different subject, but quite an important point.
Baroness Carnegy of Lour: On the same amendment—namely, Amendment No. 166A—can the Minister say why the provision is not being changed? My recollection from experience is that the final stages
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of opposed Private Bills go to a committee of both Houses at Westminster. Indeed, that involves the House of Lords. I have chaired such a joint committee, and I do not believe that the situation has changed. Are the Government maintaining the House of Lords in this piece of legislative procedure, but not in any other?
Lord Sewel: I believe that we have had a thoughtful, valuable and most helpful series of contributions to this debate from noble Lords and noble and learned Lords. We are all agreed that this is one of the most important parts of the Bill and that it does indeed deserve full and proper scrutiny.
Clearly, as the Minister responsible for the Bill, I am aware that whatever comments I make on this occasion have to be considered both deliberate and weighed. Therefore, I shall not reply at this stage to many of the points made by noble Lords and noble and learned Lords. However, because of the importance of this particular part of the Bill, I make the offer to have discussions with Members of the Committee who feel that we can make further improvements to these clauses. As I say, I shall take those points away while making that offer of discussion.
However, I can deal with the point on private legislation raised by the noble Earl, Lord Balfour, and the noble Baroness, Lady Carnegy. Amendments Nos. 166A and 291A bring the treatment of the Private Legislation Procedure (Scotland) Act 1936 into line with that of other enactments, which are to be protected from modification by the Scottish parliament, by adding a provision to that effect in Schedule 4 and deleting Clause 88(3), which will become redundant. Following devolution, it is intended that the Scottish parliament will be able to make its own provision in relation to private legislation as far as relates to devolved matters. By virtue of these amendments, the parliament will not be able to modify the 1936 Act and ministerial functions will not transfer to the Scottish Ministers. Private legislation under the 1936 Act will continue to be a matter for Westminster and UK Ministers, but it is expected that a convention will develop that they will normally deal with devolved matters only with the consent of the Scottish parliament. I think that is the kind of approach that we have tried consistently to adopt when these kind of issues arise.
I repeat what I have already said. Although these are technical amendments, they are incredibly important technical amendments which seek to place in legislation, and to define legislatively, what I think we all recognise is an incredibly difficult provision. Because of that importance I am happy to take further in discussion the concerns of noble Lords and noble and learned Lords. I think the Committee will realise that at this stage I have to refrain from saying anything further of substance.
On Question, amendment agreed to.
[Amendment No. 150 not moved.]
10 p.m.
Lord Sewel Lord Sewel moved Amendment No. 151:
Page 14, line 34, at end insert—
("(cc) it is in breach of the restrictions in Schedule 4").
On Question, amendment agreed to.
[Amendment No. 152 not moved.]
The Chairman of Committees (Lord Boston of Faversham): I must point out to the Committee that if Amendment No. 153 is agreed to, I cannot call Amendments Nos. 154 to 158 inclusive.
Lord Sewel Lord Sewel moved Amendment No. 153:
Page 14, line 40, leave out subsections (3) to (5) and insert—
("(3) For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (3A), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.
(3A) A provision which—

(a) would otherwise not relate to reserved matters, but

(b) makes modifications of Scots private law, or Scots criminal law, as it applies to reserved matters,

is to be treated as relating to reserved matters unless the purpose of the provision is to make the law in question apply consistently to reserved matters and otherwise.").
On Question, amendment agreed to.
[Amendments Nos. 154 to 159 not moved.]
Lord Sewel Lord Sewel moved Amendments Nos. 160 and 161:
Page 15, line 10, leave out ("that competence") and insert ("the legislative competence of the Parliament").
Page 15, line 14, leave out subsection (7).
On Question, amendments agreed to.
Lord Mackay of Drumadoon: I hope I shall be allowed to move Amendment No. 162—
The Chairman of Committees: I beg the Committee's pardon. I should have given the warning on Amendment No. 161 that if that amendment was agreed to, I could not call Amendments Nos. 162 or 163.
[Amendments Nos. 162 and 163 not moved.]
The Chairman of Committees: I must point out to the Committee that if Amendment No. 165 is agreed to, I cannot call Amendment No. 166.
Lord Sewel Lord Sewel moved Amendments Nos. 164 and 165:
Page 15, line 18, leave out ("so") and insert ("in such a way").
Page 15, line 20, leave out subsection (9).
On Question, amendments agreed to.
[Amendment No. 166 not moved.]
On Question, Whether Clause 28, as amended, shall stand part of the Bill?
Lord Mackay of Drumadoon: I wish to raise a point which I had hoped to raise in the group of amendments which is disappearing off the dyke like snow in the month of June. I think I have one chance left to raise this point, but in case I lose that chance I shall raise the point now. Why in this Bill have the draftsmen introduced the term "modification of the law"? As far as my researches have indicated—I fully confess they are not as extensive as they might have been—that is not a term currently used in public general statutes when
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one is talking about legislation which repeals or amends existing legislation. Nor is it found in judicial authorities in so far as I have researched that, and nor—very importantly—is it found in legal textbooks dealing with statutory construction. If this new term is to be introduced, I believe we are entitled to an explanation of that. That is my purpose in speaking at this point.
Baroness Ramsay of Cartvale: I shall try to give an answer as so many of these amendments were overtaken by events and I think we have all been caught slightly by surprise. The term "modify" has been used quite deliberately in this Bill so that, in the case of enactments, the various restrictions on the competence of the Scottish parliament to modify aspects of the law apply to any change to the effect of an enactment, for example, by a gloss placed on its interpretation by another enactment, not just those modifications which involve textual amendments. It is therefore felt that narrowing these provisions to apply only to textual amendments—which is the effect that we believe the use of the word "amendment" and not "modify" would produce—would subvert their purpose. I do not know whether that provides the noble and learned Lord with an adequate reply, but that is why the word "modify" is used. We believe that it is preferable to the word "amend" or "amendment".
Lord Mackay of Drumadoon: I am grateful to the noble Baroness for giving me that answer at an unexpected point in tonight's debate. I shall reflect on her remarks. I suspect that I may wish to write to the Minister on this matter, as it is of some significance. We are introducing a new term and we must be clear as to its meaning. On that basis, I withdraw my opposition to Clause 28.
Clause 28, as amended, agreed to.
Schedule 4 [Enactments protected from modification]:
The Chairman of Committees: I must point out that if Amendment No. 169A is agreed to, I cannot call Amendments Nos. 170 and 171.
Lord Sewel Lord Sewel moved Amendments Nos. 166A to 169A
Page 62, line 10, at end insert—
("Private Legislation Procedure (Scotland) Act 1936
.The Private Legislation Procedure (Scotland) Act 1936 shall not be modified.").
Page 62, line 20, leave out ("28(2)(b)") and insert ("28(2)(cc)").
Page 62, line 22, at end insert—
("Local Government, Planning and Land Act 1980
. Paragraphs 5(3)(b) and 15(4)(6) of Schedule 32 to the Local Government, Planning and Land Act 1980 shall not be modified.").
Page 62, line 25, leave out ("sections 12 and 20 or) and insert ("section 20 of, and paragraphs 2 to 6 of Schedule 2 to,").
Page 62, line 26, leave out ("those sections") and insert ("that section or those paragraphs").
Page 62, line 28, leave out ("28(2)(b)") and insert ("28(2)(cc)").
Page 62, line 33, leave out ("and 14 to 17") and insert (", 14 to 17 and 22").
Page 62, line 33, at end insert—
("Law on reserved matters
3A.—(1) The law on reserved matters shall not he modified.
(2) In this paragraph, "the law on reserved matters" means—

(a) any enactment the subject-matter of which is a reserved matter and which is comprised in an Act of Parliament or subordinate legislation under an Act of Parliament, and

(b) any rule of law which is not contained in an enactment and the subject-matter of which is a reserved matter.

(3) Sub-paragraph (1) applies in relation to a rule of Scots private law or Scots criminal law (whether or not contained in an enactment) only to the extent that the rule in question is special to a reserved matter or the subject-matter of the rule is—

(a) interest on sums due in respect of taxes or excise duties and refunds of such taxes or duties, or

(b) the obligations, in relation to occupational or personal pension schemes, of the trustees or managers.

(4) Sub-paragraph (3)(b) extends to cases where liabilities under orders made in matrimonial proceedings, or agreements made between the parties to a marriage, are to be satisfied out of assets of the scheme.
(5) Sub-paragraph (1), read with section 28(2)(cc), is to be disregarded for the purpose of determining whether the exercise of any function (other than a function of making, confirming or approving subordinate legislation so far as it makes modifications to which that sub-paragraph applies) is within or outside devolved competence.
(6) In this paragraph "enactment" includes an enactment whenever passed or made.
3B.—(1) Paragraph 3A does not prevent an Act of the Scottish Parliament making modifications which—

(a) are incidental to, or consequential on, provision made (whether by the Act in question or another enactment) which does not relate to reserved matters, and

(b) do not have a greater effect on reserved matters than is necessary to give effect to the purpose of the provision.

(2) In determining for the purposes of sub-paragraph (1)(b) what is necessary to give effect to the purpose of a provision, any power to make laws other than the power of the Parliament is to be disregarded.").
Page 62, line 37, at end insert ("and paragraph 4(1) and (2) of Schedule 2").
Page 63, line 9, leave out from beginning to ("and") in line 10.
Page 63, leave out lines 20 to 41 and insert—
("11.—(1) This Schedule does not prevent an Act of the Scottish Parliament—

(a) restating the law (or restating it with such modifications as are not prevented by this Schedule), or

(b) repealing any spent enactment.

(2) For the purposes of paragraph 3A, the law on reserved matters includes any restatement in an Act of the Scottish Parliament, or subordinate legislation under such an Act, of the law on reserved matters if the subject-matter of the restatement is a reserved matter.
12. This Schedule does not prevent the operation of any provision of the Interpretation Act 1978.
13. This Schedule does not prevent an Act of the Scottish Parliament amending any enactment (including this Act) by changing the name of—

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

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

(c) any register,

in consequence of any provision made by or under an Act of the Scottish Parliament.").
On Question, amendments agreed to.
Schedule 4, as amended, agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon had given notice of his intention to move Amendment No. 171:
Page 63, line 41, at end insert—
("(3) Notwithstanding the provisions of sub-paragraphs (1) and (2), an Act of the Scottish Parliament may not amend section 89 of this Act.").
The noble and learned Lord said: Once again, I have a slight problem in that my Amendment No. 171 has disappeared. Under that amendment I had sought to raise a very important issue; namely, whether or not an Act of the Scottish parliament could competently amend the provisions of Clause 89 of the Bill, dealing with the procedures for the appointment and removal of judges. The clause was amended when the Bill was in another place. The contents of the clause were discussed by the noble and learned Lord, Lord Hope, at Second Reading, and the noble and learned Lord, Lord McCluskey, touched on the importance of the independence of the judiciary in view of the important role it will have to play in ensuring that the devolution settlement works.
If the matter has troubled those in another place, it seems that the clause should be improved on from the terms in which it is currently drafted. If, as will undoubtedly be the case, your Lordships will discuss in Committee whether Clause 89 should be further amended, all those efforts could come to nought if it was competent for the Scottish parliament to "amend out" amendments that had been "amended in" during the Bill's passage through this House and another place.
This is a sensitive but important issue. Judges in Scotland will not deal merely with matters that fall within the legislative competence of the Scottish parliament or the competence of the Scottish executive. They will deal with the construction of legislation which will continue to be part of this Parliament, the existing body of statute law and common law relating to reserved matters.
It seems to me that it would be a very important bulwark to the independence of the judiciary that once the Bill has completed its passage through this House, the only means by which Clause 89 should be amended would be by primary legislation brought forward to this Parliament.
In these circumstances, I should very much welcome the Government's response on this issue. I shall not press the matter tonight but I shall take steps to ensure that that problem does not afflict me at Report stage, if we have not reached an accommodation by then. I cannot over-stress the importance of this matter, and I hope that the Minister will be kind enough to tell us the Government's thinking on it.
Lord Fraser of Carmyllie: First, perhaps I may apologise for the fact that I have not played a part in some of the earlier discussions, important though I have indicated I regard them to be. I regret to say that the United States Secretary of State seems to be under the misapprehension that she is now the Lord Advocate for Scotland. The Committee may not be surprised that some of us are more than a little alarmed that matters

