Lords Sitting of 2 November 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 Lichfield.

Hospital Building: PFI Projects
Lord Clement-Jones Lord Clement-Jones asked Her Majesty's Government:
Whether they will publish the detailed terms of their current hospital developments being funded under the Private Finance Initiative.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hayman): My Lords, the Government are determined to end the secrecy and lack of information which have surrounded proposed PFI projects in the past. All National Health Service trusts are now required to publish their key Private Finance Initiative project documents, which will contain the detailed terms of the PFI scheme. NHS trusts must place these documents at specific sites locally and nationally so that they are freely accessible for viewing by the local community, patients, NHS staff and any member of the public. NHS trusts are also required to place copies of documents for schemes with a capital value of over £10 million in the Libraries of both Houses.
Lord Clement-Jones: My Lords, I thank the Minister for that very positive reply, not to mention the Treasury's amazingly speedy response to my Question. I am sure that the Minister is aware of the considerable concerns about PFI: that it may be a live now, pay later solution for the taxpayer; and in particular, it may in the future lead to a squeeze on revenues and cuts in services. Will the Government's commitment to
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transparency extend to ensuring that in each case, where tender details are published, comparisons are given also with the cost of public sector financing so that the thin end of any very thick wedges may be seen clearly?
Baroness Hayman: My Lords, I am sorry to disappoint the noble Lord but some work was going on in government even before he tabled his Question on these issues. However, the noble Lord rightly raises the issue about the proper economic appraisal of PFI projects and transparency in relation to that economic appraisal. It must be carried out by comparing on a like-by-like basis the total lifetime costs of the PFI and the public sector options. The results of that appraisal will be published with the full business case so that all can see. Ministers will approve PFI schemes only if they deliver comparable or, as is usually the case, better value for money than the public sector option.
Earl Howe: My Lords, does the Minister agree that the merits of private finance for hospital building have not always been acknowledged so warmly by her party as they are now and that until comparatively recently senior Labour spokesmen spent their whole time rubbishing the idea? Therefore, for the record, will she summarise what advantages the Government have identified in private as opposed to public financing of hospital developments?
Baroness Hayman: My Lords, the noble Earl, with whom I normally enjoy a very civilised relationship, tempts me to point out to him that the support of the previous government may have been large on the side of pronunciations but did not result in a single hospital being started under PFI. In our election manifesto, we said very clearly that we should break the logjam and we have done that with eight major hospital projects worth more than £0.5 billion where work has now been started on site.
However, we have made a crucial difference; that is, we have looked at and assessed the schemes put forward in terms of the health value and benefits which they bring and then have looked at the most appropriate form

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of financing, rather than allowing the form of financing to determine which projects reached the head of the queue, which, as I know from my own experience, was often the case in the past as regards PFI projects.

Quarantine and Rabies
2.40 p.m.
Lord Soulsby of Swaffham Prior Lord Soulsby of Swaffham Prior asked Her Majesty's Government:
With regard to the recent report by the Advisory Group on Quarantine, Quarantine and Rabies, whether they consider it reasonable to expect that it will take up to three years to arrange adequate facilities and administrative and operational structures for the importation of dogs and cats into the United Kingdom without the requirement to undergo quarantine for six months.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Lord Donoghue): My Lords, the advisory group recommended that changes to the present system of quarantine should not be introduced until an administrative and operational infrastructure was in place and thought that it might take up to three years to do this. The Government are sympathetic to the advisory group's recommendations, but have asked for comments on the report by 31st December. The Government are in the meantime looking closely at the legal, financial and practical aspects, including the timetable, and will decide on the way forward after the public consultation has ended.
Lord Soulsby of Swaffham Prior: My Lords, I thank the Minister for what I hope is an encouraging reply. I am sure that he will agree that the majority of people concerned with this issue very much welcome the Kennedy Report. But does he agree that because of the long-awaited risk assessment which has been undertaken, it would be realistic to open one or two admission centres now in order to admit animals which qualify and in order to gain experience of so doing?
Lord Donoughue: My Lords, the noble Lord is one of the country's most distinguished experts in this field. I not only listen to what he says, but also in the past I have almost always agreed with him. We are looking at the possibility of various kinds of trials. My right honourable friend in another place, in the debate last Thursday, stated that he was looking sympathetically at a number of ways in which we may conduct trials which would assist us. However, it is possible that such an approach may delay the introduction of the new system. I am sure the noble Lord would not want that, and neither would I.
Lord St. John of Bletso: My Lords, in light of the strong recommendations in the Kennedy Report and the estimate by the RSPCA that up to 1,000 pets are being smuggled into Britain every year of which barely 100 are detected by the authorities, surely if one or two
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ports or airports were opened to introduce the recommendations for a passport for pets, the system could be phased in far more quickly than a three-year period.
Lord Donoughue: My Lords, we do not know how many pets are being smuggled into the country; there are different estimates. The noble Lord's suggestion is sensible and helpful. As my right honourable friend said, we will look at all suggestions of that kind. We are currently conducting a public consultation exercise. The Government will not announce their decisions until after that consultation has been completed. I am quite open-minded on the issue. However, I can report to the House that roughly 90 per cent. of the responses received so far have been in favour of the reforms recommended by the report.
Lord Berkeley: My Lords, has the Minister received information, as I have, from the Channel Tunnel and ferry operators that they already have in place facilities to start the new procedure? Given those excellent facilities, will it be possible for the Minister to explain what are the administrative and operational structures that will take three years to put in place?
Lord Donoughue: My Lords, we hope it will not take three years to put the scheme in place. The possibility of the Channel Tunnel was mentioned last Thursday in another place and my right honourable friend welcomed that; he said that he would look into it. However, I should make clear to the House that the introduction of the new system is not a simple operation. It involves designating ports and airports; having in place microchip facilities for identification; and introducing laboratory facilities for vaccination, confirmation and testing. We must have the facilities to look at every animal at every place of entry and the scheme is therefore quite complex, as the report says.
The Government's position is that we cannot introduce a new system that is any less protective of the public from rabies than the old system. Whatever system is introduced must protect the public and must have been tested and proven to do so. I would not wish noble Lords to underestimate that point. Whether it should or would take three years is a matter of opinion.
Lord Waddington: My Lords, does not the noble Lord agree that, now that it has become apparent that there is no need for quarantine in the case of an animal which has been vaccinated, there will be a greater temptation for people to smuggle in animals which have been vaccinated and that in itself is a good argument for the Government making as much speed as possible in this matter?
Lord Donoughue: My Lords, we see the strength of that argument but, until the new system is introduced, it remains a serious offence to smuggle animals into Britain. It is not only an offence, it is also unfair on

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fellow citizens. Therefore I strongly urge people not to smuggle in animals and, on our part, we will do what we can to introduce any new system as soon as possible.
Lord Lester of Herne Hill: My Lords, will the Minister consider making a special case for expedition in relation to guide dogs for the blind, so as to enable blind people to travel to and from this country with guide dogs? Will he also consider a similar priority for other people suffering from a serious disability, such as multiple sclerosis, who depend utterly on their dogs for freedom of movement? Can that be given urgent priority whatever the general position and the general administrative problems?
Lord Donoughue: My Lords, the noble Lord has pressed this worthy cause before. I am sympathetic to it. However, I should point out that it is not as simple as might appear to open the scheme to guide dogs. Were it to be open to guide dogs wherever they enter the country the system would have to be in place everywhere. We will look at the possibility of priority or prior entry but it is complicated and may not be possible. However, we will look at it with the same sympathy as that expressed by the noble Lord.
Lord Swinfen: My Lords, cannot the noble Lord expedite matters where dogs that are vaccinated in this country and microchipped travel to a rabies-free zone in Europe where they are given annual booster vaccinations certified by a vet, and are examined by a vet and given another booster before being returned to this country? When going to some parts of Europe pets have to have the vaccinations in any case.
Lord Donoughue: My Lords, that is a major part of the new system we are contemplating. At the present time it is not the system we inherited and currently operate.
Lord Dixon-Smith: My Lords, does the Minister accept that the Kennedy committee would not have made its recommendations if vaccination were not accepted as being absolutely safe and if the technology for electronic identification was not also well proven? Surely in that situation it is not a question of consultation or designing a scheme; it is a question of installing the appropriate technology at ports of entry. Could not the whole job be conducted more expeditiously than appears to be the case?
Lord Donoughue: My Lords, we hope to do it as expeditiously as possible. As regards consultation, we stated at the beginning that we would have full consultation with the public and with interested parties. Some interested parties oppose the direction in which we are proceeding. Our approach is to have full consultation. We shall then have the backing both of the scientific report and of the opinion that we have consulted with regard to our chosen approach.
The existing system has been in operation for nearly 100 years. We are contemplating quite a radical but, in my view, necessary and belated change. We need to
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carry people with us. From our point of view, and from the views expressed in this House, I believe that we are certainly doing so.
The Earl of Liverpool: My Lords, would the noble Lord the Minister advise us whether, when the new regulations are in force, he will consider granting an amnesty to those pets in quarantine kennels at that time which otherwise fully comply with all the regulations that would be required of them?
Lord Donoughue: My Lords, that is certainly an intriguing question. I shall take that away and consider it.

Iran: Evin Prison
2.51 p.m.
Lord Avebury Lord Avebury asked Her Majesty's Government:
Whether, on their next visit to Iran, Ministers will ask to see prisoners on death row in Evin prison.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, we and our EU partners regularly raise our human rights concerns with the Iranians, including our concerns about the death penalty. No dates have yet been set for a ministerial visit to Iran, nor any programme discussed. The Government made clear their opposition to capital punishment when they joined Council of Europe partners at their summit on 10th and 11th October in calling for the universal abolition of the death penalty.
Lord Avebury: My Lords, is the Minister aware that her visit to the prisoners on death row in St. Catherine's, Jamaica, was a good way of highlighting our concern about the death penalty there? If a ministerial visit to Iran is arranged, it would be useful if Mr. Derek Fatchett, or whoever travels to Tehran, could apply to make a similar visit to death-row prisoners in Evin. Is the Minister aware that the UN Rapporteur on Iran expressed concern about the great increase in the number of people being executed, which reached 199 in 1997? He felt that if the Iranian authorities would at least report in public on the death penalties being imposed, some measure could be obtained of the justice of the system and whether or not it was used in a political manner.
Baroness Symons of Vernham Dean: My Lords, my right honourable friend the Minister of State, Mr. Fatchett, raised our concern about human rights in general and the death penalty in particular with the Iranian chargé d'affaires in London. He also raised the issue with Mr. Ahani, the director of the Iranian Foreign Affairs Ministry, on his recent visit to London in September. No dates have yet been arranged for any visit by Mr. Fatchett to Iran. All decisions about such visits have to be taken in the light of the prevailing circumstances at the time. I can assure the noble Lord that my right honourable friend will consider the most

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effective way of raising the issue of human rights in general, and the death penalty in particular, if and when he is able to visit Iran.
Baroness Sharples: My Lords, is the noble Baroness able to tell us how many countries still have the death penalty?
Baroness Symons of Vernham Dean: My Lords, no. I am unable to give the noble Baroness that information. However, I shall make inquiries and I shall then write to her and place a copy of my answer in the Library of the House.
Lord Stoddart of Swindon: My Lords, does my noble friend raise the British Government's concern about the death penalty on visits to the United States of America and make representations about the 3,000 people in the United States on death row?
Baroness Symons of Vernham Dean: My Lords, I am the Minister with first responsibility for our relationship with the United States of America. I do, indeed, raise the concern of the United Kingdom about the death penalty with our friends from America. On occasions I have had some frank exchanges with them on the subject.
Lord Avebury: My Lords, is the Minister aware—although the point made by the noble Lord is taken—that the United States at least has a system of trials and appeals which is open to the public, whereas in Iran nobody knows how the convictions are secured and in many cases people do not have a right of appeal?
Baroness Symons of Vernham Dean: My Lords, I am sure that the whole House is aware of the varying judicial systems around the world and the differences between them. I understand that my noble friend was raising some particular questions about the United States. I believe that the point he was making—slightly elliptically—was that possibly Her Majesty's Government did not take a robust line on the issue with all countries that have the death penalty. If that is what my noble friend thinks, he is wrong in that surmise. Those questions are raised properly and appropriately.
Lord Moynihan: My Lords, I wonder whether I could push the Minister on this point. Following the restoration of diplomatic relations at ambassadorial level, what pressure do the Government intend to exert on Iran to ensure the full access of human rights organisations, including Human Rights Watch and international human rights monitors, and the UN special representative to Iran, Mr. Maurice Copithorne, given the fact that independent domestic human rights monitoring is severely restricted?
Baroness Symons of Vernham Dean: My Lords, the first step is to ensure that we have a full ambassadorial exchange with Iran. As I was able to tell the House last week, that is under discussion at the moment. We hope
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that the next step will be to arrange a ministerial visit to Iran. Obviously, such a visit—if it is arranged—will be the first ministerial visit to Iran since 1979. There will be many issues to be discussed, including human rights.
The noble Lord raises further questions about such people as Mr. Copithorne and others. Of course, we should like to see Mr. Copithorne have full access to Iran and to have a full discussion about those issues in Iran. However, we can draw some comfort from the fact that Mrs. Robinson will go to Iran early next year and the Iranian Government have agreed that on her visit she should be accompanied by officials from Amnesty International.
Nobody claims that these issues come right overnight. However, Her Majesty's Government hope and believe that they are moving in the right direction so far as concerns Iran.

Motorcycles: Off-road Use
2.58 p.m.
Lord Hardy of Wath Lord Hardy of Wath asked Her Majesty's Government:
What action they are taking to prevent or discourage the nuisance and damage caused by the use off the road of unlicensed and uninsured motorcycles, especially where such use depends upon access from the public highway.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, we, too, deplore activities that create nuisance to others or cause damage to property. Section 34 of the Road Traffic Act 1988 contains prohibitions against using motor vehicles on areas other than public highways without the landowner's consent. The maximum penalty is a fine of £1,000. Where the landowner has given consent, the land may be used for purposes such as motorcycle racing for a maximum of 14 days in any year. Where there is a threat to amenities, the local authority has the power to withdraw this general planning permission. If unlicensed and uninsured motorbikes are used on roads, the rider may be prosecuted under current road traffic laws.
Lord Hardy of Wath: My Lords, does my noble friend accept that this problem causes nuisance in many areas, and sometimes serious nuisance and a great deal of damage, and that that nuisance is frequently caused by the use of untested, noisy, old and unregistered motorcycles ridden by unhelmeted, sometimes reckless and rarely licensed riders? Those riders frequently gain unapproved access to the sites where they carry out that activity. They gain that access from the public highways, bringing risk to themselves and others, and they appear to enjoy complete immunity, despite wholesale breaches of the regulations.
Lord Whitty: My Lords, I recognise the situation that my noble friend describes in terms of off-road activities. If the riders are on the road, not only will their vehicles be subject to the Road Vehicles (Construction

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and Use) Regulations, but there are also substantial penalties for driving while uninsured and without the correct licence for that vehicle, such as £5,000 and £1,000 fines plus disqualification. There are also severe penalties for dangerous driving. As regards use on the highway, the powers are substantial. As I indicated in my initial Answer, that situation is a little more complicated when such vehicles are off the road, even where the landowner has not given permission.
Lord Strathcarron: My Lords, I declare an interest, in that I am a patron of the Trail Riders Fellowship. It has a very strict code of practice. All the bikes that are ridden are street-legal. They are ridden only where it is legal to do so. The fellowship also deplores the fact that there are those who ride illegally. Does the noble Lord agree that it is very difficult indeed to stop such riders? They may not ride on the road and the bikes may be taken on the back of a pick-up truck. They will not have number plates and the bikes may well have been stolen. It is a very great problem. These riders are in a minority. I do appreciate that it is a problem.
Lord Whitty: My Lords, I am always amazed at the pastimes of Members of this House. I had not previously thought of the noble Lord as a scrambler. However, I accept that there are regulated areas for this activity and that there are very respectable organisations which look after these matters. They ensure that the bikes and the drivers involved are safe as regards wearing helmets and ensuring that they are protected for such events.
As regards using the bikes on the road, there are very substantial powers. If they are carried on trailers, then the issue of whether they are stolen or not may arise. There again, the police have substantial powers. The problem is police resources and priorities as regards this issue.
Lord Swinfen: My Lords, can the Minister advise the House whether a motorcycle needs to be insured and licensed if it is ridden off-road but on a public right-of-way which does not count as a road?
Lord Whitty: My Lords, I shall probably need to write to the noble Lord. In general terms the position is that public places are covered by part of the Road Traffic Act. Public places include not only public paths but also moorland and common land. I shall write to the noble Lord about the detail.
Lord Monkswell: My Lords, bearing in mind that most of the people involved in the problem that my noble friend Lord Hardy of Wath has highlighted will be the young people in our society who cannot afford to buy bikes in good condition or tax and insure them, can my noble friend advise the House what encouragement the Government give to local authorities to provide facilities for such young people to learn to ride motorbikes in a safe way?
Lord Whitty: My Lords, both my department and local authorities encourage the safe riding of motorcycles and put substantial resources into the training of potential motorcyclists. As regards riding motorcycles which are in an
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unsafe condition, the duty is on the organiser of a particular event. We encourage landowners who run these events and organisations such as those which have already been mentioned to ensure that the bikes are not only safe but also comply with all construction and use regulations. That applies only in situations where permission is given. The problem that my noble friend Lord Hardy referred to originally was where permission had not been given and where there is a serious problem in certain parts of the country.
The Earl of Carlisle: My Lords, can the noble Lord tell me how many prosecutions have been undertaken by authorities over the past 12 months, particularly against those driving without third-party insurance?
Lord Whitty: My Lords, I cannot give the noble Earl that information. I shall attempt to do so. I know that it is not possible to obtain statistics relating to off-road offences. But third-party insurance obviously raises a wider issue. There are a number of prosecutions in that regard. I shall let the noble Earl know.
The Earl of Mar and Kellie: My Lords, can the noble Lord say whether motorcycles may be ridden on legally-designated public footpaths and whether landowners can give permission to ride motorcycles on public footpaths?
Lord Whitty: My Lords, I believe the answer to that is that it cannot be done in normal circumstances. Again, there may be some qualification and in that case I shall let the noble Earl know.
Lord Pearson of Rannoch: My Lords, in view of the damage which motorcycles and other cycles can cause to public footpaths, especially when they run over rather soft moorland, will the noble Lord share his answers to the noble Earl and my noble friend Lord Swinfen by putting a copy of his replies in the Library?
Lord Whitty: My Lords, I shall undertake to do so.

Business
Lord Carter: My Lords, at a convenient moment after 3.30 p.m. my noble friend Lord McIntosh of Haringey will, with the leave of the House, repeat a Statement which has been made in another place on international finance.

Scotland Bill
3.5 p.m.
The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Sewel.)
On Question, Motion agreed to.
Clause 87 [Maladministration]:
Lord Sewel Lord Sewel moved Amendment No. 173C:
Page 41, line 18, leave out from ("authority") to second ("or") in line 19 and insert ("with mixed functions or no reserved functions,").
The noble Lord said: My Lords, in moving this amendment, I shall deal with Amendments Nos. 206L, 206M, 206N, 218D, 223A, 226A, 226B, 226C, 226L and 229B. These are drafting amendments which are designed to provide more user-friendly labels for certain of the Scottish public authorities for which provision is made at various points in the Bill. These amendments do not alter the effect of these provisions in any way. They merely replace the rather complicated references to,
"a Scottish public authority to which paragraph 1 or 2 of Part III of Schedule 5 … applies",
with the more straightforward words,
"Scottish public authority with mixed functions or no reserved functions".
Part III of Schedule 5 is amended to define this expression, and a reference is added to the index of defined expressions in Clause 119. With that explanation, I commend the amendment to the House. I beg to move.
Lord Mackay of Drumadoon: My Lords, one of the pleasures that I have experienced since I arrived in your Lordships' House this morning at about 12 o'clock has been to seek to understand the new government amendments which have been tabled since we last considered this Bill on Report. I may be wrong, but these amendments may fall within that category, although more important ones come later.
I have two questions for the noble Lord. First, is the amendment to Clause 87 designed to meet any of the concerns and questions which I raised at Committee stage about that clause? If not, may I gently request a reply to the questions that I posed on that occasion? Secondly, since these amendments are meant to clarify matters, it would be helpful if the noble Lord could give us an example of "mixed functions".
Lord Sewel: My Lords, I would gladly answer the noble and learned Lord, Lord Mackay of Drumadoon, as to whether these amendments deal with his reservations on and criticisms of Clause 87. However, I need to be reminded of what they were. Mixed public authorities are bodies which deal basically with reserved and devolved matters.
On Question, amendment agreed to.
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 173D:
After Clause 87, insert the following new clause—
QUEEN'S PRINTER FOR SCOTLAND
(".—(1) There shall be a Queen's Printer for Scotland who shall—

(a) exercise the Queen's Printer functions in relation to Acts of the Scottish Parliament and subordinate legislation to which this section applies, and

(b) exercise any other functions conferred on her by this Act or any other enactment.

(2) In subsection (1), "the Queen's Printer functions" means the printing functions in relation to Acts of Parliament and subordinate legislation of the Queen's Printer of Acts of Parliament.
(3) The Queen's Printer for Scotland shall also on behalf of Her Majesty exercise Her rights and privileges in connection with—

(a) Crown copyright in Acts of the Scottish Parliament,

(b) Crown copyright in subordinate legislation to which this section applies,

(c) Crown copyright in any existing or future works (other than subordinate legislation) made in the exercise of a function which is exercisable by any office-holder in, or member of the staff of, the Scottish Administration (or would be so exercisable if the function had not ceased to exist),

(d) other copyright assigned to Her Majesty in works made in connection with the exercise of functions by any such office-holder or member.

(4) This section applies to subordinate legislation made, confirmed or approved—

(a) by a member of the Scottish Executive,

(b) by a Scottish public authority with mixed functions or no reserved functions, or

(c) within devolved competence by a person other than a Minister of the Crown or such a member or authority.

(5) The Queen's Printer of Acts of Parliament shall hold the office of Queen's Printer for Scotland.
(6) References in this Act to a Scottish public authority include the Queen's Printer for Scotland.").
The noble Baroness said: My Lords, Government Amendments Nos. 173D and 226N are technical amendments, which deal with the printing of and copyright in Acts of the Scottish Parliament, devolved subordinate legislation and other works produced by or in connection with the exercise of functions of, the Scottish Administration.
Government Amendment No. 173D establishes the office of the Queen's Printer for Scotland. The Queen's Printer for Scotland will exercise printing functions in relation to Acts of the Scottish Parliament and devolved subordinate legislation. She will also exercise all Her Majesty's rights and privileges in respect of copyright in what might conveniently be described as "Scottish works". Effectively she will perform the same functions in relation to these works as are presently carried out by the Queen's Printer of Acts of Parliament. In fact, to facilitate consistency and coherency of approach, in particular in relation to the publication of statute law throughout the United Kingdom, the holder of the office will be the holder of the office of Queen's Printer of Acts of Parliament, who also holds the office of Government Printer for Northern Ireland.
It is necessary to create the office of Queen's Printer for Scotland to ensure that the Scottish parliament and Scottish administration have an appropriate degree of control over the arrangements for the publication of Acts of the Scottish parliament and material produced by the Scottish administration. The Scottish parliament will be able to legislate to confer additional functions on the Queen's Printer for Scotland for example, in relation to the printing and publication of Scottish works. As a Scottish public authority, the parliament could legislate about the funding and receipts of the office and would be able to provide for the Scottish Ministers to give directions in connection with the exercise of her functions.
Amendment No. 226N is a technical amendment to ensure that works produced by the Scottish administration are subject to Crown copyright in the same way as works produced by other officers and servants of the Crown. Paragraph 23 of Schedule 8 to the Bill makes a number of amendments to the Copyright, Designs and Patents Act 1988. Amendment No. 226N amends the definition of "the Crown" in Section 178 of the Act so that it includes the Crown in right of the Scottish administration. I beg to move.
The Earl of Mar and Kellie: My Lords, I wish to ask a question about subsection (5) of the new clause. Is not the subsection rather anti-competitive; and do the Government expect there to be any challenge over that issue?
Baroness Carnegy of Lour: My Lords, I have a question which is linked to that of the noble Earl. The noble Baroness has explained—and one can detect it from the amendment—that the Queen's Printer for Scotland is the same person as the Queen's Printer for Acts of the United Kingdom Parliament. Who appoints the Queen's Printer for Acts of Parliament of the United Kingdom Parliament? Will there be consultation in Scotland about the appointment before the appointment is made in view of the fact that that person is automatically the Queen's Printer for Scotland? What consultation will there be?
Lord Lester of Herne Hill: My Lords, I share the concern expressed in the questions of my noble friend Lord Mar and Kellie and the noble Baroness, Lady Carnegy. As the Minister may know, there is concern, which I share, about the overcharging or charging in respect of what we call parliamentary copyright as well as Crown copyright. As I understand it, this matter is being considered at the moment in a separate consultation in the context of the freedom of information legislation.
My question is whether the Scottish parliament will be the body that decides what is to be done if the monopoly which is being transferred under this legislation were to be abused so that the public were being charged for Acts of the Scottish parliament either at all or at a profit. Who will be the quality controller in the interests of the consumer to ensure that these copyrights are not abused against the wider public interest? Will it be this Parliament, or the Minister, or the Scottish parliament, or some other body?
3.15 p.m.
Lord Mackay of Drumadoon: My Lords, as soon as I hear the Minister beginning her speaking note with the words "This is a technical amendment", my ears prick up. It is far from a technical amendment. It is a very important amendment. Unless a Queen's Printer was appointed to publish the Acts of the Scottish parliament and the subordinate legislation coming out of it, a question might well arise as to whether it was competent for the courts to have regard to them. So I welcome the amendment which I am sure has been brought forward for very good reasons.
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However, I have a number of questions to ask. First, can I be clear about what is intended by subsection (1)(b) of the new clause? It states:
"There shall be a Queen's Printer for Scotland who shall…exercise any other functions conferred on her by this Act or any other enactment".
I understand by the reference to the word "her", even though there is a small "h", that the reference there is to Her Majesty. Subsection (1)(b) is very broadly drafted in that there is no limitation on what other functions could be conferred on Her Majesty. It may be that that matter merits further consideration.
Secondly, is there anything in the clause that would prevent the Queen's Printer for Scotland, whether or not he or she is also the Queen's Printer of Acts of Parliament, from contracting for the necessary printing and publication of the Acts of Parliament, the subordinate legislation and any other documents covered by Crown copyright, to be put into the private sector? In other words, is there anything in the clause that would make it necessary for all this work to be done by a government department?
Thirdly, I wish to ask what I believe to be a very important question. If the Scottish parliament wished from day one to ensure that all the primary legislation and subordinate legislation either coming out of the parliament or being made by the Scottish executive should be on a computer data base to be available to members of the public, is there anything to prevent that from happening, even though, unfortunately, we have not yet reached the stage where the statute law data base relating to the Acts of the United Kingdom Parliament is available to everyone who wishes to use it? That takes forward the point raised by the noble Lord, Lord Lester, about people who seek access to documents covered by Crown copyright, and who are not lawyers, who can pay for copies themselves or gain access to computer data bases. I have in mind people who work for charities. They could spend a small fortune getting copies of Bills and because quite frequently, when a Bill is amended slightly, there is no reprint of the revised Bill, they may end up having to buy several large documents costing £10 or £15 each. That may be nothing to a lawyer in private practice but it is quite a lot to a small charity helping the mentally disabled or some other group in society which requires support.
Those are practical questions which arise out of the new clause. It was not possible for me to give any notice of my questions but I hope that we may receive some further information by letter during the course of the week.
Baroness Ramsay of Cartvale: My Lords, I have been asked a plethora of questions. I shall try to answer as many as I can; and where I do not I undertake to write to noble Lords.
In different forms the question was asked, including in the question of the noble Baroness, Lady Carnegy of Lour, how the Queen's Printer is or will be appointed. The Queen's Printer is appointed by virtue of Letters Patent. She is in fact appointed by Her Majesty. The office of Queen's Printer of Acts of Parliament is held by a civil servant in the United Kingdom Government.

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She is appointed by Her Majesty on recommendation by the head of the Home Civil Service. We would certainly expect administrative arrangements to be made to consult the Scottish administration before any future appointments were made.
I shall deal shortly with the question raised by the noble Lord, Lord Lester. In fact, I am not sure whether he or the noble and learned Lord, Lord Mackay of Drumadoon, asked whether the printer could contract out the work of publishing Acts to the private sector. I should point out that there is nothing in the Bill which would preclude contracting out the printing of Acts of the Scottish parliament if that was so desired.
The noble Lord, Lord Lester, asked about subsidising the publications. The provision actually facilitates a decision by the Scottish parliament to subsidise the publication of the Acts of the Scottish parliament—the ASPs. Therefore, the Scottish parliament can address the very concerns expressed by the noble Lord.
The noble Earl, Lord Mar and Kellie, raised a question as regards subsection (5) of the clause. What we are doing in this provision is providing a practical solution to ensure a coherent approach to the statute book and legislation generally. That is why we consider it the most sensible way forward to have the same person occupy these parallel, so to speak, posts.
I turn now to the concept of having a computerised database for ASPs. This possibility is being considered, as I am sure the noble and learned Lord knows. We are doing so in discussion with the current Queen's Printer. I am advised that the practicalities are being examined. I do not believe that I can add anything to that, even by letter. Therefore, I hope that that answer is satisfactory for the time being.
The noble and learned Lord also asked me about subsection (1)(b) of the new clause. I wonder whether the noble and learned Lord realises that the "her" refers to the Queen's Printer. That position is at present occupied by a lady—namely, Mrs. Carol Tullo. Therefore, in the case of any further functions being conferred upon the printer by this or any other Act, the reference to "her" relates to the Queen's Printer. It is perhaps unusual, but it is a refreshing change for some of us in this House to find a female holding such a post. That is why the provision refers to "she" and "her". Indeed, subsection (1)(b) will allow the parliament to confer additional functions on the Queen's Printer for Scotland as and when it considers fit. Therefore, with those answers, I hope that the House will agree to accept the amendment.
On Question, amendment agreed to.
Clause 88 [Agency arrangements]:
Lord Sewel Lord Sewel moved Amendment No. 173E.
Leave out Clause 88 and insert the following new clause—
AGENCY ARRANGEMENTS
(".—(1) A Minister of the Crown may make arrangements for any of his specified functions to be exercised on his behalf by the Scottish Ministers; and the Scottish Ministers may make arrangements for any of their specified functions to be exercised on their behalf by a Minister of the Crown.
(2) An arrangement under this section does not affect a person's responsibility for the exercise of his functions.
(3) In this section—

"functions" does not include a function of making, confirming or approving subordinate legislation,

"Minister of the Crown" includes government department,

"specified" means specified in an Order in Council made by Her Majesty under this subsection,

and this section applies to the Lord Advocate as it applies to the Scottish Ministers.").
The noble Lord said: My Lords with the leave of the House, I shall speak also to Amendment No. 206E when moving this amendment.
Amendment No. 173E amends Clause 88 so as to enable Ministers of the Crown and the Scottish Ministers to make arrangements to exercise functions on each other's behalf, subject to the proviso that the ministerial responsibility for the exercise of a function will not be affected by such an arrangement. The functions concerned must be specified in an Order in Council, and they cannot include functions of making, confirming or approving subordinate legislation. We expect that such arrangements will be used, for example, to permit the Minister of Agriculture, Fisheries and Food, in practice acting through his officials in the State Veterinary Service, to carry out certain functions in relation to animal health and welfare.
The amendment would also delete the existing text of Clause 88, which permits agency arrangements for the provision of "services", because we have concluded that it is unnecessary to have an express provision for that. It is considered that the Scottish Ministers will have sufficient powers to enter into such arrangements and to supply services under the ordinary law. If public bodies and office holders require powers to provide services to the Scottish Ministers on the same basis as they can to Ministers of the Crown, that can be made possible by consequential amendments where it is not permitted by the general glosses in the Bill.
Amendment No. 206E is related to Amendment No. 173E. It amends Schedule 7 to provide that an Order in Council made under the new Clause 88 listing the functions concerned will be subject to type-H procedure—the negative procedure at both parliaments. However, under paragraph 3 of Schedule 7 it would be subject to affirmative procedure if it amended an Act of Parliament.
These amendments provide necessary flexibility in the way in which ministerial functions can be exercised, allowing one administration to draw on expertise and resources in the other. I commend them to the House. I beg to move.
Lord Mackay of Drumadoon: My Lords, I have just one question about this amendment, which I believe to be one of the new ones. Would it technically be possible for the retained functions of the Lord Advocate to be covered by this new clause, or is that precluded by the provisions in Clause 48?
Lord Sewel: My Lords, it will come as no surprise to the noble and learned Lord to know that I did not actually anticipate his question, because I could not see

17
how this particular clause could be set in the context of the retained functions of the Lord Advocate. However, having applied my mind to it over the past few minutes, I can give the noble and learned Lord an unqualified, clear and irrevocable no in response to his question.
Lord Mackay of Drumadoon: My Lords, I am very pleased to hear that the answer is no. However, when looking at Amendment No. 202B which relates to a new subsection for Clause 100. I wonder whether it might be prudent to have such a provision in this new clause.
Lord Sewel: My Lords, I can assure the noble and learned Lord that we will ensure that everything is appropriately and properly covered.
Lord Monro of Langholm: My Lords, while this provision covers Ministers from both Parliaments representing each other, does it also include the physical presence of Ministers in, say, Luxembourg or Brussels? As the noble Lord knows, there is nothing like, for better or worse, being present at a council meeting in either Luxembourg or Brussels in order to know what is going on, rather than getting it second hand from another Minister. Will the new clause cover that point or is it covered in another part of the Bill?
Lord Sewel: My Lords, that subject is covered comprehensively in other parts of the Bill. The new clause presently under discussion does not relate to that sort of issue.
On Question, amendment agreed to.
Clause 90 [Appointment and removal of judges]:
Lord McCluskey Lord McCluskey moved Amendment No. 174:
Page 42, line 18, after ("President") insert ("and the Lord Advocate").
The noble and learned Lord said: My Lords, Clause 90 deals with the appointment and removal of higher ranking judges in Scotland. Amendment No. 174 deals with the matter of appointment, while the remaining amendments tabled in my name and that of the noble and learned Lord, Lord Mackay of Drumadoon, deal with removal.
I turn, first, to the question of appointment. My concern is to avoid any threat to the independence of the judiciary in Scotland after the new dispensation comes into effect. The independence of the judiciary is of fundamental importance in a democracy. Indeed, we are all agreed about that and it is surely unnecessary for me to take up any time of the House by dwelling upon that matter.
In Scotland, after the Scotland Bill comes into force as an Act of Parliament, the role of the higher judges in Scotland will not diminish; indeed, it will increase. It will increase for reasons which were explained fully by my noble and learned friend Lord Hope of Craighead at Second Reading and elsewhere. The role of the judges will increase not just because the Act itself is likely to increase the scope for judicial review, but also because the Human Rights Act is expected to come into force on 1st January 2000, and of course the Scotland Act creates in Scottish judges a power to declare certain
18
Acts of the Scottish parliament ultra vires if they contravene the provisions of the Human Rights Act. I should explain that I expect to retire from the Scottish Bench at about the time that Act comes into force and therefore I must remind the House that I have an interest, albeit a rather limited one, in the matters dealt with in the latter part of Clause 90; that is, the removal of judges.
The Government are already a party to a great many litigations in the civil courts in Scotland and it is the Government who bring all public prosecutions in Scotland. No one, least of all the Lord Advocate, would dispute that it is of the utmost importance to secure the continued independence of Her Majesty's judges. That most significantly includes independence from any kind of influence, pressure or interference stemming from the executive or indeed from members of the new parliament.
Against that background I can deal briefly with the first of the amendments standing in my name, Amendment No. 174. As the Bill now stands, the First Minister has the power to recommend the appointment of judges. He is obliged under the Bill as drafted to consult the Lord President of the Court of Session before recommending the appointment by Her Majesty the Queen of a person as a judge of the Court of Session or the High Court of Justiciary. This provision is entrenched. It cannot be altered by the Scottish parliament.
As regards the current practice in relation to the appointment of judges—despite what appears to be a power of the political authority to appoint judges—in point of fact what happens is that the Secretary of State for Scotland acts upon the advice of the Lord Advocate. The Lord Advocate stands back from the political process and seeks to exercise his role as a kind of Minister of Justice. He seeks to make a recommendation of the best person, regardless of that person's political antecedents, whether he has them or not. Therefore the role of the Lord Advocate in this matter is of vital importance in the appointment of judges.
As I said on Second Reading, the understanding between the Government and the Lord Advocate when I was privileged to be a member of the government in the late 1970s was that the Lord Advocate effectively nominated the new judge, but the Secretary of State had a right of veto. I believe that that is still the system; I certainly hope that it is. All that I seek is that this system be preserved when Scotland has its own parliament and executive.
As I understand the statements made by the Government in relation to this and similar matters, the Government are making the assumption—although there is no provision in this Bill—that the new First Minister will follow a practice similar to that of the Secretary of State for Scotland at present and consult with the Lord Advocate. However, that is a dangerous assumption to make. At this stage we can know absolutely nothing about the political or other character of the new executive, the legislature or the First Minister after devolution comes into effect. There is simply no basis whatsoever for assuming that the constitutional

