Scotland Bill

HL Deb 28 October 1998 vol 593 cc2003-37

8.46 p.m.

Consideration of amendments on Report resumed on Clause 31.

Lord Sewel moved Amendment No. 124: Page 16, line 4, leave out ("Standing orders shall ensure that,") and insert ("The Presiding Officer shall not submit a Bill in its unamended form for Royal Assent").

On Question, amendment agreed to.

[Amendment No. 125 not moved.]

Lord Sewel moved Amendment No. 126: Page 16, line 5, leave out ("a Bill or any provision of a Bill") and insert ("the Bill or any provision of it").

On Question, amendment agreed to.

Lord Hardie moved Amendment No. 127:

Page 16, line 6, leave out from ("Parliament,") to end of line 7 and insert ("or (b) a reference made in relation to the Bill under section 32 has been withdrawn following a request for withdrawal of the reference under section (ECJ references)(2)(b)").

The noble and learned Lord said: My Lords, in speaking to this amendment, with the leave of the House I wish also to speak to Amendments Nos. 132 and 136.

The Government consider that these amendments are necessary to ensure that Bills of the Scottish parliament are not unduly delayed. There may be cases where a law officer has referred a question of whether a Bill is within the legislative competence of the parliament to the Judicial Committee of the Privy Council, and the Judicial Committee decide in turn that it wants to refer the issue to the European Court of Justice for a preliminary ruling on some question of Community law. If the Judicial Committee made such a reference, the Bill could not, of course, be submitted for Royal Assent until the reference had been disposed of by the ECJ and by the Judicial Committee. Indeed, it might face quite a considerable delay while the ECJ was considering the issue.

These amendments provide that, if such a reference had been made, the parliament would be able to resolve to reconsider the Bill. Amendment No. 132 provides that, if the parliament resolved to reconsider a Bill, the presiding officer would be required to notify the law officers and the law officer who made the reference to the Judicial Committee would be required to request the withdrawal of the reference. Amendment No. 136 adds to the limited circumstances in Clause 34 in which the parliament can reconsider a Bill.

However, the parliament would not simply be able to reconsider the Bill, pass it and have the presiding officer submit it for Royal Assent. Amendment No. 127 introduces an appropriate safeguard to prevent this happening. The parliament would be required to amend the Bill before it could be submitted for Royal Assent. At that stage a law officer could again refer the matter to the Judicial Committee if he considered that there was still a question as to whether the Bill was within the legislative competence of the parliament. We consider this to be a common sense approach. It prevents Bills being held up for considerable periods of time if the Judicial Committee refers a question to the European Court of Justice by giving the parliament power to reconsider them and removing the objection which prevents them from being submitted for Royal Assent. I hope that noble Lords agree that this is a sensible provision. I ask them to support the amendment.

The Earl of Balfour

My Lords, I should like to make one small appeal. I dislike abbreviations such as ECJ. I believe that its full title should be spelt out. When I was at school or in my younger days rpm always meant revolutions per minute and then it became retail price maintenance. There are other examples of that kind. I dislike abbreviations, and that is my only appeal in this case.

Lord Hardie

My Lords, I am happy to take on board that point.

On Question, amendment agreed to.

[Amendment No. 128 not moved.]

Clause 32 [Scrutiny of Bills by the Judicial Committee]:

Lord Mackay of Drumadoon moved Amendment No. 129:

Page 16, line 12, at beginning insert ("The Presiding Officer,").

The noble and learned Lord said: My Lords, this matter has already been spoken to. I beg to move.

Lord Sewel

My Lords, when we discussed Amendment No. 121 I indicated that the Government had been persuaded by the arguments advanced by the noble and learned Lord at that stage. I also indicated that all good things had to come to an end. As to Amendment No. 129, we have not been persuaded by the arguments of the noble and learned Lord. Clause 32 currently provides that the law officers of the United Kingdom government and the Scottish executive can make reference to the Judicial Committee if they consider that a Bill, or any provision of it, is outwith the legislative competence of the parliament. It would not be appropriate for the presiding officer to be able to make such reference. Such references are to be made in a four-week period once a Bill has been passed by the parliament.

Clause 31 provides that the presiding officer is required to decide whether a Bill is outwith the competence of the parliament. In reaching that decision he will no doubt want to take appropriate legal advice. It would not be appropriate to give him a role at the end of the process. Quite properly this role is confined to the law officers of the two administrations. Therefore, he has a role to play at the beginning of the process and the law officers have a role to play at the end. I do not believe that we should confuse the two. I am afraid that the Government are not persuaded by the arguments of the noble and learned Lord and I hope that he will feel able to withdraw his amendment.

Lord Mackay of Drumadoon

My Lords, the noble Lord has persuaded me that I should have drafted an additional consequential amendment to take account of the point that he makes; but he has not persuaded me on the fundamental issue that as currently drafted the presiding officer has a very important role to play in assessing whether a Bill is within or without the legislative competence of the parliament. This is a matter of importance and I seek to test the opinion of the House.

8.53 p.m.

