Lords Sitting of 22 October 1998

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Blackburn.): The LORD CHANCELLOR on the Woolsack.
The Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Irvine of Lairg): My Lords, before business begins, I take the opportunity to inform the House that I am to attend a meeting and undertake a speaking engagement at Glasgow University on Tuesday, 27th October, when the House will sit. Accordingly, I trust that the House will grant me leave of absence.

Pensioners and Income Support
Baroness Castle of Blackburn Baroness Castle of Blackburn asked Her Majesty's Government:
When they hope to publish the reports of the nine pilot schemes they have set up to identify and remove the reasons why million pensioners are not claiming the income support to which they are entitled.
The Parliamentary Under-Secretary of State, Department of Social Security, (Baroness Hollis of Heigham): My Lords, the Department of Social Security has been running nine pilot schemes since April this year to find the best way to provide more automatic help to the poorest pensioners. The pilots are only just being completed. We have commissioned an independent evaluation of the pilots which is currently being carried out. Results are expected early next year, and publication will then follow as soon as possible.
Baroness Castle of Blackburn: Does the Minister's reply mean that the publication of the Government's Green Paper on their comprehensive pensions policy is also to be delayed until the spring, making a fourth delay in the long saga of waiting for the Government to make up their mind? Or have the Government already made up their mind that a large part of pensions provision has to be means tested and that therefore it does not matter that this information is not available at the time of decision-making?
Baroness Hollis of Heigham: My Lords, the Green Paper on pensions will, as my honourable friend Mr. Denham has repeatedly said in another place, be published towards the end of this year. It is a Green Paper, and therefore a consultation document. There will be ample time for the results of the pilots to feed into the Government's future proposals for pension reform.
Baroness Miller of Chilthorne Domer: My Lords, does the Minister think it significant that the take-up of housing benefit is so much higher than that for income
1556
support? Housing benefit is delivered by accountable, and usually more reachable, local authorities. Will the Minister tell the House what progress the Department of Social Security is making with its attitudes to claimants survey to discover the comparative experience of those claiming from local authorities and from the Benefits Agency?
Baroness Hollis of Heigham: My Lords, I welcome the noble Baroness, who is asking her first question. She is right. The record achieved by local authorities in the take-up of housing benefit is indeed higher than that for the take-up of income support by pensioners. That is precisely why we have engaged on the pilot schemes. It is clear that pensioners take up housing benefit because they are disproportionately living in council housing, or it comes to them automatically. We wish to see whether we can learn from that and achieve the same automatic delivery of benefit to pensioners who fail to claim but who are entitled to income support.
Baroness Castle of Blackburn: Does the Minister's reply to my question mean that the Government are determined to extend the area of means-tested benefits instead of building up a proper state insurance scheme under which people may receive their pensions as of right?
Baroness Hollis of Heigham: My Lords, the choices are not merely a matter of either means-testing or a state insurance scheme. As the noble Baroness will know, the prosperity of future pensioners depends on a good second-tier pension, an occupational pension, appropriate personal pension or whatever; or, if those do not apply, SERPS or our proposals for stakeholder pensions. We currently have a problem in relation to poorer pensioners, mainly single women over the age of 75 who fail to claim income support and who have no occupational pension of their own. We believe that something like 1 million of them are failing to claim £15 a week. Therefore my noble friend and I are not in conflict on this matter. We all wish to see prosperity for future pensioners. However, there is a problem now; namely, that people who are not entitled to an occupational pension need income support and are failing to claim it. That is why we are going ahead with the pilot schemes.
Baroness Gardner of Parkes: My Lords, in my experience as a dentist I have found that older people were brought up under a system whereby they now feel it is beyond them and beneath their pride to ask for benefit. Does the Minister believe that that is a factor in relation to the age division? Or is it simply that the forms are too complicated?
Baroness Hollis of Heigham: My Lords, the noble Baroness may well be right. There may be a generation issue. However, the qualitative survey that we undertook before entering into the pilot schemes suggested that the reasons pensioners seemed not to be taking up income support were a mixture of ignorance as to their

1557
entitlement, the complexity of the forms, as the noble Baroness rightly identified, the stigma associated with means-testing, but also because sometimes a pensioner, having sought a benefit in the past, may have been rebuffed and now wishes to have nothing to do with the system. In the pilot schemes we are attempting to find a method that may work to help overcome those perceived hurdles. If, for example, we scrutinise the records of those receiving attendance allowance, it is quite a good proxy to ensure that people also receive income support.
Lord Borrie: My Lords, will my noble friend consider a proposal whereby all those over 75 automatically receive a larger amount, a minimum pension guarantee, unless it is shown that their means enable them to receive a satisfactory income without the extra amount?
Baroness Hollis of Heigham: My Lords, my noble friend may be referring to the proposals of Liberal Democrat spokesman, Mr. Steven Webb, regarding an extra pension for those aged over 75 and over 80. It is an interesting proposal. We are examining it. However, two issues would have to be addressed. One is the cost: £1 billion gross, half a billion net; the other is that a large proportion of the money would still go to people who financially do not need it because they are already relatively comfortably off.
Baroness Ludford: My Lords, there has been mention of a one-stop shop as between local authorities and the Benefits Agency. In reply to my noble friend Lady Miller, the Minister said that more people apply for housing benefit than for income support. When we discuss forthcoming social security it is to be hoped that there will be a move towards a one-stop shop. Information given to local authorities ought to be shared with the Benefits Agency. That would be one way of tackling the problem. Secondly, has the Minister noted the Audit Commissioners' estimate in their report on housing benefit fraud of £180 million, not the £4 billion mentioned by the previous Minister in the Department of Social Security?
Baroness Hollis of Heigham: My Lords, on the last point it is hard to know the real figure in relation to fraud. Had it been detected we should have received the money. The noble Baroness is right, as was her noble friend Lady Miller. There is a much higher take-up for housing benefit—94 per cent.—compared to the take-up of income support, which runs more generally at about 80 per cent. The discrepancy is even wider for pensioners. That is why, in the recent Social Security Act, we extended proposals introduced by the previous administration on data matching (information sharing) for good reasons between local authorities and central government. We hope to go further down that road.
Baroness O'Cathain: My Lords, on the point about providing additional pension to those over the age of 75, surely the problem would be tackled if that particular part of the pension were liable for tax. Those who were
1558
not liable for tax would receive the full benefit of the additional payment, and those who were better-off would not. Does the Minister agree that that would solve the problem?
Baroness Hollis of Heigham: My Lords, that is certainly true. As I said, we are looking at the matter. It is worth reminding ourselves how much pensioners' incomes have stretched over the past few years. As of 1996 the average income of the fifth of pensioners with the lowest incomes is only £100 a week. For the fifth of couples with the highest incomes the average is £600 a week. Inequality has widened within the population of pensioners over the past 20 years. That is why we are addressing the matter and are so concerned to target public resources to those in greatest need.
Baroness Byford: My Lords, I refer to the first comment of the noble Baroness, Lady Castle, relating to the delay in millions of pensioners claiming their allowances. On these Benches we share the concern that, by delaying claiming, those pensioners miss out on fuel payments and other benefits to which they are entitled. On the broader front, will the Minister accept that a minimum-pension guarantee would not increase the state pension? Surely, the result would be an increase to means-tested income support? Does she not accept that that may result in a disincentive to save, increasing dependency on the state?
Baroness Hollis of Heigham: My Lords, I do not accept the assertion behind the second part of the noble Baroness's question. The Chancellor has announced that from April 1999 we shall spend £2.5 billion on pensioners in terms of the take-up of income support and increasing the top-up from retirement pension to income support by three times what would have been the normal uprating, so that the minimum guaranteed income for pensioners will be £75 for an individual and £116 for a couple. In addition, we shall repeat the winter fuel payments and restore free eye tests—which should never have been stopped—and concessionary fares. A substantial package will go to the poorest pensioners, as a result of which they will enjoy a much greater hike in their real income than they have had at any point since the previous Labour administration.

Vickers: Tank Factory Job Losses
3 p.m.
Lord Calverley Lord Calverley asked Her Majesty's Government:
What is their response to the laying off of 450 workers at the Vickers tank factory in Leeds.
Lord McIntosh of Haringey: My Lords, job losses are always regrettable. It is very sad that Vickers has been unable to sustain its current workforce in Leeds, especially as it has had a long association with the city. I am therefore pleased that the Government Office for Yorkshire and Humber has announced that it is establishing a rapid response unit to bring together the city council, the Leeds training and

1559
enterprise council, the Employment Service and the company to ensure that every possible help with retraining and redeployment is available. I am sure that the skills of these employees will prove attractive to other employers. This help is in addition to the out-placement services which Vickers will offer to all staff who are made redundant.
Lord Calverley: My Lords I thank the Minister for his reply. But is he aware that the Strategic Defence Review of 11th July this year stated that,
"substantial work [is assured] … for the next three years"?
Just two months later these cuts were announced. Does he agree with the Governor of the Bank of England that this is an acceptable price to pay?
Lord McIntosh of Haringey: My Lords, the Strategic Defence Review provided a clear basis for the aerospace and defence industries to plan for the future. That does not mean that every single job at every single location is automatically protected.
As to the noble Lord's second question, I have to remind him that the Governor of the Bank of England is not a Minister of the Crown, unlike the previous Chancellor of the Exchequer who said that unemployment was a price worth paying. If the noble Lord looks at the Governor's remarks as reported in the Newcastle newspaper, The Journal, he will see that he said:
"My anxiety is to try to keep unemployment lower than it has been in earlier phases of slowdown and earlier phases of recession. I am very hopeful that any rise in unemployment that we will see will be nothing like the kinds of rises we have seen in the past".
Lord Merlyn-Rees: My Lords, we know in Leeds why there is a decline in the number of tanks needed by the Army. We understand and confirm the steps that have been taken by the local authority. In Leeds we do not have the incentives that are offered in other parts of the country to attract new industry into the area. Given what has happened at Vickers, formerly Barnbow and the ROF, which has provided work in Leeds for many decades, we should look again at possible incentives to bring work back to that part of Leeds.
Lord McIntosh of Haringey: My Lords, I cannot deny what my noble friend said about incentives. The economy in Leeds is diverse and buoyant. Leeds is one of the fastest growing cities in Europe. We recognise that there are areas of severe deprivation in Leeds and for that reason the Government are investing over £60 million in the city through the single regeneration budget up to and including the year 2004–2005.
Lord Vivian: My Lords, can the Minister assure the House that the proposed reduction in the number of workers at the Vickers factory will not affect the numbers and times of issue of Challenger 2 tanks to our armed forces?
Lord McIntosh of Haringey: My Lords, Vickers, rather than the Government, is responsible for meeting
1560
its contractual obligations to government. I understand that it made its decisions as to its workforce in Leeds for commercial reasons. I have no reason to suppose that it is putting its contractual obligations at any risk.
Lord Dean of Beswick: My Lords, does the Minister accept that, though the number of those who will lose their jobs in Leeds—namely, 450—is a lot fewer than the losses predicted at Rover, it is as big a blow to every man who loses his job in Leeds and to his family as it would be to anyone working in the car industry? Can the Minister assure us that the Government will treat this issue as seriously as that in relation to Rover?
Lord McIntosh of Haringey: My Lords, my noble friend is right. Every time a job is lost in engineering, whether it is in cars or defence manufacturing, ancillary jobs of suppliers are also at risk. That is why I said in my first Answer that a rapid response unit was being set up to tackle problems of that kind. That does not gainsay the fact that my noble friend is right. Job losses are serious for the economy and a tragedy for those involved.
Lord Gillmore of Thamesfield: My Lords, I should first declare an interest as a non-executive director of Vickers. Does the Minister accept that the job losses at Leeds would have been far greater had not the company decided to use about half the existing site to establish a centre of excellence for the maintenance, re-equipment and support of the tanks now in service with the British Army?
Lord McIntosh of Haringey: My Lords, with the greatest respect, I am not sure that a non-executive Director of Vickers should be asking questions about that matter in this House. These matters are for Vickers, not the Government.
Lord Burnham: My Lords, is it not the case that at present we have a substantial number of the heavy tanks in which Vickers has specialised? Is it not also the case that the need is for a lighter and different type of armoured fighting vehicle and that so far Vickers has proved unable to succeed in competition for contracts to produce such a vehicle on which it should now be advised to concentrate?
Lord McIntosh of Haringey: My Lords, I do not think it is for the Government to advise Vickers as to what type of vehicle it should concentrate on. It must make commercial decisions. What the Government can do, and have done, is to try to set out as clearly as possible for a number of years ahead their defence strategy and, therefore, the procurement policies which follow from that.

Social Security Benefits
3.19 p.m.
Baroness Turner of Camden Baroness Turner of Camden asked Her Majesty's Government:
Why, when a woman becomes entitled to widow's benefit, she automatically loses the invalid care allowance, even though her caring role for a disabled relative may continue.
Baroness Hollis of Heigham: My Lords, it is a basic principle of the social security system that only one benefit at a time can be paid to a person for income maintenance. Widow's benefit is designed as an income replacement benefit for women who lose their means of support through being widowed. Invalid care allowance provides a measure of financial support to those who give up the opportunity of full-time paid employment to care for a severely disabled person. To pay both benefits in full at the same time would duplicate provision for that need because they are both income replacement benefits. I understand that this has been the case ever since the social security system was established in 1948. It was applied to carer's benefit when my noble friend Lady Castle introduced ICA in 1975 from which so many carers have subsequently benefited.
Baroness Turner of Camden: My Lords, I thank my noble friend for her response, is she aware that the Question is based upon a case reported to me as a trustee of the Widows' Advisory Trust? The case involved a woman who had spent her life looking after a Down's Syndrome child. She had had the support, financially and otherwise, of a husband. He died and she received a widow's benefit which replaced the financial support that she had had from her husband, but at the same time she lost ICA. I believe that that was a rather harsh decision. Can these kinds of cases be looked at carefully in future? This view is supported by the Carers' Association, of which I am also a member.
Baroness Hollis of Heigham: My Lords, I am happy to assure my noble friend that this matter will be drawn to the attention of both the National Carers Strategy Forum which is being chaired by my honourable friend Mr. Paul Boateng and our forthcoming review of widows' benefits. If there is an income or earnings replacement benefit, two benefits are not paid at the same time if they overlap for the same purpose. For example, if a widow was on incapacity benefit, which is an earnings replacement benefit for an individual who has become disabled, she would not get that plus widow's benefit but she could get housing benefit or disability living allowance to meet extra costs. That is the basic principle of the social security system. But I shall be very happy to look at the case to which my noble friend has referred to make sure that that family claims every benefit to which it is entitled. There is a full range of other benefits, from disability living allowance to carers' premiums and so on, to which such a family is entitled. It is worth ensuring that that family is claiming its entitlement.
Earl Russell: My Lords, will the Minister consider whether she has just committed the logical fallacy of false
1562
division? I heard what she said about income replacement benefits, but is not invalid care allowance entirely correctly classified as an income replacement benefit, or should it be classified as a benefit for meeting additional costs?
Baroness Hollis of Heigham: My Lords, I look to my noble friend Lady Castle for support in this matter. It is an earnings replacement benefit for those who, by virtue of their caring responsibilities, which we all value, come out of the labour market and care instead. That is why at earnings of £50 a week, for example, the benefit stops. The assumption then is that someone is replacing care income with earnings income. It is an earnings replacement benefit and that is its intent. As a result, ever since 1975 when it was first established it is not allowed to overlap with any other earnings replacement benefit. It is not compensation or an extra cost benefit, which is DLA, but an earnings replacement benefit. That was its purpose and, as I understand it, it retains that purpose.
Lord Addington: My Lords, to follow up my noble friend's Question, does the Minister agree that two sets of costs are being incurred which these benefits are designed to meet but as they come to the same kind of payment one is disappearing? Is it not the case that the rules have been set and will be followed no matter how ridiculous they are?
Baroness Hollis of Heigham: My Lords, this is the basic principle of the social security system. I gave the example of a widow who had previously been receiving incapacity benefit, which is an earnings replacement benefit. She would not receive IB and widow's benefit because both are earnings replacement benefits. She would get a benefit for a different reason—that is, extra cost, which is disability living allowance, housing benefit or council tax benefit which meet a different need. Clearly, it is open to any government not to have any overlapping benefits. I suspect that the overall social security Bill would go up from its current £100 billion approximately by perhaps 20 per cent., 30 per cent. or 50 per cent. That is the principle on which we are currently operating. But I shall consider the particular case raised by my noble friend to ensure that all proper moneys are being paid.

Savings Account Criteria
3.25 p.m.
Lord Chesham Lord Chesham asked Her Majesty's Government:
What steps they intend to take to ensure that all savings and investment accounts offered by National Savings meet the benchmark standards for the individual savings account.
Lord McIntosh of Haringey: My Lords, the CAT benchmark standard is a voluntary set of requirements designed specifically for the new individual savings account. Its purpose is to support savings through ISAs by encouraging minimum standards for charges, access and terms. There is no intention that the CAT standards

1563
should apply to other forms of savings, whether those savings are provided by National Savings or anyone else. There is a huge range of savings products catering for many different needs. Many national savings products are bond or certificate products which are mainly lump sum investments at fixed rates. It is wholly inappropriate to compare the CAT standards designed for cash ISAs against such products. I am pleased to be able to announce that National Savings plans to introduce a new savings account specifically for inclusion within an ISA which it fully expects will meet the CAT standards.
Lord Chesham: My Lords, in the light of the report that all existing 18 products of National Savings do not meet the Government's criteria that savings plans must be approved by the Treasury and the disquiet in the industry about these criteria, ironically, cannot the Government review the criteria rather than the individual savings plans?
Lord McIntosh of Haringey: My Lords, there are not 18 but 11 National Savings products. All but three of those are bond or certificate products that are strictly non-comparable with cash ISAs. Of the three that are account products offered by National Savings, one is designed only for charities. The second is the individual account which is designed for quick deposit and withdrawal and quite different from ISAs. The third is the investment account which is designed for a quite different purpose since half of the investors are children who are not able to benefit from ISAs. The comparisons are entirely inappropriate.
Lord Newby: My Lords, given the uncertainties that have surrounded the development of the CAT standard to date, can the Minister give any indication as to when the regulatory authorities may be in a position to decide whether individual ISAs meet the CAT standard?
Lord McIntosh of Haringey: My Lords, it will be in good time before introduction.
Lord Mackay of Ardbrecknish: My Lords, despite the Minister's robust defence of National Savings, do not the Government find it a little embarrassing that so many of the accounts fail to meet the benchmark standards? In particular, is it not embarrassing that the National Savings investment account fails on all three counts? Should not the Government do either as my noble friend suggests and look again at the benchmark standards or ask National Savings to come into line with those standards as an example to other providers?
Lord McIntosh of Haringey: My Lords, I am glad that halfway through his Question the noble Lord began to recognise that the comparison between ISAs and the bond and certificate products of National Savings was entirely inappropriate and therefore concentrated on the investment account. The investment account is not required to meet CAT standards; nor was it ever intended to do so. That product is designed for a different purpose. At least half of the holders of
1564
investment accounts are in any event ineligible for ISAs. As for the CAT standards themselves, I do not believe that their status should be exaggerated. These are benchmark standards. There will be perfectly acceptable ISA products, or products incorporating ISAs, that are appropriate to individual savers all of whom have different needs and will not necessarily conform to the CAT standards.
Lord Razzall: My Lords, does the noble Lord agree after a moment's reflection that his response to my noble friend Lord Newby was somewhat inadequate? Does the Minister agree that the likely date is a matter of public interest? Even if he cannot give a firm commitment, is he able to indicate whether it will be this year, next year or never?
Lord McIntosh of Haringey: My Lords, ISAs are to be introduced by April 1999. I have given the commitment that matters: that the regulatory standards will be available in good time. Anything beyond that is pure speculation and technical, and does not need to concern the noble Lord in the way that he seems to be concerned.

Business of the House: State Opening
3.30 p.m.
Lord Carter: My Lords, I am sure the House will be delighted to hear that it is expected that the new Session of Parliament will be opened by Her Majesty the Queen in person on Tuesday 24th November. I am not yet in a position to announce the intended date on which the House should meet to prorogue. However, I can say that, subject to the progress of business, it is expected that this will be in the course of the week beginning Monday 16th November. I have to tell noble Lords that the prorogation is likely to be in the latter part of that week.
Viscount Cranborne: My Lords, I am sure the whole House will be extremely grateful to the Government Chief Whip for making the announcement as soon as he was able with his usual courtesy to the House.
Perhaps the noble Lord will take this opportunity to acknowledge that during the course of the past Session the House has sat for a longer period in one Session than any other period—I think that I am right in saying—in the records of your Lordships' House. I hope he will recognise that during the course of that Session this House has processed an extraordinary amount of important and epoch-making—but we hope not too damaging to the future of this country—business. We hope that he will also recognise that during the course of performing that task this House has performed also its historic task of examining large chunks of business which had not received even the most cursory examination in another place. That perhaps underlines the importance of a second Chamber.
Lord Rodgers of Quarry Bank: My Lords, on behalf of these Benches I, too, am grateful for the indication of when the Queen's Speech will take place.

1565
Will the noble Lord the Chief Whip take this opportunity to comment on a matter which arose at Question Time? The noble Lord will remember that in reply to a supplementary question in which the noble Lord, Lord Gillmore, declared that he was a non-executive director of Vickers, the noble Lord, Lord McIntosh of Haringey, said that he was doubtful whether it was proper for such a question to be put. I understood that it was not required of noble Lords to state an interest at the time of asking questions. However, if, despite that non-requirement, a noble Lord chooses to do so, is it appropriate for the Government Front Bench then to say that it is an improper question? It is an important issue on which I think the whole House will want an answer.
Lord Carter: My Lords, I am extremely grateful to the two noble Lords. Perhaps I may answer the noble Viscount the Leader of the Opposition. It is true that this has been a long Session. As Chief Whip, I am extremely grateful for the patience that has been shown in all parts of the House in a Session which has been extremely heavy. An interesting point is that during this Session we shall have passed in excess of 50 Bills. That is almost exactly the same number as was passed in the 1979–80 Session, which is the equivalent 18-month Session after a period in opposition. To be fair, we have included in those 50 Bills three substantial Bills on devolution.
It has been a long Session. Your Lordships will have seen the statistic which has been quoted: that this has been the longest Session sitting of the House since the Long Parliament. I have done a little research on that. I can confirm that the number of Conservative Peers considerably exceeded the number of Labour Peers in that Parliament as well.
I think that I can promise noble Lords that the Session we shall start on 24th November will be no less exciting and demanding than the one we have had this year.
On the question asked by the noble Lord, Lord Rodgers, the Companion is entirely clear. If there is an interest to be declared it should be done at an appropriate time. It is not always necessary to do so at Question Time. Perhaps the noble Lord who intervened felt that as the Question was directly about Vickers he should mention the matter. But the Companion is entirely clear on the attitude that your Lordships should take on that matter.
Lord Renton: My Lords, on that last point, does the noble Lord the Government Chief Whip recollect that there have been fairly frequent occasions over the years when trade union leaders who happen to be noble Lords have intervened on matters affecting their unions in circumstances not dissimilar to those which arose at Question Time today? If it is proper for a trade union leader to do so, surely it is equally proper for a director of the company concerned, having declared his interest, to do so.
Lord Carter: My Lords, perhaps the best thing I can do is to read what the Companion says. It states:
"Lords who have a direct financial interest in a subject on which they speak should declare it, making clear that it is a financial interest. They should also declare any non-financial interest of which their audience should be aware in order to form a balanced judgment of their arguments".
It also states:
"On certain occasions such as Starred Questions and the various stages of a Bill following Second Reading, it may be for the convenience of the House that Lords should not take up time by repeating declarations of interest but Lords should make a declaration whenever they are in doubt".
Viscount Cranborne: My Lords, I hope that noble Lords will forgive me for prolonging the matter, but I believe that the House should be extremely grateful to the noble Lord, Lord Rodgers, for raising the matter immediately. The House should also be extremely grateful to the Government Chief Whip for reading out the relevant part of the Companion, which seems to me to be perfectly clear, as he intimated.
If the Government Chief Whip agrees with me that the Companion supports the fact that the noble Lord, Lord Gillmore, acted entirely within the spirit and letter of the instructions of the Companion, I hope that he will therefore acknowledge that the noble Lord, Lord Gillmore, acted entirely properly during the course of Question Time today.
Lord Carter: My Lords, I am sure that all noble Lords attempt to act entirely properly during Question Time. However, the Companion also says that noble Lords should be "especially cautious" when they have a direct financial interest. They should be extremely careful in the way in which they handle it.
Lord Rodgers of Quarry Bank: My Lords, I am sorry to pursue the matter further. The noble Lord, Lord McIntosh of Haringey, is very courteous in his treatment of the House, but those of us who were present heard plainly a reprimand from the noble Lord, Lord McIntosh, which was inappropriate. I ask the Government Chief Whip, without making a further meal of it, to say that in this case an error was made. That could be an end of the matter.
Lord Carter: My Lords, I am not sure that it was an error. I am not of the intention of reprimanding any of my colleagues. I am sure that my noble friend was aware of what the Companion said and I think he treated the matter in the way that he thought was correct.
Viscount Cranborne: My Lords, I am very sorry, because the Government Chief Whip is always extremely courteous and helpful to the House, and entirely unpartisan in the way that he treats us. I know that he is being unpartisan in this matter. However, there has clearly been an imputation about the propriety of the conduct of a Member of your Lordships' House—as it happens, a particularly well-respected and distinguished Member of your Lordships' House. I believe it would be appropriate—I am absolutely sure that no imputation

1567
was meant by the noble Lord, Lord McIntosh, that the noble Lord acted beyond the realms of propriety—that the matter should be made absolutely clear now.
Lord Carter: My Lords, in these circumstances it is always as well to check Hansard to see what was said. I am sure my noble friend had no intention of imputing any base motives to any noble Lord. He saw the situation. The Companion is entirely clear. He acted in the way he thought was right. I am sure the noble Lord, Lord Gillmore, also thought that he was correct. I suggest we all read Hansard tomorrow and reflect on it.
Lord Phillips of Sudbury: My Lords, is it not a fact that the noble Lord, Lord McIntosh, refused to answer the question. Might he now answer the question posed by the noble Lord?
Lord Carter: My Lords, I know that the noble Lord is new to this House, but Question Time ended after 30 minutes.

Scotland Bill
3.38 p.m.
Report received.
Clause 1 [The Scottish Parliament]:
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 1:
Page 1, line 15, leave out subsection (4).
The noble and learned Lord said: My Lords, I beg to move Amendment No. 1, which leaves out subsection (4) on the ground that it is obviously unnecessary. The subsection provides that:
"The validity of any proceedings of the Parliament is not affected by a vacancy in its membership".
Nobody in his senses supposes that parliamentary proceedings become invalid during a by-election. A similar point arises with Amendment No. 69 to Clause 16, which is concerned with disqualification rather than vacancy.
I must at the outset apologise for the state of my voice. I hope that it will serve for the argument. If not, I am encouraged by the presence of the noble and learned Lord, Lord Mackay of Drumadoon, because my amendment repeats one tabled by him in Committee. I spoke in support of it and was expecting an answer to the points that I made. It was only after two-and-a-half months of silence and an inability to contact the noble and learned Lord, Lord Mackay of Drumadoon, that I tabled Amendment No. 1.
Subsection (4) is a perfectly unnecessary provision because no sane person supposes that a vacancy in membership, resulting from a by-election, say, invalidates the proceedings. In fact, in this case there is an additional point, to which I shall turn in a moment. The amendment raises the following question. Are we going to continue to clutter up the statute book in order to anticipate any argument, however futile?
That causes me to consider what has happened to the statute book in recent decades. The noble Lord, Lord Renton, who is in his place, will not be surprised to hear me refer to his Committee on the Preparation of Legislation. It reported in 1975 and criticised the prolixity of the statute book, which was then three volumes of public and general Acts. Within a few years, notwithstanding what the Renton Committee had stated, it had increased to five volumes. The format was then enlarged, to the extreme inconvenience of those who had had bookcases made for the smaller volumes. However, no doubt that did not matter to the various government departments which could have larger bookcases made. In spite of the fact that that larger format enabled the volumes to be reduced to three, they have subsequently again increased to five and I should be very surprised if this year there were not more. Why is there this prolixity, only one aspect of which is highlighted by the amendment?
Your Lordships may remember a letter written by George Bernard Shaw in which he apologised for its length on the ground that he had no time to write a shorter one. That is the same in parliamentary drafting. It takes time to economise in drafting. The parliamentary draftsmen, particularly this year, have been under exceptional pressure, and it is very much easier to repeat formulas which have been used in the past—however inappropriately in the past and still more inappropriately in the present—than to try to pare down.
Similarly, officials wish to cover every single point. That matter was referred to specifically by the Renton Committee, quoting a memorandum from two eminent Scottish lawyers, my noble and learned friend Lord Emslie and the late Lord Wheatley who at the time were respectively Lord President and Lord Justice Clerk. No notice has been taken of that, so we ask why parliamentary counsel have not been told to economise. Why has not the pressure been taken off them to enable them to do so? The answer is that no one is effectively responsible to parliamentary counsel as a whole. In theory, they are directly responsible to the Prime Minister, but the Prime Minister has things to do other than worry about the details of drafting.
A few years ago, Sir Robert Andrew, an eminent former civil servant, was appointed to consider the government legal services and he made a great number of recommendations. One was that parliamentary counsel should be responsible to the Law Officers. Of all his recommendations, that was the only one that was not accepted. Anyone who has knowledge of Whitehall can imagine the manoeuvres and pressures which led to that exception.
As it is, all that we have is that the draftsman of a particular Bill is responsible to the Minister in charge of it. When the Minister is a layman, naturally, he will immediately accede to the argument of counsel that such and such has been done previously and that such and such is desirable, even if not strictly necessary, in order to obviate an argument. I believe that to be the case here.
The noble and learned Lord the Lord Advocate, who I apprehend will reply, will perhaps confirm whether my recollection is correct. It fits in with the letter I received

1569
a few days ago and which, unfortunately, crossed one of mine. We both know where the other stands. I repeat that, effectively, a lay Minister is in the hands of counsel.
Since I entered the other place in 1951 I have known only one Minister who insisted on having his way in paring down drafting. As he generally operated in the small hours of the night that was not very popular with parliamentary counsel. I believe that the noble Lord, Lord Renton, will know to whom I refer. He is no longer alive—that is to say, Lord Duncan-Sandys is no longer alive—but happily the noble Lord is still alive. It is only when there is a lawyer that parliamentary counsel can be effectively challenged and perhaps still more when a Law Officer, as in the present case, is in charge of the Bill. An exceptional burden of responsibility lies on a Law Officer because he is not purely a partisan spokesman of the Government. He owes a duty to the House in which he sits to put the law impartially and accurately. Those of us who heard the noble and learned Lord the Lord Advocate speak of his duty in relation to the Lockerbie prosecution will have no doubt that he stands firmly in the best tradition in that respect.
The argument in favour of the subsection is quite absurd because no sensible person has ever supposed that a parliamentary by-election—and that is what we are concerned with here—invalidates the proceedings of Parliament. But there is an exceptional case in the present Bill. Clause 8(4) states:
"The election shall not be held if the latest date for holding the poll would fall within the period of three months ending with the day on which the poll at the next ordinary general election would be held'",
and is followed by some immaterial words. In other words, if the argument in favour of retaining the subsection in Clause 1 is right, it means that there are three months during which Parliament is totally incapable of activity providing that there is a vacancy or disqualification during that period. I owe that point to my noble and learned friend Lord Brightman. I hope that he will speak on this amendment. It is a clinching argument.
I said that nobody in his senses could argue that a by-election invalidates the proceedings of Parliament. I go further. In the light of Clause 8(4), anybody who so argues would have to be hurried off rapidly to a mental hospital.
I now deal with the arguments of the noble and learned Lord the Lord Advocate which I received a day or so ago. They are in answer to questions that I asked on 16th and 30th July. When I heard nothing in all that time I suspected that I could hear distantly the sound of entrenching tools in Whitehall and so it appeared when I received his letter. The first thing he states is that there are precedents. So there are. This provision occurs in other statutes and all except one appear in schedules where they were not noticed. In any case all the statutes, including the latest, dealt with corporations aggregate. But the Scottish parliament is not a corporation aggregate. As the noble and learned Lord the Lord
1570
Advocate pointed out in his letter clearing up the confusion, the Scottish parliament is an unincorporated association. So no precedent applies.
The second argument is that the parliament is defined as having a particular number of members. I suppose the argument might be put forward that the absence of one of those members invalidates the proceedings. But the House of Commons also has a specified number of Members. That cannot be exceeded because it is governed by the various electoral Acts. As I say, nobody has been sufficiently off his head to argue that the proceedings of the House of Commons are invalid during a by-election.
Filled with enthusiasm, the noble and learned Lord went on to say that that argument could not be put forward in relation to the House of Commons because it would be precluded by the Bill of Rights. But that will not do. All that that Bill says is that proceedings in Parliament may not be questioned out of Parliament. So I ask the noble and learned Lord specifically whether anybody in Parliament has ever been so foolish as to argue that a by-election brings the validity of its proceedings to an end. I hope that I have dealt with all his points. I believe that I have. If I have not, no doubt he will develop them. I press this amendment. Unless we make a stand at last on a perfectly plain issue, we will continue at great expense and inconvenience in allowing the statute book to grow and grow. I beg to move.
The Earl of Mar and Kellie: My Lords, these amendments are tempting because their proposer, the noble and learned Lord, is usually correct in seeking to delete unnecessary words. On the face of it the two subsections seem to be unnecessary. I recall my initial surprise at finding them in the Bill at all. They seem to clarify a matter which I did not think was in doubt but now, recognising that the Scottish parliament will be a creature of statute and possibly subject to judicial review in some form, I feel that their inclusion in the Bill will be helpful. Without these words there could be doubt and opportunities for mischief-making by people who oppose the existence of the Scottish parliament. Their deletion would allow such opportunities for a judicial process rather than securing the successful launch of the Scottish parliament. Indeed, their deletion today could send an unhelpful signal to mischief-makers. Therefore, I believe that these tempting amendments should not be supported.
4 p.m.
Lord Brightman: My Lords, I strongly support this amendment. How can it seriously be contended that the legislative assembly of a country can be brought temporarily to a standstill because a member has died or chosen to resign? It is bad policy to build unnecessary clauses into a Bill for the avoidance of untenable doubts. If we do not get rid of this dead wood parliamentary drafting will become ossified. If we carry this matter further, I hope that your Lordships will support the crusade to get rid of this totally unnecessary subsection.
Lord Mackay of Drumadoon: My Lords, I rise to support this amendment. I wish to make it clear that,