833
which properly fall within the remit of the Lord Advocate should have been taken on board by her and that she should have thought that the best way of dealing with matters of criminal prosecution in Scotland was by announcing them on CNN. Be that as it may, I am sure that my concerns will be understood by many Members of the Committee. My apology is made on that basis.
As we are dealing with Schedule 4, I wish to ask a highly technical question. I do not expect a reply tonight, but, because it is such a technical point, it might be helpful if I were to indicate it now and the Minister might do no more than offer me, in her usual courteous way, the promise that she will write to me. I am intrigued to see on page 62 that in the European Communities Act 1972,
"Section 2, other than subsection (2) …"
"shall not be modified". I have written so many boring words about Section 2(2) in the past and what is covered by that subsection. This provision as set out in the Bill is somewhat obscure to me. If the Minister will promise to write to me before the end of the month of September with a full explanation of the provision, I shall be more than satisfied.
Lord Renton: I too must present my apologies to the Committee for not having been present during discussion of all the amendments since the adjournment. I feel that we are getting into a very complicated situation, which has been made more complicated by the amendments which have been moved by the noble Lord, Lord Sewel. Clauses 28 and 29 and the fourth and fifth schedules all have to be considered together. I shall welcome the long Recess in order to consider in detail what the combined effect of those provisions will be.
It is all very well for us to do all that we can, as zealously as we can, and with the accuracy of detail which is necessary in legislation, in order to ensure that the reserved powers from the Scottish parliament—
Lord Sewel: I am grateful to the noble Lord for giving way. As the noble Lord recognised, he was not in his place when we dealt with the list of amendments to the clause in question. I tried to explain in some detail the thinking and understanding of the Government in moving that series of amendments. I also made clear—this may help the noble Lord at this stage and perhaps satisfy him—that if Members of the Committee with a special interest in this area feel that there are matters which could be advanced through discussion, I shall be happy to have those discussions with my officials and Members of the Committee. I hope that that is something the noble Lord, Lord Renton, will feel able to take up if he wishes to pursue it and that it satisfies him at this stage.
10.15 p.m.
Lord Renton: I am grateful to the noble Lord for that intervention. This is a difficult and complicated matter. We shall need time to consider it. In view of what he said, I can curtail my remarks.
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When we get down to the detail of the fourth and fifth schedules, we find that there are exceptions to exceptions. In the years to come, there will be those who will have to do their best to administer the situation and sometimes reconcile what appear to be conflicts in the exceptions within the exceptions. They will have a difficult time. Therefore, between now and October, we should take all the time that we can—private time for each of us—to consider how it is likely to work out.
Baroness Ramsay of Cartvale: Perhaps I can attempt to give some reassurance in answer to the noble and learned Lord, Lord Mackay of Drumadoon. If Amendment No. 171 had been moved, it would have prevented an Act of the Scottish parliament from modifying Clause 89 in relation to the appointment and removal of judges. The noble and learned Lord explained why he was concerned about what was meant by the wording of the Bill at the present time.
I can assure the noble and learned Lord that it is not our intention that the Scottish parliament should be able to modify the substance of Clause 89. Paragraph 11 of Schedule 4 allows an Act of the Scottish parliament to modify various titles, including those of the Lord President, the Lord Justice Clerk, sheriffs principal and sheriffs. But it does not allow the substance of Clause 89 to be altered. In any case, paragraph 11 has now been replaced by the Government's Amendment No. 169A which makes it clear that only the names may be changed.
I hope that that explanation goes some way to provide some of the reassurance that the noble and learned Lord seeks. He also went wider than the terms of the amendment into some complex matters to which we will come later in the Bill and perhaps we can deal with them then. I shall be delighted to write to the noble and learned Lord, Lord Fraser of Carmyllie, and hope that the noble Lord, Lord Renton, feels that he received the assurance he requires for future dealings on the complex matters he raised.
Lord Mackay of Drumadoon: I thank the noble Baroness for her reply which certainly met my anxiety. I shall re-read the schedule with eager anticipation of finding the satisfaction which, to some extent, I have already received.
Perhaps I can make a suggestion which the Government might take on board. I do not want to frighten the Government Chief Whip but it is possible that this Bill will not have completed its Committee stage before the House rises. For that reason, might it be possible to prepare a document to be available to all Members of the Committee setting out the terms of Clause 28 and Schedule 4 as now amended? Indeed, it may be of assistance for it to be available to us next week. These are important changes brought about by the government amendments.
It is obviously a document which will have no formal status, but I imagine that the draftsman could print it out tomorrow morning. If we had the wording of Clause 28

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and Schedule 4, as amended, before us next week and certainly during the Recess, it would be of considerable assistance.
Lord Sewel: I think I can reassure the noble and learned Lord. There will be practical issues to overcome but I do not think that they will be insuperable. I shall see what we can do.
[Amendment No. 171 not moved.]
Schedule 4, as amended, agreed to.
Clause 29 [Reserved matters]:
Lord Sewel Lord Sewel moved Amendments Nos. 172 and 173:
Page 15, line 23, leave out from ("matters") to end of line 24.
Page 15, line 26, leave out ("that Schedule") and insert ("Schedule
4 or 5").
On Question, amendments agreed to.
Lord Sewel Lord Sewel moved Amendment No. 173ZA:
Page 15, line 27, at end insert—
("(2A) Her Majesty may by Order in Council specify functions which are to be treated, for such purposes of this Act as may be specified, as being, or as not being, functions which are exercisable in or as regards Scotland.").
The noble Lord said: I wish to speak to a package of amendments which relate to the devolution of functions in relation to the regulation of sea fishing. The first is Amendment No. 173ZA to Clause 29. We will have an opportunity to debate related amendments, Amendments Nos. 193ZA, 293AA and 293AB and 294A to Schedule 5 and other clauses, later. It will be for the benefit of the Committee if I outline the complete package at this stage.
In the White Paper, Scotland's Parliament, the Government made clear our intention to devolve functions relating to sea fisheries subject to suitable co-ordination arrangements to ensure effective discharge of UK obligations. The devolution of functions which are exercised at sea has raised particular questions for the Bill which have required careful thought. The Government are now in a position to table a set of amendments to ensure effective devolution.
Lord Mackay of Ardbrecknish: I am in some trouble as to exactly to which group the noble Lord is speaking. I do not mind doing things in the way the noble Lord is suggesting but perhaps he would indicate where we are.
Lord Renton: Before the noble Lord, Lord Sewel, replies to my noble friend, I wonder whether he would bear in mind that in Clause 29 we are dealing with reserved matters of legislation. However, his amendment refers to "functions". In relation to legislation, I am a little puzzled as to what "functions" means. Here we have an opportunity for Her Majesty, by Order in Council, to specify functions which are to be,
"exercisable in or as regards Scotland".
But they are presumably legislative functions. Here I am a little worried because we have a problem with regard to what are known as Henry VIII clauses. Later in the
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Bill we find that where Her Majesty is given power by Order in Council an affirmative resolution of Parliament is required. That is something of a safeguard. However, I find it a little mysterious that we should be giving Her Majesty by Order in Council the power to specify "functions" which are to be treated for such purposes as may be specified. It is all a little unusual.
Lord Hylton: In support of the noble Lord, Lord Renton, I notice that the amendment refers to "functions" whereas Schedule 5 refers to "matters". Are "matters" and "functions" the same thing?
Lord Sewel: I was brought up to understand that "functions" are things that are done; "matters" may be subjects. That is the fundamental difference.
Perhaps I may reply to the noble Lord, Lord Mackay of Ardbrecknish. Clearly, the matter before the Committee at this stage is Amendment No. 173ZA, but it may be useful if I speak to Amendments Nos. 193ZA, 293AA, 273AB and 294A for the sake of completeness.
Perhaps I may continue from where I was. The devolution of functions which are exercised at sea has raised particular questions for the Bill, which have required careful thought, and the Government are now in a position to table a set of amendments to ensure effective devolution.
As Members of the Committee will understand, the exercise of ministerial and other functions in relation to the regulation of sea fishing will often mean that functions are being exercised outside Scotland. In passing, I should remind the Committee that, for the purposes of this Bill, Scotland includes the 12-mile territorial seas around Scotland, as provided in Clause 112.
When such regulatory functions are exercised outside Scotland, there will need to be clear connections to Scotland to justify action being taken by Scottish Ministers and for Scottish courts to recognise jurisdiction in trying offences under Scots law. At sea, however, it is possible to envisage various possible connections to Scotland that might be thought to satisfy the condition "as regards Scotland". Equally, it might be possible to establish various connections to other parts of the UK in respect of any particular function.
This possibility of various such connections being recognised will mean that there will be legitimate grounds for doubt as to whether an existing function is or is not exercisable "in or as regards Scotland", and therefore whether or not it does transfer to a Scottish Minister.
Amendment No. 173ZA to Clause 29 is intended to address that specific doubt, by enabling an Order in Council to be made to specify when existing functions are or are not exercisable in or as regards Scotland. By enabling such doubts to be resolved, such Orders in Council will make clear when existing functions may be transferred to Scottish Ministers under Clauses 49 or 59, and thus avoid the risk of both Scottish and UK Ministers seeking to exercise identical functions. This power will be used principally for fisheries functions, but will have other uses, for example, in relation to

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protection of the marine environment. It will also be able to be used for the purposes of Clause 28 so as to clarify the circumstances in which an Act of the Scottish parliament can confer functions upon Scottish Ministers in or as regards Scotland.
Amendment No. 193ZA to Schedule 5 introduces a specific reservation to make clear that the competence of the Scottish parliament will not extend to regulating sea fishing beyond the Scottish zone, except in relation to Scottish fishing boats. This amendment is to address a similar but complementary concern to that I have already described; that to ensure that functions in relation to sea fishing which may be considered to satisfy the condition "as regards Scotland" should not enable the Scottish parliament or Scottish Ministers to act in relation to non-Scottish fishing boats operating outside those waters which are under the administrative responsibility of Scottish Ministers. All fishermen, not just UK fishermen, need to be clear when they are operating under the laws of Scotland or the laws of the rest of the UK. For laws which apply to sea areas, there needs to be a clear boundary between seas where Scots law will apply and where English law applies; and for that boundary to be fully effective, the Bill needs to make clear that it will be beyond the competence of the Scottish parliament or of Scottish Ministers to regulate fishing outside the zone where Scots law does apply.
The introduction of this reservation requires us to introduce into the Bill two concepts which need clear definition: the Scottish zone, where Scottish Ministers will be responsible for regulating sea fishing; and Scottish fishing boats, which will be subject to regulation by Scottish Ministers, although subject also to local fisheries laws which apply when they are fishing outside the Scottish zone.
Amendments Nos. 293AA and 293AB (to Clause 112) provide for a Scottish zone to be established by Order in Council. Amendment No. 193ZA (to Schedule 5) includes a definition of Scottish fishing boats, by relying on the requirement for all such vessels to be registered under the Merchant Shipping Act 1955, and for their registration to indicate a port chosen by the vessel's owners.
I am conscious that the requirements to implement devolution for sea fisheries has raised interesting problems for our legal advisers, and indeed for UK fisheries Ministers who remain rightly determined to ensure that UK obligations to manage fisheries under the common fisheries policy are implemented effectively. The Government wish to avoid any gaps emerging in our enforcement of EU legislation for sea fisheries, even if that appears to provide for overlapping responsibilities of fisheries Ministers after devolution. In particular, that objective may require further amendment to the Bill to ensure that certain regulatory functions can, if necessary, be exercised concurrently by both Scottish and UK Ministers.
At the same time, we are concerned to avoid introducing unnecessary complications in the administration of fisheries for the fishermen themselves.
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By introducing an explicit reservation in relation to the regulation of sea fishing by non-Scottish boats outside the Scottish zone, the Bill should provide greater certainty about the management responsibilities of the respective fisheries Ministers within the UK and of the Scottish parliament.
In effect, Scottish Ministers will be responsible for managing fisheries within the Scottish zone and for managing Scottish boats; and MAFF Ministers will be responsible for managing fisheries within the English zone and for managing English boats. The responsibilities of the Welsh and Northern Irish Ministers and assemblies will be a matter for their respective Bills.
This overlapping set of responsibilities, which arises because of the need to regulate both by sea area and by fishing boats which may operate in various areas, opens up a possibility that UK fishing boats in future may be required to operate under the authority of separate licences issued by the fisheries administrations of the different parts of the UK.
I would like therefore to take this opportunity to make it clear that, although the Bill opens up such a possibility, it does not inevitably lead to a requirement for separate licensing systems to apply simultaneously to all UK fishing boats; quite the contrary. Although none of us can commit the Scottish executive, my right honourable friend the Secretary of State expects that the current licensing arrangements, based on issue of a single licence, should continue to operate with minimal disturbance. We expect fishermen will operate under licences issued by the fisheries Minister responsible for that part of the UK where their fishing boat is registered; and that their licence will be both valid and enforceable around the UK, in much the same way as at present. I beg to move.
10.30 p.m.
Lord Dixon-Smith: Before we leave this subject, can the Minister confirm that when, on fisheries matters, he refers to "the English zone", he means "the United Kingdom zone"; otherwise we are introducing a dimension separate from the Bill?
Lord Sewel: No, I think that in this case I do mean "the English zone" because the Northern Ireland and Welsh considerations must be taken into account.
Viscount Thurso: In this amendment, the Minister has introduced two points; first, the concept of functions, which I think that I follow although I am not sure about it. Secondly, he referred to fisheries. The noble Lord will know from our correspondence and many conversations of my interest in fisheries in Scotland, as chairman of Scrabster Harbour Trust, and the importance that I attach to that. I cannot pretend for a moment that I have fully taken on board what the Minister has said. As he indicated that there will be an opportunity to speak to that question at a later stage, rather than try to comment now, I should like to study what he said. If he has anything available by way of an explanatory note, I should be extremely grateful to receive a copy.