19
conventions that make the United Kingdom constitution work would somehow be adopted in the new Scotland. Indeed it is more than likely that some of them will not be adopted because Scotland is to have a written constitution which will render at least some of these conventions superfluous. They will be overtaken by specific provisions contained in the written constitution which this Bill creates.
Accordingly, I suggest to your Lordships that it is quite unsafe to assume that Scotland will somehow adopt the current system. It may or it may not. There is a palpable risk that the First Minister will exercise greater control over the appointment of judges than the Secretary of State now exercises. I believe there is a greatly increased danger of politicising the judiciary and of political cronyism creeping into the appointment of judges. That is not unknown in the United Kingdom, including Scotland, in this century. It has happened repeatedly in the British Commonwealth of nations and elsewhere. It has even happened in the United States. I am anxious to avoid any increase of political influence in relation to the appointment of judges.
As a member of the International Bar Association and of the Judges' Forum I constantly meet people from all round the world who are disturbed at the fact that judges in their countries are appointed and can be dismissed by the political power. I have to confess that in our own country that is exactly the position. What saves the position in the United Kingdom is that conventions exist which prevent the abuse of that political power. There is nothing at all in this Bill to prevent such an abuse. It is for that reason that I beg your Lordships to accept this amendment. I beg to move.
3.30 p.m.
Lord Hope of Craighead: My Lords, I put my name down in support of this amendment and I endorse everything that the noble and learned Lord, Lord McCluskey, has said. However, I wish to add some remarks in the light of my own experience because, as I mentioned when this matter was raised at Committee stage, I was for seven years the Lord President of the Court of Session. I was closely involved in the process of consultation which under the existing system precedes the making of these appointments.
Although the noble and learned Lord has quite rightly referred to the senior judiciary, the subsection which we are discussing deals with the appointment not only of judges of the Court of Session but also of sheriffs principal and of sheriffs. This brings me to the practical considerations which I suggest strongly underline the point which the noble and learned Lord has made.
The Lord President has great knowledge of what goes on in his own court—that is, in the Court of Session—but he has no staff, apart from one or two people in his private office who assist him with matters of administration and rule-making. Unlike the Lord Chancellor, with whom, incidentally, he shares certain functions, he does not have a department. The figure in the Scottish system who occupies the position of the gatherer of information and the provider of advice is the
20
Lord Advocate who has a department and who retains a great deal of information about the performance of various people throughout the legal system who might be considered for appointment. That is particularly so in the case of sheriffs, bearing in mind that most sheriffs nowadays are appointed to that position after service for a time as temporary sheriffs and after their performance as temporary sheriffs has been monitored.
If the Lord President is being asked to consider the making of an appointment of any of the group who are mentioned in this subsection, the first person to whom he would wish to turn for advice and information is the Lord Advocate, especially in the case of sheriffs and sheriffs principal. As I mentioned previously, if one imagines a discussion between the Minister and the Lord President—leaving aside, of course, the political point which the noble and learned Lord has made—the first question to be asked is what advice the Lord Advocate has to give as regards the people who are being considered for the appointment.
The position at present is that in the making of these appointments the Lord Advocate occupies a pivotal role. I believe it is important, in order that the public can perceive correctly what is being done in the making of these appointments, that his pivotal role should be recognised in this subsection. There used to be—perhaps there still is—a suggestion that the only way to get noticed for appointment to the Court of Session Bench was to appear in the court of the Lord President. I regret that. One recognises that many people have expertise that may not be revealed in the Lord President's Court and which only others who have the luxury of sitting in other courts can appreciate. If the clause were to give the perception that the pivotal figure in the making of these appointments, apart from the Minister, was the Lord President, that would be a false impression. He is certainly there to protect the interests of the judiciary, and he occupies a crucial role in support of the independence of judges. But when it comes to making the appointments, he is a person who is properly to be consulted but is not in the best position to give advice to the Minister.
Finally, in relation to an amendment to be debated shortly, we shall discuss the removal of judges. The crucial stage in securing a strong, independent judiciary is the appointment of judges. Removal is a step of last resort. It is very difficult to achieve. It is time-consuming, contentious and possibly extremely dangerous. It is crucial to the independence of the judiciary and a strong Bench at every level that the system of appointment is properly constructed and that those who are best equipped to secure the correct appointments to the correct offices are directly involved. For those reasons I strongly support the amendment.
Baroness Carnegy of Lour: My Lords, as a non-lawyer but someone who is extremely interested in the way in which the law operates in Scotland, and having in the past been a humble honorary sheriff, I wish to ask the House and the Government to pay a great deal of attention to what was just said by two noble and learned Lords who know as much as anybody in the

21
country about what the Government are doing and the dangers thereof in comparison with the way judges are presently appointed.
The noble and learned Lord, Lord Hope, referred to the importance of the appointment of judges in achieving that independence as opposed to the very important function of getting rid of a judge. I agree as I hope will other noble Lords. I, too, feel that the importance of making an appointment is paramount. It must be done in the right way. Not having experience of the process, I can understand the noble Lord's remarks, although I do not know everything about it from the matters in which I have been involved. The people of Scotland hugely value the independence of judges. They are beginning to realise that there is to be some politicisation of judges. Although they do not quite understand how it is to happen, they are beginning to understand that it will happen. They are frightened of that, and very anxious that it should not happen.
If the amendment can do something to secure the independence of judges, the Government should accept it or a similar proposal. I see no reason why they cannot accept the amendment. It is of great importance.
On a small point, sheriffs are included in this clause. Who in fact appoints honorary sheriffs, and will the clause have any effect on them?
Lord Mackay of Drumadoon: My Lords, a similar amendment was debated in Committee on 6th October. I offered support to the noble and learned Lord, Lord McCluskey, on that similar amendment and indeed on other amendments. I do so again today. On that occasion the noble and learned Lord the Lord Advocate indicated that he intended to reflect further on the views expressed in the debate. Those views echoed the points made again this afternoon by the noble and learned Lords, Lord McCluskey and Lord Hope.
It is important to bear two matters in mind. The first is that the additional obligation to consult the Lord Advocate which this amendment seeks to introduce into the Bill is entirely without prejudice to subsection (5) of Clause 90. The subsection requires any consultation to take place in addition to any other requirement that may be imposed by virtue of any enactment. It will therefore be perfectly competent for the Scottish parliament, if so advised, to set up some form of judicial appointments board, commission or any other statutory scheme for addressing the issue of who should be appointed, High Court judges, sheriffs principal or sheriffs. This additional requirement is in no sense subservient to the possibility of further steps if that is what the Scottish parliament wishes.
My second observation is this. In the absence of any reason why it would be harmful for the First Secretary to be under an obligation to consult the Lord Advocate—and it is difficult to conceive how there could be any harm from such an obligation—the proposal seems to send the right message to everyone involved in devolution after the Scots parliament is up and running that this Parliament would wish the Lord Advocate, who will be the senior Law Officer in Scotland, to be consulted in the same way as it wishes
22
the Lord President to be consulted. That would seem to build in two valuable safeguards to ensure, as the noble and learned Lord, Lord Hope, observed, that the need to invoke the provisions in the latter part of the clause regarding the removal of judges or sheriffs will require to be turned to as infrequently as possible. Therefore I support the amendment.
3.45 p.m.
Lord Lester of Herne Hill: My Lords, the problem referred to affects the whole of the United Kingdom, not only Scotland. It arises because the independence of judges in this country—their appointment and removal—is largely protected by rubbery and elusive constitutional conventions and customs rather than by anything prescribed by law. I looked at Stair's encyclopaedia of the laws of Scotland. There is a volume edited by the learned Lord Fraser of Tullybelton in which he reminds us that judicial independence in Scotland is protected by the Claim of Right of 1689, but in a rather Latin and indirect way. The same is true in a different way in England and Wales and in Northern Ireland.
My first point is that this is a real problem. The way in which we on these Benches propose to address it is much wider than under this Bill. There ought by now to be a proper constitutional judicial commission, independent of the Government and dealing with appointments, discipline and removal in exactly the way or a similar way to that which happens in genuine modern democracies elsewhere in the Commonwealth. I am sorry that that has been put on the back burner by the noble and learned Lord the Lord Chancellor. I am also sorry that some senior judges regard that as a threat to their independence when it is intended to be a bulwark against improper direct or indirect executive interference.
I am not in any position to judge whether adding the Lord Advocate as an office holder to be consulted would contribute significantly in alleviating the problem so far as concerns the appointment of judges in Scotland. However, we sympathise with the objective; namely, to do all that we can to strengthen judicial independence as regards appointments, as well as disciplining and removal.
My other point is that, oddly enough—and particularly oddly since this amendment is tabled by the noble and learned Lord, Lord McCluskey—it is the new Bill of Rights, the Human Rights Act, read with the Scotland Act, which will go far to come to the rescue in relation to this particular problem. That is because paragraph 1(d) of Schedule 6 to the Scotland Bill includes as a devolution issue the question whether the purported exercise of a function is, or would be, in breach of a convention right. The relevant convention right is, of course, the right to an independent and impartial court. Were the First Minister or any other office-holder in Scotland to be so foolish as to appoint on a political basis, to make a recommendation leading to a political appointment or to produce a court that lacked the institutional independence of the executive, the effect of Clause 92, together with the schedule, would be to give our courts, and finally the Judicial

23
Committee of the Privy Council, oversight of the matter. It would be a very embarrassing way of doing so, but they would be able to decide that a particular appointment or series of appointments breached institutional independence under Article 6 of the European Convention on Human Rights. I do not commend that as the best way of dealing with the problem. It would be much better to have prophylactic safeguards of the kind that these amendments seek rather than a most embarrassing form of judicial review of the appointment of judges by judges.
I shall be grateful if the noble and learned Lord the Lord Advocate will confirm whether my interpretation of the Scotland Bill, read with the Human Rights Bill, is correct; namely, that there would be effective judicial safeguards were a court that lacked the necessary institutional independence to be appointed as a result of these procedures being abused. If that is not so, it seems to me that the case for this amendment and the other amendments is overwhelming.
The Lord Advocate (Lord Hardie): My Lords, noble and learned Lords were surprised in Committee that we had not specified on the face of the Bill that the Lord Advocate should be consulted on the appointment of judges, and the issue has been returned to today. Similar points have been made today as were made by the noble and learned Lord, Lord McCluskey, the noble and learned Lord, Lord Hope of Craighead, and other noble Lords.
I suggest that the task before the House is to ensure that the Bill contains the fundamental elements of the process for the appointment of judges. We do not consider it appropriate to legislate for every detail of the process, a point to which I shall return when dealing with later amendments. But, as the noble and learned Lord, Lord Mackay of Drumadoon, said, I indicated at Committee stage, in the early hours of the morning, that I would consider the points made, in particular whether there was a case for making an exception and writing on the face of the Bill a requirement of the kind suggested.
The Government have considered the matter carefully but remain unpersuaded that it is necessary to have such an amendment. As I stated at Committee stage, it is unimaginable that the First Minister would not consult the Lord Advocate about such appointments, for three reasons. The first is that the Lord Advocate will remain the senior Law Officer in Scotland and will be in charge of criminal prosecutions. Clearly, he will have an interest in ensuring that the appropriate people are appointed to the High Court bench. Related to that, the second reason is that the Lord Advocate is a member of the executive under the terms of the Bill, and one of his ministerial colleagues will be the First Minister. In the context of a government, it would be surprising if the ministerial colleague responsible for making the recommendation to Her Majesty did not consult the Law Officer. The third reason is the one referred to by the noble and learned Lord, Lord Hope of Craighead, both today and at Committee stage: that the Lord President, who has to be consulted under the terms of the Bill, would obviously ask the First Minister what the views
24
of the Lord Advocate were. If that were the outcome—and I accept that that is the position which is likely to be adopted by any Lord President—the Lord Advocate's input would come into play at that stage.
The Government believe that it is not necessary to provide for consultation within the Scottish administration and that it should be left for the First Minister and the Lord Advocate to decide between them as to what arrangements are appropriate in particular situations. As has been observed, the Bill makes provision for consultation with others outside the Scottish administration who have relevant advice to offer, in particular the Lord President of the Court of Session. That consultation with the Lord President provides a useful safeguard against the fears, which I suggest are unreasonable and unrealistic, about politicisation of the process which have been referred to this afternoon.
The thrust of the discussion at Committee stage and today was this. If that were the position, why should it not be written into the Bill? I am pleased to hear that the noble Lord, Lord Mackay of Ardbrecknish, accepts that I have identified the matter which concerns him. Noble Lords argued during the first debate on Report that we should not clutter the statute book with unnecessary provisions. In that context, we explained that we disagreed with the arguments put forward at that stage. But in this case the Government do not consider it necessary to dictate when the First Minister should seek the advice of his own Law Officer, the Lord Advocate.
The noble and learned Lord, Lord McCluskey, raised a point concerning the greater politicisation of the process, a point also alluded to by the noble Baroness, Lady Carnegy of Lour. He said that it would be unfortunate if the process of appointment became overtly political and the bench comprised simply of appointees acceptable to the government of the day. While I am not convinced that that would happen, given the safeguards already in place in the Bill—the fact that the Lord Advocate is a member of the Scottish executive, along with First Minister, and that the Lord President would in all probability indirectly seek the advice of the Lord Advocate by asking the question to which the noble and learned Lord referred—the ultimate sanction would be for this Parliament to legislate for this matter and to take back the devolved issue if politicisation were considered a threat.
To respond to the point raised by the noble Baroness, Lady Carnegy of Lour, I have considered the question of who appoints summary sheriffs. My understanding—I shall notify to the noble Baroness if I am wrong—is that honorary sheriffs are appointed by the sheriff principal whereas temporary and full-time sheriffs are appointed by Her Majesty on the recommendation of the Secretary of State following advice from the Lord Advocate.
4 p.m.
Baroness Carnegy of Lour: My Lords, I thank the noble and learned Lord for giving way. He answered a question about the present system. I am already aware

25
of that. My question is whether under the Bill the system will continue as it is. Will the Lord Advocate be consulted and therefore does the clause affect the appointment of honorary sheriffs?
Lord Hardie: My Lords, I apologise to the noble Baroness. I had not appreciated that that was the question. The Bill does not affect the position of honorary sheriffs. The sheriff principal would still be able to appoint honorary sheriffs if he or she considered it necessary.
I turn finally to the matters raised by the noble Lord, Lord Lester of Herne Hill. The first point concerns the position in the United Kingdom in relation to the judicial commission. I appreciate that the noble Lord is anxious that such a commission should be established to deal with appointments not only in Scotland but in other parts of the United Kingdom. I hope the noble Lord will forgive me if I say that that goes beyond the particular amendment and raises much wider considerations than those in the Scotland Bill.
As to Clause 92 and paragraph 1(d) of Schedule 6, the noble Lord is correct in interpreting those provisions as indicating that the European Convention on Human Rights will be incorporated and that the actions of the executive will be subject to scrutiny in terms of those articles. However, I do not share his interpretation insofar as concerns the appointment of a particular judge. If the appointment of a particular judge was considered overtly political I would find it difficult to envisage in the abstract how that matter could be raised in appropriate judicial proceedings. It is very tempting to agree with the noble Lord on the second point, and if I did he might be more sympathetic to my position. It is therefore very tempting. However, I have some reservations.
Lord Ackner: My Lords, before the noble and learned Lord sits down perhaps he will help me on one simple matter. He said it was unimaginable that the Lord Advocate would not be consulted. I do not understand why, if that is the case, it cannot be enshrined in the Bill, particularly since the noble and learned Lord said in terms that the Bill should contain fundamental points. Since it is unimaginable that in this case the contrary would occur this is one of the fundamental points, the more so since it cannot be said that by the addition of one name one is cluttering up a Bill with unnecessary provisos.
Lord Hardie: My Lords, I thought I had explained the reasons why it was unnecessary to incorporate that on the face of the Bill. I listed three reasons. If enshrined in the legislation it would mean that for all time the Lord Advocate was required to be consulted in the face of the possibility of the creation of a ministry of justice. If there were a minister of justice who was legally qualified and had equal knowledge of the senior members of the profession, he or she could perform the role of the Lord Advocate. But if the Scottish parliament wished to make a change of that nature and the Lord Advocate was mentioned on the face of this Bill, the
26
effect would be to require the legislation to be amended in this Parliament as opposed to leaving the matter to Scotland.
Lord Lester of Herne Hill: My Lords, I am most grateful to the noble and learned Lord for giving way. I believe he indicated, when the noble and learned Lord, Lord Ackner, intervened, that he regarded the Scottish administration as being under a duty to comply with the convention. It would very much help to have the matter clarified; it might make the whole amendment unnecessary. Is it recognised by the Government that the Scottish parliament, the Scottish administration, the Secretary of State and the judges themselves are all under an obligation to ensure the independence of the judiciary because of the incorporation through the Human Rights Bill and the Scotland Bill of Article 6 into our domestic legal system? If so, that would make me much more sympathetic to the Government's point of view. I understand his reservations about committing himself to questions of judicial review and legal standing, but it is the obligation in which I am interested. As a result of this legislation is it now a binding constitutional obligation to secure judicial independence in appointment, disciplining and removal?
Lord Hardie: My Lords, I believe that I can safely accept that proposition. I agree with it.
Lord McCluskey: My Lords, I express grave disappointment at the answers I have heard today from the noble and learned Lord the Lord Advocate. Perhaps I may reiterate the point made by my noble and learned friend Lord Ackner. This is not a matter of detail but something that is fundamental to democracy: the independence of the judiciary. As my noble and learned friend Lord Hope said, appointments to the higher judiciary are of great importance in safeguarding democratic values. I was more than surprised and somewhat disappointed to hear the Lord Advocate suggest that this Parliament could, if the Scottish executive began to misbehave in this regard, take back the power and make different provisions about appointments. That is an astonishing answer and one that I am surprised the Lord Advocate should make on behalf of the Government at this stage of the Bill.
One important point of detail is that it is almost impossible to detect political influence in appointments. One may see individuals being appointed to the Bench and wonder why they have suddenly climbed the ladder by several rungs and why others have not been appointed but one cannot prove political favour. Therefore, it is impossible to make a case that the First Minister is exercising political favour even if everyone in the profession agrees that that is happening.
There is also the point that it does not have to be done for all time. The Government can table an amendment which would introduce but not entrench the provision that the noble and learned Lord the Lord Advocate should be consulted. They could give power in a subsection to the Scottish parliament to repeal the provision if experience showed that to be justified.

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I am deeply disappointed by the answers. I shall refer later to the constant use of the word "unimaginable" by the noble and learned Lord the Lord Advocate. The Lord Advocate of 2nd November 1998 has no capacity to judge what will be imaginable or unimaginable post-devolution when an entirely different administration may be in office. Therefore, it is difficult for him to give those assurances to the House. I express my grave disappointment but I do not propose to divide the House. We are coming to what I regard as an even more important matter on which I intend to divide the House unless I receive a satisfactory answer.
Amendment, by leave, withdrawn.
Lord Hoyle: My Lords, before we move to the Statement on international finance, I should like to take this opportunity to remind the House that the Companion indicates that discussion on the Statement should be confined to comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords.

International Finance
4.11 p.m.
Lord McIntosh of Haringey: My Lords, with the leave of the House, I should now like to repeat a Statement on the world economy which has been made in another place by the Chancellor of the Exchequer. The Statement is as follows:
"With permission, Madam Speaker, I am reporting to the House at the earliest opportunity available on the terms of a new international agreement reached by Finance Ministers and central bank governors of the G7 countries to reform and strengthen the international financial system.
"A full copy of this and a Statement by the Heads of Government setting out an agenda for further action is now available in the Vote Office.
"Tomorrow I will present to the House the pre-budget report, with its detail on the domestic economy.
"But the financial crisis that swept Asia last year and reverberated around the world has revealed long-standing weaknesses in the international financial system which G7 Ministers agree must now be addressed as a matter of urgency.
"Our predecessors had to meet the challenge of ensuring economic stability in an era of national economies. Now our generation must meet the challenges of ensuring stability in the era of the global economy, where each individual economy can directly affect the prospects of every other.
"And the new way forward for this new era is sensible global financial regulation, credible crisis prevention, and orderly mechanisms for crisis resolution, with a sure foundation in minimum standards and best practice which all countries adopt to participate in the international financial system.
"And this is directly relevant to the UK economy. It is everybody's business, not only because we are dependent on trade in goods and services with other countries—for example, the Asian crisis has in one single year cut UK exports to Indonesia, Malaysia and South Korea by around 50 per cent. and to Thailand and the Philippines by around 60 per cent.—but also because—as we have seen—a weak financial system or inappropriate economic policies in one country not only put at risk another country's financial system, but will also threaten people's savings or investments and eventually their companies or jobs.
"That is why it is in every country's interests to support a new mechanism for crisis prevention and resolution, a new transparency and a new process for global financial regulation.
"Our Statement reaffirms that the balance of risks in the world economy has shifted from concerns about inflation to concerns about growth. In the last month interest rate policy has already been adjusted. In Japan, the United States, Canada, the United Kingdom, Spain, Portugal, Ireland, Denmark, Italy, and again in the United States. The G7 statement reaffirms our commitment to create or sustain the conditions for strong domestic-demand led growth and financial stability in each of our economies. The authorities will continue to be vigilant in the light of the shift in the balance of risks on a global basis.
"In our Statement each continent has agreed to make its contribution to creating the conditions for stability and growth—Japan with immediate banking reform, Europe with structural reforms to tackle unemployment, America to promote growth with low inflation and, in the case of Latin America, we welcome the policy commitments the Brazilian Government has made and we will work with the international community to support them. And all of us must act to avoid retreat into protectionism.
"But as well as measures to deal with short-term instabilities we also need action to reform the financial architecture.
"For 50 years our policies for regulation, supervision, transparency and stability have been devised and developed for a world of relatively sheltered national economies with limited capital markets. Now that markets transcend national boundaries we must create for global markets systems for supervision, transparency, regulation and stability that are as sophisticated as the markets they have to work with.
"And G7 governments have therefore concluded that the international architecture devised in the 1940s for the economies of the 1940s is no longer adequate to the challenges of the 1990s and that we need new rules for the global financial system of the 21st century.
"So in the G7 statement each G7 country has now agreed to adopt and apply codes of conduct founded on minimum standards and best practice: new disciplines and undertakings that each country is prepared to accept as a condition of its participation in the international system.
"In monetary and financial policy we are agreed on the need for greater transparency and openness, that each country should specify its objectives for monetary policy, and identify responsibility for achieving these objectives and for reporting and explaining monetary and financial policy decision. And we are agreed that these standards should be set down in an internationally agreed code of conduct that all countries are prepared to accept.
"The G7 Ministers have also committed themselves to comply with the code of conduct of good practice on fiscal transparency, that has been drawn up by the IMF.
"Similar standards of transparency are required in the private sector. By spring next year the QECD will complete work on a code of principles on sound corporate governance and structure. And by early 1999 we will also have in place a plan for internationally agreed accounting standards.
"These codes of conduct in monetary policy, fiscal policy and corporate governance will mean radical changes in the way governments and financial markets function. They will help produce an environment in which financial markets can operate better. They should reduce the risk of future failures, and mean that when failures do occur the financial system is robust enough to withstand them. By improving public understanding of why and how decisions are made, and making sure the right long-term policies are in place, the codes will help build public understanding and support for the policies that deliver economic growth and prosperity.
"Proper implementation of the codes of conduct should be a condition of IMF and World Bank support. Immediate action to promote transparency in policy making, financial sector reform and corporate governance should be key components in any reform programme which the IMF and World Bank agree in coming months.
"And the IMF and the World Bank must themselves be more open and accountable, with a presumption in favour of releasing information and external audit of their performance.
"And there should be new undertakings on social policy too. An injustice anywhere is a threat to justice everywhere and the G7 statement underlines the importance of policies that protect the most vulnerable, the real victims of financial crises, whose pain is very real indeed. That is why the G7 has agreed there should be general principles for good practice in social policy in all countries that will now be set down by the World Bank and serve as a guide to best practice.
"But we are also agreed that there must be, as a matter of immediacy, a new World Bank emergency facility, to provide additional funding on special terms to the most vulnerable groups in society.
"Secondly, global financial regulation: the G7 Ministers are now agreed to support the establishment of a process for strengthened financial sector
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surveillance using national and international regulatory and supervisory expertise, to be used in the IMF's regular surveillance of its member countries.
"To this end, we will bring together the key international institutions and key national authorities involved in financial sector stability, better to co-operate and to co-ordinate their activities in the management and development of policies to foster stability and reduce systemic risk in the international financial system and to exchange information more systematically on risks in the international financial system.
"Dr. Tietmeyer, the President of the Bundesbank, has agreed to consult the relevant international bodies on these reforms and I would like to see an international memorandum of understanding, establishing a proper division of responsibility between regulators and international authorities at the international level.
"In the G7 statement we commit ourselves to strengthen the regulatory focus on risk management systems and prudent al standards in financial sector institutions, in particular to examine the implications arising from the operations of leveraged international financial organisations, including hedge funds.
"In this area, a fundamental problem has been a lack of transparency And poor standards of disclosure on the part of some financial market participants. This important issue will be looked at by the Basle Committee in considering an international standard of best practice for transparency and disclosure. An agreed international standard of best practice would act as a benchmark, both for financial institutions and their regulators.
"The United Kingdom is clear that those financial institutions which deal with hedge funds must take into account all proper prudential standards and requirements of disclosure. Proper due diligence procedures are essential.
"Britain also believes that, as part of the general review of capital adequacy rules, the Basle Committee needs to examine the appropriate treatment of banks' exposures to hedge funds so there is proper recognition of the risks involved. And, as the Chairman of the Financial Services Authority, Howard Davies, has emphasised, managements of financial institutions have a responsibility to ensure that circumstances can never arise in which personal relationships with potential counterparts get in the way of appropriate due diligence. He said that there must be complete transparency in respect of senior managements' personal investments in counterpart firms to avoid any suspicion of conflicts of interest. I fully endorse these remarks.
"The statement from G7 Heads of Government said that they would examine not only the implications of the operation of highly leveraged operations of offshore institutions but also how they can encourage offshore centres to comply with internationally agreed standards. This is a particular issue for the UK because long-term capital management was registered in the Cayman Islands.
"This Government are committed to improving standards of regulation and regulatory co-operation in our overseas territories as well as to implementing the European, G7 and OECD initiatives to tackle unfair tax competition.
"We must not let high risk hedge fund speculation by a few translate into wider risks for the many and destabilise the financial system on which we all depend for prosperity.
"So by international examination of these issues of concern—transparency in hedge funds, proper due diligence procedures, tackling potential conflicts of interest and dissemination of standards to offshore centres—governments can play their part in minimising the implications of future sudden and systemic disturbances.
"Finally, G7 Ministers are agreed on the need for a new procedure for crisis prevention, and tackling contagion. The central element would be an enhanced IMF supplementary reserve facility which would provide a contingent short-term line of credit for countries pursuing strong IMF approved policies. This facility could be drawn upon in times of need and would entail appropriate interest rates along with shorter maturities. The facility could be complemented, in individual cases, by bilateral contingent financing and the facility would be accompanied by appropriate private sector involvement.
"The G7 have also agreed that there also needs to be a better long-term mechanism for international authorities to work with the private sector and national authorities in handling debt problems, including debt rescheduling, at times of potential crisis. We are now asking, first, the private sector to adopt 'collective action clauses' to facilitate more orderly workout arrangements, and we will consider the use of such clauses in our own sovereign and quasi-sovereign bond issues. We are also asking the World Bank, in co-operation with the IMF to work with their members to put in place effective insolvency and debtor-creditor regimes, and, secondly, the IMF to consider lending into arrears, under carefully designed conditions and on a case by case basis.
"We want the private sector to build upon its experience with some emerging market countries in developing new market based contingent financing mechanisms. G7 governments will now support the more active use of loan guarantees to encourage greater private sector involvement in emerging market financing. Following the welcome United States Congress decision, we call for the IMF quota increase and the new arrangements to borrow to be implemented as soon as possible. Together they will provide additional IMF resources of 90 billion dollars to ensure the stability of the international financial system.
"Globalisation has happened. We must now make it work in hard times as well as good. As we have shown, we do not need new institutions, but we do
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need new rules and new disciplines. And I want to thank other G7 Ministers and central bank governors, and heads of government who have backed this work all along, for working through this new agreement.
"Taken together, the reforms we have agreed—global financial regulation, codes of conduct, and mechanisms for crisis prevention and crisis resolution—represent the first step and now set the agenda for the most radical restructuring of the international financial architecture since its creation in the 1940s, making us better equipped to tackle the challenges of the 1990s and the century ahead. I commend this Statement to the House".
My Lords, that concludes the Statement.
4.26 p.m.
Lord Higgins: My Lords, the House will be grateful to the noble Lord the Minister for repeating that wide-ranging and extensive Statement. He will agree that to a large extent it represents an agenda for reform rather than reform itself. We shall need to keep closely in touch over the development of the various proposals. One must also consider the extent to which the United Kingdom is setting an example in some of the areas referred to by the Minister.
The key point, described as such in the G7 memorandum, is that the agreement reflects the shared determination of the UK and G7 to modernise financial systems and to put in place new rules and procedures. It states:
"The key point is that the G7 agree that the balance of risk in the world economy has shifted from high inflation to concerns about low growth, and commit themselves to create or sustain conditions for strong domestic demand-led growth".
One cannot help feeling that to some extent the shadow of Lord Keynes, which has been absent from this Chamber for a long time, is to be seen hovering above the Gallery.
More particularly, one is bound to ask whether the terms of reference which the Government have imposed on the Bank of England, a point frequently made by the noble Lord, Lord Barnett, are appropriate against the statement that I have just made because the balance appears to have been shifted from inflation to growth. Although it is true, as the Minister said, that there have been recent reductions in interest rates, as regards the Bank of England, and more particularly the European Central Bank, one must ask whether the bias in their terms of reference is consistent with what has been set out by the Government.
No doubt we shall hear more tomorrow in the Chancellor's Statement, which has been so extensively leaked in the press today, about the rate of growth in the United Kingdom. No doubt we shall also hear that the reduction in the rate is due to the international situation and so forth. Can the Minister confirm that the latest Economist poll on the economic forecast suggests that the rate of growth in the United Kingdom in 1999 is likely to be less than half not only that of France and Germany but also Australia, which was more severely hit by the Asian crisis?

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There is a certain amount of jargon in the Statement. I am glad that the Minister agrees with that and no doubt he can clarify a number of issues. I ask him about only one. It is said that there should be more ordinary work-out of debts and effective insolvency and debtor/creditor regimes. It goes on to say that lending into arrears by the IMF will be required. Can the Minister tell us what is meant by lending into arrears by the IMF, since it is a relatively new piece of jargon? It would be illuminating to know what it means.
It is debatable whether the Government have set an example of transparency, not least in regard to the controversy which has raged over the way in which the working family tax credit should be treated in our own accounts.
The issue of fighting protectionism and open free trade is mentioned at great length in the Chancellor's Statement but not to the same extent, if at all, in the IMF and G7 statements.
Finally, I shall concentrate on the real guts of the issue. We are told that there is to be an enhanced IMF supplementary reserve facility, accompanied by appropriate changes in agreements to borrow, et cetera. As far as the American contribution is concerned, is that simply paying up arrears or is it a new additional amount? Does the United Kingdom contribution appear in the comprehensive spending review? Is it a new initiative, or is it something we have already agreed to? Has there been any consideration of extending the system of SDRs, special drawing rights, which played an important part in earlier reforms as far as the bank and the fund were concerned?
We are told that the World Bank will have an emergency facility to deal with the problem of contagion, particularly to help countries which stick to IMF rules. I am not clear whether that is an attempt to stop contagion as far as the patient is concerned or as far as those who might be affected or infected are concerned. Will this new emergency facility help those who are already in trouble or those who are likely to be affected by other actions?
The Statement says that there is to be a report on the work completed, the work in progress and the work to be done. Can the Minister tell us what work has already been completed?
4.33 p.m.
Lord Taverne: My Lords, the G7 statement is a worthy statement, although I am not absolutely sure how much it will be worth. It depends on whether the splendid principles of good practice will be applied. However, there are good features about recent developments, some of which are mentioned in the Statement, for example the 90 billion dollar increase in the IMF funds which is very welcome and may help to stop Brazil falling into a state of collapse. The recent prompt action by the Fed was extremely helpful. When we look back on these matters we may find that we owe a considerable amount to Mr. Greenspan. Next to avoiding severe recession in the United States, it is obviously of great importance that the growth of the European Union should be maintained. Does the
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Minister agree that the best contribution the Government can make lies in the domestic economy, avoiding a serious collapse in our growth? Therefore, the Statement tomorrow will obviously be more important than today's Statement. Does the Minister agree that the top priority must be to enable the Bank to lower interest rates, thereby, together with the lowering of the value of the pound, encouraging investment? Does the Minister not realise that apart from what the Chancellor does tomorrow, the most important contribution by the Government to the long-term stability of investment would be to make the earliest possible commitment to joining the euro? Is it not becoming clearer by the day that that is the essential decision for the Government to face?
4.35 p.m.
Lord McIntosh of Haringey: My Lords, I am grateful to both noble Lords for their response to the Statement. Oddly enough, I am more grateful on this occasion to the noble Lord, Lord Higgins than I am to the noble Lord, Lord Taverne. I suspect that the noble Lord, Lord Higgins, is right in saying that at this stage this is as much an agenda for reform as reform itself. It is clear that the agreement made by the G7 countries last Friday is a statement of intent and a description of what is going to be done rather than a report on work that has been completed. The whole process arises from meetings presaged by a speech of the Prime Minister at the end of September to the New York Stock Exchange subsequently fleshed out by speeches by the Chancellor to the annual meetings of the IMF and the World Bank and at G7 at the beginning of October. A series of agreements has been reached for short-term rescue and for medium and longer-term institutional changes. In that sense I am not afraid of the description of an agenda.
I am grateful to the noble Lord, Lord Higgins, for his recognition of the UK leadership. This is, after all, 1998 and our presidency of G7. We can justifiably say that the Prime Minister and the Chancellor made very good use of our presidency in order to move forward issues of global financial management. Whether or not he meant to pay tribute to the United Kingdom leadership of G7, I should like to do so, as one who is very much on the periphery of these matters.
I was interested, amused and encouraged to hear the noble Lord say that the shadow of Lord Keynes is hovering over this Chamber for the first time in a number of years. There have been occasions in the last few months when it was appropriate to refer to counter cyclical demand management policies, and I have done so. There may be other such occasions in the future. The noble Lord asked whether these issues give rise to questions about the terms of reference given to the Bank of England in its consideration of short-term interest rate policies. The terms of reference given to the Bank are fundamentally price stability and a given inflation rate; and that inflation rate has always been a minimum as well as a maximum inflation rate. To that extent our setting of inflation rate targets applies as much when the issue is growth as when the issue is inflation itself. I remind the noble Lord that the Bank of England Act

