HL Deb 22 October 1998 vol 593 cc1567-76

3.38 p.m.

Report received.

Clause 1 [The Scottish Parliament]:

Lord Simon of Glaisdale moved Amendment No. 1:

Page 1, line 15, leave out subsection (4).

The noble and learned Lord said: My Lords, I beg to move Amendment No. 1, which leaves out subsection (4) on the ground that it is obviously unnecessary. The subsection provides that: The validity of any proceedings of the Parliament is not affected by a vacancy in its membership". Nobody in his senses supposes that parliamentary proceedings become invalid during a by-election. A similar point arises with Amendment No. 69 to Clause 16, which is concerned with disqualification rather than vacancy.

I must at the outset apologise for the state of my voice. I hope that it will serve for the argument. If not, I am encouraged by the presence of the noble and learned Lord, Lord Mackay of Drumadoon, because my amendment repeats one tabled by him in Committee. I spoke in support of it and was expecting an answer to the points that I made. It was only after two-and-a-half months of silence and an inability to contact the noble and learned Lord, Lord Mackay of Drumadoon, that I tabled Amendment No. 1.

Subsection (4) is a perfectly unnecessary provision because no sane person supposes that a vacancy in membership, resulting from a by-election, say, invalidates the proceedings. In fact, in this case there is an additional point, to which I shall turn in a moment. The amendment raises the following question. Are we going to continue to clutter up the statute book in order to anticipate any argument, however futile?

That causes me to consider what has happened to the statute book in recent decades. The noble Lord, Lord Renton, who is in his place, will not be surprised to hear me refer to his Committee on the Preparation of Legislation. It reported in 1975 and criticised the prolixity of the statute book, which was then three volumes of public and general Acts. Within a few years, notwithstanding what the Renton Committee had stated, it had increased to five volumes. The format was then enlarged, to the extreme inconvenience of those who had had bookcases made for the smaller volumes. However, no doubt that did not matter to the various government departments which could have larger bookcases made. In spite of the fact that that larger format enabled the volumes to be reduced to three, they have subsequently again increased to five and I should be very surprised if this year there were not more. Why is there this prolixity, only one aspect of which is highlighted by the amendment?

Your Lordships may remember a letter written by George Bernard Shaw in which he apologised for its length on the ground that he had no time to write a shorter one. That is the same in parliamentary drafting. It takes time to economise in drafting. The parliamentary draftsmen, particularly this year, have been under exceptional pressure, and it is very much easier to repeat formulas which have been used in the past—however inappropriately in the past and still more inappropriately in the present—than to try to pare down.

Similarly, officials wish to cover every single point. That matter was referred to specifically by the Renton Committee, quoting a memorandum from two eminent Scottish lawyers, my noble and learned friend Lord Emslie and the late Lord Wheatley who at the time were respectively Lord President and Lord Justice Clerk. No notice has been taken of that, so we ask why parliamentary counsel have not been told to economise. Why has not the pressure been taken off them to enable them to do so? The answer is that no one is effectively responsible to parliamentary counsel as a whole. In theory, they are directly responsible to the Prime Minister, but the Prime Minister has things to do other than worry about the details of drafting.

A few years ago, Sir Robert Andrew, an eminent former civil servant, was appointed to consider the government legal services and he made a great number of recommendations. One was that parliamentary counsel should be responsible to the Law Officers. Of all his recommendations, that was the only one that was not accepted. Anyone who has knowledge of Whitehall can imagine the manoeuvres and pressures which led to that exception.

As it is, all that we have is that the draftsman of a particular Bill is responsible to the Minister in charge of it. When the Minister is a layman, naturally, he will immediately accede to the argument of counsel that such and such has been done previously and that such and such is desirable, even if not strictly necessary, in order to obviate an argument. I believe that to be the case here.

The noble and learned Lord the Lord Advocate, who I apprehend will reply, will perhaps confirm whether my recollection is correct. It fits in with the letter I received a few days ago and which, unfortunately, crossed one of mine. We both know where the other stands. I repeat that, effectively, a lay Minister is in the hands of counsel.

Since I entered the other place in 1951 I have known only one Minister who insisted on having his way in paring down drafting. As he generally operated in the small hours of the night that was not very popular with parliamentary counsel. I believe that the noble Lord, Lord Renton, will know to whom I refer. He is no longer alive—that is to say, Lord Duncan-Sandys is no longer alive—but happily the noble Lord is still alive. It is only when there is a lawyer that parliamentary counsel can be effectively challenged and perhaps still more when a Law Officer, as in the present case, is in charge of the Bill. An exceptional burden of responsibility lies on a Law Officer because he is not purely a partisan spokesman of the Government. He owes a duty to the House in which he sits to put the law impartially and accurately. Those of us who heard the noble and learned Lord the Lord Advocate speak of his duty in relation to the Lockerbie prosecution will have no doubt that he stands firmly in the best tradition in that respect.

