Lords Sitting of 9 November 1998

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Southwell.
The Earl of Dunmore—Sat first in Parliament after the death of his father.

Royal Assent
The Chairman of Committees (Lord Boston of Faversham): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Competition Act

Human Rights Act.

Supermarkets: Overpricing
2.37 p.m.
Lord Razzall Lord Razzall asked Her Majesty's Government:
What measures they are taking to prevent any overpricing of goods by the major supermarket chains.
Lord McIntosh of Haringey: My Lords, this Government do not want to see consumers paying high prices as a result of anti-competitive practices. The Director-General of Fair Trading has powers to investigate if prices appear to be the result of anti-competitive behaviour. He is currently investigating the profitability of the major supermarket chains in the grocery sector.
Lord Razzall: My Lords, I thank the Minister for that Answer, which is not entirely unexpected. However, is he aware, first, that one of the national newspapers has for some time been running a significant campaign demonstrating over-charging by the major supermarkets? Secondly, is he aware that the Office of Fair Trading has already produced a document entitled The welfare consequences of the exercise of buyer power, which deals with a number of these issues? Thirdly, is he aware that there are strong reports in the press that the Chancellor of the Exchequer has established a "supermarket hotline"—the equivalent of the cones hotline, although, it is to be hoped, more successful than that proved to be—to examine these issues?
Lord McIntosh of Haringey: My Lords, in accordance with the conventions of the House, I shall answer the first two questions. I assume that the first refers to the Daily Express, which has indeed been carrying out a campaign. When I last looked at the Daily
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Express, its method of estimating differences in prices between the United Kingdom and other European countries was to send five families out to different countries and different supermarkets. As a survey researcher, I do not think much of that as methodology.
As to the noble Lord's second question, yes, I am aware of the pamphlet referred to; I have read it. It does not, of course, represent the official views of the Office of Fair Trading.
Baroness Trumpington: My Lords, does the noble Lord agree that to a farmer anti-competitive pricing would be like a red rag to a bull? Is he aware that there is much feeling among the hard-pressed farming community that supermarkets have not lowered their prices compared to those that farmers receive for their goods?
Lord McIntosh of Haringey: Yes, my Lords, I am very much aware of that. The noble Baroness may be interested to know that the Minister of Agriculture saw the heads of the most important supermarket grocery chains last week, together with the British Retail Consortium. He impressed upon them the need for a fair differential between prices at the farm gate, so to speak, and on the shelf. As a result, some changes in supermarket practices, particularly in the sale and import of pig meat, were made.
Lord Marsh: My Lords, will the noble Lord give the House some indication as to what are the criteria that enable a distinction to be made between legitimate competitive pricing and over-pricing?
Lord McIntosh of Haringey: My Lords, there is no single criterion which can be laid down. That is why the Office of Fair Trading is carrying out an investigation now and why it has carried out comparable investigations on a number of occasions in the past. One of the difficulties is that supermarkets are sometimes accused of anti-competitive pricing, in the sense of charging too much; but then they are sometimes accused of predatory pricing compared with the small shops, in which case they are accused of charging too little.
Lord Graham of Edmonton: My Lords, does the Minister agree that a fairer comparison of supermarket pricing policy would be to use the criterion of return on capital employed? It would show that British supermarkets have a return of 14 per cent., 7 per cent. less than food retailers on the Continent.
Lord McIntosh of Haringey: My Lords, I am aware that the British Retail Consortium has argued that return on capital employed is a fairer judgment than net margins. I read the report to which the noble Lord, Lord Razzall, referred. It dealt with the increase in net margins for food retailers and shows an increase in net margins. I hear what my noble friend says about return on capital employed—and I do not contest what he said—but there is here a conflict which is not easy to resolve.
Baroness Oppenheim-Barnes: My Lords, is the Minister aware that some of the reports in the Daily Express which compare prices here with those in the United States suggest that theirs are lower because supermarkets in the United States are much more price-driven than those in this country and the rest of Europe? However, the standards and quality are lower and there is far less service.
Lord McIntosh of Haringey: My Lords, that is not my personal experience. In terms of quality and presentation, some of the best shops and supermarkets I have ever been to have been in the United States.
Lord Dixon-Smith: My Lords, an acquaintance of mine recently took a sheep to market and sold it for £28. He then went immediately to the nearest supermarket in an attempt to buy, so to speak, the same sheep back. He found that it cost him £128. I am well aware that there are many steps between those two prices, but does the Minister feel that that kind of increase is reasonable?
Lord McIntosh of Haringey: My Lords, I shall not comment on the price in an individual case about which I know no more than the noble Lord, Lord Dixon-Smith, has told me. However, he will recognise that between the price at the farm gate or the market—that is the price the farmer receives—and the price the consumer ultimately pays there is a whole range of costs for distribution, marketing, preparation and so on which affect the final price. That is what the Office of Fair Trading is investigating.
Lord Mackie of Benshie: My Lords, is the Minister aware that the figures quoted by the noble Lord, Lord Dixon-Smith, in an individual case are borne out by much wider figures for the lamb industry generally?
Lord McIntosh of Haringey: My Lords, I do not deny that. I am sure that many noble Lords, particularly those in this House, could produce circumstantial evidence. I have just been guilty of giving circumstantial evidence on supermarket quality in the United States, so I cannot complain.
Lord Montague of Oxford: My Lords, does the Minister agree that comparisons with Europe will be made easier once we go into the euro?
Lord McIntosh of Haringey: My Lords, that would certainly remove one of the difficulties in making comparisons between supermarket pricing in the 11 countries which are going into the euro. We are not going into it on 1st January 1999, but my noble friend is right: some comparisons will be simpler.
Lord Acton: My Lords, is the Minister aware that standards and quality in my American wife's home state of Iowa are excellent?
Lord McIntosh of Haringey: My Lords, I am grateful that we now have two items of circumstantial evidence instead of one.

Freedom of Information
2.46 p.m.
Lord Hardinge of Penshurst Lord Hardinge of Penshurst asked Her Majesty's Government:
In view of the delay in publishing their draft Bill on freedom of information (which was to have been published in September), what is the current position on this legislation.
The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, the Government remain committed to a freedom of information Act. The Home Secretary intends to publish a draft Bill early in the new year for pre-legislative scrutiny.
Lord Hardinge of Penshurst: My Lords, I thank the Minister for his reply. We await the Bill with some impatience. Can he assure us that when it is published, the draft Bill will be based closely on the Government's good White Paper so forcefully endorsed by the Prime Minister in the preface and elsewhere? That is particularly as regards the crucial issue of the test for non-disclosure: substantial harm.
Lord Williams of Mostyn: My Lords, I can confirm that the legislation will be based on the principles of the White Paper. The proposals will lead to a significant increase in openness, ending unnecessary secrecy and bearing due regard to the substantial harm test.
Lord Lester of Herne Hill: My Lords, is the Minister able to assure the House that there will be no weakening of the principles in the White Paper? In particular, can he assure the House that the powers of the information commissioner, in dealing with appeals, will be as strong as indicated in the White Paper and that the exceptions will be only those genuinely necessary in the public interest?
Lord Williams of Mostyn: My Lords, as I indicated, we propose to work on the information published in the White Paper. Since that publication, the Home Office has a good record. For example, we have released 150 previously withheld files, including the conviction of the Wheeldon family for the attempted poisoning of Lloyd George in 1916; Lord Alfred Douglas's matter in the libel of Mr. Churchill in 1924; and Radclyffe Hall's matter going back to 1928. So, by and large, I believe that we have done quite well.

Welsh Farm Incomes
2.48 p.m.
Lord Geraint Lord Geraint asked Her Majesty's Government:
Whether they are satisfied with the present state of the agricultural industry in Wales.
Lord Williams of Mostyn: My Lords, the current problems in farming bring into sharp focus the need for Welsh agriculture to adapt. The Government's aim is to

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create a viable future for agriculture and to encourage sustainable economic growth in rural Wales. I fully recognise the real difficulties facing the farming community in Wales.
Lord Geraint: My Lords, I am sure that the Minister is aware that farm incomes in Wales have dropped by nearly 100 per cent. since his Government took office. Ewes and lambs have been sold this autumn for £1 each or less. Can the Minister give an assurance to the farmers of Wales that the Government will re-coup them for their losses?
Lord Williams of Mostyn: My Lords, I do not believe that anyone—let alone the noble Lord, Lord Geraint—would expect me to offer a blank cheque, or even an open postal order. However, we regard these matters with great seriousness. As I have said on previous occasions and happily repeat, it is not simply a question of economics because the farming community in Wales is extremely important socially, culturally and traditionally. It is fair to say that the previous Secretary of State for Wales carried out extremely important work in being open at all times to speak to all representatives of the agricultural industry in Wales. His successor, Mr. Michael, is having a meeting tomorrow with the Farmers' Union of Wales, the NFU Wales, and the Wales branch of the Country Landowners' Association.
Lord Hooson: My Lords, the noble Lord expresses sentiments with which one can entirely agree. Is he aware, however, that although the Government have expressed such sentiments, nothing has been done to help the farming community? There has been talk, but nothing more. It has been going on for months and months while the crisis has deepened. If he is concerned, as I know he is personally, about the social and cultural effects of the crisis in Wales, is it not time that we had some real action from the Government?
Lord Williams of Mostyn: My Lords, the time of real action is in the past. Specified risk material legislation was amended with effect from 8th October to allow farmers to resume exports of unsplit sheep carcasses to listed cutting plants in France. We have secured private storage aid for the sheepmeat sector with effect from 19th October this year. The sheep annual premium value will rise significantly this year. We are presently listening to arguments about the closing of the calf processing aid scheme. So it is uncharacteristically unfair for the noble Lord, Lord Hooson, to say that nothing has been done.
Lord Crickhowell: My Lords, I never remember an occasion in my lifetime when the condition of the hill farmers in Wales was worse. Can the Minister tell us what he means by saying that they should now adapt?
Lord Williams of Mostyn: My Lords, I think that the noble Lord's first proposition is a fair one. The fact is that it is necessary for all engaged in industry in this country to adapt to changing conditions. There are many
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schemes open; for instance, in terms of Tir Gofal, the development of agri-tourism and the question of changing the emphasis of particular farms. The fact is that there is no industry, in what is an increasingly competitive market, that can always say, "We shall never change".
Lord Elis-Thomas: My Lords, the Minister knows of my personal respect for him, but does he not recognise that farmers in Wales have already adapted? The extent of support for, and take-up of, agri-environment schemes such as Tir Gofal which he mentioned among farmers is an indication of their willingness to adapt. Does he not recognise that adapting to the current crisis is made more difficult by the substantial drop in end-price support? Will he ensure that in terms of agri-environment schemes such as Tir Gofal there will be adequate income return for the loss of end-price support at the market? Will he also look at the issue of the renationalisation of the CAP in terms of Agenda 2000? If there is to be renationalisation, should not support be delivered by the National Assembly for Wales?
Lord Williams of Mostyn: My Lords, I agree that to alter one's farming practices will not be an immediate answer. I was saying in answer to the noble Lord, Lord Crickhowell, that people must be astute to the fact that things cannot remain as they are. However, it is a fact that the Government have already made available £85 million of agri-monetary compensation. In Wales alone farmers have benefited by more than £12 million from the aid package: £8.3 million for suckler cows and £3.8 million for sheep producers. That is not a perfect answer but it is worth bearing in mind that it means almost £2,000 extra on average for most cattle and sheep farmers in the Welsh uplands.
Lord Thomas of Gresford: My Lords, is the Minister aware of the claims in the Welsh edition of today's Daily Post that the telephones of farmers' leaders in North Wales are being tapped? Is that true; and if so, what is the justification for it?
Lord Williams of Mostyn: My Lords, first, I have not read the Liverpool Daily Post. Secondly, I do not know whether it is true. Thirdly, if there is any evidence at all of unlawful activity, it should be reported immediately to the police.
Lord Cledwyn of Penrhos: My Lords, is my noble friend aware that, as from today, Welsh farmers will be encouraged that he is handling their affairs?
Lord Williams of Mostyn: Well, my Lords, I do not want to look even a gift horse in the mouth, so I am definitely encouraged.
Lord Campbell of Alloway: My Lords, is there not in the mind of government an emergency package to

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help the perilous state of agriculture, or is that a rumour? If it exists, can the noble Lord say something about it, because something more surely needs to be done?
Lord Williams of Mostyn: My Lords, in answer to the noble Lord, I can confirm that agriculture Ministers are considering urgently the representations that have been received about the difficult state of the industry and the requests for financial support. I recognise that there are serious difficulties. I can only ask your Lordships to be patient for a while.
Lord Bruce of Donington: My Lords, is the noble Lord aware that I have followed with some interest the claims that have been made on behalf of farmers in Wales who allege, either incorrectly or correctly—I have no information on that point—that lambs are being sold for a derisory sum of money; under £1 a lamb, I am told, in some instances? I am not in a position to verify that but, on the assumption that it approximates to the truth, may I inform the noble Lord that only last week I purchased from a leading multiple store four lamb chops for £2.59?
Lord Williams of Mostyn: Well, my Lords, I think it is probably all the fault of Europe.
Lord Mackie of Benshie: My Lords, is the Minister aware that farmers in the Highlands of Scotland, the hills of Cumbria and in Wales are changing and will change? They are changing because a large number of them will be unable to continue. In view of the fact that money is available from the European Union for the Government to draw on, although they have to pay as well, could they not set up a general scheme to assist the change via retirement schemes and other assistance which would allow reasonable change without people going out of business simply because they have lost all their money?
Lord Williams of Mostyn: My Lords, the answer is not as simple as the proposition the noble Lord puts. If money is available from European sources for compensation, it does not come as a blank cheque from Europe. It requires a substantial contribution—not far off three-quarters—from the United Kingdom Government. I repeat that £85 million of agri-monetary compensation has already been made available to livestock farmers. What the noble Lord says about encouraging retirement and trying to deal flexibly with individual farmers and their problems is a perfectly legitimate proposition which the Government have well in mind.
Lord Roberts of Conwy: My Lords, is the Minister really aware of the prospect facing Welsh hill farmers? The majority face a halving of their incomes this year and there is very little they can do about it. Can the noble Lord at least give an assurance that the levels of farm incomes will be taken into account in fixing the HLCAs?
Lord Williams of Mostyn: My Lords, of course they will be considered. I have every sympathy with those
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who are driven to change their livelihoods and, just as significantly, their habits of life. But I cannot say to your Lordships that the world is flat when I know it to be round. On other occasions a number of your Lordships who presently face me frequently commend the validity and moral value of a free capital market. There are bound to be changes for farmers. What we have to undertake to do is to make those changes as acceptable as possible and to view farmers with every sympathy. I believe that the Government's record is not a bad one in that regard.
Lord St. John of Bletso: My Lords, is the Minister aware that last week lamb prices in Abergavenny market fell below 50 pence per kilogram and that in the area of Gwent in which I live many farmers who have been farming there for generations are being forced to give up farming? Does the Minister agree that to adapt is not the answer and more dramatic action needs to be taken to prevent total social collapse in Wales?
Lord Williams of Mostyn: My Lords, to adapt is not the entire answer but it is a very significant part of it. Nor do I believe that the proper answer is 100 per cent. government subsidies. Those times have gone for ever.

The Post Office
3 p.m.
Lord Ezra Lord Ezra asked Her Majesty's Government:
When they will reach a conclusion about the future of the Post Office.
Lord McIntosh of Haringey: My Lords, work on the Government's review of the Post Office has proceeded well. In accordance with its terms of reference the review has considered public sector option for giving the Post Office greater commercial freedom while continuing to provide a universal postal service under a uniform tariff structure with a nationwide network of post offices. We hope to announce our conclusions shortly.
Lord Ezra: My Lords, I thank the noble Lord for his reply. Does he recall that the Post Office has been under continuous review since 1992? Does he agree that despite countless government documents, Select Committee reports and independent surveys the state of the Post Office remains undecided? Is he also aware that the Post Office faces growing competition nationally and internationally, including the challenge of new technologies in which it has very little resource to invest because the Government take up to 90 per cent. of its profit? In those circumstances, can the Minister indicate, bearing in mind the rumours that the Government have now decided to transform the Post Office into an independent publicly owned company, whether an announcement will be made about this very shortly, and without further delay for consultation?
Lord McIntosh of Haringey: My Lords, I am aware of the fact that the Post Office has been under review

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for six years, only 25 per cent. of which has been under the present government. Even so this government have set manageable terms of reference for the review to ensure that it covers a limited number of options in the public sector. But the general complaint that the noble Lord makes about delay and the effects of uncertainty is undoubtedly justified. I cannot go further than I have done in saying that we hope to announce our conclusions shortly. I do not know the distinction between that and "very shortly".
Lord Dearing: My Lords, I welcome the assurances that the Minister has given. I declare an interest as a former postman of sorts and a Post Office pensioner. Can the House be told whether one of the objectives of the Government is to enable the Post Office to invest to the extent necessary to maintain a first-class competitive service?
Lord McIntosh of Haringey: My Lords, in response to a very distinguished ex-postman, one of the principal objectives of the review that is being carried out is to ensure that the Post Office has the necessary commercial freedom to invest. To return to the second question of the noble Lord, Lord Ezra, we are very well aware of the prospects of increased competition, both nationally and internationally.
Baroness Miller of Hendon: My Lords, given the report in the newspapers today that the Secretary of State for the Department of Trade and Industry is considering an independent publicly owned corporation and the success of the privatised British Telecom, despite the unfounded doom and gloom of the party opposite, does the statement by the Minister today indicate that the Government have changed their mind and now realise that commercial businesses are best run from boardrooms staffed with experienced businessmen who are free from the shackles of Whitehall?
Lord McIntosh of Haringey: My Lords, apart from the political incorrectness of the noble Baroness's reference to "businessmen", I hope she will accept that I answer for the Post Office rather than British Telecom. I read the article in the Daily Mail today. I make two comments upon it. First, there were in effect four-and-a-half options considered by the review. Consideration has been given not only to the option of an independent publicly owned company but also to the possibilities of a minority share sale, a public sector trust and increased scope to raise extra finance without major institutional change. Those are the options that the review is considering, and Ministers will take a view in due course. My second observation on the article is that it is quite false for the Daily Mail to seek to drive a wedge between the Secretary of State for Trade and Industry and other members of the Government. There is no justification for that.
Lord Clinton-Davis: My Lords, does my noble friend agree that the House has just heard an assertion from the noble Baroness—put in the nicest possible way—that the Government should make up their mind, but that when in power her party singularly failed to do anything of the kind for a very long period of time and in fact ran away from the issue?
Lord McIntosh of Haringey: My Lords, perhaps one of the difficulties faced by the party opposite when in power was its insistence in having decisions made by "businessmen" in the boardroom.
Lord Peyton of Yeovil: My Lords, is the noble Lord aware that indecision is becoming slightly infectious and that the Government themselves have caught a dose of it? Does the Minister accept that it would be very unfortunate if, as a result of the everlasting review, the Post Office was forced to rely on the Treasury as its banker?
Lord McIntosh of Haringey: My Lords, I am interested that the implication behind the noble Lord's first question is that any indecision was on the part of his government rather than the present Government. I thought I had made clear that in a much shorter time this Government had reduced the number of options being considered and therefore had made life that much easier for the Post Office in its day-to-day work. It is true that the longer term solution for the Post Office must be a degree of financial security to enable it to make investment plans over a period of more than one year. Direct support in the public sector without any change whatsoever was not one of the options before the review.
Lord Monkswell: My Lords, bearing in mind that the postal service was nationalised over 200 years ago and, as such, has been an international model for all postal services, can my noble friend confirm that it is one of the most efficient services in the world and that perhaps the current arrangements will be another international model that can be deployed throughout the world?
Lord McIntosh of Haringey: My Lords, my noble friend is right that the Post Office has risen as a public sector organisation but it is not alone in believing that the existing arrangements, which involve hand-to-mouth financing and a very high level of uncertainty about its capital investment programme, cannot continue for ever.

Business
Lord Carter: My Lords, at a convenient moment after 3.30 p.m. my noble friend Lady Amos will, with the leave of the House, repeat in the form of a Statement an Answer to a Private Notice Question in another place on the humanitarian crisis in Central America and the aid being supplied by the United Kingdom.

Scotland Bill
3.10 p.m.
Read a third time.
Clause 3 [Extraordinary general elections]:
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 1:
Page 2, line 40, at end insert ("and").
The noble and learned Lord said: My Lords, Amendments Nos. 3 to 6 are linked with Amendment No. 1. I tabled these amendments at Report stage but in view of the fact that I had a heavy cold the noble and learned Lord the Lord Advocate kindly suggested that I should move them at Third Reading.
The amendment raises a general point about drafting on which I believe that it would be useful to have your Lordships' views. If noble Lords will consider Clauses 3 and 5 they will see the point. Clause 3(2) states that,
"If the Presiding Officer makes such a proposal, Her Majesty may by proclamation under the Scottish Seal"—
and there follow paragraphs (a), (b) and (c). It is not until one reaches the "and" at the end of paragraph (b) that one realises that it should also come at the end of paragraph (a). Similarly, Clause 5(7) states:
"A registered political party's regional list must not include a person",
and there follow paragraphs (a), (b), (c) and (d). One then has to look back to realise that (a) and (b) also end in "or". A similar point arises on the following subsection.
Neither of those are particularly long tabulations. In many cases the tabulation continues to many later letters in the alphabet. What the draftsman has done here is to follow not only the accustomed and established rule of drafting but also the general literary scheme. But it is rather different in the case of a statute in view of the tabulation. Naturally, the draftsman does not want to change an accepted practice. But, for what it is worth, in my view it would be much easier and more consumer friendly if the statute in each case ended in "and" or "or" rather than postponing that conjunction to the penultimate paragraph.
As I said, it is existing practice. However, I believe that it would be of assistance if your Lordships ventured a view as to whether the statute could be made more user friendly in the way I suggest. I beg to move.
Lord Renton: My Lords, I scarcely ever disagree with the noble and learned Lord, Lord Simon of Glaisdale, on a drafting matter. He is a great expert. Over many years he has been a great supporter of the committee of which I had the honour to be chairman. However, with regard to the amendments he now proposes one should work on the principle that if words are not necessary it is necessary not to include them.
Lord Simon of Glaisdale: My Lords, I knew that someone would say that. I had hoped that it would not come from the noble Lord, Lord Renton.
Lord Renton: My Lords, the noble and learned Lord has referred to a well established practice; and indeed it
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is well established. I rather think that it may have prevailed in the drafting of statutes throughout this century. I have not studied closely enough the statutes of the previous century; but I really wonder whether we should add these extra words. I do not believe that it makes the matter more user friendly. I think that it just leaves the provision where it already is.
Lord Brightman: My Lords, I respectfully agree with the noble Lord, Lord Renton. I hope that my noble and learned friend Lord Simon of Glaisdale will not take it amiss if I tell your Lordships that if we accede to the principle of the amendments to achieve drafting consistency we shall have to add on my count no less than 54 additional words to the Bill.
The Lord Advocate (Lord Hardie): My Lords, as the noble and learned Lord who moved the amendment explained, the amendments insert the words "and" or "or" into various lists which appear in Clauses 3 and 5. In those clauses, as in the rest of the Bill, the conjunctions are inserted only before the last item in each list. As the noble and learned Lord, Lord Simon of Glaisdale, observed, it is a well established drafting convention followed in this and many other Bills that in lists such as these the conjunction indicating whether the items on the list are cumulative or alternative is inserted only before the last item.
I accept that the approach suggested by the noble and learned Lord would work equally well. It is a question of style rather than substance. However, as I said, and as the noble Lord, Lord Renton, and the noble and learned Lord, Lord Brightman, indicated, we would not support the amendment. We have followed the accustomed and established convention of drafting, and the courts and other users of the Bill will have no trouble determining the intention of Parliament on these provisions.
I am grateful to the noble Lord, Lord Renton, and the noble and learned Lord, Lord Brightman, for raising an issue which, in view of my youth and inexperience, it would have been inappropriate for me to do.
Lord Simon of Glaisdale: My Lords, the matter having been ventilated, I cannot claim universal support. Indeed, when the noble Lord, Lord Renton, and my noble and learned friend take the opposite view, it obviously calls for caution on my part. As to what my noble and learned friend said about 54 extra words having to be added to the Bill if the amendment were adopted, I say only that I can guarantee to show that twice that number in the statute are unnecessary. Having said that, and having ventilated a matter which may be considered further academically, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 [Candidates]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 2:
Page 3, line 16, at end insert ("and any list of such candidates, submitted to the regional returning officer, shall appear on the ballot paper for regional members in that region.").
The noble Lord said: My Lords, Amendment No. 2 has been tabled to complete the discussions we have had on the issue. The Government have conceded the point that on the second top-up ballot the names of the candidates should be put down. The Government did not agree in Committee. However, by Report stage they had changed their mind and accepted the argument we put forward, partly driven by the fact that the Home Office had accepted the argument as regards the European elections and the lists there. The poor Welsh Office has been left behind because its Bill moved into law before the Government realised that it was a good thing to place names on the second ballot paper. However, I hope that they will do so as regards the Welsh elections.
I am grateful that we now have from the Government a sample of three drafts of the layout of the second ballot. It may be useful to have some discussion as to what might be the better arrangement. It is difficult to explain the drafts without the use of modern technology, overhead projectors and holding up the drafts, but none would be within the rules of order. Briefly, one of the ballot papers lists the candidates in vertical order, so there is a list numbered 1, 2, 3, 4 and 5. The order of the list is very important because it determines who is elected. If only one person is to be elected, it will be No. 1; if two are to be elected, it will be Nos. 1 and 2, and so on. Therefore the ordering is important.
The other two ballot papers list the order horizontally in four columns. They read 1, 2, 3, 4 and then 5, 6 and 7, so that 5 comes below 1. I hope that that is clear to your Lordships who have not seen the draft. However, for my money, because the order is of such importance, I believe that the vertical numbering is the best and most obvious for the electorate to understand.
For reasons unbeknown to me, the officials preparing the draft ballot papers have chosen an interesting way of identifying people. The Conservative Party candidates are known by fruits; the Labour Party candidates by flowers; the Liberal Democrat candidates by trees; and, appropriately enough, the Greens by root vegetables. The Scottish National Party candidates are known by animals; I am not sure Alex Salmond will like that.
Perhaps I may use as an illustration the Labour list. Rose Hyacinth comes at the top. Clearly, the civil servant watches television. She is followed by Daffodil Tulip. It is clear from the vertical ordering that Rose Hyacinth would be No. 1 and that if the Labour Party won one seat, Rose Hyacinth would win. Daffodil Tulip would be No. 2, which is obvious, too. However, the trouble with the horizontal listing is that it is not clear whether Daffodil Tulip or Freesia Crocus would be No. 2—and I believe that I understand the electoral system! I know not what the poor electorate would make of drafts 2 and 3.
Noble Lords will, I believe, want to contribute to the debate. It will be interesting to hear whether Ministers have come to any decision. I believe that the vertical ordering is the most important.
Another important point concerns the draft ballot papers. They will contain the symbols, the emblems, of the political parties if the Registration of Political Parties
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Bill is passed. It is amazing that in a country which believes it has attained pretty good literacy levels we have to return to what is done in countries where literacy is not high—except in the United States—and put symbols or emblems on the ballot paper. I do not believe that we shall see elephants and other animals, but we shall see symbols.
A problem in respect of the Registration of Political Parties Bill is that while in Scotland the parties can call themselves the Scottish Conservative Party, the Scottish Labour Party and the Scottish Liberal Democrats, they will be able to use only one UK symbol. That is not a problem for the Labour Party or the Liberal Democrats, but it is a problem for the Conservative Party which in both Scotland and Wales has chosen different symbols from the torch used by the party in England.
I am sure that the Government did not intend to have a go at the Conservative Party when they framed the Bill. I hope that the Minister will contact his colleagues in the Home Office and explain the difficulties which will be caused for the Conservatives in Scotland and Wales and see whether we can resolve the issue before the various Bills, in particular the registration Bill, complete their passage through your Lordships' House this month. I beg to move.
Viscount Thurso: My Lords, I am grateful to the noble Lord, Lord Mackay of Ardbrecknish, for his explanation of why the amendment has reappeared in exactly the same form as on Report. Had he not described it as an opportunity for a debate on the ballot papers, since he is averse to reading his own speeches I should have read his comment as meaning that he was content that the provision was not on the face of the Bill. I assume that he will not be insisting on the amendment but proposes it in order to initiate debate on the ballot papers.
I have not had an opportunity to study the different draft papers, but, from the noble Lord's description, the vertical lists makes considerably more sense. Although I am interested in the choice name of "Mrs. Bucket" to lead the Labour Party, I am not sure whether in standing for the Liberal Democrats I am an oak, an elm or a rowan.
With regard to symbols, the noble Lord dismissed the lack of literacy in this country. I should not be so quick to do so. A substantial number of people in this country have failed to come out of the school system with adequate literacy skills. Even if they are a small minority they should not be disadvantaged. Despite the problem he raised in respect of the Scottish Conservatives' symbol, it is important that symbols appear if they will help people.
The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel): My Lords, it has been useful to touch on this matter again and I am grateful for the points which the noble Lord made. I particularly take the point that the Conservative Party has not used the torch as its symbol in Scotland and Wales. There are two possible interpretations: first, it has already been put to the torch in Scotland and Wales; and, secondly, that in Scotland and Wales it is in a state of total darkness.

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But that is a matter for the Registration of Political Parties Bill. I am sure that the noble Lord will be able to raise it in that respect. I shall make a note of his comment.
We have taken no final view on the format of the ballot paper. It is helpful to have noble Lords' observations, which we shall consider. We expect to lay the order around Christmas and that it will be debated in both Houses during January. Therefore, there will be an opportunity to examine the issue again. I understand that a parallel order for Wales has been issued for consultation which contains exactly the same provision we shall be including to ensure that names on the list of candidates appear on the ballot paper. I believe that there is a fair measure of agreement and I trust that the noble Lord will withdraw the amendment.
Lord Mackay of Ardbrecknish: My Lords, as I indicated, I tabled the amendment in order to allow a brief discussion on the way the lists might be ordered on the second ballot. As we reached agreement late in the Bill's progress, I am sure that your Lordships do not mind a short Third Reading debate on this important issue. Some of my noble friends from Wales who were present when we first debated the subject will not recognise the position in which we now find ourselves. At the beginning, no names were to appear on the ballot paper, bar the independents. Now we have a much more satisfactory position. I am sure that that has occurred as a result of the argument put forward in your Lordships' House and because the Government listened and accepted them. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 3 to 6 not moved.]
Lord Sewel Lord Sewel moved Amendment No. 7:
Page 3, line 41, leave out from ("a") to end of line 43 and insert ("party registered under the Registration of Political Parties Act 1998").
The noble Lord said: My Lords, during the first day on Report, noble Lords opposite tabled an amendment to provide that the definition of "registered political party" in the Scotland Bill would be a party registered under the Registration of Political Parties Act 1998. My noble and learned friend the Lord Advocate agreed to consider whether we should make such a provision. We have concluded that it would be appropriate and Amendment No. 7 achieves that purpose.
Amendment No. 56 is a purely drafting amendment. It inserts the word "political" into paragraph 6(2) of Schedule 3. That provision ensures that standing orders shall include provision for ensuring that in appointing members to committees and sub-committees regard is had to the balance of parties in the parliament. The amendment simply reflects the fact that the kind of parties we are talking about are political parties and not, possibly for the avoidance of confusion and doubt, wild or fancy dress. I beg to move.
Lord Mackay of Ardbrecknish: My Lords, Amendment No. 56 does not need much discussion
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although it would be interesting to speculate on what other parties there might have been or might have defined themselves. I accept the argument put forward by the noble Lord. As regards Amendment No. 7, I am delighted that the Government have listened and taken on board the points I made at the previous stage.
On Question, amendment agreed to.
Clause 10 [Regional Vacancies]:
3.30 p.m.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 8:
Page 5, line 20, leave out from ("candidate,") to second ("the") in line 21.
The noble Lord said: My Lords, we had a number of discussions about this matter on other amendments that offered different solutions. Having thought about what the Minister said, this is yet another solution. Basically, the problem is this. The second ballot decides on the number of members to be returned by each political party in order to achieve better proportionality in the parliament. If one of those elected to the top-up seats, as they are called, retires or dies, then the next available and still eligible person on the list is returned to the parliament. So there are no by-elections as we know them. There will be by-elections for the first-past-the-post seats, but not for any of the top-up seats.
One of the problems we discussed earlier is what would happen if the list ran out. It may not do so, but in order to prevent it the parties will probably need to put down a full raft of 12 candidates. In the course of four years people may be elected in an intervening election to this Parliament; they may be elected to the European Parliament or they may decide that they no longer wish to be elected to the Scottish parliament. It may be that someone has been elevated to your Lordships' House and did not want to attend the Scottish parliament any more. In those circumstances we might run out of candidates. That would be particularly true if a party did not nominate the full 12 candidates.
I put forward a number of suggestions and I argued against almost all of them myself when I started to think about it. But having listened to the Minister and re-read the debate, I decided that because it was the top-up and the people in the list are nominated by the parties in the first place, there did not seem to me to be any reason why we could not say that if the list runs out and another person is needed because a vacancy has to be filled, then why should not the party nominate someone? After all, that is what the party did initially at election time. It nominated a raft of people in order, so if the list runs out for whatever reason, why should not someone just be nominated? The important thing is that that retains the principal objective, which is to use the top-up seats to bring about greater proportionality than has been delivered by the first-past-the-post system.
Therefore, it seems to me to be wrong in principle not to fill any vacancy on the top-up list of the party. One would not be trying to achieve proportionality. As my amendment suggests, the only way around the problem is to allow the political party to nominate. I do not know