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states that subject to the inflation target, the Bank should encourage the Government's policies of high levels of employment and growth. That is exactly what we are now seeking to do.
The noble Lord asked about current growth forecasts by economists. I may find an opportunity to answer that point on a more relevant occasion tomorrow when we will consider the UK economy in more detail.
The noble Lord asked about the gaps, the setting-up of the additional 90 billion dollars of IMF reserves. The United States payment is the result of a decision made by the United States Congress and is not a payment of arrears. The UK contribution, which is approximately five per cent. of the total either in the quota payments or in new arrangements for borrowing is not, as the noble Lord knows, public expenditure as such. It is a different way of using our reserves and therefore does not appear, as he suggested, in the comprehensive spending review. Insofar as those reserves are used by the IMF, they are compensated; interest is paid on them at the SDR rate. I do not know whether that entirely answers the question about SDRs.
The noble Lord made a very good point about the issue of contagion, which is referred to in the Statement. We are concerned both with those countries which are in trouble and those countries which are likely to be in trouble. To that extent, the width of the agenda put forward by the G7 Ministers and governors is evidence of the concern which we have on both those issues. The noble Lord asked about reporting on that programme of work. It will continue to be reported to Parliament as appropriate.
I am grateful to the noble Lord, Lord Taverne, for his recognition of the importance of the 90 billion dollars. He says that the health of the UK domestic economy is the best contribution we can make to international stability. I agree entirely. I hope that when the Chancellor makes his new budget report tomorrow, he will give the same general support to that as I think he has done today.
As regards joining the euro, perhaps the noble Lord should read Ministers' statements made to the CBI conference today.
4.42 p.m.
Lord Peston: My Lords, this Statement is of global significance. I can think of no Statement made in all my years in your Lordships' House which equals it in importance as regards the future of the world economy and world financial systems. It gives one hope that perhaps the normal self-destructive tendencies of the advanced industrialised world will not be allowed to go beyond anything which would imperil our future. Indeed, as regards the references to Lord Keynes, it is worth bearing in mind that Maynard Keynes was much more concerned about world international financial co-operation and the survival of the world than he was about quite minor matters such as contra-cyclical fiscal policy. Therefore, the shadow of Keynes certainly holds over this Statement but in a much deeper way than is sometimes recognised.
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How do we get from statements of intent to the practicalities? There is reference to codes of practice, codes of conduct and transparency. But who will be responsible and who will be in a position to ask years from now: where are those codes of conduct? Subsequently, whose responsibility will it be to say whether people are operating according to those codes of conduct? Can my noble friend throw any light on that matter and, in particular, on the question of enforcement?
The Statement says that we do not need new institutions but new rules. Coming from the G7, the only comment that one can make is, "They would say that, wouldn't they?" However, will my noble friend bear in mind that a number of people who have thought deeply about these matters are convinced that we need some new institutions and not just some new rules from old institutions, those institutions, in one or two cases, having failed us. I hope that, without necessarily responding to that, my noble friend will bear in mind that it is a very important question.
Lord McIntosh of Haringey: My Lords, before I respond to my noble friend's interesting and worthwhile points, perhaps I may take up a point made by the noble Lord, Lord Higgins, to which I failed to respond earlier. He asked me what lending into arrears meant. It is the practice of providing credit to countries which have enacted a temporary standstill in debt repayment in consultation with their creditors. I hope that that helps.
My noble friend Lord Peston pays, I think, proper tribute to the importance of the Statement. He reminds us of the extent to which we are all members of the international economy. He asks about the extent to which we can make progress without new institutions. I suspect that the phrase "international financial architecture", the cant phrase now in use—I resisted its use on an earlier occasion but I have failed to do so now—is a way to describe something which falls short of a new institution but is a revitalisation and extension of the responsibilities of existing institutions. I suspect that we should do better to concentrate on what international financial architecture is for, rather than the form it takes.
As to how changes will be implemented, many of them are implemented already in the sense that the new reserves for the new agreement on borrowing and the quota increases will be available within the next few months as they are needed. The logjam has been broken, in particular by the United States' agreement to the new agreement on borrowing. It is the availability of finance which brings with it the other changes which are necessary because it provides the cement which holds together the rules which must be imposed. Those rules will be imposed by continued negotiation between the members of G7, both the finance Ministers and governors, in the same way that the agreement itself was achieved, over the next few months. There will be a formal reporting at the next G7 summit in Cologne but in the meantime it has been shown that work can

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proceed and rules can be introduced without the necessity for complicated and expensive international meetings.
Lord Barnett: My Lords, I should tell my noble friend that I welcome the commitment of the UK and others to go for high rates of growth and employment. I do not care terribly whether that is considered Keynesian or Milton Friedmanism or whatever. I just welcome it. My noble friend has not yet responded to points made by the noble Lord, Lord Higgins, about reconciling the Bank of England Act with that requirement. Despite the fact that my noble friend Lord Peston and I tried to amend that Act to ensure that the Government's growth and employment policies should be at least on a par with policies in relation to inflation, that was not done. The Act as it stands seeks to advise, indeed insist, that the Bank of England and the Monetary Policy Committee must put inflation above the Government's own economic policy on growth and employment, to which they are now even more firmly committed.
Perhaps the Government have in mind, under the terms of this agreement, to amend the Act along the lines which my noble friend and I recommended previously. That would at least meet the commitment which my noble friend the Minister has made so clearly to the House today.
Lord McIntosh of Haringey: My Lords, no, an amendment to the Act is neither desirable nor necessary. I made clear in answer to the noble Lord, Lord Higgins, that the inflation target which has been set is both a maximum and minimum target. In other words, it can be used for the purposes of stimulating growth if that, as appears to be the case in the global economy, is the higher priority rather than keeping down inflation. It is because we have, in addition to the inflation target, the phrase "government policies on growth and employment" that the terms of reference for the Bank of England Monetary Policy Committee are still entirely appropriate.
Lord Shore of Stepney: My Lords, I too welcome the Statement, not least because at last we have recognised that there is a global problem which needs global solutions; and secondly, because at long last there is some recognition that we face a problem of deflation and not inflation with which the present Government have been obsessed during the past 12 months. That relates immediately to the terms of reference to the Bank of England which should and could be changed by operating Section 19 of the Bank of England Act. That allows for new actions, changed terms of reference, in the light of major changes of circumstance.
My short question is this. Is the 90 billion dollar facility a new one or simply the facility for which, for two years—long before the present crisis hit us—the IMF has been asking and which was held up because the United States had not paid its contribution?
Lord McIntosh of Haringey: My Lords, the answer to my noble friend's short question is that it is a new
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facility made possible because, before the United States Congress rose for the election period, it made the extra money available. As to whether or not the IMF asked for it before that, I do not know and will gladly write to my noble friend.
In any normal use of the term, this is a new facility available for the purposes of the IMF. I can only refer my noble friend to previous answers I have given. There is no need for any change in the instructions to the Bank of England. What has proved to be the case is that the formulation in the Bank of England Act is appropriate whether or not the balance of risks has changed. My noble friend complains that we have been obsessed by inflation. We come back to Keynes: "If situations change, we change with them. What do you do, sir?"
Lord Clinton-Davis: My Lords, I wish to refer to one aspect of the worthwhile Statement in relation to corporate governance. I do not subscribe to the view that all multinational operations are malign. It is extremely difficult, from past experience, to imagine that provisions for corporate governance will be overwhelmingly supported. Does my noble friend agree that in terms of environment and activities within developing countries, too many multinational operations have not observed the already existing provisions for corporate governance? Why, therefore, does my noble friend imagine that this provision, when refined, will have a more stimulating and progressive effect than has been the experience in the past?
Also, does my noble friend agree that, in relation to multinational companies, there is a pronounced emphasis upon the measure of voluntarism that has to be applied in this case for the new regime to be successful?
Lord McIntosh of Haringey: My Lords, my noble friend, who knows far more about these matters than I ever shall, is right in saying that multinationals are not necessarily malign. But of course they are multinationals; that is the essence of them. That is why it is essential for us to have consistent policies throughout the developed world—not just the G7 countries but on a wider scale—for corporate governance.
The Statement made by the Chancellor makes clear that the imposition of proper rules for corporate governance is an international responsibility. All multinational corporations must be based somewhere. Unless we have comparable rules, wherever they may be based, then we shall not have the control over their activities which is necessary to achieve the objectives of global governance of the economy. My noble friend therefore is right in moving from government policies to corporate governance issues. I am grateful to him for making that point.
Lord Bruce of Donington: My Lords, I congratulate my noble friend on injecting a note of caution into these proceedings. He correctly pointed out that the agreement among the G7 countries was more in terms of aspiration than the practical steps that have to be taken if those aspirations are to be realised. Clearly, before we approve the rules we need to know what they are. Before we

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approve the policies we want to know—as he pointed out—how and with what precision they are to be carried out and by whom. It is sensible that matters should have been presented to us in that way. Speaking personally, I would prefer to wait until after tomorrow's domestic budget announcement before passing a definitive judgment on some of the matters quite properly touched upon at the G7 conference.
One principle upon which I should like to go on record is that it is not the formation of institutions that is important. On another occasion I might be tempted to outline a few institutions I could usefully abolish with great benefit to the European and world economy. But that does not arise in this instance and I therefore repeat my congratulations. I do not believe institutions matter. We have to get the policy right and then determine which institutions should carry them out.
Lord McIntosh of Haringey: My Lords, I hesitate to disagree to some extent with my noble friend when he is being so supportive. However, I did not describe this programme in terms of being "aspirations". I agreed with the noble Lord, Lord Higgins, that it was as much an agenda as a description of completed action. But it is a firmly based agenda which addresses both the immediate problems and the longer-term issues.
The agenda consists of a firm commitment by the G7 countries to implement specific reforms with the resources to implement those reforms. It enables them to deal with any potential crisis from new countries facing financial difficulties and, without saying that this will happen to Brazil noble Lords referred to Brazil as a possible example of it. It commits the G7 countries to reform to increase the transparency and openness of the international financial system; to identify and disseminate codes of good practice in policy making; to strengthen incentives for countries to meet those standards of behaviour; and to improve surveillance of the international financial system. That amounts to a great deal more than just aspirations.
Lord Burns: My Lords, I agree with noble Lords in relation to the importance of the G7 Statement in that it seeks both to deal with the challenges and the present situation and also to put in place arrangements for dealing with crisis management in the future. When faced with failures of banks in a domestic context, it has been widely agreed that we should seek to minimise the contribution of the taxpayer and to maximise the contribution of the private sector in the work-out. Can the Minister confirm the interpretation in today's Wall Street Journal that the new IMF facility is also expected to put a great deal of emphasis upon the role that the private sector will perform in problems and not simply leave them to the IMF, the World Bank and the taxpayers of the individual countries?
Lord McIntosh of Haringey: My Lords, I can certainly confirm that. In fact, there are three strands to anything that we do for individual countries. One will be the IMF strand, which is an international contribution. The second, referred to in the Statement,
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is the possibility of bilateral contractual assistance. The third, as the noble Lord, Lord Bums, rightly says, will be the contribution which can be made by the private sector.
Lord Sudeley: My Lords, to what extent does the Minister recognise the problem of fractional reserve banking in this situation whereby banks lend out more than they have in the proportion of 10:1 of the reality? That situation would not exist if, as happened under the old thinking, banks were forbidden to lend money without taking a share of the risk.
Lord McIntosh of Haringey: My Lords, the noble Lord is surprisingly modest. Many hedge funds, such as long-term capital management, lend out far more than a multiple of 10 of their reserves. It is a very real problem, which is referred to in detail in the Statement. We have to balance the risks, as do the investors concerned, of lending, investing or gambling, if you like, beyond the available reserves, against the undoubted benefits to the global economy of wider credit which have arisen over recent decades. It is a difficult balance to sustain.
Lord Grenfell: My Lords, first, does my noble friend agree that although one welcomes the idea of precautionary credit lines, that idea is still far from being properly thought through? What happens if a country is accorded a credit line on the strength of good policy and those policies deteriorate after the credit line has been started? That would put the IMF in an extraordinarily difficult situation. I would not like to be in its place and to have to decide whether or not to withdraw the line of credit.
Secondly, I am not sure whether I heard an answer to the question from the noble Lord, Lord Higgins, about the role of the World Bank and the new facility. I thought that we were trying to get away from the idea of having the World Bank issue liquidity and were trying to get it to maintain its position as a development financing agency. There seems to have been a change of heart.
Lord McIntosh of Haringey: My Lords, perhaps I may answer my noble friend's second question first. If I gave any suggestion in an answer that we were proposing a change in the role of the World Bank, I did so mistakenly. I do not think that I did so. There have been questions on that point, but I was not conscious of indicating that we expected the World Bank to develop its role in that direction. I think that I gave the same answer when we debated the European Central Bank.
With regard to lines of credit, I do not underestimate the difficulty of dealing with a country which changes its policies once a line of credit is available. The very fact that lines of credit will be followed up by further financing and that that further financing is contingent on continuing with policies which will have to be satisfactory to the IMF is some satisfaction against the kind of dangers that my noble friend fears.

Scotland Bill
5.2 p.m.
Consideration of amendments on Report resumed on Clause 90.
[Amendment No. 174A not moved.]
Lord McCluskey Lord McCluskey moved Amendment No.175:
Page 42, line 35, leave out from ("ground") to end of line 38.
The noble and learned Lord said: My Lords, in moving Amendment No. 175, I should like to speak also to Amendments Nos. 176 and 177. They are all interconnected. We last discussed these matters at 1.20 in the morning. This afternoon we are debating them in the wake of discussing other matters of great economic importance.
All these amendments relate to the removal of the most senior judges in Scotland (once this Act comes into force). Again, I emphasise that my amendments are concerned to try to continue to secure the independence of the judiciary, especially its independence from the new executive, including the First Minister who, under the provisions of the Bill, is, in other matters, to have the sole power of appointment.
The reasons why these amendments are important have already been explained to the House both at Second Reading and in Committee. They have also been explained to the Government in correspondence. Indeed, I sent the Lord Advocate a copy of what I called a "briefing note", which I wrote just in case I was unable to be present when the matter came up for discussion today. The reasons underlying the amendments are well understood.
With regard to the removal of judges, when the Lord Advocate replied to the debate in Committee, he suggested that it was "inconceivable" that the First Minister would seek to remove a judge other than upon sound advice. With the greatest respect, that is somewhat circular and extremely naive. It simply begs the question: who decides whether the advice is sound? The answer is that the First Minister decides whether the advice is sound. It is naive to suppose that he is somehow inhibited by receipt of advice in relation to the matter.
The Lord Advocate also then said that it was "unimaginable" that the First Minister would seek the removal of a judge without taking certain steps, although the steps were not prescribed in the Act. He went on to use the expression "beyond belief". Again, those views fly in the face of all experience. Leaving aside the numerous countries where the independence of the judiciary is a sick joke—and there are many of those—there have been recent and profoundly disturbing attempts to interfere with the independence of judges in mature democracies, including the United States and parts of Canada. Concerns have also been expressed about Australia. We would be totally naive to suppose that our new politicians in Scotland will be immune to such temptations—not least because criticisms of judges' decisions are now the meat and drink of our daily newspapers, and populist politicians
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of whom we have always had our fair share in Scotland are likely to start calling for the removal of judges whose decisions have been criticised in the press, however unfounded the criticisms and however distorted the reporting of the decisions for which the judges have been responsible.
There is a great basis of agreement here and I should like to spell it out as briefly as I can. First, judges who are unfit for office must be able to be removed.
Secondly, there must be some statutory machinery to enable a judge to be removed if, after his unfitness for office has been established, he declines to resign—or even, indeed, if it is considered appropriate that he should be formally sacked, which might be entirely appropriate if he has been found guilty of a serious crime or of an offence involving moral turpitude.
Thirdly, we are all agreed that it is entirely appropriate that there must be formal machinery for the removal and that should be parliamentary. Therefore, the Scottish parliament should have powers such as are contained in subsections (6), (7) and (8) of Clause 90.
Fourthly, we are surely all agreed that the decision as to whether or not a judge of the Court of Session is unfit for office is not one that can be taken by the political executive. We must be agreed about that because it is fundamental to the independence of the judiciary. The Government agree, as can be seen from the Official Report when, in Committee, the Lord Advocate made his position quite plain. He said that the Bill contains minimum requirements, and,
"The Scottish parliament can and should build on these".—[Official Report, 6/10/98; col. 422.]
In other words, the Lord Advocate envisaged that something more must be done. We must separate the responsibility for deciding upon fitness and unfitness from the formal mechanism for removal. It follows that the decision as to fitness or unfitness must be taken by a body which is independent of the political executive.
We in the United Kingdom are bound by certain obligations which require that the body must be a tribunal which is independent and impartial and is established by law. Those are all matters that are plain.
From that basis of agreement, I believe that it follows inevitably that when we are enacting, as we are, a new constitutional settlement, which devolves to an entirely new creation—the Scottish executive and the Scottish parliament—the overall responsibility for the judiciary, it must establish by law the necessary machinery for ensuring that no judge can be removed from office unless his unfitness, if it is in dispute, has been established to the satisfaction of a properly constituted independent tribunal.
The Bill does not do that. I acknowledge that it deals in a satisfactory way with the machinery for formal removal, but it does not create any machinery at all for determining fitness or unfitness before the First Minister places before the parliament a Motion seeking the judge's removal. The Bill, as drafted, requires him only to specify the particular ground of unfitness. It does not require him to prove it or to refer the matter for proof or examination by any independent body.
These questions as to the fitness or unfitness of judges are not easy questions, as the recent case involving Sheriff Stewart showed. That case was before your Lordships' House, ultimately, following a petition for judicial review. It was decided in this House on 22nd January. The noble and learned Lord, Lord Jauncey of Tullichettle, who, I believe, is with us today, delivered the leading speech in relation to that case. It sets forth the history of legislation in relation to the removal of sheriffs, who are not the most senior judges in Scotland. But it has been impossible to remove a sheriff since 1877 in Scotland without an independent inquiry by senior judges into his fitness for office.
In the context of that provision, which is Section 12 of the Sheriff Courts (Scotland) Act 1971, the noble and learned Lord, Lord Hutton, added to the leading speech. He said,
"The appellant"—
that was Sheriff Stewart—
"also submitted that a power to remove a sheriff from office by reason of inability to perform his judicial functions arising from a defect of character or personality endangered the independence of the judiciary and would give rise to a risk that a judge might be removed from office because there was disapproval of the way in which he decided the cases coming before him".
His Lordship continued,
"I do not accept that submission and am of opinion that the independence of the judiciary is fully protected by the requirement in Section 12 that the two most senior judges in Scotland, the Lord President and the Lord Justice Clerk, must first undertake an investigation into the fitness for office of the sheriff and then report that he is unfit for office before the Secretary of State can remove the sheriff from office".
That has been the position for 120 years. Even sheriffs cannot be removed without an independent investigation by the senior judges.
The principle behind these amendments has the support of, among others, the Lord President of the Court of Session and all the Scottish judges. The Lord President wrote on behalf of the judges to the Secretary of State on 4th June,
"We have … concluded that it is necessary to build into the Clause the necessary constitutional safeguard of an appropriate inquiry body since otherwise the Bill will not provide the protection of judicial independence, which is necessary".
It was proposed that there should be Lords of Appeal or retired Senators of the College of Justice to constitute the tribunal.
That has the support of the Faculty of Advocates. The submission made by the Faculty of Advocates to the Government said that:
"the tenure of judges should remain such that they cannot be removed from office other than on the basis of fitness or misconduct, and that this should be expressly stated in the legislation".
The faculty went on to say that it was of the view that,
"it is necessary to have some means of determining the fitness of judges that is independent of the political process".
A provision was then sought on the lines of Section 12 of the Sheriff Courts (Scotland) Act 1971.
The Law Society of Scotland, in a letter to me dated 6th October 1988, says that it also supports the principle behind this Bill. It refers to the Latimer House
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guidelines. I need not refer to them in great detail but, essentially, following a meeting in Harare, the Commonwealth heads of government are considering, and will be asked to adopt, proposals drafted at Latimer House in June of this year to the effect that a judge who was at
"risk of removal … must have the right to be fully informed of the charges; to be represented at a hearing, to make a full defence and to be judged by an independent and impartial tribunal".
These proposals are to be presented to the next meeting of the Commonwealth heads of government.
It is obvious that one of the persons not attending such a meeting will be the First Minister of the new Scottish executive. The Prime Minister of the United Kingdom will attend as a head of government. Presumably, he will have to undertake to provide for some such mechanism. So it is important that that should be done now.
I also have support expressed to me in a letter from Lord Murray, who was the Lord Advocate when the Scotland Bill was before this House in 1978. He strongly supports the position I and the Faculty of Advocates have taken. I would also refer your Lordships to Article 6 of the European Convention on Human Rights, which is incorporated into our own Human Rights Bill. That provides,
"In the determination of his civil rights and obligation or of any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".
A good deal has been written about the meaning of those words in the European convention. "Independent" has been declared to be independent of the executive and also of the parties. Professor Harris writes in the leading work, Law of the European Convention on Human Rights,
"Clearly, a member of the Executive is not 'independent'".
He goes on to write about the meaning of the words "established by law" and says the intention is that with a view to ensuring its independence,
"the judicial organisation in a democratic society must not depend on the discretion of the Executive but that it should be regulated by law emanating from parliament".
There is reference to the same concept in the European case of Bryan v. The United Kingdom.
It has been suggested—and it may be suggested again today—that we should simply leave matters to the new executive and to the Scottish parliament to enact appropriate legislation to provide the machinery rendered necessary by Article 6 and by the Latimer House principles. That was suggested by the noble and learned Lord the Lord Advocate at 2 a.m. during the Committee stage. I am not quite sure that he meant what he then said. There are problems about it. They are these.
First, there would be no machinery at all for determining disputed questions of unfitness between the time that the executive came into existence and the Act took effect and enactment by the Scottish parliament of any further necessary legislation. I do not believe that the United Kingdom Government would readily fill the gap in relation to what is a devolved matter.
Everyone agrees that any such tribunal should consist of, or include, judges who are not too close to the person who is to be investigated. So my Amendment No. 177 faces up to that problem by giving the First Minister the right to select for membership of the tribunal those who are listed in the proposed new subsection (9); namely Lords of Appeal, Peers of Parliament who hold high judicial office, including retired judges or other suitably qualified members of the Judicial Committee of the Privy Council. I doubt very much whether the Scottish executive could confer this right on the First Minister, so it has to be done by this Parliament and not by the devolved parliament.
I have mentioned attacks on the independence of the judiciary. It can take many forms. In Canada there is considerable concern among judges and lawyers generally at attempts by politicians to put pressure on judges by reducing their salaries or cutting their pension entitlement. The Government here have wisely decided to avoid any risk of that happening in the United Kingdom, including Scotland, under the new constitutional dispensation. So Schedule 5 on page 85 of the present Bill says,
"Determination of the remuneration of—

(a) judges of the Court of Session,

(b) sheriffs principal and sheriffs,

(c) members of the Lands Tribunal for Scotland, and

(d) the Chairman of the Scottish Land Court".

are to be reserved matters. So it seems odd that the devolved administration is not to be entrusted with judicial remuneration, including pensions, but are to be given the power of removal of all those judges without further supervision.
The effect of the Bill is to preserve Section 12. The result is that a sheriff cannot be dismissed from office without an independent inquiry, but a Court of Session judge or the chairman of the Land Court can be so removed. As the noble and learned Lord, Lord Hope of Craighead, pointed out at Committee stage,
"The hostages to fortune which are created by allowing procedures to evolve [strictly] by experience are very great [indeed].—[Official Report, 6/10/98; col. 422.]
That is particularly so in this field where it is to be hoped that experience will continue to be as limited in the future as it has been in the past.
There is one other point that I want to make about the Government's response on an earlier occasion to the effect that the Scottish executive or parliament are to be trusted. That is not a proposition that I want to challenge. But, oddly enough, the Government themselves do not exhibit any such trust because Clause 90(7)(b) provides that the First Minister cannot make a recommendation for the removal of a judge unless the number of votes in favour of the motion,
"is not less than two-thirds of the total number of seats for members of the Parliament".
That is a unique provision in this Bill. It is the only one in which the Government say to the new parliament, "You cannot do what you want to do. You can do that only if you have a two-thirds majority of those who have the right to vote". That is an entrenched provision. The logic of it is that the parliament is not being trusted to behave in a proper and ordinary fashion. I can
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understand why that provision came in. It is the one that is referred to in my Amendment No. 175. I cannot see any reason at all why there should not be even a non-entrenched mechanism in the Bill which could be amended in the light of experience, which would enable judges' fitness or unfitness to be adjudicated upon by an independent and impartial tribunal.
My Amendment No. 175 suggests the removal of the provision which I have just quoted about the two-thirds majority for the removal of a judge. My reason for seeking the deletion of that provision is this. If we accept that the adjudication as to unfitness is to be carried out by an independent and impartial tribunal, then the role of parliament is a purely formal one of rubber-stamping the decision that the person to be removed is unfit. He is not entitled in these circumstances to the protection of a heavily weighted majority such as the clause provides for.
In all the circumstances, I would submit that the Government have simply got this wrong. It is a matter of great importance. I cannot see any difficulty in accepting the proposals which I make or some version of them which the Government themselves could redraft. I would not propose to invite the House to accept Amendment No. 175. If the Government indicate that they are willing to accept the principle behind Amendments Nos. 176 and 177, I should be happy to withdraw Amendment No. 175. Otherwise, I shall ask your Lordships in due course to divide in relation to Amendment No. 176. I beg to move.
Lord Hope of Craighead: My Lords, I support these amendments. I should like to say one or two things by way of supplement to the points made by the noble and learned Lord, Lord McCluskey. As I have made clear on a number of occasions, I do so against the background of experience. In this particular connection I have two aspects of experience to bring to bear on the problem.
The first is that it was from time to time my responsibility as Lord President to have to consider very carefully with the Secretary of State for Scotland and his advisers the procedures for the removal of judges, and how the procedures in the statute for the removal of sheriffs should be dealt with in a case where the necessity for using them arose. The second is that I shared with the then Lord Justice Clerk, Lord Ross, the responsibility for dealing with the case of Sheriff Stewart, to which the noble and learned Lord referred. It was borne in on me, perhaps more forcefully than ever before, how valuable the sheriff court procedure is for preserving the independence of the judiciary from political interference. I say that because there was political discussion about Sheriff Stewart's position, but it was at the request of the Secretary of State that the matter was dealt with by the judges in order to decide whether grounds for his removal were made out.
There are two aspects to the problem. The first relates to the independence of the judges. The noble and learned Lord, Lord McCluskey, explained the position much better than I can on that chapter. The other, which was of pressing concern to me as head of the court, was the need for clarity and for certainty as to what to do in

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these very serious cases where the public interest is so much at the root of the problem and where press scrutiny is so penetrating should things go wrong.
This part of the clause makes two assumptions in looking at the question of removal. The first is that a judge, or the chairman of the Scottish Land Court, may become unfit for office while he is still in post. The second is that if he is unfit for office it will be necessary for steps to be taken by some procedure to remove that person from office.
Like the noble and learned Lord, Lord McCluskey, I regard the first assumption—that a judge may, in the period of the Scottish parliament, become unfit for office—as one that it is proper to make for the purposes of the Bill. Despite our history, which has never encountered one of these problems of removal before, it would be a rash assumption to make that at no time in the history of the parliament could such a problem arise. But let us assume that such a problem has arisen. Let us assume that it is believed that there are grounds for saying that a judge is unfit for office. I believe that the Lord President of the court—the head of the court—is the first person to whom one turns in order to initiate the procedures to deal with the situation. It would be his responsibility to find out the facts as best he can, to offer advice to the judge in question, to offer warnings and perhaps even to advise him to resign. It may be that that advice will be taken. It is only if it is not taken that it will become necessary for further steps to be put in place, with the support of the Lord President, as I assume, in order to secure removal.
I mention in passing that in its present form the amendment of the noble and learned Lord, Lord McCluskey, faces up to the problem that the Lord President will almost inevitably be deeply involved in these problems from the very beginning in offering advice—perhaps offering warnings—and it is quite right that he should step back and that others should be brought in. I fully support the suggestion that Lords of Appeal in Ordinary should be included in the possible range of people who could provide membership of the necessary tribunal. I thought a very important point indeed was made by the noble and learned Lord, Lord McCluskey, when he doubted whether this matter could be dealt with by the Scottish parliament, with the limited powers it has under the Bill.
What then of the proceedings? What must one secure if this procedure, in the unhappy circumstances to which I have referred, has to be put into operation? I suggest that there are three qualities which it has to satisfy. The first is that the procedure must be independent—independent of political influence and independent of the senior judge who has the responsibility of taking the preliminary steps. Secondly, it must of course be fair and it must live up to the requirements of the convention. But, thirdly, it must be swift and it must be effective. I believe that in its present form the Bill fails to address any of those three requirements.
So far as concerns the necessity for swift and effective action, let me mention the case of Sheriff Stewart by way of example as to what may occur if one of these contested cases were to arise. I do this not in
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any sense to criticise Sheriff Stewart who was defending his position, as he was perfectly entitled to do, all the way down the line. But let us just contemplate what the consequences would be if one encountered such a person in the crisis to which this part of the clause refers.
Sheriff Stewart was suspended from duty but he remained on full pay. That meant that there was a vacancy which had to be filled in his local court at public expense. Therefore, double expenditure in a sense was being incurred by paying the sheriff and providing a replacement who could carry out his functions in that court. The operation to secure his removal from the point when the request was made by the Secretary of State to the moment at which the Secretary of State, on advice, placed the matter before Parliament occupied the best part of a year, during which time that expense was incurred. Following that, as he was perfectly entitled to do, Sheriff Stewart challenged the procedure for his removal and, as your Lordships have been told, he took the matter, step by step, up to your Lordships' House, where the matter was resolved by the Appellate Committee.
All these things were perfectly within Sheriff Stewart's rights, but I am bound to say that, if that kind of process had been going on within the Court of Session during my time as Lord President, I should have found it almost intolerable for the good of the court and for the public perception of the administration of justice in Scotland. The court has a limited number of judges and an immense amount of work to do. It cannot afford to have a judge suspended from duty at public expense for a long period, while people search around for the necessary procedures to secure removal.
Further, let us suppose that a challenge is made to the removal process and that that process is tripped up on the way because of some failure in putting together in the crisis the necessary procedures to be secure against challenge. Just imagine the effect of that on the morale of the court and the capacity of the judicial system in Scotland to serve the public interest.
My recollection of what the noble and learned Lord the Lord Advocate said in the early hours of the morning on the last occasion that we discussed the matter was that he believed that the Scottish parliament could deal with it by legislation in the light of experience. That sounds to me like a recipe for disaster if one considers the situation that one is being forced to contemplate.
We have enough experience now—and I speak having regard to the experience of the noble and learned Lord, Lord McCluskey, and, if I may be allowed, my own experience—to be able to design a system which will secure the aims to which I have referred. It is far better that we should have that system in place now so that those who are in positions of responsibility and have to take such decisions will have that framework available to them within which to work.
I suspect that there may be some concern which may underline the Government's resistance to the amendment; namely, that by taking the step proposed we would be innovating on the position that obtains at present in England and Wales. It is perfectly true that

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there is no procedure such as is being suggested to deal with the senior judiciary in England and Wales. However, if that does lie behind the Government's thinking, I have to say with the greatest respect that it is a totally misguided approach to the situation which we now face in this Bill. The reason is quite simple: it is that the Rubicon has been crossed by including in the Bill any procedure at all for the removal of judges.
If it is believed—and I may be wrong—that it is necessary to preserve the judiciary in England and Wales from such a procedure, the question of the removal of judges by bringing the Scottish parliament into the process should have been left out of the Bill. Indeed, we should have been left with the position as it remains today and the senior judiciary throughout the United Kingdom would be in the same position. For reasons which I can well understand, the Government have decided that that will not do and that Scottish judges must be considered and dealt with in Scotland. However, once that step has been taken it becomes inevitable for the necessary procedures to be written on the face of the Bill.
For those reasons, I strongly support the amendments to which the noble and learned Lord, Lord McCluskey, has spoken both in principle and, if I may say so, in detail.
5.30 p.m.
Lord Selkirk of Douglas: My Lords, I rise to express my very strong support for both noble and learned Lords. They made speeches which were persuasive, compelling and convincing. It seems that there is no adequate machinery under the Bill for removing judges who are considered unfit. I should perhaps make an admission here in that I have served as junior counsel to the noble and learned Lord, Lord McCluskey, in the past. I vividly remember a particular accident case in which most of the witnesses had died. It was not clear which law of which country applied. But, notwithstanding those obstacles, the noble and learned Lord still managed to get a very good settlement for the widow. That may perhaps be a good omen for a successful outcome to our debate this evening.
I am glad to support the noble and learned Lord most strongly. It is extremely important that the independence of the judiciary is appropriately safeguarded. It is a serious matter to remove a judge. I witnessed the case where a sheriff was removed from office by both Houses of Parliament. It was Sheriff Peter Thompson whom I had appeared before and who was a very good sheriff on the bench. However, he would campaign for referenda on constitutional issues and, because he persisted in doing so when he had been asked by the Lord President of the Court of Session to desist, an order was laid before both Houses of Parliament. The end to that sad saga was that the Government chose to employ the use of referenda, which is perhaps most ironical.
None of Scotland's most senior judges has ever been removed. Therefore, it is extremely important that we get this right tonight. I should point out that there are precedents for removing from politicians quasi-judicial decisions, taking them out of the their hands and putting
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them in the hands of tribunals. Perhaps I may mention one precedent which I believe serves to reinforce the noble and learned Lord's case. During the seven years that I was Home Affairs Minister in Scotland, cases where police officers appealed to the Secretary of State against dismissal would come to the Home Office Minister. He would read the papers carefully, make his recommendation to the Secretary of State and the latter, on the best advice of the solicitors' department, would issue a decision. That law has been changed. Such cases would not now be considered for hours and hours by the Secretary of State and his officials. Instead, they will go to a tribunal. I believe that to be the correct and appropriate procedure.
As a matter of principle, we wish to retain an independent judiciary which will not lightly be tampered with and which will remain highly respected. Supporting the principle of the noble and learned Lord's amendment should achieve just this. I am very glad to confirm that it has the complete support of the Law Society of Scotland.
Lord Lester of Herne Hill: My Lords, support for the principle behind these amendments is surely something that will come from every side of the House. Indeed, I believe that everyone in this Chamber will agree that the maintenance of the rule of law and protecting judicial independence are essential ingredients of a modern democracy. We must be quite clear in all the legislation that we pass that, whatever we do, it does not sap the independence of the judiciary in any way. I should have thought that that would be common ground everywhere; it certainly is on these Benches. That is one of the reasons why we organised the debate last week on the possibility of a constitutional court and the need for judicial independence.
The question is: what is the most effective means of safeguarding judicial independence in the context of this Bill? As I indicated when I spoke earlier, the means that we would prefer would be by creating a standing constitutional judicial commission which would deal with questions of removal as well as questions of appointment and matters of discipline. As the noble and learned Lord the Lord Advocate has rightly said, that goes wider than the Bill. Indeed, it ought to do so because it should protect the judges in every part of the United Kingdom—that is, in England and Wales and Northern Ireland as well as in Scotland.
As some noble Lords may remember, I was the unsuccessful counsel in an appeal from Trinidad and Tobago when my client, the chief justice, removed one of the judges, Mr. Justice Crane, in breach of the constitutional guarantees written into the constitution of Trinidad and Tobago. The reason he won was that there were criteria prescribed in the constitution and there was a proper constitutional commission. Unfortunately, the chief justice himself, showing that judges themselves may sometimes err as administrators, had not complied with the proper procedures. That would be our preferred option, but it is not before the House this evening.
The proposal now put forward by the noble and learned Lord, Lord McCluskey, is for a special judicial tribunal to deal with such matters only in the context of

