REIMBURSEMENT OF EXPENSES

HL Deb 06 October 1998 vol 593 cc337-428

(". The Scottish Ministers may reimburse any Minister of the Crown or government department for administrative expenses incurred by virtue of this Part at any time after the passing of this Act by the Minister or department.").

The noble and learned Lord said: This again is essentially a technical amendment. Its purpose is to ensure that all expenses incurred by the United Kingdom departments in connection with the Scottish tax-varying power can be reimbursed to those departments by means of payment out of the Scottish Consolidated Fund.

As the Bill is currently drafted, this method of reimbursement would not be possible in respect of certain expenses which will be incurred regardless of whether or not the tax power is actually used. In effect, the standing charges involved in having the infrastructure in place to allow the power to be used is what we are talking about. This is an anomaly and Amendment No. 287F corrects it. It does so by giving Scottish ministers a specific power to reimburse the administrative expenses. That in turn brings those expenses within the ambit of Clause 62 and allows them to be reimbursed out of the Scottish Consolidated Fund. I beg to move.

The Earl of Balfour

In the wording of the amendment after Clause 75, does "by virtue of this Part" refer to Part IV, the tax-varying power, or to Part V, miscellaneous and general?

The Earl of Mar and Kellie

When the amendment was published at least three months ago, I wondered about the scale of reimbursement. How many pence would be taken up reimbursing the UK Government? I hope that the noble and learned Lord the Lord Advocate will assist me by explaining the scale of reimbursement, and whether there will be any money left from a tax variation in that regard.

Lord Hardie

I deal first with the point made by the noble Earl, Lord Balfour. The issue relates to Part IV of the Bill. In relation to the point made by the noble Earl, Lord Mar and Kellie, I am unable to give precise figures. However, I assure him that not all the money will be used up. It is contemplated that certain mechanisms must be put in place and maintained in order to enable the Scottish parliament to exercise its tax raising power. These mechanisms involve some UK government departments, specifically the Inland Revenue and the Department of Social Security. They have incurred some set-up and continuing maintenance costs, so we are talking about those costs.

On Question, amendment agreed to.

Clause 76 [Remuneration of members of the Parliament and Executive]:

Lord Mackay of Ardbrecknish moved Amendment No. 287G: Page 36, line 42, at beginning insert ("In accordance with the provisions of this section,").

The noble Lord said: We turn to the salary and remuneration of MSPs and members of the Scottish executive. The amendments in my name ensure that the salaries and expenses of MSPs shall not be greater than those of Members of the other place. I know that the group set up by the Secretary of State and chaired by Mr. Henry McLeish is looking at these issues and perhaps the Minister will be telling us about that.

In future, I, like all my fellow Scots, will be represented—I do not know whether in my case that is the right word as I live in the Glasgow constituency of Govan—not by one Westminster MP but by two doing the work of the existing one; or, depending which way you look at it, the work the other one is not doing! One could reasonably argue, therefore, that neither should be paid as much as existing Westminster MPs, but I shall not do so. I believe that status and not workload should determine these matters.

I am prepared to consider equal pay between the two groups of representatives. As regards expenses, especially those involved in setting up and maintaining an office, I suspect that MSPs could be paid at a slightly lower rate than MPs. But I shall not argue that either. I am going to argue that both now and in the future members of the Scottish parliament should not be paid more in salary or expenses than Westminster MPs. I am, so to speak, capping the potential salary and expenses of MSPs.

I am also placing a ceiling on the salaries of members of the executive and I believe that it is a generous ceiling. The ceiling I am applying to the First Minister should be the salary paid to a Cabinet Minister in the Government of the UK. In other words, I do not care how much less he is paid, but he must not be paid more than a Cabinet Minister in the Government of the United Kingdom. The ceiling for the other Scottish ministers should be that of Ministers of State in the Government of the United Kingdom.

These are simple amendments and perhaps address some of the Government's thinking. But they might like to remember that their thinking today will not necessarily hold forever. I believe that we should consider our legislation more in that regard. Therefore, we might consider including a ceiling which at least ensures that MSPs will not vote themselves higher salaries and greater expenses than those obtaining at Westminster, and that the executive members, the ministers in the Scottish executive, will not do similar in comparison with Ministers of the United Kingdom Government. I beg to move.

8.45 p.m.

The Earl of Mar and Kellie

My Amendment No. 288A is grouped with this amendment so I shall speak to it briefly. It has the purpose of ensuring that parliamentary salaries, allowances and expenses are not only published but published in a specific journal. Earlier the noble Lord, Lord Mackay of Ardbrecknish, told me that probably one of the least read magazines is the Edinburgh Gazette. If the amendment is adopted its circulation might increase.

It will be important for the credibility of the parliament that easily distorted information of this nature can be made available to the public whenever there are any changes. It is important that anyone wishing to identify these rates of pay and allowances will know where authoritative information can be found.

The Earl of Balfour

I support the noble Earl, Lord Mar and Kellie. In many previous Bills that I have followed through this House it has been common practice to have information issued in the London and Edinburgh Gazette. A similar feature should be considered by the Government.

Perhaps I may take this opportunity to speak to my Amendment No. 288 in which, once again, I ask that the Secretary of State at the earliest stage should decide on the maximum payment of salaries or allowances to members of the Scottish parliament.

Lord Gray of Contin

It is most unusual for me not to be in full agreement with my noble friend Lord Mackay of Ardbrecknish, but on this issue I do not agree with him. In setting up the Scottish parliament, one of our objects is that it should be a unit able to take decisions on its own behalf. While certain decisions should be retained at Westminster, I believe that in this respect we should leave the Scottish parliament to use its own initiative.

I take the view, which differs from that of my noble friend, that there will be considerable restraints upon the Scottish parliament preventing it from abusing a privilege of this kind. The principle of those restraints will be that it will play right into the hands of the nationalists if whatever is decided at Scottish parliamentary level has already been virtually set out at Westminster. Immediately the nationalists will say, "We must hold our particular remuneration for this, that and the other thing to what Westminster suggests". In my view, that would be a great mistake.

I am afraid that on this occasion I do not agree with my noble friend. I believe that whatever is paid should be left to the new Scottish parliament, in the belief that it will use its discretion appropriately.

Lord Steel of Aikwood

I am happy to agree with the noble Lord, Lord Gray of Contin. Perhaps I should declare an interest as I hope to be a member of the Scottish parliament. I do not have the foggiest idea of what the salary will be and the matter has not greatly motivated me, but I entirely agree with him in principle.

The trouble is that every time the noble Lord, Lord Mackay of Ardbrecknish, sees a clause he wants to put a collar and chain on it and hand it to the UK Government, saying, "You must not allow the Scottish parliament to do this, that and the next thing". That is the principle on which he operates every single time, whether on taxation, salaries, or whatever. The noble Lord, Lord Gray, is right in saying that we should trust the parliamentarians of Scotland to get the salary levels right and that, if they get it wrong, retribution will be at the hands of the electorate.

I cannot understand why the Conservative Party always tries to put a ball and chain on every aspect of the work of the Scottish parliament. This amendment is a piece of nonsense and I hope the Government will reject it.

Lord Hughes

I, too, agree with the noble Lord, Lord Gray of Contin, that members of the Scottish parliament should be allowed to decide these matters for themselves. Two interpretations can be put on what was said by the noble Lord, Lord Mackay of Ardbrecknish. He expects that the first thing members of the Scottish parliament will do is to be greedy and seek to pay themselves more. Today I looked to see what Members of the House of Commons receive. Including pay and allowances, it is of the order of £100,000 a year. I am certain that if members of the Scottish parliament propose to pay themselves more than that they will last only one term in the parliament.

Lord Mackie of Benshie

The pay of the Scottish parliament is important and should be decided by its members themselves. They should consider the workload. A great many people who are busy and distinguished in their own professions will be able to stand for Parliament and take part in work three days a week. Executive members should be paid more. It is very important that we do not close the door to the many people of distinction and ability who would like to play a part in Edinburgh and who would be excluded if it was to be made a full-time job. That should be considered. I would like to hear the views of the Government, although I believe this should be left to the Scottish parliament.

Lord Hardie

I am grateful to the noble Lords, Lord Gray of Contin and Lord Steel of Aikwood, to my noble friend Lord Hughes, and, I think, to the noble Lord, Lord Mackie of Benshie, for their support of the Government's opposition to these amendments.

The point has been made forcefully by other noble Lords, including my noble friend Lord Hughes, that the position is that, unlike at Westminster, the salaries of the members of the Scottish parliament and members of the executive will have to be met from the assigned budget in the same way as expenditure for education, health and other important issues will require to be found. As my noble friend Lord Hughes has pointed out, the Scottish electorate will be extremely keen to keep a close eye on the levels of pay coming out of the Scottish Consolidated Fund which might otherwise be available for health, education or the like.

Moreover, the Senior Salaries Review Board will make recommendations on the initial salary levels to the Secretary of State. It is hoped that after that initial setting of the salary the parliament will continue to consult that independent body before setting its future salary levels. As noble Lords have pointed out, these amendments would unduly fetter the discretion of members of the Scottish parliament. The members of that parliament will be answerable to the people who elected them. In those circumstances I envisage that the members will be responsible enough to set their own salaries and allowances at levels within appropriate parameters. Members of the parliament will be acutely aware that, at whatever level they set their salaries or allowances, the expenditure will have to be met from the budget.

The Government very much hope that the Scottish parliament will continue to take independent advice from bodies such as the Senior Salaries Review Board. We do not think that it is appropriate to require it to do so in the Bill. I would urge noble Lords to withdraw their amendments.

As to the amendment of the noble Earl, Lord Balfour, this would give power to the Secretary of State to set levels of remuneration before the first determination of the parliament. With respect to the noble Earl, this is an unnecessary amendment and, for that reason, the Government do not accept it.

The Committee will not be surprised to hear that we have given this matter some considerable thought. Clause 115(3) of the Bill confers a power by subordinate legislation to make provision for transitory or transitional purposes in connection with the coming into force of any provision of the Bill. This will enable the Secretary of State to set the initial salary and allowances levels for both members of the Scottish parliament and members of the executive until such time as the parliament can make its own determination.

The Committee will be aware that the Government have given a commitment in the White Paper produced last summer that the Senior Salaries Review Board would be invited to make independent recommendations about the levels of remuneration. I hope that that answers the noble Lord, Lord Mackie of Benshie. I am unable to give more detail other than that it is being considered by the board.

Lord Mackay of Ardbrecknish

Can the noble and learned Lord indicate whether the Government have sent any submissions to the review board on the question of salaries and, if so, what they have said?

Lord Hardie

I am not sure that submissions made by parties to that body are in the public domain. I can confirm that there has been communication between the Government and the body. I am not prepared to indicate the content of any communication.

The body has considerable experience and we would expect the first part of the report to come out next month. If the noble Lord can wait for that long he will no doubt find out what its recommendation is. The final stage of the report we expect to receive early next year. That relates to office costs, allowances and remunerations for members of the executive and other possible post-holders such as the presiding officer. The Government are aware of the need to have remuneration levels in place in time for the parliament's first sitting until it is able to make its own arrangements.

Amendment No. 288ZA is similar to Amendments Nos. 287G, 287H, 287J, 287ZZA and 287ZB, which I have already covered. This amendment deals specifically with the pension provisions for members of the Scottish parliament. The principle is the same and should be a matter for the parliament to decide.

We cannot accept the amendment of the noble Earl, Lord Mar and Kellie. The parliament will be answerable to the electorate and we are confident that its members, when elected, will make every effort to ensure that appropriate information is publicised as widely as possible. It is not appropriate for us to impose conditions or to say what publications should be used to give effect to the publicity. I am confident that the parliament will publicise these matters.

As to office-holders—the presiding officer, the deputies and members of the SPCB—we again oppose that. These office-holders are likely to receive additional remuneration for carrying out duties while the parliament is sitting and it is only fair that they should continue to receive a similar amount during the period after the end of a session and prior to the commencement of the next session. The Senior Salaries Review Board will be looking at the level of payment to these office-holders in addition to their normal recompense as members of the Scottish parliament.

As to the point the noble Lord, Lord Mackay of Ardbrecknish, raised in relation to the consultative steering group of my friend Mr. McLeish, I understand that it is making good progress in considering standing orders but salaries of MSPs are not within its remit. This would be a matter for the Senior Salaries Review Board to advise upon. With that explanation, I would invite noble Lords to withdraw their amendments.

Lord Mackay of Ardbrecknish

I can certainly recognise when I am being fired upon from all sides and when it is perhaps best to withdraw tactically for the moment. The Minister's answer to my question about what evidence the Government had presented to the senior salaries review board was quite staggering given that this is a Government who tell us about open government and freedom of information Acts. I am not sure that that sits consistently with the answer "Yes, we have said something to it but we are not telling you". But I shall leave that to one side.

We come across this line quite often. I suggest that something should be done and I am told it should be left to the parliament to decide. A little later I suggest that the parliament should be allowed to do something and I am told that it had better be kept at Westminster. I can understand the way these things web and weave, but I rather object to being attacked for my position when the position is so often reversed on other issues. But I shall also leave that to one side.

The idea that the parliament should be left free to decide its own salaries and expenses is all very well. I do not have any great complaint about that. But I do wonder whether the Government will continue with that devolutionary aspect of these considerations and give local government the power to decide its own allowances and expenses. After all, councillors are answerable to the electorate. If they pay themselves too many expenses or allowances, the electorate can hold them to account. It seems to me that what is sauce for the Scottish parliament's goose is sauce for the local government gander. If I were a local government councillor I would already be beating a path to St. Andrew's House clutching the words of the noble and learned Lord the Lord Advocate and saying, "If it's okay for you lot, then why not for us as well?" However, I shall leave it like that for today.

I hope the parliament will be wise. I do not have the same great confidence that the members will all be turfed out if they pay themselves great salaries. If they all agree to pay themselves great salaries, for whom will the electorate turf them out? All the parties will have agreed to the great salaries. I cannot say that this has applied to the other place, which has got itself into awful confusion over salaries over many years, to my detriment in the past and perhaps in the future when I come to collect my pension. There is no great evidence that the electorate take electoral retribution on MPs who increase their salaries. So I do not have a great deal of confidence about that aspect of the Scottish parliament. With that, and looking to the Government's evidence to the Senior Salaries Review Board being allowed out of the secrecy which surrounds the whole Government, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 287H to 288ZB not moved.]

On Question, Whether Clause 76 shall stand part of the Bill?

9 p.m.

Lord Monson

The Bill provides for two categories of MSP. The first category is conventional constituency members who will have all the normal onerous constituency duties and surgeries. Many of the constituencies will be large and will have the same massive and ever-growing volume of correspondence that MPs at Westminster must contend with. By contrast, in the second category there will be regional members with no constituency obligations—not unlike your Lordships in a sense. Even though, like your Lordships, they will have a certain amount of correspondence to cope with, it will not come anywhere near that of the constituency MSPs. My question is this. Do not those in the first category deserve substantially greater pay and expenses than those in the second category?

Lord Hardie

That would be a matter for the parliament and the Senior Salaries Review Board. There is a misunderstanding. Even the regional members would have a constituency. Their constituency would be the regions.

Clause 76 agreed to.

Clause 77 [Limits on salaries of members of the Parliament]:

Lord Mackay of Ardbrecknish moved Amendment No. 288ZC: Page 37, leave out lines 29 and 30.

The noble Lord said: In moving this amendment, I should like to speak also to Amendment No. 288ZD. Contrary to the principle enunciated by the noble and learned Lord the Lord Advocate of leaving these matters to the Scottish parliament, Clause 77 tells the Scottish parliament that it must do something about the salaries of those members of the Scottish parliament who are also either members of the other place or indeed of your Lordships' House, although where the Government get the idea that Members of your Lordships' House are paid a salary, I am not entirely sure. But never mind.

Lord Mackay of Drumadoon

We live in hope.

Lord Mackay of Ardbrecknish

My noble and learned friend Lord Mackay of Drumadoon says, "We live in hope".

Clause 77 tells the parliament what to do about those members of the Scottish parliament who are Members of this place or of the other place and/or members of the European Parliament. I find it odd that the same principle does not apply as applied a little while ago, that we should leave this matter to the parliament. In fact, I may decide to strike out Clause 77 if we come to that position because there seems to be a little nannying here. Perhaps the noble Lord, Lord Steel of Aikwood, might reprimand the Government in this regard.

However, I am consistent because I have no difficulty with the principle that something ought to be laid down about dual salaries and that there ought to be some way to prevent someone collecting both salaries. The public would not consider that right and I believe that the House has a responsibility to tackle this issue.

What bothers me is that the clause is so vaguely drawn. Subsection (2) states: The Parliament shall ensure that the amount of salary is reduced … to a particular proportion of what it would otherwise be or to a particular amount". Would the Scottish parliament be obeying this clause if it decided that a person should receive a 99 per cent. proportion? It seems to me that it would. In fact it could even argue that a 100 per cent. proportion would be obeying the clause. Technically, 100 per cent. is a proportion of a salary. It is the total salary but it is still a proportion. However, let us not split hairs. Let us go to 99 per cent. or 90 per cent. It seems to me that that would be obeying the instruction in Clause 77.

What do the Government mean by this? Do they have a ball-park figure? Is it 90 per cent., or 80 per cent., or are we looking at 50 per cent.? Before we pass such vague legislation we ought to have an indication, even within parameters—I am not too bothered about the parameters—of what the Government intend here. If they do not know what they intend, I suggest that they strike out the whole clause and leave it to the good sense of the Scottish parliament to realise that when it fixes the salaries it will have to deal with any of its members who are also Members of the House of Commons or members of the European Parliament.

I have no problem with people undertaking a dual role. We put far too many obstacles against people doing that. It is a pity that some Members of the other place are not also Members of the European Parliament. I know that some are for a brief time. One of my colleagues certainly is at present but I suspect that she will be resigning her European seat. It would not do any harm for the Scottish parliament to have some members who are dual-mandated for the other place and for the European Parliament. I want to make it clear that I am not opposed to that.

However, I am opposed to such a vague clause as this is. I hope that the Government will give me at least an indication of the kind of figures that they consider would be appropriate when it comes to defining the word "proportion". I beg to move.

Lord Sempill

I wish to support my noble friend on the Front Bench. In doing so, I declare an interest. I shall be standing for the Scottish parliament. I wish to address an issue which has not been raised so far.

Perhaps I may pick up the point made by my noble friend Lord Mackay of Ardbrecknish on the issue of claiming two salaries. It is my intention to have the hope of claiming one salary. As I am sure the Committee will be aware, a Conservative hereditary Peer is a fairly rare bird in Scottish politics. Therefore, the odds on my winning the seat are quite high.

I am sure that the Committee will sympathise with the fact that I shall have to spend a considerable amount of my time away from this Chamber, which I have great pleasure in attending and for which I am covered by my daily expenses, in order to give myself and my party a fair chance of winning the seat. That is the way it should be.

However, I must tell the Committee who I shall be opposing in that seat. It is not just applicable to my seat but is applicable to a few other seats. I shall be opposing an honourable Member from the other place. I am talking about the honourable Member for Edinburgh North and Leith, Mr. Malcolm Chisholm. He will have the huge advantage of being able to fight that seat while in receipt of a full parliamentary salary, with all the appropriate expenses, which I am sure is applicable to the Secretary of State, who will be doing the same thing. Therefore, for reasons which are fairly straightforward, I believe that I am getting a raw deal here.

Therefore, it strikes me that in the initial stages we have a few anomalies. I find it difficult that I should face an opponent who will have the ability to spend a considerable amount of time in his constituency, in reality representing his Westminster constituency while at the same time fighting a seat in a Scottish constituency without encountering any of the financial pitfalls that I must encounter.

I ask the Minister to give me a view on that potential anomaly.

Baroness Carnegy of Lour

In view of the fact that the last amendment was opposed on the grounds that people must take full responsibility, I do not understand why this clause tells the Scottish parliament the way in which it must calculate what people are paid but does not indicate the level at all. Why should the parliament be told the way in which that must be calculated?

We were told also that the workload should not be taken into account. I believe that the noble and learned Lord the Lord Advocate said that the workload of a member of the Scottish parliament was not relevant, did he not? Somebody said that. It seems to me extraordinary that the mechanism is provided but no amount is given. I do not understand that.

Lord Hardie

There appears to be a consensus at least to the extent that it would not be appropriate to have a double salary and there should be some recognition of the fact that members are also Members of another place or members of the European Parliament because obviously they may not be able to devote the same amount of time to the Scottish parliament. There is no doubt about the principle, as I understand the point made by the noble Lord, Lord Mackay of Ardbrecknish.

The only question then is whether we should acknowledge the principle within the legislation that there should be some abatement. I take the point made by the noble Baroness, Lady Carnegy of Lour, that all we have done is to set out a formula and we have not set out the abatement level.

I am able to advise the noble Lord, Lord Mackay of Ardbrecknish, that we referred the abatement levels to the Senior Salaries Review Board. Advice will be available to the Scottish parliament on that matter and no doubt the Scottish parliament will take that advice into account in formulating the appropriate abatement.

A fundamental difficulty arises with these amendments, and it is this. The effect of these amendments would be to reduce the salary of a member of the Scottish parliament by the amount that he or she receives as a Member of the other place or as a member of the European Parliament. I wonder whether that implication was intended.

What would happen if the Scottish parliament decided that its members should receive a lower level of salary than Members of the other place? In practice that would mean that if a member of the Scottish parliament was also a Member of the other place, he or she would not receive anything for being a member of the Scottish parliament. They would represent constituents in both parliaments but be in receipt of only one salary with no acknowledgement for their additional responsibilities as a member of the Scottish parliament. I am sure that that is not the intention behind the amendments.

With that explanation I invite the noble Lord to withdraw the amendment. However, perhaps I may deal briefly with the point raised by the noble Lord, Lord Sempill, though I am not sure of its relevance to the amendments. However, it must have some relevance and on that assumption I shall seek to answer his question.

First, the noble Lord appears to be under a misapprehension that his opponent is a Member of the Government; he is not. Mr. Chisholm is not a Member of the Government Front Bench. Equally, the issue as to what prospective candidates do, whether they are employed and how much time they spend in their prospective constituency is surely a matter for the candidates themselves. If the noble Lord wishes to have any prospect of winning that seat, I suggest that he spends more time there.

9.15 p.m.

Lord Sempill

Perhaps I can come back to the noble and learned Lord the Lord Advocate. I am aware that the Member for Edinburgh North left the Government Front Bench. I was simply pointing out that he was a member of the Labour Party.

The advantage that that Member has is that he must attend his constituency. At the moment, when he attends his constituency he is paid for the work he does in that constituency by his representation in Westminster. He has the advantage of being able to push forward his case underneath the auspices of being a Westminster MP. My point is that he has a considerable advantage over the rest of us who are not in that privileged position. That is the only point I wish to make. In backing my colleague on the Front Bench, I wished to point out the differences in the possibility of dual mandates and the advantages of a dual mandate.

Lord Hughes

The principle in the Bill seems a reasonable one. Because it is a reasonable one, why should we not expect the Scottish parliament to act in that reasonable way if it is left to do so? The point being made is that we are in an anomalous position. On the one hand we are saying that the parliament must be trusted to decide its own salaries; but on the other we must say no, we are not sure that they will do it right.

Having said that, I do not know that any Member of the House of Commons is also a member of the European Parliament, except those from Northern Ireland. Members from Northern Ireland are also members of the European Parliament. Does this principle apply to them? Do Dr. Paisley and Mr. Hume draw both salaries and are they diminished in any way?

Lord Hardie

I must advise my noble friend Lord Hughes that I do not know the answer to his query. Perhaps I can write to my noble friend to give him chapter and verse of the position. I am aware that another Member of the other place is also a member of the European Parliament. She is also a member of the Faculty of Advocates and represents a constituency in the south of England.

Lord Mackay of Ardbrecknish

Perhaps I can help the noble and learned Lord the Lord Advocate. In return for my help he will receive my bill in the morning. If I am paid by the minute for this Bill, the Committee will forgive me if I go on a bit. As I understand it, Members of the European Parliament and of the House of Commons are paid only one salary. As I have said, I have no problem with the principle.

My noble friend has raised an interesting matter as regards those candidates in the election to the Scottish parliament who find themselves opposing Members of the other place. The latter will be able to fight an election for the Scottish parliament on the basis of the taxpayers' payments to them for being Members of the other place. I rather suspect that their attendance there will be pretty sparse while they fight for their seats in the Scottish parliament. I believe that my noble friend has a point about the injustice of that situation.

But the injustice goes beyond that. I agree with the noble Lord, Lord Hughes: if I am told that my amendments to Clause 76 are a bit of a cheek because I should leave the matter to the good sense of the Scottish parliament, then I believe that the question of abating the salaries of dual Members should also be left to the Scottish parliament. Obviously, consistency does not run firmly through the Government's position on this Bill.

Again, we had no indication of any kind of ball park figure. I did not get an answer as to whether 99 per cent. would be a proportion, as it certainly would be. We had no answer as to what the Government believe would be roughly acceptable. That is totally inadequate. In fact, if it were not for the time of night I would be tempted, but I shall resist it. I may return to the matter and suggest to the Committee that this clause in its entirety should be removed from the Bill because these matters should be left to the parliament itself. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 288ZD not moved.]

Clause 77 agreed to.

Clause 78 [Remuneration: supplementary]:

[Amendments Nos. 288A and 288AA not moved.]