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whether the Minister will be sympathetic. I hope that the amendment is drafted well enough so that if the Government see the point, even at this late stage, they will accept it. This amendment covers a very unlikely event, but I believe that one of the points about writing legislation is that one should attempt to cover for all eventualities. It would be quite wrong if a party were not to have its full top-up list for the duration of a parliamentary session just because its list of candidates had run out and it had lost a member through death or resignation. I beg to move.
Lord Mackie of Benshie: My Lords, I have a certain sympathy for this amendment, but I believe that it is stretching a point to suggest that the whole list of candidates will run out. I believe that most people will insist on a full list so it is unlikely that death, disease or resignation, and all the other kinds of things that happen to political people, will mean that the whole list is wiped out.
The other objection I have to the suggestion is that the Liberal Democrat Party will be electing by postal ballot in the order of the list. For the party to nominate someone outside that list would be to do exactly the kind of thing that we have been objecting to; namely, that the public would be electing someone as an MP of whom they have no knowledge except that he had been nominated by the party. It is unlikely that this provision will be needed and there are also the snags to which I have spoken.
Lord Sewel: My Lords, I recognise the real anxiety that the noble Lord feels about the possibility of a seat in the parliament remaining vacant if a party's list were to be exhausted. I believe that the noble Lord worries too much on that score. I do not believe that the concern is sufficient to introduce a rather important new principle into the electoral process, as envisaged in Amendments Nos. 8 and 9.
To a large degree I take the point made by the noble Lord, Lord Mackie of Benshie. What we have tried to do and what the noble Lord, Lord Mackay of Ardbrecknish, has strongly urged us to do, is to make sure that all the names of all the members of the Scottish parliament are placed before the electorate. We have accepted that proposition. By these amendments we are departing significantly from that. In the event of the existing list being exhausted, an individual would be placed in the parliament, but whose name had never have been before the electorate previously with any form of endorsement. That is a dangerous path to follow. On reflection, I hope the noble Lord will have confidence in the fact that, by enabling 12 members on a party list, we are dealing with the problem of replacement and that there is no need to introduce the new principle that someone could become a member of the parliament whose name had never been placed before the electorate. I hope that the noble Lord will be able to withdraw the amendment.
Lord Mackay of Ardbrecknish: My Lords, I suppose I invited my previous arguments about the names being on the list to be played back against me. I
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suggested that as the list ran out somebody should be nominated by the relevant political party. In my original remarks I accepted that such events were fairly unlikely. I say to the noble Lord, Lord Mackie of Benshie, that although I cannot pinpoint it in the many days of debate that we have had, his noble friend Lord Steel of Aikwood suggested that he could not see the point of putting up 12 names because they just cluttered up the ballot paper. If a party took that view it is quite conceivable that, over a four-year term, it may well run out of names for a by-election.
At this late stage of the Bill I shall not press the amendment. I thought it worth a try if the Government were prepared to accept that it might be the way to guard against an unlikely situation where a party had to run for the remains of a parliament under-represented when it came to proportionality, which seems to be considered so important by some people. But clearly that is not quite as important as showing all the names in the ballot paper. As I have been arguing for that, I can hardly complain if the Minister uses that argument against me. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 9 not moved.]
Clause 19 [Presiding Officer]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 10:
Page 9, line 32, at end insert—
("( ) The Parliament may change the title "Presiding Officer" to such other title as it considers appropriate.").
The noble Lord said: My Lords, in moving this amendment I speak also to Amendment No. 24. We had an interesting debate on a number of occasions about this matter. It is like ships steaming towards each other in the fog and passing without actually seeing each other. We have been doing that with the Government on this issue for some time. I thought I should make one last attempt to put forward the principle that the parliament should be left to decide those matters.
The problem is that the Government have chosen two pretty unwieldy titles: one is "Presiding Officer", instead of "Speaker"; and the other is "First Minister" instead of "Premier" or "Prime Minister". They are also proposing "Scottish Executive" rather than "Scottish Government". In this respect, the noble Lord, Lord Steel of Aikwood—who still seems to be driving around somewhere in Africa—and I joined an alliance in an attempt to persuade the Government that that is a fairly daft proposition. The noble Lord, Lord Steel of Aikwood, had a splendid letter from Northern Ireland, where it turns out that the person who presides over the Northern Irish Assembly calls him or herself the "Speaker", and that is on the printed paper.
As your Lordships know, all over the world, especially the English-speaking world, the person who presides over parliaments is called the "Speaker". That has been drawn to our attention with the problems of Newt Gingrich, who does not wish to seek re-election as Speaker of the House of Representatives in America. The word "speaker" has nothing to do with me traditions

517
of the American parliament; its has everything to do with the traditions of the other place. It is an accepted word. We have had this argument a number of times.
I want to be absolutely sure in my mind. The parliament in Scotland will decide—as sure as this is Monday afternoon—that the person who presides over it will be called the "Speaker" and the Ministers will be called "Government Ministers" of the Government of Scotland. My view is that the First Minister will probably end up being called the "Prime Minister". I suggested that if we called him the "Premier" we might get that title to stick, but he will be called the "Prime Minister".
Lord Renton: My Lords, I put forward a small suggestion. Could there not be a compromise which relates to Northern Ireland? Instead of "Prime Minister", which refers essentially to the United Kingdom, could not the word "Premier" be used?
Lord Mackay of Ardbrecknish: My Lords, I do not blame my noble friend for not having been present during the many happy hours we had in Committee and on Report. I tried to propose this amendment at an earlier stage and, as always, I was rebuffed, very politely, by the noble Baroness, Lady Ramsay of Cartvale, whose job it is to deal with this particular problem.
Without intruding into the private grief of the Labour Party, I could not help noticing in one media report—it was an electronic media report—the problems that the party was having in Wales. When describing someone to replace the person whom I shall not name, the report said, "effectively the Prime Minister of Wales". I gave a loud cheer and said, "There it is, proof positive".
This is another effort and I hope it is a joint effort with the Liberal Democrat Party. The suggestion is to leave the decision on those matters to the parliament and make it clear that it can use those more traditional titles. At least that will be a step in the right direction. The parliament meets on 1st May and by the end of next year, whether the Government like it or not, the titles will be those that the noble Lord, Lord Steel, and myself have suggested. We want to know from the Government that the parliament will not be doing anything illegal and that its members will not be clapped in the Tower if they decide to ignore what this House and the other place insist upon but use the titles that are used in all parliaments around the world. I beg to move.
Lord Mackie of Benshie: My Lords, the noble Lord, Lord Mackay of Ardbrecknish, will be unable to find any inconsistency with the Liberal Democrat Party in this case. It is absolutely ludicrous to try to foist on the Scottish parliament names which are unprepossessing, unattractive, not Scottish and not British. The noble Lady and the noble Lord will know the expression "It is bairny" to insist on that. No self-respecting Scottish parliament would put up with it. I believe that they ought to indicate now that the Scottish parliament can call the ministers exactly what it likes, provided it is not rude.
3.45 p.m.
Baroness Ramsay of Cartvale: My Lords, Amendments Nos. 10 and 24 bring us back, again, to the question of whether the Bill should prescribe titles for the key office holders it creates. Noble Lords opposite have made their views very clearly felt on this subject on quite a number of occasions now. The Government's views on this issue are well known by this time and have been gone over during Committee and Report stage at considerable length.
In brief, it is important for the sake of legislative certainty and consistency in the law throughout the UK that the Bill prescribes the titles from the outset. It is important that everyone is clear exactly who is being referred to in this legislation, in future legislation and in other formal documents. As I have said before, this will ensure that there is no doubt about who should be carrying out any duties provided for in the Bill. By prescribing simple and straightforward titles, we hope to ensure there is no confusion between offices and positions so everyone knows where they stand and what their responsibilities are.
That will be particularly critical for third parties outside the Parliament. They will simply want to know that, for example, an official document is what it purports to be, or that a legal case should be raised against a particular person holding a particular office. The Government believe that these titles are clear and unambiguous and suit the purpose. They avoid any risk of confusion with the established titles used at Westminster. I think we are doing a substantial service to all those, very many, people who are likely to have dealings with the First Minister and the executive and the presiding officer, by providing for settled titles in the Bill for those offices.
In view of some of the views expressed by noble Lords in both Conservative and Liberal Democrat Benches in earlier stages of the Bill, I want to set straight, for the record, some facts about the situations regarding Wales and Northern Ireland. First, Wales. The Government of Wales Act prescribes titles for the first secretary and assembly secretaries. It also prescribes the names of some of the assembly's committees. It does allow the standing orders to prescribe a different title for the presiding officer and deputy presiding officer, but I understand that the National Assembly Advisory Group has recommended that the titles should be presiding officer and deputy presiding officer. Those will be specified in the assembly's standing orders, which the assembly can amend with a two-thirds majority.
The Northern Ireland Bill provides for a First Minister and a Deputy First Minister in Clause 14, the executive committee in Clause 18 and a presiding officer in Clause 37. There is no doubt that the titles First Minister and Deputy First Minister are now in common accepted usage for both Mr. Trimble and Mr. Mallon. Although I hear what the noble Lord, Lord Renton, said about the First Minister in Northern Ireland being called "Premier", I believe that in the case of Northern Ireland the title "First Minister" for Mr. Trimble and "Deputy First Minister" for Mr. Mallon has come into common usage.

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The initial standing orders drafted by my right honourable friend the Secretary of State for Northern Ireland refer to the presiding officer. Much was made at earlier stages of the fact that it is understood that the members of the assembly who are involved in preparing the standing orders now are considering using a different title for presiding officer. The assembly is, of course, in quite a special situation in having been elected before the Bill is enacted. The noble Lord, Lord Mackie of Benshie, referred to the letter raised by the noble Lord, Lord Steel of Aikwood, at an earlier stage of the Bill. I do not know exactly what that letter was. I understood that it was from somebody who said he was an aide to the speaker, and "speaker" was the word he used. However, in front of me I have a letter from the noble Lord, Lord Alderdice, to my right honourable friend the Secretary of State for Northern Ireland and his official letter, as the presiding officer of the Northern Ireland Assembly is headed, "Initial Presiding Officer", which is the correct title and follows the title in the Bill.
I do not know whether we should compare letters but this is a letter dated 7th September 1998, so it is nothing if not current.
Lord Mackie of Benshie: My Lords, surely the noble Baroness will not make a law on the basis of letters which are said to have passed between herself and my noble friend Lord Steel?
Baroness Ramsay of Cartvale: My Lords, indeed not, but that was the point I should have liked to make to the noble Lord, Lord Steel of Aikwood, at the stage at which he was waving his letter at me. I am talking about the fact that the Bill makes clear that the title is "presiding officer".
We shall see what happens in the case of Northern Ireland. However, the crucial point—and this really is the most important point that I wish to make to the House—is that there is no difference on that point of titles between the Northern Ireland Bill and the Scotland Bill.
The matter was raised by the noble Lord, Lord Steel of Aikwood. He said:
"I am told that the Minister of State, in the course of official consultations, has confirmed that the term 'presiding officer' is a legal one and that it is entirely a matter for the assembly to determine what the presiding officer is actually called".—[Official Report, 22/10/98; col. 1681.]
There is no difference between that and what I said in reply to the noble and learned Lord, Lord Fraser of Carmyllie, when I said that,
"it would be possible for the parliament in its standing orders to make provisions about the forms of address to be used in the proceedings of parliament if it so wished. It may choose to use terms other than those prescribed in the Bill within its own proceedings".—[Official Report, 18/10/98; col. 2024.]
I then said that the parliament would no doubt wish to consider whether it was appropriate to address someone other than by the legal title and it would also doubtless take account of what became common public usage. I ended by saying that,
"Ultimately that usage would be a matter for the parliament to decide".—[Official Report, 18/10/98; col. 2024.]
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We have tried to strike a balance throughout the Bill between prescription and flexibility. Noble Lords will have noted that our general approach has been to prescribe the minimum. It is not always easy to agree where a line should be drawn. However, that is one area where we consider that it is important that there is neither vagueness nor confusion. Therefore, I urge the noble Lord to withdraw the amendment.
Lord Mackay of Ardbrecknish: My Lords, I suspect that the noble Baroness may be alone in believing that there will be no vagueness or confusion. The problem with these debates is that they do not seem to be very important in themselves but they have all to do with the status of the Scottish parliament, the Welsh assembly and the Northern Ireland Assembly, although I am not discussing Wales and Northern Ireland. The problem is that in my view, the Government are at sixes and sevens.
Unfortunately, the noble Lord, Lord Steel of Aikwood, is not here, but he said when he discussed the letter:
"I have in my hand a letter with beautiful headed paper from the special adviser to the Speaker".—[Official Report, 22/10/98; col. 1669.]
My recollection of seeing the letter is that the word "speaker" was written in green print. It was not type; it was part of the headed notepaper. He went on to say:
"The draft Committee on Standing Orders in the Northern Ireland Assembly provides in paragraph 2 that the presiding officer of the Assembly shall be called Mr Speaker or Madam Speaker and shall be addressed by Members".
I do not know whether the noble Lord, Lord Steel, was wrong about that, but I have no reason to believe that he was. I am sure that he is absolutely right.
Just to confuse your Lordships, in answer to my noble and learned friend Lord Fraser of Carmyllie, the noble Baroness, Lady Ramsay of Cartvale, said:
"A partial direct answer is that the parliament would not be able to change these titles by standing orders. However … it would be possible for the parliament in its standing orders to make provisions about the forms of address to be used in the proceedings of the parliament".—[Official Report, 28/10/98; col. 2024.]
I should not be surprised if your Lordships were lost by this time because I am fairly lost myself.
Lord Thomas of Gresford: My Lords, perhaps I may assist. As I understood the Minister, in Wales, the advisory group has advised the use of the term "presiding officer", but of course she concedes that the assembly can call the presiding officer by what ever name it chooses. Is it any different for Scotland? If it is not, that is clear.
Lord Mackay of Ardbrecknish: My Lords, I was just about to deal with that. It appears that in any legal documents, those people must be referred to for all time as "presiding officer" and, "First Minister". However, they can be called by everybody—indeed, the media already do so with regard to Wales—"Prime Minister" or "Premier" and "Speaker". If that is not a recipe for confusion, what is? It seems to me that those two gentlemen or ladies will wear two hats: one will be an official hat and the other will be an unofficial hat.

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All around the English-speaking world, people are perfectly happy to use the titles "Speaker", "Premier", and "Prime Minister". I am so dissatisfied with those answers and the thought of having the noble Lord, Lord Mackie, and myself, in the same Lobby makes me believe that I should test the opinion of the House.
3.55 p.m.
On Question, Whether the said amendment (No. 10) shall be agreed to?
Their Lordships divided: Contents, 99; Not-Contents, 113.

Division No. 1

CONTENTS

Addington, L.

Linklater of Butterstone, B.

Ampthill, L.

Ludford, B.

Balfour, E.

Lyell, L.

Blaker, L.

Blyth, L.

Mackay of Ardbrecknish, L.

Boardman, L.

Mackay of Drumadoon, L.

Borthwick, L.

Mackie of Benshie, L.

Brabazon of Tara, L. [Teller.]

McNair, L.

Braine of Wheatley, L.

Brougham and Vaux, L.

Maddock, B.

Bruntisfield, L.

Mar and Kellie, E.

Calverley, L.

Masham of Ilton, B.

Carlisle, E.

Mersey, V.

Carnegy of Lour, B.

Milverton, L.

Carnock, L.

Monson, L.

Charteris of Amisfield, L.

Clanwilliam, E.

Monteagle of Brandon, L.

Craig of Radley, L.

Mountevans, L.

Crickhowell, L.

Mowbray and Stourton, L.

Cuckney, L.

Moyne, L.

Cullen of Ashbourne, L.

Munster, E.

Davidson, V.

De Freyne, L.

Newall, L.

Dearing, L.

Newby, L.

Denham, L.

Nicholson of Winterbourne, B.

Dholakia, L.

Perry of Southwark, B.

Dixon-Smith, L.

Peyton of Yeovil, L.

Dunrossil, V.

Ellenborough, L.

Phillips of Sudbury, L.

Elles, B.

Rankeillour, L.

Elliott of Morpeth, L.

Renton, L.

Ezra, L.

Renwick, L.

Fookes, B.

Rodgers of Quarry Bank, L.

Forbes, L.

Saltoun of Abernethy, Ly.

Gainford, L.

Geraint, L.

Sanderson of Bowden, L.

Gormanston, V.

Selborne, E.

Grey, E.

Selkirk of Douglas, L.

Harlech, L.

Sharples, B.

Harmsworth, L.

Harris of Greenwich, L.

Shaw of Northstead, L.

Harrowby, E.

Stair, E.

Hayhoe, L.

Strathcarron, L.

Headfort, M.

Strathclyde, L. [Teller.]

Holderness, L.

Swinfen, L.

HolmPatrick, L.

Thomas of Gresford, L.

Hooper, B.

Inchyra, L.

Thurso, V.

Kintore, E.

Tope, L.

Lang of Monkton, L.

Vivian, L.

Lauderdale, E.

Waddington, L.

Leigh, L.

Lester of Herne Hill, L.

Wharton, B.

Lindsev and Abingdon, E.

Wigoder, L.

522

NOT-CONTENTS

Acton, L.

Irvine of Lairg, L. [Lord Chancellor.]

Ahmed, L.

Alli, L.

Islwyn, L.

Amos, B.

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

Archer of Sandwell, L.

Ashley of Stoke, L.

Jeger, B.

Bach, L.

Jenkins of Putney, L.

Barnett, L.

Kennedy of The Shaws, B.

Berkeley, L.

Kilbracken, L.

Blackstone, B.

Kinloss, Ly.

Blease, L.

Lockwood, B.

Borrie, L.

Lofthouse of Pontefract, L.

Brooke of Alverthorpe, L.

Macdonald of Tradeston, L.

Bruce of Donington, L.

McIntosh of Haringey, L. [Teller.]

Carmichael of Kelvingrove, L.

Carter, L. [Teller.]

Mackenzie of Framwellgate, L.

Christopher, L.

Mallalieu, B.

Clinton-Davis, L.

Mason of Barnsley, L.

Cocks of Hartcliffe, L.

Merlyn-Rees, L.

Crawley, B.

Milner of Leeds, L.

David, B.

Molloy, L.

Davies of Coity, L.

Monk Bretton, L.

Davies of Oldham, L.

Monkswell, L.

Dean of Beswick, L.

Montague of Oxford, L.

Dean of Thornton-le-Fylde, B.

Morris of Castle Morris, L.

Dixon, L.

Morris of Manchester, L.

Dormand of Easington, L.

Murray of Epping Forest, L.

Dubs, L.

Northfield, L.

Eatwell, L.

Peston, L.

Elis-Thomas, L.

Plant of Highfield, L.

Evans of Parkside, L.

Puttnam, L.

Evans of Watford, L.

Ramsay of Cartvale, B.

Falconer of Thoroton, L.

Rendell of Babergh, B.

Farrington of Ribbleton, B.

Richard, L.

Fitt, L.

Rogers of Riverside, L.

Gallacher, L.

Sainsbury of Turville, L.

Goudie, B.

Sawyer, L.

Gould of Potternewton, B.

Serota, B.

Graham of Edmonton, L.

Sewel, L.

Gregson, L.

Shannon, E.

Grenfell, L.

Shepherd, L.

Hacking, L.

Shore of Stepney, L.

Hanworth, V.

Simon, V.

Hardie, L.

Skelmersdale, L.

Hardinge of Penshurst, L.

Smith of Gilmorehill, B.

Hardy of Wath, L.

Stallard, L.

Harris of Haringey, L.

Stoddart of Swindon, L.

Haskel, L.

Strabolgi, L.

Hayman, B.

Symons of Vernham Dean, B.

Hilton of Eggardon, B.

Tenby, V.

Hogg of Cumbernauld, L.

Thomas of Macclesfield, L.

Hollis of Heigham, B.

Turner of Camden, B.

Howie of Troon, L.

Uddin, B.

Hoyle, L.

Weatherill, L.

Hughes of Woodside, L.

Whitty, L.

Hunt of Kings Heath, L.

Williams of Elvel, L.

Hylton-Foster, B.

Williams of Mostyn, L.

Ilchester, E.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.3 p.m.
Lord Hunt of Kings Heath: My Lords, before we move to the Statement on the humanitarian crisis in central America, I should like to take this opportunity to remind the House that the Companion indicates that discussion on a Statement should be confined to comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords.

Humanitarian Crisis in Central America
Baroness Amos: My Lords, with the leave of the House I shall now repeat in the form of a Statement the Answer to a Private Notice Question being asked in another place on the humanitarian crisis in central America. The Statement is as follows:
"Nineteen ninety-eight has seen a record number of major natural disasters. Hurricane Mitch, the 13th and fiercest storm of the 1998 hurricane season, has caused widespread damage and severe loss of life across central America, particularly affecting Costa Rica, El Salvador, Guatamala, Honduras and Nicaragua. Guatamala, Honduras and Nicaragua are worst affected.
"Official reports indicate that 7,000 people have lost their lives; 9,000 are missing and about 2.5 million people are badly affected. The terrible contrast between the death toll in central America and the much lower loss of life in the equally terrible floods in Bangladesh cruelly demonstrates the importance of disaster preparedness in countries that are vulnerable to natural disasters.
"Since May 1997 my department has been working to strengthen the capacity of the international system to respond very quickly to emergencies wherever they arise. In the past, unco-ordinated shipments of aid and expertise often exacerbated rather than assisted such crises. The first step following Hurricane Mitch was that UN disaster assessment teams were mobilised. A British expert was made available. HMS "Sheffield" was in the vicinity and at the request of the local authorities was able to make available helicopters, engineers and medical support. DfID immediately contacted NGOs who were already working in the countries concerned to offer support. We have made available £200,000 to the Red Cross Regional Appeal and supplies were flown in yesterday. In Honduras, we have contributed £60,000 to the Pan American Health organisation for basic health care needs; £94,525 to CAFOD for food and household items and a grant of £100,000 to Christian Aid to supply medicines, temporary shelters, blankets and water containers. In Nicaragua, we have channelled £32,585 through the NGO CARE for the provision of safe water, food and clothes. We are also sending medical supplies to El Salvador to meet the needs of 20,000 people for three months. HMS "Ocean" and RFA "Sir Tristram" are also in the area and, at local request, are providing search and rescue and reconnaissance service.
"The EC Humanitarian Office has in the past few days allocated 6.8 million ecu for the disaster. We will do our best to ensure that this is disbursed as soon as possible.
"DfID recently agreed a new, enlarged development programme for central America to which we have committed £6 million. We are currently refocusing the programme to assist with reconstruction when the immediate crisis is under control.
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"On debt relief, which is of course irrelevant to coping with the immediate crisis but crucial for reconstruction, the Chancellor and I have been working since we formed our government to speed up the implementation of the Heavily Indebted Poor Countries initiative. Our aim is to ensure that every heavily indebted poor country that adopts economic policies which will reduce poverty will be on track for debt relief by the year 2000. Before the crisis, Nicaragua was on track to qualify and Honduras was unlikely to need debt relief. Obviously the crisis will disrupt Nicaragua's IMF programme and, sadly, Honduras's economy is likely to deteriorate so that it may well qualify for debt relief.
"The Chancellor and I announced that we are approaching the IMF and World Bank to try to get agreement that post crisis countries should be treated more flexibly for debt relief. We are pursuing a similar proposal to benefit post conflict countries. Progress on debt relief will be crucial to the reconstruction effort but does not of course assist the immediate crisis. We must also ensure that post-crisis countries, such as Bangladesh, which are not heavily indebted receive assistance for reconstruction.
"Sadly, it is likely that the region will suffer similar hurricanes in future. We must therefore ensure that the reconstruction effort focuses on reducing vulnerability; for example, by flood protection and through the appropriate location of new housing. It will also be necessary to strengthen local and regional capacity to respond when disaster strikes. We have recently agreed a major programme with the International Red Cross to strengthen such capacity in all developing countries.
"We will continue to monitor the situation carefully through the United Nations, the International Red Cross and at local embassies. We will still be working in central America when media interest has moved elsewhere".
My Lords, that concludes the Statement.
4.10 p.m.
Baroness Rawlings: My Lords, I thank the noble Baroness for repeating as a Statement the Answer given in another place. From these Benches, we fully support the remarks of the noble Baroness about the people of Central America who have suffered such an appalling catastrophe.
One of my earliest memories of working for the Red Cross is of such terrible tragedies. What the people of Central America must be going through in the wake of losing over 12,000 fellow citizens is unimaginable. Does the noble Baroness agree that they will need and deserve our full support for many years to come?
Perhaps I may pay tribute to the aid agencies, especially the Red Cross which was mentioned by the noble Baroness, for acting with such speed in seeking to bring emergency relief to those countries. However, given the scale of this disaster, with a loss of life far greater than any we have seen in recent years, does the noble Baroness believe that Britain's response to date has been commensurate with the need? Does she

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consider that the department has been sufficiently generous in making funds available? What plans does she have to make further funds available?
The noble Baroness rightly paid tribute to the anticipated role of the Royal Navy ships which are on their way to the region. What precise role does she expect our Armed Forces to play and to whom will they be accountable?
Can the noble Baroness confirm that the Secretary of State has now met the ambassadors of the Central American countries affected by Hurricane Mitch to discuss their specific needs face to face?
After two weeks of this crisis, with more lives being lost daily as a result of starvation and disease, what specific steps are being taken to avert the very real threat of more deaths from cholera?
The noble Baroness will understand that, in the context of such a devastating and distressing tragedy, we are reluctant to fire political criticism at Ministers when by far the highest priority is for Britain to play its full part in helping those who have suffered. However, is she aware that a humanitarian crisis, no matter how grave, is no excuse for sloppy government?
Can the noble Baroness therefore explain to your Lordships why, on the morning of Friday 6th November, the Secretary of State dismissed debt relief as misleading and irrelevant, but by the afternoon of Saturday 7th November, she issued a joint press statement with the Chancellor of the Exchequer which made debt relief an essential part of Britain's response to the crisis? Can the noble Baroness explain what changed the Secretary of State's position in that interim period of 24 hours? How had debt relief moved from being irrelevant on the Friday (without the qualification mentioned by the noble Baroness) to essential on the Saturday? Does she now accept that debt relief was relevant to the people of Central America the very second that Hurricane Mitch struck their towns and villages, and possibly even before that?
Far from taking a lead on this vital issue, does the noble Baroness accept that the Secretary of State has been led reluctantly to embrace a policy for which many world leaders had been calling since the crisis struck? Can she specifically confirm that the UK will now unilaterally suspend further debt repayments from these countries as well as calling for the IMF and other donor nations to do the same?
Finally, is the noble Baroness aware that tomorrow the Disasters Emergency Committee of our leading NGOs is launching an appeal for funds through the nation's media to provide for Central America? Can she confirm that this time, unlike with the Sudan appeal, Ministers will give unequivocal support to that appeal so that the great British public can give their money generously to the people of Central America, knowing that they have the Government's full backing?
4.16 p.m.
Lord Redesdale: My Lords, it is fortunate that we have been given this opportunity at such an early stage to learn the Government's reaction to the horrific
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situation in Central America. The death toll, which is staggering at the moment, will undoubtedly rise, not only over the next few weeks or months but also over the next few years because people will continue to be affected by the loss of their possessions, fields, crops and houses.
I have seen the effects of flash floods in Africa. When a bridge was lost it was helpful to know that the waiting supplies could nevertheless be brought across from the other side. The fact that supplies are not readily available seems to be the major problem facing Honduras and Nicaragua. I have also seen the effects of cholera. Work to prevent cholera must take place rapidly.
Debt relief has been mentioned. I support the position taken by the Secretary of Rtate that the immediate concern is to get the aid to where it is needed and to push for food, clothing and monetary support. I was gratified to hear the noble Baroness, Lady Amos, state that money is being supplied to the NGOs in the area rather than to agencies which would have to be flown in. The NGOs on the ground are the most effective and efficient disbursers of aid.
My question on debt relief has already been answered; namely, whether Honduras and Nicaragua can be given post-crisis status. It should not be forgotten—I am sure that the noble Baroness will correct me if I am wrong—that Nicaragua is now paying 1 million dollars a day in debt relief. That figure is totally unsustainable due to the loss of that country's infrastructure.
Is there any evidence that the severity of Hurricane Mitch was caused by global warming? If that was the cause—and it looks as though it was—there could be many more such disasters. The IMF and the World Bank may therefore need to take a new approach to post-crisis status for many countries, especially those likely to face such inclement weather.
I welcome the money that has been found from the DflD budget and from the already stretched disaster relief fund. I should be grateful if at some point—not necessarily now—the noble Baroness could say how much more could be found. How stretched is the disaster relief fund? Are any funds presently being made available to supplement that fund?
4.19 p.m.
Baroness Amos: My Lords, I thank the noble Baroness, Lady Rawlings, and the noble Lord, Lord Redesdale, for sharing our concern on this matter. I shall try to address all the points that have been raised. I should like to start with the point made by the noble Baroness in relation to debt relief and the comments made by my right honourable friend the Secretary of State for International Development. Perhaps I may make it absolutely clear that there has been no change in government policy as regards this matter. We are clear about the importance of focusing on the immediate need at times like this. Indeed, the immediate need is to ensure that food is taken to those areas where it is necessary and that we try to deal with shelter and the need for medicine.

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There is a separate point involved; namely, the issue of debt relief and the longer term. Debt relief is not instantly possible. There is a complex process which must be followed. There is a need to consider the relationship between exports and debt. Therefore, we are dealing with the immediate and longer term. The statements made by my right honourable friend the Secretary of State for International Development and the Chancellor of the Exchequer are entirely consistent in that respect. We seek flexibility from international organisations in terms of dealing with such matters.
As regards the question of looking for further funds, I can tell the House that we are aiming to provide an internationally co-ordinated response. The next step in terms of following up immediate relief is to put in hand arrangements to help those countries in what will inevitably be a long process of reconstruction. We are reviewing our proposed development programmes so that we are in a position to help with the rehabilitation effort. In regard to the question about the Secretary of State meeting the ambassadors from the relevant countries, I can tell noble Lords that such meetings have not taken place. However, the Foreign and Commonwealth Office and officials from the DfID have been in constant contact with those embassies.
I turn now to the Disaster Emergency Committee. I can confirm that we support fully the DEC appeal. The noble Lord, Lord Redesdale, asked about the size of debt relief to Nicaragua. The latter was due to qualify for debt relief next year. Given the scale of the disaster, it is our expectation that that will not now happen. Therefore, we shall have to return to the issue, but we feel that Nicaragua will again qualify for debt relief in the longer term.
The noble Lord also asked about global warming. I can tell the noble Lord that the Government are as concerned as he is that some of the issues surrounding deforestation may be having an impact on the scale of natural disasters in the region. One of the measures that the department will be taking is assessing the scale involved and carrying out some environmental needs analysis. It is better if countries are able to prepare for such disasters. A good example is Belize, whose disaster preparedness was better than that of Nicaragua and Honduras. Belize was able to move people from the areas which were worst affected and there was not such a high loss of life.
The noble Lord also asked how stretched is the disaster relief fund. At this point in time I can tell him that we feel that the amount we have allocated is sufficient to meet those needs. However, the position will be constantly under review.
4.23 p.m.
Viscount Montgomery of Alamein: My Lords, as I am probably the only Peer who has actually lived in central America, having spent two years in El Salvador during the early 1960s, I hope that I may be permitted to ask the noble Baroness a few questions. This is a most terrible tragedy affecting an area which has suffered many different tragedies from natural disasters over the years. To be more specific, is the noble
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Baroness aware that about 106 bridges in Nicaragua and about 93 bridges in Honduras have been destroyed? That represents an infrastructure disaster which will cause tremendous difficulty in terms of repair work and getting the economies of those countries going again.
Both countries have fragile export economies which are largely based on agriculture. Indeed, it is the agricultural potential, amounting to about 70 per cent of their export earnings, which has been effectively destroyed. Therefore, will the noble Baroness accept that one of the most urgent needs is for Bailey bridges, which can be assembled and put on site thus helping to repair the damaged roads and infrastructure? By the same token, there are other aspects involved which will need attention, including technical assistance in helping some of this reconstruction work to take place.
I believe that the noble Baroness has already said that the latter will be co-ordinated on an international basis and that in due course we will return to the subject of debt relief, which, as she rightly said, is a longer-term issue. However, the noble Baroness is perhaps not aware that I tried to table a Starred Question on this subject last week. I was not successful in that respect but tabled a Written Question instead. Therefore, if the noble Baroness does not have all the answers today, perhaps she could use the answer to that Written Question to elaborate further on the various points raised.
Finally, on the subject of non-governmental assistance, is the noble Baroness aware that the Anglo-Central American Society (a cultural and a social-related organisation, based at Canning House, whose president is my noble friend Lady Hooper) has been very active in this scene and launched an appeal which is worthy of support?
Baroness Amos: My Lords, I thank the noble Viscount for his questions. In particular, he mentioned the problems caused by infrastructure damage within Nicaragua. I should tell him that access has been opened up and communication has been re-established in that country. We need to focus particularly on reconstruction and on the long term. Indeed, the replacement of bridges would be an important part of that process. At present, the UN is engaged in a needs assessment exercise and we await the outcome of that process. As I said when repeating the Statement, the DfID has an adviser who is part of that needs assessment team.
As the noble Viscount will know, one of the strengths of the Department for International Development is its relationship with NGOs on the ground in Nicaragua. We have focused on using our relationships with those NGOs to ensure that we get immediate relief to people as they need it. We are concerned to ensure that all the relief efforts are co-ordinated so that they are as efficient and effective as possible. I shall write to the noble Viscount to deal with any other issues he raised that I did not fully address in my response today.
Lord Crickhowell: My Lords, when repeating the Statement the noble Baroness referred to the need to be prepared for disasters. However, how is it possible to prepare for a disaster so great that is destroys a very high proportion of the road and bridge network of the

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region, as my noble friend pointed out? Frankly, I was flabbergasted by the response of the noble Baroness to the effect that the communications infrastructure has already been substantially replaced. I simply do not believe that to be the case. Indeed, the evidence which is being presented on television programmes suggests that that is not so.
Can the noble Baroness tell the House what, in addition to the helicopters of HMS "Sheffield", this country can do—possibly through our Armed Forces—to provide the Bailey bridges and other equipment so urgently needed to re-establish basic communications? Without that equipment it will simply not be possible to get the badly needed food, water and medical supplies to the suffering populations of these two unhappy countries.
Baroness Amos: My Lords, in relation to the noble Lord's point about how it is possible to prepare for disasters, I should stress again the examples of Bangladesh and Belize. Hurricanes are not new in these regions, neither are floods. One of the things that we have tried to do is support those countries to enable them to prepare both in terms of strengthening the institutions and also by working with the populations, so that they know precisely what to do when a hurricane or a flood is predicted. This has resulted in not such a great loss of life when these disasters occur. That is an important point.
As regards the point about communications, I wish to make clear that access and communications are being re-established. I did not intend to say that these had been replaced, but we are pleased that access has been re-established because it allows us to work on the ground. Our ships were in the vicinity and have been asked to help not only with the provision of helicopters but also to give support with engineering and other such matters.
Baroness Hooper: My Lords, I congratulate the noble Baroness. I understand this may be the first time she has answered questions on a Statement from the Dispatch Box. I know that it can be a gruelling experience. Given the scale of the disaster, the loss of life and the great human tragedy that has occurred and the great significance of the loss of life to the small populations involved, it seems to me that the 6.8 million ecu being offered as help from the European Union as a whole is very much a drop in the ocean. Does that represent a first tranche of aid from the European Union? If not, will the British Government push our partners in the European Union to increase the amount?
Baroness Amos: My Lords, I thank the noble Baroness for her kind words. The £4.8 million allocated by the EC Humanitarian Office has not yet been disbursed. I think it is too early to say whether more money will be needed. We shall be in close touch with the EC Humanitarian Office on the need for further assistance for both relief and rehabilitation once the needs assessment has been carried out and once we know how the £4.8 million will be used. The priority
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right now is to ensure that what has been committed is spent quickly and effectively on those most in need in the region. We shall be keeping a watchful eye on the matter.
Lord Avebury: My Lords, will the Minister convey the warmest congratulations of your Lordships to the personnel of the British ships in the area on their wonderful rescue work and particularly the work of the helicopter crews in bringing to safety the lady who was adrift for five days in the ocean and whose remarkable recovery we all greatly welcome? Can the noble Baroness say whether the rescue efforts of Her Majesty's ships were sufficient to meet the needs or can any other ships be brought in from elsewhere in the region to supplement the tremendous work already done?
Further to the question of the noble Viscount, Lord Montgomery, has any thought been given to training units of the British Armed Forces, particularly the Royal Engineers, in emergency reconstruction work so that they may enter a region such as Nicaragua or Honduras immediately after a crisis such as this and restore communications as rapidly as possible?
Baroness Amos: My Lords, I shall certainly pass on the warm congratulations of the noble Lord to the Armed Forces. As regards the point about whether the rescue efforts have been sufficient, certainly to date all the requests that we have had from local authorities have been met. At this time we do not anticipate a need for other ships to enter the region. We shall consider the matter, but clearly timing is important. As regards the training of the British Armed Forces, I shall write to the noble Lord on the training that currently takes place and any additional training which is being considered.
Lord Selkirk of Douglas: My Lords, the noble Baroness is to be strongly congratulated on the positive Statement. I should mention that I am president of the International Rescue Corps. Is the Minister aware that there is a team of the International Rescue Corps who wish to express gratitude for the help they have received from government agencies and in particular from the joint operation which has included HMS "Sheffield" as they work their way towards Waspán in Nicaragua on the Rio Coco? Is she further aware that first reports indicate that notwithstanding the immensity of the problems facing them they are achieving positive results along with other groups?
Baroness Amos: My Lords, we are all extremely proud of the efforts made by all the agencies and organisations which have been involved in the relief effort. Like the noble Lord, I believe that we need to pass on our thanks to those agencies and organisations which have been involved.
Earl Attlee: My Lords, I, too, congratulate the Minister on her performance at the Dispatch Box. Will she elaborate on the role of the Armed Forces and in particular to whom they will be accountable?
Baroness Amos: My Lords, the Armed Forces will, as usual, report to their commanding officers and

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through them to the Ministry of Defence. There will be close liaison between their work and the work of the Department for International Development.
Baroness Thomas of Walliswood: My Lords, does the Minister accept that many of us are glad to hear what I think I understood her to say; namely, that the suspension of debt repayment is under consideration? Has she any idea of the kind of timetable we can look for?
Baroness Amos: My Lords, as regards debt relief, we are trying to ensure through working with our international partners that there is some flexibility in the process. At this time I am unable to tell the noble Baroness exactly what the timescale will be. However, once those discussions have taken place, I shall write and give a fuller reply.