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I turn to the first point with which I started: the introduction of the concept of functions. I regard Clause 29 as extremely important. All of the previous three clauses that we have debated are interlinked. I am not sure whether my comments should be directed to the amendment of the noble Lord, Lord Sewel, the amendments tabled by the noble and learned Lord, Lord Mackay of Drumadoon, or the intention of the noble Lord, Lord Renton, to oppose that the clause stand part. I shall take this opportunity to comment generally on Clause 29 and hope that it will remove the need for a later intervention.
Clause 29 as a whole deals with the ability of Ministers by Order in Council to make modifications to Schedules 4 and 5 which are the reserved matters. It is impossible to discuss this clause without going back to the debate on Amendment No. 144 in the name of my noble friend Lord Steel. In that short debate the noble Lord, Lord Sewel, extremely seductively and with great skill sidetracked the Committee by a discussion on federalism. That was not the question in point. If the definition of sovereignty is the final power in any matter, by virtue of the fact that the Parliament at Westminster retains the right to modify, amend or repeal this Act at a later stage clearly sovereignty is retained. Therefore, sovereignty is never in question.
However, we took into account the comments of the noble Lord and his assurance as to the seriousness with which matters were to be devolved and reserved. The clause permits by Order in Council the matters within Schedules 4 and 5 to be changed almost by the flick of an administrative pen. This is a very technical area. Since I am not a lawyer I am happy to be corrected. However, given all of the assurances that we have received about the seriousness with which the Government intend to devolve matters to the Scottish parliament, and their firm intention—which we do not doubt; indeed, we share it—that that parliament will have full exercise of those devolved powers, it is extraordinary in the face of those goods intentions that a clause should allow a UK Minister, by an administrative flick of the pen, to remove or add to the reserved powers.
In discussing this matter with my noble friends a short while ago I suggested that if there was no satisfactory explanation this would be the place, if not in the context of my noble friend's amendment, where we should table an amendment. I shall not make the exaggerated claim that this goes to the heart of the Bill. However, I believe that it goes to the heart of the question whether the message that the Government intend to send to the people of Scotland is that this is substantive devolution or just window-dressing. I apologise to the Committee if I have strayed into a debate on Clause 29 stand part but these matters are so complicated that I want to get my oar in before the matter disappears.
Lord Kingsland: I have three very short questions to put on Amendment No. 173ZA. First, on whose advice is it intended that Her Majesty shall act? Secondly, is the Minister aware of the breathtaking scope of this authorisation of delegated legislation to amend primary legislation?
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Thirdly, is the Minister aware that under a part of the Bill which is supposed to be devoted to legislation he has included an amendment which deals with executive functions? Would it not be more proper, as well as more elegant, to include the substance of Amendment No. 173ZA under ministerial functions starting in Clause 41?
Lord Mackay of Ardbrecknish: This group of amendments is a puzzling mix. I had not paid much attention to Amendment No. 173ZA because that was in a part of the Bill with which my noble and learned friend Lord Mackay of Drumadoon was dealing. For some reason that I cannot understand he seems to think that Amendment No. 193ZA and so forth is well within my bailiwick because it mentions fish.
Perhaps I can be sure that we are taking the whole of the group which starts with Amendment No. 193ZA and which includes Amendments Nos. 293A and 293B tabled by my noble friend Lord Selkirk of Douglas, so that my noble friend does not lose the opportunity to speak on the issue of sea fishing. I shall start with the simpler matter, although fishing is never simple.
After his explanation, I think that I understand what the Minister is doing. I was puzzled when I saw the amendments, but I understand that he is making it clear that he is dealing with vessels fishing within the Scottish zone, which is out to the median line, I presume, or the 200-mile limit in the North Sea. I think that it is bound to be the median line. Down around the south of Islay it is bound to be the median line with Northern Ireland, I would guess. Vessels fishing there are clearly fishing in Scottish waters when it comes to the application of the law. That is the point to make to my noble friend Lord Dixon-Smith: it is to make it clear that Scottish law will prevail with regard to fishing vessels fishing in those waters, whereas, of course, English and Welsh law will prevail if they are fishing in waters which are within the English zone. I understand that.
I understand also from what the Minister said that the exception in relation to Scottish fishing boats outside the fishing zone does not include the rules and regulations, so we will not have the position, as I thought we might have, where the Scottish Office would have to make the rules and regulations for Scottish fishing boats fishing, say, off the south west of England. These boats will be regulated by MAFF which will have given them a licence to fish in that fishing zone. Presumably, being law-abiding Scots they will fish only if they have a licence.
My problem occurs when I am asked to tie in Amendment No. 173ZA with these amendments on sea fishing which all go together. The Minister suggested at the start that Amendment No. 173ZA applied only to the new Section 5A on sea fishing, but he then indicated that it did not; that it could apply to Clause 28. I wondered why an amendment of such breadth and -dare I say?—close to being a Henry VIII provision, if not firmly being in Henry VIII territory, had been introduced at this stage when the Delegated Powers Scrutiny Committee has completed its scrutiny of the Bill.

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My noble friend Lord Kingsland came in on that point. Amendment No. 173ZA is extraordinarily wide. If the Government want it to refer to sea fishing that is what it should say. If it goes wider than that, it should have been separated from the sea-fishing amendments to prevent us thinking that it applied only to the sea-fishing provisions. I am content with the sea fishing amendments. I have taken advice. Having listened to the Minister, I shall consider what he said before Report stage. I am reasonably content with what he said about sea fishing. However, like my noble friend Lord Kingsland, I am less than happy with Amendment No. 173ZA. I hope that the Minister can give me some words of assurance; otherwise I may be disposed to divide the House.
10.45 p.m.
Lord Sewel: Perhaps I may recap and I hope give some assurance to noble Lords who have spoken on these amendments.
The amendments are required, first, in order to ensure that there is an effective transfer to Scottish Ministers of functions in relation to the regulation of Scottish sea fisheries; and, secondly, to ensure that the competence of the Scottish parliament and of Scottish Ministers does not extend to regulating sea fishing by non-Scottish boats outside the Scottish zone of British fishery limits. Those are the two issues that the amendments seek to address.
Lord Renton: I am grateful to the Minister for giving way. We are dealing with the powers of parliament not with the powers of Ministers.
Lord Sewel: The proposed Order in Council does not modify enactments but merely provides what functions are or are not exercisable in or as regards Scotland.
Perhaps I may deal with another direct point. The Order in Council power in Clause 29 is exercisable by the Queen and is subject to affirmative procedure both at Westminster and in the Scottish parliament. The ministerial advice to the Queen would be given by the UK Minister.
I refer specifically to the amendment that gives the noble Lord, Lord Mackay of Ardbrecknish, some concern. The purpose of Amendment No. 173ZA is to clarify which existing ministerial functions will transfer to Scottish Ministers—it is as simple as that—by providing for Her Majesty by Order in Council to specify which functions are or are not functions exercisable in or as regards Scotland. This provision should therefore clarify when functions which are exercisable outwith Scotland are in fact exercisable as regards Scotland by virtue of some other connection to Scotland.
It will be used principally for fisheries functions. That is its principal objective. However, having set this pattern, this framework, this arrangement, it is possible that there will be other uses—for example, in relation to the protection of the marine environment. I think that we are over-egging the pudding a little if we see it as
842
some major matter of principle. The amendment seeks to deal with the specific issues of what functions should be exercisable by Ministers and the parliament in relation to the coastal areas around Scotland; and in particular the difficulty of fisheries where one has zones, boats and licences.
Lord Selkirk of Douglas: The Minister included Amendment No. 193ZA and the group associated with it. I have tabled Amendments Nos. 293A and 293B. Amendment No. 293A seeks to leave out "adjacent to" and insert "surrounding". The purpose was to clarify the definition of Scotland to include the internal waters and territorial sea. The definition in Amendment No. 112 seemed unclear, and the amendment sought to clarify it. I should be grateful if the Minister has time to consider it.
Lord Sewel: I can deal with that matter now, although there will be an opportunity later to discuss it in detail. However, I can assure the noble Lord that in all fisheries legislation the term "adjacent to" is the term that is used. The term "surrounding" is not a term which is used in fisheries legislation.
Lord Mackay of Ardbrecknish: As I said when I intervened the first time, I am reasonably content with the fisheries part, which I had expected to be taken separately. I will certainly read what the noble Lord has said and will take advice on it but, as I understood it, I am reasonably content with what he said. I remain profoundly concerned about Amendment No. 173ZA. If it has principally a fisheries function, I believe that ought to be said very clearly. If it has other uses then those ought to be put clearly, but as it stands it seems to me to be extraordinarily wide and it gives the executive very considerable powers. I really am very unhappy and, as my noble friend said, it probably is not even in the correct part of the Bill. I think it would be far safer if the Minister would take this particular amendment away and reconsider it. He could then bring it back, if he wants to, at the appropriate part of the Bill, and much more tightly drafted so that it actually applies to those matters to which it is supposed to apply and is not capable of being applied to anything else.
I have little doubt that the noble Lord could take this away and come back at Report stage in October, after he has thought about the matter. I would urge him to do that; or, indeed, he could do as my noble friend suggested and place it in Clause 41—which I do not think we will reach tonight. I think there will be time for him to put down a suitable amendment to that clause.
Lord Sewel: I have listened to what noble Lords have said and to the concerns they have expressed. I would prefer to maintain the present position and persist with the amendments, but I give the undertaking that I shall reflect upon what noble Lords have said yet again, over the long summer evenings that beckon—there is little else to do, given the state of the weather!
10.53 p.m.
On Question, Whether the said amendment (No. 173ZA) shall be agreed to?
Their Lordships divided: Contents, 44; Not-Contents, 29.

Division No. 1

CONTENTS

Alderdice, L.

Linklater of Butterstone, B.

Brooks of Tremorfa, L.

Lockwood, B.

Burlison, L.

McIntosh of Haringey, L. [Teller.]

Carlisle, E.

Carmichael of Kelvingrove, L.

Mackie of Benshie, L.

Carter, L. [Teller.]

Mar and Kellie, E.

Dean of Beswick, L.

Monkswell, L.

Desai, L.

Paul, L.

Dubs, L.

Pitkeathley, B.

Evans of Parkside, L.

Ramsay of Cartvale, B.

Falconer of Thoroton, L.

Rea, L.

Farrington of Ribbleton, B.

Rendell of Babergh, B.

Sewel, L.

Gilbert, L.

Smith of Gilmorehill, B.

Gordon of Strathblane, L.

Steel of Aikwood, L.

Grenfell, L.

Stone of Blackheath, L.

Hacking, L.

Thomas of Macclesfield, L.

Hardie, L.

Thomson of Monifieth, L.