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Scotland. It does not arise in Northern Ireland in the same way because judicial removal and appointments will not be devolved to the elected Northern Ireland Assembly. The question which comes to my mind, and upon which I would very much welcome a detailed reply from the noble and learned Lord the Lord Advocate, is whether there are other effective judicial remedies to deal with the hypothetical problem that the First Minister acts outside the purposes prescribed in Clause 90—that is to say, his Motion is not made for the purpose of removing someone who is,
"unfit for office by reason of inability, neglect of duty or misbehaviour",
but because of some other punitive or politically partisan improper reason. In that situation would there be an effective remedy by way of judicial review before an independent and impartial court to deal with that?
To take the second example, suppose there were a want of natural justice—this is one of the examples raised by the noble and learned Lord, Lord McCluskey—where the case against the judge had not been properly put, is it the Government's view that that would be able to be dealt with by the second principle of administrative law, of fairness or procedural propriety? Thirdly, let us suppose that the means of disciplining the judge were quite excessive and disproportionate, would the Government consider that that would be within the scope of the modern principle of rationality, and that it would be irrational for the First Minister, or a majority of the Scottish parliament, to seek to remove the judge on that basis?
Speaking for myself it seems to me that our principles of administrative law have moved sufficiently far—now strengthened by the Human Rights Act and Article 6—to enable our ordinary courts to provide perfectly effective remedies if there were to be a breach of legality, rationality or fairness. I now mention the only matter which gives me concern about that. The advantage of the tribunal of the noble and learned Lord, Lord McCluskey, is that it deals with merits review; that is to say, it can take the decision itself not by way of a supervisory jurisdiction. But, again, it seems to me that the supervisory jurisdiction of the judicial review court has now moved so far forward in developing principles of administrative law that in practice the merits of the First Minister's motion, and of any subsequent decision, could be effectively judicially reviewed. If that is the basis upon which we are legislating, I would reach the conclusion that a tribunal of this kind would not be necessary because ordinary judicial review on that basis would be sufficient.
If, on the other hand, the Government's view was that this was not a remedy that the ordinary courts could provide, speaking for myself, it seems to me that one should put the matter beyond doubt by creating a special tribunal, and, I would say, a special tribunal which in the long run goes beyond the Scottish judiciary. If we cannot be given an assurance of that kind this evening, I hope this measure will not be pressed to a Division to enable us to consider the matter in the light of what we are about to hear from the noble and learned Lord the Lord Advocate to see what is the best means of
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accomplishing an aim which everyone who has spoken—and I am sure everyone in the Chamber—shares; namely, to preserve judicial independence against arbitrary, unfair, partisan or punitive political removal of a judge.
5.45 p.m.
Baroness Carnegy of Lour: My Lords, I am not sure why the noble Lord, Lord Lester of Herne Hill, is not sufficiently keen on this amendment and why he wants to hear the noble and learned Lord the Lord Advocate suggest other ways that a solution might be found. This is an important amendment. I was not able to be present on the previous occasion at the late hour that this matter was discussed but I have read what was said with care. This amendment seeks to tackle in an extremely sensible way the weakest part of this Bill from the point of view of the public in Scotland, not just the lawyers. The danger of involving the Scots parliament in the removal of a judge in the way proposed in this legislation is great indeed.
The Government tell us—the noble and learned Lord, Lord Hope, has, of course, referred to this matter—that their reason for this measure is that the Westminster Parliament has a role (not unlike that which is suggested) in the removal of judges, if and when that is required, and it seldom is. But the point is that Scotland is a different place. Scotland is comparatively small. Edinburgh, where the law proliferates, is small. The Scots Bar is small. The noble Baroness, Lady Ramsay, smiles. She knows her Scotland well and I think that what I say rings true with her. Politicians and lawyers know one another and they meet socially. They gossip, if I dare say that. Many of them are interested in politics. It simply is not difficult to imagine a judge in Scotland making a controversial decision to strike down a Bill, or part of a Bill, which is dear to the hearts of the members of the Scottish parliament, or in some way cutting across some Scottish parliament members' interests, or the interests of their constituents. It will not be difficult to arouse political controversy almost immediately if one criticises a judge's competence. One can imagine the press comment, the gossip in Edinburgh within the law—perhaps it would stretch to Glasgow and even further—and the gossip among ordinary people.
The existing trust in the independence of judges which I referred to when I discussed the previous amendment—that trust is great in Scotland—will be damaged. That will happen whether or not the two-thirds majority is achieved. I can remember the political turmoil in a local authority when an education committee of which I was a member had to achieve a two-thirds majority for the removal of a teacher. We failed to do that but, my goodness, that teacher's life was difficult afterwards! Imagine being a judge after this process has failed to remove him.
The noble and learned Lord, Lord McCluskey, by insisting that a tribunal might be the hurdle which would have to be crossed before the parliament ever considered the matter, has given a good response. It is a good answer in the legal sense and from the public's point of view. People understand how tribunals can settle these

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matters, and they would accept that. One wonders how anyone in Scotland could conceivably not adopt that idea. I do not know whether a noble Lord from the Government Benches will join this discussion—I see that the noble Lord, Lord Hughes, is now present—as for a long time there has been no noble Lord present on those Benches, and no one has supported the Government on these matters previously. I do not know whether the noble Lord will do so on this occasion. I know that he is worried about other aspects of the Bill, as he has told me so. As I said, I do not understand how anyone in Scotland could not adopt this idea.
I believe that the noble and learned Lord, Lord Hope, has suggested my next point; namely, that the problems of the Scottish Office and of the Lord Advocate's Department lie outside Scotland. I wonder whether the saga of the students' fees is not about to be repeated. In that case the Scottish Office knew what to do and had the resources to do it but the department south of the Border refused to join in because of what it considered to be a potential knock-on effect for it. It may be that the Government's reluctance to adopt this idea has something to do with problems south of the Border and a fear that there may be a knock-on effect at Westminster. If that is the case, it is a total misreading of the needs of Scotland.
The Government must think again about this matter. It is enormously unwise to stick to their guns. This part of the clause will, above all, lay the Scottish judiciary open to politicisation. The amendment moved by the noble and learned Lord, Lord McCluskey, must be supported. As the noble and learned Lord pointed out, such a change can be made only by this Parliament. It is no good the Government saying that the Scots parliament can do it later. I hope that noble Lords on all sides of the House will support the noble and learned Lord.
Lord Jauncey of Tullichettle: My Lords, first I must confess that I was removed from shrieval office by resolution of both Houses of Parliament but in somewhat different circumstances when the last Labour government decided that it was no longer appropriate that there should be part-time sheriffs principal. Six of us were removed from office. However, I was in good company. I was removed together with the previous Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, and someone else who became senator of the College of Justice shortly thereafter.
At present, the Westminster Parliament is substantially sovereign. I use the word "substantially" rather than "wholly" because of the necessary abdication of that sovereignty in matters where European Community law is concerned—for example, the European Court of Justice directs United Kingdom courts to disapply provisions of primary legislation passed by Parliament. An outstanding example was the decision of the European Court that the Appellate Committee of this House must disapply provisions of the Merchant Shipping Act in relation to shipping vessels registered under the British flag but Spanish-owned. However, in general, the judiciary in the United Kingdom presently has the task of
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interpreting and applying primary legislation. It does not have the power to question why it was passed or to strike it down.
The position in Scotland under this Bill will be very different. As my noble and learned friend Lord Hope of Craighead lucidly pointed out at Second Reading, the Scottish parliament will have powers limited to those devolved to it by this Bill. Any legislation which it enacts which is outwith those powers will then be subject to challenge and will be brought before the courts in Scotland. That is likely to bring the Scottish courts into collision with the executive and the legislature in a manner previously unknown in the United Kingdom. I make no mention of the impact that the adoption of the European Convention on Human Rights into British law will have as well. It is therefore of critical importance that the independence of the judiciary from pressure by the executive and the legislature should be preserved. It is equally important that it should be seen by the public in Scotland to be preserved.
At present, the removal of a judge—always subject to the ultimate approval of Her Majesty—is placed by Clause 90 entirely in the hands of politicians: the First Minister and the parliament. The two-thirds majority presently written into the Bill, if anything, seems to emphasise the important part that Parliament is to play in any such exercise. That is hardly calculated to inspire confidence in the public at large in the independence of the judiciary, least of all in those litigants who happen to challenge legislation or other Acts of the Scottish parliament in the courts.
The temptation to get rid of a judge who may be a first-class judge and a first-class lawyer but who has had what might be termed the misfortune to deal with a number of cases involving the vires of legislation and who has perhaps come down on the side of ultra vires may be large. It will not do simply to say that it is all right and it can be left to the good sense of the First Minister, whoever he is at whatever time. We do not know how the Scottish parliament will develop. This is far too important a matter to be left purely to chance. I suggest that the First Minister, left to himself, will not be suitably qualified to evaluate at first instance the competence of a senior Scottish judge to do his duty.
The removal of the initial assessment of a judge's competence from politicians to an independent tribunal provides a constitutional safeguard which should be written into the Bill. The need for such an important safeguard is far too important a matter to be left to the whims of future Scottish politicians.
At present, Section 12 of the sheriff courts Act has machinery for the removal of a sheriff. My noble and learned friend Lord Hope of Craighead mentioned that point. However, such a sheriff can be removed only after a report in writing to the Secretary of State by the two senior judges, followed by action by the Secretary of State. The initial assessment of a sheriff's inability or ability is made by two senior judges.
That section was considered by the Appellate Committee of this House within the past year. One of the arguments addressed by the sheriff was that a broad

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construction of the words, "unfitness through inability", was to encroach upon the independence of the judiciary. The answer to that proposition which commended itself to the Appellate Committee was this:
"The two senior judges, who might be considered to be the persons best qualified to assess a sheriff's fitness and to recognise the importance of judicial independence, are thus the bulwark standing between the sheriff and any undue interference by the executive".
I submit that the independent tribunal proposed by my noble and learned friend Lord McCluskey in this amendment would constitute just such a bulwark.
In conclusion, perhaps I may mention two matters raised by my noble and learned friend Lord Hope. He stated, and I entirely agree, that the practice and procedure for the removal of a judge must involve independence, fairness and speed. I merely add that it seems to me very important that the tribunal carrying out the function of determining whether a judge is or is not fit should be composed of persons who are qualified to assess that unfitness.
My noble and learned friend suggested that the Government were concerned about the fact that the innovation of a procedure for the removal of judges in the Bill might have some effect in England and Wales. It is a very different situation. So far as we see at present, no English judge is likely to be called upon to consider the vires of legislation passed by the Parliament at Westminster apart from questions on human rights. For those reasons I strongly support the amendment moved by my noble and learned friend Lord McCluskey.
Lord Ackner: My Lords, in view of the confession so recently made by my noble and learned friend Lord Jauncey, perhaps I should confess that there was an occasion when I was a judge of the Queen's Bench Court when a Humble Address was sought in this House to remove me from that office. I had made a wholly justified interlocutory injunction against a sensitive trade union which took it amiss. I am happy to say that Lord Broxbourne, formerly Sir Derek Walker-Smith, came to my rescue by putting down an amendment which provided for the deletion of everything except "That this House" and the insertion of,
"recognises in Mr. Justice Ackner",
and there followed a string of qualities which even my best friends would not have associated with me. When, to my anxiety, he asked for the matter to be debated, the Leader of the House thought that this entertainment had gone too far and it was never put to the test.
Sadly, I cannot claim authorship for the fine words:
"an independent judiciary is an essential safeguard and key element in our constitution".—[Official Report, 6/10/98; col. 417.]
They were the words with which the noble and learned Lord the Lord Advocate began his reply when the matter came before the Committee on 6th October. The need to safeguard the independence of the judiciary is therefore fully recognised. Yet, remarkably, by the terms of the Bill the First Minister is not required to prove that the judge is incompetent in any way. All that the Bill requires is that he should be satisfied that the judge
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should be removed and that he should specify the ground for the removal. No opportunity is given by the Bill for the judge to appear before an independent tribunal to be given the opportunity to defend himself against whatever accusation is made. I respectfully submit that that is a serious attack upon the independence of the judiciary.
I expect the answer to the noble Lord, Lord Lester, to be that judicial review does lie. But, if that is the right answer, I wholly disagree that it is an alternative that we should consider. Judicial review takes time. It can be the subject of appeals, right up to the House of Lords, and that will delay what should be an urgent decision. As has recently been pointed out, with great respect, Scotland is a small place. To bring on judicial review would involve a considerable degree of embarrassment and difficulty.
I wholly support what is proposed in the amendments, with one minor exception, which can perhaps he reconsidered. I do not like tribunals consisting of two judges, particularly when a matter as serious as this is concerned. Have one judge, if you must, or three judges, or five judges; but do not let us have a tribunal that is almost constituted to disagree. I sat as the second judge in a two-judge court with the noble and learned Lord, Lord Denning, with whom I had the effrontery to disagree. He agreed with me that a two-judge court was merely a cost-saving mechanism and was undesirable. Cost saving should be no part of the consideration of this matter in the Scotland Bill. I therefore urge that in due course, once what the noble and learned Lord, Lord McCluskey, has proposed is agreed to by your Lordships, some thought should be given to the appropriateness of having an uneven number of judges for this very important tribunal.
6 p.m.
Lord Clyde: My Lords, I am sorry that I have no colourful judicial experience to add to that of the noble and learned Lords who have spoken before me on the matter of the removal of a judge. However, I assume that the noble and learned Lord the Lord Advocate would accept all the matters of principle that have been raised in the debate and the desirability of an independent tribunal of some kind in order to resolve the matter. What I suspect is at issue is whether the provision should be inserted in the Bill. The noble and learned Lord may say that it is inconceivable and unimaginable that some procedure will not be put in place in due course. It may be that he will say that he does not wish the Bill to be cluttered up with lengthy amendments of this kind. Those reasons will not do.
In this Bill we are launching a great vessel; we are giving it a captain and a crew; and we are letting it steer its own course into an uncharted sea. We cannot foresee with any confidence how that vessel will conduct itself and in what turns, twists and manoeuvres it may engage. It may well be that all will be well, but one cannot predict that with absolute confidence. There is therefore the greater necessity to provide for these matters at the stage of the launch. No doubt, when the "Titanic" was launched, people said, "It is unimaginable that this ship can sink"; and no doubt many said, "It is unacceptable

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to clutter up its decks with more lifeboats." I am concerned that in this Bill we should not launch a vessel which is doomed to catastrophe.
Lord Wilson of Tillyorn: My Lords, being a layman, I have some hesitation in speaking after the eloquent speeches of so many noble and learned Lords. Perhaps I may call in aid two matters. First, the independence of the judiciary is so important that it should be of concern to those who are not learned in the law. Secondly, to float a little vessel from what may seem an odd part of the compass, when we were negotiating the future of Hong Kong we strongly argued, quite rightly, that the independence of the judiciary was a key part of the system. The system had been such that to dismiss a senior judge was very complicated. It would not have satisfied the desire of the noble and learned Lord, Lord Hope of Craighead, for speed. It required a tribunal and a reference to the Judicial Committee of the Privy Council. I do not believe it had been used for many years. The Judicial Committee had to drop out, for obvious reasons. We argued strongly with China that judicial independence from the executive and from the legislature was crucial. A provision was put into the agreement that there should be an independent tribunal, which would be headed by the Chief Justice, and only after that tribunal had proclaimed would the matter go to the legislature, which had to give its approval. That was agreed with China. It was included in the agreement and is in the mini-constitution of Hong Kong, valid for at least the next 49 years. I believe it is also the case that within the Commonwealth after the late 1950s all new constitutions had some form of independent tribunal.
As a layman it seems to me that judicial independence is crucial and we should establish the right provisions for the future of Scotland that not only work in practice but are seen in advance to be sufficient to guarantee the independence of the judiciary from the executive or the legislature. It does not matter, does it, that the procedure will probably not be used for 50 or perhaps one hundred years? It is not sufficient to revise it when it comes to that time. We need to have in place a provision which is seen to be right by the broad public before this particular vessel is launched.
The amendments tabled by the noble and learned Lord, Lord McCluskey, do not in any way undermine the main purposes of the Bill, which for my part I support, but reinforce its effectiveness of it. I hope that the noble and learned Lord is able to say that the Government will take account of all that has been said and will either accept the amendment or produce an alternative of their own.
Lord Fraser of Carmyllie: My Lords, I have appended my name to the three amendments that have been spoken to by the noble and learned Lord. My support for what has been proposed remains as strong as, if not stronger than, ever. I am not in the least surprised to learn that the noble and learned Lord, Lord McCluskey, has received a wide range of senior legal support for this proposal from the length and breadth of Scotland.
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I should like to make two points. In particular I address the argument that this is a matter which can be left to the Scottish parliament itself. First, whatever may be the good collective instinct of the Scottish judiciary not to trespass or to become unnecessarily involved in parts of the political process, I believe that in a very short space of time it is inevitable that a number of disputes will come before the courts which have a political quality that previously they would not have had. It is for that reason that I believe it to be wholly desirable to settle the matter of the independence of the judiciary before there is any risk of such disputes coming before the courts and any challenge being made as to the integrity and independence of the judiciary.
The second reason why I should like to see this amendment on the face of the Bill is that already advanced by the noble and learned Lords, Lord McCluskey and Lord Hope. Let us assume that at a future point the Scottish parliament decides that the best way to resolve the matter is along the lines advanced by the noble and learned Lord; namely, that an independent tribunal should be established. If such an approach were adopted the next important issue to be determined would be the composition of that tribunal. If one envisages, as one must, that from the Lord President downwards the judge may be at the centre of proceedings it is virtually impossible to conceive of a composition of a tribunal that is intra vires the Scottish parliament. I believe it is absolutely clear that it would have be along the lines of the three groupings advanced by the noble and learned Lord. I do not believe that the groups chosen by him for the purposes of his amendment are in any way an arbitrary selection of possible candidates; indeed, they are the only ones who would be appropriate to deal with holders of such high judicial office in Scotland.
I intended to say that provisions along the lines of subsection (9) would not be appropriate for the Scottish parliament to legislate upon, but now that we have had the opinion of the noble and learned Lords, Lord McCluskey and Lord Hope, that that would probably be outwith the powers of the parliament, the fact that I agree with them may be a rather redundant observation. Nevertheless, it is very important that before the parliament is established we try to ensure the independence of the judiciary. If the fitness of any Scottish judge at the most senior level is to be questioned it is wholly desirable at this stage before the parliament gets under way that we establish and secure the integrity of the judiciary and that if there is to be any challenge it is considered only by a tribunal of the distinction suggested by the noble and learned Lord.
6.15 p.m.
Lord Hughes: My Lords, I am not sure that I am wise to enter into this debate given the presence of so many legal luminaries. Although the University of St. Andrews conferred upon me an honorary doctorate of laws, the only judicial appointment I have ever held is that of a bailie sitting in the police court in Dundee. I do not claim any legal qualifications. I should like to make a very simple point. I understand that as the Bill originally stood a judge could be removed if a majority of the parliament voted for his removal. That was

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amended by making it a majority of two-thirds. I am not happy about that. Two-thirds would be 86 members of the parliament as presently composed. If it came to a vote and 65 or 70 members voted for a judge's removal he could not be removed because it would not amount to a two-thirds majority. But I suggest that in those circumstances any self-respecting judge would be forced to resign if parliament had shown that a majority of those voting did not believe that he was fit to hold office. Therefore, the two-thirds majority is no real safeguard.
I am minded to vote for this amendment unless my noble and learned friend the Lord Advocate can come up with something—perhaps a more simple proposal—which has the effect of enabling a judge to be removed only when it is obvious under the procedure adopted that he is unfit for office. Incidentally, in the past judges have been found to be unfit for office in Scotland but they have never been sacked. Their colleagues have always persuaded them to resign.
Lord Mackay of Drumadoon: My Lords, as the noble and learned Lord, Lord Hope observed, the background to this debate is the fact that when the Bill was first presented to Parliament it contained a clause which dealt with both the appointment and the removal of judges. The clause was necessary because on this issue this devolution settlement follows a different tack from that which gave rise to the Scotland Act 1978. For those of your Lordships who have followed the progress of this Bill through Parliament it must come as a surprise that at this very late stage in the history of the Bill there remains a very major dispute between noble Lords on all sides of the House and the Government. I hope very much that at this late stage we shall at long last see some movement on the part of the Government on these very important issues.
The simple question that arises is: what is objectionable in principle to the proposal in the three amendments tabled by the noble and learned Lord, Lord McCluskey, to which I and other noble Lords have also put our names? No doubt, like the noble and learned Lord, Lord Ackner, one can raise questions of detail as to whether it should be two or three judges; and perhaps one can criticise other points of detail. But what is objectionable in principle to separating the two stages in the process of removing judges: first, the determination of whether or not there is unfitness; and, second, once that matter has been established, the bringing of that matter before parliament for the appropriate resolution or motion to be moved? That was a point focused upon by the Faculty of Advocates many months ago in its memorandum to the Government, as the noble and learned Lord, Lord McCluskey, said. What it says is fundamental to a consideration of these amendments and I repeat it:
"The Faculty is also of the view that it is necessary to have some means of determining the fitness of judges that is independent of the political process".
I believe that to be the nub of the matter, for the very obvious reason that when the Scottish parliament is up and running, either immediately or after a year or two,
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issues will inevitably come before the courts of the greatest political sensitivity. I give one example. Would it be within the competence of the Scottish executive to call a referendum on whether or not the people of Scotland wished to have independence or to enact legislation to that effect? One can picture the papers the following day if judges in the Court of Session in Edinburgh—or, more likely, judges who are sitting as Members of the Judicial Committee of the Privy Council—reach a decision that an Act of the Scottish parliament authorising such a referendum is ultra vires and cannot take place. The press will be full of criticism, not just from politicians but all parts of Scotland. Equally, the press will be full of messages and expressions of support for the judges who will be caught up in a highly political situation. For that reason, I believe that it is essential that the two stages of this process should be set down on the face of the Bill.
Lord Hughes of Woodside: My Lords, there is a matter which has been puzzling me. While I wholly accept the independence of the judiciary, I am asked to believe that it is necessary for an independent tribunal of some kind to rule on the competence of judges. Independence of politicians, yes, but all the people who are named are not independent of the judiciary. I do not understand how it can come about that the judges are presumed to be so independent they can independently rule upon themselves. The noble and learned Lord mentioned a scenario in which there would be a great furore about the referendum being denied. If the furore was so great, no tribunal composed of judges would wish away that political maelstrom. In my view, neither of those two points has been sufficiently answered for me to support the amendments.
Lord Mackay of Drumadoon: My Lords, I am grateful to the noble Lord, Lord Hughes, for his intervention, which illustrates the point I make. Judges are being pulled into highly political issues. They have to rule on an issue of law. Unless the Bill clearly states what should happen if there are calls for the sacking of the judges concerned—calls from people who may not have studied the history of this Bill, let alone the detail, with the same interest as the rest of us—I perceive there will be difficulty. On the other hand, if there are such calls, the First Minister can say to parliament, "This was decided back in 1998." That is the procedure which will have to be followed. If he could point to something in the Bill then that would serve to quell any calls which would inevitably arise for the removal of the judges concerned.
I return to the first point made by the noble Lord. That is a good example of a matter of detail. I can see the force of the argument that a tribunal could contain a mixture of judicial members and people without legal qualifications. A number of tribunals sit in this country which have such a mixed composition. Such an amendment, if tabled, would fall to be debated on its merits.
The style which the noble and learned Lord, Lord McCluskey has followed is already in legislation in the Sheriff Courts (Scotland) Act 1971 which

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provides for the removal of the sheriffs. The last time we debated this matter I believe the noble and learned Lord the Lord Advocate said that that has not given rise to any criticism as to the procedure followed, subject to one comment; namely that it may be unfortunate that the Lord President and the Lord Justice Clerk are the two judges concerned. As the noble and learned Lord, Lord Hope, said on more than one occasion, by the time it comes to such an inquiry, the judges are tainted by bias because they have practical experience of the failings of the sheriff concerned. Therefore, it may be difficult for them to stand back and be independent. That is why I believe that the tribunal, as defined by the noble and learned Lord, Lord McCluskey, in Amendment No. 177, is an improvement on the provisions in the 1971 Act. I have no absolute view that under no circumstances could lay people be involved. However, I have an absolute view that they should not be members of the parliament or active in any party politics. I am quite sure that an accommodation to that effect could be reached.
I return to the point I was making. I believe that this detail should be on the face of the Bill. The noble Lord, Lord Lester, may well be correct that principles of administrative law, and other principles, may come to the rescue of the judge concerned to ensure that the inquiry and procedures are fair. With the greatest respect to the noble Lord, I do not believe that we can afford to wait to see if he is correct. Like all noble Lords who are lawyers and have been in practice, occasionally the opinions one expresses on the law turn out not to be the ones supported by the court. I should prefer to see this provision in the Bill. That is why I firmly support the amendments.
Finally, I take the point raised by the noble Lord, Lord Hughes—
Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord for giving way. I should like to clarify a point which may have been misunderstood. I said that there were three ways of achieving the objective; the first two are by means of statutory tribunal. I raised the possibility as to the effectiveness of judicial review as an alternative approach. I await the Government's reply. However, I see the force of the argument that the best way is by means of a judicial commission or tribunal.
Lord Mackay of Drumadoon: My Lords, I am grateful to the noble Lord for that clarification. As I have said, when this matter was last debated I put forward the very argument made by the noble Lord, Lord Hughes; namely that a judge who survived in the sense that only a simple majority was achieved and not the necessary two thirds would be in an impossible position. The noble Lord may well be right that any judge in such a position would resign but I should not want to see that possibility arise.
This matter was debated fully in Committee in the middle of the night. It has been debated fully today. I understand, from what the noble and learned Lord, Lord McCluskey, said earlier, that he does not intend to press Amendment No. 175 at this stage. However, if he
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presses Amendments Nos. 176 and 177 to a vote, I shall support him in the Division Lobbies. I should encourage my noble friends to do likewise.
Lord Hardie: My Lords, as the noble and learned Lord, Lord Mackay of Drumadoon, said, this has been a long and interesting debate. We have rehearsed many of the reservations about the provisions in the Bill for the removal of judges. Those reservations were also rehearsed in Committee over a considerable period, albeit early in the morning.
The noble and learned Lord, Lord McCluskey, acknowledged the many points of agreement between noble Lords who support this amendment and the Government. The noble and learned Lord, Lord Ackner, acknowledged in Committee that I recognise and place considerable importance on the independence of the judiciary. So we are agreed about that principle. We are also agreed that there must be a workable process for the removal of judges who are no longer competent to carry out their role. I think we are also agreed that robust arrangements will have to be made to determine whether a judge is unfit. In particular, we agreed that in any such case, the grounds for removal should be clearly stated. The only point on which we are divided is how much of the detailed procedure should be on the face of the Bill. In other words, should this matter be settled here and now at Westminster or left to Holyrood?
As I have said, the Government are committed, as I am, to protect the independence of the judiciary. The House should not doubt that we understand absolutely the need for the proper separation of powers between the legislature, the executive and the judiciary. We also recognise that such separation can never be absolute, as this House knows to its great benefit. However, we accept completely that a substantial degree of separation is needed if the legal process is to operate without fear or favour. In recognition of the fact that this is a key issue, we have gone much further than any provision currently in statute by spelling out in this Bill the only grounds on which a judge may be removed. I would invite the House to contrast that with the present position under the Supreme Court Act 1981, which governs the procedures for England and Wales, to which I shall return.
I say to noble Lords who raised the issue of England and Wales that that is not a reason for our resisting the amendment. We do not resist it in case there are repercussions for England and Wales. I assure noble Lord that that has not entered into our deliberations. The reference to England and Wales and the Supreme Court Act 1981 is simply to draw a distinction and to show that in this Bill we set out the specific grounds upon which the First Minister can put a Motion before parliament.
I submit that the task before us is to ensure that the Bill contains the fundamental safeguards required for the separation of powers; in other words, the protections which are essential to safeguard judicial independence. The other side of the task must be to ensure that those safeguards are framed in a way which will stand the test of time. That is an important consideration for noble Lords to bear in mind when considering what to do at

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the end of the debate. We must be careful that in a relatively short time the provisions may come to be seen as too inflexibly constructed to be able to cope with reasonable changes in the wider world.
I remind the House that the clause is entrenched; it can be amended only here at Westminster. If there are calls to amend the clause in five or 10 years' time because we have failed to leave room for the development of a significant role for, say, a ministry of justice, or a particular committee structure in the parliament, or simply a different type of investigative tribunal—perhaps one including a lay voice—the task here will not have been done correctly today. Indeed, we may build in detail here today which on further reflection, in very short order, we come to think as not right because it has been conceived in relative haste.
The House has doubtless noted that the detailed proposal put forward here already shifts the ground as compared to proposals suggested by noble and learned Lords a matter of weeks ago. For example, on 6th October, at col. 418 of Hansard, the noble and learned Lord, Lord McCluskey, admitted that this might not simply be an issue for determination by the judiciary alone. And yet we have before us this amendment, which seems to entrench that proposal—
6.30 p.m.
Lord McCluskey: My Lords, the noble and learned Lord the Lord Advocate was offered that particular carrot by me. I was perfectly happy to accept the government amendment under which the determination as to fitness or unfitness was given to persons other than judges. The Lord Advocate did not accept that and the Government showed no willingness to do so. I therefore consulted extremely widely in Scotland and decided that the appropriate amendment for me to table was this one. If the Government want to have a lay element I am perfectly happy to accept it. I should be delighted to welcome it.
Lord Hardie: My Lords, we are considering the amendment tabled by the noble and learned Lord, Lord McCluskey. It is the amendment which he has tabled. I referred to our debate in Committee where the noble and learned Lord intervened when I was replying. He said:
"Does the noble and learned Lord recognise that I accept that there does not have to be a complete adjudication by judges for reasons that are easy to understand? What is required is that there should be an impartial, independent tribunal which may include judges but does not have to include nothing but judges".—[ Official Report, 6/1 0/98: col. 418.]
If that is the noble and learned Lord's position, and if the desire were to secure an independent tribunal, it would have been possible for him to frame an amendment setting up a tribunal which included judges, but not exclusively. The whole point of our exchange is to show that in the course of two weeks the position seems to have shifted.
I submit that our aim should be that Clause 90 should be accepted as a fundamental part of the constitutional settlement. For that reason, it is fundamentals that the clause should contain and no more.
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The principal fear which has been voiced is that the procedures set out in Clause 90, particularly those for the removal of judges, do not provide enough protection against "political" abuse. I do not agree that this is a fair criticism and I would urge the House to look carefully at the provisions in the clause. Subsection (8) provides that:
"The First Minister shall not make a motion under subsection (7) unless … he is satisfied that the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour".
He must be satisfied on one or other of those criteria before he can make the motion to parliament. In the case of the senior judges, the Lord President or the Lord Justice Clerk, there is the additional safeguard that he has consulted the Prime Minister.
As I have indicated, that goes much further than the Supreme Court Act 1981, which is entirely silent on procedures. There is no mention of the grounds on which a judge may be removed; far less any question of a tribunal. Subsection (8)(a) provides that the First Minister must be satisfied that the person is "unfit for office". Those are strong words. No other reason is admissible or admitted apart from inability, neglect of duty or misbehaviour.
Perhaps I may take up the point raised by the noble Lord, Lord Lester of Herne Hill. It is correct that if the First Minister decided to seek the removal of a judge for any other reason apart from those three, or if he took action which, applying any sense of reasonableness, did not amount to anyone being reasonably satisfied on any of those grounds, there would be a question for the judge to seek judicial review in the courts.
The noble and learned Lord, Lord Ackner, asked about judicial review. Of course it involves delays and there are opportunities properly to appeal to the Judicial Committee of this House. However, is the noble and learned Lord satisfied that even if a tribunal were in place there would be no opportunity for judicial review of the proceedings of the tribunal? If the judge felt aggrieved about the procedure that had been followed could he not seek judicial review of that?
The Earl of Balfour: My Lords, before the noble and learned Lord leaves that point, I wish to ask a question in respect of subsection (8)(b). The Lord Advocate has a staff behind him. Should not his successor in office be included in that provision? During our earlier proceedings, the noble and learned Lord, Lord McCluskey, stated that because of the Lord Advocate's staff and his position he held a special place in respect of the appointments of judges, sheriffs and so forth—
Lord Williams of Elvel: My Lords, as I understand it, we are on Report. It is for the Minister to respond on Report. There may be interventions of a very short nature, as I understand the Standing Orders, but I think the whole House would be grateful if we could get on with the business.
Lord Lester of Herne Hill: My Lords, I should like to ask a question arising directly out of the earlier exchange. Is the noble and learned Lord the Lord Advocate not able to assure the House, in answer to the

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points I put, that judicial review under the Scotland Bill, read with the Human Rights Bill, will go no further than a review of the legality of purpose; that it will not look at the merits of decisions and review the matter from the point of view of the basic civil right of the judge concerned to natural justice, or the loss of his office, as a valuable right, looked at on its merits? If that is the position, I can support the amendment. I hope that the Minister can assure noble Lords that judicial review would go much further.
6.45 p.m.
Lord Hardie: My Lords, I was dealing with the point of subsection 8(a), raised by the noble Lord, Lord Lester, in that context. Judicial review is a very wide remedy and, as I stated earlier, if there were reasons other than the three which are specified, clearly there would be a remedy of judicial review. Equally, if the view was taken that no reasonable Minister could have reached the view that on the information before him the test was satisfied, that would also give rise to judicial review. Of course there are questions of natural justice and that is what I was alluding to in my reference to the possibility of reviewing the proceedings of the tribunal. Questions of natural justice would be a ground for judicially reviewing an administrative decision of the First Minister. I hope that that answers the point.
I have not heard any persuasive account of how a political motive could be successfully dressed up as meeting the clearly limited criteria set out in subsection 8(a). Without such a persuasive account, fears of political abuse are simply not supported by a re-reading of the clause.
Noble Lords should bear in mind that the First Minister will have to be prepared to defend his view before the parliament and even before the courts if a judicial review were, for example, to be raised. No First Minister would embark on this road unless he was very sure of his ground. We have tended to discuss this clause so far as though there were only risk on one side of the equation; namely, that of the judge whose removal might be sought. But there are, it seems to me, very large risks for the First Minister if he attempts to subvert this process.
I invite the House to look at subsection (7)(b) of Clause 90 which requires members representing two-thirds of the seats to support a motion for removal. This point has featured in the contributions of a number of noble Lords. It has been correctly observed that when the Bill was first introduced in another place there was no such requirement; it was a simple majority. I can understand the concerns of noble Lords, including the noble Lord, Lord Hughes, and the noble Baroness, Lady Carnegy of Lour, about the effect on a judge if a two-thirds majority is not achieved. However, the proposal for a two-thirds majority was introduced after consideration as to how judges might be better protected. I understand that it found favour with senior members of the judiciary in Scotland at that time. It was seen as an important safeguard in protecting the judiciary. I understand that the noble and learned Lord, Lord Rodger of Earlsferry, the Lord President, thought that it was an improvement to the Bill.
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The effect of the two-thirds majority is that 86 people will have to vote in favour of removal of a judge before that could be achieved, and it would require an exceptional degree of cross-party support before the judge could be removed. If we are to amend the Bill for fear of political abuse of power, we owe it to the electorate to make a cool-headed assessment of the political realities of the situation. With great respect, I have gained the impression recently that some noble Lords are concerned that the steady good sense of the people of Scotland is somehow no longer to be relied upon. I did not find the comparisons with the former USSR helpful and thought them slightly over the top.
If ever the time comes when 86 members of the Scottish parliament wish to remove a judge for political reasons and are prepared to risk not only their public standing but also that of the judicial process as a whole, I suggest that we would be facing a constitutional crisis of such dimensions that what is said on the face of the Scotland Bill will, frankly, be neither here nor there.
Furthermore, as I have already noted and as I indicated in Committee, as matters stand judges in England and Wales have only the protection of a motion agreed by both these Houses under Section 11(3) of the Supreme Court Act 1981. I am not aware that this has come under any pressure for review, nor have I heard any serious suggestion that there has been political abuse of these powers. We are asked to disregard this absolutely crucial point on the grounds that the advent of "devolution questions" and the Human Rights Bill will so dramatically change the relationship between the courts and the Government that the long history of absence of political abuse of these powers ceases to be of any relevance. We are also asked to assume that the introduction of the parliament will void the existing conventions about the use of such powers. That simply is not tenable. The courts have long had, and on occasions have used, the capacity to greatly embarrass on occasion the executive. We should not exaggerate the extent to which the role of the judiciary is going to change, nor the extent to which the political realities which underpin existing conventions will be altered.
I do not seek to suggest that there is no scope to elaborate on what is in the Bill. We intend that the Scottish parliament should be able to add to the procedures which must be observed by the First Minister before he makes his Motion to the parliament. This afternoon and evening and in earlier debates, many distinguished holders of judicial office have made thoughtful and thought-provoking contributions regarding what additions to the process set out here there may be.
This is an important debate. It is one that the Scottish parliament itself is empowered to take forward. But the more we write into the Bill now, the more we limit the ways in which this process can be developed in future. Significant debates which have been opened in this House will, for all practical purposes, be closed down again before they have barely begun. We should be in no doubt that were we to accept these amendments, it would be practically impossible to add significantly to the process for weighing up the case for and against removal. The amendments clearly assign that task

67
exclusively to the proposed tribunal. The two senior members of the judiciary involved would become the gate-keepers, with absolute power to decide whether a case should progress. Once they have opined, there can be no practical role for any other body. Earlier, I touched on the scope for involvement in this debate. It cannot be right for this House to take a decision today that the gate-keepers should be the senior judiciary and no one else.
Further, the amendments do not specify which other procedures the tribunal is to follow. We have heard that there is a need to allow the judge himself to know the case against him and make representations. Those points were made by the noble and learned Lord, Lord Hope of Craighead. But the amendments here do not provide that safeguard. Is there to be a hearing at which the judge concerned is to be entitled to be heard? If not, what are the procedures? The Government consider that it would be preferable if the matter could be left in the hands of the Scottish parliament to devise a properly worked-out procedure, rather than adopting a procedure which has not been worked out in detail and which, as a proper solution, does not go far enough.
The noble and learned Lord again referred to the Latimer House guidelines. When we discussed this matter earlier in Committee, the noble and learned Lord mentioned those guidelines. As he has said, they were the product of a conference in June 1998 which adopted a series of principles and guidelines for consideration by the next meeting of the Commonwealth Heads of Government in November 1999. For the present therefore the guidelines have not been formally adopted by any government and I am not persuaded that they ought to influence the way in which your Lordships' House should reach decisions on what needs to go into the Scotland Bill now.
As regards ECHR, the noble and learned Lord referred to Article 6 of the European Convention on Human Rights, as he did in Committee. Since then, we have considered that point and are satisfied that there is no difficulty on that score. The Government take the view that the termination of office of a judge does not involve the determination of a civil right. That is because the European Court of Human Rights has drawn, in its decisions, a distinction between rights of appointment and termination in the public sector, which are matters of public law, and economic rights, such as rights to payment of salaries or pension, which are matters of private law, giving rise to civil rights. I can give the noble and learned Lord the necessary authorities, if he wishes.
I would urge noble Lords to think carefully about these amendments. I repeat the point I made at the start of my reply. There is not an essential difference between us about the need for the independence of the judiciary and the need for a robust, workable procedure for the removal of judges which is not open to abuse. However, the Government submit that our aim should be that Clause 90 of the Bill should be accepted as a fundamental part of the constitutional settlement and for that reason it should contain no more than it does at present. If we write more into this clause than is strictly
68
required and create an unnecessarily tight straitjacket which causes problems in the future, I am afraid we shall not have done our task properly. The Government accept that there is clearly a significant debate to be had about how the framework in the Bill might be augmented. But if we choose in this House not only to begin this debate but also to end it, we indeed do the Scottish parliament—and I would argue the judiciary itself—a great injustice.
I very much hope that the noble and learned Lords will consider those arguments and withdraw their amendments.
Lord McCluskey: My Lords, the noble and learned Lord will be disappointed by my response. I have a right to reply and I shall be as brief as I possibly can. I shall allow the speech of the noble and learned Lord the Lord Advocate to lie where it fell.
I trust that the noble Lord, Lord Lester of Herne Hill, is now satisfied, having heard the noble and learned Lord the Lord Advocate, that judicial review is not an adequate way of dealing with the matter because it cannot review the merits.
The noble and learned Lord referred to the propensity of politicians. The most distinguished and in some ways admirable politician of my lifetime was Franklin Delano Roosevelt, who came into office in 1932. He immediately tried to pack the Supreme Court with his own appointees because they seemed to him to be standing in the way of his political programme. Therefore, even the best of democrats will interfere with the judiciary if they can.
As regards the details, I do not care whether it is two or three judges. My original amendment provided for two or more judges. Some noble Lords did not like that and so I should be happy to have one judge or three or five judges, whatever is suitable to the Government. It is for the Government to make those proposals. It is not for me to write details of procedures about how judges should be given the opportunity to reply to charges of impropriety. That is not my job. I am here to raise a point of principle and I have sought to do so.
I agree entirely with the noble Lord, Lord Hughes, that to require a two-thirds majority is to say, in effect, to the legislature, "You have the power", whereas the present position is that constitutionally Parliament simply rubber-stamps the decision which is taken behind the scenes or, in my system, by a tribunal.
I have a lot of sympathy with what the noble Lord, Lord Hughes of Woodside, said, and he made the same point in Committee. We do not have to have a body which consists entirely of judges. There may be good reasons for including laymen or making it consist only of laymen. As I said on another occasion, one does not have to be a judge to determine whether a man is dishonest. If a man is beating his wife or molesting children, people other than judges can decide whether he is unfit on that ground. I should be perfectly happy and should welcome a move by the Government to make the tribunal embrace people of that kind.