Clause 78 agreed to.

Clause 79 [Oaths]:

[Amendment No. 288AB not moved.]

Clause 79 agreed to.

Clause 80 [Exemption from jury service]:

The Earl of Mar and Kellie moved Amendment No. 288B: Page 38, leave out line 34.

The noble Earl said: Amendments Nos. 288B to 288D are focused on Clause 80 which deals with exemption from jury service. Perhaps I may say to the Committee that I can read the Marshalled List and the runes so I shall not go on about this set of amendments for very long. Amendment No. 288B seeks to remove junior Scottish Ministers from the list on the grounds that their position is already covered in the preceding description as members of the Scottish parliament.

Amendment No. 288BA seeks to add the new post of the Auditor General for Scotland to the list of those exempted from jury service. Given the need for effective accounting, I cannot see that that will be anything other than hindered by the possibility of a lengthy absence by the Auditor General for Scotland on jury service. I beg to move.

Baroness Ramsay of Cartvale

It may be helpful if at this point I say to the Committee that I intend to oppose the Question that Clause 80 stand part of the Bill. I shall explain my reason for doing so. It arises out of further consideration, prompted by these amendments, of the need for the clause. I realise that it is not often that I or any of my noble friends on the Front Bench have to oppose parts of this Bill. However, I suggest that this is evidence—should Members of the Committee require any—that we really do listen to what happens in the House and that the Government are prepared to consider amendments and all their implications.

We have considered whether it is necessary to provide for exemptions from jury service on the face of the Bill. We have concluded that it is not and that it would be more appropriate to make the necessary amendments to the Juries Act 1974 and the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, as well as the juries legislation in Northern Ireland in an order under Clause 96 of the Bill. If your Lordships agree to the deletion of Clause 80 we would intend to make the same amendments as are currently set out in Clause 80 under Clause 96. We would also give consideration as to whether further exemptions should be provided in consequence of the establishment of other new offices by the Bill.

An order under Clause 96 making the provision I have described would be laid before your Lordships' House, as well as the other place, in due course, assuming Clause 96 is duly enacted.

The parliament will have legislative competence in relation to jury service in Scotland and will be able to provide further exemptions if it sees fit.

In case your Lordships do not agree to leave out this clause, I should explain what the Government's position is on the noble Earl's amendments. As the noble Earl explained, these amendments raise his concerns about whether Clause 80 makes the appropriate exemptions from jury service. I understand that the noble Earl does not think it necessary to have a specific exemption for junior Scottish ministers since they should be covered by the general exemption for all members of the Scottish parliament. There was a good reason for this specific exemption. Junior Scottish ministers, like the members of the Scottish executive, could continue to hold office during a dissolution of the parliament until a new administration is formed. At that point they would not be MSPs. We think it is right that they should continue to be entitled as of right to be excused jury service in those circumstances.

Amendments Nos. 288BA and 288D probe why the Auditor General is not exempted from jury service as of right. We have listened carefully to the noble Earl's arguments and will consider his points. We thought that it was more appropriate to leave the parliament to consider whether the Auditor General needed to be exempt. The parliament will have to legislate anyway to enable the Auditor General to exercise his functions. But I shall consider the points that the noble Earl has made as to why we should make provision. The parliament will, of course, be able to make further provision about exemptions from jury service.

Lord Mackay of Drumadoon

I had not intended to intervene on this amendment, but in view of the Minister's helpful explanation of her reasons for opposing the Question that the clause stand part of the Bill, it might be helpful if I say a few words at this juncture.

I do not welcome, yet again, an attempt to put as little on the face of the Bill as possible and the further use of an order-making power to amend primary legislation. If Parliament, in its wisdom, in 1974, in the Juries Act of that year, and again in 1980 in the Law Reform (Miscellaneous Provisions) (Scotland) Act, set out provisions as to who was or was not excusable from jury service, such legislation (being primary legislation) should, in the absence of very good reason, be amended by primary legislation. Clearly, that was the Government's intention when Clause 80 was framed by the draftsmen when the Bill was debated in another place. It is somewhat disingenuous that only the amendments tabled by the noble Earl, Lord Mar and Kellie, have prompted a change at this stage. It seems to me that there is nothing wrong with the clause in its present form. It amends, by means of primary legislation, two Acts of Parliament. For that reason, I do not welcome the Government's intention to oppose part of the Bill, even as an example of a listening government.

Lord Rodger of Earlsferry

As the Government have given a great deal of thought to opposing the Question that the clause stand part of the Bill, it may appear slightly ungrateful to say that it would appear to me that there cannot be any doubt that one would wish to have exemption from jury service for the people specified in the clause. Therefore, even if it is intended to use the wide order-making powers under the clause to which reference has been made to add to the list of people who are exempted, I cannot see why it is desired to remove a clause that makes exemptions which, on any view, must be necessary. Otherwise, it appears to me that there will be a hiatus. Unless the Scottish parliament makes its very first Act the passing of subordinate legislation dealing with jury service of these ladies and gentlemen who are specified here, there will be a hiatus. Those people would actually be eligible for jury service and would, therefore, be liable to be summoned with all the complications that would follow from it.

It seems to me that the clause as it stands is a sensible one and one that perhaps could be added to later if the Scottish parliament so desired. However, to remove it would create an unfortunate hiatus. Therefore, I ask the Government to reconsider the matter.

9.30 p.m.

Baroness Ramsay of Cartvale

I believe that we could have this debate when we come to discuss Clause 96. For the reasons that I went into at some length—indeed, at greater length than I thought Members of the Committee would wish, but clearly it was not enough—we have decided that this is not the way forward in this case. We would prefer to do it under Clause 96. In any event, it is within the competence of the parliament. There is no hiatus because a Clause 96 order will be made before the MSPs come into office. Therefore, there is no such hiatus.

The Earl of Mar and Kellie

I am grateful to the Minister for her explanation. She and I both clearly read the same runes. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 288BA, 288C and 288D not moved.]

On Question, Whether Clause 80 shall stand part of the Bill?

Lord Fraser of Carmyllie

There are some serious arguments to be advanced about why this particular clause should stand part of the Bill. Frankly, it seems to me that we could resolve matters very quickly if we allowed it to stand part of the Bill and if we had a greater opportunity to understand and reflect upon the argument that the Minister advanced a few moments ago. I suggest that the appropriate course would be to leave the clause as part of the Bill. If the Government wish to remove it and can explain in greater detail why such action is necessary, they can do so on Report.

The Earl of Balfour

I have listened most carefully to what has been said. As I understand it, an auditor is not normally part of the executive and is in rather a special position. In that respect, I feel that what my noble and learned friends have said needs to be considered very carefully. For the moment, I should like Clause 80 to remain part of the Bill. With great respect, the Government will have the opportunity to repeal it at the next stage.

Baroness Ramsay of Cartvale

I shall make just one comment on what has been said about everyone needing time to reflect. In fact, when considering amendments, one hears the arguments for and against and then one decides the issue there and then. I find it very odd that some people need so much longer. However, we are a listening Government. I will say that Clause 80 can stand part of the Bill and that we will return to the matter on Report. Nevertheless, the points that I made about there being no hiatus and about the amendments certainly stand. In no way do I withdraw any of those comments.

Clause 80 agreed to.

Clause 81 [Scottish representation at Westminster]:

Lord Rowallan moved Amendment No. 289:

Page 39, line 2, at beginning insert— ("(A1) The Boundary Commission for Scotland shall, by the day on which the Parliament first meets or as soon as possible thereafter, submit a special report to the Secretary of State recommending the constituencies into which Scotland should be divided for the purposes of the first general election of members of the House of Commons after the commencement of this section. (B1) The report referred to in subsection (A1) above shall be subject to the same provisions of the Parliamentary Constituencies Act 1986 as apply to reports under section 3(1) of that Act save for the provisions of subsection (2) of that section.").

The noble Lord said: We are dealing with a most important question here. It is absolutely essential that we do not cap the number of MPs that we send down to Westminster after devolution to answer the impossible-to-answer West Lothian question, as that could be taken as a sign of anti-Scottishness by Westminster. We must make a decision now as this Bill proceeds through this Chamber on the correct procedure of voting for both parliaments and the numbers who will represent Scotland in both parliaments. It is absolutely no good our MSPs having a loud voice in Edinburgh while our MPs are political eunuchs with the ability to speak with no more than a whimper here at Westminster because they are regarded as being totally over-represented.

As the noble Lord, Lord Sewel, made clear earlier in the Committee stage, the number of parliamentary seats is totally sacrosanct vis-à-vis the number of Scottish parliamentary seats. We must decide now if we are to have our 72 MPs and 129 MSPs, or whether it will be 58 and 108, or something completely different. We cannot permit these MPs and MSPs to be elected and then take away their constituencies at a later date. Can one imagine the scramble and fight for seats there would be within Scotland? Can one imagine the chagrin of the Scots nation as a whole at having its representation taken away from it—as would be its perception—by means of a Bill that we are putting through Parliament at this time?

This is a potential minefield. It is absolutely essential that we get the Boundary Commission to look at the situation now and decide what should happen before someone treads on one of the mines in this field and we have a tremendous backlash and a potential for this entire devolution Bill to fail before it has even started. I beg to move.

Lord Monson moved, as an amendment to Amendment No. 289, Amendment No. 289A: Line 2, leave out from ("shall,") to ("submit") in line 3 and insert ("not later than three months after the day on which the Parliament first meets,").

The noble Lord said: When the first Marshalled List of amendments for the Committee stage of this Bill appeared a great many weeks ago it contained about 295 amendments, yet there were only two English names on the list, on two of the amendments. Although a handful more have subsequently been added, including my own and those of the noble Lord, Lord Ellenborough, and the noble Earl, Lord Onslow, the lack of English concern is still pretty astonishing given that the effects of this Bill are by no means confined to Scottish internal affairs. There is a United Kingdom dimension and there is very much an English dimension.

As the noble Lord, Lord Rowallan, pointed out, the West Lothian question has not gone away. It has not been resolved. I hope that the Official Opposition will agree that the Government really cannot wriggle out of coming forward with some solution on the complacent assumption that the English are too bovine and unobservant to mind one way or the other. They may appear that way at the moment but once the Scottish parliament is up and running things are likely to change rapidly. A former Home Secretary, the noble Lord, Lord Baker—I am sorry he is not here tonight—wrote a most interesting article in the Spectator on 1st August which is worth quoting from. The noble Lord, Lord Baker wrote, It is simply unacceptable that Scotland is over-represented at Westminster by at least ten MPs". Actually he is wrong, the correct figure for over-representation is 14 or 15. He continued, English MPs will not for long tolerate the anomaly whereby they cannot vote on Scottish roads, schools, hospitals or laws while Scottish MPs at Westminster can vote on all these matters affecting England". As some have suggested, an English parliament would mean yet more expense and yet more over-government, of which there are already signs. Better by far simply to debar Scottish MPs from voting on those English measures corresponding to those devolved to the Scottish parliament, as the noble Lord, Lord Baker, later suggests in the Spectator article and as, coincidentally, Paul Goodman advocates today in his interesting article on page 22 of the Daily Telegraph.

Clearly, such a proposal would take some time to set up. In the meantime it would be wrong for Scotland to be 25 per cent. over-represented at the next general election with a Scottish parliament already in full charge of Scotland's internal affairs—hence this amendment, which is designed to tighten up the well-thought-out amendment moved by the noble Lord, Lord Rowallan, although I do not agree with him as to what is the correct number of Scottish MPs. I beg to move.

Lord Monro of Langholme

I support this amendment tabled by the noble Lord, Lord Monson. I have been a severe critic of the West Lothian problem for many years. It is depressing that it is to be prolonged more than is necessary. The achievement of the Boundary Commission over the past two years in redefining local government seats in Scotland, sometimes with dramatic effect, as in Dumfries and Galloway where the number of seats has been reduced from 70 to 54, shows what can be done, if the spirit is willing, to get the number of constituencies right.

Were the Boundary Commission to start when this Bill reaches the statute book preparing future constituencies, they could come into force at the first forthcoming general election, not at the second. It seems that there will be five years of gross over-representation at the Westminster Parliament by Scottish Members of Parliament. I should like to hear the Government's reasons as to why such a solution does not seem possible in the light of this legislation.

Purely as a matter of interest I should like to know why it has been decided to split Orkney and Shetland into two constituencies both in the Scottish parliament and presumably in a future Westminster Parliament. Orkney and Shetland have always been adequately and exceptionally well represented. It may be a physical hardship for the constituency member to deal with two islands, but they are not so far apart in terms of air travel. I wonder why two very small constituencies are to be established when one is probably an over-representation at the present time, though there must be one for Orkney and Shetland. Why have the Government taken that decision? Secondly, is it still possible to redefine the number of constituencies for the Westminster Parliament before the first forthcoming general election and not the second?

Lord Ellenborough

I support the amendment tabled by the noble Lord, Lord Monson, to which I have my name. I thank my noble friend Lord Rowallan for providing a rare opportunity to touch briefly upon the English dimension at this late hour on the ninth Committee day.

The purpose of our Amendment No. 289A is to attempt to instil a sense of urgency in getting the Boundary Commission under starter's orders so that there can be a reduction in the number of Scottish MPs, not merely as soon as possible but certainly by the next general election in 2001 or 2002.

Scottish devolution will not work unless the Scots are satisfied—but it will not work unless the English are satisfied. We want the parliament to be successful, although many of us have grave reservations. It is essential that there should be fair play and justice for England, which after all constitutes 83 per cent. of the UK. I have referred previously to the ostrich-like attitude of the Government in their inability and unwillingness to face up to the English dimension, which could have fatal consequences for the Union. The Government are in a dilemma because of the ploy to give the Scots a parliament in such a way that will finish off the SNP—which has backfired and instead unleashed a truly Scottish monster—and perpetuate the over-representation of Scots MP at Westminster for as long as possible for the Government's political advantage.

Consequently, there is the vague and derisory proposal in the Bill which would have the effect of reducing the number of Scots MPs by a handful, not by the next general election but by the one after that, which will perhaps be in 2007, by which time the Scots parliament will have been up and running for eight years. Indeed, some who are better informed than I say that Scotland may be independent by then. If ever there was a case of hastening slowly, this would seem to be it, and it is quite outrageous. The establishment of a new parliament is a measure of enormous importance, affecting the whole of the UK. I suspect that the Government are sheltering behind so-called administrative difficulties in preventing the Boundary Commission making an early start. After all, it is not a case of reviewing some 660 constituencies of the entire UK; it is a matter of reviewing some 70 constituencies, about 10 per cent. of the whole. Obviously some adjustment would be needed for the few Highland and Island constituencies.

Of course, a reduction of a handful of 12 or so MPs is derisory, and a reduction of a much larger size is not the real answer. The problem is not the numbers but the manner in which Scots MPs exercise their votes on matters concerning England. Even so, any reduction that takes place at the next general election would at least show some willingness to face up to the problem. It would be a gesture. It would slightly alleviate the unfairness and give a breathing space for a lasting solution to be found, almost certainly by the next Conservative government, if not too late, to prevent a final dismantling of the Union.

In the meantime, the Government ignore the English dimension at their peril and should not wait for the crisis to occur. It will not happen yet, but that should not cause the Government to be lulled into a false sense of security. While Labour has a large majority in England the danger is obscured. Many people feel that the acute danger period will be in five years' time after a probable four years of Scots Labour rule in Edinburgh, more than enough to cause rampant Scottish nationalism and, by then, growing English resentment at interference by Scots MPs in English affairs when there may well be a Conservative majority in England, despite current trends.

My fear is that the danger will come when English people wake up to the fact that their affairs are being adversely affected by the votes of Scots MPs when English Members do not have a similar right. If looked upon favourably by the Government, this amendment and others grouped with it would very much help the situation.

9.45 p.m.

Lord Steel of Aikwood

The Liberal Democrats have always been absolutely clear that if and when we have a Scottish parliament the number of Scottish Members attending the Westminster Parliament should be reduced. We have never had any doubt about that; we have said it consistently over many years. I understand that both the Bill and the amendment of the noble Lord, Lord Monson, give effect to that.

As I said on a previous occasion, the constitutional convention did not deal with this issue because we felt that the consequential arrangements for Westminster were beyond our remit. Although before the election the Labour Party resisted this idea, immediately after the election it accepted that there should be such a reduction, not as an answer to the West Lothian question but certainly as an alleviation of the problem. I remind noble Lords that it is stated in the White Paper that, Scotland's MPs will continue to play a full and constructive part at Westminster. The number of Scottish seats will be reviewed". That was clearly the position of the Government almost from day one after the election. It certainly argues that that reduction in the number of Scottish MPs at Westminster should take effect as soon as possible. I do not know where the idea came from that it 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. I believe that that is the logic of the situation.

In a debate in the other place three or four years ago I recall arguing that the right mechanism following the creation of a Scottish parliament was the formation of something like an English Grand Committee. That was thought to be rather an off-the-wall idea but it is now commonplace. Sir Malcolm Rifkind has advocated it. The Conservative Party is debating English institutions. All of this is very healthy. I can see no reason for the delay in bringing about a reduction in the number of Scottish Members at Westminster. I say in passing that that issue should not be tied in any way to the future numbers of members of the Scottish parliament. Although the Committee is not debating that matter at the moment, I take this opportunity to remind the Government of what they said in the White Paper. They said that the Scottish parliament would consist of 129 members, 73 directly elected on a constituency basis plus 56 additional members allocated to ensure that the overall result more directly reflected the share of votes cast for each party. There is nothing in the White Paper about reducing the numbers in the Scottish parliament after the numbers in the Westminster Parliament have been reduced. It would be a nonsense to start the Scottish parliament on day one with 129 members and to tell them on day two that 20 or so would be out at the next election. Apart from anything else, we are creating a new building. Let us have a little commonsense about this. Although I do not expect an answer from the Government in relation to this amendment, I hope that they will very clearly separate the two issues.

Lord Mackay of Ardbrecknish

I do not know which of us will be embarrassed the more, but I agree absolutely with everything that the noble Lord, Lord Steel of Aikwood, has just said on both counts. If the Government have accepted that the Scottish quota must move closer to the English quota, or even the UK quota, and that it will result in a redrawing of the Scottish constituency boundaries to reduce the number of Scottish Members of Parliament, frankly the sooner it is done the better. I hope that the Government do not say that it will take a long time to redraw 72 constituency boundaries. I pick out the noble Lord, Lord Desai, partly because he is present and partly because he is such an expert in this matter. I believe that the noble Lord and I could, at great salary and with a few calculators and some demography, easily draw up decent constituency boundaries within about three months. They would not be biased because the noble Lord and I would ensure that they were not. That is the easiest task under the sun. I can never understand why such a meal is made of the drawing and redrawing of constituency boundaries. That could be done easily in time for the next election so that the number of Scottish MPs at Westminster was properly aligned. I picked out the noble Lord in order to demonstrate bipartisanship about the whole process. I am not entirely sure that I can identify a numerate member on the Liberal Democrat Benches.

Lord Fraser of Carmyllie

I am extremely worried that my noble friend is about to commit an act of great political incorrectness. As I understand it, the chairman of the Boundary Commission for Scotland is Lady Cosgrove. I have no doubt that the noble Lord, Lord Desai, is more than capable of achieving such a task within a short space of time. But knowing Lady Cosgrove and her ability to drive things forward, I am sure that she could do it within an appropriate period.

Lord Mackay of Ardbrecknish

I am delighted to hear my noble friend's reference to Lady Cosgrove. I was relying on the track record of previous boundary commissions which appear to have taken years and failed to get their mathematics right. However, that is an issue to which we shall turn shortly. I do not believe that this is a big problem. With determination it can still be done, but it would have been easier to achieve the objective had the process been started some months ago.

The point that my noble friend Lord Rowallan makes in his amendment, and that other Members of the Committee have made, is that if the Government accept that the number of Scottish Members at the other place should be reduced in recognition of the Scottish parliament, then that should happen at the next election. I am absolutely clear about that.

I want to re-echo the second point made by the noble Lord, Lord Steel of Aikwood: the idea that that diminution in the number of Members will somehow trigger a similar decline in the number of members of the Scottish parliament is about the daftest proposal that could be brought up. One hundred and twenty-nine members of the Scottish parliament will be asked to look around and say to themselves, "Am I to be one of the 21 or not?". Nothing could be worse from the point of view of starting off the parliament.

This is one of the most important issues in the Bill so far as concerns the future relationship of the Scottish parliament to the UK parliament. I hope that the Government have reflected on the matter over the Recess. It would be nice were they to follow the noble Lord, Lord Steel of Aikwood, and myself and tell us that they have reconsidered this matter and will detach the membership of the Scottish parliament from membership of the other place, but I am not going to hold my breath. I hope that we hear some common sense about when we will have this reduction in Scottish Members of the other place. If we are going to have it, let us have it at the next election.

Lord Selkirk of Douglas

Does the Minister accept that there is a distinction to be drawn between the number of members of the Scottish parliament and the number of Scottish Members of Parliament in the Westminster Parliament? Because of geographical circumstances, far-flung communities, remote Highlands and Islands communities, the difficulties of air travel to remote communities and the health needs of those who have heart attacks on remote islands and have to be brought in by helicopter if they are to survive, higher expenditure is involved. Because the numbers in those communities are small they need a higher rate of representation than would otherwise be the case.

That is especially relevant for the Scottish parliament. If it is to make a success when it begins, to stop that continuity of provision and reduce the number of members would be a blow to the morale of the Scots parliament. It may be a different matter for Westminster where the West Lothian question still persists. I hope that the Minister will press the case for Scottish Members of Parliament in the Scots parliament and not concede too easily.

Lord Sewel

In this debate we have ranged a little beyond the terms of the amendment. We have again raised the issue of the relationship between the size of the Scottish parliament and the size of Scottish representation at Westminster. We dealt with that point earlier in the Committee's deliberations, and no doubt we will return to it on Report. I think that we will leave it until then.

Before I deal with the details of the amendments it might be of some use were I to explain briefly the purpose of Clause 81 and why we consider it necessary to include it in the Bill.

Clause 81 has two main purposes. First, it removes the requirement for Scotland to have a minimum of 71 seats at Westminster. Secondly, it provides that Orkney and Shetland cannot be included in a Westminster constituency which also includes part of some other local authority area. That is to ensure that Orkney and Shetland will each form a separate constituency in the Scottish parliament as provided in paragraph 1 of Schedule 1 to the Bill.

For the sake of clarity, I should deal with the point made by the noble Lord, Lord Munro. It is not the intention that Orkney and Shetland should be split for the purposes of representation at Westminster. It will remain the constituency as it is. The reduction in the number of Scottish MPs at Westminster is in recognition of the fact that once the Scottish parliament is established Westminster will no longer be the forum for scrutinising much of Scotland's domestic legislation, and the Government have accepted that it is no longer possible to justify the level of representation that Scotland has enjoyed in the other place over the years.

Clause 81 delivers a stable constitutional settlement and meets our commitment in the White Paper to provide independent representation for Orkney and the Shetland Islands within the Scottish parliament.

I shall now turn to the amendments, beginning with those tabled by the noble Lord, Lord Rowallan, and the amendment to Amendment No. 289 tabled by the noble Lords, Lord Monson and Lord Ellenborough. The Government cannot support Amendment No. 289 or even its revised form, Amendment No. 289A. We accept that there is a need to reduce Scottish representation at Westminster as a result of the creation of a Scottish parliament. However, the task of making that reduction must be left to the impartial and, I believe, well respected proceedings of the Boundary Commission. No boundary review should be rushed, especially not one as important as this. It is vital to allow sufficient time for public comment and public inquiries where objections can be raised to the commission's proposed recommendations. That is the flaw in the argument of the noble Lord, Lord Mackay of Ardbrecknish.

Anybody can sit down and draw lines on a map using a calculator to come up with some form of equal mathematical quota for constituencies, but in this area we have always proceeded on the basis of representation and inquiries, which, quite rightly, enable the public and other interested bodies to make representations about the Boundary Commission's initial views. That provision would have to be retained for the job to be done properly, and I suspect that it would require primary legislation to change the procedure that has been adopted heretofore by the Boundary Commission in the way it has proposed parliamentary boundaries.

It is for the commission to decide how it conducts its reviews within the provisions of the Parliamentary Constituency Act 1986, but under its current statutory timetable the earliest it could report would be December 2002. A major review, such as the next one will be, will take at least three years to complete, and the noble Lords' amendment would require the Boundary Commission to complete its review by the first meeting of the Scottish parliament or three months after it; in other words by August 1999. That represents an impossible timetable. The commission would be forced to carry out a review with indecent and improper haste.

If the amendments were made they would ride roughshod over any idea of allowing adequate public response and consultation and the holding of inquiries. I simply do not believe that such a cavalier attitude can be justified in relation to such a sensitive matter. It cannot be right. On that basis, I urge the noble Lords to withdraw their amendment.

Lord Monson

I am grateful to the noble Lords, Lord Monro, Lord Steel and Lord Mackay, for their support. As the noble Lord, Lord Steel, said, reducing over-representation is not a complete answer to the West Lothian problem but it does help to some extent. The Minister has confirmed that the Government are committed to reducing Scottish representation to English levels or thereabouts. The question is when.