The argument in favour of the subsection is quite absurd because no sensible person has ever supposed that a parliamentary by-election—and that is what we are concerned with here—invalidates the proceedings of Parliament. But there is an exceptional case in the present Bill. Clause 8(4) states: The election shall not be held if the latest date for holding the poll would fall within the period of three months ending with the day on which the poll at the next ordinary general election would be held'", and is followed by some immaterial words. In other words, if the argument in favour of retaining the subsection in Clause 1 is right, it means that there are three months during which Parliament is totally incapable of activity providing that there is a vacancy or disqualification during that period. I owe that point to my noble and learned friend Lord Brightman. I hope that he will speak on this amendment. It is a clinching argument.

I said that nobody in his senses could argue that a by-election invalidates the proceedings of Parliament. I go further. In the light of Clause 8(4), anybody who so argues would have to be hurried off rapidly to a mental hospital.

I now deal with the arguments of the noble and learned Lord the Lord Advocate which I received a day or so ago. They are in answer to questions that I asked on 16th and 30th July. When I heard nothing in all that time I suspected that I could hear distantly the sound of entrenching tools in Whitehall and so it appeared when I received his letter. The first thing he states is that there are precedents. So there are. This provision occurs in other statutes and all except one appear in schedules where they were not noticed. In any case all the statutes, including the latest, dealt with corporations aggregate. But the Scottish parliament is not a corporation aggregate. As the noble and learned Lord the Lord Advocate pointed out in his letter clearing up the confusion, the Scottish parliament is an unincorporated association. So no precedent applies.

The second argument is that the parliament is defined as having a particular number of members. I suppose the argument might be put forward that the absence of one of those members invalidates the proceedings. But the House of Commons also has a specified number of Members. That cannot be exceeded because it is governed by the various electoral Acts. As I say, nobody has been sufficiently off his head to argue that the proceedings of the House of Commons are invalid during a by-election.

Filled with enthusiasm, the noble and learned Lord went on to say that that argument could not be put forward in relation to the House of Commons because it would be precluded by the Bill of Rights. But that will not do. All that that Bill says is that proceedings in Parliament may not be questioned out of Parliament. So I ask the noble and learned Lord specifically whether anybody in Parliament has ever been so foolish as to argue that a by-election brings the validity of its proceedings to an end. I hope that I have dealt with all his points. I believe that I have. If I have not, no doubt he will develop them. I press this amendment. Unless we make a stand at last on a perfectly plain issue, we will continue at great expense and inconvenience in allowing the statute book to grow and grow. I beg to move.

The Earl of Mar and Kellie

My Lords, these amendments are tempting because their proposer, the noble and learned Lord, is usually correct in seeking to delete unnecessary words. On the face of it the two subsections seem to be unnecessary. I recall my initial surprise at finding them in the Bill at all. They seem to clarify a matter which I did not think was in doubt but now, recognising that the Scottish parliament will be a creature of statute and possibly subject to judicial review in some form, I feel that their inclusion in the Bill will be helpful. Without these words there could be doubt and opportunities for mischief-making by people who oppose the existence of the Scottish parliament. Their deletion would allow such opportunities for a judicial process rather than securing the successful launch of the Scottish parliament. Indeed, their deletion today could send an unhelpful signal to mischief-makers. Therefore, I believe that these tempting amendments should not be supported.

4 p.m.

Lord Brightman

My Lords, I strongly support this amendment. How can it seriously be contended that the legislative assembly of a country can be brought temporarily to a standstill because a member has died or chosen to resign? It is bad policy to build unnecessary clauses into a Bill for the avoidance of untenable doubts. If we do not get rid of this dead wood parliamentary drafting will become ossified. If we carry this matter further, I hope that your Lordships will support the crusade to get rid of this totally unnecessary subsection.

Lord Mackay of Drumadoon

My Lords, I rise to support this amendment. I wish to make it clear that, although my name is not on the amendment, that does not in any way signify a lack of support for the idea. I am told that my name is on the amendment. That shows that I support it subconsciously as well as consciously.