1571
although my name is not on the amendment, that does not in any way signify a lack of support for the idea. I am told that my name is on the amendment. That shows that I support it subconsciously as well as consciously.
The idea in the amendment was raised, first, in the Government of Wales Bill, when the noble and learned Lord, Lord Simon of Glaisdale sought—without any success—to persuade the Minister's Welsh colleagues of the validity of his argument. As the noble and learned Lord rightly said, the physical size of public general statutes increases year-by-year. They creep along my bookcase in a horizontal direction just as my neighbour's Leylandii hedge creeps upwards year-by-year. It is a major problem. When one looks at the statute and tries to identify the relevant subsections, there are occasions when the verbiage gets in the way.
When this matter was last debated, I drew attention to the provisions of Clause 8(4) and argument upon which the noble and learned Lords, Lord Simon of Glaisdale and Lord Brightman, have also commented. It is quite inconceivable that this argument could be advanced. I have the benefit of a copy of the letter which the noble and learned Lord the Lord-Advocate sent to the noble and learned Lord, Lord Simon of Glaisdale, and I remain unpersuaded that this is a serious question. It is a small matter on which to take a stand, but there is no doubt that this is a suitable opportunity to take a stand. I wish the noble and learned Lord the Lord Advocate to be aware that if the noble and learned Lord, Lord Simon, presses the matter to a Division, we on these Benches will support him.
The Lord Advocate (Lord Hardie): My Lords, having heard the very able speech by the noble and learned Lord, Lord Simon of Glaisdale, I was tempted to concede the amendment. However, I should advise your Lordships that, in the light of the debate in Committee, we have looked very closely and carefully at Clause 1(4), and, as my letter to the noble and learned Lord, Lord Simon of Glaisdale, outlined, we remain of the view that it would be better to retain this subsection.
Indeed, the concerns frequently expressed at various points during the Committee stage, from all sides of the Committee, that proceedings of the parliament might be too vulnerable to legal challenge, reinforces our view that Clause 1(4) and Clause 16(5) offer wise protections and should stand.
Before going further, I should confirm that, as the noble and learned Lord, Lord Simon of Glaisdale, has properly understood, it is our position that the Scottish parliament will be an unincorporated association created by statute. I should like to correct something that I said in the earlier debate. It was my understanding that the Westminster Parliament was a corporation sole. I am afraid that that understanding was incorrect, as I indicated in my letter, and I believe that the Westminster Parliament is not a body corporate in any form. As I mentioned in my letter to the noble and learned Lord, I regret if any of my comments in Committee were misleading in any material way.
1572
The issue raised by the noble and learned Lord, Lord Simon, in these amendments is undoubtedly important. I share the view that the statute should not be cluttered up with unnecessary provisions. These amendments raise the issue of the necessity of the provisions in question. They are essentially simple provisions which are concerned with the balance of risk. However small we may perceive the risk to be of an argument along the lines being advanced, if the judgment is wrong the consequences would be very serious for the operation of the parliament. I am sure that the sensible path is to retain this provision. The essential point is that if we omit these provisions now we will increase—as the noble Earl, Lord Mar and Kellie, said—the scope for mischief and the scope for such arguments.
As I suggested in my letter to the noble and learned Lord, Lord Simon, we think that the relevant question is: what constitutes the body of persons which is capable of taking a vote on a matter within the parliament? The parliament will be an unincorporated association of persons which is to be defined in statute as having a specified number of members. If the association is defined by a particular membership and the membership is not complete, that raises the question of whether or not there is then a validly constituted association in existence.
Lord Simon of Glaisdale: My Lords, will the noble and learned Lord address that argument in relation to the House of Commons, which is also a specified number?
Lord Hardie: My Lords, I was intending to do that. With the leave of the House, I shall deal with that in due course.
If the association is not defined in this way, there is no such association capable of taking a vote on any matter and questions of majorities or minorities become irrelevant. For that reason I am not persuaded that it is necessarily the case that the provisions of Clause 1(4) do no more than confer a protection on the parliament which would be recognised at common law.
Turning to the point which the noble and learned Lord, Lord Simon, raised a few minutes ago—the comparison with Westminster and the House of Commons—I do not consider that comparisons with Westminster in this connection are apt. Westminster, the House of Commons, is not a creature of statute, whereas, what we are talking about here—
Lord Simon of Glaisdale: My Lords, I am obliged to the noble and learned Lord for his patience. Would the noble and learned Lord care to consider then various other parliaments in former dependencies which have been set up by statute?
Lord Hardie: My Lords, the question of other parliaments in other dependencies may not be a fair comparison. The question here is that this Parliament is currently establishing through this Bill—which we hope eventually will become an Act—a creature of statute: namely, the Scottish parliament which will derive its powers from the Bill we are enacting. In other words,

1573
the Scottish parliament will be a statutory body. If one looks at other such statutory bodies which this Parliament at Westminster has created, one finds similar provisions.
My letter to the noble and learned Lord gave some examples in recent years of different statutory bodies. In addition, Section 1 of the Government of Wales Act contains a similar provision. There was a similar provision in Section 18(6) of the Government of Ireland Act 1920. A reasonable comparison might well be local government because local authorities are statutory bodies which are carrying out functions, albeit at a lower level than the Scottish parliament will. Paragraph 9 of Schedule 7 to the Local Government (Scotland) Act 1973 has a similar provision. That provision was not repealed when local government re-organisation recently took place. I have quoted a sample of statutory bodies from recent times but I am advised that they are dotted through history and that similar provisions exist.
Against that background, if this provision were omitted from the Scotland Bill, it could be argued that Parliament intended a different situation to prevail regarding the Scottish parliament. I am sure your Lordships would accept that that would lead to an unsatisfactory situation. I take the point that the effect of Clause 8(4) would be that the parliament was frustrated during this three-month period pending an election. Although that would appear to result in an absurd and totally unacceptable situation, nevertheless, in view of the other examples where statutory bodies have had a specific provision inserted into their legislation enabling them to continue, albeit that there is a vacancy, on balance—I hope I have explained to your Lordships that this is a question of balance—we consider that this provision ought to remain in the Bill. In those circumstances, I invite the noble and learned Lord to withdraw his amendment.
Lord Simon of Glaisdale: My Lords, I am grateful to the noble and learned Lord for replying to the debate. He gave every impression of being convinced himself of what he was saying. I do not know how many other noble Lords were convinced. He again relied on precedent—local government Acts. As I pointed out, they were all made corporations aggregate, as was the Welsh Assembly. They provide no reason at all for a parliament such as this, an unincorporated body, to be interfered with in this way. The argument would not stand for a moment. I am fortified by the weighty opinions of my noble and learned friend Lord Brightman and the noble and learned Lord, Lord Mackay of Drumadoon. It really will not do to go on saying that there is a precedent, because every time we yield to that we make it more difficult to be sensible the next time and more difficult to eradicate something that is completely unnecessary.
The noble and learned Lord referred to the precedent of paragraph 9 of Schedule 7 to the Local Government (Scotland) Act. One wonders how much parliamentary attention was directed to paragraph 9 of the seventh schedule to the Local Government
1574
(Scotland) Act. Of course it ought to have been, but I am prepared to bet that it passed through pretty late at night without anyone paying attention to it. Moreover, all the other provisions referred to were in schedules.
I understand that the noble Earl, Lord Mar and Kellie, does not support the amendment. I confess that that surprised me greatly because a similar amendment was supported by the noble Lord, Lord Steel of Aikwood, when the matter was raised in Committee. I hope that the hyphen between "Lib" and "Dem" is not becoming too pronounced. On the other hand, your Lordships have heard from great lawyers that this provision is unnecessary.
Normally, it is quite unsuitable to divide on a drafting point because so many of those who will vote will not have heard the arguments. But unless we do at last make a stand, we shall go on having the statute book inflated and inflated. The Government are in favour of bearing down on inflation everywhere except when it comes to the verbosity of the statute book. So I will, with respect, ask your Lordships to show the flag and to show where we stand on this matter.
4.16 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 90; Not-Contents, 132.

Division No. 1

CONTENTS

Ackner, L.

Gainford, L.

Allenby of Megiddo, V.

Gladwyn, L.

Alton of Liverpool, L.

Gormanston, V.

Ashbourne, L.

Greenway, L.

Astor of Hever, L.

Hambro, L.

Attlee, E.

Hayhoe, L.

Brabazon of Tara, L.

Headfort, M.

Brightman, L.

Holderness, L.

Burnham, L.

Hylton, L.

Butterworth, L.

Hylton-Foster, B.

Campbell of Croy, L.

Jenkin of Roding, L.

Carnegy of Lour, B.

Kenyon, L.

Chalker of Wallasey, B.

Kingsland, L.

Charteris of Amisfield, L.

Kintore, E. [Teller.]

Cooke of Thorndon, L.

Knollys, V.

Courtown, E.

Lauderdale, E.

Craigavon, V.

Long, V.

Cranborne, V.

McConnell, L.

Cross, V.

Mackay of Ardbrecknish, L.

Cullen of Ashbourne, L.

Mackay of Drumadoon, L.

Davidson, V.

Molyneaux of Killead, L.

De Freyne, L.

Monro of Langholm, L.

Denham, L.

Monteagle of Brandon, L.

Dixon-Smith, L.

Montrose, D.

Downshire, M.

Mowbray and Stourton, L.

Dudley, E.

Moyne, L.

Dundee, E.

Murton of Lindisfarne, L.

Ellenborough, L.

Naseby, L.

Elliott of Morpeth, L.

Norton of Louth, L.

Elton, L.

Patten, L.

Erne, E.

Pearson of Rannoch, L.

Erroll, E.

Peel, E.

Ferrers, E.

Rankeillour, L.

1575

Renton, L.

Sudeley, L.

Romney, E.

Swinfen, L.

Rotherwick, L.

Teviot, L.

Rowallan, L.

Thomas of Gwydir, L.

St. John of Fawsley, L.

Thurlow, L.

Selkirk of Douglas, L.

Trefgarne, L.

Sempill, L. [Teller.]

Vivian, L.

Shannon, E.

Warnock, B.

Shaughnessy, L.

Weatherill, L.

Simon of Glaisdale, L.

Wharton, B.

Stair, E.

Wilberforce, L.

Strafford, E.

Wilson of Tillyorn, L.

NOT-CONTENTS

Addington, L.

Harris of Greenwich, L.

Ahmed, L.

Hayman, B.

Alli, L.

Hilton of Eggardon, B.

Amos, B.

Hollis of Heigham, B.

Archer of Sandwell, L.

Hoyle, L.

Ashley of Stoke, L.

Hughes, L.

Avebury, L.

Hughes of Woodside, L.

Bach, L.

Hunt of Kings Heath, L.

Bassam of Brighton, L.

Irvine of Lairg, L. [Lord Chancellor.]

Bath, M.

Beaumont of Whitley, L.

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

Berkeley, L.

Blackstone, B.

Jenkins of Putney, L.

Blease, L.

Lester of Herne Hill, L.

Borrie, L.

Levy, L.

Brooke of Alverthorpe, L.

Lockwood, B.

Bruce of Donington, L.

Lovell-Davis, L.

Calverley, L.

Ludford, B.

Carlisle, E.

Macdonald of Tradeston, L.

Carmichael of Kelvingrove, L.

McIntosh of Haringey, L. [Teller.]

Carter, L. [Teller.]

Castle of Blackburn, B.

Mackenzie of Framwellgate, L.

Christopher, L.

Mackie of Benshie, L.

Clarke of Hampstead, L.

McNair, L.

Cledwyn of Penrhos, L.

McNally, L.

Clement-Jones, L.

Maddock, B.

Clinton-Davis, L.

Mar and Kellie, E.

Cocks of Hartcliffe, L.

Merlyn-Rees, L.

Crawley, B.

Merrivale, L.

David, B.

Methuen, L.

Davies of Coity, L.

Miller of Chilthorne Domer, B.

Davies of Oldham, L.

Milner of Leeds, L.

Dean of Thornton-le-Fylde, B.

Mishcon, L.

Dholakia, L.

Molloy, L.

Diamond, L.

Monkswell, L.

Dormand of Easington, L.

Montague of Oxford, L.

Dubs, L.

Morris of Castle Morris, L.

Evans of Watford, L.

Murray of Epping Forest, L.

Ezra, L.

Newby, L.

Falconer of Thoroton, L.

Ogmore, L.

Falkland, V.

Paul, L.

Farrington of Ribbleton, B.

Plant of Highfield, L.

Fitt, L.

Ponsonby of Shulbrede, L.

Gallacher, L.

Prys-Davies, L.

Gilbert, L.

Ramsay of Cartvale, B.

Gladwin of Clee, L.

Randall of St. Budeaux, L.

Goodhart, L.

Razzall, L.

Gordon of Strathblane, L.

Rea, L.

Goudie, B.

Rendell of Babergh, B.

Gould of Potternewton, B.

Rodgers of Quarry Bank, L.

Graham of Edmonton, L.

Rogers of Riverside, L.

Grenfell, L.

Russell, E.

Hacking, L.

Russell-Johnston, L.

Hamwee, B.

Sainsbury of Turville, L.

Hanworth, V.

Sawyer, L.

Hardie, L.

Scotland of Asthal, B.

Hardy of Wath, L.

Serota, B.

1576

Sewel, L.

Thomas of Walliswood, B.

Sharp of Guildford, B.

Thomson of Monifieth, L.

Shepherd, L.

Thornton, B.

Shore of Stepney, L.

Thurso, V.

Turner of Camden, B.

Simon, V.

Uddin, B.

Smith of Clifton, L.

Wallace of Saltaire, L.

Smith of Gilmorehill, B.

Whitty, L.

Stallard, L.

Wigoder, L.

Strabolgi, L.

Williams of Elvel, L.

Symons of Vernham Dean, B.

Williams of Mostyn, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.25 p.m.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 2:
After Clause 1, insert the following new clause—

SECOND CHAMBER OF THE PARLIAMENT
(" . The legislative competence of the Parliament shall include power to set up a Second Chamber for the Parliament, whose composition and powers shall be determined by, and may be modified by, an Act of the Parliament.").
The noble Lord said: My Lords, in Committee we discussed an amendment of mine which would have introduced a second chamber to the Scottish parliament. A number of your Lordships supported that idea in principle but I think it would be true to say that there was a general feeling that it should not be decided by us here but that it should be decided, if necessary, by the Scottish parliament in the future.
Therefore, I have come forward with this amendment which makes clear on the face of the Bill—and we have just listened to a discussion about that—that the Scottish parliament will have the legislative competence to set up a second chamber whose composition and powers shall be determined and perhaps modified by an Act of that parliament. In other words, we are ensuring that the Scottish parliament has the power, if it wishes, to set up a second chamber at some time in the future.
I do not want to go on for too long about the arguments for a second chamber. The Marshalled List today provides all the argument that your Lordships will need in favour of a second chamber. In your Lordships' House, thanks to the Committee stage, the Government have tabled a considerable number of important amendments for this Report stage. Indeed, we are grateful to the Government for some of them. They have listened at least a little—I shall not say that they have listened all the time—and have taken on board some of the points made by your Lordships in Committee.
Of course, in Committee, the Government tabled some amendments arising both from the other place and from the opportunity that they have had to give second thoughts to some parts of the Bill. Therefore, the importance of a second chamber is clear. Even without the improvements that I trust your Lordships will make both on Report and at Third Reading, we have already made some progress in improving the Bill and making it better.
The Government do not always listen. The last debate showed clearly that Ministers do not even recognise when their own arguments have been entirely blown out of the water. But I suppose that your Lordships cannot win just by argument all the time. Occasionally the battalions of the government supporters and their camp followers come to their aid on a bad argument.
The Earl of Erroll: My Lords, did the previous government listen more or less than the current Government?
Lord Mackay of Ardbrecknish: My Lords, not only did I listen but I was occasionally forced by your Lordships to listen to debates on a number of major issues which changed government policy. One piece of government policy which was changed remained to be enacted at the election and we still have not even seen the Bill which should have come before us by this time from the now Government who were very keen on the idea when they were in Opposition.
When we discussed the question of a second chamber for the Scottish parliament, a number of your Lordships from the governing party indicated some sympathy for the idea—the noble Lord, Lord Desai, who I see in his place, and the noble Lords, Lord Howie of Troon, Lord Hughes and Lord Ewing of Kirkford. Indeed, the noble Lord, Lord Ewing of Kirkford, went quite a long way in his support of the idea. Talking about my amendment, he said:
"The noble Lord has done Scotland in particular, and the United Kingdom in general, a service by initiating this debate. It is a debate that we can take forward in a constructive fashion. That is why it is important that we do not take such decisions today; indeed, we must not lock ourselves in and compartmentalise ourselves. We must continue the discussion that has been rightly started by the noble Lord, Lord Mackay, as month follows month, and possibly in two or three years' time we will return to the issue".—[Official Report, 8/7/98; col. 1250.]
I do not believe that we should necessarily return to the issue in two or three years. By "we" I mean both the House of Commons and the House of Lords. We should make it clear on the face of the Bill that if a Scottish parliament decides that a second chamber is a good idea, it should be able to introduce one without coming to Westminster to ask for an amendment to the Scotland Bill, or indeed another Bill dealing specifically with that situation.
As your Lordships are aware, legislation in this Parliament goes through four stages in both Houses. In fact, in this House it is slightly more. In the House of Commons Third Reading is formal; speeches are made which are usually of a highly political nature but not much else happens. In this House amendments can be considered at Third Reading. Indeed, this week on the Third Reading of the European Parliamentary Elections Bill your Lordships improved the Bill considerably over that proposed by the Government. One hopes that the Government will take that on board.
There are four stages of a Bill in the House of Commons. There is Second Reading; Committee stage, which is usually upstairs consisting of a Committee of
1578
about 20 people; then a Report stage on the Floor of the House, and an automatic Third Reading with a short debate. In addition to the Second Reading, your Lordships have a Committee stage, a Report stage and then a Third Reading.
Therefore, in this bicameral system, legislation is considered by two different bodies and two different collections of pairs of eyes, if I can put it that way. That improves legislation and every government of all parties have found it useful to have two bites at every cherry. Even the Bills that start in your Lordships' Chamber have the advantage of going to the Commons, where they can be amended. I recall a major piece of legislation which I started in your Lordships' House—the Pensions Act, as it now is. We amended it and listened to arguments, and it was further amended in the House of Commons in response to argument both in the House of Commons and here, and also perhaps discussions the Government had with outside bodies who were interested in pension matters.
I believe that hardly a Bill passes through the second Chamber—if it starts here, the House of Commons; if it starts in the Commons, here—without any change at all and hardly a Bill passes through Parliament without the Government taking advantage of the two stages to propose amendments to their own Bill; to accept arguments either in whole or in part.
I accept—it was made perfectly clear to me in the debate on 8th July—that most people considered it to be too late in the day to start thinking about a second chamber for a Scottish parliament or, as my proposal then was, to set up a commission to consider a second chamber for a Scottish parliament. In the light of that interesting debate I tabled an amendment which does no more than give the Scottish parliament, if it so wishes, the power to set up a second chamber and to decide on its composition and powers.
Once the Scottish parliament is up and running, it may well feel that it needs some form of second chamber; that is, a chamber that perhaps takes account of different parts of Scotland, or perhaps is drawn from local authorities or even, as the noble Lord, Lord Ewing of Kirkford, thought, from the elected Members of the House of Commons from Scotland or the elected Members of the European Parliament from Scotland. That would mean a second chamber interlinked with the House of Commons, the Parliament of the United Kingdom and with the European Parliament, which is of increasing importance.
I am not tied to that idea, but I see its merits. One of the problems we have in this country is that we tend to run our different layers of government totally separately. We do not often countenance people being members of both. That tends to happen after elections, but people quickly resign from whichever body they believe to be the least significant. Nobody ever resigns from the House of Commons to take up their seat in the European Parliament or a seat in local government; but they do resign from local government and from the European Parliament, either immediately or at the next election, in order to take up their seat in the House of Commons.

1579
That is often unfortunate. There are plenty of Members of this place and of the other place to be able to afford a little overlap with those other bodies. However, I can see that the same arguments will prevail in the Scottish parliament against people having dual membership for a long time, though I hope that will happen. It may well be that the Scottish parliament will want to consider the kind of dual membership outlined by the noble Lord, Lord Ewing of Kirkford.
Whatever the parliament wishes to do, it should be able to do it. It should be clearly within its powers to decide to set up a second chamber, and that is what my amendment seeks. It will not in any way, as my last amendment did—I can assure your Lordships quite accidentally—delay the setting up of the parliament. It will not impose anything on the parliament from here. It will simply give it power in the future if it wishes. I beg to move.
Lord Thomson of Monifieth: My Lords, the noble Lord, Lord Mackay of Ardbrecknish, conceded that the proposals he made in the Committee stage of this Bill for a second chamber for the Scottish parliament came a bit late in the day—indeed, too late to be practical in their implementation without holding up the establishment of the Scottish parliament. I can only say that it was significantly and curiously late in the day. It is remarkable that the Official Opposition only discovered the merits of a second chamber for the Scottish parliament after this legislation left the other place and arrived here.
I know it will not surprise the noble Lord or disappoint him, but on these Benches we remain persuaded of the view of his colleague in another place—Michael Ancram—who was and may still be the constitutional shadow Minister for the Official Opposition. He said in plain terms that in his view there is no case for a second chamber in the Scottish context.
Lord Mackay of Ardbrecknish: My Lords, perhaps the noble Lord will give way. I am not sure that that argument is entirely helpful, especially as in the last debate his party took a contrary view to the view it took in this Chamber at the Committee stage in relation to the amendment of the noble and learned Lord, Lord Simon of Glaisdale. People in glasshouses should not throw stones.
Lord Thomson of Monifieth: My Lords, I do not wish to return to the amendment of the noble and learned Lord, Lord Simon of Glaisdale. That was a different size of issue than the one now being raised by the noble Lord.
The noble Lord changes his ground, conceding that it was curiously late in the day to make this proposal in the Committee stage, and he now wants the proposal to be within the competence of the Scottish parliament. Those who have been most deeply concerned over such a long time with the establishment of a Scottish parliament have already considered this issue seriously. The Scottish Constitutional Convention went into this in extreme detail and came to a measured judgment. It decided that a second chamber was not appropriate for
1580
a Scottish parliament and that there were other methods of dealing with the need for adequate scrutiny of legislation. It proposed from the beginning that there should be better pre-and post-legislative scrutiny and more consultation than exists in the Westminster system.
I understand that the steering group which has been looking at the working practices of the Scottish parliament agreed to recommend the establishment of a civic assembly. That would bring public bodies from across Scotland together to discuss issues of relevance with the Scottish parliament. It would also have a role in the pre-legislative stages of Bills.
The considered view, arising out of the long period when the Scottish Constitutional Convention struggled for what the present Government are now bringing into being, rests on a careful judgment of the matter. The Scottish parliament will be different from the Westminster Parliament in a number of ways. It will be different in that Bills can be carried over from one Session to another in its four-year term. There will therefore be more time for the scrutiny of legislation without the need to rush in order to avoid Bills falling.
For all those reasons, we on these Benches stick to the position that we have had throughout on this matter. We are not convinced by what the noble Lord, Lord Mackay of Ardbrecknish, now seeks to include in the procedures of the Scottish parliament.
Perhaps I may cite an additional consideration which might be worthy of consideration by those on the Conservative Benches. I am an enthusiastic devolutionist. I am an equally passionate anti-separatist. I repeat that I am a devolutionist and that I am not a separatist. I am proud of my Scottish nationalism, but I do not believe in separatist nationalism. If one goes too far along the road of urging that the Scottish parliament should be similar to that which we have here in Westminster, I believe that that will feed separatism rather than the proper, constructive devolutionist position, which is the very basis upon which the Scottish parliament will represent a tremendous improvement in the way in which we run our constitutional affairs and look after the best interests of the people of Scotland.
Lord Selkirk of Douglas: My Lords, I rise to speak briefly to point out that the Constitution Unit of University College, London considered unicameral legislatures and came to the interesting conclusion that where countries had moved to having a parliament with only one House,
"The parliaments which abolished their upper Houses and did not at the same time carry through other reforms to introduce checks and balances on the majority in the legislature … notably, New Zealand, and Queensland, have all in recent years had to address this omission".
On the other hand,
"Parliaments such as Denmark and Sweden, which switched to unicameralism and introduced reforms contemporaneously have not faced such problems".
The Minister will inevitably oppose the amendment, but an important principle has been raised. I refer to the fact that there should be the necessary checks and balances. One check and balance which has worked well

1581
in the past is having Special Standing Committees after the Second Reading of a Bill but before the Bill goes into Standing Committee. As it happens, I was the Minister who had to introduce legislation to deal with raves. We thought that we had got it absolutely right, as did the civil servants. However, Opposition MPs said that there was a better way to tackle the problem. That way emerged during a Special Standing Committee. It involved a lot more work for the civil servants, but the end result was much more acceptable and was, I believe, an improvement.
Something similar happened with the Children Act which applied to Scotland, which followed a similar Act for England. A Special Standing Committee considered that Bill. Ultimately, all the detailed complaints and requests of countless different organisations involved in the area were met acceptably. I believe that the Scottish parliament will necessarily have to put in place such a check or balance if it wants to act in a wholly satisfactory manner.
There are other checks and balances, such as ombudsmen acting effectively in a whole range of ways. Auditors can also keep a close eye on, and establish a wide-ranging review of, the economy and of the effectiveness of government programmes. It may also be possible to publish Bills in draft. I hope that the Minister will consider that possibility.
Perhaps I may end with a particular request. The steering committee which is considering the various procedures and regulations by which the parliament should operate has, I understand, been putting information on the internet. I became aware of that when information relating to Pepper v. Hart, which we shall debate later, was put before me. When the steering committee puts information on the internet, I suggest that similar information is placed in the Library of this House and in that of the House of Commons. I believe that both Peers and MPs would very much like to know the information, which is of relevance to the setting up of the Scottish parliament, which is being imparted via the internet.
4.45 p.m.
Baroness Carnegy of Lour: My Lords, looking at the government amendments, I agree with my noble friend Lord Mackay of Ardbrecknish that the Government have been listening. They have done some excellent things. I hope, however, that they will be able to go further. It may well be that they should seriously consider this amendment. Surely of all the issues that have been raised in this House this is probably the one on which the Government would be wise to listen to the voice of noble Lords and, if I may say so, particularly of those noble Lords from their own Benches who in Committee spoke on this matter from their long experience.
Until the Bill reached this House, very few people with experience of second Chamber work had been involved. The noble Lords, Lord Ewing of Kirkford and Lord Steel of Aikwood—alas, neither is in his place today—were not Members of this House during the time
1582
of the Scottish Constitutional Convention, of which they were such distinguished chairmen. They were Members of the House of Commons. Members of the House of Commons probably contributed greatly to the work of the convention. I do not know whether the noble Lords, Lord Mackie of Benshie or Lord Thomson of Monifieth, were members. However, I doubt whether many members of the Scottish Constitutional Convention were Members of this House.
As I have said, Members of the House of Commons contributed, and they, like civil servants, often—naturally—regard the second Chamber as a nuisance rather than an advantage. Therefore, it is not surprising that the Scottish Constitutional Convention decried the notion of a second Chamber for the Scots parliament largely on the grounds of cost and democracy. The noble Lord, Lord Steel of Aikwood, told us that in Committee. The noble Lord's experience in this House since then has not caused him to change his mind, but the noble Lord, Lord Ewing of Kirkford, explained to us in Committee that he has changed his mind, and why, and he suggested a way forward. The noble Lord, Lord Howie of Troon, did the same. He described, from long experience, how governments frequently have second thoughts as a result of discussions in this Chamber.
However, it seems that that point is still not understood by the influential Constitution Unit which my noble friend Lord Selkirk of Douglas mentioned. In a letter to the press last week, the chairman of that unit revealed that he thought that because most amendments made in this House were government amendments, that meant that they had nothing to do with amendments that had previously been introduced by Peers. That is a considerable misunderstanding.
The experience of the noble Lord, Lord Howie, led him to think that the Scots parliament will probably need a second Chamber in due time. The experience of other noble Lords has led them to take the same view. I refer to the noble Lord, Lord Hughes of Woodside, and to others. My noble friend Lord Lang of Monkton spoke of the difference between pre-legislative consultation on a Bill and post-legislative scrutiny of it. Perhaps I may advise the noble Lord, Lord Thomson, that the experience of those of us who participated in the pre-legislative scrutiny of several Bills in the last Session and, I think, the Session before was that that was a very different process. It was a useful process, but it was nothing like the same as looking at a Bill for a second time once it has passed through another place. I agree with those noble Lords whom I have just mentioned.
In Committee, I said that in our system, where the legislative process is so detailed and involves fixing detailed wording into statute, that which is brought forward from the Commons is often lacking in those respects. It needs testing—and it needs testing by more than one group of legislators. Pre-legislative consultation certainly helps but it is not the same thing at all as a second, detailed, focused examination later.
I look back at many Bills in which I have taken part in this House which are now part of the law of Scotland. There have been big government Bills and lesser

1583
government Bills brought forward by governments of both parties. I look back at a number of Private Members' Bills which I have had the privilege of taking through this House. The vast majority of those Bills would have been less workable and less user friendly for the people of Scotland had it not been for amendments brought forward here and subsequently accepted by the government of the day.
The Minister has yawned quite a bit during this debate. I do not think he should because I believe that if the Government do not put some kind of enabling clause in this Bill to make it absolutely plain that the Scots parliament will be within its rights—
The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel): My Lords, I am grateful to the noble Baroness for giving way. For the sake of accuracy I was not yawning but I have recently cracked a tooth and I am trying to find out what has happened to it.
Baroness Carnegy of Lour: My Lords, I express my deepest sympathy for the noble Lord. That is a horrible thing to happen.
I believe that if the Government do not put something like this amendment in the Bill, the time will come when the Scots parliament and the people of Scotland will rue the day because there will be a good deal of argument about whether they do or do not have a right to set up a second chamber. That would be the greatest possible pity. What is wrong with accepting an amendment such as this?
Lord Renton: My Lords, my noble friend Lady Carnegy has made a powerful argument in favour of this amendment. I would like just to add a few points. This amendment could do no harm and it may be found at a later stage to be necessary. It is merely giving an enabling power. It is a power to the Scottish parliament alone. It will have control of the matter to decide whether there should be a second chamber. If it finds that in one way and another, and in spite of the complication of the legislative powers which it is given under the Bill, and the great detail, nevertheless its legislation turns out to be perfect, there will be no need for a second chamber. But if, on the other hand, as in the United Kingdom parliament, it is found that the second chamber is necessary for revising legislation, then the Scottish parliament could set up a second chamber and that would help enormously. The noble Lord, Lord Thomson of Monifieth—if I may have his attention for one moment—said that this has come rather late. But surely if it is worth doing, it is better late than never.
Lord Monro of Langholm: My Lords, I think there are some points that are worth considering in relation to a second chamber. Like other noble Lords in the Chamber I have fair experience of legislation in another place both when in opposition and when in government. The Scottish parliament will have 129 members and of course a number will have official positions and will not be available to sit on committees. I am not aware of how the scrutiny committee will scrutinise Bills. I do
1584
not know whether the system will be roughly the same as at Westminster. However, if there are, say, 120 available members they will be extremely stretched to scrutinise all the Bills that are being bandied about Scotland at the present time. I should have thought they would welcome a second chamber which might enable them to pass on some of the weight of the legislative work during the course of any one year.
Another point that I think is worth bearing in mind is the following. The House of Commons has more than 600 members and this House has perhaps 300 or 400 regular attenders. There is an enormous breadth of experience in this Parliament which cannot possibly be equalled by the experience of the 129 members of the Scottish parliament. They may welcome advice from experts in a second chamber on a whole host of issues of which they perhaps do not have much practical knowledge themselves.
Noble Lords on this side of the Chamber have made an important point; namely, that we are not asking for a second chamber to be set up, but rather to be given the opportunity for it to be established if that is found to be necessary. There is no reason why that point should not be discussed now. I do not know why the noble Lord, Lord Thomson of Monifieth, thinks that discussing that now is any more likely to make Scotland seek independence than is the case under the present proposals and under the present Labour Government. I hope that the Minister will give some thought to this measure as a constructive and helpful way of promoting good legislation in Scotland rather than thinking of it as being critical, as Members on the Government Front Bench seem to think.
The Earl of Mar and Kellie: My Lords, this amendment is attractive to a degree but it defeats the purpose of working for a more consensual approach in the Scottish parliament. This United Kingdom Parliament is far too busy and definitely needs a second chamber. Procedural devices in the other place such as guillotine Motions and the absence of the right to be heard are well known to allow legislation to be passed with many clauses not being considered. That was certainly the case with the Bill we are discussing.
I do not believe that the Scottish parliament will be that busy. Provided the promised pre-legislative process is seriously adopted and the various stages of scrutiny are not limited by time and all members of the parliament are able to be heard, I believe that the need for a second chamber will not be established. I may prove to be wrong and no doubt many people will point this out to me if that occurs, and the Scotland Act may have to be amended subsequently, but I do not believe that we should plan for such a failure at this time.
The Earl of Lauderdale: My Lords, people always wanted to listen to the noble Lord, Lord Thomson of Monifieth, when he was in another place and the same is true of this Chamber. He commands great experience and wisdom and he is much respected in your Lordships' House on this subject. I was, however, surprised to hear him make a speech purporting to limit the functions of the Scottish parliament. All this

1585
amendment would do is to enable the Scottish parliament to have a second chamber, as the noble Lord, Lord Renton, said. It enables the Scottish parliament to have a second chamber if it so wishes.
When all is said and done, this is an amendment which the Government would be well advised to accept in the interests of strengthening rather than weakening the Scottish parliament to give it all the powers they possibly can.
Lord Stewartby: My Lords, I had not intended to intervene but the comments of the noble Earl, Lord Mar and Kellie, prompted me to say a few words. Having had responsibility for taking a number of long and complex Bills through another place I do not think this is a matter of being consensual. The legislative process—Bills these days are so complex—requires a second stage of consideration, whatever kind of scrutiny committee one might set up in advance. I do not wish to repeat comments which have been made by other noble Lords except to say that I believe almost all the legislation which I have had anything to do with over the years has benefited from consideration by a revising chamber partly because issues arise, often for the first time, when legislation is brought before another place, but also because the very process of discussion in another place generates a degree of external interest and comment which cannot normally be taken into account in advance until those issues are properly debated in the legislative chamber.
I cannot foresee how detailed legislation will be in Scotland or whether it will differ from the nature of Westminster legislation. However, on the evidence that we have on the Bills that we consider I should have thought it almost essential to have a second stage, unless we can work out an entirely different approach to getting the text of Bills right before they are enacted. After they are enacted it is much more difficult to reverse them, because in order to do so new primary legislation is needed.
Lord Desai: My Lords, in the light of what the noble Lord has said, I now understand why the British economy is in such a mess—the Budget is never revised in the Second Chamber!
5 p.m.
Lord Sewel: My Lords, I should make it absolutely clear from the start that the adoption of these proposals would be incompatible with government proposals as described in the White Paper and overwhelmingly endorsed by the Scottish people in the referendum last September.
We have to ask ourselves simply: what is the purpose of the Bill? Its purpose is to lay down the structure, function and powers of a Scottish parliament. We have reached that stage after a long process, indicated and alluded to by the noble Lord, Lord Thomson of Monifieth; namely, the work of the constitutional convention and the commission that worked with it. The proposals that came out of that consultation were clearly
1586
set out in the White Paper and endorsed by the electorate. So there is agreement in Scotland about the structure, function and powers of a Scottish parliament.
It is not as though the constitutional convention and the whole consultative process somehow put to one side the issue of a second chamber. They did not. As the noble Lord, Lord Thomson of Monifieth, reminded us, they deliberately examined the case for a second chamber. They studied it, scrutinised it, and rejected it. I believe that they were right to do so.
The Earl of Lauderdale: My Lords, I thank the Minister for giving way. He mentioned that the referendum endorsed proposals for the Scottish parliament. The referendum was not on the question of whether the parliament should be a single chamber or bicameral. The Scottish public have never been consulted on the matter. They have no idea.
Lord Sewel: My Lords, I am afraid the noble Earl is in error on that point. In the referendum the Scottish people were asked to endorse the proposals contained in the White Paper. It was not a minor publication which came out at dead of night and was forgotten. At the time it was a best-seller in Scottish bookshops and the biggest seller that Her Majesty's Stationery Office in Scotland has ever had. The scheme was explicit. It was subject to debate in the Scottish media. People knew what they were buying. There was no doubt at all that the people of Scotland knew in detail the type of parliament that they were being invited to endorse.
The noble Lord, Lord Mackay of Ardbrecknish, says it is not his intention to impose a second chamber; that this is a permissive or enabling power to give the parliament the ability if it wishes to create a second chamber in the future. That is dodging the issue. Either we are in favour of a second chamber for a Scottish parliament or we are against it. That should be made clear in the Bill. It is not right on a major issue regarding the structure of the parliament to try to weasel our way out by providing for its possible creation through an enabling provision. Although flexibility is important, it has its limits—as the noble Lord, Lord Mackay, is often only too happy to remind us. A proposal which deals with a fundamental aspect of the settlement should either be explicit in the Bill or be excluded from the Bill. We have reached the stage of placing before the House the clear, detailed proposals on the structure of the parliament. As I have said, they were the result of a major process of consultation over a period of years in Scotland—indeed for some of us it was a period of decades.
However, there was always recognition that there would be a need to involve what have been referred to as the checks and balances in the process, and to do so in a way that was not necessarily derived from the Westminster model. We were able to look elsewhere. We were able to examine the satisfactorily functioning unicameral parliaments, particularly in the Nordic countries—Norway, Denmark, Iceland, Sweden and Finland—all of which are mature, successful democracies functioning without a second chamber. The majority of the German Länder are also single-chamber parliaments.