Hardy of Wath, L.

Thurso, V.

Haskel, L.

Tope, L.

Hayman, B.

Watson of Invergowrie, L.

Hoyle, L.

Whitty, L.

Islwyn, L.

Young of Old Scone, B.

NOT-CONTENTS

Balfour, E.

Mackay of Drumadoon, L.

Byford, B.

Minto, E.

Carnegy of Lour, B.

Montrose, D.

Chesham, L.

Palmer, L.

Courtown, E. [Teller.]

Park of Monmouth, B.

Dundonald, E.

Renton, L.

Dunleath, L.

Rowallan, L.

Saltoun of Abernethy, Ly.

HolmPatrick, L.

Selkirk of Douglas, L.

Kenyon, L.

Sempill, L.

Kingsland, L. [Teller.]

Stair, E.

Kintore, E.

Stodart of Leaston, L.

Lindsey and Abingdon, E.

Torphichen, L.

Lucas of Chilworth, L.

Trefgarne, L.

Mackay of Ardbrecknish, L.

Weir, V.

Resolved in the affirmative, and amendment agreed to accordingly.
11. p.m.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 173A:
Page 15, line 27, at end insert—
("( ) Subsection (2) above does not permit any amendment to be made to the provisions of paragraphs 1 to 5 of Part I of Schedule 5 by Order in Council.").
The noble and learned Lord said: This amendment is grouped with Amendment No. 173B. Both seek to achieve the effect that certain specified parts of Schedule 5 shall not be amendable by Order in Council passed in furtherance of the powers set out in Clause 29(2) as currently drafted.
The two parts of Schedule 5 to which I seek to apply this restriction are, first, that which is to be found on page 64 of the Bill; namely, the first five paragraphs of
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Part I which deal with various important constitutional matters. In my submission, it is self-explanatory that, if there were to be any change in the provisions set out in those paragraphs, it should only be done by way of primary legislation, which would be subject to the full detailed scrutiny of an amendment not only of this Chamber but also of another place.
Amendment No. 173B deals with a matter which is set out on page 82 of the Bill under "Head 11"; namely, Section 1, which refers to a "reservation" as regards the important matter of judicial remuneration, with four separate subparagraphs listing the different judges in Scotland.
Some weeks ago, I attended a very interesting seminar held by the Faculty of Advocates in which the noble and learned Lord the Lord Advocate and I took part. It was held under the Chatham House rules and, therefore, I am unable to indicate who said what. However, it is possible for me to indicate what views were expressed. Among the issues discussed and to which contributions were made was the issue of the importance of judicial remuneration being a reserved matter. My understanding of what was said is as follows.
When the Government came forward with their proposals for a devolution settlement and set them out in the White Paper prior to the referendum and it became clear that, as a result of the referendum, a devolution Bill was to be presented to Parliament, various representations were made on behalf of the judiciary in Scotland that they should continue to be regarded for the purposes of salary and pension provision on the same footing as they currently enjoy with judges in other parts of the United Kingdom. Indeed, if this equal footing which has applied for many years now were to be departed from, there would be a risk of judges in Scotland—or, at least, certain categories of them—falling behind and their status being diminished.
I pick up a point which I made earlier this evening in referring to what the noble and learned Lord, Lord Hope of Craighead, said in his Second Reading speech on the Bill. It is of the utmost importance that the independence of the judges be maintained and that their status and the respect in which they are held by society should not be diminished in any way.
If—as will be possible—it will fall to judges in Scotland to set aside provisions of an Act of the Scottish parliament, or provisions in statutory instruments and secondary legislation made by members of the Scottish executive, it is not impossible that this will lead to an element of political controversy. They will have—as indeed will judges in other parts of the United Kingdom—a far greater role to play in dealing with primary legislation in particular than is possible for judges when they are construing and applying primary legislation coming from this Parliament. It is for that reason that the Scottish judges felt that judicial remuneration should be reserved. The Government sensibly and constructively accepted those representations; hence the provisions that are to be found on page 82 of the Bill. It seems to me sensible

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that if these provisions are to be amended, that should take place only as a consequence of primary legislation which is fully debated in both Houses of this Parliament. I beg to move.
Viscount Thurso: Before I speak to Amendments Nos. 173A and 173B, I wish to comment briefly on the previous debate as I did not realise that the noble Lord, Lord Mackay of Ardbrecknish, was going to divide the Committee so quickly. I was therefore unable to speak at that point. However, I wish to explain why I persuaded my noble friends to join me in the Government Lobby. Our objection is to the totality of Clause 29 and the implication that amendments to devolved matters and reserved matters cannot be dealt with by Order in Council. Therefore if there is anything that we might support, it would be the intention of the noble Lord, Lord Renton, to oppose the Question that the clause stand part of the Bill.
However, we also feel that, given the complexity of what we are discussing, and particularly the complexity of the amendments that have been moved by the Government, we prefer to wait until a later stage to determine what course of action we wish to take. At this stage we think it is preferable to read what has been said before making such decisions. That is why I persuaded my noble friends to follow me into the Government Lobby.
Turning to the two specific amendments, I do not see any great harm in Amendment No. 173A. The principle of the Bill is to devolve devolved matters, and to reserve reserved matters. Since the amendment reinforces the reserved matters, I do not mind that at all. What I am looking for is the other side of the coin; namely, that devolved matters are well and truly devolved.
Amendment No. 173B afforded me some amusement when I read it, given the volume of lawyers, judges and potential judges taking part—that their status and pay is the one matter above everything else that needs to be enshrined in this legislation forever.
Lord Hardie: As the noble and learned Lord said, these amendments prevent future changes to certain parts of the list of reserved matters by Her Majesty by Order in Council. There has been singled out the constitution, in paragraphs 1 to 5 of the schedule, and also judicial remuneration, to which the noble and learned Lord drew our attention.
Any Order in Council requires an affirmative resolution of both Houses of this Parliament. In addition it would require the approval of the Scottish parliament. So the three Houses would effectively consider the matter.
The advantage of the Order in Council mechanism is that it allows changes to the list of reserved matters to be made promptly by agreement, with both Holyrood and Westminster having an opportunity to debate and approve the proposal. These amendments would remove that flexibility and would mean that any changes to these matters would require to be done by primary legislation. We do not consider that that is necessary,
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given that the Order in Council procedure is affirmative and would be introduced only in the event of the agreement of both Holyrood and Westminster.
The primary legislation route is undesirable in the context of these amendments, because it seeks to introduce the concept of first and second-class reserved matters. It has a different procedure for the constitution and judicial remuneration from other reserved matters. It is our contention that all matters that are reserved to Westminster are of equal importance and must be seen as such.
I can understand that noble Lords may have some concerns that an Order in Council would mean less control over any changes by the UK Government and Parliament. However, we see no reason why that should be the case. Not only does there have to be the agreement of the United Kingdom Government before the order is drafted, but it requires an affirmative resolution of both Houses of this Parliament and would also require the support of Holyrood.
I do not share the concerns of the noble and learned Lord, Lord Mackay of Drumadoon, about the effect on judicial independence. The independence of the judiciary is not threatened by the provision that the list of reserved provisions relating to remuneration may be altered by Order in Council. It is inconceivable that the United Kingdom Parliament would bring forward an Order in Council which would distinguish between the judiciary in England and Wales on the one hand and the judiciary in Scotland on the other. I cannot imagine that any government would do that. All governments are jealous of the principle of judicial independence.
That is a further protection in relation to the point raised by the noble and learned Lord that, because of the involvement of the judiciary in reviewing legislation, considering legislation or even striking down legislation on occasions, there may be a temptation for the Scottish parliament to wreak vengeance. But that would not be open to it because it requires the Order in Council to be approved in both Houses of this Parliament.
For those reasons I respectfully submit that these amendments ought not to be agreed to. I invite the noble and learned Lord to withdraw his amendment.
Lord Ewing of Kirkford: Before the noble and learned Lord, Lord Mackay of Drumadoon, responds to the invitation from my noble and learned friend, perhaps I may express my gratitude, having just entered the Chamber, to the noble Viscount, Lord Thurso, for mentioning the Division that took place some minutes ago. Perhaps I may indicate to the Committee that I was dining in another part of the Palace of Westminster, and there was no indication whatever that a Division was taking place in this House.
I have had reason to complain in recent weeks about the fact that in another part of the Palace of Westminster there was no indication that Divisions were taking place in your Lordships' House. I find that totally unsatisfactory. Tonight a Division took place and my noble friends on the Front Bench were successful in their prosecution of the case and carried the Division in the lobbies; but, when I look at the verdict that was

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recorded, the result could as easily have been different. The other place rose much earlier tonight. It seems to me that when that happens there is a breakdown in communication.
Members on all sides may say, "He is defending his own position, having missed the vote". In some ways I am, because I happen to be on the roster of those who should be here tonight and should vote in any Divisions. I did not do so because I was not told that a Division was taking place. I wish to record the fact that there was no indication in the other part of the Palace of Westminster, where I was dining, that a Division was taking place. I plead that the House officials should take notice of what happened earlier tonight.
11.15 p.m.
Lord Whitty: Before the noble Lord replies to the debate, perhaps I may respond to my noble friend. As he said, a number of these occasions have arisen. When another place rises before us, the annunciators there are switched off, in the same way as our annunciators are switched off when we finish our business. There is clearly a new point here which we need to raise with the House officials and the officials of another place, as my noble friend suggests. We shall do that.
Lord Ewing of Kirkford: It is one thing to switch off the annunciators; it is a different thing to switch off Members of your Lordships' House. I was switched off; it is as simple as that.
Lord Mackay of Drumadoon: I agree with everything that the noble Lord said. In my room, when Divisions are called in both Houses at the same time, various bells ring, which make it bewildering as to where one is meant to go. I am disappointed that the noble Lord was not here for the Division. I am quite sure that, having listened to the argument advanced by my noble friend Lord Mackay of Ardbrecknish, he would have voted in support of his opposition to the somewhat extraordinary position adopted by his noble friends. He can be grateful that his conscience can be clear as a result of being elsewhere.
I find what the noble and learned Lord the Lord Advocate said about all reserved matters being equally important a somewhat curious proposition to take on board. I happened to open the Bill at page 82, lines 6, 7 and 8, and see among the reserved matters,
"The subject-matter of the Public Lending Right Act 1979".
I personally have some difficulty equiparating the importance of that with what is set out in paragraph 1 of Part I of Schedule 5 on page 64.
I do not labour the matter of judicial remuneration. Those who are in receipt of it are well able to argue in their own cause, as the noble and learned Lord, Lord McCluskey, did to some considerable effect at Second Reading. But, in his absence, it was appropriate that the matter should be raised.
I concede that the noble and learned Lord the Lord Advocate was right to draw attention to the provisions which will apply when the Order in Council procedure is followed; namely, that affirmative resolution will be
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required in this Parliament and in the Scottish parliament. Therefore I fully accept that it is not a straightforward question of the Scottish parliament amending these provisions by their own hand.
I have some lingering concerns, but, in view of the fact that the noble Lord, Lord Ewing, is in his place and would no doubt vote for the Government on this occasion, I shall not press the amendment to a vote. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 173B not moved.]
On Question, Whether Clause 29, as amended, shall stand part of the Bill?
Lord Renton: I tabled this Motion not with the intention of dividing the Committee but in order to draw attention to the fact that Clause 29 and Schedule 5 together deal in a complicated way with reserved matters; that is, matters on which the Scottish parliament will not have power to legislate. It happens to be a Henry VIII clause which can be altered merely by Order in Council, though subject to affirmative resolution by both Houses of Parliament. But it is done in an extremely complicated way.
Reserved matters are exceptions to the general power stated in Clause 27 given to the Scottish parliament to legislate. But it is done in Schedule 5 by making reservations and then exceptions to reservations over pages 66 to 83—17 pages in all. They are fine distinctions and there are bound to be disputes as to whether a matter is reserved.
It is not until we reach Clause 91 and Schedule 6 that we find the arrangements that are to be made for resolving the uncertainties, which I suggest are bound to arise. There, under the heading of "Devolution Issues", the Bill sets out in Schedule 6 (not in the clause, as one might have expected) that arrangements are made for the determination of such issues by proceedings to be instituted either by the Advocate General or the Lord Advocate. I do not see why it should be one or the other: I should have thought it best that that responsibility should not be divided between the two but should be placed upon one or other of them.
In paragraph 7 of Schedule 6 we find that that vitally important matter is to be decided judicially. It is just tucked away in the schedule. That is not the way in which we are accustomed to legislate. It may be that, as the matter went through its rather cursory proceedings in another place and because we should not try to change the Bill too radically, there is not much we can do about that. But we have the long Recess between now and Report stage and I hope that the Government realise that in this important matter of granting devolution to the Scottish parliament we should make the matter as clear as possible. We should try to avoid uncertainties which will give rise to the need for judicial decisions.
It may be too much to hope for. But between now and next October I hope that the Government will consider whether it is possible to find some way of simplifying