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A point was made about the length of my amendments. They are quite modest. I do not suppose that size matters in this context, but my amendment is only 19 lines long. We have already agreed to add 34 lines to the Bill to introduce the Queen's Printer. If the Queen's Printer is worth 34 lines, surely a modest 16 to save the judiciary is not too much.
The noble and learned Lord the Lord Advocate says that the question is as regards how much of the detail should be in the Bill. He misses the point. We are perfectly happy with the mechanics of removal. There is no detail at all in the Bill in relation to determination of the question of unfitness. It is that which is lacking and I regret that the Government have failed to see that.
The Government ask how the First Minister could get away with dressing up his particular political prejudices as unfitness. It happens every day. It is happening now in Sri Lanka, where some of the judges who are against the government are facing bogus charges of assault and so on. Therefore, it is quite possible for politicians to come forward with such charges. It is vitally important that judgments on those matters should be made by those who are other than politicians.
Today your Lordships have heard that the Scottish judges, the Lords of Appeal in Ordinary, retired Lords of Appeal in Ordinary, former Lords Advocate, the Law Society of Scotland, the Faculty of Advocates and others support these amendments. It is arrogant of the Government to say that they cannot agree and see no need for this provision. I have no troops. I have no Whip to bring people to the House. But I hope that your Lordships in all parts of the House, not least those on the Liberal Benches, who have listened carefully to the argument and taken part in it, will support me. I shall not press Amendment No. 175 because that is necessary if the Government win in relation to the other amendments. I will ask your Lordships to support me in relation to Amendment No. 176. In the meantime, I beg leave to withdraw mendment No. 175.
Amendment, by leave, withdrawn.
Lord McCluskey Lord McCluskey moved Amendment No. 176:
Page 42, line 40, at end insert—
("( ) he has asked an independent tribunal, established under subsection (9) of this section, to investigate and report on whether the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour,
( ) he has received a written report from the tribunal, containing a finding that the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour and a statement of their reasons for so finding.
( ) he has laid before the Parliament a copy of the written report on the person in question.").
The noble and learned Lord said: My Lords, I beg to move.
7 p.m.
On Question, Whether the said amendment (No. 176) shall be agreed to?
Their Lordships divided: Contents, 144; Not-Contents, 108.

Division No. 1

CONTENTS

Ackner, L.

Jauncey of Tullichettle, L.

Addington, L.

Jeffreys, L.

Addison, V.

Jenkin of Roding, L.

Alderdice, L.

Jenkins of Hillhead, L.

Anelay of St. Johns, B.

Jopling, L.

Attlee, E.

Kingsland, L.

Baker of Dorking, L.

Kinnoull, E.

Balfour, E.

Leigh, L.

Beaumont of Whitley, L.

Lester of Herne Hill, L.

Beaverbrook, L.

Linklater of Butterstone, B.

Blaker, L.

Long, V.

Blatch, B.

Lucas of Chilworth, L.

Brougham and Vaux, L.

Ludford, B.

Bruntisfield, L.

Luke, L.

Burnham, L.

Lyell, L.

Byford, B.

McCluskey, L. [Teller.]

Caithness, E.

McConnell, L.

Cameron of Lochbroom, L.

Mackay of Ardbrecknish, L.

Campbell of Alloway, L.

Mackay of Drumadoon, L.

Carlisle, E.

Mackie of Benshie, L.

Carnegy of Lour, B.

McNair, L.

Charteris of Amisfield, L.

Maddock, B.

Chesham, L

Mancroft, L.

Clancarty, E.

Mar and Kellie, E.

Clyde, L.

Marlesford, L.

Colwyn, L.

Masham of Ilton, B.

Cooke of Thorndon, L.

Massereene and Ferrard, V.

Cope of Berkeley, L.

Meston, L.

Craigavon, V.

Molyneaux of Killead, L.

Cranborne, V.

Monro of Langholm, L.

Crathorne, L.

Monteagle of Brandon, L.

Crickhowell, L.

Montrose, D.

Dartmouth, E.

Mountevans, L.

Denham, L.

Moyne, L.

Dixon-Smith, L.

Napier and Ettrick, L.

Dundee, E.

Nelson, E.

Dundonald, E.

Newall, L.

Elliott of Morpeth, L.

Newton of Braintree, L.

Elton, L.

Northbourne, L.

Falkland, V.

Northbrook, L.

Feldman, L.

Northesk, E.

Ferrers, E.

Norton, L.

Fraser of Carmyllie, L.

O'Cathain, B.

Freyberg, L.

Palmer, L.

Geddes, L.

Park of Monmouth, B.

Gisborough, L.

Phillips of Sudbury, L.

Greenway, L.

Razzall, L.

Hamwee, B.

Redesdale, L.

Harlech, L.

Rees, L.

Harris of Greenwich, L.

Renton, L.

Harrowby, E.

Renwick, L.

Hayhoe, L.

Rowallan, L.

Henley, L.

St. John of Bletso, L.

Higgins, L.

Saltoun of Abernethy, Ly.

Holderness, L.

Seccombe, B.

HolmPatrick, L.

Selkirk of Douglas, L.

Home, E.

Sempill, L.

Hooper, B.

Shaw of Northstead, L.

Hope of Craighead, L.

Simon of Glaisdale, L.

Hothfield, L.

Skelmersdale, L.

Howell of Guildford, L.

Soulsby of Swaffham Prior, L.

Hughes, L.

Stair, E.

71

Stewartby, L.

Waddington, L.

Strathclyde, L.

Waverley, V.

Taverne, L.

Weatherill, L.

Thomson of Monifieth, L.

Weir, V.

Tope, L.

Westbury, L.

Tordoff, L.

Wigoder, L.

Trenchard, V.

Wilberforce, L.

Trumpington, B.

Wilcox, B.

Ullswater, V.

Wilson of Tillyorn, L. [Teller.]

Vivian, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Acton, L.

Jay of Paddington, B. [Lord Privy Seal.]

Ahmed, L.

Alli, L.

Jenkins of Putney, L.

Amos, B.

Lockwood, B.

Archer of Sandwell, L.

Lofthouse of Pontefract, L.

Ashley of Stoke, L.

Lovell-Davis, L.

Bach, L.

McCarthy, L.

Barnett, L.

Macdonald of Tradeston, L.

Berkeley, L.

McIntosh of Haringey, L. [Teller.]

Biffen, L.

Blackstone, B.

Mackenzie of Framwellgate, L.

Blease, L.

Mallalieu, B.

Borrie, L.

Mason of Barnsley, L.

Bragg, L.

Merlyn-Rees, L.

Brooks of Tremorfa, L.

Milner of Leeds, L.

Burlison, L.

Molloy, L.

Carmichael of Kelvingrove, L.

Monkswell, L.

Carter, L. [Teller.]

Montague of Oxford, L.

Chandos, V.

Morris of Castle Morris, L.

Christopher, L.

Morris of Manchester, L.

Clarke of Hampstead, L.

Nicol, B.

Clinton-Davis, L.

Orme, L.

Cocks of Hartcliffe, L

Peston, L.

Crawley, B.

Pitkeathley, B.

David, B.

Ponsonby of Shulbrede, L.

Davies of Coity, L.

Puttnam, L.

Dean of Beswick, L.

Ramsay of Cartvale, B.

Dixon, L.

Randall of St. Budeaux, L.

Donoughue, L.

Rendell of Babergh, B.

Dormand of Easington, L.

Renwick of Clifton, L.

Eatwell, L.

Richard, L.

Evans of Parkside, L.

Scotland of Asthal, B.

Farrington of Ribbleton, B.

Sefton of Garston, L.

Gallacher, L.

Serota, B.

Gilbert, L.

Sewel, L.

Gladwin of Clee, L.

Shepherd, L.

Gordon of Strathblane, L.

Simon, V.

Goudie, B.

Smith of Gilmorehill, B.

Gould of Potternewton, B.

Stoddart of Swindon, L.

Graham of Edmonton, L.

Stone of Blackheath, L.

Grenfell, L.

Strabolgi, L.

Hardie, L.

Symons of Vernham Dean, B.

Hardy of Wath, L.

Taylor of Blackburn, L.

Harris of Haringey, L.

Thomas of Macclesfield, L.

Haskel, L.

Thornton, B.

Hayman, B.

Tomlinson, L.

Hilton of Eggardon, B.

Turner of Camden, B.

Hogg of Cumbernauld, L.

Uddin, B.

Hollis of Heigham, B.

Varley, L.

Howie of Troon, L.

Walker of Doncaster, L.

Hoyle, L.

Warner, L.

Hughes of Woodside, L.

Whitty, L.

Hunt of Kings Heath, L.

Williams of Elvel, L.

Islwyn, L.

Williams of Mostyn, L.

Janner of Braunstone, L.

Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.
7.8 p.m.
Lord McCluskey Lord McCluskey moved Amendment No. 177:
Page 42, line 44, at end insert—
("(9) A tribunal established for the purposes of this section shall consist of two persons selected by the First Minister from—

(a) the Lords of Appeal in Ordinary;

(b) peers of Parliament who hold or have held high judicial office as defined by sections 5(3) and 25 of the Appellate Jurisdiction Act 1876;

(c) members of Her Majesty's Privy Council who hold or have held high judicial office as so defined.").

The noble and learned Lord said: My Lords, this amendment follows directly upon the one on which we have just voted. I beg to move.
On Question, amendment agreed to.
7.10 p.m.
Lord Sewel Lord Sewel moved Amendment No. 177A:
After Clause 91, insert the following new clause—
ASSISTANCE FOR OPPOSITION PARTIES
(".—(1) Her Majesty may by Order in Council provide for the Parliamentary corporation to make payments to registered political parties for the purpose of assisting members of the Parliament who are connected with such parties to perform their Parliamentary duties.
(2) The corporation shall not make any payment to a party in pursuance of such an Order if any of the members of the Parliament who are connected with the party are also members of the Scottish Executive or junior Scottish Ministers.
(3) But such an Order may, in any circumstances specified in the Order, require the fact that any members who are connected with a party are also members of the Scottish Executive or junior Scottish Ministers to be disregarded.
(4) Such an Order may determine the circumstances in which a member of the Parliament and a registered political party are to be regarded for the purposes of this section as connected.").
The noble Lord said: My Lords, the amendment confers the power of Her Majesty, by Order in Council, to make provision for the Scottish parliamentary corporate body (SPCB) to make payments to any Opposition political party represented by MSPs in the Scottish parliament to assist those MSPs in performing their parliamentary duties. This money, as an expense of the SPCB, would come out of the Scottish consolidated fund.
It is intended that that should enable provision to be made for payments to Opposition parties in the parliament equivalent to the so-called Short money that is provided for Opposition parties in this parliament. That accords with the recommendation of the committee on the funding of political parties which was chaired by the noble and learned Lord, Lord Neill. It is envisaged that such money paid will be applied by the parties to obtain research and support facilities for Opposition Front-Bench spokesmen, assistance in the Opposition Whips' Office, and other staff for the leaders of the Opposition parties.
Although the amendment does not give full effect to the recommendations made by the noble and learned Lord, Lord Neill, and his committee for the provision of financial support to parties in the Scottish parliament, it provides a mechanism whereby some funding can be provided for Opposition parties in the Scottish

73
parliament until such time as the Neill recommendations are considered fully by the Government and put on the statute book. We believe that it is important to act now as an interim measure so that a mechanism to provide financial support for Opposition parties in the Scottish parliament is in place as soon as the parliament is established.
Amendment No. 206F ensures that an Order in Council under the new clause will be subject to approval by resolution of both the UK and Scottish parliaments. That ensures that the Scottish parliament will have a say on what moneys are to be paid out of the Scottish consolidated fund. I beg to move.
Lord Mackay of Ardbrecknish: My Lords, we warmly welcome the new clause which the Government seek to insert. It is unfortunate that the Government have not taken on board all of the recommendations of the Neill committee on this matter. One hopes that in the fullness of time—and not too long away at that—that the Government will take on board all the recommendations of the Neill committee and will not pick and choose between those that suit them and those that do not.
One point slightly puzzles me. Subsection (2) states:
"The corporation shall not make any payment to a party…if any of the members of the Parliament who are connected with the party are also members of the Scottish Executive".
I presume that that envisages a coalition with two parties forming the Government. The "junior partner", if I may call it that, would not be eligible for the money. However, subsection (3) states:
"But such an Order may, in any circumstances specified in the Order, require the fact that any members who are connected with a party are also members of the Scottish Executive or junior Scottish Ministers to be disregarded".
The two subsections seem contradictory. On the one hand, subsection (2) says that if your party is involved in the Government at all, you cannot have the money, whereas subsection (3) says that an order may state that you can have it. I am not sure whether I am reading that correctly, but perhaps the Minister could justify that contradiction.
Lord Renton: My Lords, before the Minister does so, I wonder whether I may be very daring and say that I am not in complete agreement with what has been said from both Front Benches. I must confess that I have not read what the noble and learned Lord, Lord Neill, said on this, but I am puzzled about the payments. Are they in lieu of salaries or in lieu of expenses? I find strange the idea that registered political parties should be given that responsibility instead of Parliament and the Government. The parties are not public bodies. They are not statutory bodies although they are to become registered. Parties are not elected by the people; members of various parties are elected by the people. I hope that I may be forgiven for raising that doubt, but I am puzzled. I was relieved when I heard the noble Lord, Lord Sewel, when moving the amendment, say, in effect, that the provision is experimental.
7.15 p.m.
Lord Sewel: My Lords, I did not say that it was "experimental"; I said that it was "interim". It is nice to hear the iconoclastic, independent voice of the noble Lord, Lord Renton, on this. He clearly has not checked his position with his own Front Bench. His noble friends may find that they are losing quite a bit of support in your Lordships' House on this question of the essential work of, and support for, Opposition parties that is necessary in the parliamentary process. We are not talking about payment in lieu of salaries or anything like that. We are talking about money that is made available in both Houses of this Parliament, the so-called Short money. It is made available so that the Opposition can employ researchers and to provide the Opposition Whips' Office with administrative and technical support. It has been in place for some considerable time now and is an accepted feature of the way in which we order our party affairs in parliament. I should have thought that there is no exception to it.
On the point made by the noble Lord, Lord Mackay of Ardbrecknish, I must admit that when I read the provisions I came up with a similar degree of puzzlement. He is right that it is the intention that a junior party in a coalition executive would normally be excluded from receiving Short money. However, if a party had just a single junior minister involved in the executive, that in itself might be felt not to be sufficient automatically to exclude it from Short money support. That is what the subsections would achieve.
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendment No. 177B:
After Clause 92, insert the following new clause—
RIGHTS AND LIABILITIES OF THE CROWN IN DIFFERENT CAPACITIES
(".—(1) Rights and liabilities may arise between the Crown in right of Her Majesty's Government in the United Kingdom and the Crown in right of the Scottish Administration by virtue of a contract, by operation of law or by virtue of an enactment as they may arise between subjects.
(2) Property and liabilities may be transferred between the Crown in one of those capacities and the Crown in the other capacity as they may be transferred between subjects; and they may together create, vary or extinguish any property or liability as subjects may.
(3) Proceedings in respect of—

(a) any property or liabilities to which the Crown in one of those capacities is entitled or subject under subsection (1) or (2), or

(b) the exercise of, or failure to exercise, any function exercisable by an office-holder of the Crown in one of those capacities,

may be instituted by the Crown in either capacity; and the Crown in the other capacity may be a separate party in the proceedings.
(4) This section applies to a unilateral obligation as it applies to a contract.
(5) In this section—
"office-holder", in relation to the Crown in right of Her Majesty's Government in the United Kingdom, means any Minister of the Crown or other office-holder under the Crown in that capacity and, in relation to the Crown in right of the Scottish Administration, means any office-holder in the Scottish Administration,
"subject" means a person not acting on behalf of the Crown.").
The noble and learned Lord said: My Lords, this is an amendment which clarifies that legal relations may be entered into between the Crown in right of the UK Government and the Crown in right of the Scottish administration.
The Bill already draws a distinction between the Crown in right of the UK Government and the Crown in right of the Scottish administration. It makes provision for the Crown in both capacities to sue and to be sued.
It is also intended, however, that legal relations should be capable of being entered into between the UK Government and the Scottish administration so as to transfer rights, liabilities and other property between them. It is also intended that, when a UK Minister of the Crown makes an order under Clause 54 requiring some action to be taken by Scottish ministers, it should be possible for Scottish ministers to seek a judicial review of that order and for the UK Minister to seek a court order enforcing his order against Scottish ministers, subject of course to the provisions of the Crown Proceedings Act 1947. In other words, it is intended that the UK Government and the Scottish administration should be able to enter into legal relations and to sue each other.
It was thought that, without an express provision in the Bill, the view may be taken that the doctrine of Crown indivisibility would prevent this. Government Amendment No. 177B therefore clarifies the position. It makes clear that the Crown in right of the UK Government should be able to enter into legal relations with the Crown in right of the Scottish administration and vice versa. This puts the Crown in right of the UK Government and the Crown in right of the Scottish administration in the same relationship to each other as they are, or would be, to a subject. In other words, legal relationships can be created and enforced in the courts, subject of course to the provisions of the Crown Proceedings Act 1947 as to the nature of remedies which can be granted against the Crown. This amendment makes it clear that the Crown in right of the UK Government and the Crown in right of the Scottish administration would be able to sue each other. I beg to move.
Lord Fraser of Carmyllie: My Lords, I am grateful to the noble and learned Lord the Lord Advocate for his explanation. When I looked at Schedule 8, I thought that the matter had already been dealt with pretty comprehensively, if somewhat obscurely. The noble and learned Lord mentioned the Crown Proceedings Act and the Crown Suits Act, both of which are to be modified by Schedule 8. Do I understand from his explanation that the Government are now so concerned that the Bill brings about such an attack on the concept of the indivisibility of the Crown that something more substantial is taking place here, or is this just a matter of procedural adjustment to ensure that the Lord Advocate in one capacity does not decide to sue himself in another capacity, which is what I thought that Schedule 8 was trying to avoid? Therefore, when the Westminster Government wish to take legal proceedings
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against the Scottish executive they get the Advocate General for Scotland to raise such proceedings. I am anxious to discover whether the noble and learned Lord the Lord Advocate, in his fairly brief speech in support of this amendment, was indicating that something more fundamental is being adjusted in the Bill, and whether there is a matter at which, in future, constitutional lawyers ought to look with a great degree of interest with regard to the constitutional principle of the indivisibility of the Crown.
Baroness Carnegy of Lour: My Lords, it is difficult for a lay person to understand this amendment. I received it only on Saturday. It was posted on Friday. I had to be here on Monday. This makes it difficult for Back-Bench Peers to examine what are clearly very important amendments. However, I may misunderstand it. I hope that the noble and learned Lord will forgive me if I appear to be asking a stupid question. It seems that the Crown can now have two entities. There is the,
"Crown in right of Her Majesty's Government in the United Kingdom",
as expressed in subsection (1) of the new clause, and there is the,
"Crown in right of the Scottish Administration by virtue of a contract, by operation of law or by virtue of an enactment".
Does that mean that when the Crown gives Royal Assent to Bills the Queen is doing so in a different legal capacity in the Scottish parliament from that which she has when she gives assent to Bills in the United Kingdom Parliament? It sounds as though she now has two entities. Does that affect her capacity when giving Royal Assent?
Lord Mackay of Drumadoon: My Lords, I am not in the favoured position of my noble friend Lady Carnegy. Undoubtedly my copy of the amendments was posted on Friday, but they had not reached me this morning when I left. I saw this amendment for the first time when I arrived today. As my noble and learned friend Lord Fraser suggested, at first blush it is a somewhat unusual amendment although, having listened to what the noble and learned Lord the Lord Advocate said, I can well understand why the view is taken that it is necessary. For that reason I do not oppose the principle of the amendment. But I believe it right that the Government should be aware that it will be necessary to look at the detail over the next few days to see whether what is now brought forward very much at the eleventh hour concerning a fundamental issue will give trouble not only to those of us who sit on these Benches, but also, and more importantly, to those who will have to adjudicate between the Crown in one capacity and in another.
Lord Hardie: My Lords, perhaps I may deal with the point raised by the noble Baroness, Lady Carnegy of Lour. The Queen is not acting in a different capacity when she gives Royal Assent. I referred to the doctrine of indivisibility of the Crown. Normally one cannot sue the Crown. But because there are different legislatures and executives exercising different functions, and because the Scottish executive or administration may

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well wish to enter into contracts or other arrangements, for the transfer of property or whatever, with the United Kingdom Government, it may wish to enforce them. I hope that this difficulty will not arise. But if there were a difficulty between the two parties, this amendment would enable one party to sue the other.
Equally, as I said, if a Minister of the UK Government made an order requiring the Scottish parliament to do something and it wished to challenge it, the Scottish parliament could review the decision by virtue of this provision. It would give the ability to litigate about that particular matter just as this provision will give United Kingdom Ministers the ability to litigate about the failure of the Scottish executive to give effect to the order. That is what is behind the order. It relates to any arrangement with the Scottish executive as a whole; for example, a contract or something of that kind.
Baroness Carnegy of Lour: My Lords, I am grateful to the noble and learned Lord. I would like to be quite clear that there is no suggestion that the Queen gives Royal Assent to legislation passed by the Scottish parliament in a different legal capacity from that in which she gives assent to legislation passed by the Westminster Parliament.
Lord Hardie: My Lords, I can give the noble Baroness that assurance. The Queen is acting throughout as Sovereign of the United Kingdom.
On Question, amendment agreed to.
Schedule 6 [Devolution issues]:
[Amendments Nos. 178 to 191 not moved.]
Clause 93 [Human rights]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 191A:
Page 43, line 27, at end insert—
("(5) Proceedings to which subsection (1) applies may only be brought in an appropriate court or tribunal.
(6) In subsection (5) "appropriate court or tribunal" means such court or tribunal as may be determined in accordance with rules; and "proceedings" includes a counterclaim or similar proceeding.
(7) In subsection (6) "rules" means—

(a) in relation to proceedings before a court or tribunal outside Scotland, rules made by the Lord Chancellor or the Secretary of State for the purposes of this section or rules of court;

(b) in relation to proceedings before a court or tribunal in Scotland, rules made for the purposes of this section;

(c) in relation to proceedings before a tribunal in Northern Ireland

(i) which deals with transferred matters; and

(ii) for which no rules made under paragraph (a) are in force,

rules made by a Northern Ireland department for those purposes, and includes provision made by order under section 1 of the Courts and Legal Services Act 1990.").

The noble and learned Lord said: My Lords, this amendment seeks to amend the provisions of Clause 93 of the Bill, which, as I recollect, was introduced at Committee stage in your Lordships' House. Its purpose is to seek to ensure that the Bill is compatible with
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the provisions of the Human Rights Bill which, I understand, completed its parliamentary passage last Thursday. The Human Rights Act, as it now is, provides in Section 7 that,
"A person who claims that a public authority has acted (or proposes to act) in a way which is unlawful [by the previous Section 6] may bring proceedings against the authority under this Act in the appropriate court or tribunal, or rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act".
That was described as the "victim test" on more than one occasion in the debates on the Human Rights Bill.
The practical problem—as the noble and learned Lord the Lord Advocate, confirmed last week when we were debating the position of the Lord Advocate himself and the procurators fiscal who serve under him—is that members of the Scottish executive will be required to comply with the convention rights. If they fail to do so, either because a particular act is contrary to convention rights or because a particular failure to act is incompatible with any convention right, they will be liable to be challenged under this Bill as well. Clause 93 is directed to that.
The practical problem is that whereas the Human Rights Bill gives power to the Secretary of State—or the Lord Chancellor in England—power in Scotland for rules of court to be made to lay down which is the appropriate court or tribunal where such proceedings can be raised, there is no similar power in the Scotland Bill. The purpose of my amendment is to include similar powers in this Bill so that parties in Scotland in particular can seek to challenge the act or omission of the Scottish executive or of any official of the Scottish executive on the grounds that it is not compatible with convention rights. They will not have a choice as to which court or tribunal can initiate proceedings unless that choice complies with the rules which have been enacted. In the absence of such a provision there is scope for confusion. That is why I have brought forward this amendment. I beg to move.
7.30 p.m.
Lord Lester of Herne Hill: My Lords, I must be thick, but I cannot see any reason for this amendment. It seems to me that the point is taken care of in Clause 7 of the Human Rights Bill. Clause 7(2) of the Bill says that,
"'appropriate court or tribunal' means such court or tribunal as may be determined in accordance with rules".
Clause 7(11)(a) refers to rules in relation to proceedings before a court or tribunal in Scotland. Therefore, it seems to me that there is adequate power in the Human Rights Bill, but I have probably missed something.
Lord Hardie: My Lords, as the noble and learned Lord explained, this amendment was taken from Clause 7 of the Human Rights Bill. The purpose of the amendment is to probe why we have not made similar provisions here. The reason is quite simple. We consider that it would be inappropriate and incorrect to make such a provision in this Bill.

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As the noble Lord, Lord Lester of Herne Hill, said during the previous debate, Schedule 6 provides that questions of whether the exercise of a function by a member of the Scottish executive or a failure to act is compatible or incompatible with convention rights is a devolution issue. With one exception, it is not intended to specify the courts or tribunals in which devolution issues may be raised. It will depend on the ordinary law as to what proceedings can competently be brought before a court or tribunal at present. It may be felt that most devolution issues will be raised competently only by way of judicial review in the Court of Session. However, we do not consider it would be appropriate to provide that such issues can be raised only in the Court of Session because Schedule 6 provides for a fast-track procedure for the Law Officers to raise such issues directly in the Judicial Committee of the Privy Council. That has no counterpart in the Human Rights Bill.
Furthermore, the amendments do not have the effect of bringing the provisions of the Scotland Bill into line with the Human Rights Bill because they contain no counterpart to Clause 7(1)(b) of the Human Rights Bill entitling a person to rely upon convention rights in any legal proceedings before any court or tribunal.
Clause 93 is intended only to bring the Scotland Bill more into line with the Human Rights Bill in certain limited respects. It is not intended that the Scotland Bill should be brought so completely into line with the Human Rights Bill that it destroys the common procedures for dealing with devolution issues no matter in which legal proceedings they arise and for determination ultimately by the Judicial Committee. However, that would be the effect of these amendments. With that explanation, I hope that the noble and learned Lord will withdraw the amendment.
Lord Mackay of Drumadoon: My Lords, I should explain that at present I speak only to Amendment No. 191A. As I understood the noble and learned Lord's answer, he appeared to be admitting the possibility that if someone was the victim of an act or omission of a member of the Scottish executive or one of such member's officials and suffered loss, he would be able to raise the appropriate proceedings in, let us say, the sheriff's court irrespective of the fact that under Clause 7 of the Human Rights Bill the appropriate court or tribunal had been designated for the purposes of the Bill in Scotland as being the Court of Session. With respect, that seems to give rise to confusion. I cannot see any good reason why, under one Act, one can start in the sheriff's court; and if one goes under another Act which provides the same remedy one can start only at the Court of Session.
As the noble and learned Lord rightly said, this is a probing amendment. I do not intend to press it to a Division. However, I am surprised, notwithstanding the expressed intention of the Government, repeated on a number of occasions, to bring the two pieces of legislation together so that there is no inconsistency between them, that in relation to this matter we have a
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quite obvious inconsistency. However, if that is what the Government wish, I do not intend to insist on my opposition. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Hoyle: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, perhaps I may suggest that the Report stage begins again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Diana, Princess of Wales: Memorial Garden
7.35 p.m.
Lord Blaker Lord Blaker rose to ask Her Majesty's Government whether the cost of converting Kensington Gardens to a memorial park for the late Diana, Princess of Wales, will be met from public funds if the proposal is proceeded with.
The noble Lord said: My Lords, I am glad that so many noble Lords are proposing to speak in this debate on a subject which is of great interest and concern to many people. I favour a memorial to Princess Diana but I believe that the proposals which were put forward by the memorial committee in the summer of this year are misguided and unacceptable. The memorial committee met again on 20th October and, according to newspaper reports, it has had second thoughts. But we do not know precisely what its thoughts are because, as I understand it, it took no decision and issued no statement. I hope that the noble Lord who is to reply to the debate will be able to shed some light on the present position.
We are dealing with a site of outstanding heritage importance. It is listed Grade I in the English Heritage register of parks and gardens of special historic interest. The proposals made by the committee in the summer involved major changes to these gardens, which at present are basically parkland with grass and trees. For the areas south of the palace, the committee proposed the planting of flowers, shrubs and trees and the creation of a woodland wilderness next to Kensington Road and a new gateway from that road; this in an area which at the moment is largely given over to children kicking footballs about. In the Round Pond, it proposed the creation of a very tall jet of water, somewhat modelled, I believe, on Chatsworth. That would have the effect of spoiling the activities of those who sail model boats on the pond, those who fly kites around it and those who picnic around it in fine weather and it would certainly upset the water fowl, not least the water fowl which nest on the rafts of the pond. To the north of the palace the committee proposed a minimum of three new planted gardens and public park and sculpture. So the committee proposed substantial changes in all those three areas.
There was a public consultation in the summer. That, in my view, was inadequate and badly handled, but it did involve an attempt to deliver a pamphlet and questionnaire to 150,000 addresses in the area of London near the gardens. The result of that consultation

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was quite clearly massive opposition from those people to whom the literature was addressed. There has been strong opposition from the local councils involved, from the two MPs concerned and from a meeting of more than 1,000 people held in Kensington Town Hall in June on a wet night when there was a tube strike. There has been opposition from the 13 residents' associations in the area which have formed the Princess Diana Memorial Liaison Group.
The grounds for opposition, as I see them, are the following. The first, and most important, is traffic congestion. I have before me a letter from Mr. Paul Burns, the chief executive of Keith Prowse International, a firm of many years' experience which will be well known to noble Lords. Mr. Burns says that Keith Prowse, which has offices all over the world, has been approached by many tour operators looking for a focal point from which they could launch tours in connection with the memory of Princess Diana. Because it is now believed that there will be a focal point, people are displaying much more interest in setting up such tours. In his letter Mr. Burns says:
"We would have serious concerns at the likely outcome of the establishment of a Memorial Garden within Kensington Gardens. We believe that such a Memorial Garden would generate very substantial volumes of visitors into an area which, in our opinion, does not have the necessary infrastructure to cope with the likely influx. Nor do we believe it would be possible to develop an adequate infrastructure within the surrounding area".
Mr. Burns has told me personally that if the memorial gardens are created as proposed, then every coach operator in London who is arranging tours would concentrate starting or ending a tour at the gardens, or at least including in it such memorial gardens.
The second ground of objection is that I believe the proposals are inconsistent with the current patterns of use of the gardens. The principles recommended by the Royal Parks Agency, English Heritage and Historic Royal Palaces to the Memorial Committee included the following words as principles to be observed:
"Current patterns of use of the Palace, the gardens and the pond area should be respected".
Moreover, Jennifer Jenkins, who is a former chairman of the Royal Parks Review Group, said in an article in the Evening Standard on 16th July:
"What the document"—
that is, the consultation document—
"fails to address is the current use of the west part of Kensington Gardens. That is lying on the grass, kicking a ball about, eating sandwiches. Every fine evening, every weekend, the area is full of people doing that. Formal gardens are against that".
The third ground of objection is that I believe the proposals are based on a false logic. The former butler of Princess Diana has said that she used to go out in the gardens both walking and running in the early morning and that she loved the gardens. If she loved them, she loved them as they are. We do not know what she would have thought if faced with the proposals which have been put forward by the memorial committee. I believe that the people who visit the gardens would like to see them as they used to be when Princess Diana was alive.
As regards the meeting of the committee on 20th October, I understand, although I may be wrong, that the proposals it is now likely to consider involve reducing the cost from £10 million to £3 million, with the £3 million to be spread across three proposals. That means £1 million for each project. The first proposal is for a walking route from Kensington Gardens to St. James's Park. The second is for the enlargement of the playground and its enhancement with facilities for the disabled. I believe that those two proposals could be acceptable if sensitively arranged.
However, the third proposal is for remedial work in the gardens. That seems to me to be desirable if the work really is remedial—that is, for the replacement of trees which have died or the improvement of the drainage on the paths. But it would not be acceptable if, in practice, it involves the creation of new avenues of trees. If such remedial work is desirable—and I believe that it is—why should it not be done by the Royal Parks Agency out of its budget? If it is done out of the budget of the memorial committee there will be a great temptation to call the gardens the Princess Diana Memorial Gardens. I return to the point made by Keith Prowse. I believe that the latter would be disastrous in terms of causing congestion.
The terms of reference of the committee include the following words:
"The Committee will have regard to the charities and causes which the Princess supported".
Did she support a single garden charity? Indeed, I have not heard of one. However, we do know that she supported many children's charities. That is why I believe that the idea of the Princess Diana Memorial Action Group is a good one. The latter has given great thought to the matter and has suggested treating the improved playground in Kensington Gardens, which I understand is now under contemplation, as a model for a series of improved playgrounds across the country with facilities for the disabled. It would be a suitable follow-up to the public playing fields which were created in memory of George V and are remembered now.
7.45 p.m.
Lord Strabolgi: My Lords, I am sure that we are all grateful to the noble Lord, Lord Blaker, for tabling this Unstarred Question. If I may say so, I agree with a great deal of what the noble Lord said. I agree that there should be a suitable memorial of some kind for a much admired and greatly loved Princess, but the present plans, with their intrusive nature, are not suitable for Kensington Gardens.
The proposal for a large formal garden to the south of Kensington Palace, extending right down to Kensington Road, would destroy the view of the palace and the whole parkland in this area. I understand the inspiration for this idea comes from the original garden designed for William III in 1691. But this had only a short life as it was replaced in 1727 for George II by the present 18th century open parkland which, with the Round Pond, still survives. In those days, the Palace and its park were out in the country. Kensington was a small village nestling round St. Mary Abbots. Kensington Square to the south,