1587
When we examine how those parliaments address the business of legislation, we find some very interesting developments. The Finnish Parliament has operated with a unicameral system since early this century. The Swedish Parliament adopted such an approach more recently. In both cases the parliaments ensure by means other than a separate second chamber adequate opportunities to scrutinise legislative proposals. In the Finnish Parliament, for example, the subject committees play an important role in examining legislative proposals and consult with non-government bodies on them. That is the approach that we have tried to capture for the Scottish parliament. It is a new and different approach from the one we have traditionally taken to our business at Westminster.
That is why we have set up the consultative steering group established by my right honourable friend the Secretary of State. The steering group has already recognised the importance of putting in place procedures to facilitate and encourage prior consultation on legislative proposals. It has endorsed the concept of ensuring that there are strong committees in the parliament able to scrutinise effectively any legislation that is brought before it. I have no doubt that the steering committee's report and recommendations will provide for the appropriate checks and balances to ensure that the parliament works effectively as a second chamber.
We have no difficulty with the very important idea of ensuring that there is an appropriate, effective and workable means of ensuring scrutiny of the executive's legislative proposals and to offer the opportunity for revision. But to have that it is not necessary to have a second chamber, as we have seen through the mature and established working examples of the Nordic parliaments.
I admire the noble Lord, Lord Mackay of Ardbrecknish, for his political gymnastics from time to time. I should perhaps therefore resist the temptation to make a point when he occasionally falls flat on his face. However, perhaps I should not resist that temptation today. I remember that one of the main arguments advanced as to why we should not have devolution was that Scotland was in danger of being over-governed; that there was a danger of building a massively expensive structure that the people of Scotland did not want. That argument sits oddly with the proposal for enabling a second chamber—another level of government; and, no doubt, a more expensive one—to be established.
Over a long period of time a large number of people involved in the public life of Scotland considered the whole issue of how a Scottish parliament should be structured and the powers and functions that it should have. Those proposals were subject to discussion and debate within Scotland. They were encapsulated in the White Paper that was placed before the people of Scotland and endorsed by them. Those proposals clearly indicated the character of the parliament. That parliament was deliberately conceived as a unicameral one which would establish a strong committee structure, thus enabling the scrutiny of legislation to take place, which would hold the executive to account and which,
1588
in relation to the detailed points raised by the noble Lord, Lord Selkirk of Douglas, would encourage the publication of draft Bills.
I believe that the Government have got it right and that there is no need for a second chamber. Attempting to achieve that through the provision of an enabling power is ducking the issue. I ask the noble Lord to withdraw his amendment.
Lord Lyell: My Lords, before the Minister sits down, I wonder if he would clarify a point for me. I was impressed by his description of the system in the Nordic countries. He touched on the German Länder, about which I have had some instruction during the course of German lessons that take place in your Lordships' House. The size of the Federal Republic of Germany may be out of kilter with that of Scotland, but, as I understand it, in Germany and perhaps in Switzerland—though I hesitate to mention it because it may rouse the noble and learned Lord, Lord Simon—there is a clear structure of lower tiers of government which work their way up to the unicameral system. Representatives of the German Länder go to the Bundesrat and there is therefore a fairly clear structure. Does the Minister have it in mind that in, say, five years' time or longer there could be a power for the Scottish parliament to evolve a system? I understand that the proposal is that there should be pre-legislative scrutiny and committees. Will the Government stop at that or will they give power to the parliament to have a wider review of the political system within Scotland? If the Minister believes that the system proposed is adequate, he might care to glance, as I did today, at the front pages of the Herald and the Scotsman and read the result of what I understand were some successful meetings yesterday. These proposals have only arisen at this late stage of the Bill in your Lordships' House, after 15 months of study. I wonder whether a pre-legislative scrutiny mechanism would be satisfactory.
5.15 p.m.
Lord Sewel: My Lords, because it will be a unicameral parliament, there will be a great onus on those involved to establish the most effective pre-legislative arrangements. Those who have been involved in the argument from the early days have always had this at the front of their minds. There is no difference between any of us on the importance and priority that we attach to this matter.
With regard to the extent to which the Scottish parliament could change the political structure of Scotland, clearly the most obvious area for that is local government. It would be perfectly possible for a Scottish parliament to change the structure of local government in Scotland.
Baroness Carnegy of Lour: My Lords, the Minister did not reply to a single point I made. I do not take him to task for that; there were many speakers and he may have thought my points were not worth replying to.
It is noticeable that none of the noble Lords on his Benches who, out of the depths of legislative experience, previously disagreed with him—none of

1589
whom are inflexible or out-of-date people—are present here today. I believe that it behoves the Minister to tell us why he did not explain to them that they were wrong and whether he thinks that the dozens of amendments he is making in this second Chamber today, as a result of scrutiny in this House and of the time he has been granted because of the second round of scrutiny, are necessary. Would the Bill be just as good without them? How could the process be carried out without a second chamber? This is a practical point, not a political one. The people of Scotland have not had a chance to know about the need for a second chamber. The Minister is right: they think that there will not be one. However, I am sure that they would not mind if there were a clause enabling the parliament to have a second chamber if it so desired. I believe the Minister owes it to us all to reply briefly to those points.
Lord Sewel: My Lords, I shall reply briefly. As to my noble friends who may or may not be present today, I suggest that it is possible that they are not speaking in the debate because they have read Hansard and have been convinced by the arguments I deployed at an earlier stage.
On the more substantial point that the noble Baroness made, I have tried to emphasise that there is no difference between us as regards the need for scrutiny and revision. Where we differ is that the noble Baroness believes that that is only possible by having a second chamber, whereas the Government believe that it is not necessary to have a second chamber in order to establish the institutions of scrutiny and revision. I have prayed in aid the example of the Nordic parliaments, where there is proper, effective and adequate process of scrutiny and revision within the structure of a unicameral parliament.
Lord Mackay of Ardbrecknish: My Lords, we have had an interesting debate. Some of us were wondering which of the noble Lord's teeth had cracked. From his reply, I suspect that it was his wisdom tooth.
I hope that we shall not be told constantly that, because the people of Scotland did not make a decision on X, Y or Z matter, we therefore cannot proceed with it. There were only two questions. One was quite general, the other a little more specific, and that was an end to it. The very fact that the Government are proposing amendments suggests that they are prepared to make changes as the Bill proceeds.
The Minister has made it clear that he believes that a second chamber will not be necessary, and therefore he does not believe that members of the Scottish parliament should have the power to consider whether it might be necessary. If my amendment is not included in the legislation, if the Minister does not accept the next series of amendments and if the number of MSPs declines from about 130, which the Government believe the parliament needs, to just over a 100 in, say, eight years' time, it may be that the need for a second chamber and some additional brains to consider legislation will become more important. I presume that if at that stage the Scottish parliamentarians decide that they would like
1590
to have a second chamber, they would have to ask this Parliament to put a Bill through. The Minister is nodding in agreement, so I have correctly interpreted that matter. That is unfortunate. I was trying to be as modest as I could be in the amendment that I proposed. I am grateful to all my noble friends for their support for the proposition that there should be a second chamber.
The noble Lord, Lord Thomson of Monifieth, was unusually uncharitable in his comments. One normally hears from the Liberal Democrats that the Scottish parliament will be consensual and non-confrontational in its approach. The noble Lord has been fairly confrontational. Perhaps he will have to learn to adopt a non-confrontational approach before the Scottish parliament comes into being, although given the way in which Scottish politics is developing at the moment according to the newspapers, radio and television, there is not much that is non-confrontational, whether it be the SNP or the governing party. They are at each other's throats in a way that would do credit to the other place.
I say to the noble Lord, Lord Thomson of Monifieth, that it is not a good argument simply to say that all of this has been considered in the constitutional convention and that is the last word on it. I know that he does not believe my credentials to be any good. I just live in Scotland and I suppose that I must live with whatever comes along. I do not appear to have any particular right to voice my opinion on these matters. But the noble Lord, Lord Ewing of Kirkford, whose status is second to none as far as concerns the constitutional convention, expressed considerable reservations about the lack of a second chamber. He thought that that was worth considering. I quoted him to that effect earlier today. I suspect that the noble Lord knows that the Government will not shift and he feels that it is easier not to be here. No doubt the noble Lord will speak for himself.
The most amazing assertion of the noble Lord, Lord Thomson of Monifieth, was that if there were a second chamber it would feed separatism. My goodness, it is a bit late in the day for the Liberal Democrats to be worried about feeding separatism. They have made a pretty good job of it. Alex Salmond is enjoying his diet very much at the moment. I believe that that was a bogus argument. A second chamber could help to dispel separatism by acting as a check or balance to a lower chamber that might easily be dominated by the SNP at one election or another.
However, I can tell when I shall not make any progress with the Minister. As we are to deal with a very important issue in respect of which noble Lords may be able to tease the Minister by asking whether or not the Government are in breach of the White Paper and the constitutional convention, I seek leave to withdrawn my amendment.
Amendment, by leave, withdrawn.
Schedule 1 [Constituencies, regions and regional members]:
Viscount Thurso Viscount Thurso moved Amendment No. 3:
Page 60, line 5, after ("Constituencies") insert ("of the Scottish Parliament").
The noble Viscount said: My Lords, I beg to move Amendment No. 3 in my name and that of a number of my noble friends. In moving this amendment, I should also like to speak to Amendments Nos. 6 to 9. I shall also refer to Amendments Nos. 21, 22 and 24 in this group, which relate to a slightly separate issue.
These amendments are designed to address the curious anomaly in the position of the Government that has arisen since the publication of the report of the constitutional convention. That has linked the number of seats at Westminster to the number of constituencies in the Scottish parliament. In turn they are linked to the number of regional members in the Scottish parliament, which means that, in order to solve the West Lothian question, whereby the number of representatives in the Westminster Parliament is reduced, the Scottish parliament that has given rise to the need for that reduction itself reduces. One comes down to the absurd realisation that if ultimately it is decided that the proper answer to the West Lothian question is 10 MPs for Scotland, there will be about 15 people in Edinburgh to administer the whole of Scotland.
Amendment No. 3 is a paving amendment to allow the other amendments to go through. The main meat of our argument lies in Amendments Nos. 6 and 9 which seek to enable the Scottish parliament to decide its own representation and therefore restore broadly the position set out in the report of the constitutional convention. Amendments Nos. 21, 22 and 24 essentially reinforce that and take a belt and braces approach. They also offer a compromise in that if the first-past-the-post members are altered it allows for the regional members to be topped up to maintain the number at 129.
When this Bill was debated at Second Reading, which in real time was many months ago and was a good 12 days ago in parliamentary time, I spoke warmly in favour of the measure as a whole. That support for devolution and for the parliament in Edinburgh has not diminished one wit either in me or in my noble friends. During Second Reading I pointed out two very grave concerns. I believed that the more important one was the curious Catch 22 that had been created after the major debates had taken place in the constitutional convention. I believe that it was first introduced when the Bill was in another place.
At Committee stage my noble friend Lord Steel of Aikwood set out our position on this issue in detail. I believe that he did it with great cogency. I am extremely sorry that he has been detained in Luxembourg today and is not here to put the case himself. I am sure that he would have done it with considerably greater lucidity than I can and, more importantly, with the far greater authority that his voice would carry as a co-chairman of the constitutional convention. I am sorry that he is not here and I crave your Lordships' indulgence that a humble man from Caithness has to do the job. I believe that the position of the government is wholly ridiculous. It completely defies logic in order to tie a neat little administrative bow between the Westminster constituencies and the proposed Scottish constituencies. No other defence has been advanced for it.
I remind noble Lords of the three very powerful arguments in favour of the amendment, contrary to the position of the Government. The first argument, which I believe to be very powerful, is that it restores the position as it was understood and agreed in the constitutional convention. I submit that the Government's position in this matter is contrary to the spirit of devolution. Secondly, the inevitable reduction which is the consequence of the Government's position will seriously impair the working of the new parliament. Thirdly, I have no doubt that, were the Government's proposals to be carried through and this amendment not passed, the breadth and depth of representation in the Scottish parliament would be reduced. There are many other important and detailed arguments, but I leave them to my noble friends to put before the House.
I return to the first argument. I speak with the slight risk of being teased by the noble Lord, Lord Mackay of Ardbrecknish. I always enjoy it because usually it means that I am in the right. The other day the noble Lord chided me for reading from my own speeches so I shall read from somebody else's. I remind noble Lords of the words used by my noble friend in moving this amendment:
"I can tell the Committee that there is no issue more thoroughly debated, argued and discussed, both formally within the convention and in the corridors outside, than the vexed question of the appropriate number of members of the new Scottish parliament.
There is every indication that the Government propose a major breach of the agreement reached in the constitutional convention".— [Official Report, 8/7/98; col. 1332.]
I turn to page 21 of the report of the constitutional convention:
"The total size of the Parliament will be 129 Members".
It goes on to say at page 22:
"The system which the convention has devised is the outcome of long and detailed discussions. It should not be easily challenged or changed without careful and democratic scrutiny".
In the debate that we have just had the noble Lord, Lord Sewel, eloquently and persuasively put forward a strong case for the checks and balances that will exist within the new chamber. I believe that the Government's position in relation to this amendment is diametrically opposite to the view expressed by the noble Lord in the previous debate.
If I may come to my second argument, I really do believe that if we have this curious anomaly whereby the number of MPs is reduced at the wave of some magic wand down to a bare 100, which is barely twice the number of people that sit in the local government in Inverness, there simply will not be enough people to go around to sit on the committees, to pre-scrutinise legislation, to form the administration and to form the opposition. His very own argument against the second chamber stands proof of the folly of the Government's position in regard to this matter.
My third argument is on the question of representation. The constitutional convention was at great pains to bring forward a system which sought as far as possible solutions to all the divergent problems and views which exist within Scotland. There is the question that those of us who live in the far north are

1593
frightened that the domination of Westminster simply becomes the domination of Edinburgh. I am much reassured by the regional structure that has been put in that the views of those in more rural areas will be heard and we will have our voice heard in Edinburgh. Reduction is bound to impact on that. Where will the reduction come? Will it come from us in the north reinforcing the central belt concerns, or will it come from the central belt reinforcing their concerns of a tartan-clad army coming down from the Highlands to dominate the parliament? Either way we are on a hiding to nothing.
I shall stick with those three powerful arguments and leave my noble friends to pick up other points. However, I have just one observation to make. When we finished this debate in Committee the Caithness Courier carried a report. I do not quite know why the latter should have picked it up but it did. I was at the Halkirk Highland Games a day or two after that. I have never experienced so many people coming to me and saying, "I had no idea this was in the Bill" and telling me how right we were to press forward. I do not believe there is anybody in Scotland who actually understands what this means who does not wish the Government to reverse their position and accept our extremely logical proposal.
I am sure that we shall have a very interesting debate. We may even have quite a long debate but when the noble Lord, Lord Sewel, comes to the Dispatch Box, which I am sure he will do with his customary courtesy honeyed with humour, I hope, as he seeks to defend his position with all his intellectual might and an undoubtedly sound brief, that what he will do is look into his heart where I am certain—and I guess this—he is with me. Let his heart on this occasion rule his head. Please, I ask him, let him concede because I must warn him: if he does not, we on these Benches regard these amendments as fundamental and crucial and we shall certainly wish to seek the opinion of your Lordships' House.
5.30 p.m.
Lord Rowallan: My Lords, I rise to speak to Amendments Nos. 16, 20 and 25.
It gives me enormous pleasure for very nearly the first time since I have been in your Lordships' House to be fully behind the Liberal Party on this issue. A very cogent point has been put by the noble Viscount, Lord Thurso. I cannot see any logic at all in building a parliament for 129 people and all their offices and then reducing the number at a later date to 108, 100, or whatever the number might be. Apart from the complete waste of capital money involved in doing that, the whole thing seems to me to be completely illogical. I had hoped that by now the noble Lords in the Liberal Party and in my own party would have managed to get together and bring forward a common amendment for this. We are all after the same thing, but there are at least four different proposals saying virtually the same thing in different words. As the noble Viscount, Lord Thurso said, this is an important issue; it is absolutely fundamental to the whole thing. The White Paper quite clearly stated that there would be 129 Members in this
1594
parliament and we now learn during the course of this Bill's progress that this could be reduced. That must be resisted at all costs. I hope that the noble Lord who will be doing the answering has got a heart and that he manages to use it.
Baroness Linklater of Butterstone: My Lords, I rise to support my noble kinsman and my noble friend wholeheartedly in what he said. It was clearly agreed by the constitutional convention that the number of MSPs should be 129 in order to maintain proportionality. That was 73 constituency Members and 56 additional ones. The Government are already reneging on this agreement and we wonder why. If the Government want to reduce the Members at Westminster, there is no reason why this should affect the number of MSPs.
We do understand the argument about over-representation at Westminster. The situation is different for Scotland. The argument that there should be similar boundaries for both is not a good one. I have heard the Government put the argument that it is confusing for the electorate. I do not believe the electorate is really that stupid. It is already used to a range of different boundaries for different candidates for Westminster, for local government and for Europe, and it is also used to changing boundaries. This is a totally new situation and, therefore, different boundaries are part of the newness. What is much more confusing is to institute something new and then immediately start to change it. It is the worst of all worlds and it means that you are in a position of uncertainty from the word go. I believe also that it is politically inept because it gives a lever to opposition parties and has, as I am sure noble Lords already know, resulted in some not very favourable comment in the Scottish press.
Clarity, stability and consistency are essential for our new parliament and to signal that the original boundaries are to be changed within a short space of time is to launch with uncertainty for the future, create inconsistency from the beginning and undermine confidence from the start. I cannot believe that this is what the Government really want.
The figure of one hundred and twenty-nine MPs, as my noble kinsman has said, was agreed after much consultation in the constitutional convention in order to give the vital element of proportionality, which is the cornerstone of the new parliament and one of the key features which distinguishes it from Westminster. It is part of the reason, I believe, that the people of Scotland have responded with such enthusiasm and support for the parliament. Indeed the noble Lord, Lord Sewel, acknowledged during the Committee stage of this Bill on 8th July that the greater proportionality built stability into the system, the stability that we want and need. The White Paper underlines this. To reduce the number from 129 reduces that proportionality. It thus erodes the very feature of stability which is so essential. Is this what the Government really want?
As I understand it the number of MSPs was also calculated, as we have already heard, on the ability of the MPs in the Scottish parliament to do the business effectively. We must have a parliament that works efficiently. We must have enough people there to do the

1595
job. We have also heard—and I must endorse this too—that any reduction would reduce the chances of smaller parties—like the Green Party, for example—to have some representation in the Scottish parliament. I believe that this is another important and distinguishing feature of the possibilities offered by the new Scottish parliament which was so appealing to the Scottish people. There is already some concern that what seemed to be so attractively on offer in the early days in terms of this wider representation, including even independent members, has diminished to virtually nothing.
The reduction proposed by the Government would narrow the base and diminish the opportunities. I believe that it is in complete opposition to the spirit of the proposals of the constitutional convention. As my noble kinsman said, the diminution of rural representation—we cannot allow that in a country such as ours—plays to the fears that in Scotland we shall have a parliament dominated by the central belt. That would be a real anathema.
Lastly, in purely practical terms, the new building will be designed to accommodate some number of MPs. Designing and building in facilities for an unspecified number could not be more impractical and costly, and is a hallmark of had management. I am sure that the Government would not wish to find themselves characterised as a bad manager. It is inevitable that if up to 20 members have to be provided for at the beginning who then melt away, the result will be an enormous waste. Such details are the hallmark of the quality of any operation. I believe that the signals are very bad.
I return to the terms of the stability, consistency and coherence so necessary at the start of any enterprise. The noble Lord, Lord Macdonald, who I see in his place, knows about good management, and the importance of good planning and attention to detail. One might say that the devil is often in the detail.
I do not believe that the insecurity which the Government are building into their plans is what they really want. It must be bad politics as well as bad management. We cannot support it.
Baroness Carnegy of Lour: My Lords, what the noble kinspeople have said is absolutely right. I agree with them. We have heard all about what happened in the Scottish Constitutional Convention. The question is: why have we got where we are; and what will the Government do about it? The Government have a problem.
Let us remind ourselves why the constitutional convention decided as it did without regard to what might happen at Westminster. It was not asked to consider what happened at Westminster. Its terms of reference asked it to devise a scheme for Scotland and to sell it to the people of Scotland. That was reasonable enough. It did that. It did not consider this difficulty. If it considered the difficulty, it did not come within the terms of reference. I may be told that that is not so, but I looked up the terms of reference and spoke on the subject two Queen's Speeches ago, so I believe that I am right on that.
1596
The Government's problem is this. If there were as yet no Scottish National Party in existence, the implementation of this part of the Bill would bring about a Scottish national party. I say "the implementation" because it is only when it happens that the trouble will really begin. On the face of it, the Government's plan seems reasonable in the circumstances. It would be most convenient for voters to have the same constituencies for Westminster and for Holyrood. The description of the scheme in the White Paper, and given by the noble Lord in Committee in this Chamber, was very reasonable. It sounded sensible. If we are going to reduce the number of Members of the Scottish parliament, it is wise not to alter the balance between constituency Members and proportional representation Members, when one considers the problems that we already perceive of the effect that proportional representation may have on the way in which the electorate views the issue.
Most people agree that the number of Westminster MPs should be reduced. But let us imagine what will happen when that comes about. The Boundary Commission recommends a reduction in the number of Scots MPs at Westminster and the constituency boundaries. The elected members of the Scottish parliament have to be reduced, and the boundaries changed because of that. The Scottish parliament will explode. The Scottish National Party, which has been keeping rather quiet because it is just the kind of row for which it is waiting, will explode too. What is the solution proposed by Scotland? It is that the Westminster boundaries should not be changed. That is what will happen, and English MPs at Westminster will explode too, and with reason.
Paragraph 1 of Schedule 1 looks and sounds reasonable. We all know why the problem has occurred. The Liberal Democrats know why the problem has occurred. It is right that the problem has to be solved. My noble friend Lord Mackay of Ardbrecknish has an amendment on this matter to which he will speak. The only alternative is that proposed by my noble friend and the Liberal Democrats. An inconvenience to Scots voters and to party campaigners which would not affect voters elsewhere in the UK is the least of two difficult alternatives.
There is a long history on this issue. We have a great problem. However, I believe that what my noble friend proposes, for which the amendment provides, is the only way forward.
5.45 p.m.
Lord Selkirk of Douglas: My Lords, I support the comments of the noble Baroness, Lady Linklater, on having 129 MPs. It would be an entirely wrong signal if we were to set up a parliament and inform those elected to it at the same time that a large proportion of their number would be axed shortly by the Boundary Commission.
In relation to the Westminster Parliament, because of the West Lothian question, the issue is quite different. If Stormont is a precedent to go by, the arguments for reducing the numbers in the House of Commons are

1597
substantial. On 24th July, the Secretary of State said in Hansard that due weight should be given to geographical consideration and local ties. I strongly believe that to be the case.
The Highlands and Islands of Scotland require a considerable number of representatives because of the immense distances involved. They need to have lifeline services both through air and ferry travel. There are also the health needs of those concerned. I could not help but recall a book written by the father-in-law of the noble Baroness, Lady Linklater, called Laxdale Hall. The story was that English politicians went to remote communities in the Highlands and Islands to advise them to live in centres of population and their problems would then be resolved; they would have plenty of public expenditure for which they were calling. That has occurred only in the case of St. Kilda. I do not seriously believe that any politician of any political party would advocate today the measures that were applied to the residents of St. Kilda, which had special circumstances. Even then that was an intensively controversial decision. The needs of remote rural communities are sufficiently strong to require a considerable number of representatives, so that the immense distances can be effectively covered.
At stake is whether the well-being of the Scots parliament should come first or the administrative convenience of the public servants who would have to draw up two sets of boundaries. I believe strongly that the well-being of the Scots parliament should come first: that continuity is important; and that to have immense chops and changes in numbers as soon as the parliament is created would give the wrong signal. It would be unsettling at the beginning of the parliament; and it would be neither desirable nor necessary. I hope most earnestly that the Minister will listen to the argument for 129 MSPs.
Lord Sempill: My Lords, I, too, strongly support this group of amendments. Since I was last in your Lordships' House I have been following the advice of the noble and learned Lord the Lord Advocate and have been actively pursuing my goal of winning a seat in the new Scottish parliament. That has enabled me to visit many doorsteps and speak to many people. In addition, I have taken opportunities to attend various forums.
I am pleased to see the noble Lord, Lord Macdonald of Tradeston, in his place because as Scottish Minister for Trade and Industry he recently addressed such a forum. It was held on Monday by the Scottish Council Foundation and I found the day most interesting. It comprised more than 100 Scottish businessmen, most from small businesses. Unfortunately, the noble Lord had to leave after his address—his keynote speech—and missed some of the later discussions.
Having attended various such forums and had many doorstep conversations, I wish to make the following points. I maintain that there is a high expectation of what the parliament will deliver, but underlying that is a strong mood of uncertainty. The potential cut in numbers is a divisive issue and I, too, strongly recommend the Government to look at it carefully.
1598
The new parliament will need time to establish credibility. I do not know whether that will be in the first or second session, but it will certainly be a five-year period.
The Scottish media are describing Scottish representatives in the other place as being marginalised. I maintain that the constituency MSPs will have stronger relationships with the electorate. The Scottish electorate will expect a great deal more from their MSPs than they have from their Westminster MPs purely and simply because they will be on their doorsteps and ready and available to be spoken to. Following from discussions earlier today, I point out that there will be substantially more discussion in a unicameral chamber. I maintain that if the committee consultative system is to be run there must be a minimum of 120 members. It is on that issue that I underline my support for this group of amendments.
I agree with the noble Baroness, Lady Carnegy, that the nationalists will see the move as an opportunity because they will offer the one thing that it will create—greater representation by going independent. That must be taken into consideration.
Finally, I make a gardening analogy. Plants when put into the ground take time to root. Heavy pruning can have two results, but certainly we could end up with a plant which has many more thorns than flowers. I caution the Government that if there were ever a time to stay with 129 members it is now.
The Earl of Mar and Kellie: My Lords, the success of the devolution project will depend on the confidence of the Scottish people. That confidence will come from the achievement of the correct level of autonomy for Scotland in the medium term. I expect that more powers will be sought by the Scottish people and their parliament and that the list of reserved matters will be reduced over the years. While recognising that there is a paradoxical demand in Scotland for political autonomy and to remain British, I believe that the Scottish parliament will become more busy than I first predicted. In that circumstance, it will be necessary to retain all 129 members to carry out the increase in work. I suspect that the original Liberal Democrat proposal for 145 members will come to be seen as correct. However, that was not the agreement reached.
Any attempt to reduce the membership in the near future will be placed dangerously as a gift at the feet of those with a separatist agenda and no doubt a parliament with abundantly adequate membership.
Lord Mackay of Ardbrecknish: My Lords, the grouping is complex and I do not complain about it. It contains four or five sub-groups, all of which relate to the same issue. I am talking to the group in my name, which starts with Amendment No. 4. However, my amendments and those in the group tabled by the noble Viscount, Lord Thurso, address the same issue, as do those in the group tabled by my noble friend Lord Rowallan.
I am a little puzzled by Amendment No. 3. Perhaps I may do what those on the Liberal Democrat Benches do and give the ministerial reply—that it seems to be

1599
totally and absolutely unnecessary. The first line of Schedule 1 reads:
"The constituencies for the purposes of this Act are".
Amendment No. 3 would have it read:
"The constituencies of the Scottish Parliament for the purposes of this Act are".
As the Bill is for the purpose of establishing the Scottish parliament, the amendment is meaningless and suggests that the poor Liberal Democrats do not understand the words in the Bill. They are wasting the time of the House by tabling amendments which are so totally unnecessary—as I have been told myself on a number of occasions.
I have a suspicion that they tabled the amendment knowing that it was totally unnecessary, especially given the next three words, because they wanted to move this group ahead of mine. Perhaps that is an evil suspicion which shows that I have not understood what consensual politics are about. But I have no doubt that they want it to be consensual enough for me to marshal my forces in the Lobby with them a little later tonight. Perhaps they should have been a little less confrontational.
Lord Mackie of Benshie: My Lords, we are not being confrontational at all. The noble Lord has called me a camp follower and I have accepted that. Surely, that is a state of bliss for a Scotsman.
Lord Mackay of Ardbrecknish: My Lords, I am not a convert to non-confrontational politics. I am happily in confrontational politics; it is the noble Lord and his party who want non-confrontational politics.
The point about the two groups—that is, Amendments Nos. 3, 6, 8, 9, 21 and 22 in the name of the Liberal Democrats, 4, 7, 10 to 15 and 19 which are in my name, and 16 to 18 and 20 in the name of my noble friend Lord Rowallan—is that they address the problem in which the Government are caught. The provision comes from Holy Grail and it is unfortunate that no one noticed a contradiction. Page 13 of the White Paper states:
"The distribution of seats in the House of Commons will be reviewed by the Parliamentary Boundary Commission which follow criteria defined in statute … The Government have decided that in the next review this requirement will no longer apply".
That is contained in Clause 82 of the Bill.
Unfortunately for the Government, the Holy Grail later states that members of the Scottish parliament will be elected for each of the current Westminster constituencies. So they got caught in the trap that inevitably they must either uncouple the Scottish members of parliament from the Westminster constituencies or they must reduce the number of Scottish members of parliament. That is the dilemma that faces the Government and at the moment they are not prepared to resolve it.
However, we know that the Scottish Office is keen to resolve the issue and understands the political points. There is a point about the daftness of building a parliament for 129 members and reducing the number to 108 three or four years down the line. There is also a daftness about giving the Scottish National Party such
1600
an obviously good campaigning issue as saying that the Scottish parliament is so much a lackey of Westminster that when Westminster reduces its numbers the Scottish parliament has to fall into line and "Dae as it's telt". I could write the copy myself. We know that the poor Government and the Scottish Office understand that.
Perhaps I may be allowed to quote from the Scotsman in the presence of the noble Lord, Lord Macdonald. An article appeared in that newspaper in the summer by Severin Carrell and Peter MacMahon, its political correspondents. It says this—and it is the problem that the Government have—
"Tony Blair has personally overruled an appeal from Donald Dewar to protect the number of MSPs who will sit at Holyrood, dealing an embarrassing blow to the Scottish Secretary in his fight against the Nationalists.
"Mr. Dewar, hacked by Scottish Office ministers, wanted to redraft the Scotland Bill to remove a clause which would bring about a reduction of up to 21 MSPs in the first few years of the parliament's life.
"However, some Scottish ministers will fear that Mr. Blair has played directly into the hands of the Scottish National Party, reinforcing claims by its leader, Alex Salmond, that policies for Scotland are being dictated by Downing Street … But a Downing Street spokesman said last night that Mr. Blair would not support any changes to the bill because he believes the Government should stick to its initial proposals, made in last year's devolution white paper";
that is, despite the contradiction to which I have drawn your Lordships' attention. The article continues:
"In a statement which caught Mr. Dewar's aides by surprise, the spokesman said: 'The white paper stands. It will not he changed"'.
It is no wonder that in the same article the polls discovered that Alex Salmond is the favourite to be the Scottish First Minister by 42 per cent. over Mr. Dewar's 37 per cent. I know that the polls have improved slightly for the governing party in recent weeks in Scotland. However, the day that all this comes about Mr. Alex Salmond will be laughing all the way to the political bank.
Therefore, I cannot think of anything dafter for the Government to do than to say to this parliament, "You can start off with 129 members, but when the House of Commons inevitably reduces that number to about 58 Scottish members, thanks to Clause 82 of the Bill, your numbers will be reduced in a similar manner—in fact, even more so, because you have to lose another seven to keep the balance of proportionality right".
I believe that that is straightforwardly bad politics. Why should I be trying to save the Labour Government from themselves? As I mentioned earlier this afternoon, the problem is that I live in Scotland so I have to take the castor oil along with the Government—I do not particularly want to—and see the Scottish National Party run my country and move it to independence and break up the Union. Therefore, I hope that the Government are going to listen and amend the Bill accordingly because nothing short of that will do.
There are two other groups of amendments. Amendment No. 11 is a particular hobby-horse of mine. I shall not rehearse it because I shall get an opportunity later to do so. When the Scottish parliamentary boundary commission makes up the seats for the Scottish parliament, it ought to take more account of the

1601
electoral quota than it has in the past. The simple fact of the matter is that in the past boundary commissions in Scotland have created the most ludicrous positions in the contrast between the numbers of constituents in constituencies. For example, the city of Edinburgh has an average of 62,000 per constituency whereas Glasgow has 51,500. The conclusion may be that Glasgow MPs are not capable of looking after as many constituents as Edinburgh MPs. That may be true.
Out in the country, for example, the seat of Ross, Skye and Inverness West held by the Liberal Democrats has 56,000 constituents, which is just above the quota. However, it is a huge seat in one geographical area. Even bigger at 66,500 constituents is Inverness East, Nairn and Lochaber. There is also the constituency of Carrick, Cumnock and the Doon Valley with 66,500 constituents. There are others like postage stamps such as Baillieston with 49,000 constituents; Shettleston with 48,000 and Hamilton South with 47,000. They exist in areas where one could walk from one end to the other without breaking sweat.
I shall not even be tempted to speculate because I annoyed the Government Benches when I did so on the last occasion. The amazing fact is that most of the pocket handkerchief constituencies are in West Central Scotland and for a moment I cannot think why that should be. That deals with Amendment No. 11.
Amendments Nos. 24 and 25 are rather different. I have to say to the Liberal Democrats that I cannot support Amendment No. 24. The noble Lord did not speak to it, I believe, but it states that if the Government were to go ahead with the proposal and reduce the number of members of the Scottish parliament by 14 first-past-the-post members, they would then have to increase the number of top-up members from 56 to 70. That means that there would be more top-up members than first-past-the-post members. Personally, I do not approve of that. Given the d'Hondt formula and the regions, the Government have probably got it about right at seven additional members per region. If one seeks to achieve proportionality that is probably about the best number. It does not work in every case, but it does in most. It is certainly hugely better than the four additional members allowed in Wales, which is an inadequate number of top-ups. If one has too many top-ups the parliament becomes largely composed of people who do not represent constituents. My noble friend Lord Sempill made a very valid point in that respect.
Your Lordships know that I do not particularly approve of top-ups or any form of fiddled voting, but if we are to have them then we must keep them in decent proportion. I believe that the Government have got that proportion about right and therefore I could not vote in favour of the Liberal Democrat amendment. I assume that it is something of a backstop to the other amendments.
I do not know how your Lordships and the Government are going to disentangle the complexity of the amendments. I re-echo the position that Scottish Office Ministers have clearly implied; namely, that this is a smoking gun in the body politic in Scotland. If the
1602
Government do not do something about it then those of us who believe in the Union will bitterly regret it when it comes about that the Scottish National Party use it as a launching pad for Scottish independence.
6 p.m.
Lord Sewel: My Lords, perhaps I may begin by being uncharacteristically hypothetical. It may help your Lordships, in considering these amendments, which are likely to result in Divisions, that if Amendment No. 3 is agreed to on a Division the Government will accept that decision as applying also to Amendments Nos. 6, 8, 9, 21 and 22. If Amendment No. 4 is agreed to on Division the Government will accept that decision as applying also to Amendments Nos. 7, 10 and 12 to 15. I hope that indicates the structure within which we shall be making decisions this evening.
As the noble Lord, Lord Mackay of Ardbrecknish, has indicated, these amendments cover a rather complex range of issues. We come down to the question of size of the parliament. I am most grateful to noble Lords who have spoken. I am particularly grateful to the noble Lord, Lord Steel. He is not in his place, but he indicated at a very early stage that he thought that this was a matter of considerable importance and he wished to bring it back for a decision today at Report stage. I also freely recognise the issue of principle which the noble Lord, Lord Mackay, raised. He is as close to the noble Lord, Lord Steel, as he is ever likely to get on that issue.
The noble Lord, Lord Rowallan, has made clear his support for the proposition that the size of the parliament should be fixed. If I am unable to give noble Lords the answer they would like, I hope that they will not think it is because we have somehow dismissed the case in some cavalier way. We have not. We have looked at the matter thoroughly, but come to a different view from those put forward by your Lordships who spoke earlier. I shall try to explain how we have reached our view.
Amendments Nos. 3, 6, 8, 9, 21 and 22 in the name of the noble Viscount, Lord Thurso, closely resemble amendments which the House considered at Committee stage. They seek to break the link between constituencies for the UK Parliament and those for the Scottish parliament. During that earlier debate in Committee, the noble Lord, Lord Mackay, supported the Liberal Democrats and has tabled amendments to achieve a similar end. The noble Lord, Lord Rowallan, again returns to the same theme. His amendments are intended to break the link but have an interesting twist by amending the rules under which the Boundary Commission is to work. It would fix for all time the number of members of the Scottish parliament at 129.
As I have indicated, we have approached this somewhat differently. Our starting point is the priority we give to maintaining the link between Westminster and the Scottish parliament constituencies. That is a thread that ran throughout the discussions in the constitutional convention and in the proposals contained in the White Paper.
We recognise that that will cause a reduction in the size of the parliament, but we do not believe that that will have unmanageable consequences for the