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the whole procedure. I hope that I am not asking the impossible, but I feel bound to put it before the Committee.
Lord Mackay of Drumadoon: I rise to support my noble friend Lord Renton. We have already touched on the reasons why the Government consider that Order in Council procedure is appropriate for amending Schedule 5. For different reasons the noble Viscount, Lord Thurso, and I have reservations about that. It would be prudent if we all reflected on that over the Recess. Therefore, I do not intend to say any more tonight. However, I would not wish Clause 29 to stand part of the Bill without Ministers being aware that on these Benches there is concern about the terms of the schedule being amended, one way or another, by the Order in Council procedure.
Viscount Thurso: As I indicated earlier, I am not sure where to intervene in relation to Clause 29. I have already said most of what I want to say. However, I very much agree with the general sentiments put forward by the noble Lord, Lord Renton, about the great danger in using these mechanisms to achieve these ends. This is a large point of principle for us. We want to see clarity between the parliaments. We want changes to the legislation to be made by primary legislation after proper discussion and not by the back-door. We do not believe that it is an issue of sovereignty. Having said that, the noble Lord, Lord Sewel, said that he was interested in clarifying the functions. In that regard, if this can be so worded as to deal with functions rather than changes to the legislation, I would have some sympathy with him.
The noble Lord also said, if I understood him correctly, that this would be put forward by a UK Minister subject to affirmative resolution at both Westminster and at Holyrood. When he comes to respond, perhaps he will confirm that that means that if Holyrood chose not to so resolve the order would lapse.
Lord Sewel: I wonder whether I may deal with that point straight away. As the Bill stands, Schedules 4 and 5 can be modified by Her Majesty by Order in Council. As I said, that would be subject to the affirmative procedure both at Holyrood and at Westminster. I make that absolutely clear. One would need both Holyrood and Westminster to agree to any switching around in that regard.
I spoke about this earlier but I should like to re-emphasise that, without that mechanism, not only is a great deal of flexibility lost but it would deny the Scottish parliament the opportunity to debate and approve any changes to the list of reserved matters. If one did not have the affirmative procedure in both parliaments, one would fall back, as the noble Viscount recognised, on primary legislation in this Parliament. If one did that, it would mean that the Scottish parliament would not have the opportunity to make a direct contribution on which matters would be reserved and which matters would be devolved subsequent to the Bill being enacted. This is a quite deliberately constructed
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procedure to make sure that arrangements can be agreed between the two parliaments on the allocation of subjects between reserved and devolved. Any other route would abstract the Scottish parliament from that procedure. Rather than the provision somehow weakening the contribution and locus of the Scottish parliament, it is actually strengthening it.
Lord Steel of Aikwood: Can the Minister say where exactly the Bill tells us that this will be subject to affirmative resolution in the Scottish parliament as well as in the two Houses here?
Lord Sewel: I am happy to make that precise point by writing to the noble Lord. But I have to tell the noble Lord that I am telling him that it would be subject to that procedure.
Clause 29, as amended, agreed to.
Schedule 5 [Reserved matters]:
Lord Rowallan Lord Rowallan moved Amendment No. 174:
Page 64, line 8, at end insert ("including the holding of referendums on questions relating to the maintenance of that Union,").
The noble Lord said: I shall speak only to Amendment No. 174. My noble and learned friend Lord Mackay of Drumadoon will speak to the other amendments in the group.
Schedule 5 concerns the reserved matters. Paragraph 1 of Schedule 5 sets out five of them. By far the most important, as far as I am concerned, is set out in subparagraph (b),
"the Union of the Kingdoms of Scotland and England".
I believe that all parts of the House will agree that that is very important. The whole idea of this Bill is to make quite certain that the Union remains.
Earlier I tried to include a pre-legislative referendum on whether there should be an independent vote at some stage and I was advised that the Government did not like that. This is a classic position for it to be included; namely, after
"the Union of the Kingdoms Scotland and England, including the holding of referendums on questions relating to the maintenance of that Union".
Surely, it would be ultra vires to have a referendum at all to discuss it. Therefore, I would like to see this provision in this place. I beg to move.
11.30 p.m.
Lord Mackie of Benshie: We have a certain amount of sympathy with the object, but we do not believe that this is the way to go about it. The noble Lord is of course terrified that the SNP will sweep all before it and before we know where we are, it will be holding a referendum on this point. I do not believe that that is going to happen. I would take bets that there is going to be no overwhelming victory for the SNP when the election takes place.
There is a great deal of good sense to be put to the Scottish people. We have to concentrate on the job of curing the ills of Scotland and promoting its virtues. The ills are many, including the health of the people of

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Scotland, which is about the worst in Europe. We have to do something about that. There is real work to be done. We have to promote the virtues of enterprise which are shown so often in other parts of the world. We have to promote them at home in relation to agriculture, fishing and marketing. There is a host of matters that the Scottish people want us to pursue.
We should leave the question to the Scottish parliament and go flat out to persuade the people of Scotland to elect sensible people who will not waste time on referendums of this sort.
There are snags. If the Scottish people were foolish enough to elect people who did, it appears to me that the question put is very important. It would be quite wrong to leave that to the Scottish parliament. I saw a question put on a referendum in Quebec. It more or less said, "If you want to go to heaven, vote for a separate Quebec". These questions need to be addressed, but on the whole there is no question but that this matter should be left to the Scottish people. We have a responsibility to see that good people get into the parliament.
Lord Mackay of Drumadoon: The differing views expressed by my noble friend Lord Rowallan and the noble Lord, Lord Mackie, illustrate the importance of the matter being clarified at this stage. The purpose of the three amendments which I have tabled, which are Amendments Nos. 176, 177 and 259A, is two-fold. The first two amendments endeavour to place on the face of the Bill in unequivocal terms this Parliament ruling in effect whether or not it would be competent for a Scottish parliament,
"to enact an Act of the Scottish Parliament authorising the Scottish Executive to hold a poll in Scotland for the purposes of ascertaining the views of those polled as to whether or not Scotland should become independent of the United Kingdom".
Amendment No. 259A has a different but equally important purpose, which is to set out on the face of the Bill that the Scottish executive can hold polls or referendums only when it is authorised to do so by an Act of the Scottish parliament and that any such Act must specify, among other things, certain key points: namely,

"(a) when, and in which area, a poll is to be held,

(b) who shall be eligible to vote in any poll, and

(c) the wording of any questions or propositions to be put to those polled".

In another place, the issue of the competency of holding a referendum on whether Scotland should remain part of the UK was raised on more than one occasion. In dealing with that issue on 12th May at col. 256 of the Official Report, in response to the specific question put to him by my right honourable friend Mr. Ancram,
"Does that mean that a referendum on the Union also will be a reserved matter and not available to the Scottish Parliament?"
the Secretary of State replied in these terms:
"It is clear that constitutional change—the political bones of the parliamentary system and any alteration to that system—is a reserved matter. That would obviously include any change or any preparations for change …
If one assumes that that is a way of changing the constitution, no, it is not in the power of the Scottish Parliament to change the constitutional arrangements …
A referendum that purported to pave the way for something that was ultra vires is itself ultra vires".
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Those views were echoed by the noble and learned Lord the Lord Advocate at Second Reading when, on 18th June, at col. 1787 of the Official Report, he said:
"The present Government have no plans for such a referendum, nor can the Scottish parliament legislate for such a referendum".
In the other devolution Bills going through Parliament at the moment the holding of polls is addressed. In Clause 36 of the Government of Wales Bill, it is provided that the assembly may hold a poll in an area consisting of Wales or any part of Wales for the purposes of ascertaining the views of those polled about whether or how any of the assembly's functions, other than those set out in Clause 33, should be exercised. The clause goes on to set out in terms similar to those in my amendment, Amendment No. 259A, the need for the assembly to determine certain key issues, including whether a poll should be held and, if so, where and when. In Part I, Clause 1 of the Northern Ireland Bill, there is again provision for the holding of a poll, reinforced by certain details set out in Schedule 1.
No similar provisions are to be found in this Bill. I believe that there should be such provisions. It is inevitable that the issue of the holding of referendums or polls will arise. Indeed, it already has. It may be possible to speculate that to some extent the attitude adopted by the Secretary of State for Scotland and his colleagues in casting doubt on the competency of a referendum on independence has played into the hands of the SNP and is one of a number of reasons why it is doing well in the polls at the moment. Time will tell whether that will prove permanent, but it is certainly possible for the SNP to say that this refusal to give the Scottish parliament the power to hold a poll is yet another example of a Labour Government being run by London and not allowing the Scottish people to be trusted to take decisions affecting their own future.
Notwithstanding the argument explained by the Secretary of State in another place and repeated by the Lord Advocate at Second Reading, I believe that it would be perfectly possible to construct a respectable legal argument that it was within the legislative competence of the Scottish parliament to pass an Act of Parliament authorising the executive to hold a referendum on the issue of whether those who voted in Scotland wished Scotland to be separate from the UK. It would be perfectly possible to construct an argument that it would assist members of the Scottish parliament in the discharge of their devolved legislative and executive duties to be aware of the thinking of Scottish people on that very important issue.
Many noble Lords will be aware that Strathclyde Regional Council recently felt it appropriate to hold a poll on the question of whether water should be privatised in Scotland. Taking a slightly different tack, other local authorities believed that it was appropriate to contribute to the work of the Scottish Constitutional Convention by making funds available to cover the costs that it incurred. When a decision to make such a payment by Grampian Regional Council was challenged by the Commission for Local Authority Accounts in Scotland it fell to the noble and learned Lord the Lord Advocate in a different guise to defend that council's decision. It was held by the court that it was well within the power of the local authority to support the work of the convention on the basis that in