On Question, Whether the said amendment (No. 129) shall be agreed to?

^*Their Lordships divided: Contents, 39; Not-Contents, 86.

Division No. 1
CONTENTS
Attlee, E.	Lyell, L.
Balfour, E.	Mackay of Ardbrecknish, L.
Belstead, L.	Mackay of Drumadoon, L.
Broadbridge, L.	Mancroft, L.
Brougham and Vaux, L.	Middleton, L.
Byford, B.	Montrose, D.
Carnegy of Lour, B.	Northesk, E.
Carr of Hadley, L.	Norton of Louth, L.
Chesham, L.	Rennell, L.
Courtown, E. [Teller.]	Renton, L.
Craigavon, V.	Roberts of Conwy, L.
Crathorne, L.	Rowallan, L.
Cross, V.	Saltoun of Abernethy, Ly.
Dixon-Smith, L.	Selkirk of Douglas, L.
Ellenborough, L.	Skidelsky, L.
Ferrers, E.	Stodart of Leaston, L.
Fookes, B.	Strange, B.
Henley, L.	Ullswater, V.
Kingsland, L.	Vivian, L.
Luke, L. [Teller.]	Wise, L.

NOT-CONTENTS
Acton, L.	Davies of Coity, L.
Addington, L.	Dean of Thornton-le-Fylde, B.
Ahmed, L.	Desai, L.
Alli, L.	Dixon, L.
Amos, B.	Donoughue, L.
Archer of Sandwell, L.	Dormand of Easington, L.
Bach, L.	Evans of Parkside, L.
Bassam of Brighton, L.	Falconer of Thoroton, L.
Borrie, L.	Farrington of Ribbleton, B.
Burlison, L.	Gordon of Strathblane, L.
Carlisle, E.	Goudie, B.
Carmichael of Kelvingrove, L.	Graham of Edmonton, L.
Carter, L. [Teller.]	Grantchester, L.
Castle of Blackburn, B.	Grenfell, L.
Chandos, V.	Hardie, L.
Christopher, L.	Hardy of Wath, L.
Clarke of Hampstead, L.	Hilton of Eggardon, B.
Clinton-Davis, L.	Hogg of Cumbernauld, L.
Cocks of Hartcliffe, L.	Hollis of Heigham, B.
Crawley, B.	Hoyle, L.
Currie of Marylebone, L.	Hunt of Kings Heath, L.

Islwyn, L.	Rea, L.
Jay of Paddington, B. [Lord Privy Seal.]	Redesdale, L.
	Rendell of Babergh, B.
Jeger, B.	Sainsbury of Turville, L.
Judd, L.	Sawyer, L.
Kennedy of The Shaws, B.	Sewel, L.
Lockwood, B.	Simon, V.
Macdonald of Tradeston, L.	Smith of Gilmorehill, B.
McIntosh of Haringey, L. [Teller.]	Steel of Aikwood, L.
Mackenzie of Framwellgate, L.	Symons of Vernham Dean, B.
Mackie of Benshie, L.	Taylor of Blackburn, L.
McNair, L.	Thomson of Monifieth, L.
Maddock, B.	Thurso, V.
Mallalieu, B.	Tomlinson, L.
Mar and Kellie, E.	Tordoff, L.
Milner of Leeds, L.	Turner of Camden, B.
Monkswell, L.	Uddin, B.
Morris of Castle Morris, L.	Varley, L.
Nicol, B.	Whitty, L.
Pitkeathley, B.	Williams of Mostyn, L.
Ramsay of Cartvale, B.	Winston, L.
Randall of St. Budeaux, L.	Young of Old Scone, B.

[^* see col. 2018]

Resolved in the negative, and amendment disagreed to accordingly.

9.1 p.m.

[Amendments Nos. 130 and 131 not moved.]

Lord Hardie moved Amendment No. 132:

After Clause 32, insert the following new clause—

ECJ REFERENCES

(".—(1) This section applies where—

1. (a) a reference has been made in relation to a Bill under section 32,
2. (b) a reference for a preliminary ruling has been made by the Judicial Committee in connection with that reference, and
3. (c) neither of those references has been decided or otherwise disposed of.

(2) If the Parliament resolves that it wishes to reconsider the Bill—

1. (a) the Presiding Officer shall notify the Advocate General, the Lord Advocate and the Attorney General of that fact, and
2. (b) the person who made the reference in relation to the Bill under section 32 shall request the withdrawal of the reference.

(3) In this section "a reference for a preliminary ruling" means a reference of a question to the European Court under Article 177 of the Treaty establishing the European Community, Article 41 of the Treaty establishing the European Coal and Steel Community or Article 150 of the Treaty establishing the European Atomic Energy Community.").

On Question, amendment agreed to.

Clause 33 [Power to intervene in certain cases]:

Lord Mackay of Drumadoon moved Amendment No. 132A: Page 16, line 38, leave out ("during") and insert ("before the expiry of").