With his great mathematical expertise, the noble Lord, Lord Mackay, has assured us that it could be done relatively quickly. The noble Lord, Lord Ellenborough, has pointed out that if something is not done relatively quickly—the amendment we have put forward may be a little too extreme—Scotland could be over-represented by 25 per cent. up until the year 2007. By that time the Scottish parliament will have been in existence for eight years. That seems to me totally unacceptable.

This is a matter to which we shall have to return at Report stage. However, in the meantime I beg leave to withdraw the amendment.

Amendment No. 289A, as an amendment to Amendment No. 289, by leave, withdrawn.

Lord Rowallan

As regards Amendment No. 289, I thank the noble Lord, Lord Steel of Aikwood, and the noble Lord, Lord Mackay of Ardbrecknish, for their support and understanding of my amendment. I was delighted to hear the Minister say that at Report stage we shall return to the issue of whether we are tying the number of MSPs vis-à-vis constituencies. I had thought that he had answered the point, but it is to be considered again.

I cannot emphasise enough—I feel strongly about it—that we are creating a Bill for a new parliament. It is the first of its kind. If we get it wrong, it is no one else's fault but our own. We cannot blame the new parliament when it is set up. We can blame no one but ourselves if we get it wrong. If we do so, the potential catastrophe for this country, for Scotland, is enormous.

We cannot leave the matter until after the parliament is up and running. I disagree wholeheartedly with the Minister. Three years to sort out 72 seats? Lady Cosgrove must be a little shocked to learn that she has to work so slowly. It cannot be beyond the wit of man or woman to come up with a solution. The alternative is so dreadful as regards the Scottish and English backlash that I think that we are heading into big trouble. I want more time to think about it. I shall definitely return to the issue at Report stage. I hope that the Government can do some serious thinking on the matter. This is probably the biggest minefield in the whole of the Bill. It could create so many problems that it could lead to the end of everything.

Lord Steel of Aikwood

Before the noble Lord withdraws the amendment, does he agree that there is no reason why the Boundary Commission could not start now and finish well before the three-year deadline?

Lord Rowallan

That is exactly what I should like to see happen. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Ardbrecknish moved Amendment No. 289B:

Page 39, line 9, at end insert— ("3B. A constituency which includes the Western Isles shall not include the whole or any part of a local government area other than the Western Isles."").

The noble Lord said: In moving the amendment, I speak also to Amendments Nos. 290A and 290B. The amendments seek to do two quite separate things, but I agreed to group them for convenience.

In Amendment No. 289B I seek to give the Western Isles the same privileged position as is given to Orkney and Shetland. The position is quite clear. The Bill states that no other part of Scotland can be added to the Orkney and Shetland constituency. That is one constituency. While that is my reading of the Bill, it is not the reading of my noble friend Lord Monro. I do not complain about that. However, I believe that the Western Isles deserve the same consideration.

When we discussed the matter in relation to the Scottish parliament, the Minister accepted the point I made and expressed his understanding and sympathy. An argument can be and indeed was made before the last Boundary Commission that the Western Isles could be enlarged to include Skye. There are now good transport links between the two. Indeed, there are probably better sea links between Skye and the Southern Isles of North Uist, Benbecula and South Uist than between the Southern Isles and Harris and Lewis in the Western Isles constituency.

Prior to the previous Boundary Commission inquiry there was some discussion about Skye being added to the Western Isles. I can see that proposal being returned to in a future boundary review. Therefore, I want to give the Western Isles the same protection as is afforded to Orkney and Shetland. That is what my amendment seeks to do and I hope that the Minister will view it sympathetically.

My second point on the other two amendments refers to a different issue; one to which I have drawn your Lordships' attention on a previous occasion. I shall try to be brief, but that does not mean that I do not believe the argument to be well-founded. Given the lateness of the hour and the business that has yet to be dealt with, I shall return to the matter on Report.

I am concerned that one of the main qualifications for the Boundary Commission has been a lack of numeracy, or that numeracy has been way down the list of qualifications. The intervention of my noble and learned friend Lord Fraser on behalf of Lady Cosgrove gives me confidence that her ability to count numbers of constituents is greater than that of her predecessors. Frankly, we have seen huge and totally illogical variations in the numbers and members in constituencies.

That is one of the things which leads to odd results at general elections where the proportionality of Members of the other place is quite out of line with the proportionality of the vote. One reason for that is that constituencies are not drawn on a nearly equal basis numerically. I am surprised that so many people fail to understand that and realise that, if we addressed the problem, we would remove part of the argument for going down the disastrous road of proportional representation which we are being invited to take.

I have already reminded the Committee of some of the amazing illogicalities in Scotland. I will give only one example, which is the difference between Edinburgh and Glasgow. Your Lordships will appreciate that, in terms of population density, demography and distance from Westminster, there is not much to choose between Edinburgh and Glasgow. There is much to choose in other ways, but not on those factors. I do not know, but perhaps Edinburgh Members of Parliament are better. Perhaps that is the secret. They manage to represent in excess of 60,000 electors apiece. The figures are 64,000 in Edinburgh Central; 64,000 in Edinburgh East and Musselburgh; 61,000 in Edinburgh North and Leith; 60,000 in Edinburgh Pentlands; 63,000 in Edinburgh South; and 61,000 in Edinburgh West. That is an average of 61,000 to 62,000 per constituency.

On the other hand, Glasgow is represented thus; 53,000, 49,000, 50,000, 50,000, 57,000, 53,000, 48,000, 51,000, 48,000 and 53,000. Not one of them approaches anywhere near the Edinburgh level. I would put the average at 52,000 or perhaps 53,000. There is no logic to that, other than my deep suspicion, which of course is wrong, that over time Edinburgh foolishly elected some Conservative Members of Parliament while Glasgow could be relied on not to do so. There is no "oh, come on" about it. That is the fact of the matter. One constituency less in Glasgow at the last election to bring the numbers up a little would have gone to a part of Scotland where perhaps the Labour Party would not have been guaranteed to pick up a seat the way it knew it could in the rotten boroughs of Glasgow. It is ludicrous and I could give examples of large rural constituencies which in electoral terms are much bigger than any of those Glasgow seats.

I shall give one example because I believe that I ought to be trying to shame the Government. It is not a political point because it is another Labour seat. Poor old George Foulkes in Carrick, Cumnock and the Doon Valley represents 66,500 electors over a huge rural constituency. If the conclusion is that he is a good man, does that mean that all the Glasgow MPs are incompetent, including the Secretary of State for Scotland who has a little tiddler of a constituency because he is unable to look after a bigger one? I do not believe that for a minute. It is totally unjust and ludicrous and therefore I wish to see us take action in legislation to give numbers a greater primacy than they have had in the past.

Of course I can see the justification for Caithness and Sutherland, for example, but I cannot see the justification for the Glasgow seats. My amendment would provide that only five seats outside Orkney and Shetland and the Western Isles should be outside a quota band of plus or minus 5 per cent. of the quota. That would be roughly 52,000 to 58,000. Five seats would be allowed outside it in addition to Western Isles and Orkney and Shetland. I suggest Caithness, Sutherland and Easter Ross is a clear first one. All the others would have to be within that range.

More than half the seats in Scotland are outwith that range at the moment. Some of them that are outwith the range are quite amazing. Some of the ones above the range are among the most difficult seats in terms of distance. Carrick, Cumnock and Doon Valley I have mentioned; Inverness East, Nairn and Lochaber has 66,500; Dumfries has 63,500. It is ludicrous that that should be the case.

As to the smaller constituencies, I cannot think who the MP is for Hamilton South but he is so incompetent that he can only cope with 47,000 constituents. Thankfully he could walk quite slowly from one end to the other in about an hour. It is totally illogical. Your Lordships, by your enjoyment of this, have illustrated that my point is well made. Nobody can defend these outcomes.

I am suggesting—and my point is made—that we really should try to put something in this legislation to tighten down the rules within which the Boundary Commission works and to make primacy of numbers a more important issue than it has ever been in the past. That would mean that the outcome of the first-past-the-post elections for the Scottish parliament and the other place were much more in line—I am not saying accurately in line—with the totality of the votes cast than is currently the case due to the huge imbalance between constituencies. On those two quite different issues, I beg to move.

10.15 p.m.

Lord Sanderson of Bowden

The Boundary Commission is tied up not only with the Parliamentary Boundary Commission but the Local Government Boundary Commission. If my recollection of what has gone on in the past is anything to go by, my thought must be in the case of Glasgow—which is an iniquitous situation—it all starts with the boundaries for the local government scene. Until that is tackled in legislation we shall never get to the right numbers as far as parliamentary boundaries are concerned.

I was not a little annoyed when a High Court judge was appointed to look at the situation in Glasgow and in Inverness, Nairn and Lochaber and came to the conclusion that it was a great idea to have a constituency that went from one sea to the other with 66,500 people but he had to decide that an extra seat in Glasgow was necessary, putting it up to 72 at that stage. It is all wrong. Unless we tackle the local government boundaries and the size of the local government wards in a proper way we will never get to the right numbers as far as parliamentary seats are concerned.

Lord Fraser of Carmyllie

I support my noble friend. The logic of his approach is absolutely correct. It is to recognise that there are parts of Scotland with very real geographical distances and very real areas of sparsity of population where there should be large constituencies with smaller numbers. The figure he gives of five or six seems about right. That must be the correct approach rather than these smaller ones in the centre of Glasgow and elsewhere.

As to his Amendment No. 289B, and the proposition that a constituency which includes the Western Isles should not include the whole or any part of a local government area other than the Western Isles, I am only sorry that my noble friend Lord Lang, does not have his name appended to it. Some will remember that in another place at another time my noble friend described such a proposal before the Boundary Commission as one of being "Give them a Minch and they will take an Isle."

Lord Sewel

I thank the noble Lord, Lord Mackay of Ardbrecknish, for reminding me in Amendment No. 289B of the undertaking I gave on the first day of Committee to consider whether it was necessary to provide in the Bill for a separate constituency for the Western Isles for the Scottish parliament. I said then that I would reflect on the matter. I have done so. I have to say that I am not yet convinced by the noble Lord's arguments.

The Western Isles has formed a separate Westminster constituency for a number of years. I can see no reason why it should not continue to be so in the future. We can leave it to the Boundary Commission for Scotland to decide the appropriate boundaries. The comparison with Orkney and Shetland is not a true one. In the case of Orkney and Shetland, we are working from the present unit of a Westminster constituency—the Orkney and Shetland division—and splitting that into two constituencies for the Scottish parliament. That is why we are required to make special reference to that in the Bill. As the Western Isles already has its own constituency, there is no similar reason to make provision for that on the face of the Bill. So, on reflection, I came to the conclusion that we were not really comparing apples with apples; we were comparing apples with pears to an extent.

Lord Mackay of Ardbrecknish

I am grateful to the noble Lord for giving way. I do not quite follow the noble Lord's logic. If that is logical, why are the Government doing it when it comes to arrangements at Westminster? Currently, Orkney and Shetland are one constituency. There will not be any changes there. Unlike the Scottish parliamentary scene, they will remain one constituency. Why do we not leave that to the good sense of the Boundary Commission? The noble Lord's case is that, because they are splitting Orkney and Shetland in the Scottish situation, they feel they have to put in this point. I do not understand that, but I shall leave it aside this evening.

However, as far as concerns Westminster, they are not making any change to the position. Orkney and Shetland remain as they have been. Why do they have this special provision for Orkney and Shetland for Westminster when the logic of the first argument would suggest that they should not be doing that. They should leave it to the good sense of the Boundary Commission.

Lord Sewel

We are talking about representation in the Scottish parliament. That is why there is a necessity to make this point explicit on the face of the Bill in terms of representation of Orkney and Shetland within the Scottish parliament. There is no similar need to make that point in relation to the Western Isles.

Lord Mackay of Ardbrecknish

With all due respect, the rubric to Clause 81 says "Scottish representation at Westminster". That is what Clause 81 is about. So I do not see why we need the part about Orkney and Shetland at all. Nothing is changing. They are not being split in two; or are they? Are there going to be two constituencies at Westminster? It is totally illogical.

Lord Sewel

The key to this is in subsection (3), which states: After rule 3 there is inserted … '3A. A constituency which includes the Orkney Islands or the Shetland Islands shall not include the whole or any part of a local government area other than the Orkney Islands and the Shetland Islands'". That is the building block which enables us then to make the provision for separate representation within the Scottish parliament for the Orkney Islands and the Shetland Islands.

Perhaps I may move on to Amendments Nos. 290A and 290B. As a former principal teacher of mathematics at Oban High School, I recognise that quotas and mathematical formulae loom large in the mind of the noble Lord, Lord Mackay of Ardbrecknish. I have a strong degree of sympathy for the noble Lord's point that a mathematical balance should be taken very seriously into account. As I understand Amendment No. 290A, if I have interpreted it correctly, the noble Lord is simply attempting to ensure that most of the constituencies of the Scottish parliament are broadly of a similar size. That was a strong point which he made in his contribution.

The noble Lord has tabled his amendment to address his concerns about the Boundary Commission creating small constituencies predominantly in urban areas while allowing some geographically large rural constituencies to have a greater number of electors. That was one of the main points of his arguments.

The rules for determining constituency boundaries in the 1986 Act already include a rule that the electorate of a constituency is as near as is practical to the electoral quota. That is an instruction and a condition which the Boundary Commission already has regard to in carrying out its work. However, it is also given the flexibility to take a number of other factors into account; in particular, special geographical considerations, including the size, shape and accessibility of a constituency. In determining constituencies, it may take into account also boundaries of local government areas and the existence of any local ties.

The noble Lord is really trying completely to down-play all those other factors, whereas I can say from my experience of local government that they were the very factors which often caused the greatest local reaction when the Boundary Commission's initial proposals were published. People thought that the sense of belonging and ties were being broken, and broken in an arbitrary way, in order to achieve some form of mathematical quota. The approach which the noble Lord, Lord Mackay, offers is too arbitrary. We should allow the Boundary Commission the same flexibility that the commissions in England, Wales and Northern Ireland already have.

The noble Lord has drawn our attention also to the current discrepancy in electoral size. The points he makes are rightly made. Almost two-thirds of all the current constituencies are either 5 per cent. larger or 5 per cent. smaller than the current electoral quota of 55,500. I argue that that shows that it is impractical to expect 90 per cent. of all constituencies to be within 5 per cent. of the electoral quota. As I say, the Boundary Commission is working from a framework which gives it an electoral quota and a requirement to have that very much in mind. I certainly would not make the point that the Boundary Commission, very largely, I suspect, appointed by a previous government, is full of political stooges in any way, shape or form. They are honourable people trying to do a difficult job. But in trying to reach an acceptable outcome they have found it impossible to achieve that very close bunching around the electoral quota of 55,500 electors. If that is done, it produces constituencies which fail to have any grounding, any base or any identity.

10.30 p.m.

Lord Sanderson of Bowden

I thank the Minister for giving way. If the quota for the local government wards in Glasgow is set at too low a level—he pointed out that local government wards do have to be co-terminus—for instance, if one has a multiplication of three towards a parliamentary constituency in Glasgow, one ends up with the situation that one has in Glasgow where there is a lower electorate in each parliamentary constituency, as opposed to the situation in Edinburgh. Is not that something that goes back to the local government Boundary Commission's remit? It ought to look carefully at the whole of Scotland and decide what the quota should be for the local government wards.

Lord Sewel

The noble Lord has a point. As I indicated, the Boundary Commission can take into account—and effectively does—the local government divisions. I refer the noble Lord to the fourth report of the Boundary Commission specifically concerned with Glasgow and the arguments that it adduced to produce its final recommendations.

Perhaps I can return to the general argument. Much has been made of the over-representation of the central belt, particularly Glasgow. We want to ensure that we have a parliament which clearly represents the diversity of Scotland, and the electoral arrangements provided for in the Bill ensure that all areas will be properly represented. In looking at that, it is necessary not just to look at the constituency representation, but to bear in mind the modification that comes about by the application of the regional additional member factor. That is a point that has not been raised and has not been recognised by the noble Lord, Lord Mackay of Ardbrecknish, in his arguments.

Seven regional members will be elected from each of the eight regions. That means, in absolute terms, that there will be only two members more from Lothian and Glasgow combined than from the most rural regions of the Highlands and Islands and the South of Scotland. To put it another way, with 26.4 per cent. of the electorate, Glasgow and Lothian will have 25.6 per cent. of the seats. Highlands and Islands and South of Scotland, with 21.1 per cent. of the electorate, will have 24 per cent. of the seats. It is through the constant regional representation coming into play that one gets that broad balance between urban and rural areas.

Lord Mackay of Ardbrecknish

I am very impressed by that, but we are talking about a clause which deals with Scottish representation at Westminster where we do not have regional representation. We are actually talking about the House of Commons.

Lord Sewel

As I understood it, we were talking about the representation to the Scottish parliament.

Lord Mackay of Ardbrecknish

Perhaps I can help the Minister by another intervention and say that Clause 81 begins: Schedule 2 to the Parliamentary Constituencies Act 1986 (rules for redistribution of seats) is amended as follows". That concerns Westminster. The note at the side says, "Scottish representation at Westminster". So we are actually discussing Scottish representation at Westminster, not representation in the Scottish parliament. I accept that I may be reading the Bill wrongly. But we are on a totally different argument if we are now saying that the regional seats somehow sort out the balance. I do not believe that they do. But that is not the argument here; the argument here is about Westminster.

Lord Steel of Aikwood

During this interregnum perhaps I may point out that I do not believe that the Minister was talking about the regional seats, but of the regional balance within Scotland. He was quite legitimately making the point that the rural areas of Scotland have, on the whole, a lower quota of members per constituency than urban areas and I thought that a fair point. Perhaps if he finishes with it we can get on with the next amendment.

Lord Sewel

We are dealing at this point with Scottish representation at Westminster under Clause 81 in that it has an effect on the composition of the Scottish parliament.

Lord Monro of Langholm

Perhaps the noble Lord can answer one question. There is obviously great concern in the House about the delay in redrawing the boundaries for Westminster. He has made his case that there is not time to do it. Can he ask the chairman of the Boundary Commission between now and Report stage whether she can carry it out in good time for the next election?

Lord Sewel

I believe that we dealt with that amendment in the relevant clause.

Lord Mackay of Ardbrecknish

If it were not for the fact that there are many important things to be done, we could go on discussing this matter for some time. I believe that we were in total confusion, as the Minister will discover when he reads what he said. I accept that the changes in Clause 81 as regards Westminster will have a knock-on effect for the Scottish parliament. That is a point that the noble Lord, Lord Steel, and myself do not like at all. But it starts off by having an effect at Westminster because of a re-drawing of the Westminster constituency boundaries. When that is done the argument about regional representation on the second vote does not exist. It is not relevant at all.

I hope that the Minister did not really believe the argument that he was asked to put forward. I think that that is the kindest thing I can say. He made no attempt to address my Glasgow-Edinburgh point. There can be absolutely no argument, on any of the grounds he mentioned, for creating seats of very different sizes. There can be no argument between Edinburgh and Glasgow although there can be huge arguments between the Border and Highland seats although that collapses when one looks at Inverness and Lochaber. There can be good arguments about those and the city seats, but there cannot be any argument along the lines put forward by the Minister for the seats in Edinburgh comprising 61,000 or 62,000 and the seats in Glasgow averaging out at about 52,000 or 53,000. There has been no argument at all and that is indefensible. The only defence was the one everyone knows, namely, that the Boundary Commission ran scared at the hearings of the Labour Party and its particular might in West Central Scotland. That is the only explanation because, as my noble friend Lord Sanderson rightly pointed out, if one more seat is given to the Highlands and Aberdeen, which richly deserve it, it would be necessary to take a seat away from Glasgow and that, it was said, could not be done. It is pathetic.

Lord Sewel

At this stage it would be appropriate if the noble Lord paused and reflected on what he said about the Boundary Commission—a major slur on the way in which an independent and respected body has carried out a difficult job. I have been involved in appeals before the Boundary Commission and the outcome has not always gone the way I would have liked. I would certainly not make the accusation that it has run scared as a result of any political fear or pressure. It is important, when we have independent bodies such as the Boundary Commission charged with doing difficult jobs, that we do not undermine their authority and impartiality. I hope that the noble Lord will reflect on what he said.

Lord Mackay of Ardbrecknish

I shall reflect on it. My reflection is that as I have not had a convincing answer for the conclusion it has come to—and I shall modify my remarks—it was perhaps over-persuaded by the might of the case presented to it by the Labour Party because that is what must have happened. The case presented to the Boundary Commission by the Labour Party was so overwhelming in its arguments that it decided that Glasgow deserved to have very small constituencies in comparison to Edinburgh and the rest of Scotland. If we put it like that, perhaps everybody's honour is satisfied and the Labour Party can preen itself for its brilliance and persuasiveness and the advocates that it chose to do the persuading. I do not know whether the noble and learned Lord the Lord Advocate was one of them in a previous existence, but if he was, he should take that as a tribute. However, we cannot get away from the point that the Government have made no attempt to explain why there is a difference between Glasgow and Edinburgh.

When the Labour Party told me that it is so important that local connections are taken into account, I just thought about Alloway and Ayr. Alloway and Ayr were removed from the Ayr constituency and put into that of Carrick, Cumnock and Doon Valley. That move was opposed by the Conservative Party, it has to be said, and approved by the Labour Party. The findings of the ultimate body agreed with the commission because that would have split local government boundaries. The fact that it completely split communities of interest was neither here nor there. I think that is—if I can use the word—"twaddle", and I hope that the Minister does not believe it.

The exchange that we have had has been puzzling because I do not think that the Government really understand what they are doing here. I did not understand the logic of the argument about Orkney and Shetland. It seems to me, in relation to Orkney and Shetland, that we do not need this part of the Bill at all. I shall carefully study what the Government say. As I understand it, this is required in order to pave the way for the split seat at the Scottish parliament, due to the linkage between the two. That seemed to me to be the nearest that I could get to a logical argument. I may well come back to the point by removing the special provision for Orkney and Shetland here and putting that constituency on the same basis as the Western Isles. They can put their faith, as the Minister clearly has put his faith, in the Boundary Commission. If the Western Isles have to put their faith in the Boundary Commission, I do not see why Orkney and Shetland should not put their faith in the commission as well. The Committee will not be surprised that I shall advise the Western Isles not to do so.

On the second point about numeracy, I have heard all that the noble Lord has said, and he has not convinced me at all. I have perhaps drawn it quite tightly at plus or minus 5 per cent., but I believe he could have persuaded me to go a little wider. I firmly believe that if we are to continue with first-past-the-post elections in this country, we shall have to address the question of a better distribution of seats as far as numbers are concerned. That is perfectly possible. As I understand it, the United States' House of Representatives redraws the boundaries every two years in order to have elections, to that house, on the basis of equality. They go for equality in a very big way. If it can be done in a country as large as the United States, it can certainly be done in a country as small as Scotland. I beg leave to withdraw my amendment, but I am not pleased with the Government's answers.

Amendment, by leave, withdrawn.

[Amendments Nos. 290 to 290B not moved.]

Lord Lyell

At this point, I wonder whether it would be in order to ask the Minister a question. I have to declare an interest in that 113 years ago my great-grandfather was a Member of Parliament at Westminster for Orkney and Shetland. He was, by the way, a Liberal, but far to the right of Ghengis Khan, so far as I am aware from the Kinnordy papers. Could the noble Lord advise me tonight or at a later stage of the geographical content of paragraph 3A—at lines six to nine inclusive on page 39—which he read out? Is there any alteration in the geographical area of what clearly was then, and is now, the constituency of Orkney and Shetland? From what he was saying earlier, I wondered whether the redrawing of the constituency might include some part of the mainland, but I put that out of my mind. Are there any other areas or islands that might be outwith the local government area? Is there any change in the geographical boundary or not?

Lord Sewel

I believe the answer to that is no.

10.45 p.m.

On Question, Whether Clause 81 shall stand part of the Bill?

The Earl of Mar and Kellie

I wish temporarily to oppose the Question that Clause 81 stand part of the Bill. The clause deals with Scottish representation at Westminster—but only with constituency representation in the other place. That is quite inadequate. It is important that there also be Scottish representation in this House. Bills with Scottish content will continue to be scrutinised in this House. There is a need for a guaranteed number of active or working Peers who are domiciled in Scotland.

I stress that, of the 27 working Peers announced in the summer who are now being introduced into your Lordships' House, not a single one is domiciled in Scotland, Wales or Northern Ireland. That does not bode well for the future. The unspoken charge has to be one of packing the House with English working Peers. I have examined the list of the 104 Peers who have been created since May 1997 and I can identify 11 who are domiciled in Scotland, but not all of those 104 are working Peers. The figures show that 78 are notionally working Peers, two are Lords of Appeal, seven are Peers as a result of the Birthday Honours, 10 as a result of the Resignation Honours and four as a result of the New Year Honours.

I hope to hear a satisfactory explanation of why there is no mention of Scottish representation in this House in this Bill. The credibility of the devolution settlement depends on there being a guaranteed number of working Peers who are domiciled in Scotland and who will scrutinise the Scottish content of UK legislation. Such an inclusion would be entirely within the spirit of the Treaty and the Act of Union.

Lord Sewel

I do not think that my briefing will help in this regard. I am sure that there will be a continuing number of working Peers domiciled in Scotland who will be active in your Lordships' House, but it would be most inappropriate in this Bill to make any reference to any requirement for a specific number of working Peers to come from one particular component of the UK. The great virtue of this House is that it works—some would say "reasonably effectively"; others would say "not quite as effectively as would a reformed House"—and that it works without any rules governing its geographical composition. I think that we should leave it there.