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some way it might be in the interests of those who lived in the local authority area to have such work supported. Clearly, there was a different statutory framework in that situation, but I do not shrink from the suggestion that it would be perfectly possible for an Act of Parliament to be passed by the Scottish parliament authorising such a poll and for that to end up in the courts.
Throughout the debates on this Bill I have sought to make clear my belief that the courts should be involved in these matters as infrequently as possible. For that reason I have tabled Amendments Nos. 176 and 177 which are contradictory. I anticipate that when Amendment No. 176 is called I shall be told that if it is accepted by the Committee I shall be unable to move Amendment No. 177. My objective is to clarify the position. I have no wish to indicate whether it would be desirable to have such a referendum at an early date; there are arguments both ways. But I remain convinced that the law on this matter should be clarified. If it is not then the festering issue as to whether the Scottish parliament is competent to hold such a referendum will rumble on. In supporting my noble friend Lord Rowallan in his amendment, I urge the Government to indicate clearly whether it is their policy to accept Amendment No. 176 or Amendment No. 177.
The Earl of Mar and Kellie: Can the Minister, in reply, set out how it is possible to access such a referendum?
Lord Ewing of Kirkford: Before my noble friend replies, I believe that the noble and learned Lord, Lord Mackay of Drumadoon, falls into the fatal error that a whole host of Conservatives in Scotland have fallen into. They associate devolution with separation. What the Government are establishing at the minute is not a separate but a devolved Scottish parliament. There is no question in my mind or that of the Scottish Constitutional Convention, of which I had the honour for many years to be co-chairman with my good friend the noble Lord, Lord Steel of Aikwood, that the Scottish parliament should have the right to hold a referendum on the whole question of separation.
The noble and learned Lord, Lord Mackay of Drumadoon, and his colleagues in the Conservative Party in Scotland feed the SNP with sustenance by constantly putting the argument that a Scottish parliament may have the right to hold a referendum on separation. If it was honest, the SNP would argue that a general election was a proper forum in which to hold a referendum on separation.
There is no point in the noble Lord, Lord Mackay of Ardbrecknish, nodding his head in disagreement. In all my experience, down the years in general elections the SNP has argued for separation. I do not think that it would want to deny that. It has been denied that by the Scottish electorate. So where on earth the Scottish Conservative Party gets the idea that if there were a referendum in Scotland on the whole question of separation there would be a different result baffles me completely.
The Conservative Party in Scotland is sustaining the SNP in Scotland by the argument that the Scottish parliament should have the right to hold a referendum on
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whether Scotland should be separate. That is a matter for a general election not for the Scottish parliament. I hope that when he responds my noble friend the Minister will reject this whole question out of hand.
11.45 p.m.
Lady Saltoun of Abernethy: There is just one thing that I should like to say about this matter. In a general election there would be matters at stake other than just the question of separation. There almost always are.
Lord Sewel: I cannot resist the observation that Amendments Nos. 176 and 177 taken together, in the name of the noble and learned Lord, Lord Mackay of Drumadoon, finally produce the empirical evidence for which I have been seeking for a long time; that is, the slightly schizophrenic nature of the Conservative Front Bench facing in opposite directions at the same time.
Lord Mackay of Drumadoon: I am grateful to the Minister for giving way. Perhaps later he could invite his noble and learned friend the Lord Advocate to explain to him the legal concept of the Esto argument.
Lord Sewel: I do not need that, but I still think that it was a temptation that I could not resist.
I shall deal now with the other matters raised in the debate rather than the matter of substance. The noble Earl, Lord Mar and Kellie, asked how such a referendum should be accessed. It is simple: it is through an Act of the UK Parliament, because the union of the kingdoms is a reserved matter.
On Amendment No. 259A, on the issue that there should be a clause in the Bill specifying the ability to hold polls, and the nature of polls, we do not require a provision in the Scotland Bill to hold referendums or polls in respect of devolved matters. Unlike the Welsh assembly, the Scottish parliament already has legislative competence to arrange for any such poll on a devolved matter. That is the basic difference between the Scottish parliament and the Welsh assembly. The Welsh assembly lacks that legislative competence to provide for a poll or referendum on matters for which it is responsible.
I return now to the issue of substance—the holding of a referendum on independence. I wish the Committee to be in no doubt that as the Bill stands the Scottish parliament will not be able to legislate to hold a referendum on independence as the union of the kingdoms is already a reserved matter under Schedule 5. Explicit reference along the lines proposed by the noble Lord, Lord Rowallan, is just not needed.
In determining what relates to a reserved matter, the government amendments tabled to Clause 28 are of help here, because they indicate that we must look at the purpose of what is being done. If the parliament passed an Act to hold a referendum about whether the Union should continue, it would thus clearly be legislating in relation to the reserved matter of the Union. Any such Act would be about the continuation of the Union and it would therefore be beyond the parliament's competence and would not be law.

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Perhaps I may go through the three steps that lead to that conclusion. First, the parliament cannot legislate if the provision relates to a reserved matter. That is Clause 28(2)(c). Secondly, the Union of the Kingdoms of Scotland and England is a reserved matter by virtue of paragraph 1(b) of Part I of Schedule 5. Finally, legislation for a referendum on independence would be legislation about whether the Union should be maintained and would therefore relate to the reserved matter of the Union, and so be beyond the competence of the parliament. That is brought in by the purpose test which we discussed earlier.
I hope that Members of the Committee will be absolutely assured that the parliament does not have the legislative competence to legislate in order to provide for a referendum on independence. On that basis, I hope that the noble Lord will be able to withdraw the amendment.
Lord Rowallan: I thank the Minister for that full explanation, which I am delighted to hear. It gives me great comfort to know that my thoughts and his are one and the same on this issue.
I assure the noble Lord, Lord Mackie, that I am in no way frightened of the SNP. I have always maintained that most people vote for the SNP not for the independence of Scotland but because of the nationalism in the Scottish heart. I do not think that the situation would arise, but it was important for me to know that this parliament will work because the most important thing about the parliament is the unity of the United Kingdom. Taking assurance from the Minister, I beg leave to withdraw the amendment.
Amendment, by leave withdrawn.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 175:
Page 64, line 13, at end insert—
("(f) the continued existence of the House of Lords as a civil court of appeal.").
The noble and learned Lord said: While we are taking that dramatic news on board, perhaps I may turn to Amendment No. 175 which raises, in a probing manner, an important point; namely, whether or not the Government accept that there should remain available as the ultimate civil court of appeal in Scottish cases the Appellate Committee of your Lordships' House.
There are differing views as to whether or not that is a necessary implication from the Bill as drafted, in particular the provisions in Schedule 6 to which we shall turn in due course. Paragraph 32, dealing with proceedings in the House of Lords, may imply, if the Bill is enacted in these terms, that the House of Lords should remain available as an appellate court in civil matters albeit that it does not currently discharge such a function in criminal matters.
There is also the practical implication which flows from that: that unless it did so, it is unlikely that any of the Lords of Appeal in Ordinary would be appointed from lawyers who were trained in the law of Scotland, had practised in Scotland as Scottish lawyers, and had sat in Scotland as judges of the Court of Session. Over the years the civil law of both Scotland and England has benefited from the fact that two members of the team of Lords of
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Appeal in Ordinary have by convention been Scottish lawyers. Good ideas have gone from both jurisdictions one to the other, and there is practical benefit from that. In the absence of such Scottish lawyers being Lords of Appeal in Ordinary, the possibility of that occurring might be diminished.
This is an important issue which is causing a measure of interest in Scotland. It is not a matter I should like to press to a Division tonight, but I would be keen to hear the Government's thinking so that it can be considered by the Scottish legal profession over the Recess. I beg to move.
Lord Hardie: This amendment raises important issues about the relationship between the House of Lords and the Scottish court system—a relationship in which the House of Lords is a well-established partner. The noble and learned Lord is concerned that the valuable role played by the House of Lords as a civil court of appeal should be protected. He raised a point about the continued presence of the Scottish Law Lords being protected.
Before dealing with these matters, perhaps I could assist him in relation to paragraph 32 of Schedule 6, where reference is made to the judicial proceedings in the House of Lords. That could of course be a Scottish case, an English case or a Northern Irish case, so that nothing should be taken from that provision to indicate that there would be a continued role for the House of Lords, by implication. It is our intention—
Lord Mackay of Drumadoon: I thank the noble and learned Lord for giving way. I fully accept that the example I gave is not a very good one, but if one takes paragraph 13(b) in Schedule 6, again it has been suggested to me that its drafting, by implication, proceeds on the assumption that while this paragraph is dealing with a court of three or more judges of the Court of Session, from which there is no appeal to the House of Lords, there are other courts of three or more judges of the Court of Session where there is such an appeal. In view of the lateness of the hour I will not go through this line by line, but paragraph 7 on the same page is yet another example of where the drafting suggests, to some people at least, that the existence of the House of Lords as an ultimate court of appeal in civil matters might be inferred.
Lord Hardie: I do not take that implication from these provisions either, but perhaps the noble and learned Lord and I can have a discussion outwith the Chamber about the niceties of the drafting and what the various provisions mean. It is our intention that the Scottish Parliament should be able to legislate on whether there should be an appeal to the House of Lords and, if so, in what cases: that is to say that the parliament should have the right to abolish the right of appeal in civil cases or to extend the right of appeal in criminal cases, if the parliament considered that to be appropriate.
Given that the parliament would be free to legislate generally in respect of the civil and criminal legal system in Scotland, it would be nonsense to put beyond the legislative competence of the parliament decisions of what should be the ultimate court of appeal, either in the civil or criminal jurisdictions. This amendment seeks to deny the parliament that freedom to reach its own

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judgment as to whether it continues to make sense for the House of Lords to continue to act as the ultimate court of appeal in civil cases. I cannot see any good reason for such a step.
I do not agree that there is a question of principle here. The question will only be whether the expertise and experience which the House of Lords can bring to an enormous range of complex cases continues to justify the continuation of its present role in the hearing of appeals. From the way I have expressed myself, I hope that the Chamber will understand that I would very much expect that the valuable role played by the House of Lords will continue to be recognised by the Scottish parliament but that we should not fetter the discretion of the parliament in that regard.
The noble and learned Lord referred to the valuable role which the Scottish Law Lords have played and continue to play in the House of Lords. I acknowledge that unreservedly. However, if it were decided that the House of Lords should no longer be the ultimate court of appeal, there would still be Scottish Law Lords in the Judicial Committee of the Privy Council who would be able to deal with devolution issues. They would be those noble Lords who have held or hold high judicial office. Accordingly, members would be entitled to sit in the Privy Council.
With that explanation, I invite the noble and learned Lord to withdraw the amendment.
Midnight
Baroness Carnegy of Lour: Can the noble and learned Lord give a clear reason in terms that a lay person can understand as to why the High Court of Justiciary as a criminal court of appeal appears in Schedule 5 paragraph 1, as does the Court of Session as the civil court of appeal, yet the Government propose to leave out the Lords of Appeal in Ordinary? That seems to me very odd. I wonder what the Government are up to!
Lord Hardie: The noble Baroness, Lady Carnegy, asked perhaps a rhetorical question, wondering what the Government are up to. The Government are not up to anything, if the implication is that that is a sinister question. The position is that the Court of Session is the civil court of first instance and of appeal. At present, there is a further appeal to the House of Lords on civil matters. When it comes to criminal matters, the High Court of Justiciary sits as a court of first instance trying criminal cases in the High Court. However, it sits also as the appellate court, which is the final appeal court on criminal matters in Scotland.
I sought to explain to the Committee that as the whole system of criminal and civil justice in Scotland is to be devolved as part of the responsibility of the Scottish parliament because of the separate system of law which we have in Scotland, it is appropriate that the parliament should decide what is the ultimate court of criminal appeal. As I indicated, it would be open to the parliament to decide that that could be extended to the House of Lords on criminal matters. Equally, as regards
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civil matters, it would be open to the parliament to decide that there should be no right of appeal from the Court of Session sitting as an appeal court. These matters are devolved to the parliament.
As I indicated, I hope that the parliament would continue to recognise the invaluable contribution which noble and learned Lords have played and continue to play in the system of justice in Scotland.
Lord Mackay of Drumadoon: As I indicated when I moved the amendment, I do not intend to press it tonight. The noble and learned Lord said that it would be a nonsense to exclude the possibility of the Scottish parliament legislating to withdraw any rights of appeal to the House of Lords. Other people might think it a nonsense to leave that available as a possibility. However, I shall reflect carefully on what he said, as no doubt will many others, and we will see what amendments might be appropriate when we come to Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 175A:
Page 64, line 34, at end insert ("or government department").
On Question, amendment agreed to.
[Amendments Nos. 176 and 177 not moved.]
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 178:
Page 64, line 41, leave out ("and funding").
The noble Lord said: This amendment looks at paragraph 6 of Schedule 5, which currently says:
"The registration and funding of political parties is a reserved matter".
I have no problem with the concept that the registration of political parties should be a reserved matter. In fact, we do not have registration of political parties, but, rather ironically, we are legislating here for a Bill that has not yet been passed and has not, as yet, appeared in this Chamber. Indeed, as I shall say when we come to deal with that Bill, it contains the pretty foreign concept of government registering political parties.
Noble Lords who have heard me speak before on the matter will know that I have a fundamental dislike of such a policy because I believe that it has, as its implication, the fact that the Government or the registrar may not register political parties. As I think I said on an earlier occasion, if I were attempting to set up a dictatorship by stealth in this country, the first thing I would do is register political parties so that I might stop registering the ones I do not like. However, that is another argument with which we will no doubt deal in the over-spill.
I am prepared to leave that reference in the Bill because I appreciate that it is tied up with the additional member system, although I do not believe that it is essential to it. However, I am concerned about the word "funding" in connection with political parties; indeed, I am concerned that the,
"funding of political parties is a reserved matter".