Scotland Bill
4.37 p.m.
Consideration of amendments on Third Reading resumed.
Clause 22 [Standing orders]:
[Amendment No. 11 not moved.]
Clause 23 [Power to call for witnesses and documents]:
Lord Sewel Lord Sewel moved Amendment No. 12:
Page 10, line 42, leave out ("the Minister of the Crown,") and insert ("him (whether or not he continues to be a Minister of the Crown),").
The noble Lord said: My Lords, on the second day of Report the Government agreed to consider the amendment of the noble Lord, Lord Mackay of Ardbrecknish, that would extend to past Ministers of the Crown the same protection as is afforded to current Ministers of the Crown.
We have reflected on the amendment and conclude that it is indeed a valuable provision to make. Amendment No. 12 provides that the limitations set out in Clause 23(3) on the power of the parliament to impose a requirement on a person to attend its proceedings to give evidence, or to produce documents, also extend to former Ministers. We thought it sensible to extend this to former civil servants too, and that is what Amendment No. 13 does. In effect the parliament cannot impose requirements on a former Minister of the Crown or civil servant in relation to the exercise of ministerial functions, if it cannot impose such a requirement on the current Minister or his civil servants. I beg to move.
Lord Mackay of Drumadoon: My Lords, I welcome these two amendments which were discussed previously on 28th October, as the Minister said. They deal with a practical concern which I raised then. I am most grateful to the Government for responding positively.
On Question, amendment agreed to.
Lord Sewel Lord Sewel moved Amendment No. 13:
Page 11, line 1, after ("person") insert ("who is or has been").
On Question, amendment agreed to.
Clause 31 [Scrutiny of Bills by the Scottish Executive]:
Lord Sewel Lord Sewel moved Amendment No. 14:
Page 14, line 33, leave out from ("Parliament,") to end of line 39 and insert ("state that in his view the provisions of the Bill would be within the legislative competence of the Parliament.
(1A) The Presiding Officer shall, on or before the introduction of a Bill in the Parliament, decide whether or not in his view the provisions of the Bill would be within the legislative competence of the Parliament and state his decision.
(1B) The form of any statement, and the manner in which it is to be made, shall be determined under standing orders, and standing orders may provide for any statement to be published.").
The noble Lord said: My Lords, in moving Amendment No. 14 I shall speak also to Amendments Nos. 15 to 17. Before I discuss the details of these government amendments I wish to make it clear that in proposing amendments we do not seek at this stage to disturb amendments made earlier by the House to Clause 32.
Government Amendment No. 14 revises the formulation of Clause 31 and extends it to require the presiding officer, on or before the introduction of a Bill, to make a statement as to whether or not a provision of a Bill would be within the legislative competence of the parliament. This is similar to the requirement placed on a member of the Scottish executive when introducing a Bill. It will ensure that the parliament is aware of the presiding officer's views on the vires of any Bill. This gives the parliament important guidance about the competence of the parliament and allows the presiding officer to express his concerns if he has any. The final part of Amendment No. 14 is about the form of the statement. It provides that the form of the statements made by the Scottish executive and the presiding officer shall be determined by standing orders.
Amendments Nos. 16 and 17 make consequential provision in Clause 32. Government Amendment No. 15 is a drafting amendment. It is consequential upon the amendment made by the House to Clause 32(2). Given the earlier amendment, there is no need to refer in Clause 31(1) to subsection (2) and so Government Amendment No. 15 removes a redundant provision.
Perhaps it would be helpful if I explain to your Lordships what our thinking is in relation to Clause 32 as it develops. Noble Lords have put forward a persuasive case regarding the difficulties that a presiding officer, challenged in this way, would face if the parliament were able to question his authority, and we do not disagree with their views. However, we have looked closely at what the amendment made earlier achieves and we do not think it has quite the right effect. It would give the presiding officer the right of veto over which Bills were to be introduced into parliament.
Our thinking at the moment is to seek a position which would have the effect of deleting subsections (1) and (2) of Clause 32. This will ensure that the parliament is well aware of the presiding officer's views and that the presiding officer is not left in the

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uncomfortable and, we honestly believe, undesirable position of having an absolute veto over what Bills can be introduced into the parliament. I hope that noble Lords will agree that this addresses their concerns about the risk of conflict between the presiding officer and the parliament, but in essence that is a matter for a later date.
4.45 p.m.
Lord Mackay of Drumadoon: My Lords, as the noble Minister very properly said, these amendments fall to be considered against what happened on the 28th July, when your Lordships first debated the detail of Clause 32, or Clause 31 as it then was, beginning at col. 1368. This resulted in a Division, in terms of which an amendment standing in the name of the noble Earl, Lord Mar and Kellie, was allowed, and another one in my name, which brought about the introduction of the words,
"A decision made by the Presiding Officer under subsection (1) shall not be capable of being overruled by the parliament".—[Official Report, 28/7/98; col. 1369.]
I have to confess that when I first read the amendments tabled for Third Reading my impression was that the Government were content to accept their defeat on that occasion and were not minded to reverse the defeat that they had suffered. I then remembered, with a little prompting, the amendments which were put down at Report stage in relation to these two clauses. Amendment No. 119 was in identical terms to Amendment No. 14, as we now have it, and the next amendment, Amendment No. 120, sought to leave out subsections (1) and (2) of Clause 31, as it then was, and effectively to reverse the defeat suffered at the Committee stage.
After certain discussions with the noble Minister, Lord Sewel, and through the usual channels, I understood that it had been accepted by the Government that it is against the conventions of your Lordships' House, and indeed against the Denham Convention, to seek to overcome at a later stage of a Bill's passage through this House a defeat which the Government have suffered at an earlier stage. Having listened to the noble Minister this afternoon I have a mild concern, to put it no higher than that at this stage, that Amendment No. 14 is at the very least a stepping stone, and presumably a necessary stepping stone, to reversing that defeat.
If that is correct, the allowance of this amendment at this stage might amount to a breach of the Denham Convention, which was followed rigorously by the previous government despite the wishes of certain very senior Members of that government in another place who took some persuading, I understand, that the convention fell to be honoured in the way that it was. I therefore noted that when the noble Lord, Lord Sewel, said he was not seeking at this stage to overturn the defeat, this was something that might well come at a later stage.
If all that the Government intend to do in another place is to make the Bill more effective, that may be acceptable. But if this Amendment No. 14 is an attempt
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to overturn the earlier defeat then that may prove to be unacceptable, albeit that it may be something we are not really aware of until the Bill returns to this House, if that ever proves to be necessary. The noble Lord said it would be wrong for the presiding officer to have an absolute veto. It may be a necessary part of a devolution settlement of the nature which the Government are bringing forward that the presiding officer, and the clerks who work for him, may in fact have something in the nature of an absolute veto in deciding which Bills are presented to parliament and, indeed, which amendments to Bills are tabled.
To some extent the Clerks of your Lordships' House in the Public Bill Office have a veto in that in certain instances they can refuse to accept amendments because they do not fall within the Long Title or because they are in similar terms to amendments which have been debated and voted on at an earlier stage. I understand that in some instances the view adopted by the Public Bill Office is one which may not be particularly welcomed by the Government, and on other occasions it may not be welcomed by members of the Opposition parties. However, it is respected as a necessary and valuable procedure for regulating the affairs of your Lordships' House. So it may be wrong to rule out the presiding officer having an absolute veto, as the noble Minister rather suggested in his speech was the Government's intention.
So far as this afternoon is concerned, I would be content to allow these amendments to be accepted, but I hope that before any amendments are tabled in another place, and before the Government decide what view they should adopt when this Bill returns to another place, it may be possible for my comments to be given further consideration; and as always I would be happy to discuss the matter further with the noble Minister.
The Earl of Mar and Kellie: My Lords, the noble and learned Lord, Lord Mackay of Drumadoon, is right. The Public Bill Office does have a veto, and I have enjoyed being in receipt of one on more than one occasion. I think I am content with the amendment because it is important that the presiding officer should form a view about whether the proposed legislation is intra or ultra vires. I suspect that in most cases it is unlikely that a Bill will be introduced which is wholly ultra vires and that this is a notice being served on the person proposing the legislation that they should get it sorted out during the process of scrutiny.
Lord Sewel: My Lords, as regards the point made by the noble and learned Lord, Lord Mackay of Drumadoon, I wish to make it absolutely clear that Amendment No. 14 does not breach any convention. It would apply irrespective of the decision on the reversal of the defeat suffered by the Government previously. So, no matter what happens in relation to that separate clause, we should still seek the provision in this clause. The amendment simply ensures that the parliament has the presiding officer's views on the vires of any Bill. I

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had hoped to be of some help to the House in indicating the way the Government's thinking was going; I have learnt my lesson.
Lord Mackie of Benshie: My Lords, I wish to make a simple point about correctness to the Lord Mackay of Drumadoon. The expression, "noble Minister", is one that I dislike. Lords are "noble" by axiom and by custom. Ministers and ability are a matter of opinion.
On Question, amendment agreed to.
Lord Sewel Lord Sewel moved Amendments Nos. 15 to 17:
Page 14, line 40, leave out (", subject to subsection (2),").
Page 14, line 41, leave out ("Presiding Officer decides") and insert ("decision of the Presiding Officer under section 31(1A) is").
Page 15, line 1, leave out from beginning to ("shall") and insert ("Such a decision of the Presiding Officer").
On Question, amendments agreed to.
Clause 35 [Power to intervene in certain cases]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 18:
Page 16, line 20, leave out ("at any time during").
The noble and learned Lord said: My Lords, perhaps I may also speak to Amendments Nos. 18 to 21. I stand corrected by the noble Lord, Lord Mackie of Benshie. I should of course have referred to, "the noble Lord the Minister". Perhaps I may gently encourage the noble Lord, Lord Mackie of Benshie, to look at his intervention in Hansard tomorrow to see whether, in addressing me, he referred to me in the correct terms.
Lord Mackie of Benshie: My apologies, my Lords.
Lord Mackay of Drumadoon: My Lords, one benefit that law officers and former law officers have is that they are always regarded as learned, whether or not that is justified.
I return briefly, but seriously, to a point that I raised on Report on 28th October. It is focused in Amendments Nos. 18 to 21 on Clause 35. I wish to take up a concern expressed by the noble and learned Lord, Lord Hope of Craighead, in Committee regarding whether Clause 35 as currently drafted might result in the judicial committee having to hear to completion references made under Section 33. The problem arose in terms of Clause 35(3)(c). The noble and learned Lord felt that, as drafted, the clause would require the judicial committee to go ahead with a case even if the Secretary of State knew all along that he would make an order within the terms of his power to do so under subsection (1).
On that occasion the drafting of my amendment was correctly criticised by the noble and learned Lord the Lord Advocate. I have redrafted the amendments and I hope that they are now immune from the criticism made on that occasion. The sole purpose of these amendments is to prevent the judicial committee carrying on with work which the noble and learned Lord, Lord Hope of Craighead, thought to be unnecessary. I beg to move.
Lord Hardie: My Lords, I am grateful to the noble and learned Lord for explaining Amendments Nos. 18
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to 21. However, the Government do not consider that they are necessary, nor that they would meet the concern that he has raised.
As I understand the noble and learned Lord's explanation, he is focusing on the point raised by the noble and learned Lord, Lord Hope of Craighead, in Committee. I assure the House that we have taken the point seriously. We appreciate that, if the Secretary of State uses his power to prohibit a Bill proceeding to Royal Assent after the judicial committee has determined that a Bill is within the legislative competence of the parliament, it could be argued that this would be wasteful of the time of the judicial committee. However, as I have explained, the noble Lords' amendment would not have the effect of preventing that. It would be prevented only if Clause 35(3)(c) was deleted.
As the Government have already made clear on a number of occasions, this and the other powers of intervention are meant to be long-stops. Their existence should be sufficient to ensure consultation between Whitehall and Edinburgh so that there may be no need for them to be used. The incentives to avoid their use will be particularly strong in the case of a Bill that has been examined by the judicial committee. Against that background we concluded that it was right for the Secretary of State to have the option of using his power under Clause 35 after the vires of a Bill have been established.
Perhaps I may explain the point in a little more detail. Under Clause 33 questions about devolution issues can be referred to the judicial committee by the law officers of the United Kingdom Government, followed by the Lord Advocate as law officer to the Scottish executive. There is a variety of reasons why that may happen. The United Kingdom Government might be concerned that the Scottish parliament was straying beyond its competence, or the Lord Advocate could have doubts about the vires of a Private Member's Bill.
In the Government's view, it should be for the law officer who made the reference to decide whether it should be withdrawn if the Secretary of State indicated an intention to use Clause 35. A law officer to the United Kingdom Government might choose to do that in some circumstances; however, in other circumstances there might be a strong case for the devolution issue concerned to be determined by the committee. Even if the Bill concerned does not subsequently proceed in the same form, it may be desirable for the issue of vires to be clarified. With that explanation, I invite the noble and learned Lord to withdraw the amendment.
Baroness Carnegy of Lour: My Lords, before the noble and learned Lord sits down, and with the leave of the House, he is repelling this amendment on the grounds that the circumstances he described might happen. He has not said that the judicial committee's time could be wasted in certain circumstances. If that were the case, and in view of the important business conducted by the judicial committee—we have only to turn our minds to what is presently happening elsewhere in this House to see how important that can be—why not accept the amendment? I do not know whether it is

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a matter of nobody listening to the noble and learned Lord when he talks to them, but this provision seems so sensible that I do not understand why he has not persuaded the Cabinet.
Lord Hardie: My Lords, I am sorry if the noble Baroness thinks that I do not listen. I assure her that I always listen to submissions on the part of noble, and noble and learned Lords. Perhaps I may explain what would happen.
If a reference was made to the judicial committee, and if after the four-week period but during the period of the reference the Secretary of State decided that he wished to make an order, what would happen is that the Secretary of State would make that fact known to those parties who were parties to the proceedings before the judicial committee. It would be for the law officer who had made the reference to the judicial committee to consider whether or not to withdraw it. I imagine that in most cases the law officer would withdraw the reference for the very reason given by the noble Baroness—namely, to save the time of the judicial committee.
However, there might also be cases where the law officer considered that the issue in the case ought to be determined by the judicial committee so that clarification could be sought from the supreme judicial body as to the proper construction, so that the same difficulty would not arise in future.
By rejecting the amendment, we keep the flexibility available to the law officer—not just the Lord Advocate but the law officer of the United Kingdom Government. As I said, the law officer of the United Kingdom Government may well decide, although the Secretary of State will be a member of the United Kingdom Government, in certain special circumstances that he or she still wishes for a decision of the judicial committee. It is for that reason that we invite the noble and learned Lord to withdraw the amendment. I hope that this additional explanation has clarified my position. I apologise to the House if my explanation was not clear on the first occasion.
Lord Hope of Craighead: My Lords, before the noble and learned Lord sits down, and again with the permission of the House, is it envisaged that the judicial committee will be kept informed about the kind of discussions to which the noble and learned Lord referred? I ask that question because it seems to me that on occasions some of the issues which require reference to the judicial committee will be extremely urgent. We have the experience, with matters going on upstairs this week, of the disruption to the programme of hearings which can occur if urgent cases are slipped in out of order.
Plainly it is the responsibility of the judicial committee to deal promptly with urgent cases; but if the case is one where hanging over the decision is the Secretary of State's view which will result in the
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legislation not proceeding anyway, it might well affect the view about timetabling. It would be beneficial to the jucidial committee to know about it.
Lord Hardie: My Lords, the rules for the judicial committee would be a matter for that committee. I see no reason why the committee should not be advised that the matter was in issue and that the case was therefore no longer as urgent as one might normally expect.
Lord Mackay of Drumadoon: My Lords, it is quite obvious that since the matter was first raised much further consideration has been given to it. I am grateful to the noble and learned Lord the Lord Advocate for making that clear. As he rightly says, rules will have to be made for the work of the judicial committee. My recollection is that we have had some discussion already about the need for an order in council and whether it will be necessary to make a provision about the issue in the order in council. It may be a matter for further reflection.
So would the issue which the noble and learned Lord raised as to whether the law officer who made the reference would have the right to withdraw it. There may well be an argument that if one law officer has placed an issue before the judicial committee, it is not up to him to withdraw it unilaterally. There may be the view that the other law officers have a right to insist that it goes ahead and the judicial committee itself, having been seized of it, may fall to be given discretion or to have a role in the matter. That too is an issue which might be addressed in the Order in Council, a draft of which we have already seen.
I accept the force of the point made by the noble and learned Lord that in certain instances it may be desirable that the devolution issue raised be determined, even though it is intended that the Secretary of Sate should, in the fullness of time, proceed with a Clause 35 order because the judicial committee's decisions on determinations will be of value in future cases, not just in the one before them.
I am not entirely satisfied that my amendments would have precluded that from happening, but I am satisfied that the concern which was raised initially by the noble and learned Lord, Lord Hope of Craighead, has been given much fuller consideration. For those reasons, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5 p.m.
[Amendments Nos. 19 to 21 not moved.]
Clause 36 [Stages of Bills]:
[Amendment No. 22 not moved.]
Clause 40 [Proceedings by or against the Parliament etc.]:
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 23:
Page 18, line 45, after second ("the") insert ("Parliamentary").
The noble Baroness said: My Lords, this is a drafting amendment to ensure drafting consistency in the Bill. It makes it clear that "the corporation" referred to in

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Clause 40 is the Scottish parliamentary corporate body. As provided for by Clause 21(1), the SPCB is referred to throughout the Bill as "the Parliamentary corporation". The amendment brings the reference in Clause 40 into line with that. I beg to move,
On Question, amendment agreed to.
[Amendment No. 24 not moved.]
Clause 44 [The Scottish Executive]:
Lord Sewel Lord Sewel moved Amendment No. 25:
Page 20, line 5, at end insert—
("(3) A person who holds a Ministerial office may not be appointed a member of the Scottish Executive; and if a member of the Scottish Executive is appointed to a Ministerial office he shall cease to hold office as a member of the Scottish Executive.
(4) In subsection (3), references to a member of the Scottish Executive include a junior Scottish Minister and "Ministerial office" has the same meaning as in section 2 of the House of Commons Disqualification Act 1975.").
The noble Lord said: My Lords, on Report we accepted noble Lords' valid concerns that it would be inappropriate for a person to hold office as a Minister of the Crown and as a member of the Scottish executive. We agreed to come back at Third Reading with amendments which would prevent that. This is exactly what the amendment does. I beg to move.
Lord Mackay of Ardbrecknish: My Lords, I warmly welcome this government amendment. It has been quite a long haul to persuade the Government of its merits. I re-read the defences of the Government's position which were put forward by the noble Baroness, Lady Ramsay, at Committee stage. I will spare her blushes by not repeating any of the defences.
This is a sensible proposition. We have argued it through the Welsh and the Scottish Bills. We have received absolutely no agreement from the Government on the Welsh Bill and in some ways they have got themselves into a real jam, simply because they did not accept our amendment. If they had done so, their political problems in Wales would perhaps not be on the same scale as they are today. However, that is an aside. Why should I intrude on a private grief? I shall not even say that I have some sympathy with Mr. Rhodri Morgan. I hope that he has not allowed himself to be beaten into submission. The amendment we are now discussing would have made the position in Wales much clearer.
However, be that as it may, we have made progress with the Scottish Ministers who are clearly more enlightened and more open to argument than are our Celtic cousins who are looking after the Welsh Bill. This is sensible. Mr. Donald Dewar rightly recognised that at the beginning when for a few hours he thought he might manage to be the Secretary of State for Scotland and the First Minister or Prime Minister for Scotland. He quickly saw that that was an impossible position and made it clear that he would not contemplate it. He was absolutely right and the Government are right. I am grateful to them for accepting our argument and warmly welcome the amendment.
Lord Crickhowell: My Lords, I join in congratulating the Minister on moving such a sensible
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amendment. I was astonished when I saw it on the Marshalled List in the light of the arguments that were advanced, day after day, in the various stages of the Welsh Bill, as to why we should not have a similar amendment. Initially I was ridiculed and told that the point I was making was absurd and that the whole thing was totally unnecessary.
When this House backed me and we sent our amendment to the Commons, the tone of the Government changed because they had discovered that quite a lot of their people in the other place thought that the proposition that there should be a dual mandate was pretty unsatisfactory. The Minister in another place conceded a large part of the case.
Nevertheless, when pressed by Mr. Dafydd Wigley to have a clear-cut amendment, the Government refused and referred to the need for transitional arrangements during the handover period, while the orders were being made. They argued that there might be future occasions on which it would be desirable to have a dual mandate and that therefore it would be quite wrong not to have scope for it; that the flexibility was needed. However, apparently now in the Scottish Bill flexibility is not needed. I am not sure why it should be needed in the case of the Welsh Bill and not in the case of the Scottish Bill, but there we are.
I take the opportunity to comment in the light of events taking place, I believe, this very afternoon in Wales, where decisions are being taken about the form of election to be held for the leadership of the Labour Party in the assembly in Wales. I remind noble Lords of the firm commitments that were given in both Houses as to what would happen in Wales. We did not succeed in getting a statutory prohibition written in, as is now the case in Scotland. But we received the undertaking that the dual mandate would only be held for a short transitional period. On the specific authority of the then Secretary of State for Wales, who on that occasion was sitting on the steps of the Throne, the Minister who replied to the House, the noble Lord, Lord Williams of Mostyn, said that he would be surprised and disappointed if the period of the dual mandate extended to as much as 12 months.
I hope that those specific undertakings, on the basis of which I withdrew the amendment, will not now be overlooked, that Ministers will hold to their promises, particularly in the light of the amendment that has now been moved for Scotland, and that there will be no question of a dual mandate being held by the present Secretary of State or indeed anyone else in Wales.
Lord Sewel: My Lords, as would be expected, I welcome the welcome that the amendment has received. For the sake of accuracy, perhaps I may point out that it is not so much the blushes of the noble Baroness, Lady Ramsay of Cartvale, that should be spared but my own. I plead that I was trying to look after the future employment prospects of the noble Lord, Lord Mackay of Ardbrecknish, when advancing those arguments. Perhaps I may say to the noble Lord, Lord Crickhowell, that I almost came close to reconsidering my position on this amendment the further he advanced his case. The point we are making is that Scotland is Scotland and

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Wales is Wales. Scotland will have a parliament with primary legislative responsibility. That is fundamentally different from the Welsh Assembly, which has only secondary legislative powers. On that basis, I commend the amendment to the House.
On Question, amendment agreed to.
Clause 52 [Exercise of Functions]:
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 26:
Page 23, line 17, leave out ("Subsections (3) and (4) do") and Insert ("Subsection (4) does").
The noble Baroness said: My Lords, Amendment No. 26 is a drafting amendment to Clause 52 to remove an unnecessary reference to Clause 52(3) in Clause 52(5). Clause 52(3) provides that statutory functions of the Scottish Ministers shall be exercisable by any member of the Scottish executive. Clause 52(5) currently provides that subsection (3) does not apply in relation to the exercise of functions conferred on the First Minister alone and to the Lord Advocate's retained functions. However, as these functions would not be functions of the Scottish Ministers, it is unnecessary to provide that Clause 52(3) does not apply. Accordingly, the amendment deletes the reference to Clause 52(3). I beg to move.
Lord Mackay of Drumadoon: My Lords, the noble Baroness will be delighted to hear that on this occasion I fully accept her explanation that it is a technical amendment. I have to say that, before she spoke, I did not think that it was, but I am now quite persuaded that it is. I do not oppose the amendment.
On Question, amendment agreed to.
Clause 53 [General transfer of functions]:
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 27:
Page 24, line 5, at end insert—
("( ) This section and section 54 are modified by Part III of Schedule 4.").
The noble Baroness said: My Lords, I am tempted to say that this is yet another drafting amendment. The amendment makes it clear that Clauses 53 and 54, which transfer to the Scottish Ministers those ministerial functions which are exercisable within devolved competence, are modified by Part III of Schedule 4. I could give a good deal more detail if it were asked for. However, in the circumstances, I commend the amendment to the House. I beg to move.
Lord Renton: My Lords, we shall not contest the amendment but I have to express surprise about the use of the word "modified". It is a fairly new word to be used in the statute book. Indeed, I do not remember it being used until this Session. In the course of time the word will no doubt be given a particular meaning and effect, but I hope that the Government will resist using it as much as they can. I do not think it is a good expression to use. "Modify" generally means "reduce". That is not what is intended here. It is intended to say:
"This section and section 54 are to be considered in the light of Part III of Schedule 4".
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I hope that I am not out of order in saying that we should in future be very careful about the use of the word "modify".
Baroness Ramsay of Cartvale: My Lords, I shall pass on the noble Lord's comments to the parliamentary draftsman. I am sure that what he has said will be read and noted.
On Question, amendment agreed to.
Clause 71 [Existing debt]:
Lord Hardie Lord Hardie moved Amendment No. 28:
Page 31, line 18, leave out ("This section applies") and insert ("Subsections (2) to (4) apply").
The noble and learned Lord said: My Lords, in moving Amendment No. 28, I shall, with the leave of the House, speak also to Amendments Nos. 29, 30, 31 and 78. These are technical amendments. Their purpose is to allow provision to be made to ensure that outstanding debt owed by the Registers of Scotland Trading Fund to the National Loans Fund is repaid after devolution when the Registers of Scotland become part of the Scottish administration.
As noble Lords will be aware, the Keeper of the Registers of Scotland is responsible for maintaining various registers. He exercises those functions through the Registers of Scotland Executive Agency. It operates as a trading fund under existing trading funds legislation. That legislation will cease to apply to the Registers of Scotland when it ceases to be a United Kingdom government department and becomes part of the Scottish administration on devolution. That would leave outstanding debt owed by the trading fund to the National Loans Fund in limbo.
The effect of the amendments will be to enable the Secretary of State to order that the existing debt which is deemed to be owed by the trading fund to the National Loans Fund be treated as an advance from the Secretary of State to Scottish Ministers. The Scottish Ministers will have to continue to repay the debt on existing terms and conditions and the Secretary of State will pay the proceeds into the National Loans Fund. This will ensure that the outstanding debt can continue to be repaid to the fund. I beg to move.
5.15 p.m.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble and learned Lord for his explanation. I think it is a good job he did not say that it is a drafting amendment. It certainly sounded fairly technical and seemed to have some connection with debt relief, which is very fashionable these days. However, it sounded all right. I suspect that I shall have to read it fully to understand and appreciate it. I think we are content with the amendment.
Lord Simon of Glaisdale: My Lords, the noble and learned Lord is right in saying that this is a technical amendment in the sense that it deals with the technicalities of advances from the Treasury. However, it is on the face of it a substantial amendment. In fact,

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the whole of page 4 of the Marshalled List is made up of government amendments. So that calls for us to think what has happened.
When the Bill was introduced into this House it had already gone through the other place. However, it was still 96 pages long. The Bill we are now considering, as amended on Report, is 111 pages long. Most of the increase—15.5 per cent.—arises from government amendments; and so today we are adding more and more government amendments. We are bound to ask why we are in the position of constantly inflating the statute book from stage to stage. Even after the Bill has been considered by one House, we go on making it longer and longer at the instance of the Government. The reason is that we try to draft in an over-elaborate way.
The matter was referred to by the Renton Committee on the preparation of legislation. In fact, it was referred to under the title "Over-Elaboration". In paragraph 6.5 of the report the committee quotes with approval a memorandum from two great Scottish judges, my noble and learned friend Lord Emslie and the late Lord Wheatley, who at the time were Lord President and Lord Justice Clerk. This is what they said:
"Most of the problems encountered by the Courts flow directly from the tendency of Parliament to ignore the virtue of enacting broad general rules in which the principal and over-riding intention can be readily seen, and to try to legislate in detail for particular aspects of the mischief which presumably the statute is intended to curb. It is an eternal truth that one can seldom foresee every combination of circumstances which may arise, and the practical consequence of attempting to do so and of drafting a statute so as to concentrate unduly on foreseen examples is more often than not to conceal the general intention and the ambit of that intention in a welter of detached provisions which leave one in doubt as to whether a particular combination of circumstances not expressly provided for was intended to be covered at all. It is probably the case that legislation in detail is resorted to because Parliamentarians harbour the suspicion that judges cannot be trusted to give proper effect to clear statements of principle. This, with respect to them (the Parliamentarians), is wholly unfounded. Indeed, so far as Scots judges are concerned, the strength of their common law system lies in its reliance upon broad statements of principle, and there is no reason to suppose that similar broad statements of principle in statute law would not, in their hands, be applied to the facts of any given case, to achieve the will of Parliament".
That is precisely true also of English common law principles, as I am sure the noble and learned friend will bear out, and why this Bill in particular is so massive and has grown and is still growing. That brings me back to ask the noble and learned Lord why that should be so.
Noble Lords will remember that Sir Robert Andrew, who was asked to advise on the Government Legal Services, advised that parliamentary counsel should be responsible to the Law Officers. That was his only recommendation that was disregarded. The same recommendation was made by an authoritative committee of the Hansard Society on legislation and its preparation under the chairmanship of the late Lord Rippon. I ask again: when will an important body of lawyers in the Government be made responsible to someone other than the Prime Minister, to whom at the moment they are solely responsible; for example a legal officer such as the Lord Chancellor or the Attorney-General who will ensure that the drafting does
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not continue in this over-elaborate way but lays down general principles as recommended by the Renton Committee?
Lord Renton: My Lords, I rise briefly to support the noble and learned Lord, Lord Simon of Glaisdale. It is important that he reminds us of the views of the committee which are just as applicable today as they were as long ago as 1975 when the report was published.
The noble and learned Lord has pointed out that since the Bill came before the House a tremendous number of government amendments has been tabled. I am surprised by that, bearing in mind that the intention to legislate on this matter was expressed in the Queen's Speech as long ago as May 1997. In Scotland the Law Officers who advise the Scottish Office are responsible for parliamentary counsel. It is only in England and Wales and in general that parliamentary counsel in Whitehall are responsible to the Prime Minister but in Scotland it is different, and I believe wisely so.
This was not an easy Bill to draft and I am not surprised that there have been a number of government amendments, but I believe that the matter should have been considered in much greater depth at an earlier stage, even before the Bill reached another place. In another place legislation is not considered with the thoroughness that noble Lords display in this matter. I believe that to be due in part to the fact that the other place does not have the same degree of expertise and legal learning. Therefore, noble Lords have a very important task in considering the further amendments that the Government have introduced and, on their own initiative, improving the Bill in general as they have tried to do.
I am very reluctant to criticise the Lord Advocate because I believe that he has done great service to us in the course of this Bill. But I believe that there is a general matter for consideration here which applies especially to this Bill that devolves powers to Scotland. As the noble and learned Lord said, this is of very general application. I hope that in future sessions the Government will bear in mind that legislation is of vital importance, difficult and requires a great deal of consideration before Parliament is ever asked to consider it.
Lord Hardie: My Lords, I am grateful to the noble and learned Lord, Lord Simon, and to the noble Lord, Lord Renton, for their interventions. While the question of accountability of parliamentary draftsmen is a matter of general interest and importance, it goes beyond the scope of this amendment. Further, the procedures in the Scottish parliament, once it is established, for pre-legislative scrutiny by a committee will be a vast improvement on the present procedures in Westminster. I believe that to be a positive advantage of this Bill which I hope noble Lords will acknowledge.
I turn to the question of why this amendment is required. I apologise to the House if I have not already explained the matter. In the transitional period the Government are anxious to ensure that the registers can continue to operate broadly as they do at the present time.
5.30 p.m.
Lord Simon of Glaisdale: My Lords, if the noble and learned Lord will allow me to intervene, we were not complaining of the noble and learned Lord's explanation. We were complaining about the length of the amendment introduced at this stage.
Lord Hardie: My Lords, I understand that. Perhaps I may explain to the noble and learned Lord that other provisions in Clause 129 enabling an Order in Council to deal with transitional and transitory provisions will achieve the objective of enabling the registers to continue to operate broadly, as now. However, in considering these matters it was noted that provisions relating to the National Loans Fund could not be included in that general transitional provision or general Order in Council because there is apparently an agreement with the Public Accounts Committee that there must be specific provisions in primary legislation dealing with the loans fund. That is why the provision is brought forward. I apologise that that matter was not picked up before this stage. I hope that with that explanation noble Lords will accept the amendment.
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendments Nos. 29 to 31:
Page 31, line 35, at end insert—
("(4A) Subsection (4B) applies to any amount outstanding immediately before the commencement of this subsection in respect of the principal of the sum treated by virtue of section 2(3) of the Government Trading Funds Act 1973 as issued to the Registers of Scotland Executive Agency Trading Fund on the day on which the order establishing that fund came into force ("the issue date").
(4B) The Secretary of State may, with the agreement of the Treasury, by order provide—

(a) for the amount to be treated as an advance made by him to the Scottish Ministers on the issue date, and

(b) for the advance to be repaid to him at such times and by such methods, and for interest on the advance to be paid to him at such rates and at such times, as were determined by the Treasury under section 2B(3) of that Act in respect of the sum referred to in subsection (4A).").