Clause 81 agreed to.

Clause 82 [The Advocate General for Scotland]:

Lord Mackay of Drumadoon moved Amendment No. 290C:

Page 39, line 23, at cnd insert— ("(1A) The Advocate General for Scotland shall be qualified as either—

1. (a) an advocate, or
2. (b) a solicitor under the Solicitors (Scotland) Act 1980.").

The noble and learned Lord said: This is the first of two amendments dealing with the position of the Advocate General for Scotland who is referred to in Clause 82. The amendment raises the issue of the legal qualifications that should be held by the person who becomes a member of the United Kingdom Government and holds the new post of Advocate General for Scotland. Although in a number of instances the Bill refers to certain rights that the Advocate General will have—in particular in Clauses 31 and 32, which deal with the pre-legislative scrutiny of Bills by the Judicial Committee of the Privy Council, and in the provisions of Schedule 6 dealing with the resolution of devolution issues—nowhere in the Bill is there a full definition or description of the role which the Advocate General will play. Undoubtedly, the first and subsequent holders of that new office will have to establish themselves in Whitehall and have an office to support them in their work.

While listening to the debate earlier in relation to Amendment No. 289 moved by my noble friend Lord Rowallan and the contributions made by the noble Lord, Lord Monson, and others, it struck me that it is reasonable to anticipate that in the months and years ahead it will be difficult for Scottish MPs in Westminster to play quite as active a role in the affairs of the other place and to play as active a role as members of the Government as they have done up until the present time. Indeed, politicians of all parties are questioning whether there should be a reduction in their number, whether it is right that they should hold ministerial positions in departments such as the Home Office and whether they should participate in debates in another place which are restricted to English-only affairs.

It is against that background that the new post of Advocate General will require to be established. It will remain to be seen whether the one individual who will hold that post will be able to achieve as much influence in the affairs of Whitehall as the Lord Advocate and the Solicitor-General have done in the past and as they currently do with the present Government. They advise the Government on a wide range of legal issues which have UK implications, they make an input into policy formation where a legal input is required and they play a role in the legislative business of one or other—or, indeed, both—Houses of Parliament.

The amendment seeks to make it clear that the Advocate General must be either an advocate, a member of the Faculty of Advocates, or a solicitor under the Solicitors (Scotland) Act 1980. The reason why reference is made to Section 8 of the 1980 Act is to make it clear that the category of solicitor being referred to is one who is qualified to practise as a solicitor in Scotland and to be admitted to the roll of such solicitors, kept by the Law Society in accordance with its statutory duties.

Some Members of the Committee may recall that a previous amendment—namely, Amendment No. 255Q—raised a similar issue in relation to the qualifications of the Lord Advocate and the Solicitor-General, in respect of whose appointments certain provision is made in the Bill. When I moved that amendment, which sought to make it possible for a solicitor to serve as a Scottish Law Officer, I was met with opposition from the Government—founding on a memorandum written by the Lord President of the Court of Session in 1924 which had been submitted to the Prime Minister of the day after the new Labour Government under Ramsay MacDonald had mooted the idea of appointing a well-known Glasgow solicitor who was a Member of Parliament, a man who certainly subsequently became, if he was not already in 1924, a highly respected and much-loved Glasgow solicitor, Rosslyn Mitchell, as the Lord Advocate. In the event, they did not do so and it is of some amusement to reflect that they ended up appointing a Mr. MacMillan, as he then was, whose political affiliations were that he had once been selected as a unionist candidate. I have to say that he did not last very long in the post; indeed, a mere nine months.

As I indicated previously, this whole issue of the qualifications of the Lord Advocate and the Solicitor-General will need to be debated again on Report. However, in the light of what has changed in Scotland as regards the role which solicitors play in the legal work, not only with the extended rights of audience that they now have but also the very high-powered and detailed advisory work that they carry out in a huge range of subjects, we on this side of the Committee firmly believe that it would be quite wrong when looking to the future to restrict the new role of Advocate General only to members of faculty.

Clearly it will be competent for the Advocate General to initiate certain legal proceedings. It will be competent for him to be convened as a party to other legal proceedings. If he is a member of Faculty, he can, if he so chooses, appear on his own behalf or he can, as other Law Officers have done in the past, instruct counsel to appear on his behalf. Indeed in the past, particularly in civil matters, it has not been uncommon when the British Government are challenged in court, and a Minister is judicially reviewed, for the Law Officers not to appear but to instruct counsel independently of the Government altogether.

It seems to me that in choosing an Advocate General the United Kingdom Government should have free range to look for a lawyer, whether he be an advocate or a solicitor. It is for that reason that this amendment is proposed. The amendment has the full support of the Law Society, which drafted this amendment and Amendment No. 255Q. Last week I received a letter from the President of the Law Society indicating support for the view that this provision should be stated on the face of the Bill. The letter states: The society is of the view that either an advocate or a solicitor should be entitled to be appointed as Advocate General for Scotland. The important issue is that the person so qualified should be the right person for the job. irrespective of to which branch of the legal profession in Scotland he or she belongs". I beg to move.

Lord Hope of Craighead

I wish to say a few words in support of the principle of the amendment. As the noble and learned Lord, Lord Mackay of Drumadoon, mentioned in his introduction, the Advocate General appears in one or two provisions in this Bill but remarkably little is said about him or her as to qualifications. From the point of view of the court—I think both of the Privy Council and, with respect, of the Court of Session—the Advocate General will be a person of some importance. One of the things that he can do, as indeed can the Lord Advocate, under this Bill is refer a question about the competence of a measure of the Scottish parliament to the Privy Council for its decision. It may well be that if the Lord Advocate were to refer such a question to the Privy Council, the Privy Council would wish to seek the views of the Advocate General too in order that it may be properly informed about the issue.

In Schedule 6 we see that the Advocate General is included in provisions about the institution of proceedings in the courts and that a court or tribunal before which a devolution issue is raised must intimate the fact that proceedings have been raised on such an issue both to the Advocate General and to the Lord Advocate. Therefore from the point of view of these proceedings it is of great importance that we should know what the proposals are about the qualifications that this member of the government is to have.

From my point of view the most important thing is that it should be clearly understood that this Minister of the Crown should be someone who has a proper qualification to advise the Government and indeed advise the court on matters of Scots law. In the past, of course, one has turned to members of the Faculty of Advocates for that qualification. However, the proposal which is put forward now is certainly not without precedent as regards qualifications for appointment to the Bench. I would not wish to go into the detail but it may be appropriate to include a reference to solicitors as potential candidates for appointment. But from my point of view the important thing is the requirement of a Scottish legal qualification to ensure that this Minister can perform the functions that are required of him by the Bill and those which are implied by his position, which are those of advising the Government on matters relating to Scots law.

11 p.m.

Lord Fraser of Carmyllie

I welcome the probe that my noble and learned friend Lord Mackay has introduced with this amendment and the comments made by the noble and learned Lord, Lord Hope.

Subsection (1) of Clause 82 seems to start well but finishes badly. As we look to the schedule and to the Ministerial and other Salaries Act 1975 we find that the Advocate General for Scotland is to fall in provision after the Solicitor-General for Scotland. That would seem to accord him a certain status. If he is to have that status in government one would expect him, albeit a new constitutional creature, to have the status of a law officer. I regard it as wholly desirable that the United Kingdom Government should be advised on matters of Scots law by someone who has both qualification and experience in the law of that part of the United Kingdom. To that point I am reassured.

However, in subsection (3) I discover that, If that office is vacant or the Advocate General is for any reason unable to act, his functions shall be exercisable by such other Minister of the Crown as the Prime Minister may determine". Does that mean that some junior Minister at the Home Office who maybe went to a Scottish university and once had a brush with the Procurator Fiscal is to assume the role of offering advice to the United Kingdom Government on these important matters? It is a real issue. There is no necessary restriction, as I understand it, on how long a Prime Minister might consider leaving the office of Advocate General vacant. It might be for a protracted period. We need to understand what this new constitutional creature is to be. What is to be his status in the United Kingdom Government and what is to happen if he is unable to perform his duties? It is extraordinary so far as subsection (3) is concerned that he should seem to be put in a position that is no different to that of any junior Minister.

As I am sure the noble and learned Lord the Lord Advocate recognises from the position that he presently holds, the advice that a Law Officer gives to government occupies a separate status within our constitution. During the period of the Thatcher administration there was at least one Secretary of State who I guess to this day regrets revealing the advice he received from a Law Officer.

I am interested to know, if the Advocate General when his office is vacant is to have his functions exercised by some other potentially very junior Minister, whether what he or she has to say in such circumstances enjoys the sort of status that the opinion or advice of a Law Officer enjoys; or is it to be in exactly the same category as any other views expressed by Ministers in government?

It is important that we understand what is to be the position of the Advocate General. Is he truly a law officer? Is he in some way a hybrid character whose task can be fulfilled by someone with little or no legal qualification? If that is the case, I consider it to be thoroughly undesirable. If the distinctive status and importance of Scots law are to be maintained within the United Kingdom Parliament, we wish to see him, and rightly so, as someone who is both qualified and experienced in the law of Scotland.

Lord Rodger of Earlsferry

I support the remarks of my noble and learned friend Lord Hope of Craighead. The post of Advocate General is a new one. We cannot fall back on any conventions as to the status of the person who would be appointed. Therefore there is nothing to tell us what this person would be.

I have no doubt that the noble and learned Lord the Lord Advocate will tell us that a Scottish lawyer would be appointed. It is, however, a post of particular sensitivity. I suspect that the post will prove to be a bed of nails for the holder. He or she is unlikely to win many friends. It will be a difficult post.

It is therefore imperative, because of the sensitivity of the legal issues and the potential for political and constitutional difficulty in some of the decisions which would fall to be taken, that that person should be a person who holds a Scottish legal qualification and a person of the very highest standing. I can therefore see no disadvantage and every advantage in putting the minimum qualification on to the face of the Bill so that we can be assured that the Advocate General will indeed be a person who has a Scottish legal qualification. I can see no reason why it should not be open for this office to be held by a solicitor of distinction as much as by an advocate of distinction.

It is important that these matters should be set down and understood. If what happened in 1924 shows anything, it is that these crises can emerge of a sudden, out of a clear blue sky, when the whole position is uncertain. It would be unfortunate if the position were left uncertain; it would be much preferable if the matter were simply dealt with on the face of the Bill.

Lord Selkirk of Douglas

It seems that the case advanced by my noble and learned friend Lord Mackay of Drumadoon is unanswerable. It has been strongly supported by the Lord Justice General and President of the Court of Session. It is obviously necessary for the Advocate General to have the necessary expertise for that function, especially in cases of emergency. If I may say so, if the noble and learned Lord the Lord Advocate were in an aircraft hurtling towards the ground, he would very much want to have someone at the controls who was highly qualified and had the necessary expertise in order to ensure a successful outcome. I am sure that that should be the situation with this post in case of emergency in the future.

Lord Hardie

I can assure Members of the Committee and the noble Lord, Lord Selkirk of Douglas, that I certainly would wish to have someone competent at the controls of the aircraft, just as I am sure the Prime Minister would wish someone with appropriate expertise in Scots law to be appointed to the new office of Advocate General.

The amendment would require the Advocate General for Scotland to be legally qualified in Scotland, as either an advocate or a solicitor. I agree entirely with what has been said by Members about the principle that whoever is appointed to this post should have appropriate standing and qualification in Scots law to enable him or her to advise the United Kingdom Government. The only points between us are whether it is necessary to put on the face of the Bill what the qualifications have to be and whether the qualifications set out in the amendment are the appropriate ones.

If one starts from the principle that the person appointed should be someone who has appropriate qualification and expertise in Scots law, it may be that such a person exists who is neither an advocate nor a solicitor. For instance, there may be a professor of law who is not a member of either profession. There may even be a sheriff who is not a member of either profession or a member of the Law Society of Scotland. Having said that, I suspect the answer to the latter point would be that a sheriff would probably have been qualified under the solicitors' legislation or as an advocate, so perhaps that last example was a bad one. Certainly the professor of law would be an example of someone who had the necessary academic experience but may also have had the experience of giving opinions to people on constitutional and other matters. Accordingly, if there is to be any qualification on the face of the Bill, the amendment would be drawn too narrowly and restrictively as far as the choice available to the Prime Minister is concerned.

As noble Lords will be aware, the offices of Lord Advocate and Solicitor-General are held by custom by members of the Scottish Bar. It has not been felt necessary in the past to prescribe the qualifications for those offices. It is not clear why that should be necessary in respect of the new office. Effectively, although the office of Advocate General is new, it will have functions similar to those held by the Lord Advocate. He or she will have to give advice to the United Kingdom Government on Scots law and the Advocate General will be required to represent the UK Government in litigation. There are also particular functions in relation to devolution in Schedule 6. It is clear that the United Kingdom Government would wish only to appoint a Scots lawyer of appropriate standing to fulfil those ministerial duties. However, the Government question whether it is necessary to set out on the face of the Bill what those qualifications should be. I believe that this is a matter that should properly be left to the discretion of the Prime Minister of the day.

I suggest that the question of the possible appointment of a solicitor to this office is not appropriate to this Bill. The advent of rights of audience for solicitors and solicitor-advocates may well give rise to a question as to whether it is appropriate for the Advocate General to be drawn from their ranks as well as the Faculty of Advocates. I suggest to the noble and learned Lord, Lord Mackay of Drumadoon, that it would be appropriate to consult a number of interests before proceeding along this line. In view of the wide range of the Advocate General's responsibilities, both formal and informal, it is essential that he commands the full confidence of the courts. Ultimately, the question of who should be appointed is a matter for the Prime Minister of the day. Someone of standing in the law will undoubtedly be required. Why should we confine the choice of the Prime Minister to advocates and solicitors? Why should the Prime Minister not be entitled, if he thinks it appropriate, to appoint a professor who is not a member of either branch of the profession?

I turn to the point raised by the noble and learned Lord, Lord Fraser of Carmyllie. The purpose of the subsection is to deal with the situation in which there is a temporary vacancy and to mirror the situation which applies in relation to the Lord Advocate. If the Lord Advocate is temporarily absent or the office is temporarily vacant, then the duties of that office are fulfilled by the Solicitor-General for Scotland. It was felt necessary to have a provision to enable the duties to be performed during a short period of time pending the appointment of a replacement Advocate General. This subsection arises because there is no second Scottish law officer to the United Kingdom Government.

Lord Fraser of Carmyllie

I am very grateful for the explanation just given by the noble and learned Lord. I appreciate that in the event of, say, the sudden death of the Advocate General something may have to be done. I just wonder whether at Report stage the noble and learned Lord will, given the argument that he has just advanced, accept an amendment tabled by me based on the temporary vacancy of the office of Advocate General. Would that satisfy the noble and learned Lord?

Lord Hardie

As always, I shall consider any amendment that the noble and learned Lord tables at the appropriate time. If he chooses to table such an amendment, it will be given appropriate consideration. With those explanations, I invite the noble and learned Lord to withdraw his amendment.

Lord Mackie of Benshie

Will the noble and learned Lord answer a question from me on this important matter? Can he think of another suitable example other than a professor of law?

Lord Hardie

The examples that I gave were thought up as I sat on the Front Bench. At present I cannot, but I should not want that to be taken as indicating that there are no other examples.

Lord Mackay of Drumadoon

As I understand what the noble and learned Lord said, the position may be slightly different from what was said in relation to the previous amendment, where I understood the response was that it would not be appropriate for a solicitor, whatever his qualifications and experience, to be Lord Advocate or Solicitor-General. The noble and learned Lord asked me, "Why confine the Prime Minister"?. In the Bill the Government are seeking to create a new post—that of Advocate General for Scotland. For the reasons advanced so eloquently by the noble and learned Lords, Lord Hope and Lord Rodger, it is important that the qualifications for holding that post should be on the face of the Bill.

I regret to say that I do not find the answer acceptable. There is an important point of principle here as to whether the Government accept that a solicitor could hold the post. I seek to test the Committee's opinion.

11.16 p.m.

On Question, Whether the said amendment (No. 290C) shall be agreed to?

Their Lordships divided: Contents, 21; Not-Contents, 46.

Division No. 2
CONTENTS
Balfour, E.	Lyell, L.
Biddulph, L.	Mackay of Ardbrecknish, L.
Chesham, L.	Mackay of Drumadoon, L.
Clyde, L.	Monro of Langholm, L.
Courtown, E. [Teller.]	Montrose, D.
	Newton of Braintree, L.
Ellenborough, L.	Rowallan, L.
Fraser of Carmyllie, L.	Sanderson of Bowden, L.
HolmPatrick, L.	Selkirk of Douglas, L.
Hope of Craighead, L.	Sempill, L. [Teller.]
Kintore, E.	Stair, E.

NOT-CONTENTS
Alli, L.	Hunt of Kings Heath, L.
Amos, B.	Irvine of Lairg, L. [Lord Chancellor.]
Bach, L.
Brooks of Tremorfa, L.	Jay of Paddington, B. [Lord Privy Seal.]
Burlison, L.
Carter, L. [Teller.]	Linklater of Butterstone, B.
Clinton-Davis, L.	McIntosh of Haringey, L. [Teller.]
Crawley, B.
Davies of Coity, L.	Mackie of Benshie, L.
Davies of Oldham, L.	Mar and Kellie, E.
Dean of Thornton-le-Fylde, B.	Monkswell, L.
	Pitkeathley, B.
Desai, L.	Ramsay of Cartvale, B.
Dubs, L.	Rea, L.
Evans of Parkside, L.	Rendell of Babergh, B.
Falconer of Thoroton, L.	Sewel, L.
Farrington of Ribbleton, B.	Simon, V.
Gordon of Strathblane, L.	Smith of Gilmorehill, B.
Goudie, B.	Steel of Aikwood, L.
Grenfell, L.	Thornton, B.
Hacking, L.	Tomlinson, L.
Hardie, L.	Uddin, B.
Hayman, B.	Watson of Invergowrie, L.
Hoyle, L.	Whitty, L.
Hughes of Woodside, L.	Williams of Mostyn, L.

Resolved in the negative, and amendment disagreed to accordingly.

11.23 p.m.

Lord Mackay of Drumadoon moved Amendment No. 290D:

Page 39, line 28, at end insert—

("(4) The Advocate General may appoint persons to be members of the Advocate General's Secretariat.

(5) The Advocate General's Secretariat shall include a Legal Secretary and First Scottish Parliamentary Counsel and such additional Scottish Parliamentary Counsel as the Advocate General shall deem necessary.

(6) No person may serve as Legal Secretary to the Advocate General or as a Scottish Parliamentary Counsel, unless he is qualified as either—

1. (a) an advocate, or
2. (b) a solicitor under the Solicitors (Scotland) Act 1980.").

The noble and learned Lord said: This is the second of the amendments dealing with the position of the Advocate General. It seeks to raise an issue relating to what is described in the amendment as "the appointment of the Advocate General's secretariat".

It is necessary to understand the background of the amendment and its relationship to the future work of your Lordships' House by outlining the present arrangements for supporting the Scottish Law Officers in their work. This may be known to some noble Lords, but probably not to all.

In London, the Lord Advocate maintains an office known as the Lord Advocate's Department where there are based a number of very experienced lawyers who constitute the team of Scottish parliamentary counsel. The senior official in the department, who currently holds a very high grade in the Civil Service, is appointed to the post of Legal Secretary and First Scottish Parliamentary Counsel. To assist him in his work, he has a number of legally qualified colleagues. The legal staff in the department act as parliamentary draftsmen and assist the two Scottish Law Officers in the advisory work they carry out in tandem with their English counterparts, the Attorney-General and the Solicitor-General.

The Scottish parliamentary draftsmen are entirely responsible for the drafting of Bills that deal only with the law of Scotland. They also draft Scottish provisions in Bills such as the Crime and Disorder Bill, which was considered by your Lordships' House during the current Session, in which a number of the provisions relate only to England and Wales and others relate only to Scotland. A further aspect of the drafting work is in relation to legislation which has UK application, for example, that relating to misuse of drugs.

In addition to drafting work, officials help the Scottish Law Officers in connection with the Lord Advocate's membership of various Cabinet committees dealing with the approval of legislation, helping him to advise on the ECHR implications of proposed legislation, and the like. A third aspect of their duties is the opinion work.

After devolution it is clear that some of the drafting work currently undertaken will disappear: it will be done in Scotland by draftsmen working to support the Scottish executive in presenting legislation to the new parliament. However, there will remain a fair amount of work in London in connection with legislation going through this House and another place—drafting which is necessary to take account of the particular circumstances and principles of Scots law and scrutiny of draft legislation to ensure that if it is intended to apply on a UK basis it is compatible with the existing common law of Scotland and does not unintentionally serve to amend that law in a way which was not proposed.

In my submission, in carving out this new role as I have described it—the bed of nails, as the noble and learned Lord, Lord Rodger of Earlsferry, described it—it is entirely appropriate that the Advocate General should be supported by officials who hold qualifications which entitle them to practise in Scotland, whether as advocates or solicitors. They can possess those qualifications only if they have studied Scots law and passed certain examinations, whether at university or through the Law Society or the Faculty of Advocates, in connection with that law.

It is for that reason that I put forward the amendment. It is essential to the work of this House and another place that in the years to come the legislation which we are invited to scrutinise and pass has been properly drafted and scrutinised, long before it reaches us, by a draftsman schooled in the law of Scotland.

In view of the fact that after devolution there will be only one Scottish Law Officer, it is quite possible that that Law Officer will not be a Member of your Lordships' House. He or she can be a Member of only one House. In the years to come, through membership of your Lordships' House of Lords of Appeal in Ordinary, and in other ways, no doubt there will be some Members of your Lordships' House who have practised or still practise as Scottish lawyers. But there may not be a Scottish Law Officer as such. That seems to me to make it even more important that the Government clearly indicate to the Committee, and to the wider public, their plans for ensuring the proper drafting and scrutiny of legislation to take account of Scots law. I beg to move.

11.30 p.m.

Lord Hardie

As was mentioned in connection with the previous amendment, the Advocate General will be the Scottish Law Officer of the United Kingdom Government. Like any other member of the United Kingdom Government, the Advocate General ought to be able to create whatever posts are needed within his or her own department and to decide what qualifications holders of those posts should have.

At best, therefore, these amendments are unnecessary. At worst, they could damage the ability of the Advocate General to organise his or her department in the best and most efficient way. The Advocate General should have the same powers in this regard as the Lord Advocate to appoint his own staff, who become members of the Civil Service. It would be inappropriate to specify in statute how the Lord Advocate should organise his department or what qualifications his staff should have. I venture to suggest that it would be equally inappropriate to make such provisions in statute for the Advocate General.

This is not a matter which should be put on the face of the Bill and in that circumstance I ask the noble and learned Lord to withdraw the amendment.

Lord Mackay of Drumadoon

Before the noble and learned Lord sits down, could he give some indication to the Committee what the Government have in mind in this regard? He said that it is inappropriate to put the provision on the face of the Bill. Leaving aside that argument, what do the Government propose? Is it intended to have Scottish parliamentary counsel? Is it intended to have some counsel who are qualified in the law of Scotland? Is it intended to have only one department for parliamentary counsel in London, the first parliamentary counsel being in charge of that department, and it being a matter of chance as to whether any of his team are Scottish lawyers?

Whether or not it is appropriate to put the provision on the face of the Bill, I suggest that they are important issues. I believe that the Committee would be favoured by some explanation of the Government's proposals? I assume that some thought has been given to it and I for one would like to hear their thinking.

Lord Hardie

Of course, considerable thought has been given to the allocation and reallocation of staff and is still being given by a committee of civil servants who are concerned about the proper disposition of staff. What I can say is that the Advocate General will be properly resourced with properly qualified members of staff; in other words, people qualified in Scots law.

Lord Mackay of Drumadoon

It is a matter of regret that it is not possible to give a fuller answer to the questions I asked, in particular to address the issue of whether there will be a separate department and whether the senior official will be qualified. In the light of the previous vote, it would be a needless exercise to press this amendment to a vote. I certainly intend to reflect on what the noble and learned Lord the Lord Advocate said about it being damaging to the role of the Advocate General to ensure that he has in his staff people qualified in the law of Scotland. That is an argument which I and others will wish to consider with interest. Against that background, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 82 agreed to.

Lord Mackay of Drumadoon moved Amendment No. 290E:

After Clause 82, insert the following new clause—

>SOLICITOR'S OFFICE FOR SCOTLAND

(" .—(1) Following upon the commencement of this Act, the Secretary of State for Scotland shall maintain within his Department a Solicitor's Office.

(2) The Secretary of State shall appoint a person to be Solicitor to the Secretary of State for Scotland.

(3) The Solicitor to the Secretary of State for Scotland shall serve as head of the Solicitor's Office.

(4) The Solicitor to the Secretary of State for Scotland shall appoint such Assistant Solicitors to serve within the Solicitor's Office as he deems necessary.

(5) No person may serve as Solicitor to the Secretary of State for Scotland or as an Assistant Solicitor, unless he is qualified as either—

1. (a) an advocate, or
2. (b) a solicitor under the Solicitors (Scotland) Act 1980.

(6) The Solicitor to the Secretary of State for Scotland and Assistant Solicitors serving in the Solicitor's Office may not provide legal advice and assistance to the Scottish Parliament, the Scottish Executive or any member of the Parliament or represent such persons in legal proceedings in such courts and tribunals in which they enjoy rights of audience.