The idea in the amendment was raised, first, in the Government of Wales Bill, when the noble and learned Lord, Lord Simon of Glaisdale sought—without any success—to persuade the Minister's Welsh colleagues of the validity of his argument. As the noble and learned Lord rightly said, the physical size of public general statutes increases year-by-year. They creep along my bookcase in a horizontal direction just as my neighbour's Leylandii hedge creeps upwards year-by-year. It is a major problem. When one looks at the statute and tries to identify the relevant subsections, there are occasions when the verbiage gets in the way.

When this matter was last debated, I drew attention to the provisions of Clause 8(4) and argument upon which the noble and learned Lords, Lord Simon of Glaisdale and Lord Brightman, have also commented. It is quite inconceivable that this argument could be advanced. I have the benefit of a copy of the letter which the noble and learned Lord the Lord-Advocate sent to the noble and learned Lord, Lord Simon of Glaisdale, and I remain unpersuaded that this is a serious question. It is a small matter on which to take a stand, but there is no doubt that this is a suitable opportunity to take a stand. I wish the noble and learned Lord the Lord Advocate to be aware that if the noble and learned Lord, Lord Simon, presses the matter to a Division, we on these Benches will support him.

The Lord Advocate (Lord Hardie)

My Lords, having heard the very able speech by the noble and learned Lord, Lord Simon of Glaisdale, I was tempted to concede the amendment. However, I should advise your Lordships that, in the light of the debate in Committee, we have looked very closely and carefully at Clause 1(4), and, as my letter to the noble and learned Lord, Lord Simon of Glaisdale, outlined, we remain of the view that it would be better to retain this subsection.

Indeed, the concerns frequently expressed at various points during the Committee stage, from all sides of the Committee, that proceedings of the parliament might be too vulnerable to legal challenge, reinforces our view that Clause 1(4) and Clause 16(5) offer wise protections and should stand.

Before going further, I should confirm that, as the noble and learned Lord, Lord Simon of Glaisdale, has properly understood, it is our position that the Scottish parliament will be an unincorporated association created by statute. I should like to correct something that I said in the earlier debate. It was my understanding that the Westminster Parliament was a corporation sole. I am afraid that that understanding was incorrect, as I indicated in my letter, and I believe that the Westminster Parliament is not a body corporate in any form. As I mentioned in my letter to the noble and learned Lord, I regret if any of my comments in Committee were misleading in any material way.

The issue raised by the noble and learned Lord, Lord Simon, in these amendments is undoubtedly important. I share the view that the statute should not be cluttered up with unnecessary provisions. These amendments raise the issue of the necessity of the provisions in question. They are essentially simple provisions which are concerned with the balance of risk. However small we may perceive the risk to be of an argument along the lines being advanced, if the judgment is wrong the consequences would be very serious for the operation of the parliament. I am sure that the sensible path is to retain this provision. The essential point is that if we omit these provisions now we will increase—as the noble Earl, Lord Mar and Kellie, said—the scope for mischief and the scope for such arguments.

As I suggested in my letter to the noble and learned Lord, Lord Simon, we think that the relevant question is: what constitutes the body of persons which is capable of taking a vote on a matter within the parliament? The parliament will be an unincorporated association of persons which is to be defined in statute as having a specified number of members. If the association is defined by a particular membership and the membership is not complete, that raises the question of whether or not there is then a validly constituted association in existence.

Lord Simon of Glaisdale

My Lords, will the noble and learned Lord address that argument in relation to the House of Commons, which is also a specified number?

Lord Hardie

My Lords, I was intending to do that. With the leave of the House, I shall deal with that in due course.

If the association is not defined in this way, there is no such association capable of taking a vote on any matter and questions of majorities or minorities become irrelevant. For that reason I am not persuaded that it is necessarily the case that the provisions of Clause 1(4) do no more than confer a protection on the parliament which would be recognised at common law.

Turning to the point which the noble and learned Lord, Lord Simon, raised a few minutes ago—the comparison with Westminster and the House of Commons—I do not consider that comparisons with Westminster in this connection are apt. Westminster, the House of Commons, is not a creature of statute, whereas, what we are talking about here—

Lord Simon of Glaisdale

My Lords, I am obliged to the noble and learned Lord for his patience. Would the noble and learned Lord care to consider then various other parliaments in former dependencies which have been set up by statute?

Lord Hardie

My Lords, the question of other parliaments in other dependencies may not be a fair comparison. The question here is that this Parliament is currently establishing through this Bill—which we hope eventually will become an Act—a creature of statute: namely, the Scottish parliament which will derive its powers from the Bill we are enacting. In other words, the Scottish parliament will be a statutory body. If one looks at other such statutory bodies which this Parliament at Westminster has created, one finds similar provisions.