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I do not quite understand what the Government mean by funding and that is the first thing that I hope they will explain to me. First, does it mean the question of who funds political parties; in other words, the kind of Neill Committee stuff, such as personal donations, business donations, blind trusts (which, I gather, are quite popular) or trade unions, and wherever political parties get their funds? Is that what the Government mean? Is that to be reserved?
Secondly, is it a question of government funding of political parties in the other place—Short money? Or, indeed, in this place where I believe it is known as the "Cranborne" money? Is it to do with the money that political parties get in order to run their parliamentary offices? Thirdly, is it actually to do with the Government spending taxpayers' money by giving money to political parties in order to run campaigns? That is not something that we do in this country, but there are always people who like the idea and there may well be people in the Government who like the idea.
The first thing I want to know is: what exactly does this funding question mean? Which of those three heads are we talking about? Alternatively, are we talking about all of them? If it is the Government actually funding the operation of political parties in the country, I am puzzled as to why that ought to be reserved. If it is government funding by way of the equivalent of the Short money, I cannot see why it should be reserved because if the Scottish parliament decided that it wanted to do a similar thing, then it ought to be a matter for that parliament to decide. If it is a question of who funds the political parties—a kind of Neill Committee point—then, again, I wonder why that should be reserved as far as concerns the Scottish political scene.
It is not inconceivable that we may have a major political party in the Scottish parliament which may decide in the future that it does not actually wish to fight seats for the other place and, therefore, is not part of the other place. If we are serious about having this devolved parliament, with its responsibility—and we have heard enough about it being a responsible parliament—it ought to be able to deal with the question of the funding of political parties in a Scottish context for membership of the Scottish parliament and for elections to the Scottish parliament. Indeed, it ought to be able to deal with them without that matter being reserved to Westminster, which, I must say, looks very much like big brother looking over the shoulder of this parliament. I beg to move.
Baroness Linklater of Butterstone: I listened with interest to the noble Lord, Lord Mackay of Ardbrecknish, who spoke with his usual fluency and persuasiveness. The whole issue of the funding of political parties has become tainted and discredited in the recent past by allegations of sleaze, which have damaged the reputations of politicians generally. On these Benches we believe that all donations of £1,000 should be declared with the name of the donor and that there should be an annual restriction of £50,000 on the size of any donation by an individual or organisation.
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My noble friend Lord Razzall has put forward our proposals to the Neill Committee which is investigating these issues.
On the face of it, this amendment is compelling for we have repeated consistently that we believe that as far as possible the Scottish parliament should make its own decisions over the way in which it conducts its own affairs. It should also be right for the parliament to decide whether or not Short money should be made available. It should follow that the funding of political parties in Scotland should be devolved. However, it is not entirely simple, for the funding of Westminster MPs will still be reserved to Westminster, including MSPs. With the exception of the SNP, political parties operate equally in Scotland and in the rest of the UK, and so it will be necessary to ring-fence one from another. It might be confusing and complicated at best to have different funding rules for Scotland and Westminster where the same party is concerned.
It is clear that this is an issue that is more complicated than it appears on the surface and which cannot be dealt with simply by deleting the words "and funding". Under these circumstances therefore it might be better to leave the Bill as it is now and to revisit the issue when the Neill Committee has reported and its proposals can be considered. There will be legislation on party political funding in the light of the Neill Report and that will be the appropriate time to consider the whole question, including that of how best to address the issue of the devolution of the funding of Scottish political parties.
Baroness Ramsay of Cartvale: As the noble Lord, Lord Mackay of Ardbrecknish, made clear, Amendment No. 178 would have the effect of deleting the reference to "funding" in paragraph 6 of Part I of Schedule 5. This would mean that legislative competence on the funding of political parties would be devolved to the Scottish parliament. The Government cannot agree to that approach. As we all know, the funding of political parties is a sensitive matter which is currently being considered by the Neill Committee. It is intimately linked to the conduct of elections and related matters. We believe it is important to ensure that it is reserved, as are other matters relating to the constitution and elections.
I very much agree with the conclusions of the noble Baroness, Lady Linklater. Any legislation on the funding of political parties will be brought forward by my right honourable friend the Home Secretary in the light of the conclusions reached by the Neill Committee which is due to report in the Autumn. I expect that any legislation will apply in Scotland. It will clearly need to take account of the existence of the Scottish parliament and other devolved bodies.
The noble Lord, Lord Mackay of Ardbrecknish, referred to Short money and asked whether the Scottish parliament could provide financial support to opposition parties in the parliament. The Government are sympathetic to the argument that some support needs to be provided to opposition groups to ensure that they can work effectively. The Scottish parliament could, through the SPCB, provide assistance in kind, such as property and staff where that is considered

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necessary for the purposes of the parliament, but as matters stand at present it could not provide financial support. However, this whole subject is under consideration by the Neill Committee and legislation on the matter would be better dealt with as part of that overall package. I suggest we leave this matter until the Neill Committee has presented its report. I urge the noble Lord to withdraw his amendment.
Lord Mackay of Ardbrecknish: I am not too sure whether I am much further forward, but I suppose I am a little further forward. It seems that the noble Baronesses, Lady Ramsay of Cartvale and Lady Linklater, are particularly interested in who funds the parties and the Neill Committee. I shall not go into that in any great detail but, frankly, I think the matter of who funds the parties in Scotland ought to be a matter for the Scottish parliament.
I do not understand this obsession with waiting for the Neill Committee. The Bill is here before us setting out the position as regards devolution. We are told that it is the most important piece of legislation we have and the Government want to make it tidy and neat and yet we are to leave this bit kicked into the long grass, as it were, until the Neill Committee reports and until the other place legislates on this matter. If I tried that argument in relation to some other issues, I should be told that I do not believe in devolution. So I find it interesting that it is now being turned on its head and tried on me.
At least it was interesting to hear, when we came to the second head I mentioned—namely the short money—that there seemed to be appreciation that it could be dealt with only in the Scottish parliament. However, I do not see how that could be the case if the funding of political parties is a reserved matter. My deep suspicion that this provision paves the way to the funding of political parties in their campaigning role was not addressed at all.
It is late, and I do want to continue the argument. I am not satisfied. I wish to test the opinion of the Committee.
12.15 a.m.
On Question, Whether the said amendment (No. 178) shall be agreed to?
Their Lordships divided: Contents, 18; Not-Contents, 37.

Division No. 2

CONTENTS

Balfour, E.

Park of Monmouth, B.

Byford, B. [Teller.]

Rowallan, L.

Carnegy of Lour, B.

Saltoun of Abernethy, Ly.

Courtown, E. [Teller.]

Selkirk of Douglas, L.

HolmPatrick, L.

Sempill, L.

Mackay of Ardbrecknish, L.

Skelmersdale, L.

Mackay of Drumadoon, L.

Stair, E.

Montrose, D.

Torphichen, L.

Palmer, L.

Weir, V.

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NOT-CONTENTS

Alderdice, L.

Hoyle, L.

Brooks of Tremorfa, L.

Linklater of Butterstone, B.

Burlison, L.

Lockwood, B.

Carlisle, E.

McIntosh of Haringey, L. [Teller.]

Carmichael of Kelvingrove, L.

Carter, L. [Teller.]

Mackie of Benshie, L.

Dean of Beswick, L.

Mar and Kellie, E.

Dubs, L.

Monkswell, L.

Ewing of Kirkford, L.

Pitkeathley, B.

Falconer of Thoroton, L.

Ramsay of Cartvale, B.

Farrington of Ribbleton, B.

Rendell of Babergh, B.

Gilbert, L.

Sewel, L.

Gordon of Strathblane, L.

Smith of Gilmorehill, B.

Grenfell, L.

Steel of Aikwood, L.

Hacking, L.

Stone of Blackheath, L.

Hardie, L.

Thomson of Monifieth, L.

Hardy of Wath, L.

Thurso, V.

Haskel, L.

Whitty, L.

Hayman, B.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
12.23 a.m.
[Amendment No. 179 not moved.]
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 179A:
Page 65, line 5, at end insert—
("( ) "Assisting" in sub-paragraph (2) includes, where a Minister of the Crown deems it appropriate, attending with, and participating in, the United Kingdom delegation to any international forum, including the Council of Ministers of the European Union.").
The noble Lord said: This is an important amendment to the schedule which deals with the reserved matters, in the section dealing with foreign affairs, in particular with the European Communities and their institutions, but also with other organisations, regulation of international trade—which I presume means organisations such as GATT—international development assistance, and so on. While all these matters are reserved, subparagraph (2) does not reserve obligations under the Human Rights Convention and under Community law. The second part of that subparagraph provides that subparagraph (1), which relates to the Community, regulation of international trade, and so on, does not reserve,
"assisting Ministers of the Crown in relation to any matter to which that sub-paragraph applies".
I am trying to put some flesh on the bones of what "assisting" means and therefore my amendment defines "assisting" as,
"Attending with, and participating in, the United Kingdom delegation to any international forum, including the Council of Ministers of the European Union".
While my argument is relevant for almost any international body, I want to make it in particular with regard to the European Union and the Council of Ministers. It introduces the important issue of the Scottish parliament—the Scottish executive—and its relationship to Europe and other international bodies, in particular to decision-making at the EU level, both at official and Council of Ministers level.
I was surprised that this amendment was not grouped with other amendments to be moved later, but perhaps it allows me to make a speech tonight, to see how we get on, and we will come back to the issue later in the Committee stage. We addressed this issue at considerable length on the Government of Wales Bill. Frankly, the outcome was thoroughly unsatisfactory. It is best explained by looking at some of the matters which are devolved to the Scottish parliament—that is the important point—yet are largely determined at European level. The two that specifically concern me, and I expect concern other Members of the Committee, are fisheries and agriculture. They are important because the whole fisheries structure in the United Kingdom and in a devolved Scotland is only capable of working within the framework of the common fisheries policy. Equally, in agriculture the same is true. In agriculture the vitally important matters of price, support payments and so forth are all determined at Community level. In fishing, important issues like the total allowable catch and technical conservation measures are also determined at European level.
The position therefore is quite clear: if the interests of Scottish farmers and Scottish fishermen are to be properly represented, we must look at how they are to be represented at European level. Currently the position is this. The Scottish Office, the fisheries Minister and the agriculture Minister—they happen to be here in the person of the noble Lord, Lord Sewel—discuss with their equivalents in MAFF matters of agriculture and fishing relevant to Community meetings and so forth. For some time I was the Scottish Agriculture and Fisheries Minister and therefore have first-hand knowledge. My noble friend Lord Lindsay, at Second Reading, made perfectly clear how it worked and what his anxieties were. I do not want to go over that in detail, but it is worth quickly recapping how it works currently.
The officials in the two departments—whether it is fisheries or agriculture; that is, in MAFF and the Scottish Office—discuss what is coming up; what issues they want to raise and so forth. Often agreement is achieved at official level without Ministers meeting. But occasionally, and certainly on major issues—one of the major issues is certainly the annual December meeting of the Fisheries Council, and I know the Minister attended last December, where critical decisions are made for all the fishermen in the UK—Ministers meet to discuss what the policy ought to be and what lines they ought to pursue.
Sometimes—it may not have happened last December—in my experience there are disagreements between Ministers and departments and they have to be resolved, usually by a sub-committee of the Cabinet. The Secretary of State for Scotland plays a vitally important role in that because, to my recollection, if it was a meeting in which I was involved as an Under-Secretary (no doubt the same is true of the noble Lord, Lord Sewel) one had to trot across to MAFF in order to have the meeting because the Minister at MAFF was a Minister of State, which at that time was a cut above myself; and even if the Secretary of State, the Minister for Agriculture, Fisheries and Food was involved, he was definitely a cut above me. But if it was
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a meeting at Secretary of State level, the MAFF officials had to troop across to the Scottish Office because the Secretary of State for Scotland is further up the pecking order than the Minister of Agriculture.
So the Scottish position on agriculture and fisheries was clearly and importantly defined. When difficult and important decisions had to be made at Secretary of State level, they were often made in Dover House. If they went higher than that, they perhaps went to a Cabinet sub-committee. Then, having agreed all that, and sometimes quite easily, and more importantly having agreed a kind of shopping list of priorities—where we would give a little and where we would not give, and where we were prepared to trade, because that is what it comes down to in Europe—we all went off to Brussels, where we battled away. Indeed, Scottish Office Ministers sat alongside the MAFF Minister and took part in the discussions. On a number of occasions I took part on behalf of the whole United Kingdom because at that stage Michael Jopling, who is now my noble friend Lord Jopling, was the Minister, and he was in the chair. We were in the chair of the Council of Ministers and therefore I, so to speak, batted for Britain. That was easy to do because I was a member of the United Kingdom Government and I was answerable to the other place for my decisions; to people, whether they were in Wales, Northern Ireland, England or Scotland.
The fact of the matter is that, often in the middle of the night, complicated deals had to be put together and some quite difficult decisions had to be made about what was acceptable and what was liveable with in exchange for whatever we really wanted as a higher priority. I have no doubt that that has not changed. In fact, my noble friend Lord Lindsay, who was in that position until very recently, confirmed it at Second Reading. Then we returned to the United Kingdom and we reported to the other place—and to this place if a Statement was requested—and we answered to all the Members of Parliament of the United Kingdom. That was the position.
What really puzzles me is what will happen now. I can appreciate that officials can discuss the matters. I can appreciate that Ministers in Edinburgh and the Minister at MAFF can discuss these matters. I am not entirely sure how they will resolve internal disagreements between them; but that is really my first question.
My second question is: how will they resolve the so-called wish list that Ministers always have when they go to Brussels? Furthermore, who will go to Brussels? Will the Scottish Minister go? Will he send his officials? Will he be allowed into the Council chamber, or will he just be in the interesting little suite of offices that the United Kingdom delegation has? I suppose that it would be something if he were there because he would at least be taking part in the discussions in the middle of the night.
When it comes to coming back here, who will report, and to which parliament? How will collective responsibility operate if the Scottish Minister is not too pleased about the decisions that have been made? The White Paper was perfectly clear that in some magical