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which was built to house members of the court and still survives—I am glad to say; indeed, it is a very beautiful square—was surrounded by fields. Today, the gardens are a precious green space in an extremely busy urban area.
As the noble Lord said, the proposed memorial garden would attract thousands of tourists. Particularly affected would be the adjacent west entrance to the gardens from Church Street and across Palace Green, which has hardly changed since the days when I used to be taken through there as a child when we lived on Campden Hill, and it still retains its semi-rural aspect. Where is it proposed that the dozens of tourist coaches should park? Will these form a solid line right up Kensington Palace Gardens, to the considerable inconvenience of the embassies there and many Kensingtonians? Alternatively, are these coaches to park in beautiful Holland Street and thereabouts which is a residential and conservation area? As the noble Lord, Lord Blaker, said, I understand that there is to be a fountain in the Round Pond. The noble Lord did not mention height, but I believe that it will be 300 feet high. Again, that is totally out of character and would make this stretch of water impossible for the children's model boats. The proposal for the peaceful flower walk (which used to be called the baby walk in my youth) to be made into a memorial walk will mean that it will be used by great bands of tourists and its peace and quiet destroyed.
These proposals have caused much opposition from the people who live and work around the park and depend upon it for their fresh air, exercise and recreation. I understand these deep feelings and declare an interest as I resided in Kensington for the first 40 years of my life and still live near the park in Westminster. Notwithstanding the apparent attempt to push the plans through during last July and early August, the holiday period, 15,000 questionnaires were returned, the large majority being hostile. A nationwide opinion poll found that 79 per cent. would prefer the money to be spent on playgrounds, which the noble Lord mentioned, with only 16 per cent. in favour of the garden plan.
The Kensington and Chelsea and Westminster councils and the local MPs are all opposed to the scheme. Although the councils cannot block it, as this is a Royal park, I understand that a public inquiry will be called for if the Government insist on going ahead in the face of public opinion. It would be much better, I suggest, to spend the money on improving the children's playground already to the north of the Palace and on a chain of memorial playgrounds throughout the country, particularly in the most deprived areas of our inner cities. This would surely be more appropriate and more in keeping with the late Princess Diana's charitable work and her ideals.
7.50 p.m.
Lord Chorley: My Lords, in this brief debate we are discussing a proposal to make a major change to one of the jewels of the nation's capital. I suggest that no other capital city has London's wealth of parks, squares and
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tree-lined streets. This makes London one of the world's most attractive capital cities. At its heart is a necklace of parks linking the great buildings of state at either end: Whitehall Palace linked to St. James's Palace, linked to Buckingham Palace by St. James's Park. That pearl is linked to Green Park, Green Park is linked to Hyde Park, and finally to Kensington Gardens with Wren's great palace. It is unique and indeed I am surprised that this complex, taken as a whole, is not already a world heritage site. After all, Parliament Square is a world heritage site.
However, be that as it may, I suggest we need to be extremely careful about making a major change to this jewel. Hasty decisions made in the heat of an emotional moment may not stand the test of time. In this hugely sensitive case—sensitive because of the weight of emotion on the one hand and the international importance of the site on the other—a long gestation is, I believe, crucial. A gestation of several years would, I think, be appropriate. We have to get it right for the long term. That is the first point I wish to make. In doing so I should also confess—like the noble Lord, Lord Strabolgi—to being a regular user of the park and gardens over at least 30 years. Indeed when Parliament is sitting I journey along that great necklace every day from one end to the other.
Reference has been made to various views. I was particularly impressed by the views—as reported in the press—of the Kensington Society. I am not a member of that society but what contacts I have had with it and with those who officiate in its affairs suggest that both the organisation and the people who run it have great responsibility and authority. They are in a reasoned way completely against the proposals. I think we should take their views seriously. That is the second point I wish to make.
I referred earlier to the need for a long pause before making a major decision. Equally important is the process itself. For example, I welcomed the announcement in the summer that there would be public consultation. The noble Lord, Lord Blaker, referred to that. He was critical of the way it was handled and so am I. It seemed to me to leave much to be desired. For example, I thought the questions in the leaflet were perhaps a little tendentious. Moreover, its distribution appeared to have been somewhat erratic. Apparently some local citizens received no leaflets whereas I could easily have filled in dozens of copies which were lying around. I am told that a party of Japanese tourists dutifully filled in the questionnaire. Perhaps that was no bad thing although it is rather important to know who you have consulted.
Nor, I am afraid to say, did I find the exhibition alongside the Albert Memorial much help in fully understanding what was proposed. It seemed to me mostly to consist of blown up pieces from the leaflet. However ill conducted the consultation was, I would be intrigued to know what the results were. The noble Lord, Lord Strabolgi, mentioned figures, and perhaps those could be confirmed. No doubt the Minister will do so. A piece in The Times—which I think has been

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referred to—states that the vote, if one can call it that, was overwhelmingly against. Perhaps the Minister will confirm that.
As regards the proposals, in so far as we know what they are, I shall make four observations. First, I take the point of the noble Lord, Lord Blaker, about the traffic problem. In my view the park has already reached carrying capacity and there really is not room for any more capacity, except out of season. Secondly, the idea for a garden between the Palace and Kensington Gore is—as the noble Lord, Lord Blaker, said—not a good one. As he said, the area is much used, especially in spring and summer, for strolling, sitting and picnicking and by children playing. It is important not to lose these activities of quiet enjoyment. It would be wrong to take away from ordinary people these much enjoyed rights.
Thirdly, it is proposed that there should be some sort of screen of trees or bushes shutting off the proposed gardens from the street. That is most insensitive. The view up from Kensington Gore to Wren's splendid façade is one of London's finest eye-catching views. However, the proposal would in effect abolish it. Fourthly, there is a proposal for what I would describe as a large jet d'eau à la Geneva—the other example, I believe, was that of Chatsworth—which the noble Lord, Lord Strabolgi, has said will be 300 feet high. I have often found the location a rather windy spot. That would result in much spray downwind—wherever that may land—which, as has been said, would put a much enjoyed, old and admired activity of boat sailing out of action. That has been mentioned. I am not even sure whether a fountain 300 feet high would not do some mischief as regards kite flying.
I have mentioned four specific objections; there has been reference to others. The fact that I have not mentioned those other objections does not mean that I do not agree with them. I take no position on the case for a memorial but if there is to be one on the lines of a garden or open space I suggest it should be situated in a place that is crying out for such a thing, and the emphasis should be on young people.
Finally, perhaps the noble Lord can tell the House whether any consultations have taken place with the Royal Fine Art Commission. If it appears that these proposals are likely to go ahead, the opinion of that eminent body would be all important.
7.57 p.m.
The Earl of Kinnoull: My Lords, I rise to congratulate my noble friend Lord Blaker on introducing this debate tonight on the proposal for a memorial garden close to Kensington Gardens. I believe that the debate is timely. I am sure that the noble Lord, Lord McIntosh, welcomes it as it gives him a chance to say what is happening in this regard.
I should perhaps declare a small interest in that I am a resident in Kensington and Chelsea, although not directly in such a salubrious area as the park. I believe that my noble friend put forward a persuasive and cogent case for the memorial committee to do a complete re-think on where it should be going. I am sure that would give it valuable time with regard to what is,
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and what should be, a most creative, imaginative and fitting memorial, and not one which starts off life in a bed of turmoil and even public anger.
My main purpose in taking part in the debate is not only to reinforce what my noble friend has said on the serious planning issues that would arise from a large memorial site close to Kensington Palace, but also to ask the noble Lord, Lord McIntosh, why there has been so little public consultation with the local authority, particularly as regards the heritage department which I believe is the host department.
The original 20-acre proposal—I assume it now has been dropped, and perhaps the noble Lord, Lord McIntosh, will state that firmly—has been described to me as a very special area for many young families and an area with a high density of flats. Therefore it is particularly unattractive to them to find that such a lovely, tranquil area could be destroyed. It is no wonder that when one speaks to the chief executive of the borough council, as my noble friend said, following a public meeting of 1,000 people and a local questionnaire to all ratepayers, one finds that the proposal received a thundering "no".
I do not deny that the work of the memorial committee is not a bed of roses. However, the committee could improve its image with more openness. That would be enormously helped if the host government department would issue clear statements as to what is going on, and not merely leave it to the media to pick up reports so that the public and ourselves receive possibly inaccurate information.
In such a situation as this, where there is an attempt to choose an important public site for a memorial, I am a fervent believer in the well-tested planning procedures of our country. If a decision is reached that people do not want, at least they feel that their view has been properly considered.
We know that Crown land, the Royal Parks, the Ministry of Defence and certain other departments, do not require planning permission. However, as the noble Lord, Lord McIntosh, will recall, in 1980 a government circular advised such departments, including Crown land, that they should always go through the process of consultation. That is a very important issue in this instance.
If the memorial committee is eventually to decide on a site close to Kensington Palace, I hope that tonight we shall receive confirmation that there will be a public inquiry, so that these important planning issues can be examined with great care. There is a strong feeling, not only among residents but also among planners, that this area simply could not cope with the impact of such a development. I hope that in future we shall also receive a proper statement from the department responsible for the memorial committee, which will avoid the feeling that closeted discussions go on when an issue of enormous public interest is debated.
8.2 p.m.
Lord Marlesford: My Lords, I live in beautiful Battersea, so I have no interest to declare. I cannot believe that Princess Diana, who essentially reached out

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into the grey and tawdry areas of life to bring light to them, would wish to see a beautiful part of London tinkered with rather than beautifying some less attractive area.
The most important reason why this proposal should not go ahead is that it is as undesirable to create a shrine to Princess Diana as it is desirable to have appropriate memorials to her.
8.3 p.m.
The Viscount of Falkland: My Lords, most noble Lords taking part in this debate must have suffered a bereavement at some time in their life, either someone close to them, someone in their own family, or in which they had some involvement even as a trustee. I have had that experience myself, and it is a fundamental necessity for time to pass in order to make sensible judgments which benefit all concerned. In the domestic and private area that is essential. When it is a public figure who has died and there are concerns in relation to proper and appropriate memorials, even more time is needed. I am following the remarks of the noble Lord, Lord Chorley. I understood him to say that we need much more time to consider what would be appropriate and what would achieve the right consensus.
I do not wish to enter into the details of what is likely to happen to the park under this scheme. That aspect was admirably dealt with by the noble Lord, Lord Blaker, who introduced the debate, and by the noble Lord, Lord Strabolgi, and others. What has been obvious during this debate is the great degree of disagreement as to whether this particular scheme is appropriate, not only for those who live in the close vicinity of the park that is to be developed, but appropriate to the memory of the Princess.
The haste with which the scheme has so far been implemented—apart from being unsuitable in terms of the time needed in order to consider all aspects of it—is the way in which it runs absolutely counter to a number of aspects that are particular to the tragic death of Princess Diana. I refer to the enormous momentum that has arisen in media coverage. It has caused great distress to the family.
There may be great merits in this scheme. However, if it is handled badly and without proper consultation it will not only be a great pity for those who have to live with it, but cause enormous disruption in terms of argument and invective in the press, which will again make it difficult for the surviving family of the Princess. Her two young sons have already appealed for a slowing down and a time during which they are left free of press attention so far as possible. That has been agreed by the press and the other media—although some are sailing pretty close to the wind.
I hope that the noble Lord will be able to assure us that we shall not go headlong into these projects regardless of the concerns voiced by noble Lords during this debate. It would be a pity if a scheme were to be put in place with which not only the residents disagreed but other elements in the country disagreed, including the family of the Princess. It would create an atmosphere
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with which the Princess would not have wished to be associated during her life, even though she may have liked some aspects of the scheme.
Some very good suggestions have emerged from the debate. Particular mention was made of the Princess's love of young people. That is an outstanding reason why the present nature of the park should be left in place. It is a place where young people can run about and do as they wish; they can play with footballs, for instance, or lie in the sun. To jeopardise that would go directly counter to our memory of the wish that Princess Diana had for young people; namely, that they should enjoy life as much as possible.
This has been a useful short debate. I hope that the Government will take heed of the timely warnings that have arisen from this interesting Question. I hope that the press will also take note of what has been said. Right and proper concerns have been expressed for a new look and for new thoughts to take place in a rather more extended timetable.
8.9 p.m.
Lord Luke: My Lords, I warmly thank my noble friend Lord Blaker for introducing this subject. I agree with much of what noble Lords have said this evening. It seems to me that a right and proper memorial to the life and work of Diana, Princess of Wales needs to fulfil several criteria. It needs to reflect the great feeling and respect felt by so many people for Her Royal Highness. It must somehow be available to be visited by those who do not want to go to Althorp, or who cannot do so, both Londoners and tourists. It needs to be something of which Her Royal Highness herself would have approved. For instance, she went into places that other people had not gone into before; and she deliberately sought out and succoured those with whom no one had bothered before. Perhaps her memorial should reflect that. Most importantly, unnecessary and harmful controversy must be avoided. What memorial can fulfil its purpose if its construction is accompanied by ill-will? Such would sour the commemoration of someone who managed to touch the life of the nation in an almost unprecedented way.
If the memorial is a playground, or a series of playgrounds, as has been suggested, it should be where there is no playground now and where there is palpably a need for one.
I understand that nothing is yet set in concrete. I have spoken to my noble friend Lady Chalker, who sits on the Diana, Princess of Wales Memorial Committee. She has told me of the immense number of suggestions made, and which are still being made, from all quarters. The committee will eventually decide on its favoured scheme and make a recommendation to the Government. Rumours, of which we have heard a great deal this evening, abound as to greater and lesser schemes in Kensington Gardens. I hope that, if such a scheme is finally agreed, it will take due account of the access problems raised and will be amicably agreed with all those residents who are justifiably concerned about their environment.

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Like my noble friend Lord Kinnoull, the noble Lord, Lord Chorley, and the noble Viscount, Lord Falkland, I believe that it is too soon to come to any conclusions. Eventually, with good will, the right solution will emerge. I look forward to hearing the Minister's reply.
8.13 p.m.
Lord McIntosh of Haringey: My Lords, this is the second time today that I have stood at the Dispatch Box on behalf of the Treasury. The first occasion was the minor matter of the future of the global economy! I have to tell your Lordships that this second occasion is a good deal more difficult for me than the first one. That is not because I have not enjoyed and appreciated your Lordships' contributions, and not because I am not grateful to the noble Lord, Lord Blaker, for bringing the matter to the attention of the House. But, as your Lordships are aware, the recommendations to the Government on this matter are made by the Diana, Princess of Wales Memorial Committee, which, although set up by the Government following the undertaking by the Prime Minister after the death of the Princess of Wales, is an independent committee. The noble Lord, Lord Luke, referred to the noble Baroness, Lady Chalker. On the committee are also representatives of the Royal Household and of the Spencer family and Princess Diana's former butler. We do not have any control over what they do or say.
Before I give such answers as I can, I must explain to your Lordships that my difficulty is that the committee has not made up its mind, and has not made a public statement following its meeting on 20th October and has not published the results of the consultation process. When I am asked for the Government's position, as I have been on more than one occasion, I have to say that it is not the Government's position, it is the memorial committee's position, and the committee has not told us what its position is. My answers will therefore inevitably be less than satisfactory. I apologise for that, but there is nothing I can do about it.
The memorial committee has met regularly since January to consider more than 10,000 ideas, received from people of all walks of life, including school children, pensioners, voluntary organisations, local authorities, artists and professional bodies. Having considered the wide array of ideas put forward, the committee's preliminary advice, published in June, was that the Government should take forward proposals in four areas: first, community children's nursing teams supporting children with life-threatening or life-limiting diseases and their families; secondly, an award for young people at secondary school who make an outstanding contribution to the community; and, thirdly, subject to public consultation, a memorial garden in Kensington Gardens.
In addition, Her Majesty the Queen approved a recommendation from the Chancellor of the Exchequer that a commemorative crown piece should be issued next year in memory of Diana, Princess of Wales. This is the fourth proposal to which I referred. Proceeds from the sale of this commemorative coin will go towards the cost of the other proposals recommended by the
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memorial committee, including any changes agreed for Kensington Gardens. The literal answer to the Question asked by the noble Lord, Lord Blaker, is that technically such expenditure scores as public expenditure, but, of course, the charge to the taxpayer is reduced by the amount raised by the commemorative coin for this and the other proposals.
In all these areas the relevant government departments are working out detailed proposals for further consideration by the memorial committee.
The committee met on 20th October to consider the progress of all four proposals. The discussion focused mainly on progress reports on proposals for community children's nursing teams and awards for young people at secondary schools. The memorial committee's recommendation for teams of community children's nurses across the UK caring for children with life-threatening and life-limiting diseases has received wide support, not only from the public, but also from the nursing profession, doctors and charities working in the field. For over 50 years it has been widely acknowledged that the best place for sick children is at home, surrounded by the people who love them. But the availability of care at home for these children has been limited and patchy. The proposal from the memorial committee would provide additional money for NHS-led teams to work with the voluntary bodies already active in this field of care.
An award each year in every secondary school in the United Kingdom for a young person who has made an outstanding contribution to the community will directly benefit and encourage young people, particularly disadvantaged young people in communities across the United Kingdom in ways which were inspired by the contribution of Diana, Princess of Wales. This recommendation, too, has received a great deal of support from bodies active in education, youth and the voluntary field. The Department for Education and Employment is currently tendering to find a body to administer the awards.
The committee briefly discussed the proposals for Kensington Gardens, but no decisions were made. The committee wishes to discuss these proposals further at its next meeting. I do not believe it would be pre-empting its discussions to say that the proposals are expected to be scaled-down in response to local concerns, but I am afraid that it is not possible for me to go into further detail, not least because I do not know any further detail. The noble Lord, Lord Blaker, referred to the possibility of a £3 million scheme with three elements: a playground, a walkway and remedial treatment. I have no knowledge of such a scheme. He also made reference to the work being done under a memorial committee budget. There is no memorial committee budget. The expenditure, including net receipts from a commemorative coin, would be government expenditure. Spending by the Royal Parks Agency would be expected to be within the existing DCMS (Department for Culture, Media and Sport) spending plans.
Noble Lords have made reference to a network of playgrounds. I can confirm that the Princess Diana Memorial Action Group has proposed a network of that

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kind and has seen the Secretary of State for Culture, Media and Sport to put forward that idea. Noble Lords will understand my difficulty in anticipating future decisions by the memorial committee when that consideration is yet to take place. But I believe that it is important to put this matter in context. In looking for ways to commemorate Diana, Princess of Wales, the memorial committee has always placed greatest emphasis on proposals that continue the work that she started. I believe that that emphasis has been reflected in a number of speeches this evening. The proposal for nursing teams and an award for young people were chosen because of her affinity with young people and her care for the most vulnerable in society.
But the Committee is also mindful that a great many people expect some physical national memorial and that of all the proposals that it has received gardens are among the most popular and appropriate ways in which the public want to remember her. People have chosen Kensington Gardens quite spontaneously as a principal place to go to pay their respects. The number of visitors to Kensington Gardens now runs to about 5 million a year, compared with 2.8 million in 1994. There has been no government or memorial committee action to make that happen; it has happened because people want to go.
Kensington Palace was her home. As we have been reminded, her Butler, Paul Burrell, described how Diana, Princess of Wales used the gardens for running and walking. People will continue to visit Kensington Gardens to remember her. The memorial committee believes that in response it should continue to consider ways in which she can be commemorated there. It will also continue to consider other proposals such as the idea for a network of playgrounds to which I have already referred.
The memorial committee has always recognised that any proposals should command widespread public support before they are implemented. I do not disagree with anything that the noble Lord, Lord Luke, said as to that. That was why the committee undertook the consultation exercise at the earliest opportunity to allow local residents, the relevant authorities, including (I hasten to say) local authorities, and the wider public to put forward their views on the proposals at a very preliminary stage of development. I have listened to the criticism of the consultation process. We and the committee were aware of it at the time. No doubt the committee will take into account what has been said this evening.
But the consultation process had to choose between being entirely prescriptive and setting out a complete plan for the gardens, thus closing off the options and doing what in the end was decided upon; namely, to be much less prescriptive and detailed. One is criticised whatever way one does it. Either one has made up one's mind in advance of the consultation or one is not being sufficiently precise about the subject matter about which one is consulting. In any case, detailed plans for significant changes in Kensington Gardens will fall to be considered by the local authorities and residents under the formal procedures for Crown development. For the information of the noble Earl, Lord Kinnoull,
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I confirm that that would be in accordance with Circular 18/84. I also confirm that steps are already in hand to commission an environmental impact assessment when proposals are put forward by the committee.
We are aware of all the difficulties that noble Lords have raised. We are aware of the possibility of organised coach tours that may do damage and encourage a greater number of tourists. But these are all considerations that have emerged from the consultation. All I can say to noble Lords is that what they have said this evening will be taken very seriously. I am sure that the Official Report will be available to the committee and that it will want to announce its conclusions before the end of the year. I have every confidence that the memorial committee will, with your Lordships' help, find proposals that can command local as well as national support.
The Earl of Kinnoull: My Lords, before the noble Lord sits down, can he say whether there would be a public inquiry into any proposal following the decision by the memorial committee, particularly if it involved the area just by Kensington Palace?
Lord McIntosh of Haringey: My Lords, I believe that that depends on the scope of the final proposals. As yet we are unaware of it. Clearly, if the proposals were to be significantly scaled down, as I suggested was likely, the demand for a public inquiry would be that much less.
Lord Hunt of Kings Heath: My Lords, I beg to move that the House do now adjourn during pleasure until 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.26 to 8.35 p.m.]

Scotland Bill
Consideration of amendments on Report resumed.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 191B:
After Clause 93, insert the following new clause—
REDUCTION OR SUSPENSION OF PROVISION OF ACT OF SCOTTISH PARLIAMENT
(" .—(1) This section applies to proceedings in which the party who raises the proceedings seeks an order for reduction or suspension (or other like order) of any provision of an Act of the Scottish Parliament or subordinate legislation made, confirmed or approved by a member of the Scottish Executive.
(2) Proceedings to which this applies may only be brought in an appropriate court or tribunal.
(3) In subsection (2) "appropriate court or tribunal" means such court or tribunal as may be determined in accordance with rules; and "proceedings" includes a counterclaim or similar proceeding.
(4) In subsection (3) "rules" means—

(a) in relation to proceedings before a court or tribunal outside Scotland, rules made by the Lord Chancellor or the

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Secretary of State for the purposes of this section or rules of court;

(b) in relation to proceedings before a court or tribunal in Scotland, rules made for the purposes of this section;

(c) in relation to proceedings before a tribunal in Northern Ireland—

(i) which deals with transferred matters, and

(ii) for which no rules made under paragraph (a) are in force,

rules made by a Northern Ireland department for those purposes; and includes provision made by order under section 1 of the Courts and Legal Services Act 1990.").

The noble and learned Lord said: My Lords, this amendment seeks to insert a new clause into the Bill. It seeks to address a concern expressed by the Faculty of Advocates in a memorandum submitted to the Government some time ago and upon which I have already commented.
The purpose of the amendment is to create rule-making powers which would entitle either the Lord Chancellor or Secretary of State in England or Wales, the First Minister in Scotland or the procedure set out for Northern Ireland in subsection (4)(c) of the new clause to lay down the courts or tribunals in which there should be vested a power to reduce, suspend or otherwise set aside any provision of an Act of the Scottish parliament or any subordinate legislation made, confirmed or approved by a member of the Scottish parliament.
In a memorandum submitted to the Government, the Faculty of Advocates said that the then Clause 93 of the Bill could cause confusion as to the forum appropriate for the challenging of administrative acts and could restrict the scope envisaged by Clause 93(2). The Faculty said:
"Legislation of the Scottish Parliament may be relevant in both England and Scotland and may affect considerable numbers of persons or businesses. It is therefore important that decisions taken in relation to the vires of legislation be consistent and be taken by courts of appropriate authority in each jurisdiction".
Referring to the position in Scotland, it said:
"Having such decisions taken only by the Court of Session within this jurisdiction would promote this interest. It is inherently undesirable that all minor courts and all tribunals should have the power to quash the proceedings of the Scottish parliament".
The Faculty went on to recommend that the Bill be amended. Dealing with the situation in Scotland, it suggested,
"that the power to declare the invalidity of administrative acts and legislation (including those of the Scottish parliament and the Scottish Executive) should remain vested in the Court of Session. The Bill should be amended to indicate that where such matters are raised in proceedings before any other court or tribunal in Scotland, it is appropriate either that the matter be transferred to the Court of Session or that the cause be sisted pending one of the parties presenting an action in the Court of Session seeking the reduction of the relevant legislation. Similar provisions should be introduced relating to the jurisdiction of the English courts"
and obviously other courts of the United Kingdom.
The amendment is designed to make it possible for there to be some control over which courts should exercise a jurisdiction to reduce or otherwise set aside Acts of the Scottish parliament in subordinate legislation. The amendment would not necessarily limit parties in the lower courts in raising devolution issues
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whether they did so as pursuer or plaintiff in an action or the defender and defendant. But it would prevent the lower courts from pronouncing orders that courts should set aside the Acts of the Scottish parliament or subordinate legislation, assuming that the rule-making power was exercised in the way which I and the Faculty of Advocates believe it should be; namely, reserving such important issues to the higher courts. I beg to move.
Lord Hardie: My Lords, the amendment seeks to define the appropriate court or tribunal for proceedings seeking the order for reduction or suspension of an Act of the Scottish parliament or subordinate legislation. In that regard, its intention is similar to the amendment we discussed before the dinner break.
In speaking to the previous amendment, I explained that it would be wrong to make such a provision in the Scottish Bill. Schedule 6 provides that questions of whether the exercise of a function by a member of the Scottish executive or a failure to act is incompatible with the convention rights in a devolution issue. With one exception, it is not intended to specify the courts or tribunals in which devolution issues may be raised.
The appropriate forum will depend upon the ordinary law as to what proceedings can competently be brought before a court or tribunal. For example, if it is competent only to bring an action of reduction in the Court of Session that action would still be competent only in the Court of Session. On the other hand, if an action is competent in another court it would be appropriate to raise devolution issues in that context.
We do not consider that it would be appropriate to provide that devolution issues can be raised only in the Court of Session because Schedule 6 provides for a fast track procedure for the law officers to raise matters directly with the Judicial Committee of the Privy Council. That provision has no counterpart in the Human Rights Bill.
Furthermore, the amendment does not have the effect of bringing the provisions in the Scotland Bill into line with the Human Rights Bill because they contain no counterpart to Clause 7(1)(b) of that Bill entitling a person to rely upon convention rights in any legal proceedings before any court or tribunal. With that explanation, I invite the noble and learned Lord to withdraw his amendment.
Lord Mackay of Drumadoon: My Lords, I am grateful to the noble and learned Lord for explaining the Government's position in response to the concern I raised. I do not see the amendment as being concerned with making the terms of the Scotland Bill compatible with the provisions of the Human Rights Bill. That was an objective of a previous amendment.
I framed the amendment and brought it before the House in order to meet the concern raised by the Faculty of Advocates as to whether it is appropriate that the sheriff court should have power in Scotland—and no doubt the lower civil courts in other parts of the United Kingdom—to reduce, suspend or cost, or whatever other form of order may be competent, the Acts of the Scottish parliament and its elected members.
The noble and learned Lord the Lord Advocate will be aware that actions of reduction are not competent in the sheriff court. However, as a defence to an action raised in the sheriff court it is open to a defender to have a document reduced ope exceptionis. That would apply to an Act of the Scottish parliament or a provision of subordinate legislation made, confirmed and approved by a member of the Scottish executive. It seems to me that the Faculty has a point and therefore I seek to test the opinion of the House.
8.45 p.m.
On Question, Whether the said amendment (No. 191B) shall be agreed to?
Their Lordships divided: Contents, 46; Not-Contents, 95.

Division No. 2

CONTENTS

Alton of Liverpool, L.

Leigh, L.

Annaly, L.

Lindsay, E.

Attlee, E. [Teller.]

Lyell, L.

Baker of Dorking, L.

Mackay of Ardbrecknish, L.

Balfour, E.

Mackay of Drumadoon, L.

Blaker, L.

Marlesford, L.

Blatch, B.

Masham of Ilton, B.

Brougham and Vaux, L.

Monro of Langholm, L.

Byford, B. [Teller.]

Northbrook, L.

Campbell of Alloway, L

Northesk, E.

Carnegy of Lour, B.

Palmer, L.

Carr of Hadley, L.

Park of Monmouth, B.

Chesham, L.

Renton, L.

Cope of Berkeley, L.

Rowallan, L.

Craigavon, V.

St. John of Fawsley, L.

Crathorne, L.

Saltoun of Abernethy, Ly.

Dixon-Smith, L.

Selkirk of Douglas, L.

Fookes, B.

Sempill, L.

Gardner of Parkes, B.

Skelmersdale, L.

Gisborough, L.

Stair, E.

Harris of Peckham, L.

Sudeley, L.

HolmPatrick, L.

Waddington, L.

Kingsland, L.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Davies of Coity, L.

Addington, L.

Dean of Beswick, L.

Ahmed, L.

Dixon, L.

Alderdice, L.

Donoughue, L.

Alli, L.

Dormand of Easington, L.

Amos, B.

Eatwell, L.

Archer of Sandwell, L.

Evans of Parkside, L

Bach, L.

Falconer of Thoroton, L.

Bassam of Brighton, L.

Falkland, V.

Blackstone, B.

Farrington of Ribbleton, B.

Blease, L.

Gallacher, L.

Borrie, L.

Gilbert, L.

Bragg, L.

Gordon of Strathblane, L.

Brooks of Tremorfa, L.

Goudie, B.

Burlison, L.

Grenfell, L.

Carlisle, E.

Hacking, L.

Carmichael of Kelvingrove, L.

Hardie, L.

Carter, L. [Teller.]

Hardy of Wath, L.

Chandos, V.

Haskel, L.

Christopher, L.

Hilton of Eggardon, B.

Clarke of Hampstead, L.

Hollis of Heigham, B.

Crawley, B.

Howie of Troon, L.

David, B.

Hoyle, L.

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Hughes of Woodside, L.

Phillips of Sudbury, L.

Hunt of Kings Heath, L.

Pitkeathley, B.

Islwyn, L.

Ramsay of Cartvale, B.

Janner of Braunstone, L.

Randall of St. Budeaux, L.

Jay of Paddington, B. [Lord Privy Seal.]

Rendell of Babergh, B.

Renwick of Clifton, L.

Linklater of Butterstone, B.

Sawyer, L.

Lockwood, B.

Scotland of Asthal, B.

Lofthouse of Pontefract, L.

Sefton of Garston, L.

McCarthy, L.

Sewel, L.

Macdonald of Tradeston, L.

Simon, V.

McIntosh of Haringey, L. [Teller.]

Strabolgi, L.

Symons of Vernham Dean, B.

Mackenzie of Framwellgate, L.

Taylor of Blackburn, L.

Mackie of Benshie, L.

Thomas of Macclesfield, L.

Mackie of Benshie, L.

Thomson of Monifieth, L.

Maddock, B.

Thornton, B.

Mallalieu, B.

Thurso, V.

Mar and Kellie, E.

Tomlinson, L.

Milner of Leeds, L.

Tordoff, L.

Monkswell, L.

Uddin, B.

Morris of Castle Morris, L.

Varley, L.

Nicholson of Winterbourne, B.

Warner, L.

Nicol, B.

Whitty, L.

Orme, L.

Williams of Mostyn, L.

Perry of Walton, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
8.54 p.m.
Clause 94 [Legislative power to remedy ultra vires acts]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 191C:
Page 43, line 29, leave out ("or expedient").
The noble and learned Lord said: My Lords, in moving this amendment I shall speak to Amendments Nos. 191D, 191E and 202YA. These are small drafting amendments which seek to delete certain words in Clauses 94 and 97. In Clause 94 they seek to delete the words "or expedient" in line 29 and the words "or may not be" as they appear in paragraphs (a) and (b).
The order-making powers in Clauses 94 and 97, to which the fourth of the amendments is directed, should be used only when necessary and when an Act of the Scottish parliament or a provision of an Act of the Scottish parliament or any purported exercise by a member of the Scottish Executive of his functions is outwith competence or not a proper exercise of function. It should not be competent for these powers to be used, as the Bill currently would allow, where it is just a question of expediency or, under Clause 94, where there is doubt as to whether or not the Act of the Scottish Parliament or the provision of an Act of the Scottish Parliament is within legislative competence or where there is doubt as to whether or not the member of the Scottish Executive has acted within his executive functions.
Such order-making powers may be necessary. I accept that there may be circumstances where it is necessary for such a power to exist and that it should be used, but

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I do not accept that that should occur in the circumstances that are currently permitted. I beg to move.
Lord Hardie: My Lords, the Government cannot accept Amendments Nos. 191C and 202YA. With these amendments the noble and learned Lord is seeking to remove the words "or expedient" from Clauses 94 and 97 which provide for the making of subordinate legislation, subject to procedure in this Parliament, in certain circumstances. The noble and learned Lord's amendments would restrict the circumstances in which such subordinate legislation could be made.
The powers in Clauses 94 and 97 are consequential powers and in both cases the Government consider that the right test is whether such legislation is necessary or expedient. I appreciate that the noble and learned Lord does not take issue with the word "necessary" but there is a question as to whether it is appropriate to include the alternative of expediency. We see those words as essential to ensure that these consequential powers may be exercised in appropriate circumstances.
The degree of flexibility provided by Clauses 94 and 97 is important. It would be difficult to demonstrate in all but a narrow range of cases that subordinate legislation was absolutely necessary.
There will be instances where it would indeed be expedient, but not necessary, for subordinate legislation to be made. For example, under Clause 94, an Act of the Scottish parliament might be found to be ultra vires and subordinate legislation could be used to address the situation concerning rights or liabilities. It might not be absolutely necessary that such provision was made, but it would be expedient.
Equally, the Government cannot support Amendments Nos. 191D and 191E which would restrict when the power in Clause 94 could be exercised. We think that it is important that the order-making power can be used if there is a suspected defect in an Act or the action of a member of the Scottish executive. To do otherwise would make it necessary for a court to rule that a provision or action is ultra vires. However, we want to ensure that remedying action can be taken before that event and may even avoid unnecessary judicial proceedings. I can understand why lawyers might be keen to have unnecessary judicial proceedings, wearing their other hats as practising lawyers, but that does not make good sense. I am sure that this power will be exercised with caution and only where there is a good degree of certainty that something really is ultra vires. I hope that the noble and learned Lord can withdraw the amendment.
Lord Mackay of Drumadoon: My Lords, I intend to do that very thing. I am quite sure that the noble and learned Lord did not think that I was wishing to be obstructive in unnecessary legal proceedings; there are more than enough necessary legal proceedings to keep me and my colleagues well occupied.
I accept the force of what the noble and learned Lord the Lord Advocate said: it may have the effect of reducing the amount of litigation. That is one of the
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themes to which I have returned on more than one occasion in these debates and I am therefore happy to withdraw the amendment.
Amendment, by leave, withdrawn.
9 p.m.
[Amendments Nos. 191D to 191F not moved.]
Lord Hardie Lord Hardie moved Amendment No. 191G:
Transpose Clause 94 to after Clause 99.
The noble and learned Lord said: My Lords, this is a formal amendment to transpose Clause 94 to after Clause 99. It is a drafting amendment. I beg to move.
On Question, amendment agreed to.
Lord Sewel Lord Sewel moved Amendment No. 192:
After Clause 94, insert the following new clause—
INTERPRETATION OF ACTS OF THE SCOTTISH PARLIAMENT ETC
(".—(1) This section applies to—

(a) any provision of an Act of the Scottish Parliament, or of a Bill for such an Act, and

(b) any provision of subordinate legislation made, confirmed or approved, or purporting to be made, confirmed or approved, by a member of the Scottish Executive,

which could be read in such a way as to be outside competence.
(2) Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible. and is to have effect accordingly.
(3) In this section, "competence"—

(a) in relation to an Act of the Scottish Parliament, or a Bill for such an Act, means the legislative competence of the Parliament, and

(b) in relation to subordinate legislation, means the powers conferred by virtue of this Act.").