My letter to the noble and learned Lord gave some examples in recent years of different statutory bodies. In addition, Section 1 of the Government of Wales Act contains a similar provision. There was a similar provision in Section 18(6) of the Government of Ireland Act 1920. A reasonable comparison might well be local government because local authorities are statutory bodies which are carrying out functions, albeit at a lower level than the Scottish parliament will. Paragraph 9 of Schedule 7 to the Local Government (Scotland) Act 1973 has a similar provision. That provision was not repealed when local government re-organisation recently took place. I have quoted a sample of statutory bodies from recent times but I am advised that they are dotted through history and that similar provisions exist.

Against that background, if this provision were omitted from the Scotland Bill, it could be argued that Parliament intended a different situation to prevail regarding the Scottish parliament. I am sure your Lordships would accept that that would lead to an unsatisfactory situation. I take the point that the effect of Clause 8(4) would be that the parliament was frustrated during this three-month period pending an election. Although that would appear to result in an absurd and totally unacceptable situation, nevertheless, in view of the other examples where statutory bodies have had a specific provision inserted into their legislation enabling them to continue, albeit that there is a vacancy, on balance—I hope I have explained to your Lordships that this is a question of balance—we consider that this provision ought to remain in the Bill. In those circumstances, I invite the noble and learned Lord to withdraw his amendment.

Lord Simon of Glaisdale

My Lords, I am grateful to the noble and learned Lord for replying to the debate. He gave every impression of being convinced himself of what he was saying. I do not know how many other noble Lords were convinced. He again relied on precedent—local government Acts. As I pointed out, they were all made corporations aggregate, as was the Welsh Assembly. They provide no reason at all for a parliament such as this, an unincorporated body, to be interfered with in this way. The argument would not stand for a moment. I am fortified by the weighty opinions of my noble and learned friend Lord Brightman and the noble and learned Lord, Lord Mackay of Drumadoon. It really will not do to go on saying that there is a precedent, because every time we yield to that we make it more difficult to be sensible the next time and more difficult to eradicate something that is completely unnecessary.

The noble and learned Lord referred to the precedent of paragraph 9 of Schedule 7 to the Local Government (Scotland) Act. One wonders how much parliamentary attention was directed to paragraph 9 of the seventh schedule to the Local Government (Scotland) Act. Of course it ought to have been, but I am prepared to bet that it passed through pretty late at night without anyone paying attention to it. Moreover, all the other provisions referred to were in schedules.

I understand that the noble Earl, Lord Mar and Kellie, does not support the amendment. I confess that that surprised me greatly because a similar amendment was supported by the noble Lord, Lord Steel of Aikwood, when the matter was raised in Committee. I hope that the hyphen between "Lib" and "Dem" is not becoming too pronounced. On the other hand, your Lordships have heard from great lawyers that this provision is unnecessary.

Normally, it is quite unsuitable to divide on a drafting point because so many of those who will vote will not have heard the arguments. But unless we do at last make a stand, we shall go on having the statute book inflated and inflated. The Government are in favour of bearing down on inflation everywhere except when it comes to the verbosity of the statute book. So I will, with respect, ask your Lordships to show the flag and to show where we stand on this matter.

4.16 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 90; Not-Contents, 132.