Page 31, line 36, after ("(4)'') insert ("or (4B)").
Page 31, line 38, after ("(4)") insert ("or (4B)").
On Question, amendments agreed to.
Clause 79 [Supplemental powers to modify enactments]:
Lord Sewel Lord Sewel moved Amendment No. 32:
Page 38, leave out lines 7 and 8.
The noble Lord said: My Lords, with Amendment No. 32 I speak also to Amendments Nos. 47, 48 and 57.
Government Amendment No. 48 amends the definition of "enactment" provided by Clause 126 to make it explicit that it includes future Acts of Parliament and subordinate legislation made under such Acts. This definition will apply throughout the Bill. It allows Amendments Nos. 32 and 57 to remove existing provisions which apply only for the purposes of Clause 79 and paragraph 2(5) of Schedule 4 and which are now redundant.
Government Amendment No. 47 is the so-called disappearing amendment. It replicates Amendment No. 204A which was omitted at Report stage because of
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a printing error on the Marshalled List. Fortunately for everyone the error was spotted by the noble Earl, Lord Balfour. I am very much in his debt for spotting it and alerting us to it. This makes amends for that. I beg to move.
The Earl of Balfour: My Lords, I thank the noble Lord for his kind remarks. It is always a pleasure to be of help sometimes.
Lord Mackay of Ardbrecknish: My Lords, I am sure we are all grateful to my noble friend Lord Balfour for the way in which he scrutinises legislation to make sure that the Government do not make mistakes. Perhaps I may revert back to the last debate. I am sure that the noble and learned Lord, Lord Simon of Glaisdale, will be happy to note that five lines have been taken out of the Bill and three lines added, with a net loss of two lines. I suppose progress is made slowly.
On Question, amendment agreed to.
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 33:
Before Clause 86, insert the following new clause—

REVIEW OF IMPACT OF THIS ACT ON PARLIAMENT
(" .—(1) The Secretary of State shall review the impact of this Act on the functions, powers and composition of each House of Parliament and shall report thereon at such intervals as he considers appropriate.
(2) Any report under subsection (1) shall be laid before each House of Parliament.").
The noble Earl said: My Lords, I return to the subject of Scottish representation in both Houses of Parliament after devolution. Superficially what is different is that this time I have managed to bring forward a substantive amendment. For that I give thanks to the Public Bill Office and to the wisdom, or perhaps the desperation, of the staff.
The amendment places a duty on the Secretary of State to review the performance after devolution of MPs and Peers from Scotland. It is true that there will be less Scottish legislation processed by this Parliament. Paradoxically, it is also true that this United Kingdom Parliament will make laws for Scotland and will modify the Scots law within the context of reserved powers legislation. In view of the imminent changes to the membership of both Houses, I believe that a watching and reporting brief will be necessary and useful.
In another place it seems likely that the number of Scots MPs will be reduced to around 58. I believe that we can expect these MPs to be regular attenders. In this House the number of Scots attending will soon be drastically reduced by the anticipated peerage Bill. The number of life Peers domiciled in Scotland is around 40. For many reasons it cannot be envisaged that they will all attend the House regularly. I believe that insufficient Scots will be domiciled Peers who will attend regularly and scrutinise Scots legislation.
I do not defend the hereditary Peerage. But I wish to assert that Peers from Scotland have attended this House by statute since 1707. Articles 22 and 23 of the Union Acts laid down the statutory principle of Scottish

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representation in this House. The Union Acts were amended in 1963 by the removal of the restriction to 16 imposed on the Peerage of Scotland by the treaty. Curiously, the two historic subsidiary Acts which deal with elections to both Houses seem still to be on the statute book despite amendments in 1963.
I choose to make the same error as my historic predecessors in trying to regard the Act of Union as a part of a written constitution. Therefore the historic principle of Peers from Scotland being a statutorily guaranteed element in this House requires us to put in place a system of monitoring and remedy in view of the substantial and welcome changes that are being made at this time. I beg to move.
Baroness Carnegy of Lour: My Lords, the noble Earl makes an interesting point. But I do not know whether the amendment is the right way to confront it.
In his reply, can the Lord Advocate tell us what we shall and shall not be discussing in this House in relation to Scotland? Is there a boundary to what the House of Lords will be able to discuss? It is a matter of considerable concern in Scotland to those people who interest themselves in what is going on as regards the House of Lords. It will be interesting if the noble and learned Lord can give an answer. I do not think that we have had one during the passage of the Bill.
Lord Hardie: My Lords, perhaps I may deal with the point raised by the noble Baroness, Lady Carnegy of Lour. My noble friend Lord Sewel dealt with the issue in some detail on Report. I refer the noble Baroness to the proceedings in Hansard. I shall write to the noble Baroness to give her the column number in Hansard at which a detailed answer was given as to precisely which issues may be dealt with here.
I agree with the noble Baroness that the noble Earl's amendment is interesting. However, I regret that it is not one that the Government can accept. The amendment explores what effect devolution will have on both Houses of the Westminster Parliament. The issue is already being considered by the Procedure Committee of another place. That committee is conducting an inquiry into the procedural consequences of devolution. If I understand the noble Earl's amendment correctly, he is proposing that role for the Secretary of State.
The remit of the Procedure Committee is to consider what changes are necessary as a consequence of devolution legislation not just in respect of this Bill but the Government of Wales Act and the Northern Ireland Act, too. As I am sure your Lordships are aware, the committee is considering issues such as whether it is possible to lay down clear principles as to the House's relationship with the Scottish parliament and Welsh and Irish assemblies. Consideration is also being given to the future of the Scottish Select Committee and the Scottish Grand Committee. The Government hope shortly to submit their evidence to the Procedure Committee. They will address the consequences of devolution to the Scottish parliament, the Welsh assembly and the Northern Ireland Assembly.
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The Government remain of the view that it is best to allow this Parliament to consider for itself the consequences of devolution. They do not believe that it would be appropriate for the Secretary of State to carry out such a review. Indeed, we should not look in isolation at the affect of any one piece of devolved legislation.
The point raised by the noble Earl in relation to the number of Scottish Peers working in this House is not a matter for this Bill, as I explained previously. The Bill makes no changes to the composition of procedures of your Lordships' House and I invite the noble Earl to withdraw the amendment.
The Earl of Mar and Kellie: My Lords, I am pleased to hear that the Procedure Committee is examining the matter. It certainly needs to be examined and I look forward to reading its report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 86 [Scottish representation at Westminster]:
Viscount Dunrossil Viscount Dunrossil moved Amendment No. 34:
Page 40, line 29, at end insert—
("3B. A constituency which includes the Western Isles (na h-Eileanan an Iar) shall not include the whole or any part of a local government area other than the Western Isles.";").
The noble Viscount said: My Lords, my purpose in bringing forward the amendment is certainly not to try to embarrass the Government; nor is it to impose yet further delay in the passage of this important Bill. It has already been argued about at some length and is now in its final stages.
I should declare interests—one official and one personal—which may help briefly to explain why I feel obliged to propose the amendment to safeguard the Western Isles parliamentary constituency. First, I live in North Uist in the Western Isles where I currently serve as Lord Lieutenant. I am therefore deeply concerned about the Western Isles' general well-being. Secondly, as the amendment refers exclusively to the parliamentary constituency of the Western Isles, perhaps I may add that my father contested the constituency in 1924. He was a Conservative, and therefore at the time had no hope of winning the seat. However, he was also a native Gaelic speaker as both of his parents and their parents came from North Uist. Therefore, unlike some other distinguished contestants of the seat, he did not lose his deposit. I may say that his English improved considerably over the years and he ended his political life in Westminster as Speaker of another place from 1951 to 1960.
What has disturbed many people in the Western Isles is the manner in which we seem collectively to have stumbled into a position where an amendment along the lines I have suggested becomes not only desirable but essential if the people of the Western Isles are not to feel deep misgivings and a mistrust of the political process that has brought us to this situation. I will not rehash the arguments as to who should be held responsible for what is essentially a misunderstanding. It is, after all, set out at great length as a description of

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assumptions, assurances and a lack of communication, in the Stornoway Gazette, which is available to all noble Lords, and it makes rather sad reading.
In essence, the parliamentary constituency of the Western Isles was set up in 1918. The unitary local authority covering the same area has been in existence since 1974. I believe that the noble Lord, Lord Campbell of Croy, had a hand in that when he was Secretary of State for Scotland. Both are natural expressions of the life and distinct culture of the people of those islands and there has been no serious move to alter the arrangements since their inception, and none is apparently foreseen by the Government.
One feature of life in the Western Isles is our vulnerability to the effect of changing wind direction and strength. Every winter we experience winds of more than 100 miles an hour. That makes us wary of assuming that structures will be permanent unless great care is taken to protect them. The wind blowing one way today may not be the same next week. So it is with this Bill.
It will not have escaped the notice of those noble Lords who listened to this morning's shipping forecast that a severe storm, force 11, has been forecast for today for the Island of Lewis. It is a reminder from the forces of nature that our shelters and defences should be in good order and repair. It is also an allegorical warning of why we need the amendment.
The people of the Western Isles, while proud of their individual way of life and identity, are not that strange, nor are they hostile to their mainland neighbours. They simply do not want to be merged with them so closely that they will be taken over by the sheer force of numbers only. At this time of remembrance, it is appropriate to recall that the island's contribution to the Armed Forces and Merchant Navy in two world wars, as a proportion of its total population, was massive.
At the recent referendum on devolution, the islanders produced a strong "yes" vote, little knowing that a threat to the integrity of their parliamentary constituency could be the maverick result and that what was claimed to be progressive mindless legislation could thrust them backwards into the pre-1918 situation which they so disliked.
All along they have believed and trusted Government Ministers when they have been reassured by them that any threat to their constituency's existence was "inconceivable". But the wind has certainly changed and on 22nd October the noble Lord the Minister in charge of the Bill said, in effect, "I shall have to put a stop to this somehow". He also asked, and I paraphrase, "If we give the islanders this, where do we draw the line?". Lines, he implied, are difficult to draw.
This is where my explanatory amendment could help. It will be simple to "put a stop to all this", as the Minister wishes, with no bad feelings by an act of generosity and some display of positive and sympathetic statesmanship by accepting this small amendment. As to drawing the line, it is not that difficult. Having dealt
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with Orkney and Shetland, both with seats and voting populations smaller than ours, the line drawn is simple; straight down the Minches! I beg to move.
5.45 p.m.
Lord Campbell of Croy: My Lords, my friends in the Western Isles have asked me to say a few words about the amendment. As indicated by the noble Viscount, in the early 1970s, as Secretary of State for Scotland, I made the Western Isles as well as Orkney and Shetland, which are not involved in the amendment, separate local authorities in the reorganisation of local government in Scotland. A new entity was invented; namely, the island authority. Three island authorities came into existence. Before that, nearly 30 years ago, when I was in the Shadow Cabinet, I stated from the Opposition Front Bench in 1969, when we were considering the report of the Wheatley Royal Commission, that I favoured three island authorities. That was one of the changes that I made as Secretary of State to the proposals in the Wheatley Commission's report. I shall be sorry if that principle were now to be discarded.
I would understand if the Government were to say that they do not wish to have any apparent restriction on complete discretion in future to devise constituencies. I believe that I would be sympathetic to that if I were still on the government Front Bench. But since my decision in about 1971, both the residents and the councillors of the Western Isles have rejoiced in being an island authority. It was quite new to them and it has given them great pleasure. I continue to receive letters and messages of congratulation on having taken that decision. So in principle I support what is proposed although I realise that this Bill may not be the place in which to make such a change.
Viscount Thurso: My Lords, like the noble Lord, Lord Campbell of Croy, I have extremely sympathetic views towards this amendment. I am very grateful to the noble Viscount, Lord Dunrossil, for having brought it before your Lordships' House, not least because it gives me the opportunity to correct a small mistake in the Official Report, which occurred when we were discussing the question of the Western Isles on the first day of the Report stage in the debate which has been mentioned. It states at col. 1609 that it was my noble friend Lord Alderdice who stated,
"My Lords, it was my understanding at Committee stage that the Government accepted this amendment. Therefore, if the noble Lord, Lord Mackay of Ardbrecknish, wishes it, we shall support him".—[Official Report, 22/10/98; col. 1609.]
In fact, it was I who said that and not the noble Lord, Lord Alderdice, who, I believe, was happily in Northern Ireland at that time. There is confusion with the facial hair: I believe that his is slightly prettier than mine.
In that debate on the first day of the Report stage we supported the noble Lord, Lord Mackay of Ardbrecknish, in the Lobbies. That was on a somewhat different question from the one we are facing today. The amendment put forward at that point by the noble Lord, Lord Mackay of Ardbrecknish, regarded representation

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in the Scots parliament. In just the same way as this Bill has sought to give Orkney and Shetland two constituencies in the Scottish parliament, it was quite logical for us to support an amendment to give the Western Isles a constituency in the Scottish parliament.
However, we lost that vote. There is some consolation in that the amendments I moved, with the valued support of the noble Lord, Lord Mackay of Ardbrecknish, were carried in this House. They mean that the Scottish parliament will ultimately be responsible for looking at what the proper constituencies will be for the Scottish parliament in the future. Consequently, it will be in the hands of Scots to make the decisions in respect of the Scottish parliamentary constituency.
However, what we are discussing today as regards Clause 86 concerns representation at Westminster. It is my understanding that subsection (3) of that clause concerning Orkney and Shetland is required as a consequence. The introduction of Rule 3A is required as a consequence of having split Orkney and Shetland in the first place. Therefore, the principle involved here is that for the Scottish parliament there will be two constituencies, but in order to preserve the Westminster situation, this change is required to the rules. That is not quite the same thing and it cannot be applied to the Western Isles.
In other words, the creation of two constituencies for the Scottish parliament requires the changes to Clause 86 rather than the desire to pickle in aspic Orkney and Shetland as a constituency although, I believe, it has that effect. I fully support the sentiments which the noble Viscount has put forward. He referred to a Force 11 crossing the Western Isles. They come mostly from the West. In Caithness they tend to come from the North. They are just as strong, but a little colder. I have great sympathy for what the noble Viscount is putting forward, but I do not believe that this is the appropriate place for it. Therefore, I shall not be able to support him on this amendment.
Lord Mackay of Ardbrecknish: My Lords, I am happy to have my name associated with the noble Viscount, Lord Dunrossil. He explained to your Lordships his family connection with the Western Isles. Your Lordships will probably appreciate, therefore, that the noble Viscount's father was considerably more successful at persuading the people of the Western Isles to vote for his proposals than I was because he kept his deposit and I lost mine. However, as I said to your Lordships in Committee, that has not stopped me from having affection for the Western Isles and a regard for them. I managed to get them a new hospital about which they have been extremely kind ever since.
The noble Viscount, Lord Thurso, has referred to earlier debates. There is a relationship between Clause 86 and Schedule 1 of the Bill. In fact, we divided on Schedule 1 when it was a matter for the Scottish parliament. That is now water under the bridge. In Clause 86 we refer to Scottish representation at Westminster. I moved a similar amendment to this one at Report stage. My noble and learned friend Lord Mackay of Drumadoon does most of the drafting of the amendments which we put down. He had not put the
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Gaelic name in brackets and that was about the only difference. I believe that was probably because neither the noble and learned Lord nor myself speak any Gaelic. The amendments are the same.
The Minister said that the reason we had to put down Orkney and the Shetland Isles in the way that it is done in Clause 86 was to tie it back, so to speak, to Schedule 1. I understood that. But it seems to me that that does not necessarily need to be the only reason. Clause 86 not only ties this matter back to Schedule 1, but tells the Boundary Commission for all time to come that a constituency which includes the Orkney and Shetland Isles,
"shall not include the whole or any part of a local government area other than the Orkney Islands and the Shetland Islands".
While that may be necessary in order to tie it in with Schedule 1, it also secures the position of the Orkney and Shetland Islands as one constituency to the United Kingdom Parliament.
Therefore, having reflected on the matter, I agree with the noble Viscount that the Western Isles deserve protection. That is particularly important when one reads Clause 86(4), which tells us that the electoral quota in future in Scotland is to be raised from 54,000 to 69,000, which is the same as that in England at the moment.
When that happens the position of the Western Isles with only 22,000 electors will appear anomalous. I suggest to your Lordships, as I suggested before, that there is a danger that in achieving 69,000 a future Boundary Commission may well decide that the Western Isles could be tied up with some other parts of the Highland mainland or even the Isle of Skye. I believe that that would be the most obvious tie-up. That would be appropriate in order to increase the numbers from 22,000.
For the reasons which the noble Viscount clearly spelt out, and with which I agree, that would be unwise. Just because it has not happened in the past does not mean to say that it will not happen in the future. In the past the Boundary Commission was considering an electoral quota of 54,000, which is considerably different from one of 69,000. Therefore, in order to protect the position of the Western Isles, in future the Boundary Commission will have to increase the size of the other constituencies in Scotland by a considerable amount.
Although the reasons for this provision being in the Bill are mostly Scottish parliamentary reasons, the side effect is that it protects Orkney and Shetland for Westminster parliamentary reasons. That is a simple fact. Therefore, I believe that the parliamentary—that is, the House of Commons'—position on the Western Isles should also be protected. If it is not protected, I could easily make out a case some time in the future for praying in aid the very fact that it is not protected as being a reason why the Western Isles constituency could be added to in order to achieve for the whole of Scotland the 69,000 quota and the reduction to roughly 58 seats from 72. I have no hesitation in supporting the noble Viscount's Amendment No. 34.
6 p.m.
Lord Lang of Monkton: My Lords, I rise briefly to support the amendment moved by the noble Viscount, Lord Dunrossil. Unlike my noble friend Lord Campbell of Croy, I have not been asked by my friends in the Western Isles to intervene, but my friends in the Western Isles have not asked me not to intervene. I am glad to do so because, like my noble friend Lord Campbell of Croy, I too was responsible for the reform of local government in Scotland and the redrawing of boundaries. Amending the Western Isles boundaries was considered at the time together with the possibility of Skye and one or two other islands being linked with it. My reaction to that was, "Give them a Minch and they'll take an isle". It is best to have nothing to do with it.
My noble friend Lord Mackay of Ardbrecknish makes the point extremely effectively as to how vulnerable the Western Isles might be in a Westminster parliamentary sense if and when the electoral quotas are changed in Scotland to create larger constituencies. The Government would greatly reassure people in the Western Isles and beyond that their future, in terms of parliamentary constituency representation, would be secure by accepting the amendment so ably moved by the noble Viscount.
Lord Sewel: My Lords, I start by making it clear that there is nothing in the Bill that threatens to disturb or change in any way the existence of the Western Isles as a separate local authority. That possibility was referred to by at least one noble Lord. That is not a possibility. That does not touch local government at all. The noble Lord, Lord Lang, was the last person to reorganise local government in Scotland and I believe that it can settle down for some considerable time before anybody else has a crack at it.
Amendment No. 34 offers the House yet another opportunity to express its views on whether the Bill should make special provision for a separate constituency for the Western Isles. I welcome the noble Viscount to this debate. It is not a new debate. It is something that we have discussed before on two occasions. On both those occasions the House, on Report and in Committee, was content with what the Bill said.
I understand that the council of the Western Isles has made representations on this point in the Bill. My right honourable friend the Secretary of State has, I understand, seen members of the council this morning to explain the Government's position.
The noble Viscount argued extremely persuasively that the Western Isles is a distinct and separate geographical, cultural and social entity. I hope there is no one in the House who would argue against that. That is the case. He also recalls that the islands have had a separate parliamentary constituency for over 80 years. It has a robust knack of surviving as a separate parliamentary constituency, no matter how strongly the winds blow or from which direction.
I hope it will help if I make it quite clear that the Bill does not in any way change the well-established position of the Western Isles. For exactly the reasons adduced,
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the Boundary Commission is always likely to place considerable weight on the special nature of the islands, as it has for the past 80 years. In reviewing constituency boundaries the Boundary Commission must give effect to the statutory rules set out in Schedule 2 to the Parliamentary Constituencies Act 1986. Rule 6 already expressly provides that the commission may depart from the strict application of the rules concerning electoral quotas and the boundaries of local authority areas,
"if special geographical considerations, including in particular the size, shape and accessibility of a constituency, appear to them to render a departure desirable".
I believe that should give enough confidence to the noble Viscount.
As my right honourable friend the Secretary of State explained to the council this morning, the Western Isles is the most obvious example of where that rule has applied. The long-standing position of the Western Isles is surely a demonstration that those rules can be relied upon to work effectively without any further addition. The Government believe as a matter of principle that they should not interfere with the independent working of the parliamentary Boundary Commission and therefore the Bill makes the minimum necessary changes to the rules.
I recognise that the council believes that it is unfair that the Western Isles has not had the same treatment in the Bill as Orkney and Shetland. However, I am afraid to say that that is based on a misunderstanding. There is no question of unfair treatment of the Western Isles, and I shall try to explain why.
The Bill simply does what it has to in order to ensure separate representation of Orkney and Shetland at Holyrood. Therefore it is important to make sure that there is no undermining of that change by adjustments to the Westminster constituencies, if adjustments to the Westminster constituencies would merge one of those areas with another area, such as Caithness. The problem has arisen simply because Orkney and Shetland do not already have their own separate Westminster constituencies. The Scottish Constitutional Convention argued strongly that they should have separate Scottish parliamentary constituencies for the Scottish parliament, and we accept that. To make that secure, we have had to ensure that in Westminster terms Orkney and Shetland are not added to another part of the mainland. Clearly, if that were the case, it would be impossible to have a separate Orkney constituency and a separate Shetland constituency.
Therefore, on the face of the Bill there must be provision for the existing constituency to be split for the purposes of the Scottish parliament. That issue simply does not arise in the case of the Western Isles, where it is a well-established, separate constituency.
Clause 86(3) ring-fences a Westminster position for Orkney and Shetland as a consequence of what is proposed for the Scottish parliament, or as the noble Lord, Lord Mackay, termed it, a side issue. That is true. The principle that we have adopted in the Bill, which is about Scottish devolution and the arrangements for a Scottish parliament and the electoral arrangements for a Scottish parliament, is to introduce rules and changes

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that affect only Westminster parliamentary constituencies where there is a direct and a necessary reason to do that. That is because of the pledge to give separate representation for Orkney and Shetland, and it does not arise in respect of the Western Isles, which is a separate parliamentary constituency in any case.
I hope that I have been able to clear up what I believe is a misconception about unfairness. I hope that on Report I was able to explain to the House why it was necessary to have the provision for Shetland and the Orkney Islands and why that issue does not arise in relation to the Western Isles.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the Minister for giving way. I understand the argument he is making, as I indicated I did in my original remarks. However, he seems to be avoiding the point that as a direct consequence of the next subsection, the electoral quotas in Scotland will increase from 54,000 to 69,000. That must have an impact on the boundaries drawn for the new Scottish consistencies. That may have an impact on the Western Isles.
Lord Sewel: My Lords, I am aware that the noble Lord, Lord Mackay of Ardbrecknish, is very keen on quotas and, indeed, the equal size of constituencies, on which I am sure we shall hear from him later. But the point is that the difficulty about the Western Isles is already covered by Rule 6 of the Parliamentary Constituencies Act 1986. That allows the commission to depart from the application of the rules on electoral quotas and the boundaries of local government areas if specific geographical considerations, including in particular the size, shape and accessibility of a constituency, appear to the commission to render a departure desirable.
I have confidence that in looking at its task in the future the Boundary Commission will be very much aware and seized of that rule.
Viscount Dunrossil: My Lords, I thank the Minister for giving us such a detailed and well thought out reply. The problem which we have raised has exercised his mind considerably. However, I feel that we are faced with two misunderstandings. I believe that the misunderstanding may persist for a long time, eroding some of the confidence which the people of the Western Isles have; namely the misunderstanding that somehow or other they have missed a trick and that those wily people down south have tricked them once again.
That may not be rational politics but it is politics and it is psychology. We may share the Minister's confidence that we have a special case but it is quite clear from his considered remarks that he is giving away nothing in substance. Therefore, I should like to see whether we can still further reinforce our little building up in the north-west against the changing winds. Therefore, I wish to test the opinion of the House.
6.12 p.m.
On Question, Whether the said amendment (No. 34) shall be agreed to?
Their Lordships divided: Contents, 85; Not-Contents, 134.

Division No. 2

CONTENTS

Ackner, L.

Kitchener, E.

Ailesbury, M.

Lang of Monkton, L.

Astor of Hever, L.

Leigh, L.

Attlee, E.

Lindsey and Abingdon, E.

Balfour, E.

Lucas of Chilworth, L.

Bethell, L.

Lyell, L.

Blatch, B.

McConnell, L.

Boardman, L.

Mackay of Ardbrecknish, L.

Borthwick, L.

Mackay of Drumadoon, L.

Brentford, V.

Mersey, V.

Campbell of Croy, L.

Milverton, L.

Carnegy of Lour, B.

Molyneaux of Killead, L.

Carnock, L.

Moran, L.

Charteris of Amisfield, L.

Mountevans, L.

Clark of Kempston, L.

Mowbray and Stourton, L.

Clyde, L.

Newall, L.

Cochrane of Cults, L.

Norrie, L.

Colwyn, L.

Northesk, E.

Courtown, E.

Park of Monmouth, B.

Dunrossil, V. [Teller.]

Pender, L.

Eames, L.

Perry of Walton, L.

Ellenborough, L.

Pilkington of Oxenford, L.

Elton, L.

Rankeillour, L.

Fookes, B.

Rees, L.

Forbes, L.

Renton, L.

Geddes, L.

Rotherwick, L.

Glentoran, L.

Saltoun of Abernethy, Ly. [Teller.]

Gray of Contin, L.

Greenway, L.

Sanderson of Bowden, L.

Harlech, L.

Selkirk of Douglas, L.

Harmsworth, L.

Shuttleworth, L.

Henley, L.

Simon of Glaisdale, L.

Holderness, L.

Skelmersdale, L.

HolmPatrick, L.

Stair, E.

Hope of Craighead, L.

Strange, B.

Hylton, L.

Strathclyde, L.

Inchcape, E.

Sudeley, L.

Jeffreys, L.

Taylor of Warwick, L.

Jenkin of Roding, L.

Vivian, L.

Kenilworth, L.

Weatherill, L.

Kingsland, L.

Wilson of Tillyorn, L.

Kinnoull, E.

Winchilsea and Nottingham, E.

Kintore, E.

Wynford, L.

NOT-CONTENTS

Acton, L.

Carmichael of Kelvingrove, L.

Addington, L.

Carter, L. [Teller.]

Ahmed, L.

Christopher, L.

Alli, L.

Clarke of Hampstead, L.

Amos, B.

Clement-Jones, L.

Archer of Sandwell, L.

Clinton-Davis, L.

Ashley of Stoke, L.

Cocks of Hartcliffe, L.

Bach, L.

Craigavon, V.

Barnett, L.

Crawley, B.

Bassam of Brighton, L.

David, B.

Beaumont of Whitley, L.

Davies of Coity, L.

Berkeley, L.

Davies of Oldham, L.

Blackstone, B.

Dean of Beswick, L.

Blease, L.

Dean of Thornton-le-Fylde, B.

Borrie, L.

Dixon, L.

Bragg, L.

Dormand of Easington, L.

Burlison, L.

Dubs, L.

Calverley, L.

Evans of Parkside, L.

557

Evans of Watford, L.

Mishcon, L.

Falconer of Thoroton, L.

Molloy, L.

Falkland, V.

Monkswell, L.

Farrington of Ribbleton, B.

Montague of Oxford, L.

Gallacher, L.

Morris of Manchester, L.

Geraint, L.

Murray of Epping Forest, L.

Gilbert, L.

Northfield, L.

Goudie, B.

Peston, L.

Gould of Potternewton, B.

Pitkeathley, B.

Graham of Edmonton, L.

Plant of Highfield, L.

Grenfell, L.

Prys-Davies, L.

Hamwee, B.

Puttnam, L.

Hardie, L.

Ramsay of Cartvale, B.

Hardy of Wath, L.

Randall of St. Budeaux, L.

Harris of Greenwich, L.

Razzall, L.

Harris of Haringey, L.

Rea, L.

Haskel, L.

Redesdale, L.

Hayman, B.

Rendell of Babergh, B.

Hilton of Eggardon, B.

Richard, L.

Hogg of Cumbernauld, L.

Rodgers of Quarry Bank, L.

Hollis of Heigham, B.

Rogers of Riverside, L.

Howie of Troon, L.

Russell, E.

Hoyle, L.

Sainsbury of Turville, L.

Hughes of Woodside, L.

Sawyer, L.

Hunt of Kings Heath, L.

Scotland of Asthal, B.

Irvine of Lairg, L. [Lord Chancellor.]

Sefton of Garston, L.

Serota, B.

Islwlyn, L.

Sewel, L.

Jacobs, L.

Shepherd, L.

Janner of Braunstone, L.

Shore of Stepney, L.

Simon, V.

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

Smith of Gilmorehill, B.

Stoddart of Swindon, L.

Jeger, B.

Symons of Vernham Dean, B.

Jenkins of Putney, L.

Taylor of Blackburn, L.

Judd, L.

Thomas of Gresford, L.

Kilbracken, L.

Thomas of Macclesfield, L.

Lester of Herne Hill, L.

Thomas of Walliswood, B.

Linklater of Butterstone, B.

Thurso, V.

Lockwood, B.

Tordoff, L.

Lofthouse of Pontefract, L.

Turner of Camden, B.

Macdonald of Tradeston, L.

Uddin, B.

McIntosh of Haringey, L. [Teller.]

Walker of Doncaster, L.

Wallace of Saltaire, L.

Mackenzie of Framwellgate, L.

Warner, L.

Mackie of Benshie, L.

Whitty, L.

McNair, L.

Williams of Crosby, B.

Mallalieu, B.

Williams of Elvel, L.

Mar and Kellie, E.

Williams of Mostyn, L.

Mason of Barnsley, L.

Winston, L.