On Question, amendment agreed to.
[Amendment No. 192A not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 192B:
After Clause 94, insert the following new clause—
FREEDOM OF SPEECH
(" .—(1) In the Bill of Rights, there shall be inserted at the end of Article IX (freedom of speech) the words "; and in this Article, "Parlyament" shall include the Scottish Parliament".
(2) In the Claim of Right Act 1689, there shall be inserted at the end of Article XXV the words "of those Parliaments (including the Scottish Parliament)".").
The noble and learned Lord said: My Lords, in speaking to this amendment I shall speak also to Amendment No. 192D. It raises the issue of parliamentary privilege which was one of the subjects which we debated late in the night on the ninth day of Committee.
As I explained on that occasion, the objective of the amendments dealing with parliamentary privilege is to place the Scottish parliament, so far as is possible, on the same footing as the Westminster Parliament as regards the extent to which the courts will investigate how and why Parliament has acted in the way it has, in particular in the passing of legislation.
In moving these amendments, perhaps it may be helpful to make clear a number of matters. Nothing in the amendments is intended to interfere in any way with the jurisdiction which the courts and tribunals of the United Kingdom will have to determine devolution issues as they are defined in paragraph 1 of Schedule 6 and as they arise from time to time in proceedings which come before courts and tribunals.
The first of the amendments was drafted with considerable assistance from senior Clerks in the Public Bill Office, for which I am extremely grateful. Amendment No. 192 is based on Section 26(1) of the Northern Ireland Constitution Act 1973.
In a number of places, the Bill already seeks to protect freedom of speech and the freedom of the Scottish parliament to regulate its own affairs; for example, in Section 21 and Schedule 3, we have powers to make standing orders which are to some extent constrained by certain prescriptions written into the Bill but which are primarily left to the parliament itself to determine. We have Clause 27(5), which was amended last week by Amendment No. 112, when the noble Lord, Lord Sewel, explained to your Lordships that the purpose of the new subsection was to prevent the validity of Acts of the Scottish parliament being challenged on arguments directed to the fact that standing orders had not been followed properly or on any other procedural grounds which suggested that a procedural rule of the parliament had not been adhered to. But that was as far as I understood Clause 27(5) to go.
Clause 37 accords to the new parliament, for the purposes of the law on defamation, the absolute privilege to any statement made in proceedings of the parliament and the publication under the authority of the parliament of any statement. As I understand it, that would cover not only members of the new parliament but any individuals who may be called to give evidence or provide information to committees of that parliament during its formal proceedings.
A number of other amendments have been brought forward helpfully by the Government seeking to exclude challenges based on any defects in the election or appointment of particular office holders or members of the Scottish executive. I very much welcome those amendments.
Notwithstanding those provisions, I remain concerned that the Scottish parliament will not enjoy the same privilege as this Parliament. I understand that to be acknowledged by the Government because on more than one occasion the Minister has referred to that fact. Indeed, in a letter dated 16th October of this year, he wrote to my noble friend Lord Mackay of Ardbrecknish. The noble Lord, Lord Sewel, said:
"During debates in Committee on the extent of the Scottish Parliament's privilege I indicated that we were actively considering the matter. We have concluded that we cannot justify attempting to mirror Westminster privileges. Those privileges are very wide ranging and, in certain respects, apply for largely historical reasons. Instead, we consider it more appropriate to protect the Parliament in the same way as the Crown".
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He then went on to discuss a number of the amendments which the Government have brought forward, I repeat, very helpfully, at this stage.
In his letter, the noble Lord, Lord Sewel, did not explain why the Government had concluded that they could not justify attempting to mirror Westminster privileges. As he rightly says, those privileges are wide-ranging and it is certainly true that they have a long history. That is obvious from the fact that in my amendments I have referred to the Bill of Rights and the Claim of Right Act 1689 which are understood to found the privileges which this Parliament enjoys.
It is my position that if the Government are not prepared to accord the Scottish parliament the same privileges as the Westminster Parliament, they should explain why that is so. I believe—and my view is shared by many others—that in Scotland at least the voters who vote for members of the new parliament and, after the parliament is elected and sets about its business, the population at large will wish to treat primary legislation coming out of the Scottish parliament, in the form of Acts of the Scottish parliament, in exactly the same way as they treat legislation coming out of Westminster.
It may be that in law and in constitutional theory there are differences between the two forms of legislation, and no doubt constitutional lawyers can spend many hours discussing the reasons for and legal consequences of those differences. But the man in the street will treat them the same and therefore, if at all possible, the courts should be encouraged and indeed constrained to treat them the same.
It may help if I explain why this matter should be dealt with in this Bill rather than left to the Scottish parliament itself. I believe that the definition of the legislative competence of the Scottish parliament which is to be found in Clause 28 of the Bill would not permit the Scottish parliament to pass any Act which would bind courts in any part of the United Kingdom other than Scotland to accord its legislation privilege similar to the privilege attached to legislation coming from Westminster. Therefore, if this matter is to be addressed, it must be addressed in legislation enacted at Westminster and this seems to me to be the appropriate time at which to look at the issue.
Perhaps I may give one or two examples of the kind of challenge that I wish to exclude. One would be an attempt to investigate whether or not an Act of the Scottish parliament had been obtained by some fraud, deception or other improper motive either on the part of a member of the parliament itself or a member of the public who had been involved in lobbying parliament or in placing information before its members. A second example may be an attempt to demonstrate that an Act of the Scottish parliament had been passed by the parliament on the basis of a perfectly genuine but completely inaccurate understanding of the relevant facts.
Those are not fanciful examples. In comparatively recent cases which have come before either the Appellate Committee of your Lordships' House or the Judicial Committee of the Privy Council, those issues have arisen. In the case of British Railways Board and another v. Pickin in 1974 the speech of Lord Morris of

101
Borth-y-Gest explained in comparatively short form what the privileges of this Parliament are designed to achieve. He said,
"It must surely he for Parliament to lay down the procedures which are to be followed before a bill can become an Act".
The Government accept that for the Scottish parliament. He went on,
"It must be for Parliament to decide whether its decreed procedures have in fact been followed".
The same applies to the Scottish parliament. The speech continues,
"It must be for Parliament to lay down and to construe its standing orders and further to decide whether they have been obeyed; it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders".
The Government accept all of that in relation to the Scottish parliament, but Lord Morris went on to say this:
"It must be for Parliament to decide whether it is satisfied that an Act should be passed in the form and with the wording set out in the Act. It must be for Parliament to decide what documentary material or testimony it requires and the extent to which Parliamentary privilege should attach. It would be impracticable and undesirable for the High Court of Justice to embark on an enquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an enquiry whether in any particular case those procedures were effectively followed".
That arose in proceedings designed to challenge the validity of a private Act of Parliament. In another case of Prebble v. Television New Zealand Limited in 1994 the Privy Council addressed a similar issue and followed the same approach.
So those are not fanciful issues, as is also confirmed by the fact that a joint committee of both Houses of Parliament, chaired by the noble and learned Lord, Lord Nicholls, is currently addressing this whole issue and has taken evidence from a number of senior judges, senior politicians and, indeed, senior officials of both Houses. It appears to be accepted in that committee's discussions that there are instances where the courts are precluded from looking behind what this Parliament has enacted. That is a starting point for its deliberations.
It is desirable that the Scottish parliament should set out on an equal footing with the Westminster Parliament. If, in the course of time, the committee of the noble and learned Lord, Lord Nicholls, reports and recommends a change in the law on a UK-wide basis, obviously the position as regards the Scottish parliament would need to be examined and altered. If there were an amendment to the privilege of this Parliament, agreed to by this Parliament, I should be content that it should be reflected in an amendment to what will then be the Scotland Act so that the Scottish parliament will be on the same basis.
I object to the fact that the Government are not prepared to mirror Westminster's privileges in the new Scottish parliament. It may not be possible to mirror them exactly, but in principle there should be no difference between the two parliaments. For those reasons, I beg to move Amendment No. 192B.
9.15 p.m.
Baroness Carnegy of Lour: My Lords, this is obviously a complex legal matter and one that I do not fully understand. Perhaps I may make a suggestion to the Minister. If he feels able to accept Amendment No. 192B, I think that would be very attractive to Scots as a whole.
I base that view on my experience. A number of years ago, I took through the House a piece of legislation, fixing term days and quarter days in Scotland. In the process, I repealed an Act of the 17th Century. When talking about the House of Lords, I have often told people about that. It interests them to know that it is possible to repeal an Act of Parliament of that date. People are very interested to hear that that can be done. In the future, people may be interested to know that this Bill inserts something about freedom of speech into two such ancient pieces of legislation, the Bill of Rights and the Claim of Right Act 1689. If something like that were to be done, it would prove of great interest to people. Perhaps such an amendment would be worth making, provided that the matter that it introduced was acceptable.
Lord Thomson of Monifieth: My Lords, like the noble Baroness, Lady Carnegy of Lour, my mind boggles at the legal complexities of this matter. I have two brief points. First, I am intrigued about the history—which is always fascinating—and about how, given that there was an independent Scottish Parliament until 1707, we can amend the Bill of Rights of the English Parliament of 1689. The historical possibility for the lawyers intrigues me.
On the main point, I am intrigued because, not for the first time in these long debates, we now have a Conservative Opposition in this House who appear to be extremely enthusiastic about increasing the status, power and privileges of a Scottish parliament, which they did their best to persuade the Scottish people to reject.
Lord Sewel: My Lords, I am well known for being generous in welcoming new converts to the cause and I shall not go down the line opened up by the noble Lord, Lord Thomson of Monifieth.
In Amendments Nos. 192B and 192D, noble Lords opposite are seeking to extend the protection of the Scottish parliament. That is a thread that has run through many of our debates. The noble and learned Lord was kind enough to point out the way in which the Government have responded to questions by taking seriously the specific points made by noble Lords opposite and trying to meet them. Now we finish up with a position where the protection afforded to the Scottish parliament, to members of the Scottish parliament and to officers of the Scottish parliament is much more explicit—in a way it is both more explicit and more general—than was the case when we first started to consider the Bill.
I do not think that there is a matter of principle between us on the need to provide effective and adequate protection for the Scottish parliament. Where

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we differ is in striking where the balance should be. We have considered this issue at some length in earlier debates. We believe that what is now provided in the Bill, together with the amendments proposed to Schedule 4, represent the right approach. We are not attracted by the idea of going down the route which the noble and learned Lord invites us to take.
With Amendments Nos. 192B and 192D the noble and learned Lord has made clear that he wishes to replicate completely the arrangements existing at Westminster for the Scottish parliament. The Government do not agree that that is the right approach. I am conscious that the subject of protection for the Scottish parliament is large and complex. We have made a number of amendments in response to the concerns of noble Lords that the parliament should be able to go about its business without undue interruption from the courts. We have also tabled amendments to Schedule 4 which make it clear that those parts of the Bill which deal with protection from judicial proceedings may be modified by the parliament. I believe that that balance is about right.
We have concluded that we cannot justify attempting to mirror Westminster privileges. That is why we cannot support the Opposition amendments before us tonight. The privileges enjoyed by Westminster are very wide-ranging and rooted in history, as the noble and learned Lord indicated. Some of them flow from the fact that the Parliament at Westminster is the highest court. That would be an inappropriate basis on which to draw protection and privileges for the Scottish parliament, which in no sense can act as a court.
The other problem with following the route which we have been invited to take by the Opposition is that the privileges enjoyed by Westminster are relatively ill-defined and of uncertain scope. That is partly the inevitability of the way in which they relate to the past and have been developed. We do not believe that that is the way to start when setting up the new institution. We are attracted by a different approach which is to be more explicit and precise, as far as we can, as regards protection, as well as giving the parliament itself power to pass legislation on the protection available to it. As I say, we are not attracted to the arguments put forward by the noble and learned Lord.
I can deal with the two illustrations he used to support his case in contra-distinction to that of the Government. He indicated that an Act of the Scottish Parliament may be open to challenge if it was argued that it had been obtained through fraud or deception and also that the act had been brought about by a genuine and wrong understanding of the facts.
Clause 27(5) makes it clear that the validity of an Act is not affected by any question as regards the background of the legislation. Once enacted, the legislation stands, assuming that the Act was in the competence of the parliament. So I do not see how the courts would accept a challenge on the grounds that
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the noble and learned Lord has indicated. That is effectively closed off by Clause 27(5), but the noble and learned Lord has a different view.
Lord Mackay of Drumadoon: My Lords, I do not want to interrupt too much, but if the noble Lord is in a position to assure me that challenges of the nature I have explained as possibilities would be covered by Clause 27(5), no one would be happier than I. I encourage the noble Lord to continue.
Lord Sewel: My Lords, I like to bring happiness wherever I can. On this occasion, I think I can give the noble and learned Lord all the happiness that he seeks. That indeed is our interpretation of the effect of Clause 27(5). So, on that happy note, I think I can conclude my remarks and invite the noble and learned Lord to withdraw his amendment.
Lord Mackay of Drumadoon: Indeed so, my Lords. When earlier on I invited the noble Lord to explain what was behind Amendment No. 112, I was anxious to see whether it went of its own volition as far as we are now going. I am grateful for the noble and learned Lord's explanation which I shall read carefully. However, it does seem that to a large extent it meets my practical concerns. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 192C and 192D not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 192E:
After Clause 94, insert the following new clause—
COURTS NOT TO REQUIRE LEGISLATION TO BE UNDERTAKEN
(" . No court shall pronounce any order requiring a member of the Scottish Executive or a junior Scottish Minister to introduce a Bill to the Parliament or to make, confirm or approve any provision of subordinate legislation.").
The noble and learned Lord said: My Lords, this amendment seeks to introduce into the Bill after Clause 94 a new clause which would prevent any court from pronouncing an order requiring a member of the Scottish executive or a junior Scottish Minister to introduce a Bill to the parliament or to make, confirm or approve any provision of subordinate legislation.
Among the devolution issues which are defined in paragraph 1 of Schedule 6 to the Bill are questions as to whether a purported or proposed exercise of a function by a member of the Scottish executive is or would be incompatible with any of the Convention rights or with Community law and whether a failure to act by a member of the Scottish executive is incompatible with any of the Convention rights or with Community law. For these reasons, I can see that it is possible that in proceedings which are raised before the courts, and in particular before the Scottish courts, an order may be sought requiring a member of the Scottish executive or a junior Scottish Minister to act along the lines set out in the amendment.
I fully accept, because they are devolution issues, that the courts will require to rule on whether the acts or omissions of members of the Scottish executive or junior Ministers have been in accordance with their statutory duties under the Bill. I therefore have no objection to the courts having power to grant declarators to that effect. However, my concern arises in these circumstances. If in an action at the instance of the United Kingdom Government, acting no doubt through one of its Secretaries of State, the court is asked to order a member of the Scottish executive to act in a way that previously he had been unwilling to act, the court would inevitably be drawn into further controversy. No doubt the decision as to whether to grant such an order would be one on which the court would have a discretion. Quite how it would go about seizing itself of the necessary information before it exercised discretion is not entirely obvious to me. But whether or not it makes the order, the very fact that it is asked to make the order could give rise to avoidable controversy.
On more than one occasion Ministers have encouraged us to accept that members of the Scottish executive and junior Scottish Ministers will act in a responsible manner. For my part, I should like to believe that the Government's faith in these future appointees is well founded. I see no reason why it should not be. However, there will be times when people acting perfectly genuinely take a different view from Ministers of the United Kingdom Government and may feel that they are acting perfectly responsibly. I believe that they should be left to make up their own minds as to what to do if a court grants a declarator that they have acted outwith their powers, or that they have failed to act in a manner in which the statutory duties upon them require them to act. Therefore, I do not think that the courts should have the power to go beyond the granting of an order in the same way as the Government, in an earlier amendment which was dealt with on Report, accepted that the courts should not have the power to grant similar orders against the parliament. I beg to move.
9.30 p.m.
Lord Hardie: My Lords, the amendment is unnecessary. The answer to it is the Crown Proceedings Act 1947, which prevents the court from making an order for specific performance against the Crown. The Scottish Executive will be part of the Crown. Accordingly, I invite the noble and learned Lord to withdraw his amendment.
Lord Mackay of Drumadoon: My Lords, I am grateful to the noble and learned Lord for making the position clear. If the answer is as short and as obvious as the response that has just been given, perhaps I should have known it before. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 192F:
After Clause 94, insert the following new clause—
CRIMINAL PROCEEDINGS: PROCEDURE WHERE LEGISLATION IS ULTRA VIRES
(" .—(1) This section applies where in criminal proceedings a court decides that—

(a) an Act of the Scottish Parliament or any provision of such an Act is not within the legislative competence of the Parliament, or

(b) a member of the Scottish Executive does not have the power to make, confirm or approve a provision of subordinate legislation that he has purported to make, confirm or approve.

(2) When a court reaches any decision to which this section applies, it, and any inferior court bound by its decision, shall take account of and act upon any such decision in the conduct of the criminal proceedings in which the decision was made.").
The noble and learned Lord said: My Lords, we debated this matter in Committee on 8th October. I explained then my position on the amendment at some length and, therefore, I need not repeat in great detail what was said on that occasion. My concern basically was that if, in the course of criminal proceedings, it becomes obvious that there is a valid challenge to either a provision of primary legislation or subordinate legislation upon which a criminal prosecution proceeds, that should be the end of the matter. The court should decide the effect that that successful challenge has on the proceedings and either bring them to a halt or proceed depending upon what view the trial judge takes as to the effect that the invalid provision may have.
In the speech that I made on the last occasion I said that there might be two instances where such a problem might arise. The first is where it in some way justified a successful challenge to the competency of the charge which a particular accused was required to face in criminal proceedings. The second instance was where such an issue affected the admissibility of any evidence upon which the Crown intended to rely. I sought to contrast the situation with what will arise in civil proceedings where, possibly, different considerations may apply.
It is fair to say that, in his reply, the noble and learned Lord the Lord Advocate did not come up with any concrete example as to where it would be appropriate for the criminal court to have the discretionary powers set out in Clause 95, as it now is. In particular, that applies to the discretionary powers to make an order removing or limiting any retrospective effect of the decision or suspending the effect of the decision for any period or on any conditions to allow the defect to be corrected. However, the noble and learned Lord did suggest that there may be exceptional cases where it is appropriate for the court to say:
"Well, there is a defect here but it is a fairly technical matter. it is in the interests of justice that the opportunity be given to remedy it".
The noble and learned Lord then went on to say:
"It is that very exceptional situation that the clause is intended to address. Clearly the clause is mainly directed toward civil cases where people have acted upon certain legislation to their prejudice".—[Official Report, 8/10/98; col. 597.]
On that occasion the noble and learned Lord clearly took a similar line to the one which I take; namely, that other considerations may apply in civil proceedings.
I have considered the matter carefully since 8th October to see whether it is possible to identify exceptional cases where it would be appropriate in civil proceedings for a criminal court to have such discretionary powers. I have been unable to identify any case where that would be appropriate and for that reason I have brought forward this amendment again. I beg to move.
Lord Hardie: My Lords, the position of the Government is the same as it was in Committee. When we considered the matter at that time the noble and learned Lord voiced his concerns about the effect of the provision in criminal cases. He could see few reasons why it was appropriate to allow the courts this power in criminal cases. He feared that by giving them this power we risked their exercising the power in a way which might breach convention rights. I said that clearly in criminal cases the power would be exercised, and be exercisable, only in exceptional cases. The very nature of exceptional cases is such that it is difficult to imagine what they would be because they are exceptional.
I understand the noble and learned Lord's concerns but I do not think that his amendment provides us with an appropriate solution. I take comfort from the fact that the noble and learned Lord, Lord Hope of Craighead, argued on a previous occasion that this matter should be left to the discretion of the courts. The courts will not use this power lightly. On that occasion the noble and learned Lord thought—he is not present at this stage this evening—that the provision as framed was appropriate. Accordingly I invite the noble and learned Lord to withdraw the amendment.
Lord Mackay of Drumadoon: My Lords, since the previous occasion on which we discussed this matter I have considered what the noble and learned Lord, Lord Hope, said. However, he, like the noble and learned Lord the Lord Advocate, could not identify an exceptional case. I have thought carefully about the matter and I intend to insist on the amendment.
9.36 p.m.
On Question, Whether the said amendment (No. 192F) shall be agreed to?
Their Lordships divided: Contents, 37; Not-Contents, 87.

Division No. 3

CONTENTS

Annaly, L.

Gisborough, L.

Archer of Weston-Super-Mare, L.

Harris of Peckham, L.

Attlee, E. [Teller.]

Kingsland, L.

Blatch, B.

Leigh, L.

Brougham and Vaux, L.

Lindsay, E.

Byford, B.

Lyell, L.

Carnegy of Lour, B.

Mackay of Ardbrecknish, L. [Teller.]

Carr of Hadley, L.

Chesham, L.

Mackay of Drumadoon, L.

Dixon-Smith, L.

Monro of Langholm, L.

Dundee, E.

Montrose, D.

Gardner of Parkes, B.

Northbrook, L.

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Northesk, E.

Selkirk of Douglas, L.

Palmer, L.

Sempill, L.

Park of Monmouth, B.

Skelmersdale, L.

Renton, L.

Stair, E.

Rowallan, L.

Sudeley, L.

St. John of Fawsley, L.

Wharton, B.

Saltoun of Abernethy, Ly.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Hunt of Kings Heath, L.

Addington, L.

Islwyn, L.

Ahmed, L.

Jay of Paddington, B. [Lord Privy Seal]

Alderdice, L.

Alli, L.

Linklater of Butterstone, B.

Amos, B.

Lockwood, B.

Archer of Sandwell, L.

Lofthouse of Pontefract, L.

Bach, L.

McCarthy, L.

Bassam of Brighton, L.

Macdonald of Tradeston, L.

Berkeley, L.

McIntosh of Haringey, L. [Teller.]

Blackstone, B.

Blease, L.

Mackenzie of Framwellgate, L.

Borrie, L.

Mackie of Benshie, L.

Bragg, L.

Mallalieu, B.

Brooks of Tremorfa, L.

Mar and Kellie, E.

Burlison, L.

Milner of Leeds, L.

Carlisle, E.

Monkswell, L.

Carmichael of Kelvingrove, L.

Morris of Castle Morris, L.

Carter, L. [Teller.]

Orme, L.

Chandos, V.

Phillips of Sudbury, L.

Christopher, L.

Pitkeathley, B.

Clarke of Hampstead, L.

Ramsay of Cartvale, B.

Crawley, B.

Randall of St. Budeaux, L.

Razzall, L.

Davies of Coity, L.

Rendell of Babergh, B.

Dean of Beswick, L.

Renwick of Clifton, L.

Dixon, L.

Sawyer, L

Donoughue, L.

Scotland of Asthal, B.

Dormand of Easington, L.

Sefton of Garston, L.

Evans of Parkside, L.

Sewel, L.

Falconer of Thoroton, L.

Simon, V.

Farrington of Ribbleton, B.

Symons of Vernham Dean, B.

Gallacher, L.

Taylor of Blackburn, L.

Gordon of Strathblane, L.

Thomas of Macclesfield, L.

Goudie, B.

Thomson of Monifieth, L.

Grenfell, L.

Thornton, B.

Hacking, L.

Thurso, V.

Hardie, L.

Tomlinson, L.

Hardy of Wath, L.

Tordoff, L.

Haskel, L.

Uddin, B.

Hilton of Eggardon, B.

Varley, L.

Hollis of Heigham, B.

Warner, L.

Howie of Troon, L.

Whitty, L.

Hoyle, L.

Williams of Mostyn, L.

Hughes of Woodside, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
9.45 p.m.
Clause 95 [Powers of courts or tribunals to vary retrospective decisions]:
[Amendments Nos. 192G to 192L not moved.]
Clause 96 [The Judicial Committee]:
[Amendments Nos. 193 to 199 not moved.]
Lord Selkirk of Douglas Lord Selkirk of Douglas moved Amendment No. 200:
Page 45, line 4, at end insert—
("(d) provide such resources to the Judicial Committee as Her Majesty considers necessary or expedient.").
The noble Lord said: My Lords, the amendment makes provision for adequate resources to be made available to the Judicial Committee so that it can properly meet its responsibilities under Clause 94. No provision is made in the Bill for adequate resources to be made available to the Judicial Committee to deal with devolution issues. I should be grateful to hear the Minister's view as to whether an amendment along these lines is necessary.
Lord Sewel: My Lords, the noble Lord's amendment is very similar to one tabled by the noble Earl, Lord Mar and Kellie, at an earlier stage of the Bill. I should like to reassure the noble Lord, as I hope I reassured the noble Earl, that the amendment is entirely unnecessary. I agree that it is important that the Judicial Committee should have sufficient resources to carry out its duties properly. There is no need to prescribe that on the face of the Bill. The Government of the day will, of course, want to make sure that the Judicial Committee is properly resourced, as is the case currently. I have now given that assurance for the second time.
Perhaps I may take the opportunity to reply to a point raised by the noble and learned Lord, Lord Mackay of Drumadoon, when we discussed this matter earlier. He asked whether members are paid for sitting on the committee. I should like to reassure him that they are. Retired judges and Lords of Appeal in Ordinary are paid a daily rate of £622 before tax if they sit on the board of the Judicial Committee. It is considered to be part of the duties of serving Lords of Appeal in Ordinary. We would expect expenses incurred to be reimbursed—for example, if the Judicial Committee sat in Edinburgh.
On that basis, perhaps the noble Lord would feel able to withdraw his amendment.
Lord Mackay of Drumadoon: My Lords, before my noble friend indicates his intention, I thank the noble Lord for the additional information which he has given. I am sure that it will be of great interest to those who will, in the fullness of time, be qualified to sit on the Judicial Committee.
Lord Sewel: My Lords, it may perhaps be of even more interest to those who are not qualified to sit on the Judicial Committee.
Lord Selkirk of Douglas: My Lords, I am grateful to the Minister for his assurance, in the light of which I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 201 and 202 not moved.]
Clause 97 [Power to make provision consequential on Acts of the Scottish Parliament]:
[Amendment No. 202YA not moved.]
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 202ZA:
Page 45, line 11, at end insert ("or made by legislation mentioned in subsection (2).
(2) The legislation is subordinate legislation under an Act of Parliament made by—

(a) a member of the Scottish Executive,

(b) a Scottish public authority with mixed functions or no reserved functions, or

(c) any other person (not being a Minister of the Crown) if the function of making the legislation is exercisable within devolved competence.").

The noble Baroness said: My Lords, in view of the earlier comment of the noble and learned Lord, Lord Mackay of Drumadoon, that when I refer to "technical amendments" his ears prick up, I shall not say that Amendment No. 202ZA is a minor and technical amendment, although in fact it is. Clause 97 allows provision to be made by subordinate legislation in consequence of an Act of the Scottish Parliament. It could be used, for example, to make provision in English law to complement something done in an Act of the Scottish Parliament which, because of Clause 28(2)(a), could not amend English law. This might be necessary to provide for cross-border enforcement of a provision in an ASP.
Similar principles apply to subordinate legislation made by Scottish Ministers under powers which transfer to them and by others such as the Registrar General. This amendment therefore extends the power in Clause 97 so that the consequences of such subordinate legislation can be dealt with. I beg to move.
Lord Mackay of Drumadoon: My Lords, I am most grateful to the noble Baroness for giving that clear explanation of why this minor and technical amendment is required. One of the advantages of having a second revising Chamber is that one has many opportunities to table such amendments. I can well understand why this is required and I have absolutely no objection to it.
On Question, amendment agreed to.
Clause 99 [Power to adapt functions]:
Lord Sewel Lord Sewel moved Amendment No. 202A:
Page 46, line 4, at end insert—
("( ) If subordinate legislation under this section modifies a function of observing or implementing such an obligation under Community law so that the function to be transferred to the Scottish Ministers relates only to achieving so much of the result to be achieved under the obligation as is specified in the legislation, references in sections 28(2)(d) and 53(2) and paragraph 1 of Schedule 6 to Community law are to be read as including references to the requirement to achieve that much of the result.").
The noble Lord said: My Lords, I am afraid that I shall take a little longer to move this amendment than immediate previous amendments. Clause 99 includes a power for an Order in Council, or an order made by a Minister of the Crown, to provide that certain functions can be exercised separately in or as regards Scotland or within devolved competence. Among other things, this will enable the United Kingdom Government to split an international or European Community obligation which is expressed in quantitative terms, such as a target or ratio, in order to facilitate the transfer of part of that obligation to the Scottish Ministers. It also contains provision to ensure that the Secretary of State's powers of intervention under Clause 54 will be available to enforce the Scottish share of an international obligation.
As we indicated to the House at Committee stage, we have been considering whether anything more is required to ensure that the Scottish Ministers implement the Scottish share of a quantitative Community obligation. An example would be an EC quota for livestock subsidies. Noble Lords will recall that for the purposes of the Bill a Community obligation does not fall within the definition of an international obligation. Compliance by the Scottish Parliament and Ministers with Community law more generally would be a devolution issue in relation to which proceedings might be taken by the Law Officers. However, the Scottish share of a Community obligation which has been apportioned using Clause 99 might not itself be thought to be part of Community law. Government Amendment No. 202A deals with this problem. It provides that the references to Community law in Schedule 6, Clause 28(2)(d) and Clause 53(2) are to be read as including references to the requirement to achieve the Scottish share of such an obligation. The effect is that where the Scottish share of a quantitative EC obligation is transferred to the Scottish Ministers it will be regarded as a matter of Community law and can be enforced on the same basis as any other function of the Scottish Ministers in observing and implementing a Community obligation. This is in line with the approach which is adopted in the Government of Wales Act.
This amendment is necessary to complete the provisions which ensure that compliance by the Scottish Ministers with quantitative international and EC quotas can be enforced. I beg to move.
Lord Mackay of Ardbrecknish: My Lords, I became slightly lost in the middle of the explanation given by the Minister, although I believe that that was more my fault than his. Possibly I should read what he said. However, as this is Report stage it is more difficult to do that. As I understand the Minister, if for example the Community came to an agreement about pollution emissions which were divided up by a formula—I may have missed what that formula might be—between Scotland and England, Scotland would have to take whatever its share might be of the emissions reduction. But what if the English position was that they were putting out more of the foul substances than a comparative Scottish plant, in other words, the Scottish plant was cleaner than the English plant? The Scottish plant would still have to take a proportionate hit, so to speak, which might be much more difficult to achieve.
Perhaps I am missing something here but I think that there is a problem. This is more of a Committee point but these amendments have come forward on Report. I am not sure whether I can think of an example relating to fishing as it has already been divided into sea areas. Therefore I believe that that will be acceptable. I am concerned with emissions. I am reluctant to go too far into coal burn but electricity plants in Scotland on coal burn are perhaps cleaner than some comparative English plants. But they may have to take a bigger hit, which will be more difficult to achieve than, for example, making the
112
same savings in England. If the noble Lord cannot help me off the top of his head, perhaps he would write to me on that matter.
Lord Fraser of Carmyllie: My Lords, before the noble Lord responds, my noble friend has a good point. The issue of emissions is something to which I have referred previously. The exact allocation of responsibilities regarding emissions, whether under EU legislation or international obligation, is as yet unclear to me. The point of my intervention is to put down a marker for the last stage which we shall come to in this Bill. As I understand it, as far as electricity is concerned—not just the generation but the transmission—that is something which will remain the responsibility of the Westminster Parliament.
My further understanding is that as matters stand at present. those powers vested in the Secretary of State where it applies in Scotland are exercised not by the President of the Board of Trade or the Secretary of State for Trade and Industry but by the Secretary of State for Scotland. I am not clear at present as to where these responsibilities are to be divided. Will we see those powers, where they are to be applied in Scotland, exercised by some department other than the Secretary of State for Scotland, so long as he continues to be, or are they to be exercised by some other Secretary of State elsewhere in the Whitehall empire?
Lord Sewel: My Lords, perhaps I may try to respond to the legitimate points made by the two noble Lords. The noble Lord, Lord Mackay, helpfully used the example of emissions. One can see the ludicrousness of a straight pro-rata allocation if, for example, the stage was reached where there were no coal-burning power stations in Scotland and all of them were in England. There is no point in having a pro-rata allocation on that basis. The Scottish share would be something to be negotiated between UK and Scottish Ministers, taking into account their responsibilities and the proportionate contribution that Scotland and the rest of the United Kingdom make to the problem being tackled. Therefore, there is a strong requirement to reach a sensible accommodation and agreement.
The noble and learned Lord, Lord Fraser of Carmyllie, asks who at the end of the day will be responsible. Under Clause 54, the Secretary of State has powers of intervention. My understanding is that the Secretary of State would act in this way to require Scottish Ministers to accept and implement the quantitative obligations. If I am not correct about that, I will write to the noble Lord in good time. I do not wish to speculate but we all know that "Secretary of State" means any Secretary of State.
On Question, amendment agreed to.
10 p.m.
Clause 100 [Agreed redistribution of functions exercisable by the Scottish Ministers etc.]:
Lord Hardie Lord Hardie moved Amendment No. 202B:
Page 46, line 23, at end insert—
("(4) This section does not apply to any retained functions of the Lord Advocate which fall within section 48(6)(a).").
The noble and learned Lord said: My Lords, in Committee, amendments were brought forward which sought to exclude from the scope of Clause 100 certain functions exercisable by the Lord Advocate. We undertook to consider the matter further and this amendment reflects that further consideration. It provides that the functions exercisable by the Lord Advocate immediately before he ceases to be a Minister of the Crown will not be capable of being transferred to a UK Minister under this clause. This would include functions exercisable by the Lord Advocate in relation to criminal prosecutions and investigations of deaths in Scotland, as well as his law officer functions. As indicated in Committee, we accept that it is inconceivable that such functions should be transferred to a UK Minister and this amendment simply makes the matter clear on the face of the Bill. I beg to move.
Lord Mackay of Drumadoon: My Lords, I welcome the amendment, which reflects the concern expressed in Committee. I can well understand the noble and learned Lord when on this occasion he says that something is inconceivable. However, it is important that it is set out on the face of the Bill and I offer no opposition to the amendment.
On Question, amendment agreed to.
Clause 103 [Regulation of Tweed and Esk fisheries]:
Lord Monro of Langholm Lord Monro of Langholm moved Amendment No. 203:
Page 47, line 9, at beginning insert ("Subject to subsection (1A),").
The noble Lord said: My Lords, I shall speak also to Amendment No. 228. It relates to Clause 118 and highlights the word "Solway". I apologise to the noble Lord, Lord Mackay of Ardbrecknish, for being absent when he discussed the River Esk in Committee. I wish to deal with some of the points which were discussed in order to see whether the issue is any clearer. We are discussing the future management of the River Esk, or the Border Esk—certainly not the North or South Esk, as some noble Lords mentioned on the previous occasion.
The problem has been that during the past 20 years the North West Water Authority, then the National Rivers Authority and now the Environment Agency, has laid claim to the management of the River Esk right to its source. That means 90 per cent. in Scotland and about 10 per cent. in England. As that 90 per cent. flows through my former constituency I have been intimately involved in arguing the case over the years.
There is some misunderstanding, which was highlighted in the debate, in that for only a short distance is the River Esk the boundary between England and Scotland. It is entirely in Scotland to the junction of the River Liddel and shortly below that the whole river flows through England to the Solway. That is why those three organisations from England claim the management of the whole river from its source to its mouth in the Solway Firth.
The important point is that we must decide who will be in charge of the river. Will it start at the national boundary as the Scottish part will be entirely managed
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by Scotland, as recommended in my amendment, or will there be a joint management of the whole river, which in many ways would be to its benefit?
The problem has been that because the mouth is in England we are not entitled to have a salmon district fisheries board, which in most rivers in Scotland does so much to improve the angling propensities of the rivers through restocking and policing works by the bailiffs. Can the Minister say whether we in Scotland will have total control over the whole river or whether there will be a continuing argument between England and Scotland as to who has the right to manage it? This may seem to be a very parochial point but where I live in Dumfries this river is of immense importance for angling and for many other reasons.
How will this operate from next summer when the authority, I hope, gets control of the river in Scotland and the responsibility for the English part goes to England? And how are we going to look after the financial aspects of managing the river, with or without a district board, and rod licensing for the English or Scottish parts of the river?
On 8th October my noble friend Lord Mackay of Ardbrecknish raised the issue of rod licensing on this river. I have seen the letter in reply from the noble Lord, Lord Sewel, which indicates that consultations had been inconclusive. The letter states:
"Consequently the present arrangements under the Environment Agency will continue with the issue of rod licences remaining unchanged".
Does the Minister know what the position is at the present time, because it is extremely fluid? The three authorities in England—the water authority, the National Rivers Authority and the Environment Agency—all feel that legally they have the right to charge for rod licensing throughout the Scottish stretches of the river. I visited the chairmen of the two first boards and argued in depth that it would be quite unfair and that the River Esk would be the only river in Scotland to which rod licensing was applicable and that this would be a national disgrace in terms of a serious impost on local anglers. Those two authorities agreed that they would not push their right by legislation to have rod licensing, but it is still in place. I would like to be quite clear tonight that rod licensing will not be charged by an English authority on a length of the river in Scotland, because the legislation does not make it clear what the jurisdiction will be next summer.
To a degree, the problem has been resolved because, due to the removal of rates on fishing in Scotland, the riparian owners have put that money into managing the river, in exchange for not charging rod licences. However, I should like this matter to be cleared up tonight, if possible. A lot of the fishing is extremely inexpensive, as a result of the good work over many years of the two estates, and pensioners and residents fish at remarkably low cost. It would be a great pity if we were to run into an administrative hiccup because of the changeover of jurisdiction from England to the Scottish parliament.
I hope that we will not wait too long for an answer. In the letter to my noble friend Lord Mackay it was stated that any other decision should be deferred until

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the outcome of the ongoing review of English salmon legislation. Heaven knows, that has been permanently on the stocks for years and years, particularly in regard to the North East drift nets. When we get the answer relative to English salmon legislation that will go some way to clearing up the problems of the River Esk.
Lastly, the noble Baroness, Lady Ramsay, spoke at some length on the problem of the Solway Firth. She indicated that the Bill would establish a fixed boundary for the purposes of defining the border between England and Scotland. I wonder whether she has had any further thoughts as to how that is to be done bearing in mind that the centre of the channel is flexible and moves either side of the Solway Firth from year to year and month to month. It will be difficult to define that centre line. Shall we have a series of buoys? We can hardly expect policemen to go out with sextants and theodolites in order to try to decide what is the latitude and longitude of a national boundary in the middle of a firth.
We must try to find a solution because half netting is an extremely important industry and sport on the Solway. It must be policed and it will be impossible to do that if the policemen are unable to find out exactly where is the boundary between England and Scotland. A prosecution may fail because the fisherman will say he was either in England or Scotland. I wonder whether the Minister has had further thoughts as to how the boundary is to be defined in order to bring peace and quiet to what is the sometimes contentious issue of the Solway Firth.
I should be grateful for some further thoughts on how to resolve the difficulty between England and Scotland. At the moment we do not seem to have reached a happy conclusion despite the consultations which have taken place between the fisheries boards. I beg to move.
Viscount Thurso: My Lords, I was extremely interested to see this amendment on the Marshalled List. I am grateful to the noble Lord, Lord Monro of Langholm, for raising the question.
As I understood the quite lengthy debate we had in Committee, the result of that debate and the amendments brought forward by the Government put us in a position in which we should be able to accept the recommendations of the salmon strategy taskforce report of the noble Lord, Lord Nickson. It now appears that that is in some doubt. Therefore, I should be grateful to hear the clarification which the noble Lord, Lord Monro, has asked for. We support the recommendations in that report.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to my noble friend Lord Monro of Langholm for moving this amendment. He has explained the position with regard to the Esk in such a way that I need not add any more to it.
I was grateful to the noble Baroness for writing to me on the question of rod licences. I do not believe that she wrote to me about the more difficult question of the shifting sands of the Solway. I am not entirely sure whether the noble Baroness wrote to me on that because
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I received such a plethora of letters in the summer. I cannot find a letter about the Solway but I could not guarantee that I did not receive one. However, I certainly received a letter on rod licences for which I am grateful. I look forward to receiving the further clarification for which my noble friend asked.
I should like to move the River Esk downstream a little. The channel of the River Esk is not entirely obvious at high tide in the Solway. But is obvious at low tide, as I noticed when I flew over it today. It is ironic that the centre line of the River Esk forms the border between England and Scotland and, as my noble friend Lord Monro said, it can move. Not only can it move but it does so with the passage of time. Therefore, an area of sandbank can be in England at one stage but can end up a few decades later in Scotland and vice versa. As my noble friend explained, that is important from the point of view of knowing which particular country's salmon netting legislation is applicable.
It goes further than that because the estate at the top of the Solway—Castletown estate—has land boundaries which go out into the sea along the River Esk channel and along the River Eden channel until they meet just off Port Carlisle in the Solway.
As the position currently is, everything to the south of the channel of the River Esk is in England. If in fact some other fixed boundary is used other than the central line of the River Esk, it could easily move entirely into England or stay entirely in Scotland. Therefore the normally agreed position up until now as to the legality under Scottish or English law of net fishing in the Solway would change dramatically. Legislation or activities related to the boundary could be important for the estates that march along the Solway and for the people who have the netting rights.
It is important that we know from the Government that, if changes are to be made in the future—whichever government decide to make them; whether it be the Government of the United Kingdom masquerading as the Government of England or the government of Scotland—they will make sure that people on both sides of the Border know what has been proposed and are given an opportunity to respond. Clearly, if it is the Scottish government doing it, the people in England have no representation in the Scottish parliament.
We want an acknowledgement that any observations from people outside Scotland in relation to the Solway will be taken into account in any changes that are to be made and their legal interests will also be taken into account if any decisions are made to move from the more flexible boundary of the central line of the Esk to the fixed boundary which may be incorporated in future legislation.
10.15 p.m.
The Earl of Balfour: My Lords, I support my noble friend Lord Monro on this point. It was in the water Act that applied to England and Wales that the catchment areas of the River Esk were brought within the field of the National Rivers Authority. It was in that Act at that time that some of the misunderstandings as to where the boundary is placed were established.