1603
parliament. We believe that by maintaining that link we provide something which is understandable, clear and simple: the idea that you live in a constituency and, in that constituency, you can vote for a Member of the Westminster Parliament and you can vote for a member of the Scottish parliament. It is simple and obvious. There is no confusion; it is absolutely straight.
I have difficulty with the accusation in this debate that the Government have somehow reneged on a commitment they gave, a comment made by the noble Baroness, Lady Linklater. I dispute that. The Government have in no way reneged but have maintained a consistent position throughout.
First, let us look at the constitutional convention. The constitutional convention's number was 129. That is not some magic number; you would have to be quite perverse to pull down 129, of all numbers, as somehow the ideal number for the size of the Scottish parliament. There was a process—an argument—that developed the figure of 129. It was quite simple. The starting point was the Westminster constituencies—the 72 Westminster constituencies presently existing—plus the splitting of Orkney and Shetland, which gave 73, and then the proportional factor of seven additional seats for the eight regional groupings. But the fundamental point, the driver to arrive at 129, was the number of Westminster constituencies. That has always been there.
I entirely accept the point made by the noble Lord, Lord Mackay of Ardbrecknish. The possibility—indeed the probability—of a reduction in the size of the Scottish parliament is made absolutely explicit in the White Paper. There is no reneging. I take great exception to the idea that we are somehow pulling out this proposal in a duplicitous manner.
Baroness Carnegy of Lour: My Lords, I thank the noble Lord for giving way. Does he know whether the constitutional convention took account of the fact that the number of Westminster seats in Scotland might be reduced? It did not have to, as I pointed out in my speech, but I wonder whether it did. It is just a point of interest for the House.
Lord Sewel: My Lords, I thank the noble Baroness for that intervention. My point was that, in arriving at 129, the constitutional convention started with and was driven in its calculations by the driver of the 73 Westminster constituencies. The noble Baroness is quite right, it did not consider the possibility of a reduction in the number of Westminster constituencies. It is not surprising that its recommendations are implicitly silent on what the effect would be on the size of the Scottish parliament if there were a reduction in the number of Scottish seats at Westminster.
In introducing the White Paper, we accepted the argument—and the noble Lord, Lord Mackay of Ardbrecknish was a strong advocate of the argument—that we should move away from the requirement placed on the Boundary Commission to maintain the present level of representation in Scotland. We made that clear in the White Paper, Scotland's Parliament. I will quote for the sake of completeness. Paragraph 4.5 of the White Paper states:
1604
"The Government have decided that in the next review this requirement will no longer apply".
We then move on to the relationship between the Westminster seats and the size of the Scottish parliament. As the noble Lord, Lord Mackay of Ardbrecknish, has identified, that is dealt with in paragraph 8.7 of the White Paper. It says,
"Any changes in Westminster constituencies will result in changes to Scottish parliamentary constituencies; and may also lead to consequential adjustments to the size of the Scottish parliament so as to maintain the present balance between constituency and additional Member seats."
So it has been there, it has been open and it has been explicit. It may be absolutely reasonable to argue and disagree with the Government's proposals, to disagree with what is contained in the White Paper, and to disagree with the process behind that proposition. But it is not fair and it is not reasonable to say, in any sense, that the Government have reneged on any undertaking that they gave. They did not; they have not; and they will not.
I can assure the House that we have thought carefully about the implications for the parliament of a reduction in size. It would be a matter of major concern if the size of the parliament were so reduced that it somehow affected the efficient and effective internal workings of the parliament. We simply do not believe that that will be the case. The size of any likely reduction would not be such that the parliament would be unable to carry out its key roles of scrutinising effectively Scottish legislation and enacting that legislation.
We must keep this debate in proportion. On any realistic assessment, we are not contemplating cutting the membership of the parliament by a half, a third, or even a quarter. Yes, there will be a reduction, but attempts to cast the Government in a role of carrying out some sort of cull of the innocents is not a fair description of what is likely to happen. It is virtually certain that the size of the Scottish parliament—even after the review of the Westminster constituencies—will still comprise more than 100 members. That is a reasonable, proper size for a parliament at Holyrood. It is a size which will enable it to do its job, and to do that job properly.
Turning briefly to Amendment No. 11, this is a slightly different amendment from the others in this particular grouping. It really returns to a point which I know is close to the heart of the noble Lord, Lord Mackay of Ardbrecknish, and it deals with the size of constituencies. The noble Lord again reveals his mathematical past in providing us with a formula. If I interpret his formula properly, he is attempting to ensure that all but seven of the constituencies for the Scottish parliament are within a 10 per cent. margin of the electoral quota. The noble Lord has promised us that he will return to this issue somewhat later in our debates.
The only point I would make is that issue properly rests with the Boundary Commission. The Boundary Commission is given a series of rules. The desire to get equality of size is one of the important factors, but the Boundary Commission is allowed to take into account other factors, like special geographical considerations, including the size, shape and accessibility of the

1605
constituency, and also local sentiment and feeling. At this stage, my only argument would be that once the rules have been set—I do not think the rules can be set in a strictly mathematical way—we should leave it to the Boundary Commission to get on with the job.
Amendment No. 24 takes another tack. It accepts coterminous constituencies and compensates for any reduction in numbers by increasing the number of regional members. Here I find myself in agreement with the noble Lord, Lord Mackay of Ardbrecknish, because what we have sought to do throughout the whole discussion on the size of the parliament is to maintain the balance between the number of members of the Scottish parliament elected under the first-past-the-post provision and the number who are coming through under the so-called corrective mechanism of additional members. Amendment No. 24 significantly upsets that balance. I can appreciate the main objective, which is to secure a particular number, but it has chosen the wrong way of going about securing that number by increasing disproportionately and upsetting the balance in favour of the additional member seats.
I realise that the issue of the size of the Scottish parliament is of considerable importance to many noble Lords. I believe that it is of importance. I believe that our approach is right. I believe that our approach has been consistent, straight and honest throughout. But I do make this point and I ask noble Lords to reflect upon it. We are setting up the Scottish parliament which will initially have 129 members. They will set about their work. I am sure that they will do it well and that they will find that they have sufficient people to do it. I think they will recognise that their work would not be adversely affected by a reduction in their overall number. But if, during the course of the early years of the parliament, they take the view that a reduction in the size of the parliament would have an adverse effect on the way it functioned and operated, it is clearly open to the parliament to petition the United Kingdom Parliament and seek an amendment to the Bill.
Lord Mackie of Benshie: My Lords, will the noble Lord not consider the effect on the state of morale of many members of the parliament when they are thinking of the problems of Scotland and realising that 20 of them will have to go long before they have got anywhere with it? That is an important point which the noble Lord has not considered.
Lord Sewel: My Lords, I do not think that the size of the Scottish parliament or indeed the size of the other place should be determined by the sensitivities of the members who inhabit it. The size of a parliament has to be justified by means other than perhaps the slight disadvantage and discomfiture that may be caused to its members when the size is reviewed from time to time.
I return to my final point. It is clearly open to the Scottish parliament, if in its early years it feels that a reduction in its size would seriously and significantly affect the way it operated and put its functioning at risk, to make a case to this Parliament
1606
and say, "Look, on the basis of experience, we need a change", and it would be up to this Parliament and the United Kingdom Government to reach a balanced view. I believe that is a sensible and reasonable way forward.
Viscount Thurso: My Lords, I am extremely grateful to those noble Lords who have taken part in this very interesting debate. I note that many noble Lords have chosen to speak in support of the amendment—in varying degrees and with varying degrees of reluctance—and I also note that no noble Lord has chosen to support the Government's position. That is, as I said in my opening remarks, because the Government's position is insupportable.
Lord Desai: My Lords, I have taken the view that I want to save time and get on with the business, which is why I have not spoken.
Viscount Thurso: My Lords, I am so glad that we have in our midst an economist in the 19th century sense. I do not want to refer to the individual contributions of many of your Lordships but I should like to refer to that of the noble Lord, Lord Mackay of Ardbrecknish. When he finished pulling my tail, I understood him to say that he would indeed be supporting us. As I said when opening the debate, I always enjoy being teased by the noble Lord because it usually means that I have got it right. However, I must say that support from him is a little like sniffing the fragrant bloom of a cactus in the desert—you have to be very careful how close you get. I am nonetheless grateful for that support. If he is an unwilling convert to the idea of consensual politics, I promise to go gently with him.
At the end of my opening speech I said that the noble Lord, Lord Sewel, would come to the Dispatch Box with his usual courtesy, honeyed with humour, and that I hoped he would let his heart speak instead of the brief in front of him. I got it slightly wrong. He certainly came with his usual courtesy but chose instead ire and obfuscation as his defence of the Government's position. I do not think it hid the weakness of his position. It all comes down to one simple fact. Someone, somewhere—I do not know where—thinks it is a jolly good idea if every constituency in Westminster and every constituency in Scotland has identical boundaries. I do not think for one moment that there is a single voter who knows where the boundaries of his constituency are. It is only those of us in politics who are exercised about that. It is not a matter of great importance. It is simply a neat little administrative parcel.
I come back to the three arguments I gave your Lordships at the beginning of the debate. The Government's position is quite contrary to that set out in the constitutional convention; it will inevitably mean a reduction in the efficiency and working capacity of the

1607
Scottish parliament; and it will reduce the representative nature of that parliament and make it more difficult for minorities and other parties to take part. I believe I made that argument convincingly and the support which your Lordships have been kind enough to give me makes me believe that I should ask the opinion of the House.
6.30 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 103; Not-Contents, 94.

Division No. 2

CONTENTS

Addington, L.

Massereene and Ferrard, V.

Archer of Weston-Super-Mare, L.

Mersey, V.

Astor of Hever, L.

Methuen, L.

Attlee, E.

Miller of Chilthorne Domer, B.

Avebury, L.

Milverton, L.

Bath, M.

Monro of Langholm, L.

Beaumont of Whitley, L.

Monteagle of Brandon, L.

Blatch, B.

Montrose, D.

Brabazon of Tara, L.

Mowbray and Stourton, L.

Burnham, L.

Newby, L.

Byford, B.

Nicholson of Winterbourne, B.

Cadman, L.

Nickson, L.

Campbell of Alloway, L.

Northesk, E.

Carlisle, E.

O'Cathain, B.

Carnegy of Lour, B.

Ogmore, L.

Clanwilliam, E.

Pearson of Rannoch, L.

Clement-Jones, L.

Pender, L.

Courtown, E.

Perry of Walton, L.

Cross, V.

Phillips of Sudbury, L.

Denham, L.

Rawlings, B.

Dholakia, L.

Razzall, L.

Dixon-Smith, L.

Rennell, L.

Falkland, V.

Renton, L.

Ferrers, E.

Renwick, L.

Fraser of Carmyllie, L.

Rodgers of Quarry Bank, L.

Gladwyn, L.

Rotherwick, L.

Goodhart, L.

Rowallan, L.

Hamwee, B.

Russell, E.

Harris of Greenwich, L.

Ryder of Wensum, L.

Hayhoe, L.

Selkirk of Douglas, L.

Holme of Cheltenham, L.

Sempill, L.

Hooson, L.

Sharp of Guildford, B.

Howe of Aberavon, L.

Simon of Glaisdale, L.

Hylton, L.

Smith of Clifton, L.

Jacobs, L.

Stair, E.

Kingsland, L.

Stanley of Alderley, L.

Kinnoull, E.

Strathcona and Mount Royal, L.

Kintore, E.

Sudeley, L.

Lauderdale, E.

Swinfen, L.

Lester of Herne Hill, L.

Thomas of Gresford, L.

Linklater of Butterstone, B.

Thomas of Walliswood, B.

Lucas, L.

Thomson of Monifieth, L. [Teller.]

Ludford, B.

Luke, L.

Thurso, V. [Teller.]

Mackay of Ardbrecknish, L.

Torphichen, L.

Mackay of Drumadoon, L.

Vivian, L.

Mackie of Benshie, L.

Wallace of Saltaire, L.

McNair, L.

Warnock, B.

McNally, L.

Weatherill, L.

Maddock, B.

Wigoder, L.

Mar and Kellie, E.

Wilson of Tillyorn, L.

Marsh, L.

Wise, L.

1608

NOT-CONTENTS

Ahmed, L.

Irvine of Lairg, L. [Lord Chancellor.]

Alli, L.

Amos, B.

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

Archer of Sandwell, L.

Ashley of Stoke, L.

Jenkins of Putney, L.

Bach, L.

Kennedy of The Shaws, B.

Balfour, E.

Levy, L.

Bassam of Brighton, L.

Lockwood, B.

Berkeley, L.

Lovell-Davis, L.

Blackstone, B.

Macdonald of Tradeston, L.

Blease, L.

McIntosh of Haringey, L. [Teller.]

Borrie, L.

Carter, L. [Teller.]

Mackenzie of Framwellgate, L.

Castle of Blackburn, B.

Merlyn-Rees, L.

Chandos, V.

Milner of Leeds, L.

Christopher, L.

Mishcon, L.

Clarke of Hampstead, L.

Molloy, L.

Clinton-Davis, L.

Monkswell, L.

Cocks of Hartcliffe, L.

Montague of Oxford, L.

Crawley, B.

Morris of Castle Morris, L.

Currie of Marylebone, L.

Murray of Epping Forest, L.

Paul, L.

David, B.

Plant of Highfield, L.

Davies of Oldham, L.

Ponsonby of Shulbrede, L.

Dean of Thornton-le-Fylde, B.

Prys-Davies, L.

Desai, L.

Puttnam, L.

Diamond, L

Ramsay of Cartvale, B.

Dormand of Easington, L.

Randall of St. Budeaux, L.

Dubs, L.

Rendell of Babergh, B.

Evans of Watford, L.

Richard, L.

Farrington of Ribbleton, B.

Rogers of Riverside, L.

Gallacher, L.

Sainsbury of Turville, L.

Gilbert, L.

Sawyer, L.

Gordon of Strathblane, L.

Scotland of Asthal, B.

Goudie, B.

Serota, B.

Gould of Potternewton, B.

Sewel, L.

Graham of Edmonton, L.

Shepherd, L.

Grenfell, L.

Simon, V.

Hacking, L.

Simon of Glaisdale, L.

Hanworth, V.

Strabolgi, L.

Hardie, L.

Symons of Vernham Dean, B.

Hardy of Wath, L.

Thornton, B.

Hayman, B.

Tryon, L.

Hilton of Eggardon, B.

Turner of Camden, B.

Hollis of Heigham, B.

Uddin, B.

Hoyle, L.

Walker of Doncaster, L.

Hughes, L.

Whitty, L.

Hughes of Woodside, L.

Williams of Elvel, L.

Hunt of Kings Heath, L.

Williams of Mostyn, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.38 p.m.
[Amendment No. 4 not moved.]
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 5:
Page 60, line 7, after ("Islands,") insert—
("() the Western Isles,").
The noble Lord said: My Lords, this is a small amendment. Despite the amendment which has been carried, it is still in the text of the Bill. I checked that during the last debate.
It addresses the question of why Orkney and Shetland are mentioned specifically and the Western Isles are not. I put the argument in Committee and I shall not go over it at length. But if Orkney and Shetland are mentioned specifically as two areas which should be constituencies

1609
on their own account in the Scottish parliament, so also should the Western Isles. I made the same case in relation to what was Clause 81 and is now Clause 82 about the United Kingdom Parliament.
In reply in Committee the Minister described my point as a fair one. He said:
"We had presumed that the geographical nature of the Western Isles would result in their forming a single constituency for all time, although I recognise that, the way the Bill is framed, that is not guaranteed. However, I shall be more than happy to take back this matter and consider the point further".—[Official Report, 8/7/98; cols. 1328–29.]
Before the last Boundary Commission, there was some serious conversation and talk of the Western Isles being joined with Skye. Given modern transport methods, that argument, which once would not even have begun to run, is now something for which one could put forward a reasonable submission. I do not believe that even the reasonableness of that submission should in any way add the Western Isles to any other part of Scotland, including Skye. I should simply like a little protection in the Bill.
I will not go on at length. The Minister said that he was sympathetic and I hope to hear from him that he will accept my amendment. I beg to move.
Viscount Thurso: My Lords, it was my understanding at Committee stage that the Government accepted this amendment. Therefore, if the noble Lord, Lord Mackay of Ardbrecknish, wishes it, we shall support him.
Lord Sewel: My Lords, I have to put a stop to this somehow. The arguments on the merit of providing in the Bill an entrenched position for the Western Isles as a separate constituency have been well aired. I took many of the arguments that were made in Committee and have thought about the case since. However, I am not persuaded.
We would start again with the question of why we were putting in the Bill the provision for separate constituencies for Orkney and Shetland. The reason is simple. At the moment Orkney and Shetland form a single Westminster constituency. To provide for separate Holyrood constituencies for Orkney and Shetland it is necessary to make that explicit in the Bill because of the way in which the building blocks of the Westminster constituencies drive the number and structure of the electoral arrangements for Holyrood.
In relation to the Western Isles there is no need to do that. The Western Isles is already a separate parliamentary constituency and there is no need to secure a separate representation of the Western Isles by putting that provision in the Bill. The effect of putting Orkney and Shetland into the Bill gives a degree of entrenchment to those arrangements, but the entrenchment is not the purpose behind that. The purpose is to create two separate constituencies in the first place.
The difficulty is that if we start from the basis of somehow entrenching present arrangements or the arrangements one wants in terms of constituencies, we
1610
are faced with the difficulty of where to draw the line. Strong arguments will be put forward from a whole number of constituencies that that constituency, as it exists at the present time, should never be changed. If we went down that road, we would be in the strange position where some constituencies in Scotland would be somehow entrenched—fixed for all time—and in others there could be adjustments over a period of time in the light of Boundary Commission decisions.
I can understand the reason why the noble Lord, Lord Mackay of Ardbrecknish, tabled the amendment. But it is based on a misunderstanding of why the Orkney and Shetland provision is in the Bill in the first place. As I said, it is necessary to put them in the Bill in order to create two Holyrood constituencies out of what is one Westminster constituency. That does not apply to the Western Isles.
It may be argued that at some future date the Western Isles may be associated with another part of Scotland in a single constituency. But I have greater faith in the ability of the Western Isles to argue the case. The distinctive social, cultural, economic and even political values of that part of the world are such that I would rest assured that the Boundary Commission would find it extremely difficult to disturb the arrangement which exists at the moment. On that basis, I hope the noble Lord will feel able to withdraw his amendment.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the Minister for that explanation. I understand why Schedule 1 mentions the Orkney Islands and the Shetland Islands. I suspect, due to one of the deals in the constitutional convention, it was decided that the Orkney and Shetland constituency (which works perfectly happily for Westminster) should be divided for reasons of the Scottish parliament.
The point is that it does that not only the first time, but unless I am mistaken it entrenches that position so that even if a future Boundary Commission decided to put them together or to add to Orkney what is the fairly nearby Caithness, it would not be allowed to do so. When one goes to Clause 82, which involves the arrangements at Westminster, there again the position of Orkney and Shetland is entrenched.
I am therefore not persuaded by the argument that the Western Isles is different. I see no reason why it should not be entrenched. The noble Lord says we should leave it to the common sense of future boundary commissioners. If so, I suggest that for the purposes of the first election and perhaps the second one also, Orkney and Shetland should be two different constituencies. Thereafter it should be left to the good sense of the Boundary Commission. The Minister cannot plead with me that I should leave the Western Isles to the Boundary Commission's good sense and not leave Orkney and Shetland to the same good sense.
In order to get this matter out of the way, I shall ask the opinion of the House so that the Stornoway Gazette can at least print some of the proceedings in your Lordships' Chamber.
6.46 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 74; Not-Contents, 83.

Division No. 3

CONTENTS

Addington, L.

Meston, L.

Ampthill, L.

Methuen, L.

Archer of Weston-Super-Mare, L.

Miller of Chilthorne Domer, B.

Avebury, L.

Milverton, L.

Balfour, E.

Monro of Langholm, L.

Bath, M.

Montrose, D.

Beaumont of Whitley, L.

Newby, L.

Burnham, L. [Teller.]

Nicholson of Winterbourne, B.

Byford, B.

Nickson, L.

Cadman, L.

Northesk, E.

Carlisle, E.

Ogmore, L.

Carnegy of Lour, B.

Pearson of Rannoch, L.

Clement-Jones, L.

Perry of Walton, L.

Cross, V.

Phillips of Sudbury, L.

Denham, L.

Razzall, L.

Dholakia, L.

Rennell, L.

Dixon-Smith, L.

Renton, L.

Falkland, V.

Renwick, L.

Ferrers, E.

Rodgers of Quarry Bank, L.

Goodhart, L.

Rotherwick, L.

Hamwee, B.

Rowallan, L. [Teller.]

Harris of Greenwich, L.

Russell, E.

Holme of Cheltenham, L.

Ryder of Wensum, L.

Jacobs, L.

Selkirk of Douglas, L.

Kingsland, L.

Sempill, L.

Lauderdale, E.

Sharp of Guildford, B.

Lester of Herne Hill, L.

Simon of Glaisdale, L.

Linklater of Butterstone, B.

Skidelsky, L.

Ludford, B.

Smith of Clifton, L.

Mackay of Ardbrecknish, L.

Steel of Aikwood, L.

Mackay of Drumadoon, L.

Strathcona and Mount Royal, L.

Mackie of Benshie, L.

Sudeley, L.

McNair, L.

Thomas of Gresford, L.

McNally, L.

Thomas of Walliswood, B.

Maddock, B.

Thomson of Monifieth, L.

Mar and Kellie, E.

Thurso, V.

Massereene and Ferrard, V.

Vivian, L.

NOT-CONTENTS

Ahmed, L.

Gallacher, L.

Allenby of Megiddo, V.

Gilbert, L.

Alli, L.

Gordon of Strathblane, L.

Amos, B.

Goudie, B.

Archer of Sandwell, L.

Gould of Potternewton, B.

Bach, L.

Graham of Edmonton, L.

Bassam of Brighton, L.

Grenfell, L.

Blackstone, B.

Hacking, L.

Blease, L.

Hanworth, V.

Borrie, L.

Hardie, L.

Carter, L. [Teller.]

Hardy of Wath, L.

Chandos, V.

Hayman, B.

Clarke of Hampstead, L.

Hilton of Eggardon, B.

Clinton-Davis, L.

Hollis of Heigham, B.

Cocks of Hartcliffe, L.

Hoyle, L.

Crawley, B.

Hughes, L.

Currie of Marylebone, L.

Hughes of Woodside, L.

David, B.

Hunt of Kings Heath, L.

Davies of Oldham, L.

Irvine of Lairg, L. [Lord Chancellor.]

Dean of Thornton-le-Fylde, B.

Diamond, L.

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

Dormand of Easington, L.

Dubs, L.

Jenkins of Putney, L.

Evans of Watford, L.

Kennedy of The Shaws, B.

Farrington of Ribbleton, B.

Levy, L.

1612

Lovell-Davis, L.

Randall of St. Budeaux, L.

Macdonald of Tradeston, L.

Rendell of Babergh, B.

McIntosh of Haringey, L. [Teller.]

Rogers of Riverside, L.

Sainsbury of Turville, L.

Mackenzie of Framwellgate, L.

Sawyer, L.

Marsh, L.

Scotland of Asthal, B.

Merlyn-Rees, L.

Serota, B.

Milner of Leeds, L.

Sewel, L.

Mishcon, L.

Simon, V.

Molloy, L.

Smith of Gilmorehill, B.

Monkswell, L.

Strabolgi, L.

Morris of Castle Morris, L.

Symons of Vernham Dean, B.

Murray of Epping Forest, L.

Thornton, B.

Plant of Highfield, L.

Turner of Camden, B.

Ponsonby of Shulbrede, L.

Uddin, B.

Prys-Davies, L.

Whitty, L.

Puttnam, L.

Williams of Elvel, L.

Ramsay of Cartvale, B.

Wilson of Tillyorn, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.54 p.m.
Viscount Thurso Viscount Thurso moved Amendment No. 6:
Page 60, line 9, at end insert—
(" . The parliamentary constituencies to which paragraph 1(c) applies are those determined by the Parliamentary Constituencies (Scotland) Order 1995, or those Scottish parliamentary constituencies determined following a report of the Boundary Commission for Scotland under paragraph 3 of this Schedule, except a parliamentary constituency including either of those islands referred to in paragraph 1(a) and (b).").
On Question, amendment agreed to.
[Amendment No. 7 not moved.]
Viscount Thurso Viscount Thurso moved Amendment No. 8:
Page 60, leave out lines 15 to 17.
On Question, amendment agreed to.
The Deputy Speaker (Baroness Serota)The Deputy Speaker (Baroness Serota): My Lords, in calling Amendment No. 9, I should point out that if this amendment is agreed to, I cannot call Amendments Nos. 10 to 20.
Viscount Thurso Viscount Thurso moved Amendment No, 9:
Page 60, leave out lines 18 to 37 and insert—
("Redistribution of Scottish Parliamentary constituencies
3.—(l) The Boundary Commission for Scotland shall keep under review the representation in the Scottish Parliament and shall submit to the Scottish Executive a report either—

(a) showing the constituencies into which they recommend that Scotland should be divided in order to give effect to the

1613
rules set out in Schedule 2 (subject to paragraph 7 thereof) to the Parliamentary Constituencies Act 1986 ("the 1986 Act") in so far as they apply to Scotland, or

(b) stating that, in the opinion of the Commission, no alteration is required to be made in order to give effect to the rules set out in Schedule 2 (subject to paragraph 7 thereof) to the 1986 Act.

(2) Notwithstanding the provisions of section 81 of this Act, the rules in Schedule 2 to the 1986 Act as they apply to Scotland shall have effect in relation to the redistribution of the parliamentary constituencies referred to in paragraph 1(c) above.
(3) Subject to sub-paragraph (5) below, the provisions of sections 3, 5 and 6 of the 1986 Act shall, in so far as they apply to Scotland, have effect in relation to the reports and the workings of the Boundary Commission for Scotland's review of parliamentary constituencies for the Parliament.
(4) Subject to sub-paragraph (5), the provisions of section 4 of the 1986 Act shall have effect in relation to the draft of any Order in Council laid before the Parliament by the Scottish Executive for giving effect, whether with or without modifications, to the recommendations contained in the report of the Boundary Commission for Scotland.
(5) References to the Secretary of State in the 1986 Act shall, for the purposes of this paragraph, be construed as references to the Scottish Executive and references to Parliament in the 1986 Act shall be construed as references to the Parliament.
(6) The Boundary Commission for Scotland shall submit their first report under this paragraph to the Scottish Executive no later than 30th June 2003.
(7) In that report, the Commission shall also recommend any alteration in any of the regions which, in their opinion, is required to give effect to the rules in paragraph 7 below.
(8) If the Commission do not make any recommendation under sub-paragraph (7), they shall in the report state that, in their opinion, no such alteration is required.
(9) A report making a recommendation for an alteration in any region shall state the name by which the Commission recommend that the region should be known.").
On Question, amendment agreed to.
[Amendments Nos. 10 to 20 not moved.]
Viscount Thurso Viscount Thurso moved Amendment No. 21:
Page 60, leave out lines 38 to 43.
On Question, amendment agreed to.
Viscount Thurso Viscount Thurso moved Amendment No. 22:
Page 60, line 46, leave out ("3(2)") and insert ("3(7)").
On Question, amendment agreed to.
The Earl of Lauderdale The Earl of Lauderdale moved Amendment No. 23:
Page 61, line 45, leave out from ("practicable") to end of line 46 and insert (", save to the extent required by rule 2A below.
2A. The electorates of the regions shall be such that the representation of predominantly rural regions in relation to the representation of predominantly urban regions is comparable, so far as practicable, to that achieved by the distribution of places in the Convention of Scottish Local Authorities (COSLA).").
The noble Earl said: My Lords, when the noble Baroness, Lady Linklater, spoke of rural Scotland, it came to my mind that when I first came back to Scotland as a boy, having been born and reared abroad, I was struck by the fact that it is a rural country. It is not a country of towns; it is a country of countryside. Most of the people who live there are farmers or crofters. My amendment is drafted with that fact in mind.
The Scottish Constitutional Convention made a brave effort to anticipate the danger that the Scottish parliament would be dominated by the central belt from Glasgow to Edinburgh. I am afraid that its solution would not achieve what it seeks.
Perhaps I may consider the proposed Euroconstituencies one by one. Strathclyde East will range from Kilmarnock to East Kilbride and, if my eyesight is not misleading me, even to Strathaven, Stonehouse and Carluke. Strathclyde West will range from Paisley and Greenock to Dumbarton. Mid-Scotland will range from Stirling to St. Andrews and the constituency of the South of Scotland will range from Ayr to Dumfries, Peebles, Jedburgh, Hawick, Galashiels and Lauder, where I belong. All those towns are to some extent colonies either of Glasgow or of Edinburgh.
The problem is not a new one. It has been faced and, to a certain extent, solved over the years by CoSLA, the now well-established and respected Convention of Scottish Local Authorities. Earlier we discussed the possibility of a second chamber for the Scottish parliament. I suggest that CoSLA is an obvious source of recruits for such a chamber, but be that as it may. That body maintains an agricultural forum—I believe that that is the term—and has devised a complicated system to make sure that the conurbations do not predominate.
The CoSLA arrangements do not hinge on the boundaries of parliamentary constituencies; let alone on those for the European Parliament, but on groupings of district council areas. The CoSLA constitution contains a distribution of seats weighted towards councils with a lower population density. Thus, the Orkneys, with a population of only 1,800, have three seats whereas the city of Glasgow (representing 616,430) is given only eight seats. In other words, there are more than 77,000 electors per seat.
I believe it would be impossible now to combine such a system with that already in the Bill. Had I thought of the CoSLA experience in time, I would have sought at Committee stage to rearrange the extra constituencies on a pattern that has proved so successful with CoSLA. At this stage of the Bill I am advised it would be far too complicated, if not also improper, to try to remake the whole machinery of the Bill to fit this pattern. So the best we can seriously hope for is that this will be taken on board by the Boundary Commission when the time comes. Only then, I submit, can Scotland's rural areas achieve the voice they deserve in the Scottish parliament, which, one hopes, will by then have earned sufficient prestige to enable a radical overhaul to be taken in hand. I beg to move.
7 p.m.
Lord Mackay of Ardbrecknish: My Lords, my noble friend takes us to a future election—that is an important point to make—and right into an addendum, so to speak, to the rules which will govern the drawing up of the new regional boundaries. One of the slightly daft propositions in front of us is that the regions we shall use next May are the regions for the European elections, and yet the same Government who want to

1615
use these regions have abolished European elections using single member constituencies. Therefore the regions no longer have any validity, if they ever did have, as regards electing a Scottish parliament. However, as my noble friend said, he accepts it is too late to do anything about these regions now. He proposes one of the factors that the Boundary Commission should take into account when it decides on the regions after the first elections.
I think my noble friend has a good point in suggesting that the Boundary Commission should look to the practice of CoSLA. I do not think he has drafted his amendment so that the practice has to be the same as that of CoSLA, but he seeks to use the representation adopted by CoSLA to create a balance between the predominantly rural regions in Scotland and the urban regions. I believe that earlier the noble Baroness, Lady Linklater, mentioned the fear felt by many in rural Scotland that they will be dominated by west/central Scotland in particular. My noble friend's amendment makes some sense because the regions as currently constituted are pretty disparate as regards their numbers. A figure of seven per region means that Glasgow, which is already over-represented, will receive the same number as, for example, the north-east region of Scotland which in terms of Glasgow is under-represented. In fact, in terms of Glasgow everywhere else in Scotland is under-represented. However, I do not wish to return to that argument.
If one were using the regional top-up to try to smooth out these inequalities from the first-past-the-post system, something along the lines of my noble friend's suggestion would be sensible. If the Government will not accept my noble friend's amendment, they should at least say that they will give other instructions to the Boundary Commission which would achieve the same kind of objective; namely, a rebalancing inside Scotland of the power base, as it were, between rural Scotland and urban Scotland.
Lord Sewel: My Lords, wonders never cease. I have heard two speeches from the Benches opposite praising CoSLA. I never thought I would live to see this day!
This amendment deals with the noble Earl's views of the proper representation that should be given to rural areas. We agree it is important that we have a parliament which represents the diversity of Scotland. However, we think that the electoral arrangements provided for in the Bill will provide that all areas of Scotland will be properly represented. That was one of the reasons we decided on the Euro constituency unit and the equal number of representatives from the individual Euro areas.
Amendment No. 23 deals with representatives in the parliament. However, instead of altering the number of electors per constituency, the noble Earl is seeking to alter the rules for the determination of the boundaries of electoral regions.
At present, paragraph 7 of Schedule 1 requires the electorate of a region to be as near to that of the other regions as is reasonably practicable, having regard to special geographical considerations. The amendment
1616
would replace the provision for special geographical considerations with a requirement for the representation of rural and urban regions to be comparable to the distribution of places in CoSLA. I understand that we are talking about the full convention meeting of CoSLA rather than any of its other institutions.
I understand that the noble Earl seeks to ensure that the special needs of rural areas are taken into account in determining the size and representation of electoral regions for the parliament. I believe that the approach which the Boundary Commission takes already achieves that and I do not believe that his amendment would improve the position.
Perhaps I should declare an interest in that I did not draft the present constitution of CoSLA but I drafted the third from present constitution. CoSLA goes through constitutions with as much speed and regularity as happens in France. As I understand it, representation on CoSLA is determined solely by the population of each local authority, with a minimum representation of three. This means that representation ranges from the smallest councils with three representatives each to the City of Glasgow with seven. Therefore, an authority with a population of about 50,000 has three representatives, whereas an authority such as Glasgow with a population of about 1 million has seven representatives. That is too great an imbalance and inequality to form an effective base for representation in the parliament.
No account is taken of the physical size or geography of the authority area. Thus Highland and Renfrewshire, with broadly similar populations, both have five representatives, despite Highland covering nearly 100 times the land area of Renfrewshire. That is all right for the kind of body that CoSLA is, but it is not a sound basis on which to base representation in the Scottish parliament. I do not wish to cast any aspersions on CoSLA's rules. They have been determined by that body to meet its own requirements and its own circumstances. However, they are not designed for the purposes of an electoral system.
Schedule 1 to the Bill already allows special geographical considerations to be taken into account by the Boundary Commission. That is right and proper. I believe that this provides sufficient safeguard that the special needs of rural areas can be considered. In Committee I explained that Highlands and Islands and the south of Scotland, two of the most rural areas of Scotland, with 21.1 per cent. of the electorate will have 24 per cent. of the seats in the Scottish parliament. That is a sound and reasonable outcome. If the amendment is accepted, and at any time in the future CoSLA for its own reasons changed its formula, that would have to be reflected in the electoral arrangements for the Scottish parliament. Clearly we cannot have the electoral arrangements for the Scottish parliament being determined by a third party. That would be totally wrong.
I hope the noble Earl recognises that rural Scotland will be well and properly represented in the parliament. It will certainly not be under-represented. As I said, taking the two most rural areas together, Highlands and Islands and the south of Scotland, we find that those two

1617
areas, which account for 21.1 per cent. of the population, obtain 24 per cent. of the representation. I believe that that is about right. I hope that the noble Earl will be able to withdraw his amendment.
The Earl of Lauderdale: My Lords, I am obliged to the Minister for that response. To compare Highlands and Islands with the Borders is to compare an area of crofters with a farming area. Their interests, customs and mores are very different.
The Minister was rather surprised that I referred to CoSLA. In my remarks at Second Reading I suggested, and still believe, that CoSLA, which has proven political experience, might well have provided much valuable experience to the Scottish parliament had the noble Lord not earlier rejected the idea of the parliament one day having a second chamber. CoSLA might have been the source from which members of a second chamber would come. However, that is water under the bridge.
I am not satisfied with the Minister's reply. I am afraid that I must ask the House to decide for or against the amendment.
7.11 p.m.
On Question, Whether the said amendment (No. 23) shall be agreed to?
Their Lordships divided: Contents, 26; Not-Contents, 105.

Division No. 4

CONTENTS

Astor of Hever, L.

Mancroft, L.

Burnham, L.

Mayhew of Twysden, L.

Byford, B.