Milner of Leeds, L.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
6.21 p.m.
The Earl of Dartmouth The Earl of Dartmouth moved Amendment No. 35:
Page 40, line 36, at end insert (", subject to any increase made under subsection (4A) below.
(4A) In applying rule 5 for the purposes referred to in subsection (4) above, the Boundary Commission for Scotland shall increase the electoral quota to take account of the fact that Scotland does, and England does not, have a devolved Parliament.").
The noble Earl said: My Lords, we have just spent 40 minutes discussing the boundary of only one parliamentary constituency; namely, the Western Isles—I shall spare the House my rendition of its Gaelic name. That clearly entitles me to spend 640 times 40 minutes discussing Amendment No. 35 which addresses the boundaries and electoral quota for all the Westminster constituencies. I know that that is something to which your Lordships will look forward in three or four days' time; mercifully, my remarks will be brief.
I have every expectation that this amendment will be characterised as being somehow anti-Scottish. But nothing could be further from the truth. That is assuredly not the case. The amendment concerns fairness, equity and the continuing survival of the Union in anything like its present form.
On the 1997 electoral roll there were 3.9 million electors for Scotland and approximately 3.77 million for the area of Yorkshire and the Humber—the area for which I have the honour to stand for my party in the June Euro elections. In what I am about to say I do not represent the views of my party as a whole; indeed, I am speaking only for myself and for the electors of Yorkshire and the Humber for whom these are matters of deep concern.
In the 1997 general election the 3.9 million electors in Scotland elected 72 MPs; the 3.77 million electors of Yorkshire and the Humber—only 130,000 fewer people—elected only 56 MPs; that is to say, 16 or 28.5 per cent. fewer. That is extremely unfair and even more unfair in the context of the Scotland Bill as a whole.
To give credit where credit is due, I am glad to say that the Government accepted—albeit grudgingly and insufficiently—the principle behind this amendment. Indeed, there is one small genuflection towards fairness to the English regions in the Scotland Bill; that is, Clause 86 which lays down a parity of electoral quota between Scotland and England. However, that is nothing like sufficient to address the blatant unfairness towards the English regions at the heart of this Bill. What is significant is not what the Bill contains, but what it does not contain.
For example, in the rest of the Bill there is no hint of any reform of the Barnett formula whereby in the fiscal year ending 1996, for example, £871 per head of extra identifiable public expenditure was spent on the residents of Scotland. There is no attempt to reform regional selective assistance grants which induce companies to relocate. They go disproportionately to Scotland, despite the fact that Scotland is second only to the South-East as the richest region in the Union. And even in relation to the minor reform of the electoral quota which the Government conceded, the execution of this slight but urgent reform is not to have any effect until the general election after next. That point is being dealt with in a subsequent amendment.
I return to the central point of my amendment. Even if parity with the English quota proposed by Clause 86 was introduced tomorrow, it would be wholly insufficient. Mere parity with the English quota is not enough. The whole point of the Scotland Bill is that it creates a Scottish parliament with full powers; indeed, no less an authority than the noble Lord, Lord Sewel, a mere 55 minutes ago, pointed out that the Scottish parliament has primary legislative powers; that is, it is a real parliament. By comparison England and the English regions have only Westminster.
It is not sufficient therefore for the electoral quota for Scotland as laid down in Clause 86 to have parity with England. In logic and in equity the quota must be substantially less. Precisely how much less is something

559
that the Boundary Commission can determine in the normal way on the basis of representations made to it, but with it being statutorily obliged to take fully into account the fact of a Scottish parliament in all its powers.
Amendment No. 35 has been carefully considered. It goes a long way to correcting the inequity—the self-evident and blatant unfairness towards the English and the English regions at the heart of this Bill—and in so doing will help to preserve the Union in something approaching its present form. I beg to move.
Lord Monson: My Lords, this is an interesting amendment. The Scottish parliament will have approximately the same powers as the Stormont parliament had between 1922 and 1972. As a quid pro quo for having been given so many devolved powers, during that period the Northern Irish were allowed only 70 per cent. of the representation at Westminster to which their numbers would otherwise have entitled them. On an equivalent basis, Scotland would therefore have only 39 or 40 seats at Westminster.
I believe that there are fairer ways of solving the West Lothian—or for that matter North Belfast—question and we will be touching on the former in a moment. However, this is an important matter which deserves to be raised.
Lord Sanderson of Bowden: My Lords, I detect the sound of gunfire in this amendment and it is not for me to argue a case against my native land. But we are edging very near to the West Lothian question and the repercussions from the Bill which this amendment undoubtedly brings out.
For my part I cannot escape the logic of the case that has been made, particularly the reference to the fact that in the past the Boundary Commission looked at representation at Westminster in the light of the powers that had been devolved to Northern Ireland. All that I would say is that this will not go away. I believe that because of the powers that are not being devolved from the Westminster Parliament to the English regions, the Boundary Commission for Scotland will have to take into account the position there relative to that south of the Border and the quota of members thereof. Perhaps this is the unacceptable face of devolution so far as concerns Scottish representation at Westminster.
6.30 p.m.
The Earl of Mar and Kellie: My Lords, the noble Earl's amendment runs headlong into the psychology of Scottish Unionism. He attacks two of its central bulwarks; namely, substantial representation at Westminster and economic advantage. That is the purpose of the treaty. He is very unwise to attack it.
Lord Sewel: My Lords, this amendment is of considerable significance as it relates to the representation of Scotland in the Parliament of the United Kingdom. I note that the noble Earl said that he was speaking for himself—although adding himself to the people of Yorkshire and Humberside—and that he was not speaking for his party.
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However, the noble Lord, Lord Sanderson of Bowden, who is a former Minister, spoke in a way which although not endorsing the noble Earl, came close to indicating a degree of support for him. In those circumstances and because Scotland's future representation in the Parliament of the United Kingdom is such a major issue and of significance in Scotland, I should be pleased to give way to the noble Lord, Lord Mackay of Ardbrecknish, if he would like the opportunity to repudiate the argument put forward by his noble colleague. If he does not intervene, I shall take it that, as the Official Opposition Front-Bench spokesman, he does not want to repudiate the noble Earl's argument which I think will be utterly unacceptable to the people of Scotland. They have as much interest as any other citizens of the United Kingdom in issues such as foreign affairs, defence, macro-economic policy and social security—that is, in all the issues that are being reserved.
We have recognised that the present requirement placed upon the Boundary Commission, which results, I am happy to say, in a strict population over-representation in Scotland, is indefensible now that we are about to have a devolved parliament, and that a move towards parity is the way forward. However, the argument that Scottish citizens are somehow second-class citizens in the sense that they do not have a legitimate interest in all those matters that are being reserved and therefore should not be properly represented at Westminster is totally unacceptable to the Government. I had hoped that it would be totally unacceptable to the Official Opposition, but that is clearly not the case.
Perhaps I may deal now with Northern Ireland. The point was made that under earlier arrangements with Stormont, Northern Ireland had a 70 per cent. level of representation. It is well known that that was subsequently changed. I believe that Northern Ireland's representation is now at virtual parity with that of the rest of the United Kingdom. There has been no suggestion during the passage of the Northern Ireland Bill that somehow Northern Ireland's representation should be reduced in recognition of the fact that it will have devolved political institutions. Of course, the noble Earl's amendment does not relate to Northern Ireland but, again, I do not see why Scotland should be treated any differently from Northern Ireland. I consider this amendment to be grossly offensive. I hope that the noble Earl will feel able to withdraw it.
Lord Fraser of Carmyllie: My Lords, before the noble Lord sits down, in responding to his somewhat leaden-footed attack on the Opposition, may I ask him to explain exactly what he understands will be the effect of subsection (4) of Clause 86?
Lord Sewel: My Lords, as far as I understand it, Clause 86(4) gives expression to what I stated was the policy; namely, to remove the requirement that the Boundary Commission should apply a number for Scottish representation which would put it above the

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population quota for the rest of the United Kingdom. It is by that means that the number of Scottish MPs is reduced to parity.
The Earl of Dartmouth: My Lords, I should like briefly to respond to the comments of the noble Earl, Lord Mar and Kellie. He said that the great bulwarks of Unionism were disproportionate representation and additional funding, if I noted his second phrase correctly. He is, of course, correct, but the whole point is that it would appear that the people of Scotland do not want the Union; they want some accelerated form of home rule. My point was that they cannot similarly expect to have what goes with, or used to go with, the Union.
I should like to express my great disappointment at what the Minister said. He has a distinguished record, as I understand it, as an academic. As the possessor of no fewer than three degrees, I welcome being taught logic by a distinguished professor such as the Minister. He had two points. First, he found my arguments offensive. It is therefore a pity that he did not respond to them. Secondly, he said that the people of Scotland would find my arguments unacceptable. They are not here to respond to them.
The Minister referred to the question of Scottish MPs at Westminster. Perhaps I may respond briefly. After the next general election, there will still be 72 MPs representing Scottish constituencies at Westminster unless Amendment No. 35 is accepted by the Government. There will certainly be 58 MPs representing Scottish constituencies thereafter.
As I understand it—I am willing to be corrected—the new Scottish parliament will cover health, education, transport, the environment, economic development and agriculture. That is not meant to be a comprehensive list, but it is pretty much a majority of what constitutes parliamentary business in the House of Commons. It is also much more than a majority of what makes up the average MP's postbag. Those 72/58 Scottish MPs, who will be receiving a full salary, will be seriously under-employed. At best, they will spend a high proportion of their time twiddling their thumbs; at worst, they will interfere in purely English matters of health, education, transport and agriculture which in logic and in equity should be none of their concern.
That hideous anomaly, coupled with Scotland's tremendous fiscal privileges, which the Scotland Bill leaves untouched, will almost inevitably create a deep antipathy between Scotland and the English regions. Just because it is not there now, does not mean that it will not be there in a very strong form in short order. The only possibility of ameliorating that and at the same time saving the Union would have been for the Government to accept the amendment—and to do so gracefully.
I should have liked the amendment to be pressed to a Division, but unfortunately I have been unable to attract the support of my noble friends on this occasion. This will not be the last that the Government will hear of this matter, but, for now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 36:
Page 40, line 36, at end insert—
("( ) At the beginning of rule 5 there is inserted "Subject to rule 5A below,".
( ) After rule 5 there is inserted—
"5A. No more than one tenth of the parliamentary constituencies in Scotland, excluding those formed by rule 3A, shall have an electorate more than 10 per cent. greater or smaller than the electoral quota.'"').
The noble Lord said: My Lords, we turn to an issue which I have addressed on a number of occasions when, frankly, I have had pretty unsatisfactory answers from the Government. Perhaps I may deal with these points for a last time to see whether I can achieve a better answer from the Government today.
The position at present is that Scotland has 72 parliamentary constituencies with an electoral quota of some 54,000. However, there are some amazing variations within that figure. As my noble and learned friend Lord Fraser or Carmyllie pointed out a few minutes ago, the situation will change when the Bill is enacted in that Clause 86(4) will come into play and the electoral quota in Scotland will actually go to the same number as the electoral quota in England.
I understand from a Parliamentary Answer in another place recently that the latter will take the Scottish quota to something like 69,000. I should be grateful if the Minister could confirm that; indeed, I suppose it is probably about 69,500 but let us call it 69,000. That is up from 54,000. In my view, the result will be that the number of Scottish seats will be reduced to about 58. Again, I should like the Government's view on what they think their own legislation means. In other words, am I right in thinking that the electoral quota will go to 69,000 odd and that the consequence of that will be that the number of Scottish seats would go down to 58?
In my view, if such a dramatic change will be undertaken by the next Boundary Commission, we ought to address the problem which I have drawn to the attention of the noble Lords on a number of occasions; namely, that the Boundary Commission has been singularly bad at actually achieving the electoral quota for the majority of seats in Scotland. One of the consequences of the seats being badly out of kilter, not just in Scotland but also in England and Wales, is that the "distortions", as they are called, of the first-past-the-post system relative to the number of people who vote are actually increased. It is simply but mathematically true that if the seats were closer to the electoral quota then the results of general elections in the number of seats gained by first-past-the-post would be closer to the proportionality of votes gained around the country—not exactly, but certainly closer.
Getting closer to electoral parity is important, given all the other points that we discussed earlier about Orkney and Shetland and the Western Isles having special consideration and, therefore, very small numbers. Indeed, one accepts that, and I absolutely agree. The noble Lord, Lord Sewel, was kind enough to read out Rule 6 to the House; in fact, he read it out

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twice. He clearly said that if specific geographical considerations apply the Boundary Commission should reduce the number.
With an electoral quota of 69,000, and if the Boundary Commission behaves the way that it has done in the past, my worry is that the disparity in seats in Scotland will actually increase. It is not Orkney and Shetland, the Western Isles, or Caithness and Sutherland that I worry about; it is urban seats. I have to use the existing situation as an example because that is all we have. But if noble Lords were to project it forward, they would recognise the problem I pose and the one which I am attempting to resolve by way of my amendment.
Let us take the current quota of 54,000. All the seats in the city of Edinburgh amount to more that 60,000 votes; in fact, it has an average of about 62,000. All the seats in the city of Glasgow amount to under 60,000; indeed, some are under 50,000. Their average is 51,000. Therefore, all the seats in the city of Glasgow are actually under the electoral quota. I wonder whether specific geographical considerations apply to the seats in the constituencies in Glasgow—seats which, without any trouble, one could easily walk across when taking a brisk Sunday afternoon stroll. There is no logic at all in that position. As I said, those seats have an average of 51,000. Hamilton South, which I suspect one could walk across in half a Sunday afternoon, has 47,000 electors. Yet, at the other extreme, Carrick, Cumnok and the Doon Valley, which is a very large geographical constituency in Strathclyde as it was, has 66,500 electors. Inverness East, Nairn and Lochaber, which stretches from the North Sea across Scotland to the Atlantic, has 66,500. There are a number of further examples that I could give to the House, but I believe that those I have given illustrate my point.
It has always been said by the defenders of disparity, "The reason is that we want to give small numbers to the big rural seats". In actual fact, they have not done so. Indeed, from my memory, Dumfries has 62,000 odd whereas Inverness West and Skye—I believe that there is a word in between the two that I have forgotten—is actually pretty close to the average. However, it still ought to be under the average, because it stretches, again, from the North Sea to the Moray Firth and all the way across to the Atlantic Ocean.
If noble Lords were to study Scottish parliamentary seats they would be as puzzled as I am about how the Boundary Commissions have decided which seats should be heavily under quota and which should be over quota. Indeed, they are not just under or over quota by a little; they are over and under by a considerable number. When this goes up to 69,000 as it will do, and quite rightly—I think that the Government are right because I believe that it addresses the West Lothian question in part and I agree with them in that respect‹—I believe it will become more important that some tie, so to speak, or some other rule is imposed on the Boundary Commission in order to say, "You really must do better in getting close to the 69,000".
If we exclude the constituency of Orkney and Shetland—and, frankly, I should like to have excluded the Western Isles as well, but we were not allowed to
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do so earlier—I suggest that only 10 per cent of seats, which in Scottish terms would be about six seats, should be outside 10 per cent on either side of 69,000. That means that almost all the seats in Scotland would have to hit a range of 62,000 to 76,000. If that were imposed on the Boundary Commission I believe that one would actually see it address the ridiculous situation in West Central Scotland.
I have a mild suspicion as to why it is always West Central Scotland—in other words, constituencies like Glasgow and Lanarkshire; indeed, all over the place—which are well under the average population size. Alternatively, on the east coast, the city of Edinburgh, which has not always been dominated by the Labour party, actually has averages of 62,000. In fact, Edinburgh would not need to change to just catch my limit, although one or two of the seats would need to go up a little.
My point is that I do not believe the Boundary Commission has done a very good job in the past of hitting close to the target of the electoral quota. It has shown a scatter which defies logic in that some of the smaller seats, apart from the very special ones, have been the smallest geographically; that is to say, the smallest in number and the smallest geographically: in other words, the tightest seats with absolutely no defence under Rule 6, which the Minister read out to the House. It seems to me that we ought to tie the Boundary Commission in a little tighter, especially when it comes to re-dividing Scotland into 58 seats with an electoral quota of 69,000.
I hope that noble Lords and the Government agree with me. Frankly, at this late stage I hope that even if the Government will not accept my amendment they will signal from the Dispatch Box that the Boundary Commission, which looks at the issue again under Clause 86, will actually take into account in a better manner than its predecessors the need to get most constituencies pretty close to the electoral quota. My noble and learned friend Lord Fraser of Carmyllie pointed out that, with Lady Cosgrove as the chairman of the Boundary Commission, I should be quite optimistic that that would happen. However, just in case, perhaps I may suggest to the Government that if they require anyone to give the commission a lesson on such matters I would not even look for a fee in order to do so. I do not know whether it would advantage the Conservative Party, but I know that it would advantage the first-past-the-post system and make it fairer. That is important. I believe that governments of all parties—and I include my own when I suggested it from the Back Benches opposite in the early 1990s—have walked away from the issue.
When the Government act sensibly by reducing the number of Scottish members to 58 to give parity with England so that after devolution England and Scotland will be on all fours as regards representation, I hope that they will also address the important issue of ensuring

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that the Boundary Commission has a better hit record on the electoral quota than its predecessors have had. I beg to move.
The Earl of Mar and Kellie: My Lords, this amendment brought forward by the noble Lord, Lord Mackay of Ardbrecknish, sets out to try to sort out the serious problem of under-sized parliamentary constituencies in the Glasgow area which just happen to be held by the Labour Party. At the same time we have to consider the special problems of representation on the remote island groups and in sparsely populated areas of the mainland. It comes as no surprise that the noble Lord has brought forward an arithmetic formula in his amendment. I suspect that he may have it generally right, but if a formula is less generous than is ultimately desired for rural and remote areas it will not be of assistance to the Boundary Commission for Scotland. It will be found to be perhaps too prescriptive. I cannot support the amendment but at the same time believe that it constitutes good general advice and encouragement to the Boundary Commissioners.
Lord Sanderson of Bowden: My Lords, I hope that those on the Front Bench opposite will listen closely to what my noble friend has said about this matter. We return to a point which I believe I raised earlier in the course of this Bill in your Lordships' House. I do not think it is any good just expecting the parliamentary Boundary Commission to deal with this matter without also considering the local government Boundary Commission for Scotland which constructs the building blocks for the parliamentary constituencies. In the early 1990s I considered these various constituencies. At every turn we were told that the building blocks for a parliamentary constituency—whether it is Glasgow, Hamilton or wherever—were the local government wards, districts or whatever one likes to call them. In trying to deal with this particularly difficult matter I suggest that the Government ask the parliamentary Boundary Commission in Scotland to seek the right answer. But one will only get that if one gets the size of the wards or districts correct as designated by the local government Boundary Commission for Scotland.
Lord Hardie: My Lords, this amendment would provide that 90 per cent. of the Westminster constituencies for Scotland would have to be within 10 per cent. of the electoral quota, leaving aside Orkney and Shetland. Noble Lords will appreciate that setting constituency boundaries is not an exact science. I respectfully suggest to the noble Lord, Lord Mackay of Ardbrecknish, that it is a mistake to seek to apply mathematical certainty to this exercise by the commission. As the noble Earl, Lord Mar and Kellie, said, such an approach is too prescriptive.
Before I discuss the points raised by the noble Lord, Lord Mackay of Ardbrecknish, I should confirm that the calculations for the future will obviously depend on the population at the time. However, our present estimate based on the present population is 60,000 to 69,500 as the electoral quota. Applying that quota to present
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figures would produce somewhere between 58 and 59 seats, as the noble Lord has said. I take the point made by the noble Lord, Lord Sanderson of Bowden. Of course the commission needs to deal with building blocks. From memory—if I am wrong in this, I shall write to the noble Lord to correct the matter—I believe that at the previous commission the electoral division was a regional division, whereas there is now a desire to move to smaller building blocks. That may have the effect of achieving the object—or at least go some way towards this—which the noble Lord seeks.
As I understand it, at the next review there will be more flexible divisions available in the sense that local government divisions as opposed to regional wards will be used. If this new approach of using local government divisions had been available at the time of the previous report of the commission, the commission may have been able to contemplate using four as opposed to three divisions in Glasgow. The noble Lord made a good point in identifying that the problem for the commission has been the unit that it has had to apply in drawing up a constituency. That may explain some of the discrepancies in numbers that the noble Lord, Lord Mackay of Ardbrecknish, has highlighted.
However, I am concerned at the suggestion, or implication, by the noble Lord, Lord Mackay of Ardbrecknish, that somehow some political influence has been brought to bear. There was clearly a heavy innuendo to that effect. I regret that not because of the implication as regards the Labour Party but more particularly from the point of view of the Boundary Commission for Scotland. It is an independent body chaired by a judge which comprises independent members who take evidence and apply the rules to the best of their ability independently of political influence. The noble Lord and his party in Scotland, the Labour Party and the Liberal Democrats had the opportunity to appear before public inquiries and make representations and to suggest that a constituency should be larger or smaller. At the end of the day the impartial commission has reached a decision. If there was any suggested or implied criticism as regards the impartiality of the Boundary Commission for Scotland I hope that the noble Lord will withdraw it.
The current rules quite properly allow the Boundary Commission to take other factors into account apart from electoral quota. I could see the point of the noble Lord's amendment if one was simply confined to the world of mathematicians, but there is more to the construction of electoral boundaries than simply mathematical formulae. One has to look into the special geographical considerations, including the size, shape and accessibility of a constituency. I shall discuss Glasgow in a minute. One must take into account the boundaries of local government areas and local ties. These amendments would largely prevent the Scottish Boundary Commission—but not its counterparts in England, Wales and Northern Ireland—from taking these factors into account. They would require the commission to concentrate solely on the mathematical formulae in 90 per cent. of the constituencies. We think that that would be wrong and unfair.

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We are not prepared to tie the hands of the Boundary Commission for Scotland in this way. We think it is important that this independent and impartial tribunal under the chairmanship of a judge—a senator of the College of Justice—should be allowed to consider all the factors, including of course the electoral quota, and reach its own decisions and make its own recommendations to the Secretary of State and to lay the report before Parliament. At the next review the commission will of course apply the same quota as in England and we shall have to await the outcome of its deliberations.
During the debate today and on previous occasions the noble Lord has made much of his concerns—I am sure they are impartial concerns and are not influenced in any way by party political issues—about the relative sizes of constituencies in Glasgow compared with other urban areas, particularly Edinburgh.
I think the noble Lord has already been referred to the fourth periodical report of the Boundary Commission for the detailed reasoning of the commission as to why that happened. Part of it is the explanation I have given to the noble Lord, Lord Sanderson of Bowden. The Boundary Commission report made clear what exactly it took into account in its proposals for each constituency. I think the noble Lord will find that it showed many factors that the commission quite properly took into account.
The reasons for making its recommendations cannot be summed up in a few words. The reviews are considered and thorough. So far as concerns constituencies in Glasgow, the noble Lord asked why they were so small. With respect to the noble Lord, I think he is wrong in trying to look at just part of the Boundary Commission's review instead of looking at what was proposed for Glasgow as a whole. You cannot simply take little pockets of the report which might suit your own aims or objectives: you have to look at the report as a whole.
At the time of the last review the number of seats in Glasgow was reduced from 11 to 10. That was the factor that the commission had to take into account. It was done to reflect the reduction in the number of electors in Glasgow. The commission then quite properly considered the best way of achieving that. As I said to the noble Lord, Lord Sanderson, one looked at that stage at regional electoral divisions. Glasgow had 30 such divisions which had been brought into operation following a local government Boundary Commission's second statutory review. As I have explained since then, the building block has gone down to local electoral divisions.
The commission considered various implications for dividing those electoral divisions. For example, it considered combining some of them within the city with constituencies outside the city, but it concluded that that would not be appropriate. Nor did it think that the number of constituencies should be reduced below 10. The commission concluded that the best way of achieving 10 constituencies would be to create them from three electoral divisions—that is, 30 divided by 10. It recognised that this would result in some seats being
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smaller than the electoral quota, but the reduction in the number of seats meant that there would be significant changes to some of the boundaries and that some electors would be joined with areas with which they had no previous ties.
Noble Lords will recall that earlier I said that one of the factors that the commission had to take into account was that of local ties. So it properly considered that and decided that it would not be appropriate to split those constituencies in that way. The commission strove, as it is obliged to do, to keep disruption to a minimum. In short, what I am trying to explain—and I do not know if I am doing it terribly well—is that the commission goes through a very thorough exercise. It takes into account electoral quotas which it tries to achieve. But it also has to take into account other factors. The anomalies that the noble Lord outlined in relation to Glasgow have been explained by the fact of reducing the number to 10 seats, so Glasgow is losing one seat. At that time the commission was obliged to create constituencies out of electoral divisions which were really too large. That is a situation which will not occur again, and with that explanation I would invite the noble Lord to withdraw his amendment.
7 p.m.
Lord Mackay of Ardbrecknish: My Lords, we have had an interesting short debate and, if I may say so to the noble and learned Lord the Lord Advocate, he has explained the position well. I am not entirely satisfied that he has succeeded in justifying it, and there is a difference between the two. However, first, may I say that I am very grateful to the noble Earl, Lord Mar and Kellie, for his support in principle. I fully accept that perhaps I have been over-prescriptive in saying one-tenth. There were other ways of doing it, but as I did not think the Government would accept any amendment that I drafted I did not think it was worth burning too much midnight oil. Indeed, I think that your Lordships will see that I was fully justified.
My noble friend Lord Sanderson quite rightly identified local government building blocks. The noble and learned Lord the Lord Advocate has pretty well prayed that in aid as the justification for the imbalances that I have highlighted. Indeed my noble friend Lord Sanderson is right. The trouble has been the primacy given to local government boundaries and that has seemed to be an immovable object. Indeed in the constituencies of Ayr and Carrick, Cumnock and the Doon Valley, that is what led to this large geographical constituency having 66,500 electors and the nearby pocket constituency—perhaps I might describe it in that way, without being disparaging but giving purely a description of its size in comparison—of Ayr being in the lower fifties. That would have been a simple way of doing it, but it would have meant splitting a regional government division, and they simply were not prepared to do it. That may be the effect of the legislation, in which case my view is that the legislation is clearly wrong. That is an opinion I have held for a long time. I would be quite happy if none of the things had primacy over the others, but I would actually prefer the numeracy to take primacy.

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Your Lordships and the noble and learned Lord the Lord Advocate might have thought I was attempting to say that every constituency bar one-tenth would actually hit 69,000 next time round. But I was not doing that. I was actually saying that they should hit somewhere between 62,000 and 76,000. That is a fairly wide target even for a Boundary Commission to manage to hit: not difficult at all. I have listened to the explanation in the case of Glasgow, but in that case even nine seats would have meant an electoral quota lower than that for the City of Edinburgh. There was no justification for leaving Glasgow with 10 seats, none at all.
The idea that by leaving them at 10, and not taking them to nine, communities were somehow held together and nobody disputed them is really, if I may say so to the noble and learned Lord, an indication that the noble and learned Lord lives in Edinburgh and not in Glasgow because at least one of the seats straddles the River Clyde, with one part on the north side and one part on the south. There is no greater divide in Glasgow than between the north and south of the River Clyde. You could do anything you liked on the north side and anything you liked on the south side, and the idea that you could actually join people from the one side of the river to the other side and say they have a community of interests is simply nonsense.
I am afraid that it was more to do with the 30 building blocks and it started there. We have 30. Nine into 30 does not go but, my goodness! 10 into 30 does, and if as a consequence Glasgow was totally over-represented—I speak as someone who lives in Glasgow and I am not very happy with my representation: that would not surprise your Lordships—there is no reason for Glasgow being so totally over-represented. We could go on and on with this, but I shall not do so. I am just disappointed that the noble and learned Lord does not see that my argument about the Boundary Commission has nothing to do with the lack of impartiality. It has more to do with the lack of numeracy than impartiality. However, I very much hope—one must clutch at straws in these matters—that the point made by the noble and learned Lord about the next Boundary Commission starting off with much smaller building blocks will mean that after the next parliamentary Boundary Commission in Scotland these enormous anomalies which have no justification will be removed and constituencies in Scotland, with the exception of the very obvious ones that deservedly are very small, are much nearer to the electoral quota and that the 58 Members of Parliament, bar a few, represent roughly the same number of electors each. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 37 not moved.]
Lord Monson Lord Monson moved Amendment No. 38:
Page 40, line 38, at end insert—
("(6) The Boundary Commission for Scotland shall submit a report under section 3(1) of the Parliamentary Constituencies Act 1986 no later than twelve months after the first ordinary general election of the Parliament.
(7) The Secretary of State shall make an order giving effect to the report mentioned in subsection (6) within three months of its submission.
(8) An order under subsection (7) shall not be made unless a draft of it has been laid before Parliament and approved by resolution of each House.").
The noble Lord said: My Lords, it is 20 years since Mr. Tam Dalyell commendably drew the attention of Parliament and the public to what is termed the West Lothian question. During all this time the West Lothian question has remained unanswered. Now, with devolution finally become a reality in a few months' time, the unanswered West Lothian question is set to become the West Lothian outrage. I use the word "outrage" because, while English MPs will no longer be able to exert power over Scotland's internal affairs, Scottish MPs will remain able to exert power—possibly critical power, if there is a hung Parliament—over England's internal affairs.
This amendment is identical in every respect to that tabled on Report by the noble Lord, Lord Mackay of Ardbrecknish, and his colleagues on the Conservative Front Bench which was not moved owing to the extreme lateness of the hour. I have no doubt that the Conservatives are as enthusiastic about this amendment today as they were a week ago. It is a milder amendment, a compromise version, of one which I moved in Committee, when it was supported by the noble Lord, Lord Ellenborough, and the noble Earl, Lord Onslow. In fact it received widespread support from various quarters of the Committee, in particular from the noble Lord, Lord Steel of Aikwood. I expect this amendment to attract even greater support since it represents a compromise and meets the Government half-way, or more than half-way. It extends the period that the Boundary Commission will have to produce its report from three months to 12 months after the election of the first Scottish parliament.
Of course the amendment would not in itself obliterate the West Lothian outrage. However, it would make it somewhat less outrageous, in that the disproportionate power of Scottish MPs over England's internal affairs would be reduced before the next general election rather than being prolonged until the subsequent general election, which might not take place until the year 2007.
I recognise that the noble Lord, Lord Steel, is facing more stimulating challenges on the continent of Africa today than those presented by the final stages of the Bill before us. As the noble Lord said on 6th October, a change such as the one suggested is not an answer to the West Lothian question, but it would be an alleviation of the problem. The noble Lord went on to say:
"I do not know where the idea came from that it"—
that is, the proposal to reduce Scottish representation to English levels—
"should be delayed until after the next election. I believe that that would provoke a lot of reaction among English, Welsh and Northern Irish Members, and with some justification. I believe that that reduction should take place within the life of this Parliament so that at the next election the boundaries are based on the revised and reduced numbers".—[Official Report, 6/10/98; col. 356.]

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The noble Lord was speaking officially for the Liberal Democrats, but also unofficially, I suspect, for noble Lords of all parties and none. I beg to move.
Lord Ellenborough: My Lords, I strongly support the amendment. The whole question of the number of Scots MPs, in respect of both the Edinburgh parliament and that at Westminster, is beginning to resemble a game of musical chairs. It is an absolute shambles and is all too typical of the incoherent approach of this Government, which is to legislate now and contemplate later. The Government just will not face up to the English dimension and accept that devolution will not work unless it is seen to be fair to the English. The noble Lord, Lord Sewel, has conducted the proceedings on this Bill in a very friendly and pleasant manner. However, it seems extraordinary that he cannot bring himself to mention the words the dreaded "E" words, "England" and "the English". Perhaps his spin-doctors have included a stipulation in his brief that such words are never to be mentioned. I have been present for most of the proceedings on the Bill, and never once have I heard England or the English mentioned by the noble Lord.
This amendment is a most important one. It should have the support of all unionists of any shade of opinion in Scotland—not merely of Conservatives, who are presently rather thin on the ground in Scotland, but of Labour and Liberal Democrat unionists. The noble Lord, Lord Monson, reminded us of the comments made on this matter in Committee by the noble Lord, Lord Steel of Aikwood.
The Government do not seem to recognise that setting up a new, full-blown parliament with tax-raising powers in a large part of the United Kingdom—that is to say, Scotland, consisting of nearly 10 per cent. of the population and not far short of 40 per cent. of the land area—is of such monumental importance that it necessitates immediate and urgent action to address the gross over-representation of Scots MPs.
As was pointed out, the Government's intention is to allow that situation to continue for some eight years after the Scots parliament is established, which would take us to around 2007. Even that timetable could easily be kicked into the long grass if, as a result of a referendum some time in the next Parliament, there were to be far-reaching changes to the voting system for another place.
This is all quite unacceptable. The Government may get away with it until the end of this Parliament, but after the next general election the representation of English constituencies could be very different from what it is now. It does not need a very large swing for there to be a Conservative majority in the English constituencies after the next general election. Stranger things have happened. Then we are in the potential nightmare scenario whereby decisions could be imposed on the English by way of Scots MPs.
At present, the Westminster parliament is fully sovereign and responsibilities are spread equally throughout the UK. But after devolution English MPs will have substantially fewer powers and England will be diminished while the sovereignty of Scotland will be
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enhanced. Scotland will have her own parliament, substantial over-representation at Westminster and a higher proportion of spending and privileges at the expense of England. That will have huge implications for the rest of the UK; and once vast amounts and areas of legislation and administration are removed from the direct responsibility of Westminster, we are in a totally different situation and in reality no longer a unitary state.
As a result, the Government cannot continue sheltering behind the usual alleged administrative difficulties and sleepy timetable of the Boundary Commission, which is unacceptable. In Committee we heard much about a redoubtable lady, Lady Cosgrove, who is chairman of the Boundary Commission for Scotland and who, we were assured by my noble and learned friend Lord Fraser of Carmyllie, could accomplish the task within a very short space of time. It is utterly ridiculous that this far-reaching Bill can be put through in one Session of Parliament, yet the boundaries of some 72 constituencies cannot be altered for many years. Resolute and urgent action is needed so that we all know where we are before the next Westminster election. As I have said, a speedy and relatively small reduction in Scots MPs will not solve the West Lothian problem in itself, but it will at least alleviate it and, most important, the Government will be seen by the English not to be totally unaware of the problem.
7.15 p.m.
Lord Thomas of Gresford: My Lords, when I hear expressions such as "the West Lothian outrage" being used by Members of this House, it strikes me that the speaker has forgotten what has fuelled the call for devolution in both Wales and Scotland. It is the Westminster question—that is to say that, over the centuries, English Members of Parliament have run the internal affairs of both Scotland and Wales. One example that comes to mind is the imposition of the poll tax in Scotland by a government who were barely represented there.
There is talk of over-representation in Scotland and in Wales. If there had been an enormous economic advantage that one could see from the over-representation; if Glasgow, the most prosperous city in the whole of the United Kingdom, or if the Highlands and Islands were the most prosperous part of Scotland, in those circumstances—
The Earl of Dartmouth: My Lords, if the noble Lord will permit me, there is an economic advantage. Under the Barnett formula, each Scottish resident receives an extra £871 per year or 23.5 per cent. in expenditure.
Lord Thomas of Gresford: My Lords, the statistics for Scotland are not in my head, but I can say that in Wales Wrexham and Flintshire are the most prosperous areas with the highest per capita income; that is, 10 per cent. below the average per capita income for England as a whole. I am sure that the same applies in Scotland and therefore the over- representation that is talked about has not resulted in economic prosperity.