Division No. 1
CONTENTS
Ackner, L. Gainford, L.
Allenby of Megiddo, V. Gladwyn, L.
Alton of Liverpool, L. Gormanston, V.
Ashbourne, L. Greenway, L.
Astor of Hever, L. Hambro, L.
Attlee, E. Hayhoe, L.
Brabazon of Tara, L. Headfort, M.
Brightman, L. Holderness, L.
Burnham, L. Hylton, L.
Butterworth, L. Hylton-Foster, B.
Campbell of Croy, L. Jenkin of Roding, L.
Carnegy of Lour, B. Kenyon, L.
Chalker of Wallasey, B. Kingsland, L.
Charteris of Amisfield, L. Kintore, E. [Teller.]
Cooke of Thorndon, L. Knollys, V.
Courtown, E. Lauderdale, E.
Craigavon, V. Long, V.
Cranborne, V. McConnell, L.
Cross, V. Mackay of Ardbrecknish, L.
Cullen of Ashbourne, L. Mackay of Drumadoon, L.
Davidson, V. Molyneaux of Killead, L.
De Freyne, L. Monro of Langholm, L.
Denham, L. Monteagle of Brandon, L.
Dixon-Smith, L. Montrose, D.
Downshire, M. Mowbray and Stourton, L.
Dudley, E. Moyne, L.
Dundee, E. Murton of Lindisfarne, L.
Ellenborough, L. Naseby, L.
Elliott of Morpeth, L. Norton of Louth, L.
Elton, L. Patten, L.
Erne, E. Pearson of Rannoch, L.
Erroll, E. Peel, E.
Ferrers, E. Rankeillour, L.
Renton, L. Sudeley, L.
Romney, E. Swinfen, L.
Rotherwick, L. Teviot, L.
Rowallan, L. Thomas of Gwydir, L.
St. John of Fawsley, L. Thurlow, L.
Selkirk of Douglas, L. Trefgarne, L.
Sempill, L. [Teller.] Vivian, L.
Shannon, E. Warnock, B.
Shaughnessy, L. Weatherill, L.
Simon of Glaisdale, L. Wharton, B.
Stair, E. Wilberforce, L.
Strafford, E. Wilson of Tillyorn, L.
NOT-CONTENTS
Addington, L. Harris of Greenwich, L.
Ahmed, L. Hayman, B.
Alli, L. Hilton of Eggardon, B.
Amos, B. Hollis of Heigham, B.
Archer of Sandwell, L. Hoyle, L.
Ashley of Stoke, L. Hughes, L.
Avebury, L. Hughes of Woodside, L.
Bach, L. Hunt of Kings Heath, L.
Bassam of Brighton, L. Irvine of Lairg, L. [Lord Chancellor.]
Bath, M.
Beaumont of Whitley, L. Jay of Paddington, B. [Lord Privy Seal.]
Berkeley, L.
Blackstone, B. Jenkins of Putney, L.
Blease, L. Lester of Herne Hill, L.
Borrie, L. Levy, L.
Brooke of Alverthorpe, L. Lockwood, B.
Bruce of Donington, L. Lovell-Davis, L.
Calverley, L. Ludford, B.
Carlisle, E. Macdonald of Tradeston, L.
Carmichael of Kelvingrove, L. McIntosh of Haringey, L. [Teller.]
Carter, L. [Teller.]
Castle of Blackburn, B. Mackenzie of Framwellgate, L.
Christopher, L. Mackie of Benshie, L.
Clarke of Hampstead, L. McNair, L.
Cledwyn of Penrhos, L. McNally, L.
Clement-Jones, L. Maddock, B.
Clinton-Davis, L. Mar and Kellie, E.
Cocks of Hartcliffe, L. Merlyn-Rees, L.
Crawley, B. Merrivale, L.
David, B. Methuen, L.
Davies of Coity, L. Miller of Chilthorne Domer, B.
Davies of Oldham, L. Milner of Leeds, L.
Dean of Thornton-le-Fylde, B. Mishcon, L.
Dholakia, L. Molloy, L.
Diamond, L. Monkswell, L.
Dormand of Easington, L. Montague of Oxford, L.
Dubs, L. Morris of Castle Morris, L.
Evans of Watford, L. Murray of Epping Forest, L.
Ezra, L. Newby, L.
Falconer of Thoroton, L. Ogmore, L.
Falkland, V. Paul, L.
Farrington of Ribbleton, B. Plant of Highfield, L.
Fitt, L. Ponsonby of Shulbrede, L.
Gallacher, L. Prys-Davies, L.
Gilbert, L. Ramsay of Cartvale, B.
Gladwin of Clee, L. Randall of St. Budeaux, L.
Goodhart, L. Razzall, L.
Gordon of Strathblane, L. Rea, L.
Goudie, B. Rendell of Babergh, B.
Gould of Potternewton, B. Rodgers of Quarry Bank, L.
Graham of Edmonton, L. Rogers of Riverside, L.
Grenfell, L. Russell, E.
Hacking, L. Russell-Johnston, L.
Hamwee, B. Sainsbury of Turville, L.
Hanworth, V. Sawyer, L.
Hardie, L. Scotland of Asthal, B.
Hardy of Wath, L. Serota, B.
Sewel, L. Thomas of Walliswood, B.
Sharp of Guildford, B. Thomson of Monifieth, L.
Shepherd, L. Thornton, B.
Shore of Stepney, L. Thurso, V.
Turner of Camden, B.
Simon, V. Uddin, B.
Smith of Clifton, L. Wallace of Saltaire, L.
Smith of Gilmorehill, B. Whitty, L.
Stallard, L. Wigoder, L.
Strabolgi, L. Williams of Elvel, L.
Symons of Vernham Dean, B. Williams of Mostyn, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.25 p.m.

Lord Mackay of Ardbrecknish moved Amendment No. 2:

After Clause 1, insert the following new clause—