Milverton, L.

Cadman, L.

Monro of Langholm, L.

Courtown, E.

Northesk, E.

Cross, V.

Pearson of Rannoch, L.

Dundee, E.

Renton, L.

Ferrers, E.

Renwick, L.

Kenilworth, L.

Rowallan, L. [Teller.]

Kingsland, L.

Selkirk of Douglas, L.

Lauderdale, E. [Teller.]

Sempill, L.

Mackay of Ardbrecknish, L.

Skidelsky, L.

Mackay of Drumadoon, L.

Vivian, L.

NOT-CONTENTS

Addington, L.

Cocks of Hartcliffe, L.

Ahmed, L.

Crawley, B.

Allenby of Megiddo, V.

Currie of Marylebone, L.

Alli, L.

Davies of Oldham, L.

Amos, B.

Dean of Thornton-le-Fylde, B.

Archer of Sandwell, L.

Desai, L.

Bach, L.

Dholakia, L.

Balfour, E.

Dormand of Easington, L.

Bassam of Brighton, L.

Dubs, L.

Bath, M.

Evans of Watford, L.

Berkeley, L.

Falconer of Thoroton, L.

Blackstone, B.

Falkland, V.

Blease, L.

Farrington of Ribbleton, B.

Borrie, L.

Gallacher, L.

Carlisle, E.

Gilbert, L.

Carter, L. [Teller.]

Goodhart, L.

Chandos, V.

Gordon of Strathblane, L.

Clarke of Hampstead, L.

Goudie, B.

Clinton-Davis, L.

Gould of Potternewton, B.

1618

Graham of Edmonton, L.

Molloy, L.

Grenfell, L.

Monkswell, L.

Hacking, L.

Morris of Castle Morris, L.

Hamwee, B.

Murray of Epping Forest, L.

Hanworth, V.

Ogmore, L.

Hardie, L.

Plant of Highfield, L.

Hardy of Wath, L.

Ponsonby of Shulbrede, L.

Harris of Greenwich, L.

Prys-Davies, L.

Hayman, B.

Puttnam, L.

Hilton of Eggardon, B.

Ramsay of Cartvale, B.

Hollis of Heigham, B.

Randall of St. Budeaux, L.

Holme of Cheltenham, L.

Razzall, L.

Hoyle, L.

Rendell of Babergh, B.

Hughes, L.

Rodgers of Quarry Bank, L.

Hughes of Woodside, L.

Rogers of Riverside, L.

Hunt of Kings Heath, L.

Sainsbury of Turville, L.

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

Sawyer, L.

Scotland of Asthal, B.

Kennedy of The Shaws, B.

Serota, B.

Kintore, E.

Sewel, L.

Lester of Herne Hill, L.

Simon, V.

Smith of Clifton, L.

Levy, L.

Smith of Gilmorehill, B.

Linklater of Butterstone, B.

Steel of Aikwood, L.

Macdonald of Tradeston, L.

Strabolgi, L.

McIntosh of Haringey, L. [Teller.]

Symons of Vernham Dean, B.

Thomas of Gresford, L.

Mackenzie of Framwellgate, L.

Thomas of Walliswood, B.

Mackie of Benshie, L.

Thomson of Monifieth, L.

McNally, L.

Thornton, B.

Maddock, B.

Thurso, V.

Mar and Kellie, E.

Turner of Camden, B.

Meston, L.

Uddin, B.

Miller of Chilthorne Domer, B.

Whitty, L.

Milner of Leeds, L.

Wilson of Tillyorn, L.

Resolved in the negative, and amendment disagreed to accordingly.
7.20 p.m.
[Amendments Nos. 24 and 25 not moved.]
Clause 2 [Ordinary general elections]:
Lord Steel of Aikwood Lord Steel of Aikwood moved Amendment No. 26:
Page 2, line 5, at end insert—
("() The date of the first ordinary election appointed by an order under subsection (1) may not coincide with the date of elections to local councils or to the European Parliament.").
The noble Lord said: My Lords, before I introduce this probing amendment, perhaps I may say that, because of a missed train, I was not present to hear the Minister's response in which I understand he took great exception to remarks made by my noble friend Lady Linklater accusing the Government of reneging on the matter of the size of the parliament. I therefore wish to read into the record two sentences from the constitutional convention:
"The electoral system for Scotland's Parliament must have stability but it will, of course, be dependent on boundaries established for the Westminster and European Parliaments. These may be subject to alteration outwith the control of Scotland's Parliament and it will therefore be necessary to ensure that separate boundary reviews for the Parliament can be carried through with the purpose of maintaining the size of the Parliament and the integrity of the corrective effect of the additional members".
I believe that my noble friend was absolutely justified in using the word "reneging".
We are now dealing with the mechanics of the first election to the Scottish parliament. The purpose of Amendment No. 26 is to explore the Government's

1619
thinking on the date of the elections. The Government have decided that the elections to the Scottish parliament should be held on the first Thursday in May, coinciding with the local council elections. A month later there will be the elections to the European Parliament.
The Secretary of State for Scotland has been reported as being troubled that the two ballot paper system may cause confusion among the electorate. It is our contention that, if he is worried about a two ballot paper system, he should be more worried about three ballot papers being thrust into the hands of the electorate on the same day. I say as an aside that, as we have seen from the German election system, it is not necessary to have two ballot papers. The constituency members and the additional members could be on one ballot paper, as they are in Germany.
To have two ballot papers for the Scottish parliamentary election and to have the parliamentary and council elections on the same day seems to me an unnecessary burden on the voters faced with the new election system. Moreover, the election returning officers have themselves been reported several times as representing to the Scottish Office that the Government ought to think again about having the two elections on the same day.
I believe that CoSLA have made representations concerning the late determination of ward boundaries for some of the councils. If my amendment were carried and the council elections were held in June, say, instead of in May, not only would that simplify the Scottish parliament election, it would give the local boundary commission another month in which to conclude the determination of the wards and make it known to the local authorities in good time.
A further argument for not having the parliamentary and council elections on the same day is that, since the decision was made, there has been the selection of candidates by all parties. I believe it is true to say that all parties contesting the election have among their candidates for the Scottish parliament a number of local government councillors. I do not think that there is a rule about it, but, in most cases, it is assumed that, where a councillor finds himself or herself elected to the parliament, he or she will resign the council seat and a local government by-election will follow. It seems to me, therefore, that there is an added argument for holding the council elections a month later than normal in order to allow those who have been successful in the Scottish parliament election to resign and make way for someone else to stand in the council elections without causing the inconvenience and expense of a local government by-election.
For all those reasons, I have pleasure in moving this amendment, which I think is eminently full of good sense.
The Earl of Mar and Kellie: My Lords, I support the demand made by my noble friend for different election dates. In doing so, I declare an interest in that I am considering becoming a candidate for a ward of the Clackmannanshire council, subject to the Boundary Commission deciding how to increase the seats on that
1620
council from 12 to 18 in a way which is acceptable to the people of Clackmannanshire. I must also declare an interest, which is probably well-known, that I am a Scottish parliamentary regional candidate for Mid-Scotland and Fife, albeit number five on the list, so I do not think the parliament need be too worried about my becoming a member. That draws out and personalises the argument about the confusion that I and the various electorates will have during the campaigning and subsequently in deciding how to vote.
I believe that it would be an advantage if the Scottish parliamentary elections and the local government elections were held on different dates.
Lord Mackay of Drumadoon: My Lords, I rise to support the amendment moved by the noble Lord, Lord Steel of Aikwood, and to speak also to the amendments in my name, which are in similar terms to those debated on the first day of the Committee stage.
Noble Lords will recall that on that occasion I referred to a letter which Councillor Keith Geddes, the President of CoSLA, had written to the Secretary of State on this point. He stressed that there were a number of reasons why, on a cross-party basis, the members of CoSLA were against the idea that the first elections to the Scottish parliament should be on the same day as the local government elections. He said, among other things, that the issue was one of substantial concern within the local government community.
He listed four topics. One was the likelihood of considerable voter confusion, about which I shall say more in a moment. The second was the concern that, because a local government poll was being held on the same day as one for a new national government, voters would vote on national issues on both polls and not on local issues in the local government poll.
Thirdly, he instanced the enormous pressures that would be placed on political parties in resourcing two simultaneous elections. Linked to that is the good point made by the noble Lord, Lord Steel of Aikwood, that in some instances an individual may be standing for a Scottish parliamentary constituency in one area and a local government constituency in another. If that person won both seats, presumably he or she would immediately resign the local government seat and a by-election would have to be held, which does not seem to be very sensible. The fourth point that CoSLA made was that combined elections might disadvantage independent candidates, who are given certain voting rights in the system that has evolved.
Notwithstanding the considerable experience in local government of Councillor Geddes, his views, conveyed on behalf of all members of CoSLA, do not appear to have cut any ice with the Secretary of State. They do not seem to have done Mr. Geddes much good either, because, when I last read about him in newspaper reports, he seemed, far from being a hot tip for a likely Labour win in the election, to be having difficulty in being selected.
The noble Lord, Lord Steel, mentioned that the Secretary of State was troubled that confusion might be caused. That is undoubtedly correct. Since this matter

1621
was last debated that has taken on a significance that I do not believe was addressed at that time. We understand that the Secretary of State is concerned that the same electorate who read and understood the voting system in the White Paper and voted wholeheartedly to support it may now have difficulty in understanding it when they get to the ballot box at the beginning of May next year.
To some extent the Government are not entirely to blame for this matter. I hope that the noble Lord, Lord Steel, will forgive me if I quote from an article in the Scotsman on 23rd September this year which referred to the approach by the Liberal Democrats to the question of where voters should place their second vote. It was reported:
"the Lib Dems yesterday revealed their plans to get Labour voters to give them their second vote in the parliamentary elections next May".
According to the authors of the article it was the clearest signal yet that the Lib Dems were preparing for a coalition with Labour and it was a strategy apparently to be deployed not only in Scottish parliamentary elections but also in the European Parliament.
Lord Mackie of Benshie: My Lords, the information from my Conservative friends is that we are much more likely to get the Conservatives' first and second votes.
Lord Mackay of Drumadoon: My Lords, I take what the noble Lord says with a pinch of salt. I do not wish to embarrass him but I recall that when I moved these amendments last time he did not support them. He said that I had a point but it was not a very good one. Obviously, his noble friend and Deputy Leader, thinks along lines similar to mine. I hope that I shall be forgiven if I do not dwell too much on his views at this time.
The article quotes a spokesman for the Liberal Democrats, the chief executive—one Willie Rennie—who says:
"There is nothing to hide. People have used the first-past-the-post system's inadequacies to their advantage and we will do the same. This voting system isn't perfect, therefore we're going to work the system to the best advantage for the benefit of the voters".
I suspect that he is misquoted on that point and that it is for the benefit of the Liberal Democrat Party. There follows a quote from the Leader, Mr. Ashdown:
"I am happy for us to follow any policy that will win us votes".
Against that background it is hardly surprising that the Secretary of State is somewhat concerned about the possibility of confusion. As those of us in Scotland know, the answer to that confusion is to mount a £2 million campaign to educate the voters as to how the voting system will work. Having sought to explain the voting system to people in Scotland, both informally and at party meetings, it must be recognised that it is a complicated system. There can be little doubt that come next May, whatever campaign is mounted and whatever its cost, even if it is done with cross-party support as appears to be likely, a significant number of people will
1622
not fully understand when they turn up to vote why they have been given two voting papers and what they are meant to do with them.
If there is to be a third voting paper that day, as clearly there will be unless the Bill is amended, I believe that there is a substantial risk of confusion. That was the first of the items listed by Councillor Geddes in his letter to the Secretary of State. I understand that that was considered by the Government and they rejected the views of CoSLA. But in the light of the growing concern—here I join with the noble Lord, Lord Steel—I hope that the Government will be prepared to think again. This is not a matter of party political affiliation but of cross-party concern. I do not expect a positive response in the sense of a concession tonight. However, I expect a positive response in the form of a willingness on the part of Minister to go back and discuss the matter with the Secretary of State and other officials who are no doubt involved in planning the vote. If there is no change there is no doubt that there will be considerable confusion come 6th May.
7.30 p.m.
Baroness Ramsay of Cartvale: My Lords, as in the case of other amendments discussed today, this is a matter that we have already considered at length in Committee. A good number of the points that have been made have been discussed backwards and forwards in Committee. I doubt that I can add a great deal to what was said then but I shall try to deal with the points that have been raised by noble Lords. The Government understand the genuineness of the concerns that have been raised.
The voters in Scotland face three elections next year: to the parliament, local councils and the European Parliament. Local elections are due in May and the European elections in June. Noble Lords opposite appear still to believe that electors could and should turn out separately three times in a row in very quick succession to vote in each of these elections. We do not believe that to combine them in the way suggested is the best method. We believe that it is better to combine them with the local elections. I believe that the House accepts that it is unreasonable to have three separate elections in quick succession. That is more than likely to exhaust the patience of voters and undoubtedly turn-out would suffer. Do we really want to go in that direction? I believe that none of us wants that.
We came to the very firm conclusion that we should hold the elections to the new parliament on the same date as that set for local council elections, 6th May. In case there is any misunderstanding—I was not clear that the position was understood from the way some questions were framed—it is now not possible to defer the local elections other than by primary legislation. Subordinate legislation to change the date would have had to be placed before Parliament before February this year because local elections are fixed by statute.
Noble Lords have said that some local representatives have argued against this. I am very familiar with the letter from Councillor Geddes. I shall not deal with the points raised in that letter that have been enumerated by

1623
the noble and learned Lord. But the letter went on to argue for the postponement of local government elections with a preference for a year's delay until May 2000. That would mean that the new mainland councils would have held office since the elections in May 1995 and that the three islands councils would have held office since the elections in May 1994. They would therefore have had a six-year term of office. CoSLA itself recognised that that would be very difficult to defend.
It has been argued by local government representatives and others that that will be very confusing for voters. All I can say is that the Government do not believe that voters will find it difficult to distinguish between the two polls on the day. We do not believe that that argument does justice to voters who would be much more resentful at having to make different trips to the polling station in just over a month. I believe that we should be more concerned about that.
A working party has been set up composed of experienced electoral administrators and representatives of the parties with whom we are considering the detailed arrangements for next May. All that can be said about those discussions at the moment is that the Government have not encountered any insuperable problems.
Noble Lords have raised the question of an individual who may want to stand for both a local council and the parliament. All I can say is that it is up to the individual. There is nothing in law to prevent an individual standing or taking seats in both. The noble Lord, Lord Steel, asked specifically about the review of local wards. The Boundary Commission has submitted almost all of its reports by now. The work to implement the review is continuing apace. We understand that the electoral administrators are preparing registers based on the new boundaries. We admit that the deadlines are tight but we believe that they are achievable. The final approval of the commission's reports must be completed by 31st December and we believe that we shall be able to achieve that.
The House should bear in mind that combined polls are not unusual in England. For example, the 1997 General Election coincided with local elections and, as we said in Committee, as far as we know that worked perfectly well. There is another reason why there would be benefit in having local government elections on the same day as elections to the Scottish parliament. We firmly believe that that would markedly increase the turnout for the local elections. The turnout at local government elections, as we all know, is not as high as it should be. That is something about which we all agree.
Scottish local government needs to embark on its new relationship with the new Scottish parliament with a well-founded mandate. Therefore, plans for next May ought to be on those terms and should not be regarded as an administrative inconvenience. We do not believe that the alternative of combining the European elections with the parliament's elections would be any simpler than what we are doing. The next European elections of course will take place under a new voting system and might indeed be the cause of more confusion than would
1624
be the case if they were held at the same time as local government elections, when people are familiar with the system of voting for local government. I would therefore invite the noble Lord involved to withdraw that amendment.
Speaking more specifically about Amendments Nos. 20, 126 and 127, we understand that they are aimed at avoiding the possibility that at some future point the elections for the Scottish parliament could fall on the same date as the elections for local councils purely as a result of the operation of the two cycles. The arguments are much the same. The points I made on the other amendments apply equally to these amendments. We do not think there is a good enough reason for voters having to spend so much time going to the polling stations. If it is not unfair to say so, we do not honestly believe that there is any good reason to be so ideologically opposed to combined polls. There are times when these will be the most sensible way forward. In any event the commission chaired by Neil McIntosh is currently looking at the relationship between local government and the parliament; part of its remit is to make recommendations about the future electoral arrangements for local government. This Bill is therefore not the place to lay down long-term rules based on the present arrangements for local government. I would therefore invite the noble Lord to withdraw these amendments.
Lord Mackay of Drumadoon: My Lords, perhaps I may ask the noble Baroness to reflect further on this suggestion. I fully accept that if changes involving local government elections had to be made, that would have to be done by primary legislation; that could be done in the body of this Bill by an amendment to that effect. The point upon which I invite the noble Baroness to reflect—and I am quite sure that she will agree to do so—is that, if my amendments are too prescriptive for the future (and I see the force of the argument she makes), there may be a contrary argument that Clause 2 as currently drafted is too prescriptive. There might then be some sense in writing some degree of flexibility into the Bill so that in the future, as experience is gained, the Scottish parliament would be competent to amend Clause 2 without having to bring the matter back here. I am not sure of the answer to this and I do not expect one at the moment. I simply ask for an undertaking to look at meeting our concerns half way. As far as the long term is concerned, it would be sensible to have a greater degree of flexibility than we have at the moment.
7.45 p.m.
Lord Steel of Aikwood: My Lords, I would certainly like the Government to adopt the last suggestion of the noble and learned Lord, Lord Mackay of Drumadoon. We do not want to get into an administrative straitjacket in this Bill if there is a chance, even as late as Third Reading, of looking again at the drafting of Clause 2.
I did not find any one of the noble Baroness's responses at all convincing. None of us is arguing that there should be three trips to the polling booth. In fact, if it were not for the criticisms of the European elections coming in June, we would not be moving this

1625
amendment at all. I do not think any one of us would be standing up and saying let us have two trips to the polls within a month. The fact is that we do have an election a month later and the question is whether it would be more sensible to have the local elections on that date rather than on the Scottish parliament date. For all the reasons already rehearsed I certainly think that the burden of the argument is in favour of doing that.
The noble Baroness referred to the fact that in the past local elections have been held in England and Wales on the same day as parliamentary elections. With great respect, those are two elections with which the electorate are already familiar. We are talking here about a new electoral system with which the electorate are not familiar. They have already been handed a double ballot paper and it seems to me unnecessary to go forward with a third one on the same day.
However, I take one bit of cheer from what the noble Baroness has said. Perhaps it can be confirmed that she was telling us that we need not worry about the ward boundaries question. I have come across a lot of nervousness among councils in the past few weeks about a risk that the Boundary Commission work would not be completed and that the local elections might therefore take place on the old boundaries. I hope that she is telling us tonight that there is no risk of that and that we can be certain that the work will be completed in time for the elections in May. I see her nodding so I will accept that that is so, in which case there is a little ray of light in the ministerial eye.
I agree with the noble and learned Lord, Lord Mackay of Drumadoon, that if it had been thought sensible (as I think it should have been) to hold the local elections on the same day as the European elections, the effect could be to encourage the turn-out in both elections. The European election system in Scotland is a good deal simpler than is the Scottish parliament election. I would have thought that the argument was overwhelming in favour of having those two on the same day. If a decision had been made to do that, I accept of course that it would immediately involve a change to the primary legislation which could have been done in this Bill. Perhaps the moment has passed and the Government have decided this. I am certainly not going to press it.
I make one last point in response to something said by the noble and learned Lord, Lord Mackay of Drumadoon, about the use of the second vote in his great quotation from the Scotsman article. There is a serious point here which has nothing to do with which party we are talking about. It is my understanding that if Party A (whatever it is) in any region happens to win all the seats in the first-past-the-post system, there is no point in voting for Party A again in the regional list; it will have got its quota. That is why some of us will be arguing that the intelligent use of the second vote is something to be commended regardless of how it is done. Having said that, I certainly do not propose to press the amendment and I will allow the noble Baroness to continue.
Baroness Ramsay of Cartvale: My Lords, I will try to mop up these last points. I am advised that the review of local wards is continuing and that we understand that the
1626
electoral administrators are preparing registers based on the new boundaries. The deadlines we know are tight, but the final approval of the commission's report must be completed by 31st December. We think that that can be achieved.
On the question which both noble Lords have put—and I hesitate to get into any legal discussion with the noble and learned Lord, Lord Mackay of Drumadoon—I am not at all sure that one could change the dates of local elections in Scotland in this Bill. I do not really want to cross legal swords with him on this. I am not sure that that is right. Perhaps we could both find out about it.
On the question of European elections, I will make the point briefly and not expand on it. The franchise for the local election and the Scottish parliament is absolutely identical. There is a slight difference with the European election. That is just one factor to take into account.
I return to the main point made by the noble and learned Lord, Lord Mackay of Drumadoon. Clause 2(5) already gives the presiding officer flexibility in the date if there should turn out to be problems in the future. However, since the noble and learned Lord asks me to think about the point he has raised, I can do so without promising to return too constructively at Third Reading. I shall take the matter away and consider it.
Lord Mackay of Drumadoon: My Lords, I am grateful to the noble Baroness. Perhaps I might invite her to discuss with her officials whether a Bill which has as a Long Title,
"An Act to provide for the establishment of a Scottish Parliament and Administration and other changes in the government of Scotland",
would not cover such amendment.
Lord Steel of Aikwood: My Lords, "and for connected purposes".
Lord Mackay of Drumadoon: My Lords, as always I am indebted to my fellow Watsonian, my fellow son of the manse, even if he has the misfortune to support a different party from myself. Where there is a will there is a way. I invite the noble Baroness, her colleagues and officials to consider the matter. While I accept that there is flexibility in Clause 2(5), I suggest that there may not be sufficient flexibility.
Lord Steel of AikwoodMy Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 27 to 31 not moved.]
Lord Hoyle: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, perhaps I may suggest that Report stage begins again not before 8.50 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Pesticides: Taxation
7.51 p.m.
Lord Rotherwick Lord Rotherwick rose to ask Her Majesty's Government what are their intentions for taxing pesticides, and what will be the implications of such a tax for farming and the countryside.
The noble Lord said: My Lords, I must declare an interest as an Oxfordshire farmer who for some years was a farm manager with an agricultural diploma.
The agricultural industry is not a rich industry. In the past couple of years we have seen between a 2 and 4 per cent. net return on capital, and perhaps up to double that for tenants. In making a profit, the maintenance and improving of yield are of paramount importance in farming. Farmers have to make full use of crop husbandry methods, pesticides and technology to enhance yields. Since the early 1950s pesticides have played a significant role in preventing crop losses of about a quarter in wheat and about three-quarters in potatoes. More importantly, they have ensured that farmers can produce crops which are consistently of good quality, virtually blemish free, store well, keep for longer and are pest and disease free at the point of use. In real terms these benefits mean that the consumer is paying less than half for basic foods compared with the 1940s.
Pesticides enable us to be among the best and most efficient agricultural producers in the world and to compete successfully in the fierce world marketplace. The best way of lowering the use of pesticides is through the practice of integrated crop management (ICM). It is widely defined as a whole farm policy, aiming to provide the basis for efficient and profitable production which is economically viable and environmentally responsible. It integrates beneficial natural processes into modern farming practices using advanced technology and aims to minimise the environmental risks while conserving, enhancing and recreating that which is of environmental importance.
The idea of integrating beneficial natural processes into modern farming practices so that farming makes a more efficient use of its inputs (fertilisers, seeds, energy, and so on) makes good commercial sense. In addition, better targeting of inputs, careful field margin management and the better use of traditional practices such as crop rotation should bring environmental benefits. The key to a reduction in inputs is to reduce the need for them by adopting crop husbandry practices that conserve nutrients and reduce pest disease and weed attack.
ICM is not a new concept but is built around existing knowledge and sound husbandry practices. Although many of the practices are not new, they need to be regularly updated to include the findings of the latest research.
The industry is always looking at the cutting edge of technology. Some recent developments for reducing pesticide usage harness expensive high-tech spray equipment, sometimes coupled with GPS equipment. They deliver very accurate rates of pesticides as and where they are needed in the field. Capital tax write-off of 100 per cent. would enable many more farmers to use that expensive technology, thus producing worthwhile reductions in pesticides. We prefer to use as little pesticide as possible.
I hope that noble Lords are now gaining a picture of an industry which is forward thinking, responsive to the demands of its market and prepared to innovate. It is interesting to note that in the UK over the past 10 years, without the benefit of taxation, there was an overall decline in the use of pesticides by 23 per cent.; and this is continuing. It is predicted that there will be a fall in spending on pesticides by approximately £100 million over the next five years.
Moreover, the UK regulatory scheme operated by the Government is one of the best in the world. If it has flaws the correct way forward is to amend it, not to correct it by taxation. Will the Minister share with us any evidence that pesticide regulation is inadequate, and that, despite the excellent report from the Working Party on Pesticide Residues, our environment is at risk from them?
It is a most absurd situation where licences for certain chemicals are withdrawn in this country for certain foodstuffs, yet the same foodstuffs are grown abroad with the same chemicals and imported back into this country. Supermarkets use one set of standards for our British farmers and another for their own profits. Surely it is important to grow our food at home where we can carefully monitor pesticides used on it. If we were to use no pesticides and to go organic, research shows that a crop like wheat yields 40 per cent. less. Thus we would need an extra area the size of Wales in arable land to produce the same output as at present, or have to import 5 million tonnes of grain at an annual cost of about £0.5 billion—and that would wipe the smile off the Chancellor of the Exchequer's face, especially with the difficulties that he must be facing at present.
Now that the Ecotec study is complete, when will the Government publish it? And will they consider it alongside any other such studies? A pesticide tax will fall harder on the small farmer, the hill farmer and the northern farmer who are under severe financial pressure at present and who pay more for their pesticides than the southern medium to large concerns. Those farmers are less able to afford high cost research and development and high-tech spraying machinery which enables lower pesticide use.
Taxation is not a cost-effective method for the Government to reduce pesticide use. It will take about £5 million to set up and perhaps £0.5 million per year to collect and redistribute. And to whom will it be

1629
redistributed? Moreover, expenditure on pesticides is price inelastic: a given percentage rise in price does not result in the same percentage fall in usage. In a normal year it is calculated that a pesticide tax may reduce pesticide usage by 3 to 5 per cent., depending on the crop in question and the toxicity level of the pesticide. However, in an abnormal year, where farmers are faced with abnormal crop husbandry problems, pesticides will be used according to need, not tax. Even a high tax will not prevent a farmer from using pesticides to maintain his crop yield, for the loss of crop yield will almost certainly lead to the loss of profit on that crop.
The Government would be far more successful in reducing pesticide application were they to put money into research and training. Already existing research is being undertaken to improve in particular the methods and rates of application of pesticides, and to speed up the studies of new varieties of disease resistant crops, with training to increase the number of farmers and farm labourers confident in the use of a wide range of spray products and all the latest techniques. I sincerely believe that it is important to encourage regular training of all those in the industry, including those with grandfather rights.
The pesticide taxes imposed in Sweden failed to achieve their objective. Similar taxes in Denmark also failed and the Government there give back the tax in the form of a land tax rebate.
A pesticide tax will not be fiscally neutral. Some farmers will absorb its cost and simply try to make savings elsewhere. In order to do so, they may move back to the older, cheaper products which, being less specific, destroy or affect more bird and animal food and lead to pesticide resistance, which in turn leads to the later use of more potent pesticides. They may move from the use of, say, herbicides to mechanical weeding which disturbs the soil and leads to an increase in both nitrate leeching and slugs. They may have to reduce existing conservation activities, too. The farmers who cannot absorb the new tax costs, even if the Government intend it to be only a short-term tax, will likely go out of business.
A pesticide tax will lead to the increased importation of foodstuff from abroad from countries which do not have the same levels of control of pesticides. Will the Minister indicate how she proposes to control pesticide residues in imported produce? Is she prepared for the cost of food imports to rise above the current £14 billion per annum level? Finally, if the Government wish to raise moneys for research the fairest and easiest place to do so is in the highly profitable supermarkets. The tax would then be levied on UK and foreign foodstuffs. However, encouraging low-pesticide usage is best done by good practice, not taxation. Taxation on petrol has never curbed the use of the motor car.
8.2 p.m.
Earl Ferrers: My Lords, I should declare an interest as being involved in agriculture. I hope that the Minister will be able to tell the House what stage the planned tax on pesticides has reached. Has it been decided to
1630
introduce such a tax and, if so, how and when will it operate? Indeed, one asks why it is envisaged in the first place. As my noble friend Lord Rotherwick said, agriculture is going through one of the worst depressions for some 50 years. The complaint is that the Government do not understand its problems. It is unbelievable that at such a time there should be a desire deliberately to add another burden of tax on agriculture.
Chemicals are an integral part of agriculture. The animal and vegetable kingdom is made up of chemicals. There is nothing wrong in using chemicals to supplement or to control agriculture, provided they are properly tested. When a person is ill he goes to a doctor and receives chemicals in the form of a pill. That is perfectly acceptable. Chemicals should be used subject to strict controls, and ours are some of the strictest. Farmers do not use chemicals unnecessarily because they are expensive. Their use is determined by need rather than by cost. An input tax would grossly and unfairly disadvantage British farmers over the European farmers who are our direct competitors.
Why are the Government proposing such a tax? I hope that it is not a sop to the Greens because over the past 10 years the sale of the active ingredients of pesticides has decreased by about 5 per cent. year on year. Are Her Majesty's Government entitled under European law to levy a tax which will unilaterally disadvantage one country—curiously enough, their own—against others? If the Government had unilaterally created a benefit one could imagine the row.
If the tax is levied, will farmers not be entitled to, and will they not, go to the Continent to purchase and import into this country similar chemicals but ones which carry no tax? Of course, all the instructions will be in a foreign language, which will cause a safety problem. Is it not a fact that those chemicals will be outside the strict regime of United Kingdom control?
If the Government are frightened by the effects of pesticides they should tighten up on the controls so as to exclude from use the doubtful rather than place an indiscriminate blanket tax on all, allowing the doubtful chemicals—if, indeed, there are any—still to be used and penalising those chemicals which are perfectly safe. This action, if taken, will have a damaging effect on farm incomes at a time when many farmers are struggling to stay in business. It will seriously curtail the capacity of British agriculture to compete favourably in the world market, because this Government will have deliberately increased the cost of their imports. I hope that the Government will not do it.
8.6 p.m.
Lord Stanley of Alderley: My Lords, I thank my noble friend for raising this vital Question. I wish to ask the Government just three questions. First, how can they reconcile their oft-repeated order to British farmers to learn to compete in a free market, then introduce a tax which will make them less—indeed, non—competitive on the world stage, as mentioned by my noble friend Lord Ferrers? That would apply particularly to potato producers, and their processing industry, who did as they were told and compete in a free market.

1631
Secondly, will the Government explain how the tax would fit in with the farm insurance and integrated farm management schemes which the Government have encouraged and ensure minimum and safe usage of pesticides, as mentioned by my noble friend Lord Rotherwick? Thirdly, will the Minister spell out the effect of such a tax on the already stressed farming and rural scene? Perhaps she does not realise that it is stressed. If they are unable to do that, will the Government please publish a cost-benefit analysis before introducing the tax?
I hope that the noble Baroness will be able to extract a satisfactory answer from her advisers before she replies.
8.7 p.m.
Lord Wise: My Lords, it is clear that the main impact of the introduction of a pesticide tax will be to put even more pressure on farm businesses. There are four principal areas in which agricultural practice will he affected by the imposition of a pesticide tax. I refer to pesticide use; cultural control methods; buying strategies; and changes to the business structure of the farming industry.
The majority of pesticides applied to crops give an essentially favourable cost ratio benefit; that is, that the financial return obtained from the crop following application clearly pays for the price of the material. The introduction of a tax could create a shift in that ratio. As it is difficult to know the yield and output price with great accuracy at the time of spraying, an increased pesticide cost may be small compared to the uncertainties of an output value.
For those reasons, most farmers will base their application decisions on the level of risk to their crops rather than the detailed cost benefit ratio calculations. As a result, depending on how the tax is structured, most farms' usage of pesticides will remain unchanged and decisions to spray will continue to be made on risk.
The United Kingdom is quite different from other member states in that farmers and growers in this country tend to demand a higher degree of technical support when purchasing pesticide products. In the majority of cases, farmers delegate product choice to a trained and qualified adviser. The willingness to take professional advice has led to the skilful use of pesticides and the use reductions have resulted from knowing whether or not to treat a crop or, in horticultural crops, for example, whether the threatening levels of disease and pests will materially challenge the marketability of the end fresh product. Unfortunately, many farm businesses may well feel obliged to do away with that advice in order to save costs.
Currently, a wide range of cultural control measures are already employed on farms. These are largely based on crop rotations, which have tended to minimise the endemic levels of pests, diseases and weeds on farms. It is often considered that variety choice is one area where farmers could materially affect pesticide usage by selecting those varieties with high levels of disease and pest resistance. However, I contend that although agronomic characteristics are important to the grower yield, quality and consumer acceptance are the key
1632
parameters when choosing varieties. In horticulture in particular, if there is no demand for the variety it will not be grown.
While I agree that all reasonable steps should be taken to reduce risks from pesticides both to the environment, user and consumer, I remain to be convinced that a tax would be the most effective or sustainable method of achieving this objective.
I believe that sustainable risk reduction can be achieved by the wider adoption of integrated crop management techniques and improved application technologies. Improved decision-making and information technologies will help growers focus on optimised use, using as little pesticides as possible but as much as is necessary to sustain their farm business and the long-term agronomic potential of their land. I believe that that is the way forward and I hope that the Government will think again about imposing a tax.
8.11 p.m.
Lord Mayhew of Twysden: My Lords, I congratulate my noble friend Lord Rotherwick on raising this important subject. It is certainly an important subject for the apple and pear growers in our country. I declare a modest interest as president-elect of the Murden Fruit Growers Society. That has taken up quite a proportion of my three minutes.
But in what I might call in this context the residue, I would like to make the point that the apple and pear growers of this country are already intolerably discriminated against vis-à-vis their competitors on the Continent of Europe and further afield overseas. Not only is that due to the familiar undue zeal in this country with which we seem to permit, or even encourage, Brussels legislation to be interpreted against the interests of our producers, but also—to take one example—we have the problem with the growth regulator, Chlormaquat, which is freely applied to Dutch and Belgian pears on the tree, which are then happily exported to this country. Naturally enough, no one complains about seeing them on the shelves, beautiful in shape and size, but UK producers are forbidden to use it and in fact commit a statutory offence if they do so.
Now, we have this proposal—I hope not yet endorsed or blessed by the Department of the Environment, or the Ministry of Agriculture—to impose a tax on the purchase of certain pesticides. That is a layer of control over and above that exercised by, and vested in, the PSD. We all agree and accept that the PSD should be able to withhold a licence from a pesticide unless it is proved to be safe. Indeed, it has a duty to withhold it. But there is no lesser duty on that body to grant a licence if it is proved to be safe. Everyone understands that. I submit to your Lordships that that is safe and sufficient protection for the consumer.
We do not need any more restraint in the shape of taxation on the freedom of the British grower to meet foreign competition, and for this reason, which needs to be understood. Specific, licensed pesticides are so vital to fruit growers that their use is not optional: it is a fixed cost in all but name. That is a point which has already been made by my noble friend Lord Rotherwick and