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way, even though he was not a member of the Government of the United Kingdom, collective responsibility would be all-embracing. That is an interesting concept which I suspect will break down in the real political world when everyone in the Scottish parliament is shouting at the poor man for the decision he took in Brussels and he is having to defend a collective decision taken, frankly, by another government. So that is difficult.
Then, what do the Scottish Ministers do? There was a great pretence during the referendum that Scottish Ministers could represent the United Kingdom. I found that impossible to believe. How can they, as they cannot speak for any part of the United Kingdom other than Scotland and they are not Ministers of member states?
We have asked often for the Government to give us some examples because over 18 years none of the Ministers in the previous administration was ever conscious of anyone being at the table of the Council of Ministers who was not actually a Minister of a member state. We were never conscious of a Minister of any provincial parliament—or länder in the case of Germany—being at the table. Therefore, during the proceedings on the Government of Wales Bill, in order to help, I demanded examples.
The examples I received were contained in a letter from the noble Lord, Lord Williams of Mostyn. Perhaps I may read it out. It states:
"The more obvious instances which have been identified relate to the German Länder. Because of its particular expertise, Bavaria, for example, has represented the German government at EU meetings where cultural issues have been the main agenda item. Similarly, members of the Catalan autonomous government have attended meetings on behalf of the Spanish, where language issues were under consideration. I trust this information goes some way to removing your scepticism that in practice it would not he possible for an assembly member to be part of a UK government delegation, nor indeed to lead such a delegation, if that was the view reached by the UK government".
If that was supposed to bring comfort and bring the fishermen and farmers of Scotland comfort, it is certainly pretty cold comfort. Cultural and language matters may be very important, but they are not the subject of European legislation and rules and regulations in the same way as farming and fishing. To compare the two appears to me to be unbelievable. If that is the best that the Government can do, I suggest that they try to re-think this whole issue.
My suggestion here is to try to put into the Bill what "assisting" means. It is attending and participating in any international forum, including the Council of Ministers and the European Union. We shall return to this in connection with other amendments, including Liberal Democrat amendments, which I shall discuss when we get there.
If this kind of thing does not go into the Scotland Bill—my goodness, the Ministers involved with the Welsh Bill resisted it all the way—I am left with a suspicion that I and all my noble and right honourable friends who have attended Council of Ministers meetings over 18 years are right and what we have from the Government is just a smokescreen to cover the fact that on vitally important issues such as farming and
866
fishing, where the decisions of the European Council of Ministers actually impinge on the living of farmers and fishermen in Scotland, Scotland will have to make do with concordats and being allowed into the chats; perhaps being allowed to see the wish list, and maybe just being allowed into the ante-room during the night, but, frankly, never being at the Council table.
The fishing industry is concerned about this. In a note to all parties recently, the Scottish Fishermen's Federation described the Government's policy like this:
"there is a large element of 'suck it and see' over what will happen in practice when Devolution comes to pass. In recent weeks the Federation has gone to considerable lengths, without success, to obtain assurances that the negotiating position of the Scottish Fishing Industry will not be diminished, as we fear, under the new constitutional arrangements in which the Scottish Fisheries Minister will come from a Scottish Parliament and will be subject to the over-riding competence of a MAFF minister from the United Kingdom Parliament, with this relationship governed only by a non-binding Concordat; our view quite simply is that the position of Scotland must rather be enhanced in the new context, and we see no evidence of that in prospect, and rather fear the contrary".
It goes on to talk about,
"an inherent contradiction between relationships with the EU as a reserved power and fisheries as a devolved matter. The federation remains deeply concerned over the prospect of the status of the Scottish Fisheries Minister being downgraded from his present Constitutional right of access to, and involvement in, the decision-making process".
That encapsulates it.
I know enough about newspapers to know that I should not believe entirely everything I read in them. But in the Scotsman on Friday, 9th January this year, it was reported that the Government are proposing to allow MAFF to veto policies of the administration in the Scottish parliament. I presume that meant over European matters. In reality that is what will happen. MAFF is the powerful ministry; it has the Gatling gun; it is the United Kingdom Parliament; and its Ministers will be representing the United Kingdom. Frankly, if there is a conflict, let us say on fishing, between the interests of the Devon and Cornwall fishermen and the South-East and South-West of England and the fishermen of the northern North Sea and the MAFF Minister (man or woman) who makes the decision, Members of the Committee do not have to be up late at night or get up early tomorrow morning to work out which view will prevail.
I am deeply and genuinely concerned about the fishing industry. I am also genuinely concerned about the farming industry, and I know that many farmers are as well. I have rather heavily used the example of the fishing industry because 70 per cent. of the UK fishing industry is in Scotland and it is much more Scottish-driven than agriculture.
Many farmers are concerned. The NFU does not seem to mind, but, frankly, I believe that its leadership has a political agenda regarding this parliament which perhaps takes priority over looking after the interests of farmers into the future and safeguarding their position when the Scottish parliament comes about. That is certainly the view of a number of farmers to whom I spoke earlier today. I am afraid that the NFU's silence on this is more a refection on the NFU. The fishermen's federation is

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not opposed to the parliament. It accepts the will of the Scottish people, as I do, but it wants to be assured that the lines of communication and responsibility are very clear and that "assisting" at least means what my amendment suggests. I beg to move.
Viscount Thurso: As the noble Lord indicated, my noble friends have tabled several amendments on this subject which will he debated later. Therefore, given the late hour, I do not propose to address them now, but reserve powder for later. Perhaps we might even have that debate before six o'clock in the evening.
Lord Sewel: Perhaps we should remind ourselves what the amendment is about. I freely acknowledge the interest in, knowledge of and commitment to the Scottish agriculture and fishing industries of the noble Lord, Lord Mackay of Ardbrecknish. His record speaks for itself. He treated us to a wide-ranging exposition of the Scottish fishing industry and in particular the relationship within the UK between MAFF Ministers and Scottish Office Ministers, and postulated what may happen in the future. That is a legitimate area for discussion and debate, but it does not relate all that closely to this amendment which is about defining the word "assisting". The amendment does not deal with the wider matters on which the noble Lord touched, but, as I understand it, tries to add to the definition of "assisting" and the various actions that the word "assisting" could be taken as encompassing.
I understand where the noble Lord is coming from with this amendment. Both he and I know the importance of attendance and participation by Scottish Ministers in EU Councils, but the amendment is unnecessary. It serves no purpose.
As the Bill stands, this provision is widely drawn and that is quite deliberate. We do not wish to limit the scope for Scottish Ministers to contribute to EU and other international discussions, subject of course to the agreement of their UK ministerial colleagues. The word "assist" has a wide and general meaning and I can assure the noble Lord that it certainly encompasses attendance at, and participation in, UK delegations. From the wording of the amendment, that seems to be the noble Lord's point.
The problem with this amendment is that it seeks to define one aspect of "assistance", but by doing so—I enter this note of caution strongly—invites questions about what else might or might not be included. That may be a legalistic point, but it is a complication we can probably do without because subsequent interpretation may be that "assist" is limited to the points which the noble Lord defines in his amendment. We want a much wider definition.
The points that the noble Lord makes in his amendment, if not his speech, are encompassed within the wider but not specifically defined meaning of "assist". We have made clear consistently that Scottish Ministers and officials of the Scottish Executive will be closely involved in all stages of the negotiations after devolution, just as they are now. Provision is made for that in the Bill as it stands. I genuinely do not believe that in terms of the amendment and the Bill as drafted
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there is anything between us. The danger is that by trying to define "assist" we shall narrow the meaning. We believe that it is better to keep it as broad as possible. With that explanation, I hope that the noble Lord will feel able to withdraw his amendment.
12.45 a.m.
Lord Mackay of Ardbrecknish: I am aware that perhaps I ranged a little wide at the beginning, but I needed to show how the present situation worked, the interaction between departments and Ministers with regard to Council of Ministers meetings in Europe and the interaction following devolution. I appreciate the noble Lord's comments. I thank him for accepting that it is a subject about which I am legitimately concerned. I am rather surprised that the Liberal Democrats managed an intervention on the important subject of farming and fishing that I almost missed. I do not suppose that that will be lost on farmers and fishermen later today.
Viscount Thurso: I thought that I was perfectly clear in what I said. We have an amendment that deals with these matters at a later stage. We keep our powder dry to deal with it at that point.
Lord Mackay of Ardbrecknish: I advise the noble Viscount that he would be wise to take his chances when they do arise and not wait until they may arise in future.
We have had an interesting debate. I appreciate that I have narrowed down "assist". The word is quite narrow to start with—far narrower than I would have wished—but this is the first opportunity that has arisen to deal with the issue. Given the noble Lord's understanding of the problem and my attempt to find a solution in legislation that protects the important interests of farming and fishing in the Council of Ministers—although there will be other devolved issues of lesser importance (who knows how Europe will develop in future), currently farming and fishing are the two major matters—I was surprised that the amendments were demerged earlier today. But when we return to this matter perhaps I shall have an opportunity to explain to a fuller Committee how the system has worked in the past and how it will work in future. I look forward then to Liberal Democrat support on behalf of farmers and fishermen in Scotland. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Balfour The Earl of Balfour moved Amendment No.180:
Page 65, line 25, at end insert—
("Customs and Excise
. Control and interception of imported substances and protection of coastal waters are reserved functions.").
The noble Earl said: Amendment No.180 is patently a probing amendment. I am so concerned about the availability of illegal drugs all over the country that I believe Customs and Excise should be involved under Schedule 5 in the interception of imported substances and the protection of coastal waters. It is unfortunate that in the past few years the Coastguard appears to have

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had its functions and duties very much reduced. I hope that the Government will take this matter seriously. I want to see every effort made and no expense spared in trying to prevent the importation of illegal drugs and so on. I beg to move.
Baroness Ramsay of Cartvale: We fully accept the importance of ensuring that in all parts of the UK there is a common system to govern the import of illegal drugs and drug trafficking. That is why the Bill already reserves (in Head 2, Section 1) the criminal law in relation to drugs, including the possession, supply and import of drugs and drug trafficking. There is therefore no need for the further reference to imported substances in this amendment.
I can also assure the noble Earl that the Bill already provides (in Head 3, Section 5) for the reservation of the control of the import, export and carriage of goods. Powers to prohibit or regulate the movement of goods to or from the UK, or specified parts of the country, and to make provision to enforce such regulations, including
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penal sanctions and seizure of goods, will therefore be reserved. There are some minor exceptions to that reservation but those are mainly for the purposes of protection of human, animal or plant health, animal welfare or the environment or observing or implementing obligations under the common agricultural policy.
I would also point out to the noble Earl that Section 1 of Head 1 makes it clear that taxes and excise duties are reserved. I hope that what I have said reassures the noble Earl that the Bill already makes adequate provision as respects the control of drugs and the activities of HMCE and that he will be content to withdraw his amendment.
The Earl of Balfour: I am obliged to the noble Baroness for that explanation. I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
House resumed.
House adjourned at eight minutes before one o'clock.