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I approve of the way in which the Government have approached the matter, and I speak as one whose wife was born in and who comes from West Lothian. The West Lothian question is mentioned far too often. The true causes that have fuelled the devolution debate in this country are not understood by the people who use that expression.
Baroness Carnegy of Lour: My Lords, the noble Lord's information about Scotland is not correct. The figures relating to prosperity in Scotland do not match those for Wales, as he described it. However, perhaps that is another point.
I do not know what my noble friend on the Front Bench will say, but I believe that it is increasingly recognised in Scotland that there is a degree of unfairness in the representation at Westminster. There was a good deal of concern about how things would work out for Scotland because, as the noble and learned Lord the Lord Advocate said—or perhaps it was the noble Lord, Lord Sewel—when it comes to voting about social security, for example, the whole membership of the Westminster Parliament will need to be involved because the Bill will also involve Scotland. How the Government or the Boundary Commission will sort it out I do not know.
We must bear in mind that the mystique about the length of time the Boundary Commission is bound to take to come to its conclusions is invented by politicians. The Boundary Commission simply has to calculate a number of sums. If it incorporated my noble friend Lord Mackay of Ardbrecknish on its strength, it would do it quite quickly. He has everything at his finger tips and I dare say the commission has also. There is something in the amendment because it could all happen quicker than the Government seem to think is required. I do not believe that the people of Scotland will mind it. They believe it is fair, they know that the Boundary Commission is fair, they understand it. They are interested in having the Scots parliament and, in fairness, at Westminster. That is because a great deal of Scottish business will still be decided at Westminster and they understand that clearly. There is a lot to be said for the amendment. We shall see what happens to it in this House and whether people support it, but let us not discard it.
The Earl of Dartmouth: My Lords, the noble Lord, Lord Thomas, is singularly ill informed about Scotland and it is the Scotland Bill that we are discussing. Just for the record, I mentioned in my earlier remarks on Amendment No. 35 as a question of fact that Scotland is per capita the second most prosperous region in the United Kingdom, after the South East. The noble Lord, Lord Thomas, might bear that in mind, should the subject ever be discussed again when he is in the Chamber.
I wish briefly to address my remarks to the amendment put down by the noble Lord, Lord Monson. It was a Labour Prime Minister, the late Lord Wilson of Rievaulx, who, like me, had roots in the Huddersfield area, who coined the term: "A week is a long time in
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politics". By that token, the seven or eight years' delay which is expected for bringing in Clause 86 must represent a kind of double eternity.
Earlier, on Amendment No. 35 in my name, the Minister characterised my suggested changes to the quota as being offensive. However, the principle of change in the quota has already been agreed by the Government. To give credit where credit is due, it is a gracious concession to English priorities and English sensibilities. But that gracious concession of principle has a great deal taken away from it if the execution is delayed for the time proposed. That is, something akin to seven or eight years. It will not be executed until the parliament after next.
In closing, in support of the noble Lord, Lord Monson, I should say that if there is sufficient good will to change the quotas, there should and must be sufficient good will to change the quotas in a timely fashion.
Lord Mackay of Ardbrecknish: My Lords, I start by trying to outline what we are agreed about on all sides of the House. As outlined in Clause 86(4) which we have already discussed, it is that the electoral quota in Scotland, as a result of devolution, ought to rise to the same as the electoral quota in England. As the noble and learned Lord the Lord Advocate kindly confirmed, it would mean that the electoral quota in Scotland would rise to 59,500 and the number of seats would decrease to about 58.
The reason the Government have come forward with the suggestion, and the reason I agree with them, is that the position after devolution will be markedly different from that pertaining at present. I do not wish to enter another argument, we have had plenty on the Welsh Bill with the noble Lord, Lord Thomas of Gresford. Up to now we have had a unitary parliament. One part of the country has been like every other part, with Members from one part involved in the business of every other part. The argument put forward sounds like the argument we heard in the mid-1980s and 1990s that the Tories have no mandate to govern Scotland. It is an entirely nationalist argument put forward by people who think the country should be divided because even if there were devolution and a Conservative Government in the United Kingdom many matters would be governed by the Conservative majority in the United Kingdom. I wonder whether the noble Lord would then say that the Government had no mandate to govern Scotland or Wales. It is a dangerous trail for noble Lords to go down unless they wish to sign up for either the Welsh National Party or the Scottish National Party. Otherwise, they should not use that argument.
After devolution, the position will be different. Many important legislative matters will be devolved to the Scottish parliament, much more than to the Welsh assembly. The Government have rightly recognised that that was an inevitable consequence on the number of MPs represented in the other place who come from Scotland. They have agreed with that. I agree with them entirely and with subsection (4).
My disagreement with the Government and agreement with the noble Lord, Lord Monson, in his amendment is that we should not wait until the next

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ordinary decision or review of the Boundary Commission. That would have been fine if nothing else had changed. But something will change dramatically next May. After next May there will be a Scottish parliament up and running.
It seems to me that if subsection (4) is to come into play in five years' time, there is no argument against it coming into play almost as quickly as it can after the May elections. I am sorry that the noble Lord, Lord Steel of Aikwood, is not here. My understanding at the times when we have debated it in the past is that he and I agree entirely on it. I think I am right in saying that he believes that, as an immediate consequence of what happens next May, the number of Scottish seats should go down to 58.
Ministers will tell us that it takes the Boundary Commission much longer than 12 months. It need not. It could be done much more quickly. The commission could start now and be ready next May to put out its proposals. It could be that at the next general election for the UK the situation which the Government agree should pertain in the election after that would pertain from the next election on. It seems to me that if it is right for the future, it has to be right for the immediate future. I therefore support the amendment. A similar amendment was tabled in my name at an earlier stage but we were rather late in the evening to come to it and I thought that it should be discussed at a better time.
I cannot understand how the Government can say, "Yes, we are going to do this, but not yet". I cannot remember which saint had an expression about that, but one of them certainly had an expression about sin. The Government should not get into sin on this matter. If it is right that it should be done, it is best done as quickly as possible after the Scottish parliament comes into being. I am happy to support the amendment.
7.30 p.m.
Viscount Thurso: My Lords, the noble Lord, Lord Mackay of Ardbrecknish, referred to my noble friend Lord Steel, who is not in his place today for reasons to which the noble Lord has referred on previous occasions. It is absolutely true that my noble friend Lord Steel supports the thrust of the amendment and believes that we should move to 58 Members, or whatever the number will be, as soon as possible after the Scottish parliament has been created. However, one point has come up today on the Boundary Commission to which I should like briefly to refer. It comes very much from the previous amendment brought forward by the noble Lord, Lord Mackay, on the percentage numbers. The point I wish to raise is the need for rules for the Boundary Commission to follow in order to achieve the result which I think noble Lords on all sides of the House would like to see achieved.
I am reminded of a saying in computing. It is GIGO—garbage in, garbage out. Therefore, if the rules governing the Boundary Commission are such that it is not permitted to come to the right result, it will never get there. The one element that is missing before such time as we can come to the right result is definitely the need to review the rules in respect of, particularly, the
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rural constituencies in Scotland. I can give one small example. The commission has just reviewed the local government wards and has plucked the village of Reay and its surrounding area out of Caithness, where it has been since time immemorial, and stuck it in Sutherland. I have no doubt that the noble Lord, Lord Sewel, will have a flood of correspondence on his desk in that regard. That happened because the Boundary Commission could not take account of the local circumstances but had to obey the particular rules.
Perhaps I may make one other point. The noble Earl, Lord Dartmouth, had a spirited go at my noble friend. At one point I was slightly reminded of the ant climbing up the tail of the elephant, but I will go no further on that. The noble Earl is wrong in one regard. One point about Scotland is that there are large regional variations. If, as I do, you come from an area such as Caithness, you will know that the per capita income is considerably lower than in most other parts of the United Kingdom. Unemployment is considerably higher and the prospects for the future are not particularly good. Therefore, in many of the rural areas of the Highlands and Islands of Scotland, the noble Earl's point is simply not true.
Lord Sanderson of Bowden: My Lords, when the Minister replies on this important issue, can he say whether the local government building blocks are in place for the parliamentary Boundary Commission to consider this matter expeditiously or otherwise?
Lord Sewel: My Lords, perhaps I may immediately answer that question. I am afraid I do not know. I shall get in touch with the noble Lord at the earliest opportunity.
Perhaps I may deal with the point about England and the English, which was raised by the noble Lord, Lord Ellenborough. As someone who was born in Hackney and was brought up in Bradford in Yorkshire, I am quite happy to mention England and the English. It is just that I happened to have to go to Scotland to find employment at the time, which is the reverse of the normal case.
I am grateful to the noble Lord, Lord Mackay of Ardbrecknish, for narrowing down the area of debate and the area of difference between us. Perhaps I should not need to, but I think I must remind some noble Lords who contributed to the debate that the Government accept the case for reducing the representation of Scotland in the Parliament of the United Kingdom. That seemed to be the main theme of some of the speeches in the debate. The point has been accepted by the Government and has found expression in the Bill. What we are dealing with is the speed at which the Boundary Commission should progress its next report.
Some noble Lords have been critical of the way the Boundary Commission goes about its work and about the outcome of the Boundary Commission's deliberations. I just wonder what would be the reaction of some noble Lords if the Boundary Commission, having done a rush job, came up with a conclusion which they did not like. I really wonder what the response of some Members of your Lordships' House would be if that circumstance came about.

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Why are we adopting the timetable that we propose to adopt? It is basically as simple as this. The Boundary Commission needs a proper amount of time to do the job. I put it to noble Lords that because of the reduction in the number of seats in Scotland for the Parliament of the United Kingdom which will come about following the next review, that review is likely to be more difficult than previous reviews. The Boundary Commission must quite rightly provide opportunities for public hearings and must take evidence. I should have thought that people would very much wish to make representations to the Boundary Commission—I am sure that the political parties would wish to make representations to the Boundary Commission—considering that such a major change in the political geography of Scotland is envisaged. I do not think that ought to be done on the basis of, "Put the program in the computer and see what comes out". That is not satisfactory and would be rejected.
Under the present procedures a Boundary Commission review normally takes three to four years to complete. There are good reasons for that and I would not wish to bump the Boundary Commission into coming out with a half-considered or ill-considered set of proposals. But given the three to four-year period that is required, if the Boundary Commission started work tomorrow it could not produce a report in time for changes to be made and implemented before the next Westminster general election, which must be held by May 2002. The noble Lord, Lord Mackay of Ardbrecknish, asked about the reason for delay. I do not think it is a delay, but I would rather get it right than get it done quickly.
The argument is simply that the amendment, which requires the Boundary Commission to report some 12 months after the first ordinary election, is impracticable. It is impossible to deliver with anything like the due consideration, thought, scrutiny and inquiry which the Boundary Commission properly brings to its task. I hope that the noble Lord will be able to withdraw his amendment.
Lord Mackay of Ardbrecknish: My Lords, before the noble Lord sits down, can he tell me when it is envisaged that the next Boundary Commission will start its work and when it is envisaged that it will report? May we have an absolute guarantee that it will report for the new constituencies to be in place before the election after the next one?
Lord Sewel: My Lords, I shall reply to that question but, first, I may be able to deal with an earlier question which I answered with a "Don't know". I am told that the Local Government Boundary Commission is currently concluding its review of the Scottish local authority wards. That review and its conclusions will be available to the Parliamentary Boundary Commission in carrying out its next review. The answer is that it is not absolutely in place. If the Parliamentary Boundary Commission were to begin now those new building blocks would not be available to it, but by the time it came to consider the matter in normal course they would be. I believe that that is another powerful argument for sticking to the original timetable.
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I return to the point made by the noble Lord, Lord Mackay of Ardbrecknish. The timetable is driven by the fact that the Boundary Commission should report not less than eight or more than 12 years from the date of its last report. The commission submitted its last report in December 1994 and its next mandatory report is due to be submitted between December 2002 and December 2006.
Lord Monson: My Lords, I am most grateful to the noble Lord, Lord Ellenborough, the noble Baroness, Lady Carnegy, and the noble Lord, Lord Mackay of Ardbrecknish, for their powerful and well-argued support. As for the noble Lord, Lord Thomas of Gresford, he appeared to be singing from a totally different hymn sheet from that of most of his noble friends—certainly his Scottish ones. However valid his criticisms may be of how things worked in Scotland and Wales in the past, I am sure he agrees that two wrongs cannot possibly make a right.
The Government argue that the Boundary Commission will need much more time than the time provided by this amendment. However, the noble Lord, Lord Mackay of Ardbrecknish, with his great mathematical expertise, has argued convincingly that that need not be so. Perhaps I may again quote the words of the noble Lord, Lord Steel of Aikwood:
"there is no reason why the Boundary Commission could not start now and finish well before the three-year deadline".—[Official Report, 6/10/98; col. 360.]
I wonder whether the Government realise that there is a danger that cynical people will suspect that they are trying to postpone the reduction in the number of Scottish MPs at Westminster until after the next general election for reasons of party political advantage. I am surprised that New Labour wants to run such a risk to its good reputation. The Conservatives have supported this amendment and at Committee stage most of the Liberal Democrats were strongly in favour of the principle of a much more radical amendment. Therefore, I feel that I must test the opinion of the House.
7.42 p.m.
On Question, Whether the said amendment (No. 38) shall be agreed to?
Their Lordships divided: Contents, 47; Not-Contents, 114.

Division No. 3

CONTENTS

Ackner, L.

Forbes, L.

Anelay of St. Johns, B.

Grantley, L.

Attlee, E.

Gray of Contin, L.

Byford, B.

Harlech, L.

Carnegy of Lour, B.

Inchcape, E.

Carnock, L.

Inglewood, L.

Chalker of Wallasey, B.

Jenkins of Roding, L.

Coleraine, L.

Kingsland, L.

Courtown, E.

Kintore, E.

Dartmouth, E.

Lang of Monkton, L.

Ellenborough, L. [Teller.]

Leigh, L.

Elton, L.

Lyell, L.

Fookes, B.

Mackay of Ardbrecknish, L.

579

Mackay of Drumadoon, L.

Ryder of Wensum, L.

Mancroft, L.

Saltoun of Abernethy, Ly.

Mayhew of Twysden, L.

Sanderson of Bowden, L.

Monson, L. [Teller.]

Selkirk of Douglas, L.

Mountevans, L.

Sharples, B.

Mowbray and Stourton, L.

Stair, E.

Strange, B.

Norton, L.

Strathclyde, L.

Perry of Walton, L.

Torrington, V.

Rawlings, B.

Wade of Chorlton, L.

Renton, L.

Wynford, L.

NOT-CONTENTS

Acton, L.

Hunt of Kings Heath, L.

Addington, L.

Irvine of Lairg, L. [Lord Chancellor.]

Ahmed, L.

Alli, L.

Islwyn, L.

Amos, B.

Janner of Braunstone, L.

Archer of Sandwell, L.

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

Ashley of Stoke, L.

Bach, L.

Jenkins of Putney, L.

Barnett, L.

Judd, L.

Bassam of Brighton, L.

Kilbracken, L.

Beaumont of Whitley, L.

Lester of Herne Hill, L.

Berkeley, L.

Linklater of Butterstone, B.

Blackstone, B.

Lockwood, B.

Blease, L.

Lofthouse of Pontefract, L.

Bragg, L.

Macdonald of Tradeston, L.

Burlison, L.

McIntosh of Haringey, L. [Teller.]

Carmichael of Kelvingrove, L.

Carter, L. [Teller.]

Mackenzie of Framwellgate, L.

Christopher, L.

Mackie of Benshie, L.

Clarke of Hampstead, L.

McNair, L.

Clinton-Davis, L.

Mallalieu, B.

Cocks of Hartcliffe, L.

Mar and Kellie, E.

Crawley, B.

Milner of Leeds, L.

David, B.

Monkswell, L.

Davies of Coity, L.

Montague of Oxford, L.

Davies of Oldham, L.

Morris of Manchester, L.

Dean of Beswick, L.

Murray of Epping Forest, L.

Dean of Thornton-le-Fylde, B.

Northfield, L.

Desai, L.

Pitkeathley, B.

Dixon, L.

Prys-Davies, L.

Dormand of Easington, L.

Ramsay of Cartvale, B.

Dubs, L.

Randall of St. Budeaux, L.

Evans of Parkside, L.

Rendell of Babergh, B.

Evans of Watford, L.

Rodgers of Quarry Bank, L.

Falconer of Thoroton, L.

Russell, E.

Farrington of Ribbleton, B.

Sainsbury of Turville, L.

Fitt, L.

Sawyer, L.

Gallacher, L.

Scotland of Asthal, B.

Sefton of Garston, L.

Geraint, L.

Sewel, L.

Gilbert, L.

Shepherd, L.

Goudie, B.

Simon, V.

Gould of Potternewton, B.

Smith of Gilmorehill, B.

Graham of Edmonton, L.

Stoddart of Swindon, L.

Grenfell, L.

Symons of Vernham Dean, B.

Hacking, L.

Taylor of Blackburn, L.

Hardie, L.

Thomas of Gresford, L.

Hardy of Wath, L.

Thomas of Macclesfield, L.

Harris of Greenwich, L.

Thurso, V.

Harris of Haringey, L.

Tomlinson, L.

Hayman, B.

Tordoff, L.

Hilton of Eggardon, B.

Uddin, B.

Hogg of Cumbernauld, L.

Walker of Doncaster, L.

Hollick, L.

Warner, L.

Hollis of Heigham, B.

Watson of Invergowrie, L.

Hope of Craighead, L.

Whitty, L.

Howie of Troon, L.

Williams of Elvel, 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.
7.50 p.m.
Lady Saltoun of Abernethy Lady Saltoun of Abernethy moved Amendment No. 39:
Before Clause 91, insert the following new clause—

VETO ON CHANGES TO SCOTTISH TIME ZONES OR SUMMER TIME
(" .—(1) No provision that would or might alter—

(a) the time zone applicable in Scotland, or

(b) the application of the Summer Time Act 1972 to Scotland,

shall have effect unless a draft of the provision has been laid before, and approved by resolution of, the Parliament.
(2) In this section "provision" includes—

(a) primary legislation, and

(b) subordinate legislation (including subordinate legislation to bring into force primary legislation).").

The noble Lady said: My Lords, in moving Amendment No. 39 I should also like to speak to Amendment No. 77 which is consequential. Many of your Lordships will remember that at Report stage last Tuesday I moved an amendment to Schedule 5 to give the Scottish parliament control over time zones and the subject matter of the Summer Time legislation. Some of your Lordships will also remember that while the amendment attracted a lot of sympathy, it did not attract any support, so I withdrew it. However, I said that I would act on a suggestion made by the noble Lord, Lord Mackay of Ardbrecicnish, that the issue should be left to the United Kingdom Parliament, perhaps with an armlock from the Scottish parliament. I acted on his suggestion and this amendment is designed to give the Scottish parliament that armour.
I do not propose to rehearse again the arguments against Summer Time in winter for Scotland. I am sure that most of your Lordships already know them by heart having heard them again less than a week ago, although I shall be happy to rehearse them again if any noble Lord wishes me so to do.
I hope that the amendments will find greater favour with the Government than did my previous amendment. I beg to move.
Baroness Carnegy of Lour: My Lords, the noble Lady is making valiant efforts on behalf of her fellow Scots to ensure that a change in the arrangements for Summer Time is not brought about in a way that Scots do not wish. I do not know whether the noble Lady will agree with me, but the amendment does not prevent the Westminster Parliament keeping Summer Time in England and Wales throughout the year but excluding Scotland. If the Westminster Parliament agreed to that, it would happen and Scotland would still have to follow suit if it did not want a different time zone. I am not sure how the amendment cures the problem. I hope that I am wrong. The noble Lady is trying extremely hard. I agree that the people in Scotland do not yet want that

581
change. I find an increasing number in the farming community coming round to it, but it has not happened yet. I am sure the noble Lady is right to try to protect us.
Lord Forbes: My Lords, I find difficulty with Amendment No. 77 which refers to Scotland having a veto. A veto means conflict; and conflict is the one thing we want to avoid between Westminster and Edinburgh.
Lord Howie of Troon: My Lords, I have been voting happily all day in support of my noble friends on the Front Bench and my Government. However, on this occasion I sincerely hope that the Government will accept the amendment proposed by the noble Lady, Lady Saltoun of Abernethy. One of my reasons for supporting her is that, being a veto, it prevents conflict rather than suggesting it. I realise that that is a Jesuitical argument, but none the less I quite like it.
The amendment takes up the suggestion made by the noble Lord, Lord Mackay of Ardbrecknish, of putting an armlock on the English-dominated Parliament. I do not wish to go into the arguments in favour or against Central European Time. We have discussed them over and over again in this House in the past five years. I have spoken on the subject at least six or seven times. I no longer listen to my speeches; I do not think that anyone else does! The arguments have been trailed over and again. What appears to be advantageous in the south-eastern part of England, especially to those who are strongly devoted to Europe, as many of us are, would be disadvantageous to Scotland. More especially, it would be disadvantageous to the construction industry in Scotland.
The only argument in favour of Central European Time which had any merit was that it might reduce slightly the number of road casualties in the evening. Against that one has to balance a salient statistic; namely, that during the previous three-year experiment in the late 1960s and early 1970s while the number of casualties on the roads were reduced slightly, due to the change in time and vagaries of the weather, and so on, injuries in the construction industry increased by a third. Against the safety on the roads, which is valuable, of course, one balances the increased dangers to the construction industry. I think that the armlock should be applied. I sincerely hope that my noble friend on the Front Bench will support the amendment.
Lord Monson: My Lords, time and again over the years I have found myself in agreement over time zones with the noble Lord, Lord Howie of Troon. Quite often it has been the two of us against the rest. On the last occasion the noble Lord, Lord Lang—he was in his place earlier—made it three. I agree again wholeheartedly with the noble Lord, and accordingly with my noble friend Lady Saltoun. I think that the amendment represents a sensible compromise.
Lord Mackie of Benshie: My Lords, I cannot agree with the noble Lady's proposals. I do not agree with the noble Lord, Lord Howie of Troon, who occasionally talks good sense but sometimes strays a little.
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It is an ingenious amendment. I detect that the master hand of the great intriguer is at work in advising on these matters. I believe that this is a bad amendment because it is a veto on 60 million people by the people of Scotland. That cannot be right. If the English nation and parts of the Scottish nation wished to change to Summer Time, surely we in Scotland in all justice could not veto that.
It is more logical for Scotland to have control of its own Summer or Winter Time and the change in hours because then it would inconvenience only the Scots if they insisted on keeping the old time. The arguments for a level time—whether it be Summer Time all the year round or the status quo—throughout Britain are absolutely irrefutable. There must be the same time-zone throughout Britain.
The amendment gives rise to total injustice to people in the deep south and it does no particular good for the people of Scotland.
Reverting to the question of Summer and Winter Time, there is no doubt that the argument about children walking to school in the dark and the danger that involves no longer applies. Hardly a child in Scotland walks to school these days; they are all driven there by parents or take the school bus.
8 p.m.
Lord Howie of Troon: My Lords, I thank the noble Lord for giving way. I am grateful for his earlier kind words; he and I are old friends. He says that children are driven to school. However, he will have noticed the Government's proposals for an integrated transport system, with my right honourable friend Mr. Prescott trying to encourage people to walk and cycle rather than to be driven to school. He thinks that that is a great mistake.
Lord Mackie of Benshie: My Lords, I do not believe that the Government, foolish though they may be, intend that to apply to five, six and seven year-olds. The figures show that there are far more accidents at night than in the dark in the morning. In the morning people are far more cautious than at night when they are tired. I cannot support the amendment. It produces an injustice to England which is greater than any injustice to Scotland.
Lord Chesham: My Lords, as a total Sassenach, I hesitate to intervene. I support the noble Lady's amendment because I believe that the Scottish parliament, if we have to have one—and it appears that we have to have one—should make the decision. However, having lived in Australia, with its north/south time-zones, I wish to issue a word of warning. Enormous problems were created. East/west time-zones are understandable but north/south are not. A child leaving home at 8.30 in the morning arrives at school over the border at eight o'clock. She leaves at four o'clock and arrives home at half-past five. As regards homework and so forth, that makes no sense. The same difficulties apply applies to business men.

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I support the amendment and the proposal that the decision should not be made by Westminster. However, I issue a word of warning that it makes no sense at all.
The Earl of Kintore: My Lords, at col. 246 of the Official Report of 3rd November the noble Lord, Lord Mackay of Ardbrecknish, suggested to my noble friend that she might bring back a suitable amendment at Third Reading. On that evening, the noble Lord, Lord Sewel, by his arm movements—unless he was merely cuffing his noble and learned friend the Lord Advocate—appeared to me positively to welcome the proposal. A suitable amendment has been proposed and it would be churlish for the Government to reject it.
Lord Mackay of Ardbrecknish: My Lords, we have learnt one thing; that the Liberal Democrats agree with British Summer Time all year round. That will probably be news to people in the north of Scotland and in Orkney and Shetland, but never mind.
Lord Mackie of Benshie: My Lords, that is not accurate. I said that arguments are being adduced which make the previous arguments appear a little unreasonable.
Lord Mackay of Ardbrecknish: My Lords, it still sounds like coming down off the fence. But I shall let it pass. The noble Lady, Lady Saltoun, has come forward with a proposal which leaves the power to this Parliament but puts an arm-lock on the issue if it is held by the Scottish parliament. I suggested that she might do so. My noble friend Lady Carnegy pointed out that the Scottish parliament can act only for Scotland. That is true; we could not suggest that a draft provision be laid before the Scottish parliament which affected England. However, I do not believe that the United Kingdom Parliament would ever countenance different time-zones within the United Kingdom.
Your Lordships know my simple view that if the Americans manage to operate with different time-zones it is not because they are more clever than the British or the Europeans. I do not understand the great obsession with having the same time-zone over the whole of Europe, but it is important for the whole of the United Kingdom. I do not believe that the UK Parliament would proceed for part of the United Kingdom if the Scottish parliament said that the change could not be made in Scotland. I believe that the UK Parliament must take that into account. To that extent, the noble Lady has achieved her objective in the amendment and I would support it. I can think of nothing more divisive occurring in the next few years than the Westminster Parliament, driven largely by English interests which seem unable to live with a time-zone different from the Continent, deciding to have Summer Time all year round, with the Scots being as opposed as ever.
It is well worth remembering that after three or four years the experiment collapsed because of pressure not only from Scotland but from the north of England and the west. As was explained clearly on a previous occasion by the noble Lord, Lord Howie of Troon, it is not just a case of northward but also of westward. The
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United Kingdom does not lie north/south; as one goes further north it inclines heavily to the west. Therefore, that factor must be taken in account, too. I am happy to support the noble Lady's amendment.
Lord Hardie: My Lords, we are all agreed that it is inappropriate to have different time-zones within the United Kingdom. It is in everyone's interest that there should be a common time-zone. I understand what the noble Lady is trying to achieve with the amendment; she does not wish Central European Time to be introduced in Scotland and on Report she stated that she was unsure that the United Kingdom Parliament would consider Scotland's interests after the Scottish parliament had been established.
With great respect, I cannot agree with that assertion. After devolution, Scotland will remain fully represented both here and in another place. In addition, it will be open to the Scottish parliament to make its feelings known if the issue is ever discussed in Westminster.
There is a further difficulty. As was pointed out by the noble Lords, Lord Forbes, Lord Mackie of Benshie and Lord Howie of Troon, the amendment introduces a veto. I would go further and say that it is anomalous. It appears to allow the reservation of the issue of time-zones and the Summer Time Act 1972 but then effectively devolves to the Scottish parliament the final say on time-zones applicable to Scotland. That approach is quite unacceptable to the Government and I hope to the rest of the House. Nothing else in the Bill is treated in this way. No other reserved issue is then pulled back as a devolved issue. I cannot think of any valid reason why this issue should be treated differently from the other issues covered by the Bill. Indeed, I believe that this amendment offers a dangerous approach which might run the risk of undermining the devolution settlement. I am sure that would be furthest from the mind of the noble Lord, Lord Mackay of Ardbrecknish. I ask the noble Lady to withdraw her amendment.
Lord Howie of Troon: My Lords, before my noble friend sits down, I should like to say that he seems to be putting undue weight on the capacity of the United Kingdom Parliament, dominated, let it be said, by Englishmen—
Lord McIntosh of Haringey: My Lords, my noble friend must realise that we are at Third Reading. He did not rise to ask a question, but to make a different point. Surely that cannot be acceptable.
Lord Howie of Troon: My Lords, well—
Lord McIntosh of Haringey: My Lords, I am sorry, I must ask my noble friend to resume his seat.
Lord Howie of Troon: My Lords, I was just about to do so. If I may say so, my noble friend leapt up the second time a little too rapidly.
Lady Saltoun of Abernethy: My Lords, we have had an interesting and rather amusing debate on this amendment. I am grateful to all noble Lords who have

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supported me. I am very sorry that the Government are determined not to accept it because our parliament should have some control, over a matter which affects the lives of us Scots so much. Therefore, I ask for the opinion of the House.
8.11 p.m.
On Question, Whether the said amendment (No. 39) shall be agreed to?
Their Lordships divided: Contents, 42; Not-Contents, 103.

Division No.4

CONTENTS

Anelay of St Johns, B.

Lyell, L.

Attlee, E.

Mackay of Ardbrecknish, L.

Borthwick, L.

Mackay of Drumadoon, L.

Byford, B.

Masham of Ilton, B.

Carnegy of Lour, B.

Mayhew of Twysden, L.

Chesham, L.

Monson, L.

Courtown, E.

Mountevans, L.

Cranborne, V.

Mowbray and Stourton, L.

Dundonald, E.

Northesk, E.

Ellenborough, L.

Rawlings, B.

Fookes, B.

Renton, L.

Fraser of Carmyllie, L.

St. John of Fawsley, L.

Geddes, L.

Saltoun of Abernethy, Ly. [Teller.]

Harlech, L.

HolmPatrick, L.

Sanderson of Bowden, L.

Selkirk of Douglas, L.

Howie of Troon, L.

Sharples, B.

Inglewood, L.

Skelmersdale, L.

Kingsland, L.

Stair, E.

Kintore, E. [Teller.]

Strange, B.

Lang of Monkton, L.

Strathclyde, L.

Leigh, L.

Wedgwood, L.

NOT-CONTENTS

Acton, L.

Evans of Watford, L.

Addington, L.

Falconer of Thoroton, L.

Ahmed, L.

Farrington of Ribbleton, B.

Alli, L.

Gallacher, L.

Amos, B.

Gilbert, L.

Archer of Sandwell, L.

Goudie, B.

Bach, L.

Gould of Potternewton, B.

Barnett, L.

Graham of Edmonton, L.

Bassam of Brighton, L.

Grenfell, L.

Berkeley, L.

Hacking, L.

Blackstone, B.

Hardie, L.

Blease, L.

Hardy of Wath, L.

Bragg, L.

Harris of Haringey, L.

Burlison, L.

Hilton of Eggardon, B.

Carmichael of Kelvingrove, L.

Hogg of Cumbernauld, L.

Carter, L. [Teller.]

Hollick, L.

Christopher, L.

Hoyle, L.

Clarke of Hampstead, L.

Hughes of Woodside, L.

Clinton-Davis, L.

Hunt of Kings Heath, L.

Cocks of Hartcliffe, L.

Irvine of Lairg, L. [Lord Chancellor.]

Crawley, B.

David, B.

Islwyn, L.

Davies of Coity, L.

Janner of Braunstone, L.

Davies of Oldham, L.

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

Dean of Beswick, L.

Dean of Thornton-le-Fylde, B.

Judd, L.

Desai, L.

Kilbracken, L.

Dixon, L.

Lester of Herne Hill, L.

Dormand of Easington, L.

Linklater of Butterstone, B.

Dubs, L.

Lockwood, B.

Evans of Parkside, L.

Lofthouse of Pontefract, L.

586

Macdonald of Tradeston, L.

Sainsbury of Turville, L.

McIntosh of Haringey, L. [Teller.]

Sawyer, L.

Scotland of Asthal, B.

Mackenzie of Framwellgate, L.

Sefton of Garston, L.

Mackie of Benshie, L.

Sewel, L.

McNair, L.

Shepherd, L.

Mallalieu, B.

Simon, V.

Mar and Kellie, E.

Smith of Gilmorehill, B.

Milner of Leeds, L.

Stoddart of Swindon, L.

Monkswell, L.

Symons of Vernham Dean, B.

Montague of Oxford, L.

Taylor of Blackburn, L.

Morris of Manchester, L.

Thomas of Gresford, L.

Murray of Epping Forest, L.

Thomas of Macclesfield, L.

Northfield, L.

Tomlinson, L.

Pitkeathley, B.

Tordoff, L.

Prys-Davies, L.

Uddin, B.

Ramsay of Cartvale, B.

Walker of Doncaster, L.

Randall of St. Budeaux, L.

Warner, L.

Rea, L.

Watson of Invergowrie, L.

Rendell of Babergh, B.

Whitty, L.

Rodgers of Quarry Bank, L.

Williams of Mostyn, L.

Russell, E.

Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.
8.20 p.m.
Clause 91 [Maladministration]:
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 40:
Page 43, line 24, leave out ("118") and insert ("117").
The noble Baroness said: My Lords, Clause 117 is one of a set of clauses—Clauses 117 to 124—which is concerned with how existing enactments are to be read. The Scottish parliament is to make its own provision about maladministration. For that reason functions under the Parliamentary Commissioner Act 1967 are not to be transferred to Scottish Ministers. In that context, Clause 91 already provides that Clause 53, the clause that deals with the transfer of functions, does not apply in relation to functions confirmed by or under the 1967 Act.
Clause 91 also provides, or it was the intention that it should provide, that all relevant clauses which say how Acts are to be read, where functions transfer down, similarly do not apply. However the reference to Clause No. 117, the first in the set of relevant clauses, was inadvertently omitted at an earlier stage in the drafting of the Bill. The amendment simply remedies that omission and leaves the way clear for the parliament to develop its own arrangements for dealing with maladministration. I beg to move.
On Question, amendment agreed to.
Clause 95 [Appointment and removal of judges]:
Lord Hardie
Lord Hardie moved Amendment No. 41:
Page 45, line 29, leave out from ("ground") to end of line 32.
The noble and learned Lord said: My Lords, Amendment No. 41 deletes the requirement for a two-thirds, rather than a simple, majority in the parliament in order to approve a Motion by the First Minister for the removal of a judge. There is no point in requiring the parliament to approve the Motion by a two-thirds majority if the tribunal has already found that

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the judge is unfit. Indeed, the requirement for such a majority could prevent the removal of a judge who was unfit.
An identical amendment—Amendment No. 175—was part of the package of amendments tabled by the noble and learned Lord, Lord McCluskey, on Report. However that amendment was, in the event, not moved.
It may be helpful if I expand and explain what the Government propose to do in response to the decision on this clause on Report. Having considered the strength of feeling expressed in the House on all sides, the Government intend to bring forward amendments to the Bill in another place which will place a duty on the parliament to make provision for an independent tribunal. The First Minister will be required to receive a report recommending removal from this tribunal before he may satisfy himself that a judge is unfit for office.
We would still wish to leave it largely to the parliament to decide the question of composition of the tribunal and its procedures. However, we believe that the tribunal should be chaired by a suitably qualified person, and we intend to specify that the chairman should be a person who is eligible in terms of Clause 103 to be a member of the Judicial Committee of the Privy Council in proceedings under the Bill.
Provided those proposals are accepted in another place, this House will, of course, have an opportunity to discuss and debate the matters at a later stage. I felt that it was important to explain the thinking to enlighten your Lordships. I beg to move.
Lord Lester of Herne Hill: My Lords, from these Benches we support the amendment which is the logical consequence of the Government's acceptance of the need for an independent and impartial tribunal to deal with the removal of Scottish judges.
As it may become contentious in another place, perhaps it may be possible to seek clarification on one important matter. When the matter was debated in the House on Report on 2nd November the noble and learned Lord the Lord Advocate explained that the Government's view was that the removal of a judge did not involve the determination of a civil right because there was,
"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".—[Official Report, 2/11/98; col. 67]
That is important because it seems to us that there is an obligation upon both Houses of Parliament to ensure that in enacting legislation they do not authorise or require unnecessary breaches of convention rights under the European Convention on Human Rights. It seems to us that there are indeed two kinds of civil rights at stake when a judge is to be removed from public office. One is the civil right to reputation, which could be gravely affected were the judge to be removed without just cause. The other is that although judicial pensions are not themselves to be devolved to the Scottish assembly, a judge needs to earn his pension and, if prematurely
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removed from office, his pension rights, which are part of property rights, as the Government accept, will be jeopardised by a premature removal from office.
Therefore it seems to us that the Government have been wise in accepting the spirit of the amendment of the noble and learned Lord, Lord McCluskey, and they may wish to flesh it out in some form or another in another place. Is the noble and learned Lord the Lord Advocate able to confirm that there are civil rights at stake? One may reach a situation where there is a conflict with the European convention if we do not create an independent and impartial tribunal, established by law, to deal with the removal of Scottish judges in the way now happily agreed on all sides of the House.
Lord Mackay of Drumadoon: My Lords, I fully support the amendment. It reflects not only the amendment spoken to by the noble and learned Lord, Lord McCluskey, when we discussed this on Report, but also an amendment which I tabled on the ninth day of Committee, on 5th October. As I pointed out then, the idea of a judge surviving, because there was not a majority of two thirds against him, was one which I found unacceptable. I well understand why the Government have brought forward the amendment. I welcome it.
I am extremely grateful to the noble and learned Lord the Lord Advocate for explaining the Government's intentions as far as concerns the wider issues: namely, the removal of Scottish judges. It is clearly a non-political issue. When I spoke on Report I made it perfectly clear that I had no absolute views as to the detail of the mechanism involved. However, it will not have escaped the Government's notice that the amendment which the noble and learned Lord, Lord McCluskey, put to a vote, was one that had appended to it the names of my noble friends the noble Lord, Lord Mackay of Ardbrecknish, and the noble and learned Lord, Lord Fraser of Carmyllie, and myself. Without disclosing too many secrets, it was an amendment framed in consultation with others. Therefore, I hope that it will be possible for the Government to consult with myself, my noble and learned friend and my noble friend when finalising the detail of what is proposed for another place.
It would be extremely unfortunate were there to be any further controversy on the matter. As the noble Lord, Lord Lester, has said, the issue of convention rights undoubtedly arises, but there are more practical issues such as the number of personnel who should compose the tribunal and what qualifications, if any, they should have other than those described for the person who will chair the tribunal. To avoid further difficulty it may be prudent to be given as much notice of that as possible. I stress my thanks to the noble and learned Lord the Lord Advocate for giving us as much notice as possible of the Government's intentions.
8.30 p.m.
Lord Hope of Craighead: My Lords, I too support the amendment for the reasons which have been

589
expressed. I add my own words of thanks to the noble and learned Lord the Lord Advocate for the explanation which he has given us about the Government's thinking.
There is one point which I should like to stress; that is, the importance of ensuring that the Scottish parliament has power to make arrangements for members of the Privy Council and Lords of Appeal in Ordinary to sit as members of the tribunal.
Doubts were expressed on the last occasion as to whether, without power given to it from this Parliament, the Scottish parliament would be able to involve people who held those positions in such an arrangement. It must not be forgotten that the tensions which are likely to arise in Edinburgh, should one of those events ever occur, would be considerable. It would be invidious for the question of removal to have to be decided by judges who sat on the same Bench as the judge who was at risk of being removed. For that reason, I am particularly glad that the noble and learned Lord was able to tell us that it is proposed to give that particular power to the Scottish parliament.
As for the question of the removal of the qualified majority, it is eminently sensible that should a positive report be reached—that is, that a particular judge is not suitable or is unable to sit—that that should not fall by reason of a failure to reach the qualified majority.
Lord Hardie: My Lords, perhaps I may reassure the noble and learned Lord, Lord Hope of Craighead. As I indicated, the amendment which will be tabled to be considered by the other place will make specific provision for the chairman to be qualified under Clause 1 or 3, so that would overcome that particular difficulty.
As regards the point made by the noble and learned Lord, Lord Mackay of Drumadoon, the amendments dealing with the removal of judges are expected to appear on the Commons Order Paper tomorrow for discussion on Wednesday. There will not be time for a vast discussion but I should be happy to explain the proposals to the noble and learned Lord if he wishes.
I deal with the point raised by the noble Lord, Lord Lester. It is not necessary to become involved in that discussion in the context of what we are doing now. I expressed our view on Report. There is a distinction between civil rights in the public and private sectors. That is still our position. But, happily, if the amendment is accepted in another place we shall not have to exchange views with each other across the Dispatch Box.
If the noble Lord wishes to know my opinion, it is not appropriate that I should give it here and certainly I should not give it to him and not give it free.
Lord Lester of Herne Hill: My Lords, I am sure that no opinion that is given from the noble and learned Lord the Lord Advocate comes free in the sense that it is not fully considered.
The House needs to be informed about its international obligations. I shall not pursue the matter but I simply ask the noble and learned Lord the Lord
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Advocate to consider the points which I have made which are new and separate from those which have been raised already. They may be important hereafter. The point about reputation and deprivation of the opportunity to earn a pension seem to us to be important. Will the noble and learned Lord the Lord Advocate consider those points and ponder upon them in the light of his previous statements to the House?
Lord Hardie: My Lords, I am always happy to consider any matter which the noble Lord raises. I thank all noble Lords for their support on the amendment.
On Question, amendment agreed to.
Lord Ackner Lord Ackner moved Amendment No. 42:
Page 46, line 4, leave out ("two") and insert ("three").
The noble and learned Lord said: My Lords, this amendment has all the appearance of a drafting amendment but it is a little more important than that because it deals with the tribunal which has that significant role to play with regard to deciding whether or not there is a situation in which a judge should have his appointment terminated. That is a great responsibility given to that tribunal. If it consists only of two persons, then there is a risk either of a disagreement or of an unsatisfactory compromise decision.
I sat many times in the Court of Appeal with a tribunal of two. I rarely found it a comfortable occasion because one was deeply anxious as to whether one's colleague would suddenly depart in a direction with which one did not agree. A two-judge court is an invitation to the possibility of disagreement and if you have the disagreement, what then? You have to start all over again and if there is no provision for three judges, you will have to start all over again with two other judges who may disagree. And so it may go on.
Therefore, on the occasion when this matter was last raised on Report, I suggested that the two should become three. My noble and learned friend Lord McCluskey, whose amendment I was referring to in that very moderately critical way, accepted that there should be three judges, if that were the will of parliament.
I wish to take this opportunity to amend the record in a small way. I must have been suffering from ideas above my station when I sought to recollect what occurred 20 years ago when a humble Address was moved, or was likely to be moved, to remove me from the office which I held as a Justice of the High Court. That Address was not made in this House. It was made in another place.
As I indicated to your Lordships, an amendment was tabled. I said that it was tabled by Lord Broxbourne. He was not then Lord Broxbourne. The amendment was tabled by Sir Derek Walker-Smith. His proposal was to delete all that was in the humble Address and to put in its place what I suggested contained a list of qualities that even my best friends may not have recognised in me.