(7) The Solicitor to the Secretary of State for Scotland and Assistant Solicitors serving in the Solicitor's Office may provide legal advice and assistance to any Minister of the Crown or Government Department or represent such persons in legal proceedings in such courts and tribunals in which they enjoy rights of audience.").

The noble and learned Lord said: This is a similar amendment dealing with a slightly different topic; namely, the provision of legal advice and assistance following upon devolution. It raises an issue which I have little doubt has been considered by the Government, possibly by the same committee of officials to whom the noble and learned Lord the Lord Advocate referred a moment ago, as part of the allocation of staff, officials and resources after devolution.

I am anxious to explore whether it is intended that the lawyers who are employed by the Government to act as solicitors to the Secretary of State for Scotland are to form part of a legal office separate from those who will be acting for the First Minister and his colleagues who are members of the Scottish executive. In accordance with common practice, they can be either solicitors or advocates and act for the Secretary of State's colleagues in Government. I refer, for example, to the Secretary of State for Defence who becomes involved in litigation in Scotland whether as a result of accidents to employees or whatever. From a study of the provisions of the Bill, the Committee will appreciate that there are many instances where it is possible—indeed, some people may say highly likely—that from time to time there will be litigations taking place in which a member of the Scottish executive will be involved on the one side and an individual UK Government Minister on the other. In such circumstances the potential for conflict of interest undoubtedly exists.

The noble and learned Lord the Lord Advocate will be aware from the letter I have received from the president of the Law Society—I understand the letter was copied to his office—that the society supports this amendment regarding the maintenance of an independent office of Solicitor to the Secretary of State for Scotland. The president says in his letter: In particular, the provisions of your amendments in sub-clause (6) and sub-clause (7) will help to ensure that the Solicitor's Office is not in a position which could be potentially one of conflict of interest". Again I invite the noble and learned Lord the Lord Advocate to explain to the Committee the Government's thinking on this important issue. I beg to move.

Lord Hardie

As the noble and learned Lord observed, this is very similar to the previous amendment in that it attempts to say to whom the Solicitor to the Secretary of State for Scotland should or should not provide advice. As the Committee will be aware, the Secretary of State for Scotland will retain his role as a member of the United Kingdom Government. Like any other member of the Government, the Secretary of State for Scotland should be able to create whatever posts are needed within his own department and decide what qualifications holders of those posts should have, as should the Advocate General.

As I have said in relation to Amendment No. 290D, this amendment is at best unnecessary. At worst it could interfere with the ability of the Secretary of State to organise his or her department in the best and most efficient way. Having said that, I would advise the Committee that it is inconceivable that the Secretary of State would not have the benefit of separate legal advice from the First Minister. How that is achieved is a matter for the respective executives.

With that explanation I urge the noble and learned Lord to withdraw his amendment.

Lord Mackay of Drumadoon

Once again I, the Law Society and others will reflect on what the noble and learned Lord said in response to this probing amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Sewel moved Amendment No. 290EA:

Page 39, line 32, leave out ("sections 106, 107 and 108") and insert ("section 106").

The noble Lord said: Amendment No. 290EA is consequential on Amendment No. 292TNA, to which we shall come later. However, for convenience, I speak to it now.

Amendment No. 292TNA provides a clearer list of those persons to whom the functions in Clause 107 apply. In particular the existing reference to the functions of any person, subject to certain exclusions, is broader and vaguer than it needs to be. We are really concerned with the devolved functions of the members of the Scottish executive and this amendment simply clarifies that and lists them. It also has the effect of excluding the functions of cross-border public authorities from the definition, which was always the intention.

Government Amendment No. 290EA is a consequential amendment. It removes a reference to Clauses 107 and 108 in Clause 83 which is made redundant by Amendment No. 292TNA. I beg to move.

The Earl of Balfour

I am rather confused here. Clause 83 is headed, "Cross-border public authorities: initial status". The clause, as amended, commences: (1) Sections 49, 106, 107 and 108 shall not apply in relation to any function which is specifically exercisable in relation to a cross-border public authority and section 106 shall not apply in relation to any function of such an authority". Clause 107 is entitled "Consolidated Fund, etc." The clause commences, as amended, with the words on page 34 of the Marshalled List. I am fascinated as the two amendments were grouped together but they seem to be poles apart. I am rather confused.

Lord Mackay of Drumadoon

While the Minister is thinking about how he might alleviate the confusion in the mind of my noble friend Lord Balfour, who, if I may say so, very frequently puts his finger on a matter of some significance even in the very detail of a clause, perhaps I may say that I welcome the amendments. I see why they have been brought forward and I hope that when my noble friend considers the matter further he will appreciate that there is an intention to clarify and simplify here. From these Benches, I offer no opposition to the amendments.

Lord Sewel

I thank the noble and learned Lord for his words. I wonder whether we can leave it at this stage, and if there is a further matter of clarification we can deal with it later.

The Earl of Balfour

I am happy with that.

On Question, amendment agreed to.

[Amendment No. 290F not moved.]

11.45 p.m.

Lord Mackay of Drumadoon moved Amendment No. 290G:

Page 39, line 45, at end insert— ("(3A) The Parliament shall be entitled to require any representative of a cross-border public body—

1. (a) to attend its proceedings for the purpose of giving evidence, or
2. (b) to produce documents in his custody or under his control,

in respect of functions within the responsibility of that body which are exercisable in or as regards Scotland.").

The noble and learned Lord said: This amendment seeks to extend the powers of the Scottish parliament to take evidence in both oral and documentary form in relation to the activities of cross-border public authorities. The Committee will recall from the provisions of Clause 23 that the Scottish parliament is given power to require any person to attend its proceedings for the purpose of giving evidence or to produce documents in his custody or under his control, provided that that oral or documentary evidence relates to matters mentioned in subsection (2) of the clause. Subsection (2) of Clause 23 states that the matters are:

1. "(a) devolved matters concerning Scotland,
2. (b) other matters in relation to which functions are exercisable by the Scottish Ministers".

Those would include not just the matters which are devolved to the Scottish executive because they lie within the legislative competence of the Scottish executive but also matters transferred to Scotland and to the Scottish executive by the operation of a Section 59 order. As it has been described by one Minister—I regret that I do not remember which one—it indicates how executive devolution is marching ahead of legislative devolution. It is that to which I understand Section 22(2)(b) to be primarily referring.

This amendment seeks to address the powers in relation to cross-border public authorities. I am extremely grateful to the officials of the noble Lord, Lord Sewel, for responding very promptly to a fax which I sent in the small hours of Monday morning asking for a copy of the draft order, which reached me today. It enables me to understand more fully what my amendment is about and I hope to enable the Committee to do likewise.

The guide to the working draft, which is attached to the front of it, contains one or two surprising comments. It indicates that, as the White Paper indicated, the Scottish parliament will be able to require the submission of reports and the presentation of oral evidence from cross-border public authorities. The Bill makes provision for such authorities in Clauses 83 to 85. It makes it clear, as the Bill does when one studies it carefully, that an authority can be specified as a cross-border public authority under Clause 83(5) only if it has, in addition to other functions, functions exercisable in or as regards Scotland which do not relate to reserved matters.

We then come to the somewhat surprising part: It should be noted that a cross-border public authority is not necessarily an authority with functions which cross the border between England and Scotland. Rather, as indicated above, they will be authorities which exercise functions in or as regards Scotland which do not relate to reserved matters as well as other functions. Thus cross-border public authorities could include Scotland-only authorities which have functions which relate to reserved matters and matters which are not reserved". I should indicate that in the draft which has been prepared, and very helpfully prepared, it sets out the current thinking as to what those cross-border public authorities shall be, as specified under Clause 83(5). It includes some fairly major authorities such as the Criminal Injuries Compensation Board, the new appeals panel, the Forestry Commission, the National Radiological Protection Board, whose activities obviously have a bearing on the nuclear establishments in Scotland, the Sea Fish Industry Authority and others.

As I read the provisions of Clause 23, it would entitle the parliament to require those authorities to produce witnesses and to produce documents covering the matters specified by Clause 23(2); in other words, if they were touching on devolved matters or other matters in relation to which functions are exercisable by Scottish Ministers. However, it would not cover all the activities of the cross-border public authorities even if the cross-border public authority in question was a Scotland-only authority; in other words, if it operated only in Scotland but had functions which related to reserved matters and matters which were not reserved.

I can well see that there is a problem in not wanting to make Ministers of the Crown and other public bodies accountable to two parliaments. But it is inevitable that that principle will be breached in relation to cross-border public authorities because some of them such as the Forestry Commission, the NRPB and the Sea Fish Authority will all be accountable to this Parliament and will, in certain respects, be accountable to the Scottish parliament.

It is against that background that it is inappropriate that on certain issues relating to Scotland, the Scottish parliament could require them to come and give evidence and produce documents but on other issues it could not.

In so far as the structure of the Bill makes those authorities accountable to both parliaments, there is merit in looking again as to whether the terms of Clause 23 might be broadened or whether one accepts the amendment which I propose. That would enable the Scottish parliament to call one of those bodies in front of it in relation to any activity in Scotland, whether it is one that touches on reserved matters or one that touches on devolved matters.

I accept that this is a complicated matter, but I hope that the amendment will be accepted as a constructive suggestion which, in the light of the draft order which is available, might merit some reconsideration as suggested in Amendment No. 290G. There is also a small drafting amendment, Amendment No. 290K, tagged on to the grouping. I pose this question. Why is not what I suggest more understandable, at least to the lay Minister? I beg to move.

Lord Sewel

I thank the noble and learned Lord for explaining very clearly his point. Matters of cross-border authorities, particularly where they are dealing with devolved matters and reserved matters—as could well be the case with cross-border authorities—are always extremely complicated. It is useful to take as an illustration the Forestry Commission wherein a cross-border public authority, through its activities in Scotland, will be accountable to the Scottish parliament. For its activities in Wales it will be accountable to the Welsh assembly, and for its activities in England it will be accountable to Westminster.

The difficulty is that the amendment as proposed would entitle the parliament to require a cross-border public authority to give evidence and produce documents in respect of any functions exercisable in or as regards Scotland. The important words are "any functions". That would include reserved as well as devolved matters. Clearly it would be inappropriate, in relation to reserved matters, for the cross-border public authority to be required to give evidence and produce documents to the Scottish parliament. That is the point where there is either a difference of understanding between us or we disagree.

Where a cross-border public authority is exercising devolved matters concerning Scotland or other matters in relation to which functions are exercisable by Scottish Ministers—the noble and learned Lord made the point about executive devolution and the exercise of executive functions marching ahead of legislative devolution—then it is quite proper that the cross-border public authority should provide evidence and produce documents to the Scottish parliament. But it is not proper that a cross-border public authority should produce documents and provide evidence in relation to the reserved matters that it may be carrying out in Scotland.

Lord Mackay of Drumadoon

I hope that the Minister will be prepared to reflect further. I am sure he will. There seem to me to be three situations. One is that the cross-border public authority is dealing with devolved matters. If it is, it clearly can be required to produce witnesses and documentary evidence under Clause 23(2)(a).

If it is dealing with reserved matters which also happen to be matters in relation to which functions are exercisable by Scottish Ministers, then again it could be required to produce witnesses and documents, so we have a breach of the principle that the Minister referred to that it is inappropriate for it to be accountable in relation to reserved matters. Under Clause 23(2)(b) the authority will be accountable in relation to reserved matters, but only if they are also covered by a Clause 59 order. We have a third situation where there are truly reserved matters which are not covered by Clause 59.

It may well be that in the course of an investigation a committee of the Scottish parliament is carrying out there is a wish to examine the operations of a cross-border public authority touching on all aspects of its work such as devolved and reserved matters covered by Clause 23(2)(b) and others which are not. In relation to the first two of these categories it would have the right to cite the witness to give evidence.

The question arises that if having done that the questioner strays into the third category, the witness can say that he or she is not going to answer because they were not invited to come but were ordered to do so. That would be very undesirable. This matter merits further consideration as to whether it is desirable to have the right to order a witness to appear to answer certain questions but not others even though they are, in layman's terms, relevant to the work of the Scottish parliament, and equally in relation to documents.

I do not intend to insist on this amendment tonight, but I suggest further consideration in the light of what we now understand to be the potential cross-border public authorities, some of which are very important bodies indeed and others possibly less so except to people who have a great interest in plant varieties and the unrelated live transplant regulatory authority, which is of interest to medics but not to a large number of other people.

There are groups of authorities which include very important bodies. Before Report we ask the Minister to consider whether some extension to Clause 23 might be appropriate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Ramsay of Cartvale moved Amendment No. 290H:

Page 40, line 1, leave out ("(2) and") and insert ("(1) to").

The noble Baroness said: Amendments Nos. 290H, 290L and 290M are technical amendments aimed at ensuring that the powers under Clauses 83 and 84 can make appropriate provision to ensure that cross-border public authorities are properly dealt with on devolution.

Government Amendments Nos. 290H and 290N make it clear that a Clause 84 order can modify the application of Clause 83(1) in relation to the authority which is the subject of that order. This means, for example, that the Order in Council could apply Clause 49 in relation to certain ministerial functions in relation to the authority so that those functions would transfer to the Scottish Ministers.

Government Amendment No. 290L simply makes it clear that an order made under this clause may make provision in respect of any individual function of an authority. At present it could be read as an enabling provision to be made only in respect of all the functions of an authority, and that would be too restrictive and is not what was meant.

Government Amendment No. 290M introduces a new subparagraph in Clause 84(2) to make it clear that new functions can be conferred by the clause. This might be used, for example, to give the Scottish ministers a new function of determining the form of accounts of such an authority.

The provisions of Clause 84 are necessary to accommodate the wide range of arrangements which may be appropriate for individual cross-border public authorities to enable them to continue to operate effectively after devolution. There are, of course, significant and appropriate safeguards upon the use of these powers. The authorities subject to a Clause 84 order must be consulted prior to an order being made and the order is subject to procedure in both parliaments. Together these requirements provide considerable scope for scrutiny.

I hope that the Committee will welcome this series of amendments as bringing clarification to the scope of the powers under this clause. I beg to move.

On Question, amendment agreed to.

Midnight

[Amendment No. 290J had been withdrawn from the Marshalled List.]

[Amendment No. 290K not moved.]

Clause 83 agreed to.

Clause 84 [Power to adapt etc. cross-border public authorities]:

Lord Sewel moved Amendments Nos. 290L to 290N:

Page 40, line 17, leave out ("the functions") and insert ("any function").

Page 40, line 18, at end insert— ("() conferring any function on a cross-border public authority or on a Minister of the Crown or the Scottish Ministers in relation to such an authority,").

Page 40, line 21, leave out (" 83(2)") and insert 83(1), (2)").

On Question, amendments agreed to.

Clause 84 agreed to.

Clause 85 agreed to.

Lord Selkirk of Douglas moved Amendment No. 291.

Before Clause 86, insert the following new clause—

CONCORDATS

(" .—(1) There shall be a Register of Concordats where each concordat shall be registered.

(2) The Register shall be held by—

1. (a) the Public Record Office; and
2. (b) the Keeper of the Records of Scotland.

(3) A concordat shall not be effective unless it is registered under subsection (1) above within two weeks of its execution.

(4) A concordat shall be capable of being challenged by court action only before—

1. (a) the High Court in England and Wales; or
2. (b) the Court of Session in Scotland.

(5) Any party having an interest may challenge a concordat.

(6) In this section "concordat" means any agreement between the Secretary of State and the Scottish Executive regarding the consultation arrangements and common United Kingdom guidelines in respect of—

1. (a) any reserved matter under Schedule 5;
2. (b) any devolved matter under section 29(4);
389
3. (c) any transfer of ministerial functions under section 49;
4. (d) any functions exercisable with agreement under section 51;
5. (e) any shared power tinder section 52;
6. (f) any cross-border public authority under section 83, 84 or 85; or
7. (g) any agency arrangements under section 87.").

The noble Lord said: Amendment No. 291 creates a register of concordats. Concordats are referred to in various sections of the White Paper, for example, on forestry matters. Only a few moments ago the Minister made particular mention of forestry. The Lord Advocate has decided that there should be concordats in relation to scrutiny of Scots legislation by the Advocate General. Surely, those concordats should be known and in the public domain. The new clause seeks to do that. I look forward to hearing what the Minister or the Lord Advocate has to say in reply.

Lord Mackay of Ardbrecknish

My amendment, Amendment No. 291ZA, is linked with the amendment of my noble friend, who has explained his amendment. We discussed concordats at some length in Committee on the Welsh Bill, and, to be honest, I am not entirely sure that we arrived at a satisfactory outcome. The position of the Welsh Bill was a little different in that the devolution to the Welsh assembly is not as significant as will be the devolution to the Scottish parliament. Therefore, I believe there are some differences, one of which is that all the concordats between the Welsh and the UK had to be made in the name of the Welsh assembly because that was how the Welsh legislation was devised. The Welsh assembly was one party and the UK Government was the other. In Scottish terms, I presume, the situation is a little different because the executive has a different role, and, therefore, the concordat may be between ministers of the Scottish parliament and Ministers of the UK Parliament, or between officials of the Scottish executive and UK officials.

My amendment and to a certain extent that of my noble friend explore how Members of your Lordships' House, Members of the House of Commons, ordinary members of the Scottish parliament and the Scottish public can find out about concordats. Will they be part of the open government system or of the secret government system?

My amendment states that any concordat relating to a devolved matter to be discussed at the Council of Ministers or to be made subject to representations to the European Commission should have to come before Parliament. We are dealing specifically with the raft of concordats that will surround the problems that we have already discussed relating to the relationship of the Scottish parliament and executive to the European Union through the United Kingdom Parliament. Such concordats should have to be laid before Parliament, be approved by a resolution of both Houses and be signed by a member of the Scottish executive and a Minister of the Crown, In other words, I want to give them some proper status. I shall not say "legal status" because such issues will be addressed by my noble and learned friend Lord Mackay of Drumadoon, but they should be given proper and open status.

The second part of my amendment deals with concordats on the financial dealings between the two parliaments. The same procedure should apply there also.

In a way, this is a probing amendment, but it is a little more than that. I want to know how the Government see concordats being publicised. I want to know how their existence will be made known both to the parliament in Scotland and to that here in the UK. I have no strong views on this. I have been through all this in the Welsh Bill, so I know where I stand on this in relation to the Government. I am asking in my amendment that the concordats should be laid before both Houses of this Parliament and, indeed, before the Scottish parliament, and that they should be approved. Frankly, I am relaxed about their approval because I know from the Welsh Bill that Ministers are determined that parliamentary scrutiny of concordats will not be allowed. I disapprove of that. I think that parliamentary scrutiny of concordats should be allowed, but I recognise an intransigent government when I see one. Unless the Scottish Office is a good deal more open to argument than was the noble Lord, Lord Williams of Mostyn, I am probably wasting my time.

However, at a minimum, I think that concordats should be laid before both Houses here as parliamentary papers, or whatever. Every day our Order Paper, and that of another place, contains a list of papers to be laid before the House. They do not have to be debated and one cannot table negative resolutions, but the papers are listed and are drawn to Members' attention. We can access them. We can get at them. We know what they say. In the Welsh Bill, we were told that some concordats would be kept secret. We never managed to tease out of the Minister what possible material might have to be kept secret in concordats between the Welsh assembly and here. We drew a blank. We came up against a brick wall. I hope that there is no brick wall here.

Will any concordats be kept secret or will they all be made public? How will they be made public? Will they be laid before both Houses? Are the Government prepared to go further and to have them approved by both Houses here and by the Scottish parliament? I ask that because the position of MSPs must also be addressed. I may not be among those of your Lordships who fancy themselves as an MSP, but I do believe that MSPs have a right of scrutiny of concordats, just as I believe that Westminster has that right.

My amendment is very much a probing amendment. I hope that the Minister will not spend too much time taking a knock at it. but that he will use it as a vehicle to explain how he sees concordats working in the context of the Scotland-United Kingdom relationship. I hope that I shall get better answers than I received from the noble Lord, Lord Williams of Mostyn, on the question of concordats between the Welsh assembly and the United Kingdom.

Lord Sewel

I certainly do not wish to knock the noble Lord's amendment; indeed, I always try to respond as positively and as helpfully as I can. As the guidance note which my right honourable friend the Secretary of State made available on 27th February made clear, the purpose of concordats is to promote effective communication and good administrative practice in relations between UK government departments and the Scottish executive. Essentially, they are documents about working arrangements.

Concordats arise from the statement in the White Paper that the Scottish executive will need to keep in close touch with departments of the UK Government and that good communication systems would be vital. They will cover a range of matters, such as procedures for the exchange of information, advance notification and joint working. It is intended that concordats will provide the Scottish executive and UK departments with confidence that working relationships will be conducted properly and in accordance with agreed procedures. It is not intended that they should constrain the Scottish executive within its fields of competence, nor that they should constrain UK departments in reserved areas.

It is important to recognise the limitations of what it is intended to achieve through concordats. These agreements will not make provision in respect of matters more properly dealt with on the face of the Bill. They are not intended to create legal obligations upon either party; nor are they a means for avoiding proper scrutiny either by Parliament or elsewhere. Unless it would cause substantial harm on one of the clearly defined grounds set out in the recent White Paper on freedom of information—and only in that context—concordats will, of course, be published. If the noble Lord, Lord Mackay of Ardbrecknish, wishes to push me on whether some concordats will remain secret, I have to tell him that there is a theoretical possibility that some of them may remain so but only in terms covered by the White Paper on the freedom of information. That will be the only basis upon which concordats will not be published.

The work on draft concordats will proceed before devolution, but they cannot be agreed until the Scottish executive is established. The coverage of each agreement will be a matter for the incoming Scottish ministers and the departments of the UK Government to agree, because it is a document which will define relationships between the UK Government and the Scottish executive. I hope that that explanation givesa flavour of the background and of what they are. In a way, I hope that that demystifies the idea of concordats, which I believe have taken on something of a life beyond themselves at present. Indeed, they are not some great and wonderful construction; they are really just pretty ordinary attempts to describe sensible working relationships.

I turn now to Amendment No. 291, which would place several requirements on concordats. The amendment would require concordats to be registered; it would set out rules relating to the jurisdiction of the courts over them; and also touches upon the matter of the rights of third parties. Requiring concordats to be registered would be unusual and, as I have already indicated, they will be published in the vast majority of cases in any event.

Concordats are not intended—and this is important—to create legal obligations on the parties. It cannot be ruled out that they may feature in legal action, and I will say some more in respect of these matters shortly. At this stage, however, I hope that the noble Lord will accept the logic of the argument that, in these circumstances, it would not be appropriate to make rules regarding the jurisdiction of the courts in relation to concordats. These are, of course, working documents intended to aid the process of efficient administration. It is difficult to conceive of a third party wishing to challenge their terms, but where they can conceive of a case for such action there is nothing peculiar about these documents which either would or should prevent them doing so. I hope that the noble Lord will accept those reassurances and that he will feel able to withdraw the amendment.

I move on now to Amendment No. 291ZA, which would introduce a formal parliamentary procedure in relation to concordats dealing specifically with European and financial matters. I am afraid that these non-statutory agreements do not merit this treatment. They are, as I have said, administrative agreements providing for co-operation and exchange of information between the administrations. They are intended to be flexible documents to assist that process and will be reviewed and adjusted in the light of experience. They are very much organic, dynamic documents.

To introduce a formal element of parliamentary scrutiny into these arrangements and thereby put these concordats onto a semi-statutory footing would undermine the flexibility and informality of concordats as instruments for facilitating co-operation between the administrations and give these documents a status which, frankly, they do not merit. The informal process of adjustment and review that is an essential part of these arrangements would probably become subject to parliamentary procedures as well.

It is, of course, the case that the Scottish ministers will always be accountable to the parliament for their policies and will need to be able to justify any approach which is based on arrangements agreed with the UK Government in a concordat, just as the UK Government will be accountable to Westminster in regard to such matters.

Amendment No. 291ZA concerns concordats covering negotiations in Europe and finance. As I indicated in our previous exchange on Europe on 30th July, the essential point is that negotiations with the European Union, including those at the Council of Ministers, are reserved because foreign affairs are reserved and EU negotiations are a foreign affairs matter. The Government fully intend, however, that the Scottish ministers should have a role to play in developing UK positions on EU matters and, where appropriate, in presenting them to the Council. It is therefore made clear in paragraph 7 of Schedule 5 that the reservation of foreign affairs does not reserve assisting Ministers of the Crown in relation to that matter. The administrative arrangements for how this will be achieved do not change that position in the slightest. They will do no more than set out the practical details relating to that commitment.

The proposed EU concordat is intended to facilitate the full involvement of the Scottish ministers and officials in these matters. It will outline an overarching approach to the handling of EU issues between the Scottish ministers and the UK Government. More detailed provisions may, if necessary, be contained in bilateral concordats on specific subjects.

We also dealt with financial arrangements in some detail on 30th July and I would not wish to go over that ground again today. Suffice to say that the Government have made their position on financial arrangements abundantly clear already. I doubt whether the noble Lords are proposing that the block and formula rules should be enshrined in legislation—as I indicated previously, I would certainly not accept that—but it is not entirely clear what would be achieved by the amendment in this regard. Any finance concordat would be likely therefore to be concerned simply with the practical arrangements for implementing agreed (and published) rules and possibly with other practicalities such as the provision of information. It would seem odd to require prior parliamentary approval of these arrangements when the rules themselves are not the subject of legislation.