1633
other noble Lords who have spoken this evening. If profitability is to be maintained, people will go on using the same amount of pesticide unless and until the rate of taxation becomes absolutely penal. In those circumstances the rate of use of pesticides will decline only because the grower has gone out of business. That is not what we want. I very much hope that this idea of a tax will be scotched here and now.
8.15 p.m.
Lord Monk Bretton: My Lords, I too thank my noble friend Lord Rotherwick for tabling this Question, which is opportune. I have an interest to declare, but rather less of one now because I am more or less a retired farmer.
I would like to say a little more about what has happened in Denmark and Sweden as regards the tax. In Denmark farmers got back a great deal of the money through the remission of other taxes in place of the pesticide tax. It has not done any good so far, although I believe that they are trying to increase the tax. It will probably not be sufficient to have the effect of reducing the pesticide used.
In Sweden the one success was a modest levy of tax to achieve best practice, which did some good. We already do that because the agro-chemical industry pays for approvals. In addition, £8 million per annum is effectively paid by farmers when they buy agro-chemicals.
The general thinking is that it would need a tax of over 100 per cent. to stop or greatly reduce the use of pesticides. That level of tax must be recognised as unconscionable, particularly in the circumstances of British agriculture at the moment. A lower tax would have a significant effect on the costs to the industry and not reduce the use of pesticides. It would not help the environment, farming or anyone else.
This is a delicate subject. There are media and special interest groups who put about exaggerated points of view on the subject which are extremely dangerous. I do not believe we want to go too far along the road of listening to that when it is not justified or right. I hope that Ministers will be careful not to be led astray by that hype. I am sure that they will have full regard to the facts. I ask them in particular to promote those facts and to guide the public perception. We do not want to go too far down the organic road. It could be extremely expensive and not well justified. And I am not so sure that food would be any safer in doing so.
8.19 p.m.
The Earl of Clanwilliam: I thank my noble friend Lord Rotherwick for introducing this debate and for warning me that he was going to have a go at the organic idea. So perhaps I may be allowed to spend a moment on that subject. Indeed, my noble friend Lord Monk Bretton has also spoken on those lines.
I believe that it is 50 years since the requirement for intensive feeding started at the end of the war. The organic agenda has continued throughout that time. It
1634
has influenced general farming. The extensive growth in the methods of farming have been a reflection of that work to some extent.
My noble friend Lord Rotherwick mentioned ICM, which is a system developed by the agrochemical industry in direct response to the organic agenda. There is a need for lower use of pesticides and to move towards more sustainable farming. That is vitally important.
The CAP has encouraged indiscriminate use of chemicals and the CAP is quite unsustainable. I suggest that organic farming is sustainable. It is a specialised and demanding form of farming which needs animals to provide organic fertiliser. It is a whole farm system, and not, for example, just for a specialist cereal farmer. It may be called all muck and magic but it is a skilled and sensitive form of farming not to be taken lightly.
There has been a suggestion that we should go organic. There is no question of the whole of England or the whole of the agricultural world going organic in the UK, especially when you consider that at the moment 0.3 per cent. of agricultural land is converted to organic farming, which is about 70,000 hectares. The existing target is a modest 10 per cent., and that is in the long term.
The demand for organic food is there and is unfulfilled. Sixty per cent. of UK sales are imported from Germany and Denmark. Meanwhile, the EU support in Austria, for instance, covers 10 per cent. of its land which is converted to organic farming, compared to this country with 0.3 per cent. The public are calling for cleaner food and less pesticides, especially in the diet of our children and for the protection of wildlife. We must respond to that demand.
If I thought that a pesticide tax would reduce its use I would support it but, as its use will be indiscriminate, I doubt that it will be of any value at all. We need to reduce the use of pesticides—and perhaps ICM is one of the methods—but such a tax will be self-defeating. The large farmer will use modern techniques, selective spreading and economical use of pesticides. The tax would hardly affect him, but it would affect the small farmer with his unsophisticated machinery, cheap imports and increased pollution. It would be far better to limit the use of pesticides—as already exemplified by the regulations—or the use of organophosphates by specifying the number and rate of applications.
If the object is to raise money it is also self-defeating. It will send the small farmers to the wall for some petty return while the EU spends £30 billion a year in farm support. The CLA calls for targeted campaigns in specific areas and training for farmers. That seems to me to be the most profitable approach. I support my noble friend Lord Rotherwick.
8.22 p.m.
Lord Rowallan: My Lords, I too would thank my noble friend Lord Rotherwick for introducing this debate. I declare an interest as a tenant farmer.
Pesticides have been accused of many things, including killing off birdlife, affecting food safety and destroying waterways. But they are an essential tool for

1635
the farmer because they keep weeds under control, make for ease of cropping and do a more efficient job of keeping the soil clean than ploughing and cultivating, with the resultant soil erosion.
Farmers are keeping a close eye on the usage of pesticides because they are the custodians of the country and they want to see wildlife abound. We have seen a huge decline in their use and we have few statistics to tell us that there are traces to be found in the food that we eat. So why have a tax at all? Is it to raise money or to cut usage? If it is to cut usage, if it is to work it will have to be at a high rate, perhaps 100 per cent. If it is to raise money, as the current pesticides bill is £540 million, at 100 per cent. it will certainly raise an enormous amount of money. Can farming survive another cost of this magnitude?
Are we in the UK to feed ourselves or are we to rely on Europe and the rest of the world to do so? Surely our number one priority is to become self-sufficient. Is the tax to be greater on the toxic chemicals needed to grow potatoes etc. and less on the more benign chemicals such as those to kill buttercups? If contracts are lost to Europe for food as a result of increased costs, our imports will increase and thus our balance of payments will get worse. Potatoes, for instance, require the most toxic of all chemicals. A 100 per cent. tax would add 1.35p per pound to the price, or 7 per cent. of the selling price. As deals are lost for 0.5p per pound, it can be clearly seen that even at 35 per cent. tax contracts will be lost.
This is an ill thought out tax proposal. Do not kill off farmers already in trouble with overburdensome taxes. Encourage them and the agrochemical industry to find cleaner pesticides and to lower rates of usage so that the guardians of the countryside, the farmers, can prosper and this country can stay self-sufficient and become even more eco-friendly.
8.25 p.m.
Lord Mackie of Benshie: My Lords, the subject is one to which we need to pay close attention. Many other noble Lords have mentioned the press and the propaganda put out by various bodies with genuine worry but little practical knowledge of farming and the results of their protestations. It is true that things have changed greatly. No one here is as old as I am, but I remember clearly the stubble fields in Aberdeenshire before the war and the lovely smell of wild mint. It was wholly delightful, and I dare say good for birds and nice for young fellows who were smelling it. It was not much good for farming, but it was a factor.
There is no doubt that farming has changed the habitat of a great many birds. I say birds because one of the chief protagonists of the tax is the RSPB. With the sowing of winter crops you never have any stubble. You harvest the crop and then you go straight in with the plough for the next crop. That has much more to do with the reduction in the bird population than the use of pesticides.
I admit that in the past I have had friends who blanket-spray crops all over their farms to knock off something in the hope of a penny or two more profit.
1636
I also have friends who leave a spray width right round their fields to encourage the wildlife next to the hedges. That does a great deal of good.
As several noble Lords have pointed out, the use of pesticides is already dropping. The more knowledge that is gained, the less chemicals and pesticides are used. Knowledge has greatly advanced. If I may tell an old story, I asked my grieve once—I am talking about 50 years ago—whether he was sure that he was following the safety instructions for the men operating the sprayer. He said, "Oh yes, when they are cleaning the nozzles I tell them to blow and not to suck". We have advanced considerably since then and we are now taking greater care. The people most in danger are the operators, and farmers and producers of chemicals are stepping up the training of people using the equipment. That is very important indeed.
I have the latest figures from the college of experiments—they will not be news to noble Lords who have spoken, but they may be news to the noble Baroness—which give the yield reduction through lack of use of fungicides and plant growth regulators. On winter wheat the reduction in yield was 2.30 tonnes per hectare, which is an enormous amount. That was only fungicide and did not take into account that you had not used any herbicides to keep the weeds down. On winter barley it was 1.5 tonnes per hectare. On spring barley it was more than 1.5 tonnes per hectare. Farming cannot survive if farmers have to take that kind of loss. If farming is taxed at that rate, it becomes impossible. The tax is far too high to have any effect. Therefore, either you tax with a small tax and infuriate people or you tax with a big tax and ruin them. Neither is particularly helpful either to farming or to the general population. Even the RSPB is a little worried about farmers.
Lord Hoyle: My Lords, perhaps I may point out to the noble Lord that speeches should be limited to three minutes. He is now in his fifth minute.
Lord Mackie of Benshie: My Lords, I shall sit down in a moment. There are 20 minutes to go and I shall sit down in one minute. The closing speakers normally have a little longer than the other speakers.
Even the RSPB has said that a tax should not be imposed just now, with farming in a bad way. If it is saying that, the reason for imposing a tax does not come into it at all.
I shall close by quoting the CLA, which says what some people have said already:
"Further support should be given to promoting good practice and to training operators in good practice. This is likely to be a far more effective way of ensuring responsible use of pesticides than any general tax on such inputs".
8.31 p.m.
Lord Luke: My Lords, I thank my noble friend Lord Rotherwick for giving us the opportunity to discuss, albeit briefly, this vital matter.
We should recognise that the imposition of any form of taxation not only raises revenue but has an impact upon the behaviour of those being taxed. It is the duty

1637
of government to make sure that when economic instruments are used directly to influence behaviour the full consequences of imposing that taxation are both intended and equitable.
My noble friends have pointed out this evening with considerable force and eloquence that a pesticides tax could fall into a trap of double jeopardy. It could have an impact which is both unintended and inequitable. What the Government must consider after this debate is whether they should continue with their consideration of an extra input tax at all in the face of the arguments raised by my noble friends and others. How many bankruptcies, I wonder, are the Government prepared to see as the price they are ready to pay for introducing such a tax at this time?
I note, for example, that my noble friends Lord Stanley and Lord Rowallan pointed out the disastrous impact which such a tax would have on the potato processing industry in this country. My noble friends have argued most persuasively that a pesticides tax would undermine existing regulatory procedures, reduce the competitiveness of UK agriculture and horticulture at a most unfortunate moment and ignore the fact that two-thirds of any pollution is not caused by these industries at all.
Yesterday my noble friend Lady Anelay visited the Marden Top Fruit Show, which was mentioned by my noble and learned friend Lord Mayhew. She was most impressed to see the high quality of our fruit products and by the measures which our growers already take to avoid the unnecessary use of pesticides. Farmers and growers use pesticides to protect their crops from insect attacks and diseases. Pesticides allow producers to ensure that we have a consistent supply of high quality food. It is in the interests of every farmer and grower to use pesticides responsibly and safely. They make the valid point that, as efficient business operators, they do not waste money on expensive pesticide products by overuse or misuse. It simply is not in their interests to do so.
Do the Government seriously believe that there is a significant overuse of pesticides in this country? If so, when will they lay in the Library of this House the proof of that so that all noble Lords may peruse it?
The farmers and growers whom I have met on my visits to agricultural shows throughout the length and breadth of the country this summer all ask one fundamental question of the Government. Why penalise our farmers and growers with a tax which will make the playing ground of European and international competition even more uneven and unfair for our producers? Why open the floodgates to foreign, cheaper imports even further at the risk of encouraging the purchase of goods which are not always grown as safely or to the same high quality as our own? I look forward to hearing the response of the noble Baroness the Minister.
8.34 p.m.
Baroness Farrington of Ribbleton: My Lords, in responding to the Question from the noble Lord, Lord
1638
Rotherwick, I am grateful for the opportunity to explain the Government's position on the possible taxing of pesticides.
We made clear in our manifesto that what governments choose to tax sends clear signals about the economic activities that they believe should be encouraged or discouraged. Our starting point is that environmental pollution is to be discouraged. No noble Lord who has spoken tonight would disagree with that. Subsequently, the Government have made clear their general intentions in respect of environmental taxation in the statement of intent and are exploring the scope for using the tax system to deliver environmental objectives, often in combination with other measures.
However, just because we may consider that taxing "bads" rather than "goods" is inherently preferable does not mean that any such taxes should be imposed without very careful consideration. Here I refer to the point made by the noble Lords, Lord Stanley and Lord Wise, of whether taxes are the best way of achieving the objectives and whether they satisfy the fundamental tests of good taxation; that is, that they should be well designed to meet objectives without undesirable side-effects; keep deadweight compliance costs to a minimum; have an acceptable distributional impact; and we must have regard to the implications for international competitiveness.
The noble Lord, Lord Rowallan, the noble Earl, Lord Ferrers, and the noble and learned Lord, Lord Mayhew, referred to the needs of fruit growers. My noble friend Lord Hoyle was listening to the interests of that industry yesterday. What I should like to stress beyond doubt is that, as regards taxing pesticides, no decision has been made. Decisions on such issues are a matter for the Chancellor. However, I should like to explain the background to our interest before responding to the specific points and considering some of the implications which an instrument could have for the countryside and farming.
We are determined that consideration of the case for any instrument is as well informed as possible. That point was stressed by the noble Lord, Lord Mackie. In the context of listening to the noble Lord's reference to factors that could affect the bird population, perhaps I may say that my noble friend Lady Young of Old Scone had intended to take part in the debate. Unfortunately, there has been a problem with the aeroplane on which she was due to return and she was not able to get back in time. I found the noble Lord's comments very interesting but have enough of a rural background myself to remember that along with the mint was often a lot of ragwort in other fields close by.
We issued a discussion document on the potential pesticides instrument in the context of water pollution and commissioned a significant amount of research to examine the potential role. In this context perhaps I may answer the question of the noble Lord, Lord Rotherwick. The Ecotec Report will be published when its methods and findings have been fully considered. It is the Government's policy generally to make available research work for public consideration.

1639
All relevant government departments have been involved in steering that work and the consultants have been asked specifically to consult as closely as possible with the main interested parties, including the NFU and the British Agrochemicals Association.
There is a growing body of evidence which suggests that pesticides can have harmful effects on wildlife and terrestrial and aquatic eco-systems. Although the current statutory approval system ensures that no products pose "unacceptable risks", residual risks remain. Given that uncertainty, governments have adopted a precautionary approach and developed a pesticides minimisation policy to limit their use to the absolute minimum necessary for the effective control of pesticides compatible with the protection of human health and the environment. Several noble Lords referred to that. That long-standing policy has therefore been to minimise the use and impact of pesticides.
Pesticides are used because of the benefits they bring in terms of pest control—noble Lords, with a variety of detailed knowledge, have spoken of that—and in the case of agriculture to increase the quality and yield of crops. As other noble Lords have said, farmers believe they are economically better off using them. However, there is reason to believe that pesticides are being over-used and that alternative approaches are available. The Government wish to investigate the scope for such action. Economic instruments are potentially capable of securing the best balance between minimising costs to producers and maximising environmental benefits, while complementing existing policy mechanisms. Such instruments could secure reductions in pesticide use. I note the points made by several speakers this evening on the way in which the industry itself is seeking to reduce the use of pesticides and to use them more efficiently and effectively.
It is clear that while the introduction of an economic instrument might generally be welcomed by those looking solely from an environmental point of view, such a prospect is regarded as a threat by others, particularly by the farming community and those in the agrochemical industries. We are looking carefully at the possible impact on all those involved in the manufacture, sale and use of pesticides. However, it is accepted that farming is one of the sectors most likely to be affected. As the noble Lord, Lord Rotherwick, said, this is a key concern. I assure him that we are examining it in considerable detail and are taking into account the complex interactions between the response to an instrument of manufacturers, distributors, food retailers and consumers, as well as the characteristics of the farms such as crop type and current pesticide usage. Noble Lords have spoken with knowledge and in detail about aspects of farming in that context.
It seems clear that if a tax were to be introduced, then in the short-term, before farmers take steps to reduce use, income and profits could be adversely affected. Detailed examination of ways of limiting adverse effects and encouraging positive reactions to an instrument are particularly important in this context.
1640
The noble Lord, Lord Monk Bretton, drew attention to what is happening in other countries. That is an important factor to be taken into account during this consideration.
The noble Lord, Lord Stanley, said, somewhat despairingly, as did another noble Lord who spoke, that he was not sure whether we recognised the problems facing sections of the farming industry. We take seriously the difficulties that have been experienced recently by parts of the farming industry. We have taken action. For example, we have provided £85 million of agrimonetary compensation and spent £950 million in 1997–98 on BSE-related measures.
However, the rural economy is now less dependent on agriculture and its traditional industries than it once was, with less than 2 per cent. of the workforce employed in agriculture. Therefore, we are working also to address the needs of rural communities as a whole and are working out how best to build the rural dimension into all aspects of wider policy-making. The current position in the farming industry makes that all the more important.
To sum up, we are looking at the possible use of an economic instrument consistent with our pesticide minimisation policy. As the noble Lord, Lord Monk Bretton, said and as the contribution of the noble Earl, Lord Clanwilliam, demonstrated, in considering those factors it is clear that there are a range of views within the industry which are not always totally in agreement with each other. Any instrument would be only one element additional to complementary measures or indeed an expansion of current measures; for example, training and advice to farmers and agricultural workers, referred to by the noble Lord, Lord Mackie, which could also be introduced.
I stress yet again that no decisions have been made. Before taking any decisions we shall weigh up all the relevant factors, including the results of the research which we have commissioned, the responses to the earlier discussion paper and the points raised this evening.
There may be other detailed questions to which I have been unable to reply. I shall seek to write to noble Lords, for example, with details on the points raised about the potential for an impact on the potato industry. My friends in the farming community in Lancashire would forgive me not at all were I to do any less.
[The Sitting was suspended from 8.46 to 8.51 p.m.]

Scotland Bill
Consideration of amendments on Report resumed.
Clause 3 [Extraordinary general elections]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 32:
Page 2, line 30, leave out from ("dissolved") to (", or") in line 33.
The noble Lord said: My Lords, this is a fairly simple amendment. On page 2 of the Bill there is a provision involving a qualified majority of members of the

1641
Scottish parliament, if the parliament is to be dissolved. That qualified majority is,
"two-thirds of the total number of seats for members of the Parliament".
It is not the actual number of people who are present and vote, but two-thirds of the number of seats. It is therefore quite a vigorous hurdle to be overcome. Regardless of whether anybody is sick or dead, they will be counted. I remind the noble Lord on the Government Front Bench that accusations like that were put against the 40 per cent. in 1979. It appears to me that the Government are proposing a rule with the same kind of problems attached to it.
But that is not my real problem. Time and again during the debates on referendums I suggested that we ought to write into legislation qualifications in relation to the majority and qualifications linking the size of the majority to the turn-out. Time and again I was told that a simple majority was enough. Some of the issues I was addressing in the referendum Bills were of greater importance than whether or not the Scottish parliament should be dissolved and an election held. The Scottish devolution referendum itself was of greater importance, as was the Welsh one. If there had been any qualification, the Welsh one would not have been won. Indeed, my noble friend Lord Newall suggested that the Welsh one was only won because the Government unfairly backed one side to the disadvantage of the other; that it was not a fair referendum. There was a referendum on London voting and we are looking forward—if that is the right word—to a referendum on a voting system for the other place and perhaps a referendum for the euro.
In all of those I contended, and will contend in the ones to come, that a qualified majority for such major constitutional change is essential. Judging by the course so far, the Government will tell me that one is enough. My simple question is: if one is enough to make dramatic changes to the constitution of our country, why is one not enough to dissolve the Scottish parliament? I beg to move.
Lord Sewel: My Lords, there are very few places in this Bill where reference is made to a qualified majority—the two-thirds majority. Those situations arise where we consider it to be appropriate that a procedure be built in which effectively puts the decision to be made beyond the reach of an individual party. The three places where that occurs—it is right that it occurs in those places—are the removal of the Auditor-General at Clause 65; the removal of a judge at Clause 90 and the dissolution of the parliament.
I touched earlier on why we adopted the two-thirds majority for the dissolution of the parliament. We start from a proposition that, unlike the Westminster Parliament, the Scottish parliament should have a fixed term; that the ability to call an election by creating a dissolution should not rest with the Executive or with a simple majority of the parliament. It is to get away from the idea that the timing of an election is something which could be engineered in order to create party
1642
advantage. We therefore adopted a procedure that tries—and I believe succeeds—to remove that possibility.
In too many cases, particularly an administration with a small majority, there is temptation to use the dissolution as a political, electoral gambit. As I said, all the way through the argument has been that it should be a fixed-term parliament thus removing that opportunity. Dissolution therefore can only be achieved through a two-thirds majority, clearly in a situation where there was widespread recognition within the parliament that the stage had been reached where there was no likelihood of a stable administration being formed.
In the past the argument has been advanced—it has not been used tonight—that the two-thirds majority would result in a lame duck administration; that is, an administration that had lost its authority but was nevertheless continuing. In other words, there is a fear that a Motion may be moved to secure a dissolution and it obtains a majority of between 15 per cent. and two-thirds, clearly indicating that the administration has lost the confidence of the parliament, but it is not sufficiently high to obtain dissolution. That is a fear that is unwarranted. I suspect that what would happen in those cases is that there would be a straight Motion of no confidence in the Scottish Executive of the day; the Executive would be got rid of in that way and there would be a 28-day period for the appointment of a new one. Of course, in those circumstances, if a new Executive is not appointed, there is an automatic dissolution. That again is a further safeguard.
The whole purpose of this provision is to ensure that a party with a majority of more than 50 per cent. cannot use the timing of a dissolution for party advantage. Among those who considered the matter—certainly, among members of the Scottish Constitutional Convention—there was the strong view that it ought to be a fixed parliament so that we can get away from that possible abuse. On that basis, I hope that I have explained satisfactorily to the noble Lord, Lord Mackay, why we are going down that road and that he will feel able to withdraw his amendment.
Lord Mackay of Ardbrecknish: My Lords, I am deeply grateful to the Minister for some of those sentences. When he was explaining what might happen if the parliament failed to reach a two-thirds majority and a lame duck administration rumbled on, trying to find an acceptable chief minister, that reminded me of what has been happening in Italy in the past few weeks. I do not think that that is a good omen for the Scottish parliament.
The Minister said that a "qualified majority" is specified in only a few places in the Bill. I would say that once is enough. However, I am grateful to the Minister for saying that among the reasons for including such a provision is to put the dissolution of the parliament—in other words, the result of the vote—beyond the reach of an individual party. I am also grateful for the fact that it should be a qualified majority of the whole membership. To me, that seems akin to the whole electorate—not just those members of the Scottish parliament who turn up and vote. I am equally

1643
grateful to the Minister for saying that a qualified majority is needed to prevent the provision being engineered to create party advantage. I cannot think of a better explanation of why the Government think that one is enough for a referendum other than that they can engineer it for party advantage. I am grateful for those phrases and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 33 not moved.]
9 p.m.
Clause 4 [Candidates]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 34:
Page 3, line 8, leave out ("or individual candidates").
The noble Lord said: My Lords, in moving this amendment, I should point out that the key amendment in this group is Amendment No. 44 and that the others are consequential. Your Lordships know that the Scottish parliament is to be elected on a two-tier system. The first vote is a first-past-the-post vote and the second vote is a top-up vote. The idea of the top-up vote is to right the wrong, so to speak, that may have been created in the proportionality of the outcome of the first-past-the-post vote. That is the principle of the top-up membership. It is to right any imbalance, any lack of proportionality, that may have resulted from the first-past-the-post vote.
The real question is: why is it not being done on the basis of the first-past-the-post vote? Why is it being done on the basis of a second vote? After all, the proportionality of the second vote may differ from the proportionality of the first vote. The net result might be that the composition of the parliament is further away from proportionality than was the first-past-the-post vote. It seems entirely illogical for the Government to say that the top-up seats ought to be determined by a second vote.
I have done a simple calculation based on voting patterns in Glasgow because I understand that these matters concern the Labour Party. If Labour voters in Glasgow decide to give their first vote to the Labour Party—there is plenty of evidence that this is what they are thinking—and their second vote "for Scotland"—that is how it will be put to them; that is, for the Scottish National Party—I do not think that that is the same, but never mind. That is the way that this will be portrayed. The net result, if it succeeded in part, would be that the Scottish National Party would gain a disproportionate number of the top-up seats and the balance from the first-past-the-post vote would be more skewed. In fact, it would be heavily skewed if, say, slightly fewer than half of all Labour voters decided to vote SNP in the second ballot. I must advise the Liberal Democrats that they would then lose the one seat that they might have gained in Glasgow because the SNP would have mopped up those votes. The Conservatives would manage to squeeze in, in sixth place. The Labour Party would not gain any seats in the second vote whereas it would otherwise probably gain one or two seats if the votes were the same in the second vote as in the first.
The real problem is that if the votes are not the same in the second vote as in the first, greater distortion could be caused. I am not in favour of PR, but those who are ought to be concerned about their own system. They should try to be mathematically literate and to work out some of the possible consequences.
This is not just my worry; it goes deep into the heart of the Government. I have with me the Scotsman for Monday 5th October which shows Mr. Donald Dewar to be most concerned about this. The article states:
"Donald Dewar yesterday admitted that Labour may suffer because of voter confusion"—
I think that the Scotsman is wrong to think that there will be confusion—
"over the proportional representation element of next year's Scottish parliament elections.
He said electors may choose to vote for another party in the second vote".
So, the electors are "confused" yet they are to choose; I think that they will know what they are doing. I repeat that Mr. Dewar is reported as saying,
"electors may choose to vote for another party in the second vote for the 'top-up' list candidates when they have backed a Labour candidate in their first constituency votes.
Speaking on the BBC Scotland's "Eye to Eye" programme, Mr. Dewar said: 'I am worried that people will not understand what is … quite a complicated and fundamental shift in the way you cast votes—"'.
Donald, you are wrong. They will understand. I keep saying that because I do not believe that the electorate will not understand the PR system. They will understand it far too well for the Labour party and they will use it extremely efficiently just as they have used tactical voting—to my cost, if I may say so.
Perhaps I may continue to quote what Mr. Dewar said on that programme:
"'At the moment you have one vote for your first choice. My concern is that when people are presented with two ballot papers they may cast their vote for, let's say, the Labour Party.
'When they come to the party preference, and there is lots of evidence for this in the opinion polls, they may see that as a second-best choice and vote for another party.
'The second ballot is the most important because it is the one that produces the percentage of the total vote, which is then used to ensure that you get the same percentage in parliament'".
Exactly.
If it is the percentage in the parliament that matters and righting any perceived lack of proportionality from the first-past-the-post votes, the inescapable logic is that the top-up seats should be derived from the first votes. That is what my amendment seeks to do.
The first total of all the first votes would be counted—for the Labour Party, the Liberal Democrats, the Scottish Nationalists and the Conservatives—the d'Hondt principle would be applied and then, on the basis of that first vote, the top-up would be calculated. Therefore the top-up—this is not what I desire particularly, but it is what the PR people want—would make sure that people's first votes are counted properly and that the lack of proportionality coming from first-past-the-post would be corrected.
We now know that the Government will try to run a £2 million campaign to educate people. In my submission, if they do that they are even more likely to bring about the kind of scenario I suggest, unless of course they intend to educate people to vote Labour on both tickets. However, I hope they will not be quite as blatant as that. My principal contention as regards this amendment is that we are in severe danger of not following through the logic of the whole principle on which an additional member system is based. The logic of it is to correct any lack of proportionality arising from the first vote. Therefore in my submission that ought to be done on the first vote.
A further reason for not having a second vote is that it would prevent the alter ego parties. I think it is a good deal less likely now than in the summer that the Labour Party will divide itself into Labour and Co-operative. I think it will be far too worried about losing first-past-the-post seats to the Scottish Nationalists and it will need all its second votes. However, I know that I cannot win on that argument because everyone tells me I should attack that problem in the Registration of Political Parties Bill. I shall do so and I look forward to receiving support from those people who have advised me to seek a solution to this difficulty in the Registration of Political Parties Bill. If the Government will not accept changes to the Registration of Political Parties Bill, having no second vote and the top-up on the first vote will do the job perfectly well. The consequence is, of course, that individual candidates will go. However, that concept is such a sop. Anyone with any knowledge of how politics work will know that the chance of an individual candidate obtaining enough votes in a poll over a large region to gain even the seventh position is about as remote as the Government offering me a job on their Front Bench. It just will not happen. It is impossible.
In Committee I said that this whole idea was designed to try to keep Peter Peacock happy. He obviously got out his pocket calculator and worked out that it would not keep him happy because he would not obtain any position. Therefore he joined the Labour Party to see whether he could get a position on the list there. The one person the Government might have prayed in aid as an Independent who might have succeeded—there are many "mights" in that—has decided that he would not succeed and he has decided to join one of the political parties.
I understand that people will complain that I am trying to get rid of individual candidates and they will say that that is dreadful. But, frankly, I am being thoroughly and totally realistic. If an individual candidate has clout, the chances are that clout may just win him a first-past-the-post seat in a small geographical area. However, I do not believe that an individual candidate—perhaps with the exception of Mr. Sean Connery—could conceivably obtain enough votes over a whole region to win. It depends on the region, but he would need about 12, 13, 14 or 15 per cent. of the vote. That is the kind of percentage one needs to obtain the seventh position. That may not sound much, but across a whole region it adds up to a great many votes.
Regrettable as it may be, the idea that an Independent would be able to run successfully in a regional list is Cloud-cuckoo-land.
My amendment gets round what I think is quite a serious problem which we shall discuss shortly; namely, that currently the only people who will have their name on the second ballot paper will be the Independents. However, as I said, we shall discuss that matter later. The prime reason for putting forward this amendment is the reason of principle; namely, that as I understand it from the PR people the objective of the top-up seats is to correct the imbalances in the first-past-the-post system. Logically they should do that on the basis of the first-past-the-post votes. I beg to move.
Baroness Ramsay of Cartvale: My Lords, I shall deal first with all the amendments in this group except Amendment No. 44, which I shall discuss afterwards because, as the noble Lord, Lord Mackay of Ardbrecknish, said, that is in many ways the key amendment.
Lord Mackay of Ardbrecknish: My Lords, the noble Baroness need not argue about the other amendments. As I said, they are consequential on Amendment No. 44 because if Amendment No. 44 were to be accepted by your Lordships there would be no provision for individual candidates. I am merely keeping the Bill tidy, which I thought was a good thing.
9.15 p.m.
Baroness Ramsay of Cartvale: My Lords, if the noble Lord will bear with me, I shall deal with the other amendments as well. They provide the background to our thinking and some of the reasons why we do not agree with Amendment No. 44.
The Government's views on all these amendments will be fairly clear by now from earlier stages of the Bill. We are fully committed to the regional members scheme as set out in the Bill. We consider it an essential part of the arrangements for the Scottish parliament.
As I have said on other occasions, we want to ensure that the electoral arrangements for the Scottish parliament will ensure a fairer balance of representation and will more accurately represent the diversity of political opinion. We also want the parliament to be able to draw on a wide range of talented people whether or not they have a political affiliation. With these amendments the noble Lord is trying to restrict the choice available to the electorate.
The noble Lord, Lord Mackay, has argued today, as he has previously, that allowing individuals to stand as regional members undermines the proportionality on which the additional member system is based. I have looked carefully at what he has said on other occasions. He suggested that an individual could deprive a political party of proportionality. He spoke of people being mathematically literate and that there should be concern about the results. The noble Lord went on to give examples indicating how bad that might be for the Labour Party. I am touched that he is so concerned about what it might mean for my party. However,

1647
I cannot help but suggest that he may be revealing a concern that his own party will not do so well out of this if it has individuals standing.
There is a long tradition in Scotland of independents standing in local government. Many people, for whatever reason, do not feel properly represented by the political parties. By allowing independent candidates to stand in the regional election we ensure that fewer people feel disenfranchised and without representation in the parliament.
The noble Lord, Lord Mackay, has suggested that there is little chance of an independent being elected but that he or she may just receive sufficient votes to frustrate a political party. I am not so sure that the parliament will not have some independent candidates. Clearly much would depend on the pattern of the voting. However, using last year's general election results as a model, an independent candidate who secured some 25,000 votes, which in some regions would be around 5 to 6 per cent. of the electorate, would have been returned as a regional MSP. It is not beyond the bounds of possibility that that could happen.
The Government are aiming to give the electorate more choice. The amendments tabled by the Opposition would have the opposite result. I therefore ask the noble Lord to withdraw them.
Amendment No. 44 as presented and introduced by the noble Lord offers an ingenious—but I am afraid unacceptable—solution to a concern which he has expressed at earlier stages of the Bill. The noble Lord is concerned that by giving the voter the freedom to the vote twice, once for a constituency representative and once for a party or an independent candidate, we are opening the way for abuse of the system, and in particular the formation of what he has termed "alter ego" or "bogus" parties. We covered this ground thoroughly at earlier stages and I do not propose to restate all our arguments in detail.
We recognise that there is a technical possibility that parties could seek to subvert the arrangements for proportionality. But, unlike the noble Lord, we think that the fear that this will happen in practice is out of all proportion to the real likelihood. We have faith in the ability of the electorate to recognise what is afoot; and it would undoubtedly be pointed out to them by the other parties. In any event, we really do think that there is no remedy for this potential problem which is not rather worse than the illness it seeks to cure. The noble Lord's amendment is, I am afraid to say, a very good case in point.
As the noble Lord explained, this amendment is designed to retain the additional member system, but on the basis of a single vote for each elector. We are not aware that among the very many different forms of voting which exist this approach has ever been tried. I could not help being intrigued at the thought that, if all this came to pass, the noble Lord's name might rank with d'Hondt and St. Lague in the electoral textbooks—but I accept that he is making a serious point. In response to that serious concern I am afraid that I have to say that I suspect the reason why this approach has never been tried is that it cannot stand up to scrutiny.
1648
Adopting the approach in the amendment would mean assuming that all the votes for a party's constituency candidates can be equated with a vote for that party. It would, therefore, overlook the sometimes substantial element of personal voting at constituency elections. It is difficult to see how this could not distort the results significantly, in some cases at least. In effect, it would lead to party candidates being elected from the regional list—which the amendment appears to envisage would continue—on the strength of the high personal, local vote for particular constituency candidates. And indeed the opposite effect could also apply where, for whatever reason, constituency candidates fall out of favour locally.
Yet, given the rationale for allocating list seats under the additional member system, it is critical to be able to identify in a reliable and defensible way voters' party preferences in such a system. The single vote system proposed in the amendment would undermine that and create a result which voters would—I think rightly—challenge as being based on a fundamentally flawed premise that we would be presuming that they voted in every case first and foremost on the basis of party allegiance. Given the attachment of noble Lords opposite to models of voting which leave room for local issues to take precedence over national ones, that seems an odd stance for them to take.
The amendment would also appear to be intended to preclude the possibility of independent candidates being elected for regional seats as it is entirely based on aggregating the votes for party candidates. As we have already made clear, we feel that the opportunity for independents to be elected at regional level is an important aspect of our proposals and a recognition of the variety of Scottish political life. In addition to that, small parties would be forced to contest every seat in a region to be sure of gaining sufficient votes to qualify for an additional member. That seems to us unfair and unacceptable.
I hope the noble Lord will accept that this is not an electoral system which can be defended. I therefore ask him to withdraw his amendment.
Lord Mackay of Ardbrecknish: My Lords, I think the noble Baroness's last remark refers to her electoral system, not to mine.
Several of the arguments put forward were arguments to points that I made in Committee but did not make this evening. My concern has grown about the misuse that could be made of the system, which would stop it doing what it is supposed to do, which is to right the imbalance of first-past-the-post. The noble Baroness made no attempt to address that point, despite the fact that her right honourable friend the Secretary of State for Scotland is clearly extremely worried about it. Perhaps she should have had a discussion with him before today's debate as he seems to be sufficiently worried about the matter to make the points that I have just repeated.
As regards the amendments to remove the individual candidates, I made it clear that they were consequential on Amendment No. 44. The idea that individual