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By way of mitigation, in support of what I have said, I shall read out the amendment tabled by Sir Derek Walker-Smith, and your Lordships can see the strength of my observation. His proposal was to,
"leave out from 'That' to end and add 'this House recognises in Mr Justice Ackner the qualities of fairness, clarity, patience and courtesy which make him eminently fitted for high judicial office; deprecates ill-considered criticism of him, whether deriving from ignorance or political partisanship; and hopes that he will for many years continue to serve successfully the cause of British justice'".
Having read that out, my only regret is that my noble and learned friend the Lord Chancellor is not present to hear it. I beg to move.
Lord Lester of Herne Hill: My Lords, I am delighted to speak after the noble and learned Lord, Lord Ackner.
Lord Hardie: My Lords, I hesitate to interrupt the noble Lord, Lord Lester, but perhaps I can assist. I indicated to the noble and learned Lord, Lord Ackner, that we will be accepting this amendment.
Lord Lester of Herne Hill: My Lords, I shall be brief and wish to make only two points. First, there was one lapse in the career of Mr. Justice Ackner in his extra judicial capacity which is that I recall he sponsored me for Silk. That showed a certain cloud in his judgment at the time. In all other respects Sir Derek Walker-Smith—Lord Broxbourne—understated the position.
In relation to two-judge courts, I am delighted to hear that the amendment is to be supported by the Government. In my experience as an advocate there is nothing worse than a two-judge court; it is a recipe for weakness. Finally, it seems to me that a three-judge court recognises the gravity of what is at stake when a judge is being considered for possible removal.
Lord Hope of Craighead: My Lords, it is only right that I should confess that it was at my suggestion that the noble and learned Lord, Lord McCluskey, changed his original proposal, which was a tribunal of two or three, to a tribunal of two.
I have sat on a two-judge court which was responsible for removing a sheriff under statute. Perhaps it was against the background of that experience that I made the suggestion. It was made largely having regard to the strain on manpower that might be caused if three Lords of Appeal in Ordinary—that was the suggestion at one time—had to sit on the tribunal. However, I am content to give way to those wiser than myself who recognise the virtues of a three-judge court. No doubt in the framing of the amendment to be considered in another place, the Scottish parliament will be given power to select a suitable three-person tribunal from a sufficient body of people to avoid the kind of strain on manpower that I had in mind.
Lord Hardie: My Lords, as I indicated, the Government are happy to accept the amendment of the noble and learned Lord, Lord Ackner. We intend to take his arguments into account in moving amendments of our own in another place.
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I should have said in respect of the previous amendment that the noble and learned Lord, Lord McCluskey, regrets that he is unable to be here this evening as he is undertaking judicial duties.
Lord Ackner: My Lords, I am grateful to my noble and learned friend the Lord Advocate for his willingness to accept this amendment and for agreeing to deal with the major proposals which this House accepted on Report in the way he indicated.
On Question, amendment agreed to.
[Amendment No. 43 not moved.]
8.45 p.m.
Clause 103 [The Judicial Committee]:
Lord Lester of Herne Hill Lord Lester of Herne Hill moved Amendment No. 44:
Page 49, line 4, leave out from ("1876") to end of line 5.
The noble Lord said: My Lords, the purpose of Amendment No. 44 is simply to enlarge the potential pool in the Judicial Committee of the Privy Council to include not only British judges from the four corners of the United Kingdom, but also senior Commonwealth judges who have a considerable body of experience in deciding constitutional and human rights cases.
On the second day of Report the noble and learned Lord the Lord Chancellor said,
"We should stick for the time being with the Judicial Committee. It has a long history of dealing with cases and appeals of a constitutional character from the Commonwealth".—[Official Report, 28/10/98; col. 1985.]
I respectfully agree with that and it is precisely that experience in hearing constitutional appeals from the Commonwealth which will be so beneficial in the determination of devolution issues, with or without human rights implications.
We have the enormous benefit of senior judges such as the noble and learned Lord, Lord Cooke of Thorndon, who sit at present both on the Appeal Committee and on the Judicial Committee of the Privy Council. We will be depriving ourselves of a source of judicial experience and wisdom if we narrow the pool. It will be strange to narrow the pool so that a retired Court of Appeal judge from England, who may have no great experience of public law cases or constitutional issues, is to be within the pool, but a constitutional judge from the Commonwealth who can sit, for example, on the final court in Hong Kong, for precisely similar reasons would be disqualified from sitting as a member of the Judicial Committee.
We are happy that the Government will take an inclusive rather than an exclusive view of membership of the Judicial Committee by widening the pool. There will be the added practical advantage that the great burdens that are now being imposed through the heavy caseload upon Lords of Appeal in Ordinary will be better shared if one can widen the pool so that there are more potential members of the Judicial Committee to deal with cases of that kind.
The amendment seeks to enhance rather than to diminish the authority and experience of the Judicial Committee. It is difficult to think of any good reason against it other than a kind of blinkered English, Scottish or Northern Irish insularity of which I am sure the Government will plead not guilty. I beg to move.
Lord Kingsland: My Lords, I rise to endorse entirely what the noble Lord, Lord Lester, said. The fact that we are in danger of being deprived of the remarkable intellect and enormous experience of the noble and learned Lord, Lord Cooke of Thorndon, on these devolution issues is the best possible reason for supporting this amendment.
Lord Cooke of Thorndon: My Lords, I can hardly fail to rise to that bait. It is obvious from the remarks that preceded me that I have to declare some sort of interest, small and highly contingent though it is.
I hope to be forgiven for claiming your Lordships' attention for a few moments, if only on the score of time. I have been a member of the Judicial Committee of the Privy Council since 1977. If the Gods are kind, I have yet a few more years of judicial service before time takes off the bails at the age of 75. Astonishingly enough, it would seem that there is no other presently serving member of the Judicial Committee who happens to have enjoyed the privilege for so long.
It seems to me that two points are worth bearing in mind in relation to Amendment No. 44. It is partly repetition of what the noble Lord, Lord Lester, said but, first, if the Judicial Committee is to be the final tribunal for Scottish constitutional issues, why change its ordinary membership by excluding the handful of Commonwealth judges? For long the Judicial Committee has decided constitutional issues, even the most arcane of them from former colonial territories now independent. Some of the judges by now have more extensive experience of human rights issues than the United Kingdom judiciary have yet had the opportunity of gaining. Why reject all possibility of some little help from that quarter or indeed of augmenting the currently circumscribed membership of the Judicial Committee?
Secondly, there is a development in the direction of international judicial co-operation. I have previously ventured to mention to your Lordships the composition of the Bloody Sunday inquiry in Northern Ireland. There, an English Law Lord is chairman. Two retired Commonwealth judges are the other members. One is my former colleague from New Zealand, Sir Edward Somers, and the other is Mr. Justice Hoyt of Canada. Both Sir Edward Somers and the chairman, the noble and learned Lord, Lord Saville, are members of the Judicial Committee of the Privy Council.
As the noble Lord, Lord Lester of Herne Hill, has already done, I add a further example, of Hong Kong. Under the Sino-British agreement, the way of life in Hong Kong—the capitalist system and the rule of law there—is to remain unchanged for 50 years. The Hong Kong court of Final Appeal at present consists of four permanent local judges, residents of Hong Kong, plus
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one member drawn from a panel of members of other common law jurisdictions. There is, in fact, a panel of six, of whom two are from the United Kingdom, two from New Zealand and two from Australia. Of those six, four are members of the Judicial Committee of the Privy Council. It is early days yet, but so far the court is working well. It has jurisdiction over human rights and constitutional issues.
In population, Hong Kong is rather larger than Scotland but one may hazard a guess that no Scot will feel any inferiority on that account. Might not something broadly similar be advantageous and far-sighted in the present constitutional system or, may I respectfully ask the noble and learned Lord the Lord Advocate, is a more insular view to prevail and, if so, why?
Lord Hope of Craighead: My Lords, I should like to support the amendment and to make two particular points perhaps to assist your Lordships to understand the arguments which are being put forward. The first is that to express the proposition as widening the pool has to be understood in the context of how wide that widening will be. As I understand it, there are two requirements for qualification to be a member of the Judicial Committee in this context. One is that the jurisdiction from which the Commonwealth judge comes is a jurisdiction which sends its appeals to the Privy Council. The second is that the jurisdiction in question recognises Her Majesty the Queen as head of state.
The practical consequence of that under our arrangements today is that Australia, for example, is excluded because Australian appeals no longer come to the Judicial Committee of the Privy Council. Trinidad and Tobago, for example, which has a very distinguished Chief Justice, is also excluded because it is a republic. Hong Kong, of course, is now excluded because it is no longer part of the Commonwealth. Canada, although it too has distinguished judges, is excluded because it too does not send appeals to the judicial committee.
Therefore, in practice, the number of jurisdictions from which these appointments are likely to be made are very few and probably restricted at any given time to one or possibly two people from the Caribbean in those countries which recognise Her Majesty as head of state, and New Zealand. It is particularly the contribution from New Zealand which I should like to stress. For the reasons explained by my noble and learned friend Lord Cooke of Thorndon, New Zealand judges are given the opportunity to contribute on a worldwide basis. In their own jurisdiction, they have experience of the sort of problems with which we shall have to deal.
In the short time that I have spent as a member of the Judicial Committee, I have had the privilege of serving with New Zealand judges and I can speak at first hand of the very significant contribution they make to our discussions.
The other point is a point of principle. In our very useful debate on an earlier amendment tabled by the noble Lord, Lord Lester of Herne Hill. with regard to

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the constitutional court, I think the point was made that one of the matters the Government were anxious to avoid was anything that might suggest that the choice of membership of the Judicial Committee was made with regard to national origins. Certainly, it is true that as the Judicial Committee sits at the moment, national origins do not matter because it is a body which is complete in itself. In a way, by excluding the Commonwealth judges who at present serve on the Judicial Committee, the Government are going against that principle because that excludes people who, by national origins, have no direct concern with the people of the United Kingdom. It would be more consistent with the approach of keeping the Judicial Committee as it exists already to recognise the contribution which those judges make and to accept the point which has been made; namely, that they should continue to offer their assistance in these new and important issues.
Lord Clyde: My Lords, no one who has the privilege of serving with the noble and learned Lord, Lord Cooke of Thorndon, in the Privy Council would fail to appreciate the very real contribution that he and, indeed, the few others like him have made, and can make, to the workings of that body.
I strongly support the proposed amendment. However, I am conscious that almost everything that can be said in favour of it has already been said. I would add only one further consideration: one cannot foresee with confidence how much work will be imposed on the Privy Council under this legislation. But I suspect—and I think that I am not alone in suspecting—that at least early on there may be a considerable quantity. Why, then, should there be any hesitation in enlarging to such a small extent as may be possible the potential membership of that body and certainly adding immeasurably to its skill and expertise?
Lord Mackay of Drumadoon: My Lords, I support the amendment moved by the noble Lord, Lord Lester of Herne Hill. We may well be talking about a small number of individuals. However, it is obvious from what has been said by the noble and learned Lords, Lord Hope of Craighead and Lord Clyde, that we are talking about the potential of adding a great deal of informed and experienced expertise to the work of the Judicial Committee in the first few years of its work on devolution issues.
If particular individuals are qualified to serve on the Judicial Committee in London dealing with other business, it seems difficult to articulate a good reason why they should not do so in London or, indeed, in any other part of the United Kingdom, when the Judicial Committee is addressing devolution issues.
From time to time in the debates on this Bill I have posed the question: What harm would there be in allowing or agreeing the amendment? That question seems to arise very succinctly in relation to this amendment. Far from there being any harm, there is potential to add a great deal of valuable experience. I warmly support the amendment.
9 p.m.
Lord Hardie: My Lords, I regret that the Government cannot accept the amendment. Noble and learned Lords and noble Lords have explained their reasons for supporting it, but perhaps I may begin by saying that both I and the Government also recognise the significant contribution of the noble and learned Lord, Lord Cooke, to the deliberations of the Judicial Committee over the years.
This Bill, like the Government of Wales Act, which is already on the statute book, and the Northern Ireland Bill, also before this House, currently provides that those who hold or have held the office of Lord of Appeal in Ordinary or high judicial office in the United Kingdom can sit on the Judicial Committee for cases involving devolution issues. "High judicial office" includes a judge of the Court of Session in Scotland and a judge of the High Court or Court of Appeal in England, Wales and Northern Ireland. The amendment would extend this so that judges, albeit a very small number, from Commonwealth countries could be selected.
To amend this Bill as suggested would provide a different potential membership for devolution cases under the Scotland Bill, as opposed to cases emerging under the Welsh and Northern Irish legislation. This in turn would, for no intrinsically good reason, lead to inconsistency as to who could consider cases relating to the various parts of the UK. I do not believe that that would be a sensible step. We should surely be seeking to maximise the degree to which experience gained in handling devolution cases under this Act can be drawn upon in cases concerning another.
Moreover, noble Lords will recall the interesting, detailed and indeed lengthy debate of last week about the constitutional court which was provoked by an amendment tabled by the noble Lord, Lord Lester of Herne Hill. In that debate, my noble and learned friend the Lord Chancellor said that the Liberal Democrat amendments were a marker for the longer term. I have to say that I find today's amendments rather at odds with ambitions for a constitutional court. These amendments surely would make the transition to a constitutional court more difficult by building into the consideration of certain devolution issues in the short term Commonwealth judges who might well, if the hopes of noble Lords opposite are fulfilled, have no longer-term involvement with this type of litigation. I was sorry that the noble Lord opposite did not acknowledge the implications of this wider context in introducing these amendments.
Therefore, the Government think that the current provision in the Bill is the appropriate one. It will allow the senior Lord of Appeal to select from a pool of judges with relevant experience and, conversely, for the experience of those judges over time to be pooled for their mutual benefit. This amendment, coming as it does after the passage of the Government of Wales Act, would instead tend to make sharing and developing that expertise less easy.
In making this provision for devolution cases, the Government do not for one moment mean to suggest that the experience of eminent Commonwealth judges

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does not play a valuable role in the Judicial Committee of the Privy Council. However, for devolution cases, we think that those who have held office in the United Kingdom will bring the relevant experience of the various judicial systems within the United Kingdom against which it will be necessary to consider devolution cases. Therefore, I urge the noble Lord to withdraw his amendment.
Lord Lester of Herne Hill: My Lords, I am extremely grateful to all noble Lords from all sides of the House who have spoken; and, indeed, I am especially grateful to all noble and learned Lords for their support. The arguments in favour which have been put forward by other speakers have not been replied to by the noble and learned Lord the Lord Advocate. He introduced two arguments. The first is that—and I put it in the vernacular—the pass has already been sold in relation to the Government of Wales Act and, therefore, rigid adherence to the Welsh template demands an identical pool of membership of the Judicial Committee in dealing with Scottish and Northern Irish cases.
Quite apart from the fact that it would, I suppose, be open to the Government to introduce a one-clause Bill amending the Government of Wales Act in that respect if they wished to do so in the next Session, that does not seem to me to a very compelling argument, for the following reason. The membership of the Judicial Committee of the Privy Council is not to be fixed; indeed, it is to be drawn from a very large pool. Therefore, it is not as though there will be a fixed membership of the same judges as there would be in a final constitutional court dealing with Welsh, Scottish and, indeed, Northern Irish cases. If the senior Law Lord chooses, he will make that choice from differing judges, some of whom may, for example, be retired members of the English Court of Appeal or the Scottish Court of Session. The membership will vary. There will also be difference when the House of Lords comes to decide cases which may to some extent overlap with devolution cases. Therefore, with respect, the argument based on the Welsh legislation does not seem to be at all compelling. Indeed, it does not deal with any of the points raised.
Secondly, the noble and learned Lord said that, were we to pass the amendment, it would somehow impede the desirable objective of producing a final constitutional court of the kind that exists in other jurisdictions. It is probably a failure on my part, but I simply do not understand that argument. The fact that in the interim we would be drawing upon wide and senior judicial expertise to reinforce the strength of the Judicial Committee surely would not impede some long-term broader reform when a different view might be taken.
The spirit of the late Lord Chancellor, Lord Gardiner, must be unhappy listening to this debate. I say that because it was he more than anyone who dreamt of a Commonwealth court that would transcend national frontiers and be able to deal with such cases. Of course, he was far too late in the 1960s for that great idea to come to fruition.
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I am very sorry that the Government have not been able to accept my amendment. If this debate were taking place earlier in the day and not at 9 o'clock in the evening in a situation where the Government have a giant strength, I would have tested the opinion of the House on the matter. There is no point in doing so. I just believe that, with the benefit of hindsight, the Government will come to regret the fact that they have made an error of judgment and deprived us of the great benefit of the noble and learned Lord, Lord Cooke, and others like him. Nevertheless, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 105 [Power to make provision consequential on this Act]:
[Amendment No. 45 not moved].
Clause 107 [Legislative power to remedy ultra vires acts]:
Lord Kingsland Lord Kingsland moved Amendment No. 46:
Leave out Clause 107.
The noble Lord said: My Lords, the purpose of this amendment is to raise two questions in relation to Clause 107 (b), which is that part of the clause which deals with the circumstances in which subordinate legislation is made when a member of the Scottish Executive exercises a function improperly.
I apologise to the noble and learned Lord the Lord Advocate for raising this issue in a manner which is often described as a probing amendment. At the Committee stage he addressed the House at length on Clause 107(a); and at the Report Stage my noble and learned friend Lord Mackay of Drumadoon, in a moment of uncharacteristic inadvertence, withdrew this amendment when the noble and learned Lord the Lord Advocate would have had the opportunity to answer the questions that I now ask.
The first issue concerns the definition of ultra vires. Is ultra vires in Clause 107(b) ultra vires in the sense of a member of the Scottish executive exercising a function which encroaches upon reserved powers; or does ultra vires have a meaning in the wider and more general sense of ultra vires in administrative law?
The second issue concerns the circumstances in which it is discovered that a member of the executive has exercised this function ultra vires. Quite often the discovery will be made in connection with judicial proceedings. I can quite see why subordinate legislation might be made subsequent to judicial proceedings to correct a matter which has encroached upon the reserved powers. But in my submission it would be quite improper for such legislation to be made during judicial proceedings. Indeed, were that done, it would breach the fundamental principle of the separation of powers which has been a hallmark of our constitution for the past 300 years. I beg to move.
Lord Mackay of Drumadoon: My Lords, perhaps I should begin by apologising to my noble friend for my inadvertence to which he understandably drew attention. Noble Lords who have followed our debates with interest will know that on a number of occasions we

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have touched on the terms of both Clause 105 and 107 and other clauses which give either to the United Kingdom Government or to the new Scottish executive the power to make subordinate legislation of a quite wide-ranging nature. Therefore I am sure the whole House—and, more importantly, perhaps the lawyers who will need to interpret this Bill when it becomes an Act of Parliament—would very much welcome an answer to the two succinct points that my noble friend raises.
Lord Sewel: My Lords, with Amendment No. 46 noble Lords opposite seek to delete Clause 107. I think the noble Lord, Lord Kingsland, recognised that as a probing amendment device. He will not be surprised to hear that we consider Clause 107 to be an important part of the Bill and that we cannot accept its deletion.
Clause 107 gives a power to the UK Government to make any provision that may be necessary or expedient in consequence of an ultra vires Act, or a suspected ultra vires Act, either of the parliament or of the executive. It enables problems which may result from an ultra vires provision of an Act of the Scottish parliament or actions of the Scottish executive to be addressed. Subordinate legislation will be able to make such provision as is necessary or expedient to remedy the problem. The subordinate legislation which does this may be retrospective in effect and may amend any enactment including an Act of the Scottish parliament or secondary legislation.
I hope noble Lords will agree that this is a sensible provision. There may be occasion where it is necessary for the remedial action to be taken quickly to address the consequences of ultra vires legislation or action. In most cases, of course, we would expect the Act to be referred back to the Scottish parliament. However, this may not always be possible. There will be circumstances where it would be outwith the competence of the Scottish parliament to pass any necessary remedial provision. Clause 107 gives the UK Government the power to make provision. Ultra vires in this context relates to the functions of a member of the Scottish executive which are those conferred upon him or her by the Bill, but the provision is not limited to that and would extend to other ultra vires matters although it is aimed at the specific competence of Scottish ministers.
It is not intended that the power contained in this clause should be used as a form of legislative override, and for this reason it is intended that this power should only be used with the consent of Scottish ministers, where that has not been a court decision. If there was no such consent then the appropriate method for resolving any dispute about vires would be to raise the matter in the courts as a devolution issue. I hope that gives some help to the noble Lord, Lord Kingsland, in relation to the questions that he asked.
9.15 p.m.
Lord Mackay of Drumadoon: My Lords, before the Minister sits down, could he please clarify one point that he made in relation to the power not being used except with the consent of the Scottish ministers? As I
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understand Schedule 7, the procedure to be followed for exercising the power under Clause 107 would be Type G, which would require that,
"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".
That procedure, as I understand it, would not require the consent either of the Scottish executive or of the Scottish parliament. I rather suspect that the two questions my noble friend has identified are really rather good ones. It may be a little late in the day to consider revising the terms of Clause 107, but I suspect there is force in the points he made. That suggests to me that the prudent course for the Government to follow would be to accept this amendment, reflect on the arguments which have been advanced by my noble friend and bring forward in another place a substitute for Clause 107 which would take account of the valid concerns he has raised not only as to the breadth of the clause which would cover any form of ultra vires but also the timing of such an order were it to impinge on the separation of powers.
The Earl of Balfour: My Lords, before the Minister replies, I wonder whether, with the leave of the House, I could refer to Amendment No. 64 in the name of the noble Lord, Lord Sewel. In that addition to the last part of Schedule 4 perhaps Clause 105 should be added to Clause 107. I thought, from what has been said, that provisions in this additional paragraph to Schedule 4 cover quite a lot of what has been said.
Lord Thomas of Gresford: My Lords, before the noble Lord the Minister replies, I wonder if I could—
Lord McIntosh of Haringey: My Lords, this is an Opposition amendment and the Opposition spokesman has already wound up, as far as I can tell. We have now had three interventions and I do not think we can have any more.
Lord Sewel: My Lords, perhaps I may clarify the point. The noble and learned Lord, Lord Mackay of Drumadoon, is quite right. This is a Type G procedure, which means that it falls to Westminster alone. However, the expectation is that the convention would develop in the way that I outlined in my original contribution.
Lord Kingsland: My Lords, I am not sure whether the prohibition of the noble Lord, Lord McIntosh, extends to me, as the mover of the amendment. The noble and learned Lord, Lord Mackay of Drumadoon, has, as on so many occasions in the past, saved me from the intellectual effort of rounding off my amendment, save for this: I hope the noble Lord the Minister will consider very carefully the scope of ultra vires in Clause 107. I listened very carefully to his reply and I think he went part of the way towards me but not quite as far as I would have hoped. It would be constitutionally a very questionable exercise if, for example, subordinate legislation could issue to, in effect, change the decision

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of a court that a Minister had breached the rules of natural justice. In my submission, Clause 107(b) is not clear about whether that would be the case or not.
The Deputy Speaker (Lord Elton): My Lords, does the noble Lord wish to move or to withdraw his amendment?
Lord Kingsland: My Lords, in the circumstances I think it would be wrong of me to press this matter to a Division and so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 111 [Regulation of Tweed and Esk Fisheries]:
Lord Sewel Lord Sewel moved Amendment No. 47:
Page 52, leave out line 20.
The noble Lord said: My Lords, I beg to move Amendment No. 47 formally.
On Question, amendment agreed to.
Clause 126 [Interpretation]:
Lord Sewel Lord Sewel moved Amendment No. 48:
Page 59, line 12, at end insert ("and includes an enactment comprised in, or in subordinate legislation under, an Act of Parliament, whenever passed or made").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 49:
Page 60, line 3, at end insert—
(""standing orders" means standing orders of the Parliament,").
The noble Baroness said: My Lords, I do not want the noble and learned Lord, Lord Mackay of Drumadoon, to become as sensitised to my use of the word "drafting" as he did at an earlier stage to my use of the word "technical", but Amendments Nos. 49 and 51 are indeed drafting amendments. They add to the Bill a definition of "standing orders" for the purposes of the Bill. Amendment No. 49 makes it clear that references in the Bill to standing orders are always to those of the parliament itself. A further amendment, Amendment No. 51 to Clause 127, adds that definition to the index of defined expressions. I beg to move.
Lord Simon of Glaisdale: My Lords, what else could "standing orders" mean—standing orders of the House of Commons, of the House of Lords, of a county council? One has only to read the Bill to see that "standing orders" can only mean standing orders of the parliament. This is yet another example of overloading a Bill with a whole lot of unnecessary verbiage.
Baroness Ramsay of Cartvale: My Lords, as a layman, I am inclined to agree. However, parliamentary draftsmen think otherwise. They wish it to be absolutely clear that it means standing orders of the Scottish parliament. I commend the amendment to the House.
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendment No. 50:
Page 60, line 37, leave out ("administrative law") and insert ("judicial review of administrative action").
The noble and learned Lord said: My Lords, this is a drafting amendment which is intended to clarify what is meant by the reference to "administrative law" in the definition of Scots private law in Clause 126(4) as meaning the "judicial review of administrative action". I beg to move.
On Question, amendment agreed to.
Clause 127 [Index of defined expressions]:
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 51:
Page 62, line 53, at end insert—

Standing orders

Section 126(1)

On Question, amendment agreed to.
Clause 130 [Commencement]:
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 52:
Page 63, line 21, after ("23") insert ("(1) and (6)").
The noble Baroness said: My Lords, as my noble friend Lord Sewel indicated at the end of the Report stage, this technical amendment is to correct a small error in Clause 130 to ensure that only the provisions in paragraph 23 of Schedule 8, amendments to the Insolvency Act 1986 which deal with disqualification of members of the Scottish parliament, come into force immediately on Royal Assent, and not other provisions of that paragraph dealing with the functions of the Registrar of Companies in Scotland, the Assistant Registrar of friendly Societies for Scotland and the Accountant in Bankruptcy. I beg to move.
On Question, amendment agreed to.
Schedule 1 [Constituencies, regions and regional members]:
Viscount Thurso Viscount Thurso moved Amendment No. 53:
Page 64, line 33, leave out ("85") and insert ("86").
The noble Viscount said: My Lords, sitting on these Benches, these are words that I do not usually hear myself say, but these are "drafting amendments of a minor and technical nature". I hope that in making that statement I have not cast a fly over the noble and learned Lord, Lord Mackay of Drumadoon. These amendments are consequential on the amendments that were accepted on Report. If one looks at Clause 85, one sees that it refers to exemption from jury service, which clearly has nothing to do with membership of the Scottish parliament, whereas Clause 86 has to do with representation at Westminster.
Amendment No. 54 relates to what was merely a slip of the pen. The sub-paragraph should have read, "2005", instead of "2003". I understand that the Government have indicated that they are willing to accept these amendments. I beg to move.
Lord Hardie: My Lords, the Government have no objection to these amendments. We see them as part of the package of amendments that noble Lords made to Schedule 1. However, I should make it clear that, while