The important point is that a concordat cannot impose unacceptable requirements upon either the Scottish ministers or the UK Government. Their terms have to be agreed by both administrations and will, as I have said, follow the provisions set out in the Bill. Concordats are intended to help make these arrangements work more efficiently and effectively. It is of course in the interests of both administrations to ensure that these arrangements work effectively and concordats will merely set out practical arrangements to ease that process.

I have spoken at some length on this matter because I have been aware during discussions on the Bill that the idea of concordats has not been an easy one for all noble Lords to grasp. Some have thought that we are creating some new, strange creature under whose auspices just about everything will be ordained, designed and structured. That is not the case. These are modest documents which will set out agreed working relationships between the two administrations.

I take the point made by the noble Lord, Lord Mackay, about open government. I reiterate that the full intention is that they will be published, except in the very exceptional circumstances covered by the freedom of information Act. I hope that on that basis there is enough reassurance for both noble Lords to be able to withdraw their amendments.

Lord Mackay of Ardbrecknish

Before my noble friend Lord Selkirk of Douglas decides what to do with his lead Amendment No. 291, let me say that I am grateful to the Minister for his explanations. I indicated that I thought from my experience that I was perhaps going a bridge too far in expecting parliamentary scrutiny and approval.

The Minister was very clear that the documents would be published. Will he return to the question of how they are to be published? I suggested that they could be published by means of being placed as papers before this House and presumably, if the same procedures exist in Edinburgh, before the Edinburgh parliament. It is all very well to say that matters will be published, but they have to be published somewhere. I should be hugely reassured if I could be told where they will be published. If the Minister cannot give that reassurance tonight, perhaps I may return with the helpful suggestion that they simply be laid as parliamentary papers. and that is sufficient for publication. Members here or in Edinburgh would be able to get hold of them, as would the press, and they would become more widely available. That is the only unanswered question I have on the subject of concordats. They are new; we are entering a new situation. Therefore there should not be any surprise that we as a responsible Opposition wish to probe the Government as to what exactly they will do, how they will work and how we shall know about them. If the Minister could tell me where he thinks they might be published, we might then allow my noble friend Lord Selkirk of Douglas to conclude this debate.

Lord Sewel

I should like to come back to the noble Lord with a considered response on the particular point of the whys, wherefores and hows of publication.

Lord Selkirk of Douglas

I thank the Minister for his assurances, and in the light of those assurances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 291ZA and 291ZB not moved.]

Lord Mackay of Drumadoon moved Amendment No. 291ZBA:

Before Clause 86, insert the following new clause—

CONCORDATS: DUTIES AND LIABILITIES

(" .—(1) No concordat shall give rise to any duties or liabilities owed by one party to the concordat to the other.

(2) In this section "concordat" means any agreement between a Minister of the Crown and the Scottish Executive regarding the consultation arrangements and common United Kingdom guidelines in respect of—

1. (a) any reserved matter under Schedule 5,
2. (b) any devolved matter under section 29(4),
3. (c) any transfer of ministerial functions under section 49,
4. (d) any functions exercisable by agreement under section 51,
5. (e) any shared power under section 52,
6. (f) any cross-border public body under sections 83, 84 and 85. or
7. (g) any agency arrangements under section 87.").

The noble and learned Lord said: In moving this amendment, with the leave of the Committee I shall also speak briefly to Amendment No. 291ZBB.

These amendments deal with the separate issue of the legal significance, if any, of a concordat and the persons who are entitled to rely on the existence and terms of a concordat in legal proceedings. The first effectively provides that, No concordat shall give rise to any duties or liabilities owed by one party to the concordat to the other". The gist of the second amendment is in the first subsection: The existence or terms of a concordat may not be relied upon in any legal proceedings before a court or tribunal by a person who is not a party to the concordat". When we were first introduced to the issue of concordats in a White Paper there followed shortly thereafter a short guidance note prepared by the Scottish Office entitled, Guidance on Concordats Between the Scottish Executive and UK Government Departments. In view of the lateness of the hour, I shall do no more than indicate that the note states quite explicitly that the purpose of concordats is not to create legal obligations or restrictions on any party but to set the ground rules for administrative co-operation and exchange of information, as the Minister has helpfully explained to us. However, it states in paragraph 10 of the note: Any necessary statutory provisions are included in the devolution legislation and it is not intended that duties and liabilities should be imposed indirectly through concordats".

I believe that the intention that concordats should not give rise to any legal duties or liabilities received something of a dent during the Second Reading debate on the Government of Wales Bill, when the noble and learned Lord, Lord Falconer of Thoroton, made it clear that, while concordats would not take the form of binding contracts or statutory documents, they would not be without legal significance. He said on 21st April: it may well be the case that [concordats] will create a legitimate expectation of consultation. For instance, if one party to a concordat suddenly ceased to consult the other in accordance with the concordat, the result might be that its decisions could be challenged by way of judicial review, so it is wrong to say that there will be no legal underpinning to these concordats. The precise limits of that underpinning would have to be worked out by the courts in the context of the terms of the concordat itself. But the important point about judicial review is that it will not permit one party suddenly to whip away the concordat and then act entirely contrary to its terms-.—[Official Report, 21/4/98; cols. 1131–32.]

Against that background, a number of questions arise. First, does the Minister who is to reply on the amendment agree with the views expressed by the noble and learned Lord, Lord Falconer, in relation to the Government of Wales Bill? Secondly, if he does, is it the Government's intention that a failure to adhere to the terms of a concordat could be founded on only by the other party to a concordat, or is it something that a third party could also found on? One could well imagine a situation where, if the British Government breached a concordat, they might not only annoy the members of the Scottish executive, who might feel that their interests had been prejudiced, but they might also annoy and upset a Scottish company which was faced with legislation, whether primary or secondary, which impinged adversely on its business activities, cost it money or restricted it to one field of activity or another and which was able to say that the legislation, be it primary or secondary, had been enacted or approved in breach of the terms of a concordat. If, as the noble and learned Lord, Lord Falconer, said, the other party can seek judicial review of the actions of the party which has acted in breach, can a third party who may be adversely affected by such actions and who may also have had a legitimate expectation that a consultation would be undertaken rely on it as well?

These are questions which seem to me to arise and lie behind the second of the two amendments. I am sure the Minister has already worked out that the first amendment merely seeks to put on the face of the Bill what has been stated in terms this evening and what is to be found in the helpful guidance note to which I have referred. In principle, I cannot see any objection to Amendment No. 291ZBA, apart from the one which we have heard occasionally during the debates on the Bill that it may be unnecessary because the matter is self-evident. There is an argument that more should be on the face of the Bill, self-evident or not. I believe that a more difficult issue arises on the second amendment. I shall be interested to hear the Minister's reply. I beg to move.

12.30 a.m.

Lord Sewel

As the noble and learned Lord indicated, these amendments deal in a focused way with the extent to which concordats give rise to legal rights and obligations. I start by reiterating that these are non-statutory documents that are not intended to make provision in respect of matters more properly dealt with in the Bill. They will not fetter the discretion of either party in their areas of responsibility; nor are they intended to create legally binding obligations.

Understandably, the noble and learned Lord picks up a point from the comments of my noble and learned friend Lord Falconer. It cannot be ruled out that concordats may be cited in legal action on the ground that they have given rise to legitimate expectations that a particular consultation procedure will be followed. It will be for the courts to consider such matters. But the Government intend that these should be flexible arrangements subject to review in the light of experience which will ease the process of providing efficient administration. We hope that they will be viewed in that light.

One comes to the question of third parties being able to found a case upon a legitimate expectation of consultation between the two governments. If they feel that they have been adversely affected by lack of such consultation, it will be for the courts to decide whether or not that is a basis on which action can proceed and that legitimate expectation exists. As to that, we recognise that there is a degree of doubt which ultimately will be resolved by the courts.

Lord Mackay of Drumadoon

The answer of the Minister is helpful. As I understand it, it admits the possibility that a court may entitle a third party to rely on the terms of a concordat entered into by a Minister of the Crown on the one hand and the Scottish executive on the other. The particular circumstances in which a third party may be entitled to do so are for the courts to decide. I believe I have received the clear answer that it is not the intention of the Government to exclude that in all circumstances. Certainly, that follows from the Minister's adoption of the approach of the noble and learned Lord, Lord Falconer; namely, that one or other party can undoubtedly rely on the existence and terms of a concordat in judicial review proceedings.

If and when these matters get to the courts it may well be that everything will not be considered and construed in such a co-operative manner. The individual parties will wish to win their case. Whatever may or may not have been the spirit of co-operation between the Government and the Scottish executive at an earlier stage, once the matter gets to court in metaphorical terms the gloves will be off. But the matter has been clarified. I believe it is accepted that Amendment No. 291ZBA is not objectionable in principle; it is just unnecessary. On that basis, I seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 291ZBB not moved.]

Clause 86 [Maladministration]:

Baroness Ramsay of Cartvale moved Amendment No. 291ZC:

Page 41, line 36, at end insert— ("() any action taken by or on behalf of the Parliamentary corporation,").

The noble Baroness said: Amendments Nos. 291 ZC and 293ZAA are intended to clarify the various references in the Bill to Scottish public authorities and the extent to which those references should apply to the SPCB.

The only provision in the Bill applying to Scottish public authorities which was intended to apply to the SPCB was Clause 86(3) which deals with maladministration. Rather than leave the matter unclear, we think that Clause 86 should be amended so that there is an express reference to the SPCB. Clause 112(1) should also be amended so that the SPCB does not fall within the definition of Scottish public authority. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 86, as amended, shall stand part of the Bill?

Lord Mackay of Drumadoon

I oppose clause stand part for the purpose of raising certain questions about the clause which I hope can be answered tonight or by letter. What would happen if the complaint made by a member of the public to the member of the Scottish parliament touched upon issues which fall within the remit of the existing parliamentary commissioner and of any official established by the Scottish parliament under Clause 86 to investigate complaints? In other words, within the factual situation which has given rise to the member of the public's complaint there are issues which fall within the responsibilities of those two bodies: the existing parliamentary commissioner and the new one. Has any thought been given as to how such an investigation would be carried out?

Secondly, I should be grateful for clarification of the relationship between Clause 86(1) and Clause 86(3). The fault may be entirely mine, but I have some difficulty in understanding what is added to the clause which provides in subsection (1) (b) that it can be in relation to action taken by or on behalf of any other office holder in the Scottish administration by the provision set out in subsection (3)(a) which seems to refer to the same words; namely: any action taken by or on behalf of an office-holder in the Scottish Administration". Thirdly, it would be helpful if it could be confirmed that the intention which lies behind the clause is that members of the Scottish executive and their officials should, in practical terms, be investigated only to the same extent as is possible with Ministers of the Crown. Fourthly, I should be interested to know whether it is intended that the procedures set up under the clause should be subject to the scrutiny of the courts. That is another example of a matter raised from time to time, which is the additional role to be given to the courts in Scotland in supervising the organs of government. These are discrete questions. I accept that it may not be possible to answer all of them on this occasion. I hope that at least an undertaking will be given that they will be addressed.

Lord Sewel

I am happy to take away the points made by the noble and learned Lord. We shall endeavour to provide him with answers in due course.

Clause 86, as amended, agreed to.

Clause 87 [Agency arrangements]:

[Amendment No. 291ZD not moved.]

Clause 87 agreed to.

Clause 88 [Private legislation]:

Lord Sewel moved Amendment No. 291A:

Page 42, line 29, leave out subsection (3).

On Question, amendment agreed to.

Clause 88, as amended, agreed to.

Clause 89 [Appointment and removal of judges]:

Lord Mackay of Drumadoon moved Amendment No.291AA:

Page 42, line 35, at end insert ("as suitably qualified and experienced").

The noble and learned Lord said: This is a series of important amendments dealing with the appointment of judges. It is unfortunate that we come to these amendments at such a late hour.

In considering these amendments and the amendments in the next grouping in regard to the removal of judges from office, it is important to bear in mind that back in 1978, when the Scotland Act was enacted, the approach taken to the courts and the appointment of judges was entirely different.

In the White Paper that was published prior to the introduction of the Bill which gave rise to the Scotland Act 1978 it was stated that the Government had considered with special care where responsibility should lie for the main Scottish courts: the Supreme Court, the Sheriff Court and the District Court. The Government were satisfied that responsibility for the different levels ought not to be split because separation would pose difficult problems in relation to jurisdiction, procedure and administration. They believed that Supreme Court judges should continue to be appointed by the Queen on the recommendation of the Government and that responsibility for their tenure and conditions of office should not be devolved.

The Government also believed that questions affecting the right of appeal from the court of Session to the House of Lords and the court of final appeal in civil matters from the courts in every part of the United Kingdom must remain the responsibility of the United Kingdom.

An entirely different approach is followed in this Bill and the amendments seek to challenge that approach. However, I believe that it is right to draw attention to it when considering the amendments in this grouping and the next.

Amendment No. 291AA should be read in tandem with the subsequent amendment, Amendment No. 291AB. I fully accept that it is inconceivable that the Prime Minister would recommend to Her Majesty the appointment of a person as Lord President of the Court of Session or Lord Justice Clerk who was not suitably qualified and experienced. But because Amendment No. 291AB seeks to deal with the situation where the convention is that there is more than one name on the list provided to the Prime Minister by the Secretary of State of the day, it seems to me that subsection (1) also falls to be amended.

The purpose of Amendment No. 291AB is identical to that in government Amendment No. 291AAA. For obvious reasons I prefer my amendment, but it may be possible to take a different view on the drafting. The point that lies behind the amendment is important. In England the task is performed by the Lord Chancellor and in Scotland by the Secretary of State. The convention is that when one of the chairs of the Appeal Courts is being appointed the nominations which go to the Prime Minister for him to make a recommendation to Her Majesty include more than one name. The matter was explained at some length to the Home Affairs Select Committee in another place by the noble and learned Lord, Lord Mackay of Clashfern, during an investigation which that committee carried out during the last parliament.

Amendment No. 291AC stands in my name and that of my noble friend Lord Mackay of Ardbrecknish. Amendment No. 291B was originally tabled by the noble and learned Lord, Lord McCluskey. I added my name because the noble and learned Lord could not find it possible to be present because of other commitments at one of the Committee days in July. They seek to achieve much the same effect: that the First Minister should be under an obligation to consult other named parties before putting forward his nominations to the Prime Minister. In Amendment No. 291AC three names are mentioned: the Secretary of State, the Lord Advocate and the Advocate General for Scotland. In the amendment in the name of the noble and learned Lord, Lord McCluskey, it is only that of the Lord Advocate.

It should be made clear that in neither of the amendments is there any attempt to exclude any other procedure to be introduced by the Scottish parliament, whether by way of the establishment of a judicial appointments board, a commission or any other form of procedure it might deem appropriate, in addition to the consultation with which the two amendments deal.

Amendment No. 291BA deals with the appointment of Court of Session judges and sheriffs. Amendment No. 291C seeks to remove subsection (5) from the Bill. Although I was prepared to ventilate that matter on behalf of the noble and learned Lord, Lord McCluskey, in his absence in July, having given the matter further consideration I shall be content that it remain there provided that the Bill is amended in the way that he and I propose in the earlier amendments to which I have referred.

I hope that I have explained my position on these important amendments. I beg to move.

Lord McCluskey

Clause 89 is an extremely important clause. It has two aspects: one relating to the appointment of judges; and to the removal of judges. I deeply regret that we have not reached the amendment until 11 minutes to one in the morning, with only a dozen or so Members of the Committee present.

I shall try to be brief in relation to the first aspect of the Bill. I must declare an interest. As a serving judge I have a possible interest in being appointed as Lord President of the Court of Session, although I have no ambition for such an appointment. I sincerely hope that the present holder of that office, the noble and learned Lord, Lord Rodger of Earlsferry, will continue to hold it for many years. I also hope to retire before the First Minister requests that I should be sacked!

I wish to draw attention to a point made earlier by the noble and learned Lord, Lord Rodger of Earlsferry, on Amendment No. 290C. We have no conventions to fall back on in relation to Scotland. Accordingly, when the Lord Advocate says, "I ask whether it is necessary to put this on the face of the Bill", the answer often will be, "Yes, it is necessary", because there are no conventions. I am not prepared to put my faith—and I do not think that the Committee should be prepared to put its faith—in the discretion of the Prime Minister of the day. If there are no constitutional conventions, and there will be none for Scotland after the enactment of the Bill, we must put the provisions into the Bill.

In relation to the appointment of judges, my Amendment No. 291B recognises the fact that the Lord Advocate plays an essential but not necessarily decisive role in selecting judges. I believe that he should be involved in the future as he is at present and has been in the past. The reason is that the role of the Lord Advocate is much less political than that of the Secretary of State or of the first minister in the future.

In future, the role of judges will be much more concerned with political matters. Those are the two principal reasons. We are enacting a human rights Bill, which gives judges a greater jurisdiction and is bound to be characterised as political. Furthermore, the Scotland Bill gives the judges a more political role. As the Bill stands, the appointment of a judge could be purely political—we know of some countries where appointments are made purely on a political basis—and this amendment seeks to reduce the risk of that happening. It reduces the risk of political patronage and political cronyism, which are not unknown in Scotland in this century, and it reduces generally the risk of politicising appointments to the Bench. For those reasons, I speak to Amendment No. 291B.

With that amendment is grouped Amendment No. 291C, a probing amendment. I am asking the Government to explain what the subsection means. Enactment is defined in Clause 112(1) on page 52. It appears to me to mean that an Act of the Scottish parliament passed by a simple majority can require the First Minister to nominate or to decline to nominate a person to the Bench. For example, it may be possible for the Scottish parliament to instruct the First Minister not to nominate to the Bench any more men, any women or any advocates, but to nominate solicitors. This appears to be under the control of a simple majority. The purpose of the amendment is to ask the Government to explain the subsection.

Lord Hope of Craighead

I wish to say a few words in support of the noble and learned Lord, Lord McCluskey. I do so against the background of having been Lord President of the Court of Session for seven years. During that period, I was consulted by a succession of Lords Advocate about the appointment of a substantial number of those who are at present serving as judges on the Court of Session Bench.

I wish to make two points. First, from the point of view of the Lord President, the skill, knowledge and ability of the Lord Advocate is absolutely crucial to the selection of people who are appropriate for service on the Court of Session Bench. I do not wish in advance of his appointment to suggest that the First Minister would be unable to take proper advice in various ways, but the crucial person in giving advice to the First Minister is bound to be the Lord Advocate. After all, he has experience of appearing in court, probably has very close contacts with those who are equipped with the necessary skills to serve on the Bench and therefore is a person whose advice the Lord President and the first minister can have confidence in.

It should not be forgotten that the circuit described in the subsection to which Amendment No. 291B refers involves the Lord President as well as the First Minister. If I were still the Lord President and was consulted by the First Minister the first question I would ask is: what is the view of the Lord Advocate about the proposal? That is said in order to emphasise the point which the noble and learned Lord made about the crucial position of the Lord Advocate in this whole process.

As to the need for a reference on the face of the Bill, I endorse entirely what the noble and learned Lord said. I know that the noble and learned Lord, Lord Rodger of Earlsferry, shares this view because he has made the point several times in Committee. We are facing a new situation, with no conventions to guide us. On crucial matters such as the appointment of judges, we should err on the side of caution by writing on to the face of the Bill the necessary steps which should be taken in order to ensure that properly qualified persons are appointed to serve.

I can see no reason why the Lord Advocate should not be mentioned expressly in the terms suggested by the noble and learned Lord. It is inevitable that the Lord Advocate will be involved and it is far better that that matter should be recognised expressly on the face of the Bill to avoid any possible confusion.

Lord Clyde

I wish to add my pennyworth to this discussion by endorsing the speeches made by my noble and learned friend Lord McCluskey and the noble and learned Lord, Lord Hope of Craighead.

As to the last point, it may be thought that one of the current criticisms of the appointment of judges is that the whole process appears to be conducted in secrecy. It may well be that there is no system which would satisfactorily operate without a degree of secrecy, but it is right that at the very least the public should know what the system is. It may well be that we will be told that in practice those who are making the recommendations or nominations will consult with various people. It is right—and it is the length to which one can go to avoid the criticism of secrecy—that the people who are to be consulted should be clearly laid down. In that way the public will know what the process is. I strongly support the suggestion that the people who are to be consulted and whose advice is to be taken should be specified in the Bill.

The other curiosity is that the money, the remuneration for the judges, comes from Westminster. I understand that remuneration is a reserved matter. It is somewhat curious to have the appointments made by people who will not be answerable to the Westminster Parliament, apart from the appointment of the Lord President and the Lord Justice Clerk. If it is made clear that someone is to be consulted who would be answerable to that Parliament, in the one House or the other, then at least there may be some attachment to the source of the remuneration.

My final comment is by way of a question. I do not understand who is to dictate the terms and conditions of service of these judges. In particular, who is to organise their pensions and pay for them?

Lord Hardie

I shall confine my comments at this stage to the issue of the appointment of judges in the knowledge that the second issue of the removal of judges is embodied in the next group of amendments.

As to the background, which the noble and learned Lord, Lord Mackay of Drumadoon, set out under reference to the 1978 Act, paragraph 2.4 of the White Paper, which was endorsed overwhelmingly by the people of Scotland in the referendum more than a year ago, made clear that unlike 1978 judicial appointments would be a devolved matter. Apart from the appointments of the Lord President of the Court of Session and the Lord Justice Clerk being made by Her Majesty on the advice of the Prime Minister, all other judicial appointments would be made on the basis of nominations by the Scottish executive and first minister. Clause 89 delivers that commitment in the White Paper.

Subsections (1) to (3) deal with the special position of the Lord President and the Lord Justice Clerk. As has been observed, these appointments will continue to be based on the recommendation from the Prime Minister to the Queen, but we have provided that the Prime Minister's recommendation must be a person nominated by the First Minister, who in turn must consult with the Lord President and the Lord Justice Clerk, assuming that they are both in office at that time. Subsection (4) deals with judges of the Court of Session other than the two senior judges. It also deals with sheriffs principal and sheriffs. For other appointments, the recommendation to Her Majesty will come directly from the First Minister. Apart from those details, we have not set out in any further detail the precise processes which are to be followed any more than for those that are provided for in legislation at present.

The various amendments here seek to add to the statutory provision for judicial appointments. With one exception, to which I shall come in a few minutes, we do not think that they are suggestions which we should take on board, either because we disagree with the principle of what is proposed or because we do not think that the Bill requires to enshrine in so much detail how those matters will continue to work. I do not think that is inconsistent with the principles which the noble and learned Lord. Lord Clyde, set out a few moments ago about avoiding secrecy. In one case we are happy to accept the principle of the amendment but hope we can persuade the Committee to adopt a slightly different form of words by accepting the government amendment.

I propose to take each amendment in turn. Amendment No. 291AA provides that the First Minister should nominate to the Prime Minister a person who is suitably qualified and experienced to be appointed as Lord President or Lord Justice Clerk. It would be inconceivable, as the noble and learned Lord, Lord Mackay of Drumadoon, acknowledged, that the First Minister would ever nominate a person who was not suitably qualified. I would go further and say that even in the context of a list of people it would be inconceivable that anyone on the list would not be suitably qualified. Therefore, I do not believe that this amendment is a necessary or an appropriate addition to the Bill.

The next amendment is Amendment No. 291AB. But in the light of Government Amendment No. 291AAA, I would hope that the noble and learned Lord will not seek to move his amendment. The Government have accepted the intention behind Amendment No. 291AB. I agree that the First Minister should be able to nominate more than one person for the appointment of Lord President or Lord Justice Clerk for the Prime Minister to consider. Once again, that reflects what currently happens. Although I have not been involved in any appointment of either of the judges who are presently holders of these offices, I am aware that the practice is to nominate two or three people. Amendment No. 291AAA is designed to make it clear that this will be the case. I would urge Members of the Committee to support the Government's amendment.

I turn to Amendment No. 291B, which stands in the name of the noble and learned Lord, Lord McCluskey. The amendment is similar to that tabled by the noble and learned Lord, Lord Mackay of Drumadoon, and the noble Lord, Lord Mackay of Ardbrecknish, in the previous group and would place a duty on the First Minister to take the advice of the Lord Advocate before consulting the Lord President about possible nomination for judges, sheriffs or sheriffs principal.

The traditional role of the Lord Advocate in advising about judicial appointments has already been outlined. I suggest that it is honourable and important, but it has never been a statutory role. Of course, I take on board what the noble and learned Lord, Lord McCluskey, said about setting up a new arrangement. Nevertheless, I am confident that the tradition of the involvement of the Lord Advocate will continue.

It is inconceivable that the First Minister would not consult the Lord Advocate, even more so as the Lord Advocate will be a member of the Scottish executive. But in view of the comments of the noble and learned Lord, Lord Hope of Craighead, it is equally clear that, had the noble and learned Lord still held the high office of Lord President, he would have insisted on knowing what was the attitude of the Lord Advocate and would have asked the First Minister that question. I anticipate that the present holder of that office would adopt a similar attitude, and subsequent holders of the office, understandably, would wish to know what was the attitude of the Lord Advocate. It is inconceivable that the First Minister would not be aware that he should consult the Lord Advocate and that he would not consult him.