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Perhaps I may also mention a rather peculiar problem that arises in today's Marshalled List. When we sat last Wednesday an amendment appeared in the Marshalled List in the name of the noble Lord, Lord Sewel, numbered 204A. It was quite short and read:
"Page 47, leave out line 34".
That line in the Bill reads,
"'enactment' includes one made under this Act".
Normally when an amendment is withdrawn—by whichever side of the Chamber—its number usually remains and after the number, in brackets, the word "withdrawn". Why on this occasion has Amendment No. 204A vanished? It was an amendment of some importance and I believe—here I am on dangerous ground—that the noble Lord, Lord Sewel, spoke to that amendment with Amendment No. 140A. On that I may be wrong, but I am extremely curious at this point.
Lord Sewel: My Lords, it seems that we do not have the ever-shrinking parliament, but we now have the ever-vanishing amendment. I shall try to sort that out in the course of time.
I recognise that the purpose of the amendments tabled by the noble Lord, Lord Monro of Langholm, appears clear-cut and that they are based on his considerable experience and understanding of the position with regard to the River Esk. Clearly, the intention is to bestow on the Scottish parliament competence to legislate on the management, in the widest sense, of freshwater fish in that section of the Border Esk which flows within Scotland. But I fear the amendments misunderstand the purpose of Clause 103 and overlook what is already permissible and intended under the Bill.
Fishery matters which the amendments address are not reserved under the Bill. Consequently a Scottish parliament will be able to take the action which the amendments propose, subject to the limits on its competence set out in Clause 28. Incidentally, the same applies to that part of the Tweed which flows within Scotland.
What Clause 103 seeks to do in addition—and I stress "in addition"—is to provide a framework for both Parliaments, acting jointly, to legislate for the total lengths of the Border rivers and to establish a common statutory framework for fisheries management in those rivers that is the same in Scots law as in the law south of the Border. That represents a recognition—it is an important recognition—that sound and effective management, conservation and exploitation needs to be considered on a whole river catchment basis. At least we are providing the framework. We cannot bring it about in the Bill, but we are providing the framework which will enable a whole river catchment basis to be put in place. That is a useful advance on the present status. On rod charging, I shall have to return to the details and I shall then write to the noble Lord, Lord Monro.
Perhaps I may turn to the great story of the Solway boundary. I used to know the answer to this, but it is a little bit like the Schleswig-Holstein question: of those who did know it, one died, one went mad and the other has forgotten it. I think I am the one who has forgotten
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it. However, I do have some assistance here. As both noble Lords have indicated, we have effectively had a shifting boundary in the Solway which has considerable implications for the effective management of, in particular, the area's salmon fisheries. It is perhaps difficult to understand a shifting international boundary—or rather, a shifting national boundary—
A noble Lord: My Lords, it will be "international"!
Lord Sewel: My Lords, not if we have anything to do with it!
I announced last year that the Government would be investigating the option of establishing a fixed boundary in the Solway Firth. That was the initiative that my noble friend Lady Ramsay mentioned at an earlier stage. In Clause 118(2) we have provided for establishing a fixed boundary for the purposes of defining "Scotland", as that term is used in the Bill. We shall not directly alter the boundary as it may be understood in common law. However, we shall provide a basis for establishing the jurisdiction of any future laws that may be made for England or Scotland, including any powers or duties that may be necessary to enforce regulations established by Order in Council under Clause 103.
I believe that this measure is welcomed by all responsible bodies in that area. Taken together with the provisions in Clause 103 which allow a clear legal framework to be established for freshwater fisheries management in the area, I believe that in time we shall see a satisfactory resolution of the outstanding issues on salmon fisheries management in the Solway Firth. As both noble Lords indicated, there have been long-running problems in that particular area. I am not saying that this devolution Bill for Scotland solves them all, but it helpfully provides a way forward.
Perhaps I may now reply to the noble Earl, Lord Balfour. It is an extremely helpful contribution that I am about to make. I understand that the matter was debated last week. Now we have a phrase which will cause some amusement. The amendment was not "actively withdrawn." There is no known reason why it should have disappeared. We shall investigate. I thank the noble Earl most sincerely for his contribution. He may be hearing more later. I certainly hope that I shall. On that basis, I hope that the noble Lord will withdraw his amendment.
Lord Monro of Langholm: My Lords, I am grateful to the Minister for his good humoured reply. Will he ask his fisheries department to continue negotiating with the MAFF fisheries department so that there is not a complete void next summer. Maybe there will be some light at the end of the tunnel. I appreciate the complications. I have been deeply involved in them umpteen times. We always fall down at the end of the day, but this time we have to get it right. I am grateful to the Minister and his department for the efforts they have made. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 204 not moved.]
Clause 104 [Subordinate legislation: general]:
Lord Sewel Lord Sewel moved Amendment No. 205:
Page 48, line 28, leave out subsection (6).
On Question, amendment agreed to.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 205ZA:
Page 48, line 35, at end insert—
("( ) The standing orders of the Parliament shall include provision for the exercise of appropriate control by the Parliament over the passage of delegated legislation created by a Scottish Minister by virtue of this Act or under powers conferred by the Parliament.").
The noble Lord said: My Lords, this amendment takes us into Schedule 7 although the amendment itself refers to Clause 104. When I was considering the schedule last Thursday and looking at the various provisions for affirmative and negative orders, as we understand them in this Parliament, I wondered where provision was made in the Bill for similar procedures in the Scottish parliament. I could not find any such provision setting out that secondary legislation had to be dealt with by either affirmative or negative procedures or saying that standing orders had to be devised to deal with secondary legislation along the lines of the affirmative and negative procedures.
The reason why this is important is that in paragraph 2 of Schedule 7 the types of procedure are listed. They include the ones we know about. Perhaps I may just read out one of them, which is Type A. It states:
"No recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument—
(a) has been laid before, and approved by resolution of, each House of Parliament".
That is clear as regards this Parliament. Type E, for example, must be financial. It is an affirmative resolution of the House of Commons. Others relate to either House. We know exactly what is meant because the procedures here on how we deal with secondary legislation are well established. It is either by the affirmative procedure which, as noble Lords know, means that the Government have to table a Motion and find time for a debate. In the other place a Division has to be won on that debate if one is called. In your Lordships' House there is the convention that the House is not divided on secondary legislation.
There is the negative procedure under which a vast array of orders are made. Essentially, it is for the Opposition or an aggrieved Member to put down a Prayer saying, "Please annul these." If nobody tables a Prayer, then after, I believe, 40 days, they simply pass into law. That is the negative procedure. It is less taxing because the Government obviously do not have to find time to debate either on the Floor of the other place, in Committee, or in your Lordships' House, the piece of secondary legislation.
As I understand Schedule 7, it assumes that the same kind of procedures will apply in the Scottish parliament. For example, in Type A, in addition to there being the affirmative procedure in each House of Parliament, both
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in the Commons and in your Lordships' House, the instrument also has to be laid before and approved by resolution of the parliament—in other words, the Scottish parliament. Type D specifically concerns the Scottish parliament. The instrument has to be laid before, and approved by resolution of, the parliament. Type J is the negative procedure. Schedule 7 states:
"The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of the Parliament".
That is the negative procedure. But nowhere can I find any provision in the Bill that the Scottish parliament has to have these procedures and that the standing orders should contain such provision.
My amendment may not be necessary. However, if I am right and there is no provision in the Bill, perhaps my amendment is necessary. My amendment does not lay down the detail of what the parliament should do. It simply says:
"The standing orders … shall include provision for the exercise of appropriate control by the Parliament over the passage of delegated legislation … by virtue of this Act or under powers conferred by the Parliament".
By that I mean that, in order to accord with the types of procedure laid down in Schedule 7, the standing orders will have to make provision in the Scottish parliament for similar types of procedures to those to which we are accustomed in the Westminster Parliament.
This has been a quite convoluted explanation. Perhaps the Minister will tell me that I have misread the Bill and that the provision is there. I shall then be satisfied. But if it is not there, I suggest that it ought to be there and that we ought to consider that very seriously. I beg to move.
10.30 p.m.
Baroness Ramsay of Cartvale: My Lords, we have now had a number of debates about what is appropriate for this Parliament to require the Scottish parliament to include in its standing orders. This amendment raises another point on what in fact is familiar ground, although the noble Lord has raised specific points about the affirmative and negative procedure with which I should perhaps deal right away.
The transitional provision will be made under Clause 121, expanding on what is meant by affirmative and negative procedure in the Scottish parliament under the Statutory Instruments Act 1946. It will be applied with modifications until the Scottish parliament makes its own provision. While the Bill requires standing orders to address a number of aspects to do with the passage of primary legislation, we think it has been quite properly silent on the procedures for secondary legislation. The noble Lord, Lord Mackay, is looking puzzled. Am I not addressing the points he was making?
Lord Mackay of Ardbrecknish: My Lords, perhaps the noble Baroness would like to repeat that last sentence. I was busy trying to read Clause 121.
Baroness Ramsay of Cartvale: My Lords, I am sorry. I thought the noble Lord looked as if he was about to intervene with a query. While the Bill requires

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standing orders to address a number of aspects to do with the passage of primary legislation, as I have said many times at earlier stages of the Bill we think it is quite properly silent on the procedures for secondary legislation.
I entirely agree with the noble Lord that it is important that the Scottish parliament should exercise appropriate control over the passage of delegated legislation. I do not think anyone would be in dispute about that. The Delegated Powers and Deregulation Committee accepted that it would be for the parliament to decide, in the face of each new delegated legislative power, what was the right measure of scrutiny and control. The committee did not make a recommendation but it made a suggestion that the House might wish to consider whether Schedule 3 standing orders should be amended to make plain that standing orders will address this issue. We gave careful consideration to the suggestion of the Select Committee—I repeat that it was only a suggestion—that Schedule 3 should be amended to make plain that the standing orders would address the issue of scrutiny of secondary legislation.
Moreover, as I promised the noble Lord, Lord Mackay, and indeed other noble Lords in Committee, we looked most carefully at the whole subject again and considered what was said at that time. However, I have to say that we have concluded that detailed parliamentary procedures are better left to the Scottish parliament to devise. We think it right that it should be able to decide its procedure for itself. We believe that the parliament will act maturely and responsibly in this area, as, indeed, in others. As we are devolving power to the parliament, we believe that we should allow it to have the discretion to exercise its power over subordinate legislation wisely and that we should trust it to exercise that power properly. We are sure that we can rely on the parliament to make provision for the scrutiny of subordinate legislation in its standing orders.
I should add that the Statutory Instruments Act 1946, which makes detailed provision as to affirmative and negative procedure in this Parliament, will be applied in relation to subordinate legislation subject to the affirmative or negative procedure in the Scottish parliament until the latter makes its own provision. In view of that explanation, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Mackay of Ardbrecknish: My Lords, clearly I have stumbled across something that was of some interest. As far as I understand what the noble Baroness said, the transitional arrangements will be covered by Clause 121 and existing legislation of the UK Parliament. Therefore, the types of procedures contained in paragraph 2 of Schedule 7 will be dealt with by that means. However, beyond that transitional position I become somewhat worried. The noble Baroness reminded me that, although the Delegated Powers and Deregulation Committee pointed this out, the Government decided that they did not need to take any steps looking beyond the transitional period. Yet beyond that period, I presume that Schedule 7 would still rule and the types of procedures there would have to be undertaken by the Scottish parliament. Therefore, in a way we are dictating to the Scottish parliament that it
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will be required to have secondary legislation along the lines of the types of procedure laid out in paragraph 2 of the schedule.
I am a little puzzled about the latter. It does not seem to me to be right that the Bill can be silent into the future about what should be contained in standing orders with regard at least to the broad-brush approach of secondary legislation; namely, that there should be provision of some kind for something which looks like affirmative orders, as witness Type D in paragraph 2, and something that looks like negative procedure, as witness Type J. To be honest, I am reticent to back off from my very non-prescriptive amendment because this does leave the decisions to the Scottish parliament while making it clear that it has to bring forward standing orders to exercise the appropriate control. It does not seem to me to be any more prescriptive than Clause 34 with regard to the general debates on Bills.
As I said, I am almost reluctant to let this one go at this time of night. But I think that the best I can do is to study the noble Baroness's response and perhaps return to the matter on Third Reading if I still feel that something is not quite right. Indeed, I am almost tempted to see how many of your Lordships are still here at this time of night, but that would preclude me from returning to the matter once I have studied the Minister's response and taken some advice upon it. Therefore, in order to try to get the Bill right as far as concerns the Scottish parliament, I shall read the Government's reply. If anything else has to come to help me in that respect by way of a letter, it had better come quickly before this Thursday when I shall decide what to do for next Monday. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 105 [Subordinate legislation: scope of powers]:
Lord Sewel Lord Sewel moved Amendment No. 205A:
Page 49, line 10, at end insert—
("(5A) But a power to modify enactments does not (unless otherwise stated) extend to making modifications of this Act or subordinate legislation under it.").
On Question, amendment agreed to.
[Amendment No. 206 not moved.]
Schedule 7 [Procedure for subordinate legislation]:
Lord Sewel Lord Sewel moved Amendment No. 206A:
Page 93, line 3, at end insert—

("Section 52(2)

Type G")

On Question, amendment agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 206B:
Page 93, line 4, column 2, leave out ("I") and insert ("C").
The noble and learned Lord said: My Lords, Amendment No. 206B is grouped with another six amendments which seek to make amendments to the provisions of Schedule 7 of the Bill, which, as your Lordships will recall, was introduced into the Bill not so long ago when the Government helpfully amended

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the provisions dealing with subordinate legislation and made them more intelligible for the lay reader and the lawyer reader too.
I seek to make a number of amendments as to the kind of procedure that ought to be followed when dealing with seven of the order making powers. Amendment No. 206B deals with the order making power under Clause 54 of the Bill, which your Lordships will appreciate is an important order making power. It gives to the Secretary of State power to take action by means of an order when he believes that an,
"action proposed to be taken by a member of the Scottish Executive would be incompatible with … international obligations".
Equally, he has an order making power when he has,
"reasonable grounds to believe that any action capable of being taken by a member of the Scottish Executive"
has not been taken. He has power to direct that,
"the action shall be taken".
Clause 54(3) on page 24 of the Bill states that "action" can include,
"making, confirming or approving subordinate legislation",
or introducing a Bill into the parliament.
As presently drafted, the Bill would allow that order to be made by Type I procedure; namely, that,
"The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of either House of Parliament".
Having regard to the significant nature of the order making powers under Clause 54, I believe that if they are used or are threatened with being used, they could give rise to a major dispute between the Secretary of State on the one hand and the Scottish executive on the other. It seems appropriate that that should be done by Type C procedure, the affirmative resolution procedure. I refer to Amendment No. 206B.
It may be convenient to discuss the next two amendments in the group together. They deal with Clauses 84 and 85, which touch on the subject of cross-Border public authorities, their initial status and also the power to adapt them. I propose that in the first of the two amendments, the Type I procedure should again be replaced by a Type C procedure; namely, the approval by affirmative resolution. In the latter amendment I propose that it should be replaced by Type A procedure, that is an Order in Council, that requires a draft of the instrument to be approved by resolution of each House of Parliament and also approved by resolution of the parliament itself. One suspects that while these cross-Border public authorities may be a useful device to enable the British Government, the Scottish executive and other public authorities to co-operate for the benefit of all, they will nevertheless give rise to some sensitivities. I believe it is sensible that the order making powers should be subject to the alterations of procedure I propose.
I turn now to Amendments Nos. 206G to 206K. These deal with the order-making powers to be found in Clauses 94, 97, 98 and 99. We have discussed these in relation to earlier amendments. They deal with the
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power to make subordinate legislation when it is thought necessary or expedient in the circumstances set out in the clauses.
As presently drafted, these proposals would be subject to Type G procedure: the instrument containing the legislation, if made without a draft having been approved by resolution of each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House. I suggest that no Minister of the Crown is to make the legislation unless a draft has been laid before and approved by a resolution of the House of Commons.
I readily accept that these amendments go somewhat further than the views expressed by the Delegated Powers and Deregulation Committee. However, I propose them having spent a number of hours preparing for and taking part in debates in this House in relation to these various order-making powers. I put them forward as appropriate and, to quote the terms of Clause 94, "necessary or expedient". I beg to move.
Baroness Ramsay of Cartvale: My Lords, this set of amendments is clearly aimed at requiring subordinate legislation under certain provisions in the Bill to be subject to affirmative rather than negative resolution procedure.
The general thrust of the amendments is to require a higher level of procedure than in this Parliament for various orders. We gave careful consideration to the procedure which should apply to each order under the Bill. That is one of the reasons why both the original provisions governing procedure and the new provisions substituted at Committee stage are so complex. It is also worth recalling, as the noble and learned Lord himself pointed out, that the Delegated Powers and Deregulation Committee—the body set up by this House to consider the appropriateness of the degree of parliamentary scrutiny given to delegated powers—has reported on both the Bill and the amendments we have made to it and did not suggest the sort of changes of procedure that are sought by these amendments.
The committee did suggest that affirmative resolution procedure should be used for orders which amend primary legislation—a recommendation that we were pleased to take on board and which is manifested in paragraph 3 of Schedule 7.
There is no doubt that many uses of the powers dealt with in these amendments will be important, but that does not mean that affirmative resolution procedure is necessary on every occasion. In some cases a requirement for affirmative resolution procedure could be harmful. As we explained in the memorandum to the Delegated Powers and Deregulation Committee, we do not think it appropriate that the orders under Clause 54 should be subject to affirmative procedure, as would be required by Amendment No. 206B. Such orders would need to be made quickly to avoid uncertainty and possibly damaging effects. It would be very difficult for an affirmative instrument to be drafted, laid, debated by both Houses of Parliament and made quickly, even assuming that Parliament was sitting. Drafts of an affirmative instrument can be laid only when Parliament

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is sitting. That could give rise to difficulty if, say, subordinate legislation had been made by a member of the Scottish executive at the time of the parliamentary Recess at Westminster and the Secretary of State wanted to make an order under Clause 54.
I know that the noble and learned Lord has faith, as we all do, in the work of the Delegated Powers and Deregulation Committee. The committee deliberated on four occasions before producing its report on the Bill. I believe that we should rely on and accept the results of that detailed scrutiny as we have done in bringing forward our suite of amendments at Committee stage.
I also suggest to the noble and learned Lord that he may have inadvertently chosen a type of procedure in Amendment No. 206C that is applicable to ministerial orders and not Orders in Council. However, that is a side issue. I hope that, in view of what I have said, the noble and learned Lord will feel able to withdraw his amendment.
Lord Mackay of Drumadoon: I am grateful to the noble Baroness for explaining the Government's position. I would be more persuaded of the argument about following the advice of the Delegated Powers and Deregulation Committee had the Government been prepared to follow that committee's advice about the Human Rights Bill on Thursday afternoon. However, as the noble Baroness had no responsibility for that, I will not pull her leg too unmercifully about it.
I have a concern about Section 54 orders. I accept that there may be a need for urgency, but they are of a highly sensitive nature and in five, 10 or 20 years' time it may be interesting to look back and see how many of these are made in the parliamentary Recess and how many when Parliament is sitting.
I recognise that the committee would not accept these amendments as necessary and, for that reason, I beg leave to withdraw Amendment No. 206B.
Amendment, by leave, withdrawn.
[Amendments Nos. 206C and 206D not moved.]
Lord Sewel Lord Sewel moved Amendments Nos. 206E and 206F:
Page 93, line 13, at end insert—

("Section (Agency arrangements)

Type H")

Page 93, line 13, at end insert—

("Section (Assistance for opposition parties)

Type A")

On Question, amendments agreed to.
[Amendments Nos. 206G to 206K not moved.]
Clause 110 [Subordinate instruments]:
Lord Sewel Lord Sewel moved Amendments Nos. 206L and 206M:
Page 51, line 37, leave out from ("authority") to ("and") in line 38 and insert ("with mixed functions or no reserved functions,").
Page 52, line 2, leave out from ("authority") to ("and") in line 3 and insert ("with mixed functions or no reserved functions,").
On Question, amendments agreed to.
Clause 111 [Consolidated Fund etc.]:
Lord Sewel Lord Sewel moved Amendment No. 206N:
Page 52, line 19, leave out from ("authority") to end of line 20 and insert ("with mixed functions or no reserved functions.").
On Question, amendment agreed to.
Clause 116 [Modification of sections 109 to 114]:
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 206P:
Page 54, line 5, after ("sections") insert (" 89 and").
The noble Baroness said: In moving Amendment No. 206P, I shall speak also to Amendment No. 206Q. These are technical amendments which add Clause 89 to the list of general modification clauses which subordinate legislation under the Bill may disapply or modify in particular cases. Clause 89 was overlooked because it does not appear alongside the other general modification clauses, namely Clauses 109 to 114, in the Bill. I will expand on the matter if noble Lords wish me to do so. I beg to move.
On Question, amendment agreed to.
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 206Q:
Page 54, line 9, after ("sections") insert (" 89 and").
On Question, amendment agreed to.
Schedule 4 [Enactments etc. protected from modification]:
Lord Sewel Lord Sewel moved Amendment No. 206R:
Page 65, leave out lines 8 to 40 and insert—
("PART I
THE PROTECTED PROVISIONS
Particular enactments
1.—(1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, any of the following provisions.
(2) The provisions are—

(a) Articles 4 and 6 of the Union with Scotland Act 1706 and of the Union with England Act 1707 so far as they relate to freedom of trade,

(b) the Private Legislation Procedure (Scotland) Act 1936.

(c) the following provisions of the European Communities Act 1972—

Section 1 and Schedule 1,
Section 2, other than subsection (2), the words following "such Community obligation" in subsection (3) and the words "subject to Schedule 2 to this Act" in subsection (4),
Section 3(1) and (2),
Section 11(2),

(d) paragraphs 5(3)(b) and 15(4)(b) of Schedule 32 to the Local Government, Planning and Land Act 1980 (designation of enterprise zones),

(e) sections 140A to 140G of the Social Security Administration Act 1992 (rent rebate and rent allowance subsidy and council tax benefit),

(f) the Human Rights Act 1998.

The law on reserved matters
2.—(1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters.").
The noble Lord said: In moving Amendment No. 206R, I shall speak also to government Amendments Nos. 206S to 206W. This is a suite of technical amendments to Schedule 4. I hope to be brief, but I can supply further detail about particular provisions if noble Lords would find that helpful.
As noble Lords will be aware, Schedule 4 sets out restrictions upon the ability of the Scottish parliament to modify the Bill itself, certain other enactments and the law on reserved matters. These amendments clarify both the wording and the format of the schedule. For example, they ensure that, where the schedule prevents an Act of the Scottish parliament from modifying an enactment, it should, except in certain cases, also prevent ministerial functions conferred by that enactment from transferring to the Scottish Ministers.
The amendments ensure that the parliament can legislate about its own protections from judicial proceedings, as has been referred to earlier. The amendments also ensure that the restrictions in the schedule do not unduly limit the competence of the Scottish parliament to legislate about its own subordinate legislation procedure or about the fulfilment of the requirements of Clause 66 on financial control and Clause 87 on maladministration.
Finally, the amendments prevent modification of the powers which UK Ministers share with the Scottish Ministers by virtue of Clause 52 and of certain provisions of social security legislation. That will ensure that the ministerial functions of funding council tax benefit and housing benefit remain with the UK Government rather than being caught by the general devolution of the funding of local authorities and Scottish Homes. I beg to move.
Lord Mackay of Ardbrecknish: My Lords, amendments that spread over four pages of the Marshalled List can hardly be described as technical amendments. Equally, amendments that delete a whole chunk of a schedule and replace it with a lot more words cannot be described as technical. These amendments came into our hands only towards the end of last week and we have not yet had time fully to study them. Their purpose is to make clear on the face of the Bill—to that extent they are welcome—that the Scottish parliament cannot modify either by primary legislation or subordinate legislation a number of provisions. I cannot help noticing that the very first ones are Articles 4 and 6 of the Union with Scotland Act 1706 and the Union with England Act 1707. The fact that the Scottish parliament cannot change important Acts that brought about the United Kingdom is some progress. I understand that the Social Security Administration Act that the Minister has discussed and this Bill when it becomes an Act cannot be changed. I also note that judicial salaries cannot be changed. That does not surprise me given the difficulty that the Government had with the judges this afternoon.
However, my heart lightened somewhat when I reached paragraph 13. That does not prevent an Act of a Scottish parliament to amend any of the titles there
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referred to. I thought that at last there was progress and that the Scottish parliament would be able to decide that there should be a Premier and not a First Minister or that there should be a Speaker and not a presiding officer, or any of the other silly titles that the Government propose to give leading figures in the Scottish parliament. But I then read that it is not to do with any of them since the amendment does not relate to ministerial office or any member of the staff of the Scottish administration. Therefore, while I understand that the Scottish parliament can change the titles of any court or tribunal or any judge, chairman or officer of a court or tribunal, or the holder of any office in the Scottish administration, which is not a ministerial office, or any member of the staff of the Scottish administration, or any register, it will not be able to call the presiding officer the Speaker or the First Minister anything other than the First Minister. My heart dropped when I saw that.
I note the absence of the noble Lord, Lord Steel of Aikwood, who I believe has more important duties today than participation in the Scotland Bill. He is taking part in a car rally throughout Africa, which some people in Scotland may find hard to believe is more important than the Scotland Bill. I did not believe that the Liberal Democrats thought that there was anything more important than this Bill.
To show that I have read it I make these observations. We shall study the detail with some care before next Monday. However, in so far as it prevents the Scottish parliament doing certain things that may bring about the end of the Union we probably agree with the Government.
Before I conclude, I commiserate with the Minister on having to withdraw from the battle to secure a first-past-the-post seat in the Scottish parliament. Perhaps we should table an amendment to ensure that he gains a top position in the top-up list in recognition of the sterling work that he has done on this Bill.
Lord Sewel: My Lords, I should correct the noble Lord on a point of fact. He said that the Government had had trouble with the judges earlier this evening. It was not so much the judges who caused trouble as our old friends the hereditary Peers. We won the Division with the life Peers.
On Question, amendment agreed to.
Lord Sewel Lord Sewel moved Amendments Nos.206S to 206W:
Page 66, line 2, at end insert—
("and in this sub-paragraph "Act of Parliament" does not include this Act").
Page 66, leave out lines 13 to 17.
Page 66, leave out line 20 and insert ("Paragraph 2 does not apply to").
Page 66, line 22, after ("by") insert ("virtue or).
Page 66, line 31, leave out from beginning to end of line 27 on page 67 and insert—
("8.—(1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, this Act.
(2) This paragraph does not apply to modifying sections 1(4), 16(5), 20(6), 22(7), 23(9), 27(5), (Proceedings by or against the Parliament etc.) to 39, (Validity of acts of Scottish Ministers etc.), 81 and (Agency arrangements) and paragraphs 4(1), (2) and (2A) and 6(1) of Schedule 2.
(3) This paragraph does not apply to modifying any provision of this Act (other than sections 60(7), 62(2), 67(5), 73, 74 and 111) which—

(a) charges any sum on the Scottish Consolidated Fund,

(b) requires any sum to be paid out of that Fund without further approval, or

(c) requires or authorises the payment of any sum into that Fund.

(4) This paragraph does not apply to any modifications of Part III which are necessary or expedient for the purpose or in consequence of the establishment of a new fund, in addition to the Scottish Consolidated Fund, out of which loans may be made by the Scottish Ministers.
(5) This paragraph does not apply to—

(a) modifying so much of any enactment as is modified by this Act.

(b) repealing so much of any provision of this Act as amends any enactment, if the provision ceases to have effect in consequence of any enactment comprised in or made under an Act of the Scottish Parliament.

Enactments modified by this Act
9. An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify—

(a) the effect of section 111(3) in relation to any provision of an Act of Parliament relating to judicial salaries,

(b) so much of any enactment as

(i) is amended by paragraph 2, 6 or 30 of Schedule 8, and

(ii) relates to the Advocate General,

(c) so much of any enactment as is amended by paragraph 8(b) or 27 of Schedule 8.

Shared powers
10. An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, any enactment so far as the enactment relates to powers exercisable by a Minister of the Crown by virtue of section 52.
PART II
GENERAL EXCEPTIONS
Restatement, etc.
11.—(1) Part I of 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 that Part), or

(b) repealing any spent enactment, or conferring power by subordinate legislation to do so.

(2) For the purposes of paragraph 2, 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.
Effect of Interpretation Act 1978
12. Part I of this Schedule does not prevent the operation of any provision of the Interpretation Act 1978.
Change of title etc.
13.—(l) Part I of this Schedule does not prevent an Act of the Scottish Parliament amending, or conferring power by subordinate legislation to amend, any enactment by changing—

(a) any of the titles referred to in sub-paragraph (2), or

(b) any reference to a declarator,

in consequence of any provision made by or under an Act of the Scottish Parliament.
(2) The titles are those 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.

Accounts and audit and maladministration
14. Part I of this Schedule does not prevent an Act of the Scottish Parliament modifying, or conferring power by subordinate legislation to modify, any enactment for or in connection with the purposes of section 66 or 87.
Subordinate legislation
15.—(1) Part I of this Schedule does not prevent an Act of the Scottish Parliament modifying, or conferring power by subordinate legislation to modify, any enactment for or in connection with any of the following purposes.
(2) Those purposes are—

(a) making different provision in respect of the document by which a power to make subordinate legislation within sub-paragraph (3) is to be exercised.

(b) making different provision (or no provision) for the procedure, in relation to the Parliament, to which legislation made in the exercise of such a power (or the instrument or other document in which it is contained) is to be subject,

(c) applying any enactment comprised in or made under an Act of the Scottish Parliament relating to the documents by which such powers may be exercised.

(3) The power to make the subordinate legislation, or a power to confirm or approve the legislation, must be exercisable by—

(a) a member of the Scottish Executive.

(b) any Scottish public authority with mixed functions or no reserved functions,

(c) any other person (not being a Minister of the Crown) within devolved competence.

PART III
ADAPTATION OF SECTIONS 49 AND 50
16.—(1) This paragraph applies to a function which (apart from this Schedule) would be transferred to the Scottish Ministers by virtue of section 49(2)(b).
(2) If, because of anything in Part I of this Schedule, a provision of an Act of the Scottish Parliament modifying an enactment so as to provide for the function to be exercisable by a different person would be outside the legislative competence of the Parliament, the function is not so transferred.
17.—(1) Paragraph 16 does not apply to any function conferred by any provision of—

(a) the European Communities Act 1972,

(b) the Human Rights Act 1998, except sections 1, 5, 14 to 17 and 22 of that Act,

(c) the law on reserved matters (for the purposes of paragraph 2) so far as contained in an enactment.

(2) For the purpose of determining—

(a) whether any function under any of the provisions referred to in sub-paragraph (1) is transferred to the Scottish Ministers by virtue of section 49, and

(b) the extent to which any such function (other than a function of making, confirming or approving subordinate legislation) is exercisable by them,

the references in section 50 to the legislative competence of the Parliament are to be read as if section 28(2)(c) were omitted.
(3) Part I of this Schedule does not prevent an Act of the Scottish Parliament modifying, or conferring power by subordinate legislation to modify, any of the provisions mentioned in
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sub-paragraph (1) so as to provide for a function transferred to the Scottish Ministers by virtue of section 49 to be exercisable by a different person.").
On Question, amendments agreed to.
Lord Hunt of Kings Heath: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly and, on Question, Motion agreed to.
House adjourned at eleven o'clock.