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we accept the amendments as part of that package, we are still considering the implications of the amendments generally.
On Question, amendment agreed to.
Viscount Thurso Viscount Thurso moved Amendment No. 54:
Page 65, line 2, leave out ("2003") and insert ("2005").
On Question, amendment agreed to.
Schedule 3 [Standing orders—further provision]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish had given notice of his intention to move Amendment No. 55:
Page 68, line 41, at end insert—
("Scrutiny of subordinate legislation
. The standing orders shall include provision for the types of procedure to be followed by the Parliament for the confirmation, approval or annulment of subordinate legislation made by a member of the Scottish Executive.").
The noble Lord said: My Lords, since putting this amendment down, I have received a useful letter from the Minister which is lodged in the Library. I shall therefore not move it.
[Amendment No. 55 not moved.]
Lord Sewel Lord Sewel moved Amendment No. 56:
Page 69, line 22, after ("or") insert ("political").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
Lord Simon of Glaisdale: My Lords, I have one question concerning "political parties". Is it envisaged that there will be no Cross-Benchers or independents?
Lord Sewel: My Lords, it is possible that there will be independents and Cross-Benchers and I do not believe that they are struck out by the wording. I indicated that the amendment was to clarify what "parties" meant. The distinction I sought to draw earlier today was to exclude wild and fancy dress.
On Question, amendment agreed to.
Schedule 4 [Enactments etc. protected from modification]:
Lord Sewel Lord Sewel moved Amendment No. 57:
Page 70, leave out lines 33 and 34.
On Question, amendment agreed to.
[Amendment No. 58 not moved.]
Lord Sewel Lord Sewel moved Amendment No. 59:
Page 70, line 47, after ("17(5),") insert ("19(7),").
The noble Lord said: My Lords, Amendments Nos. 59 and 62 are the Government's amendments to ensure that Schedule 4 does not prevent the Scottish parliament from modifying Clauses 19(7) and 69(3). These clauses provide that the validity of any act of the presiding officer or a deputy is not affected by any defect in his election and that the validity of any act of the Auditor General for Scotland is not affected by any defect in his nomination by the parliament. The parliament was given power to modify other similar provisions inserted at Report through the amendments
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to Schedule 4, but for technical reasons it was not possible to confer similar powers over Clauses 19(7) and 69(3) at that stage. We have now taken the opportunity to do so. I beg to move.
Lord Simon of Glaisdale: My Lords, this is a whole group of amendments including one which has not been moved. They are almost a shining example of the over-elaboration, to which I ventured to refer earlier, so as to be almost incomprehensible.
As I understand it, paragraph 1(1) of Schedule 4 forbids the Scottish parliament from modifying the Act. Subparagraph (2) modifies subparagraph (1) by allowing it to modify certain provisions. I cannot make head or tail of why the provisions are included or are to be added or taken out. This provision deals, I believe, with the defect in the election of the presiding officer or his deputy. Is that provision necessary at all?
There is a doctrine of the English common law whereby an officer, even if he is defective in his appointment, nevertheless can act validly as an officer de facto even though not de jure. That is not frequently relied on. It was drawn attention to in an article by one of the greatest common lawyers of the Commonwealth, the late Sir Owen Dixon, the Chief Justice of Australia. I do not know whether that is part of the Scottish common law. Perhaps the noble and learned Lord the Lord Advocate can tell us or perhaps write to me later if he does not have the information at his fingertips as I did not give him notice of my question.
There is also the question of how it is intended that this provision should be modified. As I said, paragraph (1) seems to say that the provision may not be modified. Paragraph (2) derogates from that and sets out the power to modify. Now we have an amendment which derogates from paragraph (2). If one wanted a really complicated provision that would be designed to mislead and mystify every reader of the statute book, that could hardly be better exemplified than by this amendment. Is the intention that the Scottish parliament may modify Clause 19(7), as it will be; and if so, how and why?
The same question arises on the other government amendment, Amendment No. 62. That provision relates to the Auditor General and says that he may act validly notwithstanding any defect in his appointment. Is that necessary? Would he not be an officer acting validly de facto? I may say that the leading case on this branch of the law is the decision by the New Zealand Court of Appeal, which went so far as to say that the judicial act of a judge invalidly appointed, including his jurisdiction in criminal cases, was nevertheless valid because he was an officer de facto even if not de jure.
I come to my second question. As it is intended, I presume, that the Scottish parliament may not modify Clause 69(3), why is that provision now added? I have not dealt with the amendments tabled by the Opposition but the purpose of many of them appears to be equally difficult to understand. Perhaps I should leave that matter until they are formally moved. In the meantime, I should be most grateful to have an answer to my questions on the two government amendments.
Lord Sewel: My Lords, I am enormously grateful to the noble and learned Lord for asking those specific questions. The parliament will modify the provisions by an Act of the Scottish parliament. He is correct to assume that the amendment has the effect of giving the parliament the power to modify Clauses 97 and 69(3) which deal with the acts of the presiding officer or the deputy. This adds for the sake of completeness, and completeness only, to a range of modifying powers.
Lord Simon of Glaisdale: My Lords, my question was why.
Lord Sewel: My Lords, as to why, these are the last elements of a package of powers provided to the parliament to modify certain provisions in the Bill. For example, one relates to protections which received full support in your Lordships' House. The idea that the parliament should develop its own protections was welcomed by noble Lords opposite. It is because the provisions in Clauses 97 and 69(3) fall into that group of powers that theoretically it is sensible to allow the parliament to modify them. But for the life of me I cannot think of any circumstance in which the parliament would wish to modify those powers.
Lord Mackay of Drumadoon: My Lords, in the spirit of co-operation I suggest that one possible example is the need to consolidate legislation.
Lord Sewel: My Lords, I am enormously grateful to the noble and learned Lord. Perhaps that will do it.
Lord Simon of Glaisdale: My Lords, I can ask a question only before the noble Lord sits down, or at least settles down. Does he really think it is desirable that the House should be discussing questions of this intricacy to which the noble Lord confesses he does not know the answers at 20 minutes to 10 at night on the Third Reading of a lengthy and complicated Bill?
Lord Mackie of Benshie: My Lords, in spite of the distinction of the noble and learned Lord, is his question not out of order on Third Reading?
Lord Sewel: My Lords, I do not wish to make a comment of any kind on that matter. I believe that we must address the issues as they come before us at whatever time of the day and at whatever stage of the Bill they are brought up, and I am happy to do that to the best of my ability.
On Question, amendment agreed to.
[Amendments Nos. 60 and 61 not moved.]
Lord Sewel Lord Sewel moved Amendment No. 62:
Page 70, line 48, after ("50,") insert ("69(3),").
On Question, amendment agreed to.
[Amendment No. 63 not moved.]
Lord Hardie Lord Hardie moved Amendment No. 64:
Page 73, line 19, at end insert—
(". If any pre-commencement enactment or prerogative instrument is modified by subordinate legislation under section 105, a function under that enactment or instrument (whether as it has effect before or after the modification) is not transferred by virtue of section 53 if the subordinate legislation provides that it is not to be so transferred.").
The noble and learned Lord said: My Lords, Clause 105 provides a power to make provision consequential on the Scotland Act by subordinate legislation. This amendment ensures that where subordinate legislation modifies a pre-commencement enactment or prerogative instrument it may provide that a function under that enactment or instrument is not transferred by virtue of Clause 53.
This power may be necessary where a provision in the order is consequential upon some provision in the Bill other than Clause 53 which devolves functions to the Scottish Ministers. The general intention is that amendments made by Schedule 8 and under Clause 105 will show what the position is immediately after devolution. This amendment ensures that the necessary powers are in place. I beg to move.
On Question, amendment agreed to.
Schedule 5 [Reserved Matters]:
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 65:
Page 75, line 9, leave out from ("in") to ("when") in line 10 and insert ("it").
The noble Baroness said: My Lords, we have looked again at the layout of Part II of Schedule 5 and have concluded that improvements can be made to its layout to make it easier to read and to use. We therefore propose to make a number of printing changes to Part II of Schedule 5. The noble Lord, Lord Sewel, has placed in the Library copies of a letter sent to the noble Lord, Lord Mackay of Ardbrecknish, which includes a version of Schedule 5, including these changes. These will make the headings more eyecatching and introduce a numbering system which will give each section its own unique identifying number. They will also shorten Schedule 5 by a few pages, which I am sure the whole House will welcome.
Amendments Nos. 65 to 69 are linked with those changes and are purely drafting changes. I can give specific examples of those changes if noble Lords wish. I beg to move.
On Question, amendment agreed to.
Baroness of Ramsay of Cartvale Baroness of Ramsay of Cartvale moved Amendment Nos. 66 to 69:
Page 75, line 10, leave out ("other entries") and insert ("illustrations, exceptions or interpretation provisions").
Page 75, line 11, leave out ("The other entries") and insert ("Any illustrations, exceptions or interpretation provisions").
Page 75, line 11, leave out (", unless otherwise indicated").
Page 75, line 12, leave out (""exceptions from reservation" does not generally") and insert (""exceptions" does not").
On Question, amendments agreed to.
Lord Sewel Lord Sewel moved Amendment No. 70:
Page 76, line 18, leave out ("1984") and insert ("1998").
The noble Lord said: My Lords, I think that this is the last occasion on which I shall appear before your Lordships saying that these are primarily technical amendments to the Bill. The Bill currently reserves the subject matter of the Data Protection Act 1984 and the subject matter of the 1995 EC Data Protection Directive. However, the 1984 Act is prospectively consolidated and repealed by the Data Protection Act 1998 which received Royal Assent on 16th July of this year. It is therefore appropriate to replace the reference to the 1984 Act with the 1998 Act and that is what Amendment No. 70 does.
However, much of the 1998 Act is not expected to come into force until the middle of next year. Amendment No. 71 therefore ensures that the amended reservation of the subject matter of the 1998 Act will be fully effective even if some of the provisions of the 1998 Act are not in force when Schedule 5 is brought into force. I trust that that is clear. I beg to move.
On Question, amendment agreed to.
Lord Sewel Lord Sewel moved Amendment No. 71:
Page 76, line 20, at end insert—
("Interpretation
If any provision of the Data Protection Act 1998 is not in force on the principal appointed day, it is to be treated for the purposes of this reservation as if it were.").
The noble Lord said: My Lords, the amendment has been spoken to previously. I beg to move.
On Question, amendment agreed to.
Lord Selkirk of Douglas Lord Selkirk of Douglas moved Amendment No. 72:
Page 79, line 13, at end insert—
("Regulation of particular practices in the estate agents' profession for the purpose of regulating that profession in the provision of estate agency services.").
The noble Lord said: My Lords, in moving the amendment, I speak also to Amendments Nos. 74 and 75.
Housing is a delegated subject to the Scottish parliament. One of the most important aspects of housing is the buying and selling of houses. In this process the work of estate agents is an essential element. Therefore, it makes sense to devolve estate agency along with housing. Furthermore, if solicitors are to be regulated by the Scottish parliament, then estate agents providing similar services should be subject to the same regulations issued by the Scottish parliament. It is in the consumers' interests that the regulatory regimes of similar services are, or should be, within the competence of the Scottish parliament. This would ensure a level playing field in competition law regulation in respect of identical or similar activities. If Scots civil and criminal law and Scots housing law are to be devolved, it surely makes sense to devolve regulation of estate agency as well, whether practised by solicitors or estate agents.
Amendment No. 75 is consequential on Amendment No. 72. The legal systems north and south of the Border are different. One of the perceived benefits of the Scottish system is that there is no gazumping in house selling and buying. It is therefore appropriate that Scots
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estate agents working in this field should be subject to Scots law and practice and be regulated by Acts of the Scottish parliament.
Amendment No. 74 raises the issue of future developments with regard to the definition of the legal profession. Historically, notaries public and solicitors have been separate offices, although in many cases solicitors are also notaries public. Again, clarification is necessary. The amendment anticipates three developments: opportunities for foreign lawyers to establish themselves in Scotland to provide legal services; the creation of multi-disciplinary practices (partnerships between lawyers and non-lawyers); and the creation of multi-national practices (partnerships between Scots lawyers and foreign lawyers). It is therefore appropriate to anticipate possible change rather than create a potential need for the Scotland Bill to be amended in future. I earnestly hope that the Minister will accede to the amendments so that the Bill need not be amended in due course. I beg to move.
9.45 p.m.
The Earl of Mar and Kellie: My Lords, these amendments have much to commend them. The anomaly being created within the estate agents in Scotland is difficult to understand. Having tabled similar amendments in Committee, I wonder whether the noble and learned Lord the Lord Advocate can still be content with the Bill's proposal to split parliamentary control of solicitor estate agents and non-solicitor estate agents.
Amendment No. 74 is forward looking. It refers to the likely possibilities of new legal businesses setting up in Scotland in its new constitutional form.
Lord Mackay of Drumadoon: My Lords, I support the amendments and will not be moving Amendment No. 73 which is in terms similar to Amendment No. 74. Amendments Nos. 72 and 75 were discussed previously. It may well be that as much as can be said about them has been said. However, I recollect that Amendment No. 74 arose out of the comment made in Committee and it would be helpful if the noble and learned Lord the Lord Advocate could give the Government's response to it.
Lord Hardie: My Lords, as regards Amendments Nos. 72 and 75, the White Paper specifically referred to the Government's intention to reserve the regulation of estate agents and their work. It is presently regulated on a UK-wide basis under the 1979 Act and the Director General of Fair Trading has the duty of enforcing the provisions of that Act. It is in the interests of consumers that the provisions of the Act apply in the same way on both sides of the Border. I believe that the noble Lord is under some misapprehension. Where a solicitor is acting as an estate agent he or she will still be regulated by United Kingdom legislation and subject to the Director General of Fair Trading. Therefore, there will be uniform regulation across the United Kingdom.
Turning to Amendment No. 74, the position is different in England and Wales as regards notaries public. In Scotland all notaries public are solicitors so there is no need for a separate reference. As regards the EC establishment directive, member states are required

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to give effect to it by 14th March 2000. When it is in place, the directive will give European lawyers the right to practise in Scotland and to integrate into the legal profession here. They will be subject to the same rules of professional conduct and disciplinary proceedings as Scottish solicitors and advocates. Any provision made by the Scottish parliament by virtue of this exception should therefore apply to such foreign lawyers when practising as a solicitor or advocate in Scotland.
As regards multi-disciplinary partnership practices, although the primary legislation prohibiting MDPs was removed by the 1990 Act, the Solicitors (Scotland) Practice Rules 1991 and the Solicitors (Scotland) (Multi-Disciplinary Practices) Practice Rules 1991 prohibit such arrangements. It may well be that if such arrangements are eventually permitted, it will be on the basis of anyone participating in such a practice will be subject to the relevant rules of the legal profession. However, if such arrangements are allowed and should it be thought in that event that the current definition is too narrow, that is a matter which could be addressed by a Clause 30 order.
As regards multinational practices within the definition of the legal profession for the purposes of this exception, as noble Lords will be aware, although it has never been commenced, Section 32 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 provides for the establishment of multinational practices between Scottish solicitors and registered foreign lawyers. Again, as I have already said in the context of multi-disciplinary practices, it may well be that if such arrangements are eventually permitted, it will be on the basis that anyone who participates will be subject to the relevant rules of the legal profession. If the current definition in this exception is too narrow, again a Clause 30 order could be made to rectify that. For the reasons given I invite the noble Lord to withdraw the amendment.
Lord Selkirk of Douglas: My Lords, in the light of what the noble and learned Lord the Lord Advocate has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 73 to 75 not moved.]
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 76:
Page 82, line 9, at end insert—

SECTION 16—FORESTRY
Reservation
The Forestry Commission.").
The noble Lord said: My Lords, largely due to an oversight on my part the issue of forestry was not debated in Committee. The amendment moved in my name at Report stage was withdrawn for other reasons. At this time of night I do not want to pursue the matter other than to say that it is an important one. Many of us interested in forestry are puzzled as to how the Forestry Commission will operate. I do not believe that there are any other forestry experts in your Lordships' House at this time of night. I shall be content with an assurance
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from the Minister that he will write to me to say how he sees the Forestry Commission operating in its new devolved form and yet still carrying on as one body, as a UK Forestry Commission structure. Perhaps he would put his reply in the Library so that noble Lords who are also interested in forestry will have a chance to see what the noble Lord has to say, as the current UK forestry Minister, about the way in which the Forestry Commission is to be split up and yet carry on as one body. I could make a long speech, but at this time of night what I have said may be a good start. I beg to move.
Lord Mackie of Benshie: My Lords, I am not a forestry expert despite having grown and cut down trees and done a number of other things like that. It is absolute nonsense to believe that forestry concerns could not be dealt with by a Scottish parliament. I know that there will be co-ordination difficulties, but they can be overcome. Certainly it should not be a reserved subject.
Lord Renton: My Lords, I am not a forestry expert, but I have a family interest to disclose as regards a property that I turned into a discretionary trust. It is very important that we have clarity in this matter. The Forestry Commission has acted on a United Kingdom basis and it has been financed by the United Kingdom.
It has been extremely active in south-west Scotland. In that part of the United Kingdom it has covered more acres than anywhere else. In some ways they seem a little remote at times, and at other times it is convenient to be able to get in touch with the local manager. However, we have to look at the subject from a national point of view. From that point of view, it is better that the matter should be reserved for the United Kingdom.
Baroness Carnegy of Lour: My Lords, I should like to agree with my noble friend Lord Renton. If the Minister is to write to my noble friend on the Front Bench and also put a copy in the Library, perhaps he could send copies to those of us who have joined in the debate tonight. How the Forestry Commission is to operate is a matter of great importance. It is a huge industry. It matters enormously to Scotland and to the rest of the United Kingdom. We are very concerned about the mechanics.
Lord Hardy of Wath: My Lords, perhaps I may ask my noble friend, while he is taking account of the argument advanced by the noble Lord, Lord Mackie, whether he will bear in mind that a few years ago I recall being reprimanded in the House of Commons when I asked questions about English forestry of the Scottish Secretary of State. I had to point out to Mr. Speaker that it was the only way in which an English Member of Parliament could pursue English forestry questions. I have every faith that the arrangement which emerges will be splendid, but I hope that in that arrangement there will be adequate opportunity, both in this House and in the other place, for English Members to ask questions about English forestry.
Lord Sanderson of Bowden: My Lords, having been a forestry Minister, I have some sympathy with the

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Government on this point. I believe that there is a way through so that the Scottish trees can be administered by the Scottish parliament. That does not mean to say that the difficulties of the Forestry Commission are overcome, but perhaps the noble Lord would be kind enough to let us know how it will work and then I shall be a lot wiser than I am at the moment.
Lord Sewel: My Lords, I shall be more than happy to write to all noble Lords who have spoken in the debate, outlining the way in which we see the Forestry Commission working. I shall not make a long speech this evening. Basically, the matter can be summed up fairly simply. Forestry is a devolved function. Legislative competence devolves to the Scottish parliament. The Forestry Commission is seen as continuing as a cross-Border GB body and not a UK body. That will mean that the Forestry Commission will deliver forestry policy set by the Scottish parliament and the Scottish executive. Effectively, the Forestry Commission will prepare and work to a Scottish corporate plan and Scottish Ministers will be able to give direction to the Forestry Commission for forestry in Scotland.
In essence, forestry in England, Scotland and Wales will have the opportunity to be developed and delivered in a way which will perhaps be more sensitive to the priorities in the three countries. I should imagine, for example, that in Scotland commercial forestry would be of greater salience than perhaps will be the case throughout most of England. We are going down this road in order to recognise the diversity involved in forestry policy and bring it closer to the priorities of the constituent countries.
Lord Selkirk of Douglas: My Lords, will the Minister cover in his letter whether the headquarters of the Forestry Commission will remain in Scotland?
Lord Sewel: My Lords, I do not know whether I can cover that in my letter. That is something that at any stage can be decided one way or the other. It is not something that is fixed for all time.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the Minister. It was my fault that I took my eye off this particular ball in Committee. Clearly, judging by the number of noble Lords who have intervened, we could have had an interesting debate. Given the position of the hands of the clock and the stage of the Bill, it would not be fruitful to debate the matter now. I hope when the noble Lord replies to me and sends copies to noble Lords who have spoken that he will also address the question of the users of forestry. It is not just the planting that has to be looked at on a Scotland and on a UK basis but also the users. I look forward to the letter from the Minister, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10 p.m.
[Amendment No. 77 not moved.]
Schedule 7 [Procedure for subordinate legislation]:
Lord Hardie Lord Hardie moved Amendment No. 78:
Page 99, line 22, at end insert—

("Section 71(4B)

Type K")

On Question, amendment agreed to.
Schedule 9 [Repeals]:
[Amendment No. 79 not moved.]
Lord Sewel: My Lords, I beg to move that this Bill do now pass. On the little rubric that I have it says, "If you make a speech", and that is underlined. On this occasion, I believe that that is an invitation not to make much of a speech, and I do not intend to do so.
This is a truly historic occasion. Apart from what may be a little local difficulty later, we have reached the end of the parliamentary process of establishing a Scottish parliament. That is a milestone. It is some five months ago since I introduced this Bill into your Lordships' House. For many of us, the road has been a lot longer than five months. In my case, it goes back something like 20 years and more. I know that some have joined the road at a later stage but there is nothing wrong with that.
We have made good progress with this Bill. I understand that we have spent nearly 104 hours deliberating on it. Indeed, the rough calculation is that more than 1 million words have been spoken in addressing the various points at issue during the course of our debates.
The Bill establishes in Scotland a parliament for Scotland which will have real powers over those matters of public policy which are of most direct importance and relevance to the people of Scotland. That is good and right. We have established also a fair electoral system. In many ways, it is a ground-breaking electoral system to make sure that the interests in Scotland are properly and adequately represented.
We are now on the point of bringing into law a parliament which will serve the people of Scotland in a way which will enable legislation in the devolved areas to be more responsive to the needs, priorities and values of Scotland. That in itself is an enormous advance.
I wish to say something about the way in which we have considered the Bill. When I introduced it on Second Reading, I said that the Government would listen; that they would take account of the arguments they heard from all Benches in the House and that, if they were convinced of their value and merit, they should seek to incorporate them into the Bill. We have been as good as our word. We have listened and, on a number of occasions, we have been able to come forward with modifications and amendments to the Bill which have strengthened and improved it. I wish to give credit to all those who have helped in that process.
A great value of the Bill has been the way in which it has been discussed; namely, in a constructive and good-humoured way. There has been no sense of negativism or obstruction in the way that noble Lords

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have come to the Bill. There has been a great deal of challenge as we have argued points backwards and forwards. That is the way it should be. That is the way we do our business, and rightly so. There has also been quite a bit of fun and enjoyment along the way.
I do not wish to go through the list of all those who have contributed to our debates. However, I obviously recognise and thank the Mackay twins, who have always been up to the mark. Similarly, I thank the noble Lord, Lord Steel of Aikwood. If only he had not turned left when he was approaching Johannesburg, he might be with us today. Whether he will actually make it to the Scottish parliament is most likely not a matter of losing direction. Something else may intervene there.
I thank the noble Viscount, Lord Thurso, and the noble Lord, Lord Mackie of Benshie, for their contributions, together with the noble Baroness, Lady Linklater, and the noble Earl, Lord Mar and Kellie. On the main Opposition Benches, I thank the noble Earl, Lord Selkirk of Douglas, and the noble Baroness, Lady Carnegy of Lour. I thank too the scrutineer of all parliamentary legislation, the noble Earl, Lord Balfour. I thank also the noble Lord, Lord Renton, who always keeps us on our toes and, on the Cross-Benches, the noble Lady, Lady Saltoun of Abernethy.
This has been a great parliamentary experience. All noble Lords who contributed to our debates brought something to them. I say in all humility that we ended up with a better Bill than we were given to begin with. That is a credit to individuals and to the House collectively. I beg to move.
Moved, That the Bill do now pass.—(Lord Sewel.)
Lord Mackie of Benshie: My Lords, from these Benches there is unalloyed joy that this Bill is now coming on to the statute book. My record in this is that since 1950—the first election in which I took part—I have been advocating a Scottish parliament for Scottish affairs within and co-operating with the United Kingdom. The grandfather of my noble friend Lord Thurso was advocating a Scottish parliament back in the 1920s and the 1930s. Indeed, it has been part of Liberal policy. The Labour Party advocated a Scottish parliament, but dropped it for a while. However, they came back to the fold. The joy of someone returned is very great, whether or not they bring with them a fatted calf.
The Minister referred to my noble friend Lord Steel of Aikwood and his part in this. But he and the noble Baroness laboured for years in the constitutional assembly to produce the framework we followed in this Bill. I have heard people express fears, and exaggerated fears, that it will all lead to a rush of independence; that we will all split apart and so forth. But the Scots people are far too sensible. I find that many people who would never dream of standing for Westminster—people of quality and position—want to stand for a Scottish parliament. They want to do so because it is part of their background and they feel that they can do some good there. That is what devolution of power does.
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This is a sensible Bill. It has been improved even by the doubting Thomases. In fact, the doubting Thomases—the noble Lord, Lord Mackay of Ardbrecknish, and the noble and learned Lord, Lord Mackay of Drumadoon—contributed greatly to the good sense at the end and occasionally greatly to my boredom; but taken on the whole, they have done admirable work in spite of their opposition at the start to the whole concept.
I have enjoyed all the debates. They probed properly. The Government rightly and properly gave way on certain matters, notably to the lawyers, whom I think for once were talking sense. The Bill has been greatly improved by many interventions from a whole lot of people. I am extremely happy with it. We on these Benches are happy with it. We know that there may be troubles and difficulties ahead, but good will come from this Bill.
Lord Forbes: My Lords, I confess that I have never been enthusiastic about devolution for Scotland for the simple reason that it will probably lead to friction between Westminster and Edinburgh. The last thing that we want is conflict between England and Scotland. However, we are about to get devolution and I wish it well. I hope that it will work. If it does not work, if it leads to separation, the Government will never be forgiven because our strength is in the United Kingdom. Never must that unity be broken.
Baroness Carnegy of Lour: My Lords, although noble Lords sitting around me on the Back Benches do not want to say anything, perhaps I may say a brief word.
The noble Lord, Lord Thomson of Monifieth, who is not in his place today, commented on several occasions that he was surprised that Scottish Peers on the Conservative Benches, although fearful that the Bill might well turn out to have problems for Scotland within the United Kingdom, have in fact sought to strengthen rather than weaken it. I do not think that the noble Lord should have been surprised. We have, indeed, tried to strengthen the Bill.
We have spent many hours concentrating on the arguments, joining in and assisting. We have all tried to amend the Bill so that it will work better and more smoothly; so that the considerable potential for conflict between Holyrood and Westminster will be reduced and so that the new arrangements will work as smoothly as possible. I think we have succeeded, but I believe there are considerable areas with which the Scottish National Party at any rate will make great play and may make great trouble. What Scotland needs now is a Bill that works well and to the satisfaction of the people of Scotland so that they are not easily persuaded that they want to leave the United Kingdom. We have tried to achieve that.
From these Back Benches, I must particularly thank and congratulate, first and foremost, the members of my own Front Bench: my noble friend Lord Mackay of Ardbrecknish, my noble and learned friend Lord Mackay of Drumadoon and particularly my noble and learned friend Lord Fraser of Carmyllie. They have done

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a great deal of work in preparing and speaking to amendments. I believe that from time to time they have been sorely tried, but they have never lost their cool or sense of humour. We all admire that.
The noble Lord, Lord Sewel, the noble and learned Lord, Lord Hardie, and the noble Baroness, Lady Ramsay of Cartvale, have kept their cool too and we admire that also. It must have been very trying. They had instructions to change mighty little. I am not sure whether they always agreed with their political masters down the corridor. If they did not, it must have been even more difficult. Again, we admire that. They have persuaded the Government to make a number of changes that improve the Bill. However, there are still many controversial areas which may give trouble in the future. I thank them for their courtesy and patience to us all. Some of us are not as good at this as others. Those of us who are still very amateurish after many years in this House—I include myself—appreciate their patience.
It is now for the people of Scotland to accept this Bill and to do what they will with it. I, for one, hope that they will make a great success of it. I shall not play a part in trying to do anything to obstruct that. I am grateful to have taken part in the passage of the Bill. I feel that we have been taking part in an historic occasion.
Lord Brightman: My Lords, perhaps I may take a brief moment of your Lordships' time to commend the inclusion in the Bill of Clause 127 on page 61. This clause is an index of the 69 words and expressions used throughout the Bill which have a special meaning elsewhere in the Bill. As your Lordships will see, the left-hand column on page 61 enumerates all the specially defined words and expressions, whereas the right hand column simply states the number of the clause containing the definition. That device is not often used by draftsmen but an index is of immense value, not only to lawyers but also to all officials and laypersons concerned with the legislation.
Perhaps I may give your Lordships an example of the value of an index in this Bill. Clause 107 states the remedial action available if an Act of the Scottish parliament is not,
"within the legislative competence of the Parliament".
Something outside the legislative competence of the Scottish parliament sounds an easily understood situation; namely, a Scottish Act which mistakenly deals with a reserved matter. However, the careful reader will wish to know whether the expression has a wider meaning and, if so, in what section of the legislation that meaning is to be found. Clause 127 will tell the reader at a glance that "legislative competence" has indeed a special meaning. The clause will direct the reader to Clause 29 where he will find that the expression relates to four other subject matters and not merely to reserved matters.
An index of defined expressions is a wonderful time saver in the case of a long Bill. Unfortunately, it is not put in a long Bill as often as one would wish. I hope that this user-friendly device will continue to find favour in the next Session of Parliament and be more widely used in drafting.
10.15 p.m.
Lord Mackay of Ardbrecknish: My Lords, perhaps I may begin by thanking especially my noble and learned friend Lord Mackay of Drumadoon not only for taking, I suppose, half of the Bill—certainly all the legal and rather complicated constitutional parts—but also for all the work he did in scrutinising the legislation beforehand and in devising many of our amendments. I am deeply grateful to him. Indeed, I must say that the number of changes made to the Bill is a tribute to his record as regards the number of hits he achieved. I should also like to thank my noble friend Lord Courtown, who is the Whip in these matters and, as always, is silent but helpful and, indeed, keeps me in order.
Like others, I too should like to thank the three Ministers involved in the Bill. The noble Baroness, Lady Ramsay, and myself are old sparring partners from our Glasgow university days. It was a pleasure to be sparring with her again. All three Ministers answered our questions—that is, after the first rather uncertain day—courteously and in some detail. They also sent me a fair number of letters. I suppose that one should add the officials to our thanks because, at one stage, I thought that the entire post of the Scottish Office was directed at me, but perhaps others were also receiving correspondence. I should like to congratulate the three Ministers in particular, because the lack of support from those sitting behind them as day succeeded day was, I believe, very obvious—except in the Division Lobbies on three occasions.
The tribute to what your Lordships have done must be in the something like 350 government amendments which will now make their way down the Corridor when we release the Bill. My understanding from the gossip down the Corridor is that the Commons will have to consider something in the order of 180 groups of amendments. I shall not say that the Bill was ill considered, and so on. Clearly, what happened here was the government Ministers were prepared to listen to the arguments put forward and accept them, sometimes in whole and sometimes in part, and then come forward in many cases with their own amendments either entirely taking on board or partly taking on board what we were saying. In some cases the debate stimulated here caused them to think about other matters in the Bill and bring forward amendments which we had not addressed. That is a tribute to your Lordships' House.
I was about to be a little less charitable to the noble Lord, Lord Mackie of Benshie, but after the kind things he said about the Mackay twins I shall draw back a little. Just occasionally—as he admitted—he showed some impatience at our probing and at our amendments. Sometimes I thought that if this had been left to the noble Lord, Lord Mackie of Benshie, the Committee stage would have lasted half a day and the Report stage a quarter of a day. Dare I say to the noble Lord, Lord Mackie, that I do not believe we would have made the improvements we did if we had proceeded in that way?
We have made a fair number of amendments. I attempted to list them. I shall not read them all out but I believe that the rules on residency could prove

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important if the parliament ever decides to use the Scottish variable rate. The assurances we received on the SVR and pension contributions were important. My noble and learned friend Lord Mackay of Drumadoon spoke in debates which led to some useful and—so far as the parliament is concerned—important amendments as regards the competence and privilege of the parliament. My noble and learned friend Lord Fraser of Carmyllie was also involved on that issue.
The Government's acceptance that the Speaker and his deputy should not belong to the one party was a useful measure. I refer also to the protection gained today for Ministers of the Crown and the acceptance that Ministers in this Parliament cannot be Ministers in Scotland. That is an important step forward. All these things arose from the debates we have had. Not only my noble and learned friend and myself took part in these debates but also all my noble friends behind me took particular interest in these debates. It is fair to say that my noble friends and other noble Lords elsewhere in the House who come from Scotland gave this Bill the kind of scrutiny that it certainly deserved. While many of us are unsure about what may happen in the future we all took part in the discussions in a positive spirit given the election result and given the referendum result.
We look forward to seeing what the Government will do with the 129 members. I very much hope that the other place will appreciate the points that we have made. I do not want to repeat what was said but I believe that if the Bill remains the way it is—or, rather, the way it was, as the Government tried to restore it—they will be stoking up trouble in the future for the Scottish parliament, the Labour Party, the Liberal Democrats and ourselves. The only beneficiaries will be the Scottish Nationalists. I certainly hope that the Government take that into account.
The judges can speak for themselves on the amendment that they made in their impressive manner. Again I hope that the Government will listen to their concerns. I hope that there will be pre-legislative scrutiny. I think that, if anything demonstrates the need for pre-legislative scrutiny, it is the 350 government amendments made to this Bill. I think that we can be pleased with what we have done. However, as the Bill leaves your Lordships' House for the other place I have to say that I watch it launched to the next stage and towards next May with both my hands behind my back and my fingers firmly crossed because, despite all the good nature shown on this Bill and the way we have tried to co-operate, I am still not convinced that this is not the start of the unbundling of the UK. I am still not convinced because George Robertson's phrase that devolution would kill the SNP stone dead has not come to pass. There is no sign of that yet; quite the contrary is the case.
The governing party will now have to defend the new Union. They are the people in a leading position in Scottish politics who will have to defend the new Union. They will have to change their tune markedly from the one they have played over the past 18 years. We heard a little of that today from the noble Lord, Lord Thomas of Gresford, on the Liberal Democrat Benches, who
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harked back to the theme that the Conservatives have no mandate to govern Scotland. That is the kind of language that the governing party will now have to forsake absolutely and completely, otherwise they will continue to play the Nationalists' tune, which they played to their advantage and to the Conservative Party's disadvantage but also to the advantage of the Scottish National Party. They are going to have to drop easy phrases such as the one they devised for my noble friend Lady Thatcher; that she was an Englishwoman with no mandate in Scotland. They are going to have to forget that kind of language and to forget the kind of language they used against my noble friend Lord Lang when he was Secretary of State.
I must say to them that from my experience of being a member of the party defending the Union that they are going to have to do better than the Chancellor of the Exchequer did last week, because while it might have been a perfectly good argument in the 1970s to say that independence would lead to customs barriers, to extra costs and barriers against trade with England, it certainly is not true now when in fact we are in the European Union. Whatever happens in Scotland we will all continue to be in the European Union and there will not be trading barriers—"new and costly barriers", as the Chancellor called them. Nor, especially coming from the Chancellor, who is so much in favour of the single currency, can you really pray in aid financial transactions in different currencies, because these currency differences may not exist a few years down the line, whatever I or my party may think.
Really this kind of stuff, coming from the Chancellor and from Mrs. Liddell, will not aid the Government in their defence of the Union. If they will take that piece of advice in the genuine spirit in which it is given from somebody who has attempted to defend the Union against the Scottish National Party over very many years and, frankly, also against the Labour Party and the Liberal Democrat Party, at some stages over the last 20 years, then I believe that we might keep the Union together.
What we have to argue is that in this island we have a common heritage, we have a common language and a common culture. Even on the 11th of November, do I have to say we have a common history? We share all those things in this small island. We have intertwined economies and intertwined personal and family relationships. These must be the arguments that we all put forward if we want this devolved system to work and if we do not want to see the Scottish National Party gain advantage and unbundle the Union. As I say, the arguments put forward by the Chancellor and his friends recently simply will not do. New arguments have to be the arguments that are brought forward. I say to the Government that if they use these arguments and use them sensibly, and realise that we in the Conservative Party are with them as far as these arguments are concerned, then perhaps I can uncross my fingers and this will work. However, it is going to take a lot of effort, given the kind of negative publicity and campaigning that there has been against the Union by the other parties in Scotland over the past 20 years.

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These are my final remarks and I conclude on perhaps a more optimistic note by saying that I look forward to the various pieces of secondary legislation coming forward and renewing this little battle, if at a slightly lower level than during this Bill.
Lord Sewel: My Lords, could I just very briefly reply to thank all noble Lords who have just spoken. I think everybody is right to draw attention to the work that we have done and to the way in which we have done it in relation to this Bill.
I will make just three short comments. One is to make clear that everything is not done and dusted as the Bill leaves this House, because we intend in due course to issue a statement about the circumstances in which the First Minister will take over the functions of advising Her Majesty on the exercise of Her Majesty's prerogative and statutory powers. That is something still to come, and there is secondary legislation still to come that the noble Lord, Lord Mackay of Ardbrecknish, looks forward to with such relish. I am not quite sure that I do. Can I also at this stage thank my noble friends Lady Ramsay of Cartvale and the noble and learned Lord, Lord Hardie, who have made an enormous contribution to the passage of this Bill. They have been
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more than capable in advancing the Government's case on the amendments that we have faced. I owe a great debt of gratitude to them and to all the civil servants and support staff.
I wish to state a simple matter of substance. I recognise that a number of noble Lords sincerely and honestly have reservations about the Bill and the idea of devolution. They fear that it will lead to the break-up of the United Kingdom. I do not believe that that is the case. I believe that it is possible to build a new, stronger union based on and recognising the value of diversity.
In conclusion, I wish to make a personal comment. I have argued for devolution within my party and beyond it for over 20 years. As the noble Lord, Lord Mackie of Benshie, said, there were times when my party was not in support of that position. I argued the case and I believe it is the right way forward. However, if for a moment I believed that devolution would lead to the break-up of the United Kingdom and to the sterile road of separatism, I should have opposed it as strongly as I have supported it. I commend the Bill to the House.
On Question, Bill passed, and returned to the Commons with amendments.
House adjourned at twenty-nine minutes before eleven o'clock.