Lord Hope of Craighead

May we take it from those comments that if the Lord President were to ask the First Minister to consult the Lord Advocate before he—that is the Lord President—expressed his view in reply to the inquiry from the First Minister, that the First Minister would comply with that request?

Lord Hardie

I cannot give any guarantee as to what would be the reaction of the First Minister. But, again, I would be very surprised, given the relationship which exists at present between the holder of the office of Secretary of State for Scotland and the Lord President and the relationship which I fully expect to continue to exist between the First Minister and the Lord President, if the holder of that office did not take on board what the Lord President said and seek the advice of the Lord Advocate.

However, my position is that that stage would not be reached. It is inconceivable that the First Minister would not follow the traditions which have existed in the past and particularly in view of the Lord Advocate's membership of the Scottish executive.

Indeed, if Members of the Committee accept that I am correct in that approach, I suggest that that obligation or requirement to consult should not be enshrined in legislation. Such a step might have the undesirable effect of discouraging the First Minister from undertaking wider consultation. The First Minister should be free to consult as widely as he thinks appropriate.

I turn to the second amendment in the name of the noble and learned Lord, Lord McCluskey. Clause 89(5) was introduced by the Government as a means of enabling the Scottish parliament, if it wished, to propose changes in the way in which judicial appointments should be recommended. The final responsibility for making nominations and recommendations lies with the First Minister. But Clause 89(5) would allow parliament to add to those basic arrangements, perhaps through the establishment of a judicial appointments committee, for example. If one is talking about openness, then that is one option which is available to be considered by the parliament. It is not for us to provide that there should be such a committee, but that is an option which Members of the Committee will be aware has been much discussed by people of different political persuasions.

If the parliament introduced a judicial appointments committee, Clause 89(5) would have the effect of requiring the First Minister to take its recommendations into account. Such a committee could have a role in advising the First Minister on the choice of candidates to be recommended or nominated for judicial office.

Lord McCluskey

Can the noble and learned Lord explain the words he just used in relation to taking the recommendation into account? The words of the statute are that he "shall" comply with any requirement in the enactment; it is not a question of taking into account. He "shall" comply. Surely the Lord Advocate will agree that he was wrong about that.

Lord Hardie

Perhaps I was anticipating what the legislation might say. It will depend on what the legislation says about the judicial appointments committee; it would depend on what form the committee took—whether it was an advisory committee, as one has in the Republic of Ireland, or whether it was a committee which comprised the senior judge and the Lord Advocate as members who would make the recommendation to the First Minister. That is what is behind the subsection to enable the arrangements to give effect to any changes of that nature which the Scottish parliament may introduce.

The subsection provides parliament with such flexibility while preserving and entrenching certain basic requirements on judicial appointments in the Bill. I believe that that is the correct approach.

I turn to Amendments Nos. 291 AC and 291BA. I do not find anything in those amendments that the Government can support. They simply add to the number of people the First Minister is required to consult when considering nominations for Lord President or Lord Justice Clerk on recommending judicial or shrieval appointments to Her Majesty. While Members of the Committee have put forward arguments that such consultation should take place, it would not be appropriate to enshrine those arrangements in statute. We should allow the procedures to develop. I am sure that the First Minister will consult all those he or she feels it is appropriate to consult and I am sure that that will include the Lord Advocate.

I turn to the point raised by the noble and learned Lord, Lord Clyde, in relation to the question of payment of salary and pensions of the judges. Although the terms and conditions are regulated by the United Kingdom Parliament, the payment of rations of salary and pensions for the Scottish judiciary will actually come out of the Scottish Consolidated Fund. Therefore the level of salary and the level of pension will be fixed by the United Kingdom Parliament but the actual payment will be a charge on the Scottish Consolidated Fund. I hope that that is of some assistance to the noble and learned Lord.

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

Lord Steel of Aikwood

I hesitate to intervene in the judicial section of this Chamber. However, I was impressed by the argument put forward by the noble and learned Lord, Lord Clyde, in relation to the current criticism of the appointment of judges as being too much wrapped in secrecy. I believe that to be true. Several times it was said that it was "inconceivable" that the Lord Advocate would not be consulted, or that the noble and learned Lord would be "astonished" that he would not be consulted. If that is so, why not, in the interests of open government and clear legislation, accept Amendment No. 291B and have that practice enshrined quite clearly for everybody to read and understand and not keep this as a cosy matter to be understood only by those who are deeply involved? That seems to me to be an argument in favour of including this on the face of the Bill.

Lord Hardie

Perhaps I may deal with that point. I apologise to the noble and learned Lord, Lord Clyde, for not dealing earlier with it more fully. Putting it on the face of the Bill may have the effect of restricting what the Scottish parliament can do by way of a judicial appointments commission. It would depend on the form of the commission that the parliament decided on, if it decided on any. If it decided on a commission which followed the Southern Ireland approach of making a recommendation to the First Minister, then the legislation might simply require that he considers the commission's recommendation, although the Lord Advocate may be a member of it. By requiring a specific reference to the advice of the Lord Advocate as opposed to him being a part of the commission might have a restricting effect on the wishes of the Scottish parliament.

1.15 a.m.

Lord Steel of Aikwood

I do not follow that at all because subsection (5) would still be in the Bill and still apply. Therefore, it does not seem to me to inhibit in any way a future enactment of the Scottish parliament.

Lord Hope of Craighead

Perhaps I may follow that point. The Bill already mentions the Lord President who has to be consulted. It is very hard to see why there should be a restriction in mentioning the Lord Advocate. It is quite likely that he will either sit on or be represented on any appointments commission. So it seems to me that the argument that it restricts the freedom of the Scottish parliament to build an appointments commission around this system is quite ill-founded.

Lord Mackie of Benshie

Perhaps I may make one point on this matter. The Lord Advocate constantly used the phrase, "It is inconceivable" that they should not consult the Lord Advocate. One must realise that this is a new parliament and that one is not talking about a traditional parliament in this building, with hundreds of years of tradition. There is probably some excitement which might lead people astray in a new parliament. It would be conceivable that they might not consult because there is a great difference between the influence of tradition and a settled system and the excitement of power in a new parliament. In this case it would be wise to put these measures on the face of the Bill.

Lord McCluskey

The Lord Advocate is ignoring the ordinary, every day device that we see in legislation, which is the use of the words "without prejudice". If the Bill says that one should consult the Lord Advocate, one can avoid the restriction of which he spoke by saying "without prejudice to his consultation with anyone else". So it is perfectly simple. What we seek is that there should continue to be consultation with the Lord Advocate.

The noble and learned Lord said that we have not set out any more than is contained in legislation at present. But with all due respect, that totally ignores the vital point, which is that the rules do not derive from legislation at present but from constitutional convention which will not be born in Scotland after this Bill is enacted in the way in which it exists now in the United Kingdom. So we cannot talk about how these matters will, as he said, "continue to work". They will not continue to do so because this is an entirely new beginning. It is very important that we should put these matters into the Bill. I hope that the Government will consider the debate tonight very carefully. I hope that we shall also be able to move on to the second part of the clause, which raises even more important matters, without further delay at 20 minutes past one in the morning.

Lord Hardie

The noble and learned Lord, Lord McCluskey, is well aware that there is a professional family connection between him and me. Having listened to him and to other noble and learned Lords and others, it is appropriate that I agree to reflect further on including consultation with the Lord Advocate on the face of the Bill.

Lord Mackay of Drumadoon

I hope, while that reflection is being undertaken, that the noble and learned Lord and his colleagues will reflect on all the amendments and not just the one relating to consultation with the Lord Advocate.

On the basis that we have achieved some success in persuading the Government to think again, I shall not press the amendment.

Amendment, by leave, withdrawn.

Lord Hardie moved Amendment No. 291AAA:

Page 42, line 37, leave out ("making such a nomination") and insert ("nominating persons for such appointment").

On Question, amendment agreed to.

[Amendments Nos. 291AB to 291C not moved.]

[Amendment No. 291ZCA had been withdrawn from the Marshalled List.]

The Chairman of Committees

We now come to Amendment No. 291ZCB. I must inform the Committee that if this amendment is agreed to, I cannot call Amendments Nos. 291CA to 291DA inclusive.

Lord McCluskey moved Amendment No. 291ZCB:

Page 43, line 6, leave out subsections (6) to (8).

The noble and learned Lord said: I shall speak also to those amendments grouped with Amendment No. 291ZCB and I shall also address my remarks to the Question that Clause 89 stand part of the Bill.

The point of principle which lies behind this matter in relation to the removal of judges was first raised in this House by my noble and learned friend Lord Hope of Craighead on 17th June 1998 (at col. 1639 of Hansard) and I took up the same point at col. 1660. It was supported by other noble Lords: the noble Lords, Lord Campbell of Croy, Lord Mackie of Benshie and Lord Mackay of Drumadoon; and the Lord Advocate referred at col. 1783 to the willingness of the Government to wait to hear what suggestions were made.

My first point is that in relation to the removal of judges it should not be for other Members of this House to make suggestions about how that should be done. The suggestions ought to come from Her Majesty's Government, and they ought to respect Her Majesty's Government's commitment both under the Human Rights Bill, to which I shall refer, and under agreements made with the Commonwealth Heads of Government, to which I shall also refer. It should not be for us to make suggestions.

In the absence of any suggestions from the Government, I have made certain suggestions, and I am happy to say that others support them to some extent. We do not have in our constitution any full separation of powers. Obviously, if we had full separation of powers I would not be standing on my feet here in this legislature as a judge.

We have an independent judiciary, to which there are two main aspects: one is the appointment of judges and the other is the removal of judges. At present the appointment of judges is, and is likely to remain, under political control. Although formally it is under political control, it is rarely alleged that politics or cronyism affect appointments. But those factors are not unknown, and, if pressed, I could give several examples in my life-time of judges who have been appointed to the bench who should not have been appointed and would not have been appointed but for political and crony-ist influences. I am conscious of those things and I am anxious to avoid their repetition under the new regime.

I should not have to argue the case for an independent judiciary in this country. We need independent judges because judges are involved in all litigations and the Government are involved in a great many of them. The Government are a frequent litigator in civil and criminal cases, and they will be more so in the future because of two Bills which are passing through Parliament at present: the Human Rights Bill, which enlarges the role of judges a good deal and the Scotland Bill, which also enlarges the role of judges.

We must avoid the danger that judges can be removed from office by politicians. Judges who can be so removed cannot be independent because independence in practice means freedom from government pressure, freedom from populist pressure and freedom from political pressure. It means that we, the judges, do not have to look over our shoulders at what others are saying about the kind of decisions we take.

I refer for brevity to an article I wrote in fairly strong terms, which was published in the Herald, I was going to say today, but it appeared substantially yesterday, 6th October.

In Clause 89 the Bill gives the power of removal entirely to politicians. The wickedness, if you like, of the Government's thinking is seen in the fact that in the original draft of the Bill all that was required to remove a judge was a simple majority of members of the Scottish parliament. The first minister was to move such a motion, and the majority then had to approve that removal. An amendment was made in another place with the result that the first minister can now move a motion for the removal; a two-thirds majority is then required. He is not required to prove that the judge is incompetent in any way. All that the Bill requires is that he should be satisfied that the judge should be removed and that he should specify the ground for removal.

I want to draw the Government's attention to certain matters that they seem to have missed. First, the Human Rights Bill sets out Article 6 of the convention which states: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". According to that, it would be illegal for the first minister, even with a two-thirds or unanimous vote in the Scottish parliament, to remove a judge from office. I want to be informed—I am sure that the Committee will want to know—what is the basis for the Government ignoring the terms of Article 6 of the Europe Convention on Human Rights, which is contained in the Human Rights Bill currently before Parliament?

Secondly, I draw attention to the fact that the recently approved Latimer House guidelines for the Commonwealth, discussed when the Commonwealth Heads of Government meeting in Edinburgh approved the Harare Principles, contain the following provision. Under the heading of "Accountability and judicial accountability" and the general heading of "discipline" it is stated: In cases where a judge is at risk of removal, the judge must have the right to be fully informed of the charges, to be represented at a hearing, to make a full defence, and to be judged by an independent and impartial tribunal. Grounds for removal of a judge should be limited to,

1. (a) inability to perform judicial duties, and
2. (b) serious misconduct".

All such matters, whether in the Human Rights Bill, the Harare Declaration or the Latimer House principles, are completely and utterly ignored in this Bill.

It is also a matter of some importance that at present—this has been so for more than a century—a mere sheriff or a sheriff principal cannot be removed from office without an inquiry conducted by an independent and impartial tribunal. It so happens that under the legislation, that consists of the Lord President and the Lord Justice Clerk, but I do not contend that such a mechanism should be adopted in the case of judges of the Court of Session because such office holders may be too close to the persons concerned and they may have been involved in other matters concerning conduct in the past. However, I envisage that there must be an independent and impartial tribunal. Whether it consists of judges or non-judges is not of great importance, but it must be independent and impartial.

We cannot put the independence of the judiciary in the new Scotland at risk by enacting this clause. Unless the Government table their own amendments I hope to move a suitable amendment at another stage, recognising that the tribunal does not have to consist of judges but may include others—that is, if the Government do not accept the principle behind the amendment. I beg to move.

1.30 a.m.

Lord Steel of Aikwood

Could the noble and learned Lord explain one other matter to Members of the Committee? As regards the Harare Declaration and the human rights legislation, how would these affect the present procedure for removing judges who I understand would fall foul of them?

Lord McCluskey

The interesting point is that no one really knows what the present procedure is for removing judges of the Court of Session or the President of the Land Court. There is a very learned article written by the noble and learned Lord, Lord Jauncey, in the Stair Encyclopedia which suggests that this has to be done by an Act of Parliament. As far as I am aware, no judge of the Court of Session has been removed. There are two possibilities: the first is that an Act of Parliament is required and the second is that a petition to the noble mobile officium of the Court of Session is required.

If you have an Act of Parliament, that involves bicameral legislature. What worries me about the present proposals in the Bill is the fact that there is a single body—the Scottish parliament—sitting in Holyrood, with a motion by the first minister without any proof of incompetence being required. In relation to judges of the Sheriff Court, as I said, the present system has stood for more than a century and that requires an independent investigation. I am satisfied that judges ought to be removed if they are shown to be incompetent or guilty of serious misconduct as the Harare Declaration and the Latimer House principles recognise, but I want to see that established not by politicians but by impartial and independent persons as our other obligations require.

Lord Hope of Craighead

I should like to add a few words to the debate based on the experience to which I referred earlier. As I said, I served for seven years as Lord President and, during the course of those years, I have to say that I had to turn my mind on a number of occasions to the question of the removal of judges and sheriffs. It would not be right for me to go into the details involved for obvious reasons. However, I can assure Members of the Committee that I had to look very closely into the procedures. Indeed, in one case, which has come before this Chamber in its judicial capacity, I was involved in the procedures for the removal of a sheriff. Therefore, I had to face up to the demands of the kind of human rights requirements to which the noble and learned Lord referred.

It is a tribute to the capacity and the skill of those who have been responsible in the past for the appointment of judges to the Court of Session that we have not had to face the ultimate point as to how exactly, under the present procedures, a judge of the Court of Session should be removed. As it happens, during my tenure of office a judge resigned and, therefore, we were never in the position of having to work out finally how the question of removal should be dealt with. However, I believe that it would have required at least the tabling of a Motion before the two Houses in Parliament to achieve that result.

As for the future, I believe that the choice has to be faced as to whether removal should be a responsibility of the Parliament here at Westminster or the parliament at Holyrood. I know that one of the amendments which we may later consider suggests a hybrid involving the House of Commons as well as the parliament in Scotland. But, based on my experience, my own view is that it would be undesirable to complicate matters to that degree.

Lord Hughes of Woodside

As a simple layman, I wonder whether the noble and learned Lord could tell me what the difference is between Acts of Parliament and Motions moved in the other place and here and the same kind of procedures being conducted in the Scottish parliament? After all, we are all politicians so what is the difference between politicians in Holyrood and those in London?

Lord Hope of Craighead

I was about to explain to the Committee the point which would trouble me. Perhaps I may best introduce it in the following way. I still believe that it is the responsibility of the Lord President of the Court of Session to ensure that all the judges on his court fulfil the duties of their office. They are, after all, paid substantial salaries and a tremendous responsibility rests on their shoulders to see that the administration of justice in Scotland is properly carried on. Therefore I felt it was my responsibility to respond to criticisms of the judges in the court and ultimately, if the criticisms reached the point of persuading me that they were unfit to serve on the grounds now stated in the Bill, I would have felt that it was my duty to initiate procedures in order to deal with the situation.

We know from experience both in England and Scotland that on occasion judges can be persuaded to resign but looking into the future one cannot be confident that that will always be the position. Therefore we may have to face up to the fact that a procedure for removal will be required. The point I suggest we should bear in mind is the following. If a procedure is thought to be necessary by the Lord President of the court—this has nothing whatever to do with politics—and it is his decision that a member of his court is no longer fit to serve, it is essential for the well-being of the system that that procedure should be capable of being carried out fairly in the interests of the judge concerned, but also speedily in the public interest. We should remember that the judge will continue to be paid his salary while the procedure is continuing and he will probably not be capable of being used in the court while the procedure is continuing. Therefore the court will be short of a judge who is required to make the system work. The short answer to the point the noble Lord raised is that to complicate matters by requiring resolutions or decisions by two different Houses in different places would delay the process and for that reason would be undesirable.

I come back to the point that the procedure for removal must measure up to the requirements of the Human Rights Act and to the points which were developed at the Latimer House conference. In the case of the sheriff who was removed, I had the responsibility of trying to devise procedures with little to guide me. I know from the experience I had in that case how very difficult it was to satisfy the requirements of human rights even a few years ago before the Bill currently before Parliament was introduced. In the future that will be much more difficult. It seems to me essential as regards this Bill at least to lay the basis for a procedure along the lines the noble and learned Lord is proposing to the Committee in his various amendments. But I stress that we should bear in mind that the initiative may come from the Lord President himself in the interests of his court. It would be wrong to look on this as something which will be initiated by politicians for political reasons. Of course the ultimate decision has to be taken by the parliament and therefore politicians will be involved. It is right that the matter should be placed before parliament by the Minister but I should like to see written into the Bill the requirement that that should be done only after a proper inquiry conducted by appropriate persons.

Lord Clyde

To my mind the vital consideration here is the essential necessity of preserving the independence of the judiciary. That independence is not secured if there is a threat that they can be removed by a guillotine procedure by politicians. The future prospect for judges in Scotland opens up many opportunities for conflict between the citizen and the state. The judges may well be required to enter into the political arena to an extent they have not previously experienced. It is all the more necessary therefore that their independence should be safeguarded. Would it be tolerated in England that the Lord Chief Justice of England should be removed from his office at the whim of the Prime Minister with a two-thirds majority of the House of Commons? Is it to be tolerated that any judge should be exposed to such a sudden removal from office without even an opportunity of stating his case?

Whatever the proper solution is—and I can see that it may be difficult to find the correct formula—what is proposed here goes right against one of the fundamental bulwarks of the constitution. I strongly support the amendment moved by my noble and learned friend.

Lord Mackay of Drumadoon

As my name appears on a number of the amendments perhaps I may make a short contribution. Clearly it is a matter of concern that so late in the history of the Bill's passage through Parliament we are faced with a number of important issues. The Government have been warned—I use the word advisedly—for a number of months now that the Bill as originally drafted did not satisfactorily deal with the issue of the removal of judges from office. The Faculty of Advocates submitted a memorandum to the Government following publication of the Bill stating in terms that, The Faculty is concerned that the provisions of the Bill relating to removal of the judiciary will significantly undermine the independence of the judiciary". The document went on to set out, over a number of pages, why the Faculty held that fairly clear view.

The amendments in my name deal with a number of aspects of this issue. Amendment No. 291CA seeks to extend the same protection to all Scottish judges employed by the state—as opposed to district stipendiary magistrates, who are employed by local authorities—whether they be High Court judges, sheriffs principal or sheriffs. It does so for the reason that all these judges are to be granted similar powers under the Bill to rule on the vires of legislation passed by the Scottish Parliament or laid by members of the Scottish executive. All will equally be required to adjudicate as to the executive competence of action or inaction on the part of members of the Scottish executive. These issues will arise in both civil and criminal matters. They will traverse not only devolved matters but also issues relating to reserved matters. I firmly believe that, for the reason stressed by noble and learned Lords who have spoken, it is important for High Court judges to have their rights safeguarded. The same applies to sheriffs principal and sheriffs.

I have no objection to make to Government Amendment No. 291CAA.

Amendment No. 291CB raises for discussion, and I hope the further consideration that the Government will give to this issue, the desirability of requiring a two-thirds majority in the Scottish parliament. It is proposed on the basis that my Amendment No. 291CC raises the issue of the need to have a Motion passed in another place that is moved or made by the Prime Minister.

What troubles me about the two-thirds majority is this. If we reach the stage of bringing the matter before the Scottish parliament following an inquiry, the First Minister being of the opinion that it is appropriate for him to move the Motion or resolution, what happens if the necessary two-thirds majority is not reached but a simply majority is reached? I should have thought that would be an intolerable position for everybody, including the judge concerned. One can only speculate as to what the Scottish press would make of a situation where, by the sort of vote that applies to virtually every other matter in the Scottish parliament, a judge is deemed to be a man who should be removed from office. I recognise that the two-thirds protection was introduced by the Government for commendable reasons but I am concerned as to whether it is as good an idea as it first sounded.

I stress that I link Amendment No. 291CB to Amendment No. 291CC. I do so because it is clear that after devolution the work of the Scottish judges at all levels will cover the whole ambit of reserved and devolved matters. In particular, the work of judges at all levels will involve adjudicating on disputes between members of the United Kingdom Government, on the one hand, and members of the Scottish executive, on the other. The work of all judges will involve scrutinising the legislation coming out of the Scottish parliament and subordinate legislation made in London and subordinate legislation made in Edinburgh.

1.45 a.m.

Lord Steel of Aikwood

I am most grateful to the noble and learned Lord. He has just repeated something he said earlier which I wanted to query. I cannot imagine any circumstances in which the vires of legislation would be contested in sheriff courts. Perhaps he could enlighten me on that.

Lord Mackay of Drumadoon

I am happy to do so. This is a matter which we shall come to on later clauses of the Bill. In the prosecution of crime, for example, it could well be raised that the charge upon which the accused is being prosecuted is based on legislation enacted by the Scottish parliament outwith its legislative competence, whether it is to the substance of the charge or the preliminary procedure by which an accused was arrested. I am sure that the noble and learned Lord the Lord Advocate will be able to confirm, if it is he who is to reply to the amendment, that planning is already in hand to work out how devolution issues can be dealt with, if they arise, in criminal matters in summary criminal courts, in sheriff and jury trials and in High Court trials, and how they can ultimately be dealt with speedily by the Judicial Committee of the Privy Council so that the traditional speed with which Scottish criminal cases are tried and brought to a conclusion is not interfered with beyond what is necessary.

How often that will happen I know not. What I believe will happen is that, founding on the Human Rights Bill, there will be numerous challenges in the courts to the framing of charges and the procedures that are followed and that, for the same reason, it will have to be planned how these can be dealt with. I have no doubt whatever that it will be competent for such matters to arise and that, while ultimately the final decision may well be taken by the Inner House of the Court of Session, the High Court of Justiciary or ultimately by the Judicial Committee of the Privy Council, they will arise initially at the lower level. Indeed, this happened in a sheriff court not far from where the noble Lord stays in a case concerning the beef-on-the-bone regulations. The sheriff had to reach an adjudication which it turned out was not supported by the High Court of Justiciary on appeal, but he had to address the issue as to whether the subordinate legislation was ultra vires for the reasons which were advanced. It was debated before him over some days and he ended up taking a decision which was not supported on appeal.

It is for these reasons that I believe there is an argument which merits consideration. I would be surprised if it had not already been considered as to whether there is scope for involving the English Parliament, as well as the Scottish parliament, in this procedure.

I now move on to Amendments Nos. 291D, 291DA, 291E, 291F and 291FA, the terms of which are fairly self-explanatory. They set out in differing ways the procedures which might be followed for investigating and reporting to the First Minister on any allegations of unfitness for office which may be directed against a judge in whatever circumstances they arise.

As the noble and learned Lord, Lord McCluskey, said, the whole issue of human rights is very much involved. Once the Human Rights Bill comes into operation an argument may well be advanced that the procedure that currently exists to investigate whether or not a sheriff principal or sheriff should be removed from office under Section 12 of the Sheriff Courts (Scotland) Act 1971 is flawed compared with the provisions of Article 6, for the reason that in all probability before such an investigation takes place the Lord President of the Court of Session and the Lord Justice Clerk will already have been involved because of informal complaints by procurators fiscal, the Lord Advocate, the President of the Law Society and whomsoever as to the behaviour of a local sheriff. If the Lord President has already dealt with these matters on an informal basis there may well be a strong case that he is not the right person to hold an independent inquiry of the nature required by Article 6 or as described in the Latimer House agreement to which the noble and learned Lord, Lord McCluskey, referred.

These are important issues. Clearly, at this time of night there is no question of dividing on any of the amendments in my name in this grouping. However, I have no doubt that my hope that these matters will be considered very seriously before we get to Report stage will be recognised and responded to positively by the Lord Advocate. Unless there is a change I have little doubt that those who sit on these Benches and my noble friends will be more than happy to support the noble and learned Lord, Lord McCluskey, in any amendment that he tables and any amendments that we table at Report stage to ensure that the matter is fully debated again at that time.