1649
candidates will make much progress is Cloud-cuckoo-land. I noticed that the noble Baroness seemed to equate the Scottish parliament with local government and to believe that we shall have independent Scottish members of parliament just as we have independents in local government. It is a long time since any independents have been elected to the House of Commons from Scotland. An independent was elected for an English constituency, but that was only because the other parties did not stand. I cannot see that happening in the regional list, which is where the independent will supposedly gain his or her advantage. It will be interesting to read the words equating the Scottish parliament to local government. I shall be amazed if an independent wins a seat to the Scottish parliament in the list or indeed in first-past-the-post unless some of the parties decide not to contest a seat and combine to put their weight behind one candidate, for whatever reason.
I shall not say much about the alter ego party. I think we can deal with that matter by amendments that some of my clever friends have suggested that I should put down to the Registration of Political Parties Bill. I look forward to the Government accepting one of my amendments or coming forward with their own.
However, the point that appears to be totally lost in the argument put forward by the Government is that, if the top-up system is designed to right an imbalance in the first-past-the-post seats, it should bear some resemblance to the votes in the first-past-the-post seats. In the light of all the academic works devoted to elections, I was amazed to be told that there were substantial elements of personal voting. My understanding is that, based on many elections, David Butler concluded that plus or minus approximately 500 was about the very best and that was pretty generous; in other words, if a candidate was hated he would lose about 500 votes and if he was loved he would gain about 500. Anyone who looks at swingometers on any election night will see that the edges are blurred, as in any statistical exercise, and the result has little or nothing to do with personal votes but may have a lot to do with the make-up of constituencies, local pressures or whatever. It has little to do with personal voting. In any case, even if one member is so hugely popular that he gets hundreds more votes than he or his party would otherwise have got, when taken over a whole region with the d'Hondt divisor it makes no difference at the end of the day. I am afraid that that is not an argument.
The whole point about the top-up is that it is designed to deal with party balance. The people who say that the second vote is the way to do it have lost sight of that. Initially, Germany had the system that I have suggested. It is not true that it is not used anywhere. Germany moved and in doing so did two things. Germany has very large regional lists; they do not have seven but sometimes 150 and the same number as the first-past-the-post. Therefore, in Germany it is a very different ball game that cannot be equated with the majority being first-past-the-post and then a limited number of seats providing the top-up. The change made by the Germans was based on a quite different arithmetical system.
1650
However, I do not believe that I shall make any progress this evening. I concur with Donald Dewar's worries. Next May I may have to return to the Government and say, "I told you so". I shall not relish it, because the last thing that I want is to see the Scottish National Party winning and taking my country out of the Union. I shall not have touching sympathy with the Labour Party if it happens to be the loser in this process. My touching sympathy is with the Scottish public, Scotland and the Union. For that reason I believe that we should look very carefully at the design of these systems, especially in light of the kind of campaign that so worries Donald Dewar. If he is worried, I am worried. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 35:
Page 3, line 12, at end insert ("and any list of such candidates, submitted to the regional returning officer, shall appear on the ballot paper for regional members in that region").
The noble Lord said: My Lords, I beg to move Amendment No. 35. This time it is a simple matter. Amendment No. 35 takes us back to an issue discussed earlier; namely, whether or not in the second ballot the names will be on the paper. As the matter stood last time, other than independents the names would not be on it. Therefore, the second ballot paper would make reference to the Conservative Party, the Liberal Democrat Party, the Labour Party, the Scottish National Party, perhaps the Green Party for the sake of completeness—who knows?—and whatever number of independents come up. The only people whose names will be on the list are the independents. The names of the candidates of the parties will not appear on the ballot paper.
We did not make any progress on this matter last time. I do not want to quote all the expressions used then by the noble Baroness but among them were that the ballot paper would be too complicated and that people would not understand it—all the usual arguments that the advocates of proportional representation tell us are bogus when we say that it is better to stay with the first-past-the-post system. That was what the noble Baroness said last time.
The fact of the matter—it is unfortunate for the Government that I lead on all the constitutional Bills—is that on 12th October when debating the European Parliamentary Elections Bill I tabled an amendment that sought to do the same for these elections, which are to be based on a large regional list. On that occasion the noble Lord, Lord Williams of Mostyn, said:
"I did make it clear earlier—and I repeat it now—that it is our intention that all candidates' names should appear on the ballot paper for European Parliamentary elections. The Under-Secretary of State at the Home Office gave an assurance to that effect in his Written Parliamentary Answer on 23rd June and I gave the same assurance two days later when we considered the matter in Committee".".—[Official Report, 12/10/98; col. 737.]
I knew that, but I just thought I would put it down again because the Scottish Office did not seem to know it.
The noble Lord went on to say:
"A prototype ballot paper has been placed in the Library of both Houses."
I have the prototype ballot paper. It has on it the list of names for the Conservative Party, the Green Party, the Labour Party, the Liberal Democrat Party, and it has the names of the independent candidates as well. I notice that the independent candidates are for legalised cannabis, stop the by-pass and the Monster Raving Loony Party. I thought the Monster Raving Loony Party might just qualify under the Registration of Political Parties Bill.
It is perfectly clear that that is what the noble Lord, Lord Williams of Mostyn, said. That is what this document in the Library said. I think I am right in saying that the Minister, the noble Lord, Lord Sewel, was present on the Bench and he therefore heard me say—I do not normally read my speeches of course:
"My Lords, I am grateful to the Minister. I did not actually expect anything less than that assurance. I thought this would be a useful exercise because we are dealing with an important issue, … However, I should just warn the Minister that he had better brief his colleagues who are dealing with the Scotland Bill that the words he has just used will be prayed in aid against them when we come to those deliberations."—[Official Report, 12/10/98; col. 738.]
I pray in aid the words of the noble Lord, Lord Williams of Mostyn. I beg to move.
9.30 p.m.
Lord Steel of Aikwood: My Lords, my Amendment No. 36 has much the same affect as the noble Lord, Lord Mackay of Ardbrecknish's Amendment No. 35. I do not have the Hansard in front of me, but, if I remember rightly, I was present on the occasion to which he has referred and I tried to entice the noble Lord, Lord Williams of Mostyn, to extend his description on to this Bill but he for some reason resisted my blandishments. However, I also recall that at the Committee stage the Government did undertake to give further consideration to this matter, particularly in the committee meeting in Edinburgh dealing with electoral arrangements. There has been some dialogue between us and the Government over the Summer Recess, so I am hopeful that the Government will accept the sensible proposal that the names of the candidates should appear on the ballot paper.
My amendment has one further minor addition and it is the suggestion that the names be limited to nine in number. I really propose that as a probing matter because I do not understand why we need to have as many as 12. I do not yet know of any party which is putting forward a list of 12, so maybe my amendment is not necessary. It seems to me exceptionally generous and an unnecessary cluttering of the ballot paper, which is a point made by the noble Baroness in a previous debate, to have as many as 12 names. I think it would be tidier to limit the number to nine, but I do not feel strongly on that. I am looking forward to the Government accepting the principle of what we are now proposing.
Lord Sewel: My Lords, as has been said before, there are very strong and persuasive arguments against putting
1652
the names of candidates on the ballot paper. However, I have to congratulate the noble Lord, Lord Mackay of Ardbrecknish, and his colleagues on the power of the arguments that they have used. We have listened and we have very largely been persuaded. The concern we had from the start was the manageability of the ballot paper and there are still some issues to deal with there. Fortunately, over the summer research has been carried out by the School of Public Policy at University College London on whether people prefer a straight party signal or whether they prefer the names on the list. The research at the moment is not absolutely clear. Some like it nice and simple to know that they are going for the party. Others like to know who the candidates are. I do accept the point that if we can get on to the ballot paper the lists of the names of the candidates and it does not become something like a kitchen roll then that has considerable advantages. It does of course mean that we preserve a worthwhile principle, that people actually know the identities of the candidates for whom they are voting. We have sought hard to preserve that in the way we have approached the issue.
There are some difficulties. It might seem a minor problem, but for older people the ballot paper must be of adequate type size so that it is not a confusing blur. But that is not an insuperable problem. Unless we come up against some major practical difficulties, I give the assurance that we shall move towards putting the names on the ballot paper. Some additional work has been done on the example of a ballot paper that the noble Lord, Lord Mackay of Ardbrecknish, has before him. I hope that we shall be able to make a variety of those available before the end of Report stage.
There is some advantage in making use of the order-making powers in Clause 11 to ensure that it is achieved rather than putting the provision on the face of the Bill. But that is a difference of approach. Clause 11 covers everything to do with the conduct of elections. We expect to lay that order around Christmas and for it to be debated in both Houses during January. I believe that that could be an appropriate way forward.
I believe that we have widespread agreement on the issue. I and the Government are glad that there is not an insuperable problem in putting the names down. I think that we can go to 12 without making a difficulty. The reason for the figure 12 is to seek to overcome the difficulty that over a period of time, with possibilities of deaths, people moving away or perhaps losing an interest in politics, one runs out of candidates on the regional list where a vacancy occurs. I realise that it is a somewhat belt-and-braces solution, but it is better to err in that direction than to keep the number too small. It will be for the judgment of the political parties to decide the number. I hope that on the basis of what I have said, noble Lords will feel able to withdraw the amendment.
Lord Mackay of Ardbrecknish: My Lords, we have made serious progress. I did not have to go to the trouble of persuading the noble Lord, Lord Williams, to come to the Dispatch Box to give assurances on the European legislation. I think that I can speak for the noble Lord, Lord Steel of Aikwood, in saying that we are pleased about this. I am content that the provision is not on the

1653
face of the Bill. Having been a Minister, I trust the Minister's words without question.
I look forward to seeing the ballot papers. It will be good to see them before the end of Report stage. I look forward to the regulations in January. With grateful thanks to the Minister, perhaps I may say that this is an important step forward in the cause of democracy and open government. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 36 to 42 not moved.]
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 43:
Page 3, line 37, leave out from ("a") to end of line 39 and insert ("party registered under the Registration of Political Parties Act 1998.").
The noble Lord said: My Lords, this is a simple amendment. Clause 4(9) states:
"In this Act, 'registered political party' means a political party registered under any enactment providing for the registration of political parties".
What will happen is that the "registered political party" will mean a political party registered under the Registration of Political Parties Bill which is before your Lordships' House. It seems a little daft that we cannot say what we mean. That will be the legislation used in subsection (9). I beg to move.
Lord Hardie: My Lords, we do not consider that this amendment is necessary. Perhaps I may explain why. The wording in Clause 4(9) is already wide enough to cover the Registration of Political Parties Bill which, as the noble Lord reminded us, has still to receive Royal Assent. It is not necessary to refer to it expressly on the face of the Bill.
Moreover, at paragraph 5 of Schedule 3 to that Bill there is an amendment to what is now Clause 4(9) of this Bill and so will refer to parties registered under the Registration of Political Parties Act.
Nevertheless, we shall consider whether it might be more appropriate to proceed along the lines suggested by the noble Lord and may return with amendments to deal with this minor drafting matter on Report. On that basis, I invite the noble Lord to withdraw his amendment.
Lord Mackay of Ardbrecknish: My Lords, perhaps I should give up now while I am ahead. That is two successes on the trot! I am grateful to the noble and learned Lord for his response. He started negatively and I was thinking that it was a good job that the noble and learned Lord, Lord Simon of Glaisdale, was not in his seat because the Minister would have had another lecture on meaningless words in Bills when a simpler form is available.
The amendment arose because I noticed the reference in the Registration of Political Parties Bill, but I am glad to hear that the noble and learned Lord will consider making the amendment at a later stage. I am not entirely sure which of the two Bills will reach the statute book
1654
first, but it does not matter much. We know what we mean and I am grateful for the positive assurance. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 [Poll for regional members]:
[Amendment No. 44 not moved.]
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 45:
Page 4, line 2, after first ("a") insert ("candidate of a").
The noble Lord said: My Lords, I do not think that I will make much progress with this amendment and I am merely making my point. The amendment raises the question of open lists. Earlier this week during debates on the European Parliamentary Elections Bill your Lordships disagreed with the Government and decided that a list ought to be open and not closed; in other words, that the electorate ought to be able to decide not only which party should send Members to the European Parliament but also which Members on a party's list ought to go.
The same argument applies here, which is why I shall not rehearse it at any great length. As currently drafted, the political parties, by whichever means, will submit a list and an order. When a Labour voter votes Labour he will be voting only for the Labour Party. He will see the names but he will not be able to say which he prefers. The same applies to those voting for the other parties. If I were to seek election and were placed third on the list because the party apparatchiks did not like some of my victories over the Government, or whatever, but the wider Conservative electorate thought that I should be first they should be able to do it. However, as the Bill currently stands, they would not be able to do so. I want the electorate to have the choice. And before anyone rushes off to the newspapers, I should say that I have no intention of standing for the Scottish parliament. I intend to stay here and keep the Government on their toes so far as I can.
The point about the open lists is important and I should like to hear what the Scottish Office thinks about it. The amendment would improve the way in which the public perceived the top-up members. There is a huge danger that the public will see them merely as the product of the party apparatchiks. That is not good for democracy. It is a fairly simple business for the electorate to be given the choice not only as regards the party but also the party list.
I am allowing the party to put names in the order of preference. All the research tells us that in those circumstances people merely vote for the person at the top of the list. Therefore, the party will inevitably gain an advantage. But if there is someone the public really want, particularly the third or fourth member—it will not influence the first so much—it is right that the public should decide. I beg to move.
9.45 p.m.
Lord Steel of Aikwood: My Lords, this must be about the fourth debate in which we have all joined on

1655
open lists versus closed lists. I welcome the opportunity to restate the position of my party; namely, that we are in favour of open lists, where they can be obtained. The noble Lord, Lord Mackay of Ardbrecknish, had great fun at our expense the other night because we voted against open lists in the European Parliamentary Elections Bill. But that was for a very simple reason. That Bill was brought forward by the Government not as part of a manifesto commitment but at the request and persuasive insistence of our party. Having done that and introduced the proportional election system for the European Parliament, it would have been ludicrous for us to endanger that by voting against a part of the Bill which would have resulted in it going back to the other place. Had we done that the Government would have been perfectly entitled to say, "You ungrateful so-and-so's, we shall not bother to proceed with the Bill. We shall let it drop and we shall carry out the elections as we have always done". That would have greatly delighted the Conservative Party. We were not going to fall for that; we did not, and voted accordingly.
But as regards this Bill there is no agreement among the parties on this issue. This amount of detail was not discussed in the constitutional convention. The principle of an additional list system was agreed. There simply remains a difference of opinion between us on the issue as to whether the electorate should or should not choose the candidates. We believe that they should.
I am sorry that some Members on the Labour Benches who spoke previously are not with us tonight. They are under a misapprehension that somehow open lists can cure the problems inside the Labour Party where certain people have been unable to get on to lists. It would not do anything of the kind. The Dennis Canavan problem, if I may so refer to it, will not be cured by whether we have open or closed lists. It is an internal matter for the Labour Party and nothing to do with the argument at all. The question of whether people get on to lists or not is much more important in a way than whether such lists are open or closed.
We are unashamed in saying repeatedly in our party that we have operated the system as it should be operated, with an open vote among all its members to determine the order on the lists. So in that sense we have had open lists within our own party and I think that is the right way. The fact that the Conservative Party, the Scottish National Party and the Labour Party have not done it is their funeral. It is for their members to object. I know that they have done so. We are sympathetic to the idea. We do not believe for one minute that the Government are going to show last-minute repentance on this matter as they did about names on ballot papers. We know that we cannot win everything in one night. It would be very nice if we could.
I have to say to the noble Lord, Lord Mackay of Ardbrecknish, who has now made his fourth speech on this subject in this place at least, that I find it difficult to take lectures from him on the details of proportional representation. It is like taking lectures from a vegetarian on how my steak should be cooked, or from
1656
a teetotaller on which claret I should drink, or lectures from a virgin on how—perhaps that's enough analogy. I rest my case.
Lord Sewel: My Lords, the noble Lords, Lord Mackay of Ardbrecknish and Lord Steel of Aikwood, are both right in that we have not been persuaded. We are maintaining our position. I do not see what is the opposition to closed lists. When one considers the roles of parties it is clear under the present system of first-past-the-post that the parties bring their choice to the electorate and invite it to support a particular candidate. The electorate has no choice or influence in deciding who the candidate will be. But that is not absolutely necessary under the first-past-the-post systems. Indeed, in the United States there is the well-known phenomenon of the primary election, where the supporters of a particular party participate in a primary election in selecting the candidate to carry that party's nomination into the election itself.
If there is to be consistency here, noble Lords opposite should be arguing for the introduction of primary elections into the first-past-the-post system. I have heard no argument along those lines on the number of occasions that we have debated this issue.
If we accept that it is perfectly right and proper for parties to bring candidates to the electorate and offer it no choice under the first-past-the-post system, there is no great case to be made against parties doing the same when we come to a list system. It is perfectly reasonable for the party to make its choice in whichever way it wishes—through the polling of all its individual members, as is the case with the Liberal Democrat party, or through some other means. That is, quite rightly, a matter for the parties.
Lord Mackie of Benshie: My Lords, is the noble Lord saying that in the first-past-the-post system the candidate has no effect? I can assure him that in the Liberal Democrat Party that is not true; the candidate has a tremendous effect.
Lord Sewel: My Lords, I am not saying that at all. I am saying that the electorate has no way of choosing the party's candidates under the first-past-the-post system as it is operated by political parties in this country. I then indicated that that is not absolutely the only way of arranging matters. In the United States, where a first-past-the-post system exists, primary elections also exist which enable individuals, a wider group, to select the party nominee. That is the point that I am making. I then made the further point that I have heard no argument in favour of primaries being introduced into our political arrangements in this country.
If it is proper for parties to bring to the judgment of the electorate individual candidates under the first-past-the-post system, I see no argument in principle why parties should not be able to do exactly the same under a list system and make their own selections and their own ordering however they wish. Quite properly it is a matter for the parties. The parties can choose different ways, but that is what they do. They are

1657
satisfied with their ordering, they take it to the electorate and say, "This is our judgment, do you support us or do you not?" On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Mackay of Ardbrecknish: My Lords, that response was interesting for two reasons. First, we can see that the Government line is consistent between the European Parliamentary Elections Bill and this Bill. Secondly, we received an explanation—which I was delighted to give the noble Lord, Lord Steel of Aikwood, the opportunity of making—of why the Liberal Democrats on Tuesday voted one way and this evening, if there was a vote, they would vote the other way. I suppose one cannot expect much more than that: one attitude on Tuesday and two days later going the opposite way.
As to complaining about me setting myself up to give lectures on PR, I take the view that if I have to be deaved by arguments about PR, then at least I must try to look after the intellectual purity and logic of those who advocate PR—usually at length, as I know to my cost. It seems to be the one thing that goes along with PR. You can really bore for Britain on it. I try not to bore for Britain against it, but it is a great danger.
If people are to move to a new system of voting, there should be an internal logic inside that new system. That is what I am trying to ensure that the Government and their friends in the Liberal Democrat party achieve. If that shows up their new system to be illogical and less than sensible, that might just persuade them that they should stay with first-past-the-post.
The noble Lord the Minister, like his colleague, the noble Lord, Lord Williams of Mostyn, chooses those parts of first-past-the-post he likes in order to defend his new system. In first-past-the-post the electorate are not allowed to choose who the Conservative candidate should be or who the Labour Party candidate should be, so why should they be allowed to do so under a PR system? The difference is this. It is actually quite easy to give them the choice under a PR system whereas, short of primaries, it is not so easy under first-past-the-post.
I am almost tempted to promise to bring forward an amendment to introduce primary elections into this country to see exactly what kind of argument the Minister will then put up in order to knock me down, as I am pretty certain he would. Everyone in the body politic in this country knows that the reason why the governing party does not want open lists is simply that it wants to keep control of who goes on that list and who gets to these two parliaments—in our case, on the top-up. That is what it wants. It does not even want to give its party members any say.
I said on the other Bill that the Liberal Democrats have gone to the most open system, although it does not actually involve all those people who will vote Liberal Democrat. It involves those who have paid their membership. As far as concerns the Scottish parliament, all the candidates for our list will have had to be adopted by a constituency for first-past-the-post and they will
1658
therefore have had to be chosen in individual constituencies by the membership in that constituency. So I believe there is perhaps a larger element of party democracy in that system than the noble Lord, Lord Steel, was implying.
Lord Steel of Aikwood: My Lords, will the noble Lord confirm that the party members do not have a vote? It is only those who attend the meetings who have a vote. If that were to happen at elections, we would have a very low turn-out indeed.
Lord Mackay of Ardbrecknish: My Lords, I am not sure that it is only the people who come to the polling station who have a vote. There are some postal votes. I shall be quite open about it. I would have preferred to see us carrying out a postal vote of the membership. My arguments did not prevail for a variety of reasons, but I suspect that the next time round my arguments will prevail because databases will be in existence and my party will be able to do that. I certainly hope that it will. I think it is right and proper and totally consistent with my argument.
I shall not put the matter to a vote tonight because we have already defeated the Government on it. It is now up to the Government to decide in the other place what they are going to do in terms of the European elections. But if—which I suspect is fairly unlikely—they decide to accept the proposition of open lists which your Lordships sent down to them, I shall certainly be returning to this Bill at Third Reading to ask for the same. The Welsh people, I am afraid, will have to live with what they have. However, if the Government decide not to accept the proposition, I shall have to take that into account and consider whether to come back at Third Reading to see if we should do it on the Scottish scene, where I now understand I would have the support of the Liberal Democrats.
I might quite enjoy doing that in order to get it on the voting record that they can vote one way on the same proposition in one Act of Parliament and a different way on another. But perhaps the success the noble Lord, Lord Steel, and I are having this evening in persuading the Government to accept our amendments will persuade me to be more friendly. We had better wait and see. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Calculation of regional figures]:
10 p.m.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 46:
Page 4, leave out lines 11 to 16 and insert ("a regional figure shall be calculated for the purposes of section 7 as follows.

(2A) Where no candidates of the party have been returned as constituency members in a region, the figure shall be the total number of regional votes given for the party in that region.

(2B) Where at least one candidate of the party has been returned as a constituency member in a region, the figure shall be the total number of regional votes given for the party in that region, divided by one more than twice the number of candidates of the party returned as constituency members in that region.").

The noble Lord said: My Lords, in moving Amendment No. 46, I wish to speak also to Amendment No. 47. These two amendments change the divisor. The d'Hondt system is the divisor system which the Government have chosen. I make no great complaint about that. The divisor is used in deciding how many seats a party receives in the top-up. That means that the total is one more than the number of seats it has won—that includes won in the top-up because the calculation changes with each successive seat moving to whichever party wins it. That means that the divisor is literally two, three, four, five. There are two variations here and I make no apology for my pronunciation. There is no value in trying to put on a false French accent. Other noble Lords who wish to show off are free to do so. I am probably safe because the noble Lord, Lord Thomas of Gresford, who chastised me on the last occasion is not here.
Amendment No. 46 is straightforward St. Lague and it means that the divisors go up by one, three, seven, as we proceed. The modified St. Lague is rather more complex and goes up by fractions. It starts at 1.4 and then goes up by the multiples that are in the amendment. I do not wish to go into the arithmetic. The point is that St. Lague and modified St. Lague give advantages to the minority parties. They give advantages to the parties which have not been very successful in first-past-the-post but which have a substantial vote. The d'Hondt system is harsher on minority parties. It favours the big battalions.
The fact is that that will mean in relation to this Bill, at least in next May's election, that it favours the Labour Party and the Scottish National Party. I do not know which one it will favour more. That rather depends on what happens. But undoubtedly, the d'Hondt system will favour the two big battalions.
The point about St. Lague and modified St. Lague is that they will favour the Liberal Democrats and ourselves and, perhaps more important, they will favour the Greens. Frankly, the idea of the Greens winning a seat in this situation is about as unlikely as an independent winning a seat. It may even favour the independents and, given the love affair which the noble Baroness, Lady Ramsay of Cartvale, has with the concept of independents, she at least should be hugely attracted by the idea of selecting either St. Lague or modified St. Lague.
That is the proposition I am putting to the Government. I am asking them why they have chosen d'Hondt. Have they chosen it because they are a big battalion and d'Hondt favours them? If the Government are really serious about a proper balance in the parliament, about helping independents and helping small parties, they should choose St. Lague or modified St. Lague. Why will they not do so? That is a simple question. I hope I receive a simple answer and that that answer is not that they have not chosen it because it does not favour the Labour Party. I beg to move.
Lord Hardie: My Lords, once again I thank the noble Lord for introducing formulae into your Lordships'
1660
House at this time of night. This is not an ideal time at which to discuss the intricacies of different electoral systems.
As the noble Lord pointed out, Amendment No. 46 is what may be described as a pure St. Lague system which is used in New Zealand. I understand that that is regarded generally as being too favourable to small and fringe parties. As a consequence, a modified version of that system was introduced in Scandinavia and that is reflected in Amendment No. 47.
I start by saying that we do not suggest that other systems, including St. Lague or modified St. Lague, are without merit. Indeed, the noble Lord has outlined the advantages of adopting the St. Lague divisor. However, this is not a matter on which we should delay much further your Lordships' consideration of the Bill.
In fairness, the noble Lord accepts that there are genuine arguments in favour of supporting the d'Hondt system other than that it favours the Labour Party. The Government favour the d'Hondt divisor as set out in the Bill not because it favours the Labour Party or the Scottish National Party for that matter. If we apply the various divisors to the results of the last election, I understand that they result in only slight differences. We believe that d'Hondt is simpler to understand and more logical to apply. It is easier to explain to the public and to those who will have to apply it. It has the virtue of being consistent with the approach proposed for the European Parliament elections and the elections to the Welsh assembly. Incidentally, it is also the approach set out in the White Paper.
As I said, we are not suggesting that other electoral divisors are without merit. However, this is the one we have chosen for the reasons I gave. The arguments advanced by the noble Lord do not convince us that they have more to offer than the d'Hondt system.
I can assure the noble Lord that the Government did not select this divisor on the basis that it is better for the Labour Party. The basic election system used in the Bill reflects that recommended by the electoral commission established by the Scottish Constitutional Convention. It is the system which was set out in the White Paper. It produces fair and reasonable results and the Government are not persuaded that we should change the divisor. For those reasons I invite the noble Lord to withdraw his amendment.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the noble and learned Lord for that explanation. On other occasions Scandinavia is held up as a shining beacon. Clearly it is not always a shining beacon and is not always what it is cracked up to be, especially when it comes to St. Lague or modified St. Lague.
I am pleased that the Minister and his advisers have at least worked out the consequences of the two systems and I broadly concur. It is only at this time of night that one could possibly start to discuss matters like this. If we discussed it in the broad light of day, somebody might come along and take us all away. I might say also that a little wine of the country might go down quite well and even improve the debate. As we cannot have that, there we are.

1661
I am satisfied. I felt it was worth returning to the issue. I believe I withdrew it on the last occasion but it was worth getting the Government to put on record why they favoured d'Hondt rather than either of the St. Lague variations. After the election in May, when people make the calculation, we look forward to seeing whether or not the results would have been different or more favourable to the smaller parties if we had chosen either of the St. Lague methods. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 47 not moved.]
Clause 7 [Allocation of seats to regional members]:
[Amendments Nos. 48 to 52 not moved.]
Clause 9 [Regional vacancies]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 53.
Page 5, line 15, leave out ("applies") and insert ("and section (Regional vacancies: election) apply").
The noble Lord said: My Lords, Amendment No. 53 is grouped with Amendments Nos. 54 and 56 to 59. Amendment No. 53 is in fact a paving amendment. The two important amendments are Amendments Nos. 58 and 59. They relate to by-elections.
The Bill as it stands means that if a by-election is called either because of a member dying or resigning—with some qualifications that the Minister has kindly agreed to include; and I thank him for that—the position is filled by the person next on the list who is still a member of the party, is willing to go to the parliament and is in good standing with the party as well. I believe we achieved all those objectives.
The problem arises if, for any reason, the list runs out. That may be particularly true if a party does not put forward all its members. After all, after two years a few may have gone off to do other things. Some may have been offered attractive jobs and feel that a year in the Scottish parliament as top-up is not what they should be doing in the future; they may have been elected to the other place or even to the European Parliament in the interim. It may not happen often, but if we run out of lists, what do we do?
Another question arises if an independent member dies or resigns. As the provisions stand, the seat would remain vacant because that member was an independent. At the risk of being accused again of purity, I suggest that both those eventualities mean that the party balance, which the second vote is intended to maintain or to create, in the parliament would have been destroyed.
That is why I am asking the Government why they are not providing for a by-election, as they have in the European Parliamentary Elections Bill under which there would be a by-election in a similar situation. In fact, that would be a first-past-the-post by-election in a very large constituency. I repeat that that Bill provides for a by-election. I believe that in this Bill there should be such a provision for a by-election in the event of a party running out of names on the list to fill a vacancy.
I have two methods of achieving that end. The first is my favoured solution and it is the most straightforward. We could simply call a by-election across the region on a first-past-the-post basis; each of the parties could put up one candidate; there would be a good scrap and somebody would win.
My second method is more sophisticated. Perhaps it is "purer", if I may put it that way. It is based on the fact that the original intention of the d'Hondt divisor was that such a seat would go to the Labour Party or to an independent if it had been so held previously. Therefore, in the case of a Labour-held seat, if there is a by-election only members of the Labour Party could be put forward as candidates. The electorate would then make a choice. However, I suspect that that is far too complex and far too "pure" and that my rather less pure, but more understandable, first amendment is the better. I suspect that the person who, along with me, drafted this amendment found that, late at night, her sense of humour was getting the better of her! I recognise that there are complications with it.
However, if the seats are to achieve that which they are supposed to achieve and if vacant seats have to be filled later, even if there is a by-election, they should be filled by the party which previously held that seat. I know that the Minister will say that I am right about that argument and that that is why the seat will be left vacant if it cannot be filled from the list. I am getting to know the Government's arguments! I understand them, but I think it is more important to fill the vacancy and to ensure that there are always 129 members of the Scottish parliament.
So, my favoured amendment is Amendment No. 58 which would mean an ordinary by-election and which, as far as the top-up is concerned, would put this Bill on all fours with the European Parliamentary Elections Bill. I beg to move.
Lord Sewel: My Lords, the noble Lord, Lord Mackay, is getting so good at working out the Government's arguments that he may, indeed, be offered a job on the Government Front Bench if he continues in a similar vein for much longer. I believe that the reasons why the Government are opposed to these amendments became clear as the noble Lord tried to advance his argument, particularly in relation to his "pure" version.
The problem is that the list system here is used as a corrective to introduce and to maintain proportionality. That is why this situation is different from what happens in a European parliamentary election. Clearly, if a vacancy occurs, as the noble Lord indicated, the party list is used. That is why we have provided for a list of 12 rather than the nine mentioned by the noble Lord, Lord Steel of Aikwood. That is to ensure that there is every opportunity for the party concerned to be in a position to provide someone who is still ready, willing and able to do the job.
However, if for some reason the party list runs out of candidates and there is a by-election, it is more than likely that the by-election would add to the disproportionality of the parliament. Perhaps I may refer—again, purely hypothetically—to a Conservative

1663
list member in Glasgow. If he were by some act of God to secure election to the other place during his period on the list in the Scottish parliament, a vacancy might well occur. If a by-election arose in the Glasgow list constituency, I suggest it is highly unlikely that the Conservative candidate would be successful. The probable outcome would be to add to the Labour representation. That would have the effect of enhancing the disproportionality within the system.
Although I can understand the attractions of a by-election for the noble Lord, Lord Mackay of Ardbrecknish—namely, that it provides him with the opportunity for a good scrap—I do not think it logically fits the structure that we have whereby the whole list system exists to enhance proportionality and, by definition, gives greater opportunity of election to members of those parties who have not done particularly well through the first-past-the-post system. If you then have a by-election based on first-past-the-post, you are likely to make the problem of disproportionality even worse.
I suspect that the noble Lord, Lord Mackay, is looking through a glass darkly when he proposes his "pure" system; that is, that we have a by-election limited to those candidates put forward by one political party. One would then require a political party to put forward a number of different candidates. That is an interesting idea. I am not quite sure what happens if an independent's place falls vacant. I believe that on reflection it will be clear that one of these proposals is totally bizarre and fanciful and the other works to produce the opposite result to that which the whole corrective principle is there to sustain. On that basis I hope the noble Lord will feel able to withdraw his amendment.
10.15 p.m.
Lord Mackay of Ardbrecknish: My Lords, the trouble with debate is that one can change one's mind during the course of the debate. The noble Lord has persuaded me that Amendment No. 58 is not valid because, as he rightly points out, it could distort party advantage. For example, if, as we hope, a Conservative member or two will be elected in Glasgow in the top-up, and a Liberal Democrat member will be elected in the top-up, and one of them falls by the wayside for whatever reason, a first-past-the-post by-election in Glasgow would be unlikely to produce a victory for either the Liberal Democrats or the Conservatives, unless the world is going to change quite markedly in the next couple of years. Such a situation may well produce a by-election victory for the Scottish National Party, which I suppose none of us would want. Therefore I think the noble Lord has convinced me on that first option.
However, as regards the second option, while I appreciate that a political party would have to put up more than one person, it would be interesting to see how it would attract the votes of the members of the other political parties. I must admit I was quite tempted by that idea. I suppose there is a third option which I may return to later. As we have allowed the parties to put up the candidates for the list, if the list ran out it would not
1664
be all that illogical to allow the party to nominate someone for the vacancy, if we needed to fill the vacancy. Therefore I think there is a third option. However, for the moment I shall withdraw my amendment and contemplate further the question of by-elections and the top-ups. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 54 to 59 not moved.]
Clause 11 [Power to make provision about elections]:
[Amendments Nos. 60 to 63 not moved.]
Clause 14 [Disqualification from membership of the Parliament]:
Lord Selkirk of Douglas Lord Selkirk of Douglas moved Amendment No. 64:
Page 7, line 18, leave out ("is a") and insert ("holds or has held the office of").
The noble Lord said: My Lords, we have touched on this issue before. This amendment relates to the disqualification from membership of the Scots parliament of Lords of Appeal in Ordinary to bring this clause into line with other provisions in the Bill. The point of the amendment is that retired Lords of Appeal in Ordinary or retired judges can sit in the judicial committee of the Privy Council, and those retired judges would on the face of it not be subject to disqualification unless it was the Government's intention to include such office holders under the terms of Clause 14(1)(d) by making reference to them in an Order in Council.
Notwithstanding the practical arrangements which could be designed to make certain that retired judges who were also MSPs would not hear devolution issues, it nevertheless appears illogical in terms of the doctrine of separation of powers to allow that potential overlap. If there is a possibility of retired judges not being excluded from sitting on the judicial committee of the Privy Council, a retired judge who was an MSP could end up deciding a case in which he was legislator and on which he had deliberated earlier. I shall be grateful for the noble and learned Lord's reply.
Lord Hardie: My Lords, the Government are committed to ensuring that membership of the Scottish parliament is open to as wide a range of people as possible while ensuring appropriate disqualifications. In seeking to achieve that, we cannot support any of these amendments.
Before explaining our position in regard to the amendments, I wish to point out that in relation to Amendment No. 65 there is a technical defect in the sense that I suspect the Law Society has briefed the noble Lord with the wrong section of the Act. It should be Section 25 rather than Section 23.
That aside, the position is this. It was necessary in Clause 14 of the Bill to make special provision disqualifying serving Lords of Appeal in Ordinary from becoming MSPs. That reflects the separation between the judiciary and the legislature. The reason it was necessary in Clause 14 to make a specific exception for a serving Lord of Appeal in Ordinary is that there is an exception introduced in Clause 15 for Members of this House, so that Members of this House are not

1665
disqualified—as I am sure the noble Lord will be relieved to know. Without that express disqualification in Clause 14, there would have been nothing else to disqualify Lords of Appeal in Ordinary as they are not covered by the disqualification of judges under the 1975 Act.
I suspect that part of the concern is that past, as well as present, Lords of Appeal and other retired holders of high judicial office may become members of the Scottish parliament and may also be eligible to sit on the judicial committee of the Privy Council to consider devolution vires issues.
With respect, this is a worry without cause. There is quite rightly nothing to stop such well-qualified people from becoming members of the Scottish parliament. Indeed, there may be an advantage in having a retired judge as a member of the parliament, assuming that he or she gained favour with the electorate. However, it is not appropriate or necessary to disqualify them from membership of the parliament simply because it is theoretically possible for them to hear devolution issues in the judicial committee. In fact, some of those retired judges may not even be permitted to sit on the judicial committee because they are not Privy Counsellors. However, the composition of the judicial committee to hear devolution issues will be decided by the senior Lord of Appeal in Ordinary. Clearly, the noble and learned Lord would wish to consider whether it would be appropriate for an eligible member of the committee who was also a member of the Scottish parliament to consider a devolution case. I should expect that he would conclude that that was totally inappropriate.
In the light of that explanation, I invite the noble Lord to withdraw the amendment.
Lord Selkirk of Douglas: My Lords, I am grateful to the Lord Advocate. He is implying that he is giving a clear exhortation to the judge who would decide which Lord of Appeal in Ordinary should appear on the Judicial Committee of the Privy Council that it would be wholly inappropriate if he were also an MSP. In the light of that assurance, I withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 65 not moved.]
Clause 16 [Effect of disqualification]:
Lord Rowallan Lord Rowallan moved Amendment No. 66:
Page 8, line 13, after ("sitting,") insert ("including in consequence of section 141 of the Mental Health Act 1983 (mental illness),").
The noble Lord said: My Lords, this is a probing amendment because I am slightly confused about the provision in Clause 16(4). That subsection deals with the disqualification of people with mental illness and people who are sequestered. It provides that, if a member of the parliament becomes disqualified because of either mental illness or sequestration,
"The seat of a disqualified member of the Parliament is not vacant",
and,
1666
"he shall not cease to be a Member of the Parliament until his seat becomes vacant but … any of his other rights and privileges as a Member of the Parliament may be withdrawn by a resolution of the Parliament".
As I understand it, the seat has a member who is either mentally ill or is sequestered. The sequestered member of parliament is obviously still capable of looking after his constituency until the parliament decides that his rights and privileges should be withdrawn. There is nothing wrong with him other than that he has had a bad business failure of some kind and finds himself with no money. The mentally ill person, on the other hand, is surely totally incapable of looking after his constituency. It strikes me as illogical that the two are tied together. I should like to hear the views of the Government as to whether there should not be an immediate by-election when a member of the parliament becomes mentally ill. I beg to move.
Lord Mackay of Drumadoon: My Lords, I rise briefly to support the probing amendment moved by my noble friend. I suppose it is unlikely that there will ever be recourse to the provisions in Clause 16, and subsection (4) in particular, because one expects that people who are selected as candidates will be in robust good health, that their financial position will have been explored and that we shall therefore not have to face any such difficulties. However, for understandable reasons, the subsection has been included. When I saw my noble friend's amendment I took the opportunity of reading the Notes on Clauses on this clause. It would be extremely helpful if the Minister could set out for the record, for the purposes of anyone who might have to consider the matter in the future, precisely what is intended by these provisions.
Lord Hardie: My Lords, the noble Lord, Lord Rowallan, is correct in his interpretation of the position. If a member were to suffer from a mental illness as defined, there would be a period of six months during which he would remain notionally a member, though he would obviously not be able to participate in the proceedings of the parliament.
The Government cannot accept these amendments. It would put a member of the Scottish parliament to whom Section 141 of the Mental Health Act 1983 may apply in a worse position than a Member of the other place who finds himself or herself suffering from a temporary mental illness. We think that there is merit in ensuring that members of the Scottish parliament receive the full benefit of the Section 141 procedure, as do Members of the other place.
Paragraph 17 of Schedule 8 provides for the application to members of the Scottish parliament of Section 141 of the Mental Health Act 1983, which makes special provision about the vacation of seats of Members of the other place who are detained in mental institutions. Where that section applies to a member of the Scottish parliament, as was observed by the noble Lord, Lord Rowallan, his seat will not be vacated immediately. That will happen only when the procedure provided in Section 141 has been complied with and he continues to be detained after a six-month period.

