HL Deb 22 October 1998 vol 593 cc1640-77

Consideration of amendments on Report resumed.

Clause 3 [Extraordinary general elections]:

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 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 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 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 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, 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.

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 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.

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 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 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 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 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 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 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 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 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 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 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 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.

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' 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.

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 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 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 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 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 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 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, 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.

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 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 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. "(1) The Assembly shall elect from among the Assembly members (a) the presiding officer, and (b) the deputy presiding officer.
  2. (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 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 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 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 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 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 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 moved Amendment No. 80:

Page 10, line 7, leave out subsection (5).

On Question, amendment agreed to.

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 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 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 moved Amendment No. 87:

Page 63, line 37, leave out ("proceedings") and insert ("act").

On Question, amendment agreed to.

Lord Selkirk of Douglas moved Amendment No. 88:

After Clause 21, insert the following new clause—