Lord McCluskey

I should like to deal briefly with two matters. First, I direct the attention of the noble and learned Lord the Lord Advocate to the precise words of Article 6 of the Convention on Human Rights. That article provides that the independent and impartial tribunal must be established by law. One cannot have an ad hoc tribunal; it must be one established by law, which means that it must flow from an Act of Parliament. There is no such establishment in this provision. Secondly, the noble and learned Lord, Lord Mackay of Drumadoon, referred to the submission by the Faculty of Advocates. The Law Society of Scotland has written to me to confirm that the amendment tabled by myself and the noble and learned Lord, Lord Mackay of Drumadoon, has been considered by that body. It draws attention to the report of the Joint Colloquium on Parliamentary Supremacy and Judicial Independence held at Latimer House in June 1998. The society goes on: In the Society's view, your amendment accurately reflects these guidelines which it is intended [should] be presented to the next Commonwealth Heads of Government Meeting". That is a reference to Amendment No. 291E.

I hope the Government recognise that the principle underlying these amendments, though not necessarily the detail, is supported by the judiciary, the Law Society, the Faculty of Advocates and, as far as I can tell, everyone in the Committee who has spoken.

Lord Hardie

Before I turn to the detailed amendments it may help if I make clear the Government's position on the removal of judges. A number of noble and learned Lords have referred to the importance of judicial independence as a bulwark against the power of the state. I share those views and agree that an independent judiciary is an essential safeguard and key element in our constitution. It is for that reason that Clause 89 is in the Bill. Without it the Scottish parliament would be entirely free to enact such provisions as it wished, potentially without even the basic safeguards included in this Bill.

The Government regard it as anomalous—I believe that the noble and learned Lord, Lord McCluskey, shares this view—that there is no express provision in Scots law to deal with the removal of judges of the Court of Session. There is no specific statutory provision that allows for the removal of a judge, even if the judge is patently unable to perform the duties imposed upon him or her. Clause 89 addresses that gap, but does so in a way which we feel guarantees minimum safeguards for the judiciary.

I refer to the position in England and Wales by way of contrast. The Supreme Court Act 1981 provides for the removal of judges. Section 11(3) makes explicit provision for the removal of a judge by Her Majesty on an address presented to her by both Houses of Parliament. No one is suggesting that the provision in the 1981 Act has undermined the independence of the judiciary in England and Wales. Yet that provision is subject to fewer safeguards than are contained in Clause 89; for example, Clause 89 requires the first minister to specify the grounds for removal, which must relate to inability, neglect of duty or misbehaviour.

No right thinking person would suggest that those were not proper grounds for the removal of anyone from high office, including a judge.

No such specification in England is required by the 1981 Act. Clause 89 also requires a qualified majority of the members of the Scottish parliament to vote for the removal of a judge. I take the point made by the noble and learned Lord, Lord McCluskey, that the original draft did not provide for that; it provided for a simple majority. The reason it provided for a simple majority is that the English provision provides for a simple majority of each House of this Parliament, whereas what is required now by an amendment introduced in the other place is that there should be a two-thirds vote of the total membership of the Scottish parliament in favour of the removal of a judge before that can have effect.

By having that requirement, the judge who is the subject of the motion benefits from absentee members because they count in his favour.

In the Government's view, Clause 89 takes a balanced approach which protects the independence of the judiciary but provides a mechanism for the removal of judges should that be needed. It provides a basic minimum and entrenched framework to the procedures, but leaves it free to practice and convention or the parliament to develop the detail, on such matters as consultation and inquiry. I believe that is the right way to proceed. I shall now turn to the individual amendments before us.

I shall deal with some of the amendments in the name of the noble and learned Lord, Lord McCluskey; that is, Amendments Nos. 291D and 291E and 291ZCV. The Government do not support Amendments Nos. 291D and 291E which would entrench a procedure which would ensure that there was a judicial input to the review process, preceding the moving by the first minister of a motion under Clause 89(7).

Lord McCluskey

Does the noble and learned Lord recognise that I accept that there does not have to be a complete adjudication by judges for reasons that are easy to understand? What is required is that there should be an impartial, independent tribunal which may include judges but does not have to include nothing but judges.

Lord Hardie

I was going to recognise that the noble and learned Lord said that. I intended to deal with that point later in my response. This is an important issue, as noble Lords have recognised. I am anxious to give as full a reply as possible to all the points that have been raised.

We do not support any procedure which ensures that there is a judicial input preceding the moving by the first minister of the motion under Clause 89(7).

Amendment No. 291E goes further and specifies a pool of judges who might be called on to prepare such a report, and requires that they should include in any report a statement of their reasons for reaching their conclusions.

In advancing the amendments, the noble and learned Lord, Lord McCluskey, is giving tangible form to the general expressions of concern he expressed at Second Reading and again more recently in a different way.

I repeat that I entirely agree with him that the procedures for the removal of judges are matters of the greatest sensitivity and importance. The Government understand this concern for the independence of the judiciary. I trust that the noble and learned Lord will agree that I, too, am committed to preserving the independence of the judiciary as much as the independence of the office of the Lord Advocate.

I agree with the noble and learned Lord, Lord McCluskey, that we should not seek in the Bill to replicate the provisions in Clause 12 of the Sheriff Courts (Scotland) Act 1971 which would enable judges to be removed only following a report by the Lord President and the Lord Justice Clerk. I can see that that would lead to some practical difficulties.

The noble and learned Lord made the point that it is not necessary to have judges, and that other procedures may be available. While it is not impossible that the first minister might want to develop a mechanism not dissimilar to that outlined by the noble and learned Lord, before presenting a motion to the parliament, we do not think that it is appropriate to entrench it in the Bill. There should be scope for procedures to evolve in the light of experience.

Amendment No. 291ZCB takes a different approach and simply deletes from the Bill all provisions dealing with the removal of judges. Let us be quite clear: the appointment and, by extension, the removal of judges, will be a matter which is devolved. We have included express provisions in the Bill, and therefore entrenched them, for the purpose of preserving the independence of the judiciary. I do not see how the noble and learned Lord, with his deeply-held and strongly expressed concerns, can reconcile the amendment, which simply removes any such framework. The amendment would leave the Scottish parliament with a completely free hand.

Amendment No. 291CA would extend to sheriffs and sheriffs principal the provisions in Clause 89 relating to the removal of judges of the Court of Session and the Chairman of the Scottish Land Court. There are already powers under Section 12 of the 1971 Act dealing with this matter. Under the general provisions of the Bill these powers will pass to Scottish ministers in the Scottish parliament, and I can see no reason to include anything in the Scotland Bill which would make any additional provision. The noble and learned Lord will be aware that under the provisions of the Sheriff Courts (Scotland) Act 1971 there requires to be an inquiry by the two senior judges, and unless they make a recommendation or finding to the Secretary of State for Scotland that in their opinion the sheriff is unfit to hold office, the matter cannot proceed any further. The matter stops at their report unless they make an adverse finding.

It then goes on to the Secretary of State who considers the matter and does not need to follow the recommendation or finding of the senior judges.

Lord Mackay of Drumadoon

Does the noble and learned Lord accept the point which I raised that there may be an argument that the 1971 legislation would not survive scrutiny against convention rights? We do not need to decide whether or not the argument is well founded but there is an argument which may have figured in the Stewart case which went to the Appellate Committee of your Lordships' House not so long ago. If it is to be the case that all the judges in Scotland—whether High Court judges, sheriffs principal or sheriffs—are dealing with similar issues under the Bill and under the human rights legislation, there is an argument for treating them all the same so far as concerns their removal from office. It would be unfortunate in the extreme if the Government missed the opportunity of dealing with it in this Bill and a year or two down the line were faced with the problem of the Court of Session being invited to make a declaration of incompatibility of Section 12 with convention rights. I suspect that that is a problem we could well do without.

All I ask is that the matter be looked at. That is one of the reasons why the amendment was tabled.

Lord Hardie

I intend to deal with the question of human rights which was raised in another context by the noble and learned Lords, Lord McCluskey and Lord Hope. I shall deal with the point at that stage.

Amendment No. 291CC attempts to provide that before the First Minister can recommend the removal of the judge of the Court of Session or chairman of the Land Court, Members of another place would need to support a Motion to do so. We presume that Amendment 291CB, removing the special majority, is linked to that proposal, as the noble and learned Lord explained. The Government cannot accept any suggestion that Westminster should be involved in this process. It is a matter for the Scottish executive and the Scottish parliament and is quite inappropriate that their actions should be subject to review in Westminster. We are devolving responsibility for judicial appointments to the Scottish parliament and we should allow it the freedom to exercise its powers properly without the interference of Westminster.

I take some comfort from the response of the noble and learned Lord, Lord Hope, to my noble friend earlier. He expressed some reservations about having a mixed jurisdiction.

Amendments Nos. 291DA, 291F and 291FA attempt to prescribe how the First Minister should satisfy himself that the judge of the Court of Session or sheriff is unfit for office. I have already explained that the procedures for the removal of a sheriff are provided in the 1971 Act, and we do not intend to amend them in this Bill. The Bill does not specify what steps the first minister should take to inform his decision to move a motion specifying grounds of unfitness. It is inconceivable that he would move such a motion other than on sound advice. The advice might be medical or it might come from other sources. I see no reason to prescribe this on the face of the Bill. Indeed, if it is medical, the decision of the First Minister may well be informed simply by the production of appropriate medical certificates (assuming that the judge concerned submitted himself or herself to examination).

I see no reason to prescribe the procedure on the face of the Bill. It is appropriate for us to rely on the First Minister to take advice, and we would not want to prescribe how he should take such advice.

Amendment No. 291FA adds to Amendments Nos. 291DA and 291F and specifies that no report recommending the removal of the judge, sheriff principal or sheriff may be submitted to the First Minister without the person who is the subject of the report having first been interviewed as far as this is reasonably practical and given an opportunity to comment on the factual basis of any proposed finding that he is unfit for office. Again, I think that it is unimaginable, with all due respect to the fears expressed by the noble and learned Lord, that in except the most extreme cases the entire process of the First Minister satisfying himself that a person is unfit, moving a recommendation and gaining the agreement of two-thirds of the parliament could be completed without the person in question being offered a reasonable opportunity to make representations, including comments on their factual basis at some, and possibly more than one, stage in the proceedings.

It is beyond belief that the parliament would not ask the First Minister what his reasons were. It is beyond belief that if there were a dispute as to fact members of the Scottish parliament would not ask the First Minister what the attitude of the judge was. That is so particularly in view of the two-thirds safeguard and given the background of the change in the electoral system which will probably ensure that no one party can achieve a two-thirds majority of all the members elected to the parliament.

There is a further attempt to write into the Bill details of procedures which we are sure should be left to the First Minister and to parliament to develop and defend in each particular case. I believe that these details should be left to the parliament. We should not try to second-guess every aspect of the process. What matters is that the Bill should contain certain minimum safeguards and provide a framework within which the parliament can operate. I believe that Clause 89 achieves that. On that basis, I shall in due course invite noble Lords to withdraw their amendments.

Lord Hope of Craighead

I am grateful to the noble and learned Lord for giving way. A few moments ago and at the beginning of his remarks he said that we should leave these procedures to be evolved in the light of experience. Can he explain a little more what he means by that?

Bear in mind that if a judge is unfit for one reason or another the first step that everyone will want to take is to persuade him to resign without the need to go through these procedures. Therefore, the procedures will almost certainly be required only where the judge is resisting his removal. If he is resisting his removal, he will in all likelihood take every opportunity to challenge his removal at every stage in the process. The more one leaves to chance the more the risk of the procedure breaking down after an inquiry, after a vote has been taken in Parliament or even later on. The hostages to fortune which are created by allowing procedures to evolve by experience are very great. I wonder whether the Government have taken on board the risks to which they are exposing Scotland if they allow the matter to evolve in the way suggested by the noble and learned Lord.

Lord Hardie

I am grateful to the noble and learned Lord for that intervention. The Bill sets down the basic framework. It will then be for the parliament and the First Minister to set out the detail of the procedure. That procedure will evolve and change as time goes on in the light of any experience that one has. Obviously a procedure will be required to be laid down by the Scottish parliament as regards what should be undertaken.

I turn to government Amendment No. 291CAA. It is intended to ensure that judges may be removed from office only by Her Majesty and that any recommendation to do so should be made only by the First Minister. Clause 89 provides a role for the First Minister in recommending the removal of the judge. The amendment would make it clear that only Her Majesty can remove a judge of the Court of Session or the Land Court and that the recommendation that she should do so can come only from the First Minister and not via any other route. The amendment was tabled in response to a concern by the judiciary in Scotland that the clause as framed did not make that clear and there would be a possibility that the Scottish parliament would pass a separate Act independently of that. We did not believe that that was a real issue, but, in view of the concerns expressed to us on behalf of the judiciary, we addressed the matter and incorporated that amendment.

Before sitting down I will deal with the CHOGM point and the ECHR point. As to the Commonwealth conference, the Bill does not preclude the possibility of the parliament making provision to expand on the procedures to cover the concerns which the noble and learned Lord, Lord McCluskey, has raised. Clause 89 simply contains minimum requirements. which are entrenched. The Scottish parliament can and should build on these.

As to ECHR, Article 6 is already binding on the United Kingdom. The Human Rights Act is simply bringing those rights home. As far as I am aware, there has been no challenge of the procedures for the removal of a judge in England. There has been no suggestion that that is contrary to Article 6. According to those procedures it would appear there would not be any public hearing other than a Motion being presented to each House.

Clearly any procedures which the Scottish parliament introduce in this regard will have to take on board its obligations in terms of the human rights legislation. I am not convinced that the proposals in the Bill as they stand would be in contravention of Article 6 if one appreciates that what is being laid down are the basic minimum requirements. The detailed procedures will be developed by the parliament.

In the light of what noble and learned Lords have said, we will consider these matters further. I would invite noble and learned Lords to withdraw their amendments.

2.15 a.m.

Lord McCluskey

I do not propose to press my amendments further. I would ask the noble and learned Lord the Lord Advocate to read what he said to the effect that judges will, because of the provisions of Clause 89(7)(b), have the benefit of absentees. Is this any way to think about the removal of judges, that they may be lucky that if a few of the members of the Scottish parliament are elsewhere the judge will have the benefit of the absentees?

Lord Hardie

If I gave that impression I certainly did not intend to do so. I would withdraw any suggestion of that sort. The Committee will appreciate that it is quarter-past two in the morning and perhaps the line that I used was less appropriate than it should have been. I do not wish to give any impression that judges are being shown any favours here. What I was trying to get over to the Committee and to the noble and learned Lord is that by imposing a requirement of two-thirds of the members who are eligible to sit in the parliament it is a very high standard indeed when compared with the equivalent provision in England. I hope that the noble and learned Lord will take the remark in that spirit.

Lord McCluskey

I am happy to do exactly that and I accept what the noble and learned Lord has said.

The noble and learned Lord has used the expressions "unimaginable" or "beyond belief" more than once. It is simply not so. Judges are removed from office by the political power in most countries of the world. There is nothing unimaginable about it at all. They are not removed for political reasons in this country by reason of conventions. As I and others have said repeatedly, these conventions will not necessarily apply to a new Scottish dispensation. It is very important that these matters should be dealt with in the Bill.

Lastly, because of the requirements in Article 6 that an independent and impartial tribunal should be established by law, it is important that that law should be passed—and it should be passed in the course of the enactment of this Bill.

In the light of what has been said, I do not propose to press any of the amendments standing in my name. I shall beg leave to withdraw each of them in turn.

Amendment, by leave, withdrawn.

[Amendment No. 291CA not moved.]

Lord Hardie moved Amendment No. 291CAA:

Page 43, line 7, leave out ("by Her Majesty on the recommendation of") and insert ("only by Her Majesty; and any recommendation to Her Majesty for such removal shall be made by").

On Question, amendment agreed to.

[Amendments Nos. 291CB to 291FA not moved.]

Clause 89, as amended, agreed to.

Clause 90 agreed to.

Lord Mackay of Drumadoon moved Amendment No. 291G:

Before Clause 91, insert the following new clause—

PRIVILEGE OF THE SCOTTISH PARLIAMENT

(" .—(1) In the Bill of Rights, there shall be inserted at the end of Article IX (freedom of speech) the words "; and in this Article, "Parlyament" shall include the Scottish Parliament".

(2) In the Claim of Right Act 1689, there shall be inserted at the end of Article XXV the words "of those Parliaments (including the Scottish Parliament)".

(3) Proceedings of the Parliament shall not be questioned on grounds of non-conformity with the Parliament's standing orders except where such non-conformity—

1. (a) raises a devolution issue within the meaning of Schedule 6 to this Act, or
2. (b) constitutes non-conformity with any provision of this Act relating to the content of the Parliament's standing orders.

(4) In considering any matter relating to an Act of the Scottish Parliament and subordinate legislation made by the Scottish Executive, a court shall apply, so far as possible, the same tests for deciding the extent to which reference may be made to speeches in the Parliament in the interpretation of proceedings of the Parliament as it would apply for deciding the extent to which reference could be made to speeches made in Parliament in the interpretation of proceedings in Parliament.").

The noble and learned Lord said: I turn to a new topic at 2.20 a.m. I have to say that the only privilege most of us are interested in at the moment is the privilege of going home to our beds. I see the cheery face of the Government Chief Whip. It is cheery but the noble Lord is shaking his head from side to side, so we are not yet free to go. Therefore, I shall deal briefly with the amendment. It is not one that I would press to a Division at this hour. For that reason it is clearly one which it may be necessary to look at again at Report stage. In such ways do we make progress.

The amendment raises the issue of parliamentary privilege and seeks to explore the extent to which the courts should be limited in their interference with what goes on in the new parliament. Perhaps I should make it clear that it is not in any way the intention of the amendment to interfere with the powers which the Bill gives the courts to address and adjudicate on devolution issues. Nor is it the intention to limit the power which the Court of Session already has to entertain judicial review proceedings.

In that regard, I would welcome an answer to the question I posed back in July on the fourth day of the Committee stage and for it to be clearly indicated on behalf of the Government whether or not there is any intention that the Bill's provisions should interfere in any way with either the existence or the extent of the supervisory jurisdiction of the Court of Session. My understanding is that this issue has troubled a number of members of faculty. They have discussed this matter informally with Scottish Office officials at conferences which they have attended. It would be helpful if the matter could be clarified.

I fully recognise that in Clause 37 the Bill deals with freedom of speech in the new parliament in the sense that it will protect members from defamation proceedings. I fully accept that there are other provisions in the Bill which would entitle standing orders to regulate the extent to which members of the public are allowed to open their mouths if they happen to be in attendance in an observing capacity for the proceedings of the committee or the parliament itself. The amendment seeks to explore whether the new parliament, which will be a body enacting primary legislation which will have the same force in Scotland as primary legislation coming out of the Westminster Parliament and indeed will have the same force throughout the United Kingdom as primary legislation coming out of the Westminster Parliament, should have to have regard to the provisions of Article IX of the Bill of Rights Act of 1688, which applies in England and Wales and Northern Ireland and provides that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament, and whether they should also be bound by what is understood to be a comparable provision in the Scottish Claim of Right of 1689 which is understood, although there is no clear judicial authority on this point, to secure the same effect in the Scottish courts when Westminster legislation comes before the courts and when what is said by Members of this Parliament, whether of another place or here, falls to be considered.

As Members of the Committee will be aware, there is currently a joint committee of the two Houses of Parliament addressing the whole issue of parliamentary privilege. It has already taken evidence from a number of individuals, including senior government Ministers such as the Home Secretary, and senior judges such as the Lord Chief Justice and the noble and learned Lord, Lord Rodger of Earlsferry.

It appears to be recognised in the evidence which the Government submitted to the committee that to some extent at least parliamentary privilege restricts the extent to which the courts can seek to go behind what is said by Members of Parliament during debates and by doing so use evidence of what was said to impugn parliamentary conduct and in particular the conduct of individual Members. The reason for that would be that to do so would undermine the basic concept which lies behind Article 9 of the Bill of Rights and the equivalent provisions of the Claim of Right; that is, the need to ensure, as far as possible, that a member of the legislature can speak freely without fear that what he says will later be held against him in the courts, not just in defamation proceedings but in any other proceedings upon which his words must be founded.

The matter is dealt with at some length in a memorandum submitted by the Home Office to the joint committee. In view of the lateness of the hour, I shall not repeat or read out in any detail what it says. My concern is that when the courts consider what has taken place in the Scottish parliament, they should treat it with the same respect and with the same degree of reservation against undue interference as the courts throughout the United Kingdom treat what is said in this Parliament. Clearly, there will be judicial review proceedings in which it may be necessary to refer to what a government Minister said. Clearly, in addressing questions of the vires of the primary legislation coming out of the Scottish parliament, it may be necessary to refer to what was said in a Pepper v. Hart statement, as has previously been discussed in our debates in Committee. But beyond that, I believe the courts should not go.

The amendment seeks to place the new Scottish parliament on exactly the same basis as this parliament in relation to freedom from interference from the courts which would infringe the provisions of the Bill of Rights or the Claim of Right. If, once the joint committee has reported, the Government are minded to bring forward legislation to change the present status or present effect of ramifications of parliamentary privilege as it affects this Parliament, one would expect a similar change to be implemented in the Scottish parliament because my thesis is that both should be treated equally. However, it will clearly be some months, if not longer, before the committee reports. One suspects that it may be a year or two at the minimum before difficult, complex and sensitive legislation of the nature which would be involved to change the rules of parliamentary privilege is brought forward for consideration by your Lordships' House and another place.

In the interim, we should try to place the Scottish parliament on an equal footing. It is on that basis that I bring forward this amendment. It is in no sense to interfere with the need to scrutinise vires and the need to scrutinise issues arising under the human rights legislation; it is to encourage the courts to treat the new parliament with the same respect as the United Kingdom courts have traditionally treated the proceedings of this Parliament. I beg to move.

2.30 a.m.

Lord Hope of Craighead

I believe I can say on behalf of the courts that the last thing that they would want to do is to indulge in criticism of the procedures of the parliament. For that reason I strongly support the principle of the amendment proposed by the noble and learned Lord.

Lord Sewel

I recognise that the amendment deals with important issues. The relationship between the parliament and the court is clearly a matter of considerable importance. It is an area upon which I genuinely wish to reflect further. Some protections are already built in, as the noble and learned Lord indicated. There is perhaps a strong case that they do not go far enough at the moment and I should like the opportunity to think a little more and perhaps find an acceptable way forward. I am not convinced that we can put the Scottish parliament on all fours with the Westminster Parliament in that respect, but there is room to develop further the line that has been taken. I hope that we will be able to see progress certainly by Report Stage and on that basis I hope that the noble and learned Lord will feel able to withdraw his amendment.

Lord Mackay of Ardbrecknish

I am happy to accept that response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 91 agreed to.

Lord Sewel moved Amendment No. 291GA:

After Clause 91, insert the following new clause—

HUMAN RIGHTS

(" .—(1) This Act does not enable a person—

1. (a) to bring any proceedings in a court or tribunal on the ground that an act is incompatible with the Convention rights, or
2. (b) to rely on any of the Convention rights in any such proceedings,

unless he would be a victim for the purposes of Article 34 of the Convention (within the meaning of the Human Rights Act 1998) if proceedings in respect of the act were brought in the European Court of Human Rights.

(2) Subsection (1) does not apply to the Lord Advocate, the Advocate General, the Attorney General or the Attorney General for Northern Ireland.

(3) This Act does not enable a court or tribunal to award any damages in respect of an act which is incompatible with any of the Convention rights which it could not award if section 8(3) and (4) of the Human Rights Act 1998 applied.

(4) In this section "act" means—

1. (a) making any legislation,
2. (b) any other act or failure to act, if it is the act or failure of a member of the Scottish Executive.").

The noble Lord said: I can be brief or I can be long in relation to this amendment. I shall start by being brief and leave it to others to see whether I then need to go long. In essence, the amendment deals with the European Convention on Human Rights. The Government are fully committed to the rights and freedoms set out in that convention and believe that giving effect to them in UK domestic legislation through the Human Rights Bill will bring considerable benefits. The Scotland Bill also contains provisions to ensure that the convention rights are observed by the Scottish parliament and the Scottish executive. We want to ensure that the approaches taken in the Scotland Bill and the Human Rights Bill are consistent so far as possible. That is what the amendments set out to achieve. I beg to move.

Lord Mackay of Drumadoon

At this time of night I merely indicate that I do not intend to oppose the new clause. As I believe the Minister is well aware, there are some objections to this approach which have been advanced from the Liberal Democrat Benches by the noble Lord, Lord Lester, about the victim test under Article 34 of the convention. That means that litigants before the Scottish courts raising issues of vires may be entitled to advance certain arguments but not others, even though another party half-way along the bar represented by other lawyers can advance all the arguments. I regret to say that it is a situation which may give rise to a measure of confusion. We can discuss these matters later. On the basis that this clause in similar form is to be found in the Government of Wales Bill, it will be clearly wrong to oppose it becoming a part of this Bill at this stage.

On Question, amendment agreed to.

Lord McIntosh of Haringey

I beg to move that the House do now resume.

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

House resumed.

House adjourned at twenty-three minutes before three o'clock.