1667
In the interim, Clause 16(4) provides that disqualification for such an MSP will mean that he is unable to take part in the proceedings for the duration of the disqualification and may have other rights and privileges withdrawn. This reflects the position of Members of the other place to whom Section 141 of the Mental Health Act applies, who will be unable to sit and vote.
Amendments Nos. 66, 67 and 68 would result in the immediate disqualification of a member if Section 141 applied. The member would immediately cease to be a member of the Scottish parliament and the seat would become vacant. The Section 141 procedure in his or her case would be rendered pointless.
I turn to the point raised by the noble and learned Lord. We all hope that Members of this place, the other place and the Scottish parliament will be healthy, but sadly occasionally people suffer from stress and require treatment for that. We consider it is appropriate that Section 141 should apply to members of the Scottish parliament in the same way that it applies to Members of the other place.
The Bill ensures that Section 141 allows a limited time for the member to recover from, say, a temporary breakdown or something of that nature. The six-month period would enable the member to recover and resume his or her seat and continue to represent the constituency. We believe that it is right that the member should not be able to participate in proceedings but may retake his or her seat once the cause of the disqualification is removed. We also consider that the procedures proposed in the amendments are unduly harsh. With that explanation, I invite the noble Lord to withdraw the amendment.
Lord Rowallan: My Lords, I thank the Lord Advocate for his reply, which gives me great comfort. I have a much greater understanding of the situation. I concur with him and hope that it is a situation which never arises. However, we must be certain about it and the Government's position is now on record. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 67 to 69 not moved.]
10.30 p.m.
Clause 18 [Presiding Officer]:
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No.70:
Page 9, line 12, leave out ("Presiding Officer") and insert ("Speaker").
The noble Lord said: My Lords, I beg to move Amendment No. 70. All the amendments in this group in my name simply change the name of the presiding officer to "speaker". I note that grouped with this amendment is Amendment No.143 tabled by the noble Lord, Lord Steel of Aikwood, which does not achieve the same result but looks at the same problem. His amendment suggests that the Scottish parliament should have the right to change the titles of a number of people, including the presiding officer.
I speak to my narrower amendment, which homes in on the presiding officer or speaker. I spoke to this matter at the Committee stage and I do not believe that I received a satisfactory answer. The title "Speaker" comes from a tradition in history that is related entirely to the House of Commons, in that he was the poor soul—it was always a "him"—who had to be dragged to the Chair because he had the job of telling the king that Parliament did not like what he was doing. The king had a habit of shooting the messenger if he did not like the message. Thus, he was speaker to the king for the House of Commons.
But all over the world, especially the English-speaking part of it, the name speaker has come to be used to denote the person who chairs a parliament. The Canadian parliament and the Canadian provinces have speakers. There is no question of those bodies being confused as between the speaker of the Canadian parliament and the speaker of a provincial parliament. Even the Americans use the name. One might have thought that they would have thrown this overboard with the tea, but they did not. One has the Speaker of the House of Representatives, the Speaker of the Senate and speakers of the various state assemblies. It is a title which is worldwide in its application. It refers to federal parliaments and to state parliaments and, as we are looking at what I would call a quasi-federal system, it seems to me that no harm is done by our following in the footsteps of our Commonwealth brothers and sisters.
Whether the Government like it or not, this person will be called by the population and by the press "Speaker". Unfortunately my quote the last time, which I did rather hurriedly, was misunderstood and I shall repeat it. I have a fact sheet from a very sensible organisation in Scotland, Children in Scotland, which looks after children's interests, and indeed I think has some relationships and liaisons with the Scottish All-Party Parliamentary Group for Children. Its fact sheet is not designed for children but for politicians, and makes points to politicians and probably to interested adults in Scotland. This particular fact sheet contains the paragraph:
"Members of the Scottish Parliament will be elected by general election every four years. The parliament will have a Presiding Officer (the Speaker), Ministers, a Clerk, and a First Minister (effectively the Scottish Prime Minister)."
I know how much the idea of a rival Prime Minister in Edinburgh offends the current incumbent of 10 Downing Street, but frankly I do not think that that will cut any ice in Scotland. Quite quickly the Scottish First Minister will be called the Prime Minister.
That is not my problem here. I suggested that he should be called Premier because I thought that might be a little confusing and I understand the sensitivities of the Prime Minister of Great Britain. I was trying to be helpful. I am not always helpful to him but I was trying to be helpful in that regard. Tonight we are looking at the presiding officer—I nearly called him the Speaker. The Government are sticking their heads in the sand about this. If this parliament is to be a proper parliament—and I believe that is what we all intended

1669
it should be—it should be like other proper parliaments in the English-speaking world and be presided over by a Speaker. I beg to move.
Lord Steel of Aikwood: My Lords, like the noble Lord, Lord Mackay of Ardbrecknish, I simply do not understand why the Government are making such a meal of this issue which we discussed at the Committee stage. I agree with him that the replies we had were really totally unsatisfactory.
Amendment No. 143 is slightly different from that of the noble Lord, Lord Mackay, in that I am suggesting that we simply say that the parliament may change any of the titles listed below to whatever it considers more appropriate and that applies from presiding officer down to junior Scottish Minister. I believe that that is what will happen anyway, whatever we decide to do.
I am baffled at the Government's woodenness on this issue. One only has to look at what is happening elsewhere within the United Kingdom. The Government of Wales Act in Section 52 states:

"(1) The Assembly shall elect from among the Assembly members (a) the presiding officer, and (b) the deputy presiding officer.

(2) The offices specified in subsection (1) shall be known by such titles as the standing orders may provide (but are referred to in this Act as the presiding officer and the deputy presiding officer)."

Again, that seems to be making an awful meal of saying that the assembly in Wales and the parliament in Scotland may well decide to call the person the Speaker. But we have precedent already because the Northern Ireland Assembly, unlike these other two, is up and running and I have in my hand a letter with beautiful headed paper from the special adviser to the Speaker. The draft Committee on Standing Orders in the Northern Ireland Assembly provides in paragraph 2 that the presiding officer of the Assembly shall be called Mr Speaker or Madam Speaker and shall be so addressed by Members in all proceedings of the Assembly and shall be so designated in all professional communications. I therefore cannot understand why we are being told what titles we must have here. It should be left to the Scottish parliament.
Look at what is happening in Northern Ireland. They have a Prime Minister, and a Deputy Prime Minister. Mr. Seamus Mallon could not possibly be called Deputy First Minister or, worse, Second Minister. He is called Deputy Prime Minister. Common sense prevails. The Scottish Parliament could decide to use the word "Speaker". As the noble Lord said, it is commonly used throughout the Commonwealth and the remainder of the world. He could be the president; or the convenor, a very good Scottish name. But for goodness sake, why do we not leave it to the parliament to decide?
Lord Monro of Langholm: My Lords, perhaps I may join with the views of my noble friend Lord Mackay and the noble Lord, Lord Steel. The Government have to accept that what they say is what will happen. There is no way of avoiding this. There will be a speaker and that is that. I do not know of any
1670
person, other than the official who carries out general election or by-election responsibilities, who calls himself a presiding officer.
The noble Lord, Lord Steel, mentioned "convenor". That is a good Scottish word. However, it perhaps implies a leader rather than an impartial chairman, which is what the speaker has to be. It would be far better for the Government to accept that "Speaker" will be the terminology in Scotland, as indeed is the word Prime Minister. Whether the Government like it or not, that is what will happen, so we may as well accept it now rather than continue to procrastinate about their providing a better term than "presiding officer". It just will not happen. I hope that the Government will see sense in the amendments.
The Earl of Balfour: My Lords, perhaps I may ask a question on Amendment No. 143, about the words "Scottish Minister". I have never been a Member of another place, but I have always considered from my experience in Parliament that the senior person has usually been referred to as the Secretary of State. Might the title "Secretary of Home Affairs" in respect of the Scottish Parliament be better than the "Scottish Minister for Home Affairs"? I put that forward because I believe that there is something to be said to Amendment No. 143. Perhaps wrongly, I have always felt that a Minister is subordinate to a Secretary of State.
Baroness Ramsay of Cartvale: My Lords, in order to put everyone out of any agony, I have to say that the Government cannot accept these amendments, which attempt to amend the titles given to certain officers by the Bill. The amendment of the noble Lord, Lord Mackay, replaces the title of "Presiding Officer" with that of "Speaker". All these amendments are to that end. The amendment of the noble Lord, Lord Steel, goes a step further and seeks to give the parliament the power to change the titles of various offices, including those of the First Minister and other Scottish Ministers.
By now, noble Lords know well the Government's views on this issue. They are well known. At this late hour I do not intend to rehearse them all at great length. We think that it is important for the sake of legislative certainty and consistency in the law throughout the United Kingdom that the Bill prescribes the titles from the outset.
Noble Lords will agree that it is important that everyone is clear exactly who is being referred to in this legislation, in future legislation and in other formal documents. This will ensure that there is no doubt about who should be carrying out any duties provided for in the Bill. By prescribing simple and straightforward titles, we hope to ensure there is no confusion between offices and positions, so everyone knows where they stand and what are their responsibilities.
The Government believe that these titles are clear and unambiguous and suit the purpose. Perhaps they may lack some of the poetry and historical resonance of the other titles with which noble Lords are familiar. However, we are creating a new parliament, so why should there not be new titles? Indeed, we make no

1671
secret of the fact that we want to avoid any risk of confusion with the established titles used at Westminster and for Ministers in the UK Government.
Much has been made of the unfamiliarity of the titles we are using, but I would submit that that position is changing daily. The titles in the Bill are those that were used in the White Paper and are becoming familiar to people in Scotland and beyond. While they are distinctive from titles used in the UK Government, they are consistent with the titles used in other devolved administrations. For example, the Northern Ireland Bill provides for a presiding officer. That Assembly will also have a First Minister.
Perhaps I may answer some of the points made mainly by the noble Lord, Lord Steel of Aikwood. Clause 14 of the Northern Ireland Bill provides for a First Minister and a Deputy First Minister. These terms have been much in use in the press, especially in the past week. I heard the term First Minister in connection with Mr. Trimble and Deputy First Minister in connection with Mr. Mallon. Therefore, I do not accept that they are not being used in Northern Ireland.
10.45 p.m.
Lord Steel of Aikwood: My Lords, with great respect to the noble Baroness, I quoted from the standing orders of the Assembly, which clearly refer to the Speaker.
Baroness Ramsay of Cartvale: My Lords, I was about to deal with that point. I was talking about the fact that the title Deputy First Minister has recently been used consistently in the media.
The noble Lord asked why we were not providing the Scottish parliament with the same flexibility as the Northern Ireland Assembly. I am sorry to disappoint the noble Lord, but the story is not quite the same as he told it—and it is still unfolding. Clause 31 of the Northern Ireland Bill provides for the election of a presiding officer and the initial standing orders prepared by my right honourable friend the Secretary of State for Northern Ireland refer to a presiding officer. Therefore, the Government are completely consistent.
It is the case perhaps that the Members of the Assembly who are involved in preparing its standing orders are considering using a different title for the presiding officer. That may be a result of electing Members before they have the power. The Bill has not been passed and we will have to wait and see what happens.
Lord Steel of Aikwood: My Lords, with respect, we do not have to wait and see what happens. We know what has happened. The fact is that the committee on standing orders has stated that the presiding officer shall be called Mr. Speaker. He is being called Mr. Speaker in the Assembly, which is already meeting. I have in my hand a piece of notepaper which refers to the Speaker.
Baroness Ramsay of Cartvale: My Lords, with respect, the Assembly is not up and running: it is as a result of having Members elected to the Assembly
1672
before the legislation is in place. I am saying only that we will have to wait and see what happens. The initial standing orders prepared by the Secretary of State for Northern Ireland use the title presiding officer. That is for another day and for other people to sort out. We will then see the result.
I am saying to the noble Lord that it is not an established fact that the presiding officer is being called the Speaker in the Northern Ireland Assembly; it really is not.
Lord Steel of Aikwood: My Lords, the Welsh Bill, which we passed in this House, provides that the assembly shall be known by such titles as the standing orders may provide. It is left to the Welsh assembly so why cannot it be left to the Scottish parliament?
Baroness Ramsay of Cartvale: My Lords, we have switched from the Northern Ireland Bill to the Government of Wales Act and I will deal with that. The Government of Wales Act has a different approach. That Act also prescribes titles for the first secretary and assembly secretaries. It also prescribes the names of some of the assembly's committees. It allows the standing orders to prescribe a different title for the presiding officer and the deputy presiding officer, but I understand that the national assembly advisory group has recommended that the titles should be presiding officer and deputy presiding officers. This will be specified in the standing orders of the assembly, although it can amend them with a two-thirds majority. I do not know why this is so puzzling. We have never said that the Scotland Bill was an exact parallel with the Welsh Act. There are many places where there a great number of differences.
It is my clear impression, unlike that given by some noble Lords opposite, that the media have been very quick to take up the new titles in Scotland. They were certainly picked up very quickly in Northern Ireland, where there is already a First Minister and a Deputy First Minister. The titles are in use. They are being quickly accepted by the public and the media. I am sure that we can expect exactly the same degree of familiarity in Scotland once these offices are occupied.
I believe that those are the main points raised by noble Lords. We have tried to make clear that we are concerned with the certainty that prescription brings, not only in terms of legal clarity and public recognition in Scotland, but also in the rest of the United Kingdom. That outweighs the benefits of the parliament being able to change them. We have tried to strike a balance throughout the Bill between prescription and flexibility. Our general approach has been to try to prescribe the absolute minimum. It is not always easy to agree where that line should be drawn. This is one area where we consider it very important that there should be no vagueness or confusion. Therefore, I ask noble Lords to withdraw their amendments.
Lord Mackay of Ardbrecknish: My Lords, I suppose that the length of the speaking note was in inverse proportion to the content of the argument. I believe that it must have been written by an official who

1673
left the employ of the Scottish Office at five o'clock today and wants his or her own back on the Minister for something. I cannot believe that for the past few minutes I have been listening to such a vigorous defence of such a small point. One would have thought that I was asking the Minister to untangle the whole of this Bill, such was the rigorousness of the defence. I must be missing something about the significance of my amendments. There must be something really deep seated behind them that I and the noble Lord, Lord Steel of Aikwood, have failed to see. I thought that the noble Lord had game, set and match when he read out the letter from Northern Ireland, but it appears that his eyes deceive him and he is unable to match the words that he sees to the words he speaks.
I shall be blunt with the Minister. I thought it was the poorest of poor replies. It is not her fault. She was put up to it by people who, for reasons that I know not, are determined that the Scottish parliament shall not have the same kind of status as regards names as every other parliament has in the English-speaking world. It seems to me that the Labour Party, having decided on a Scottish parliament, is now trying to devalue it. That is what the Government's argument is about.
I shall study the Northern Ireland Bill. I shall talk to my noble friend Lord Cope. I shall look at the Welsh legislation and the letter which the noble Lord, Lord Steel of Aikwood, has. I think that he and I may get together at Third Reading. If we do that, I shall be inviting my noble friends, if the Government do not change their mind on this matter, to vote against them and for an amendment at the very least to give the Scottish parliament the power to make its own decisions about its names. What staggers me is that the Government will not even allow it to do that. I believe that we shall return to this at Third Reading after discussions with the noble Lord, Lord Steel of Aikwood.
Lord Steel of Aikwood: My Lords, before the noble Lord sits down, may I say that I cannot believe that we are going to occupy time at Third Reading on this issue again. I put a simple question: what happens if the Scottish parliament, in its standing orders, does what the others have done and rules that the person presiding over it shall be called The Speaker? What are the Government going to do about it?
Lord Mackay of Ardbrecknish: My Lords, unfortunately, it is Report stage and it is quite difficult. The Minister may wish to intervene. What will happen if the Scottish parliament decides to set up standing orders that run counter to the Act? Can someone answer? No one is going to do so. This issue is of great importance for the status of the parliament. I am amazed at the argument and I will leave it at that. I suspect that we shall return to it, if only to see whether we shall hear the same arguments again, whether better arguments will be brought forward or whether the Government will allow the parliament to do its own thing. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 71.
Page 9, line 12, at end insert—
("() No two of the Presiding Officer and his two deputies may be members of the same political party.").
The noble Lord said: My Lords, I beg to move Amendment No. 71. I am not going to say anything because the Government have tabled Amendment No. 90, which is a linked amendment. I think I am going to achieve my third little victory of the evening.
Lord Sewel: My Lords, it is almost a hat-trick—but not quite. There is a slight difference between us. The amendment of the noble Lord, Lord Mackay of Ardbrecknish, would require the three posts to be held by nominees of different parties; the government amendment requires at least two parties represented in the three posts.
That is for a purely practical reason. We took the view that the possibility could arise in a situation where you had, for instance, two large parties and two small parties; the small parties may not want to tie up one of their members in a virtually non-active role. My amendment is tabled to cope with that situation. It does not preclude all three posts being held by nominees of different parties; it just does not require it because of that slight possibility. I hope that at this stage the noble Lord, Lord Mackay of Ardbrecknish, will feel able to withdraw his amendment. We shall concentrate on Amendment No. 90 later.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the Minister for his explanation of the difference between our amendments. His amendment goes most of the way. My only slight concern is that if we have a coalition the two parties in the coalition could mop up all three posts. I think that would be a breach of at least the intent and the spirit behind the amendment. I think the Minister, if I may put these words into his mouth, is agreeing from a sedentary position that that would be against the spirit of his amendment.
Lord Sewel: My Lords, the noble Lord is right. In a coalition situation it would be a breach of the spirit of the amendment if the two coalition parties took the whole lot. I recognise that.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to the Minister for that assurance. It would be very difficult to write those kind of circumstances into the legislation. We have made progress and I am grateful to the Minister both for tabling his amendment and for his assurances from the Dispatch Box about the Government's intention behind the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 72 to 78 not moved.]
Lord Sewel Lord Sewel moved Amendment No. 79:
Page 9, line 28, at end insert—
("() The validity of any act of the Presiding Officer or a deputy is not affected by any defect in his election.").
The noble Lord said: My Lords, we now begin to turn to an issue which has been of concern to your Lordships' House as we have discussed this Bill through Committee. I refer to the degree of protection afforded to the parliament. We raise it here initially in a relatively modest way. It is dealt with elsewhere, after Clause 36, by Amendment No. 138 which stands in my name. That is a more substantive and substantial issue.
We were particularly struck during earlier debates on this subject by the strength of feeling on all sides of the House that the parliament should be able to go about its business without undue interruption from the courts. We took the message from that that perhaps the Bill did not say quite enough on that score. This group of amendments is the consequence of our further consideration of this point. Amendment No. 138 takes the protection argument further. We think it would be sensible to ensure that the validity of the acts of the various office holders cannot be questioned because of some defect in their appointment; in particular, any defect in any parliamentary proceedings which have to be followed before the relevant appointment.
We have provided such protection for the presiding officer and his deputies, members of the Scottish executive and junior Ministers and the auditor-general. We have also taken the opportunity to recast the provision already in Clause 27(5) to make it quite clear that the intention there is to ensure that an Act of the parliament is not affected by any validity in the proceedings leading to its enactment. As I said, this is the first stage in trying to deal with the problems of protection of the proceedings of the parliament and to avoid undue interference by the courts in the affairs of the parliament. We shall return to these points on a later amendment. This is the beginning. I beg to move.
11 p.m.
Lord Mackay of Drumadoon: My Lords, I very much welcome this amendment and the other amendments with which it is grouped. For reasons which I shall explain at a later stage of Report, I do not feel that they go far enough, but I have no doubt that the amendments are all sensible and welcome. No objection is offered to any one of them.
On Question, amendment agreed to.
Clause 20 [Scottish Parliamentary Corporate Body]:
Lord Sewel Lord Sewel moved Amendment No. 80:
Page 10, line 7, leave out subsection (5).
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendment No. 81:
Page 10, line 16, leave out ("virtue of") and insert ("or under").
The noble and learned Lord said: My Lords, this is a minor and technical amendment to ensure consistency of drafting throughout the Bill, particularly in Clause 60(4). I beg to move.
On Question, amendment agreed to.
Schedule 2 [Scottish Parliamentary Corporate Body]:
Lord Hardie Lord Hardie moved Amendment No. 82:
Page 62, line 35, leave out ("or").
The noble and learned Lord said: My Lords, in moving this amendment, I wish also, with the leave of the House, to speak to Amendments Nos. 83 to 86.
Paragraph 1 of Schedule 2 provides that a person who is appointed to be a member of the SPCB under Clause 20 will cease to hold office when one of three sets of circumstances applies. These are where another member of the Scottish parliament is appointed in his place, where he resigns or where he ceases to be a member of the Scottish parliament otherwise than by virtue of dissolution. The purpose of Amendments Nos. 82 and 83 is to make express provision for the parliament to be able to remove a member of the board from office. This would be by resolution of the parliament and is consistent with the express provisions made for the removal from office of the presiding officer and his deputies.
Amendment No. 84 is a technical amendment in relation to pension provisions for staff of the parliament. The purpose of Amendment No. 85 is to clarify that the SPCB will be able to charge for goods and services provided in performing its functions. For example, such a function could include the provision of catering facilities for members. The purpose of Amendment No. 86 is to make provision for the SPCB to be able to sell goods such as souvenirs to the public and also to provide services to the public. I beg to move.
Lord Mackay of Drumadoon: My Lords, we can once again accept all these amendments without question. I suppose it will be a matter of regret to the MSPs that they have to pay for their food and drink, which I understand to be the purpose of Amendment No. 85, and I wish the shops which will be set up under Amendment No. 86 well and hope that the House whisky is as successful there as it certainly is in your Lordships' House.
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendments Nos. 83 to 86:
Page 62, line 36, at end insert ("Or is removed from office by resolution of the Parliament.").
Page 63, line 14, leave out ("Accordingly,") and insert ("In particular,").
Page 63, line 23, at end insert—
("(aa) charging for goods or services,").
Page 63, line 26, at end insert—
("(2A) The corporation may sell goods or provide services, and may make arrangements for the sale of goods or provision of services, to the public.").
On Question, amendments agreed to.
Lord Hardie Lord Hardie moved Amendment No. 87:
Page 63, line 37, leave out ("proceedings") and insert ("act").
On Question, amendment agreed to.
Lord Selkirk of Douglas Lord Selkirk of Douglas moved Amendment No. 88:
After Clause 21, insert the following new clause—

RECORD AND BROADCASTING OF PROCEEDINGS
(" .—(1) The proceedings shall be recorded by any means which the Parliament thinks fit.
(2) The record made under subsection (1) above shall be capable of being referred to in any proceedings for the purpose of clarifying any ambiguity or lack of clarity in an Act of the Scottish Parliament or any subordinate legislation passed by the Parliament.
(3) The proceedings may be broadcast in any way which the Parliament may agree.").
The noble Lord said: My Lords, this amendment allows for the recording and broadcasting of the proceedings of the Scottish parliament. It provides also authority to allow the rule in Pepper v. Hart, which was in [1993] 1 All England Reports on page 42 regarding references in court to the parliamentary record.
Until that case was decided, the parliamentary record of Hansard could not be referred to for the purposes of explaining an Act of Parliament. That case relaxed the rule and allowed reference to parliamentary materials where the legislation was ambiguous, obscure or led to an absurdity; or where the material relied on consisted of one or more statements by a Minister or other promoter of the Bill together, if necessary, to understand such statements and their effect; and where the statements relied on are clear.
That case was binding on Scotland in respect of Hansard reports alone. Although it is very likely to be extended by analogy to the Scottish parliamentary record, that application will not be automatic and would require to be raised in a case or decided upon by a court.
The consultative steering committee group secretariat hinted at that in its departmental proposals regarding the options for reporting the parliament's procedures when it stated:
"The courts can in certain circumstances refer to Hansard in construing legislation and the Official Report in Scotland may also be used in a similar way post-devolution".
It is surely more appropriate for legislation to deal with that at this point. This amendment is necessary to extend the advantages of Pepper v. Hart to the Scottish parliamentary record and to make absolutely certain that broadcasting and recording of the proceedings of parliament are admissible in court in order to explain what the intention of the legislation both was and is. I beg to move.
Lord Mackay of Drumadoon: This matter was debated in Committee on 14th July. The view was then expressed by the noble and learned Lord, Lord Rodger of Earlsferry, that there may be doubt whether it was necessary to have such a provision on the face of the Bill if the Government could give an assurance that they expected that the court, in the interpretation of any Act, could refer to the proceedings in the Scottish parliament in the same way that courts refer to proceedings under Pepper v. Hart under the present regime.
1678
In reply, the noble and learned Lord the Lord Advocate indicated that that was the Government's position. However, he went on to say:
"The question of interpretation of the Acts of the Scottish parliament will be a matter for the courts. The Scottish parliament itself may pass legislation similar to the Interpretation Act to assist in the interpretation of Acts of Parliament. But unless such provision is made by the Scottish parliament about construing a particular Act or Acts of Parliament, in my submission, the courts would apply the same canons of construction, including reference to the proceedings in parliament in cases of ambiguity. I see no reason for any difference between construing an Act of the Scottish parliament by the courts and an Act of the UK Parliament. In certain limited circumstances, it may well be appropriate to look at the proceedings in the Scottish parliament".—[Official Report, 14/7/98; col. 248.]
Reflecting on what the noble and learned Lord the Lord Advocate said on that occasion, a thought struck me as to whether it would be within the legislative competence of the Scottish parliament to enact legislation indicating how the English courts or the Northern Irish courts could construe Acts of the Scottish parliament because having regard to the provisions of Clause 28(2)(a), there may be an argument that such an interpretation Act would form part of a law of a country or territory other than Scotland.
In reflecting on that, it seemed that there may well be force in the concern that the Law Society expressed, which is along the following lines: that, even though we would expect the Pepper v. Hart approach to be followed by courts throughout the United Kingdom, nevertheless there may be some sense in putting the middle part of this amendment on the face of the Bill. Subsection (1) would be necessary to make subsection (2) work, and subsection (3) would be a matter for the Scottish parliament itself. I have no strong view on that one way or the other, though personally I would wish the proceedings to be broadcast.
I am concerned that, while subsection (2) may come to pass, lying behind this there may be a matter of concern that, if the Scottish parliament is to be given powers to require the Scottish courts to interpret legislation in a way different from the canons of construction that would apply to UK statutes, that could be extended extra-territorially into England, Wales and Northern Ireland. It does not arise directly from the amendment but seems to lie behind it and I invite the noble and learned Lord the Lord Advocate, his colleagues and officials, to reflect on that before the Bill leaves your Lordships' House.
The Earl of Balfour: My Lords, before the Minister replies, perhaps I may say that I feel from what has been said that we must protect the Scottish parliament from being challenged over any question in court. That is where I feel that this is a necessary amendment and am extremely glad that it was tabled.
Lord Hardie: My Lords, we do not consider the amendment to be necessary. As the noble Lord, Lord Selkirk of Douglas, pointed out, the effect of the amendment would be to put into the Bill a provision to allow the record of proceedings to be relied upon by the courts in a Pepper v. Hart-type situation where there is ambiguity in the legislation.

1679
Perhaps I may deal with the point raised by the noble and learned Lord, Lord Mackay of Drumadoon. The position would be that the Scottish parliament could not legislate to have effect south of the Border; it could not affect the English law. However, English courts may well wish to interpret Scottish legislation in certain situations and would apply the canons of construction that apply to the interpretation of legislation of the UK Parliament, including the application of Pepper v. Hart.
In relation to the Scottish courts, the position is as I stated on the last occasion when this was discussed, in July, when the noble and learned Lord, Lord Rodger of Earlsferry, raised this matter. The noble and learned Lord, Lord Mackay of Drumadoon, referred to the passage in Hansard where I set out the position. My position quite clearly is that, in the absence of any legislation by the Scottish parliament affecting interpretation of Scottish legislation, the Scottish courts would follow the canons of construction and would apply the principles of Pepper v. Hart in appropriate cases. Of course the Scottish parliament could legislate to indicate that that was to be excluded in the interpretation of the legislation by the Scottish courts, but that would be entirely a matter for the parliament, just as this Parliament could legislate to change the rules in relation to Pepper v. Hart.
Essentially, what I am saying is that the question of construction of statutes is for the appropriate courts. They would apply the canons of construction with which they are familiar unless they were changed by legislation—either by the UK Parliament in relation to UK legislation or by the Scottish parliament in relation to Scottish legislation. But any interpretation Act of the Scottish parliament could only have effect in relation to Scottish courts. I trust that, with that explanation, the noble Lord will feel able to withdraw his amendment.
11.15 p.m.
Lord Selkirk of Douglas: My Lords, I am puzzled that the Lord Advocate does not feel able to clarify the law in this connection as it appears that he agrees with the principles laid down in Pepper v. Hart for the rest of the United Kingdom—certainly for England—and I do not see what objection there can be to clarifying this point in legislation. A Scots parliament could obviously change the law in the future in this connection if it so wished, and I do not see what objection in principle the Lord Advocate can have. If my noble friend agrees, perhaps we can return to this on Third Reading. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 3 [Standing orders—further provision]:
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 89:
Page 64, line 22, leave out from ("proceedings") to end of line 23 and insert—
("Withdrawal of rights and privileges
The standing orders may include provision for withdrawing from a member of the Parliament his rights and privileges as a member.").
The noble Baroness said: My Lords, I should like to explain the general principle behind Amendments Nos.
1680
89 and 91 to 100. I shall try to do so briefly. I know that this is a big group of amendments, but it takes very much into account our discussions in Committee. I should, of course, be happy to give noble Lords more information about the detail of any of the government amendments, should they wish it.
As I explained when we last debated this schedule in Committee, the Government want to ensure that the parliament puts in place a framework to regulate members' interests. I am sure that the electorate would expect no less. The White Paper made it clear that there would be "minimum requirements" in respect of, among other things, rules about members' pecuniary interests.
These amendments ensure that the parliament is under a basic duty to make provision for the regulation of its members' interests. The parliament will have to make provision for a register of interests that is published and publicly available and for its members to register their financial interests and to declare such interests before taking part in any proceedings of the parliament relating to that matter. The parliament will also be required to make provision prohibiting paid advocacy. These provisions are intended to ensure that all MSPs work in a properly regulated framework which ensures propriety in the conduct of the parliament's business.
Previously, the parliament was to be required to make provision for this in its standing orders. We have been looking carefully at this provision and considered that this could restrict the parliament in what it was able to do; for example, the parliament may want to make provision about a code of conduct for MSPs. This could go beyond what MSPs did in the proceedings of the parliament. That would be outwith the scope of standing orders. These amendments give the parliament the flexibility to address such situations.
Moreover, when this House last considered this schedule, a number of noble and learned Lords expressed concern that provisions relating to criminal offences would be defined in standing orders rather than in legislation. These amendments address that concern. They provide that the parliament must make provision by, or under, an Act of the Scottish Parliament (ASP). That is not to say that standing orders cannot be used at all in the context of provisions about members' interests. It is anticipated that the core provisions would be in the ASP or subordinate legislation under it. But there is no reason why certain procedural matters for example could not be left to standing orders.
We believe that these amendments will assist the parliament in developing a robust and rigorous approach to such matters and I urge noble Lords to support them. I beg to move.
Lord Mackay of Ardbrecknish: My Lords, the noble Baroness will be pleased and probably slightly grateful to hear that we welcome these amendments. They take into account some of the problems raised in

1681
Committee. We on these Benches are grateful to the Government for that and are content to let the amendments pass.
The Deputy Speaker (Lord Cocks of Hartcliffe): My Lords, you will recall that Amendment No. 90 has already been spoken to. With the leave of the House, I shall put Amendments Nos. 89 to 100 en bloc.
Lord Steel of Aikwood: My Lords, before that is done, perhaps I may put one small point on Amendment No. 90. As it refers to the presiding officer, I would like to add one sentence to what I said before about the situation in Northern Ireland because I should have added that the provision that I quoted—I hope that the noble Baroness is listening to me—is a direct lift from the standing orders of the 1973 Northern Ireland Assembly. In addition, I am told that the Minister of State, in the course of official consultations, has confirmed that the term "presiding officer" is a legal one and that it is entirely a matter for the assembly to determine what the presiding officer is actually called. Although I agree that we should pass Amendment No. 90, we cannot leave a situation where the Welsh assembly and the Northern Ireland Assembly can call the person who presides over them whatever they like while the Scottish parliament must do what it is told by this place. That is not a tenable position and it must be put right before we go further with the Bill.
On Question, amendment agreed to.
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 90:
Page 64, line 34, at end insert—
("The Presiding Officer and deputies
The standing orders shall include provision for ensuring that the Presiding Officer and deputies do not all represent the same political party.").
On Question, amendment agreed to.
Clause 22 [Members' interests]:
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendments Nos. 91 to 100:
Page 10, line 25, leave out from beginning to ("in") in line 35 and insert—
("(1) Provision shall be made for a register of interests of members of the Parliament and for the register to be published and made available for public inspection.
(2) Provision shall be made—

(a) requiring members of the Parliament to register in that register financial interests (including benefits in kind), as defined for the purposes of this paragraph,

(b) requiring that any member of the Parliament who has a financial interest (including benefits in kind), as defined for the purposes of this paragraph,").

Page 10, line 38, leave out from beginning to ("for") in line 39 and insert ("Provision made in pursuance of subsection (2) shall include any provision which the Parliament considers appropriate").
Page 10, line 40, leave out from ("with") to second ("in") in line 41 and insert ("an interest defined for the purposes of subsection (2)(a) or (b)").
Page 10, line 43, leave out ("Standing orders shall include provision") and insert ("Provision shall be made").
Page 11, line 3, leave out ("standing orders") and insert ("provision").
Page 11, line 8, leave out ("Standing orders may include provision") and insert ("Provision made in pursuance of subsections (2) to (4) shall include any provision which the Parliament considers appropriate").
Page 11, line 10, leave out from ("of') to end of line 11 and insert ("those subsections").
Page 11, line 15, leave out ("subsections (1) to") and insert ("subsection (2) or").
Page 11, line 20, after ("section,") insert—

("(a) "provision" means provision made by or under an Act of the Scottish Parliament, and

(b)").

Transpose Clause 22 to after Clause 36.
On Question, amendments agreed to.
Baroness Amos: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly and, on Question, Motion agreed to.

Human Rights Bill [H.L.]
Returned from the Commons with the amendments agreed to with amendments and with a privilege amendment. The Commons amendments ordered to be printed.
House adjourned at twenty minutes past eleven o'clock.