The noble and learned Lord said: The amendment deals with a small point raised by the noble and learned Lord, Lord Hope of Craighead, at Committee stage when we discussed the provisions of Clause 33. As currently drafted the clause gives the Secretary of State the power to make an order prohibiting the presiding officer from submitting a Bill for Royal Assent. The times within which that order can be made are set out in Clause 33(3)(a),(b) and (c). The noble and learned Lord had concern over Clause 33(3)(c).

He pointed out that if a reference had taken place to the Judicial Committee it would not be competent for the Secretary of State to make an order until that Judicial Committee reference had been determined in one way or another. His concern was that the Judicial Committee might well be required to take up time considering references in relation to Bills where the Secretary of State had in mind to make an order prohibiting the Bill's submission for Royal Assent. My small amendment enables the order to be made prior to the four week period referred to in Clause 33(3)(c) in addition to the four week period itself. I beg to move.

Lord Sewel

My Lords, I am afraid we cannot accept the amendment. It may well go beyond what the noble and learned Lord indicated. It would extend the Secretary of State's powers in Clause 33 to prohibit, by order, the submission by the presiding officer of a Bill for Royal Assent.

Those powers are of course essential for the protection of international obligations, the interests of defence and national security and the law as it applies to reserved matters, but they are there as longstops. Their use would require to be justified and would be liable to be scrutinised by judicial review.

The extension proposed by the amendment would be entirely inappropriate. One effect of the amendment would be to extend the Secretary of State's power so as to encompass the period before the passing of the Bill. It cannot be right for the Secretary of State to be able to stop a Scottish Bill in its tracks when it is still being considered by the Scottish parliament. Nor can I see how such a power to interfere with the parliament's proceedings could be thought necessary to protect the interests which I have described.

Clause 33 provides ample safeguards as it stands. I cannot accept the proposition that any extension is necessary. The Bill already provides sufficient time for the Secretary of State to consider the terms of a Bill and make an order if necessary.

The danger of the amendment is that the Secretary of State could intervene during consideration by the parliament of the Bill when its final form is not known. Like this Bill, a Bill is liable to significant amendment as it goes through the parliament and the Secretary of State's reservations may well be removed in the course of events. This power should be exercised only once a Bill is complete and has passed all its stages.

I hope that the noble and learned Lord will agree with that. On that basis, I ask him to withdraw the amendment.

Lord Mackay of Drumadoon

My Lords, I take the point that my amendment may be too widely drafted. However, with the greatest respect to the Minister, he has not faced up to the argument I have advanced which was touched upon by the noble and learned Lord, Lord Hope of Craighead. If one focuses on Clause 33(3)(c), there is a practical issue. If a reference is made to the Judicial Committee, the Judicial Committee is required to make a decision or otherwise dispose of the issue before the order can be made. As the noble and learned Lord argued, it is possible that the Judicial Committee could take time in deciding a reference which is utterly academic in view of the fact that an order is to be made and the Secretary of State knows that all along.

I shall withdraw the amendment because I readily concede that it is not happily framed. However, I hope that before Third Reading it will be possible, by letter or otherwise, for the Minister to consider another solution to the practical problem advanced by the noble and learned Lord, Lord Hope. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon moved Amendment No. 132B: Page 17, line 6, at end insert— ("() A document bearing a certificate purporting to be signed by or on behalf of the Secretary of State and setting out the existence, scope and terms of any international obligations or the nature and extent of any interests of defence or national security of the United Kingdom relied upon for the purpose of an order under this section shall, in any legal proceedings relating to such an order, be conclusive evidence of the matters detailed within the document.").

The noble and learned Lord said: My Lords, this amendment is grouped with Amendment No. 146D. The amendments arise from something said in Committee by the noble and learned Lord, Lord Rodger of Earlsferry, with some support from the noble Lord, Lord Thomas of Gresford. Orders under Clause 33 will be subject to judicial review. In any such judicial review it will be necessary for the court to be informed which international obligations or interests of defence or national security are said to be relevant to the issue of whether the Secretary of State has reasonable grounds to believe that the provisions of a particular Bill are incompatible with international obligations or interests of defence or national security.

The reasoning behind Clause 33 is that it is not possible to define international obligations or interests of defence or national security in such a way as to make them parameters of legislative competence, as with convention rights of Community law. That is because the domestic courts are not normally seized of the issue of determining Britain's international obligations.

My amendments follow up a suggestion made by the noble and learned Lord, Lord Rodger of Earlsferry, that some procedure by way of certificate be evolved. This would allow the relevant Secretary of State issuing the certificate to set out, for the benefit of the other parties to any judicial review proceedings and for the benefit of the court, the particular international obligations and interests of defence or national security that he had in mind when he addressed the issue which the courts will have to review, of whether there were reasonable grounds for taking the view that a particular Bill would be incompatible with such obligations or interests of national security or defence.

My amendments are based on similar statutory provisions where, by means of certificate, the court is informed about a certain state of events or factual circumstances relating to an issue which must be before it. There are statutory precedents for such certificates being conclusive in the way I suggest is appropriate here. In so far as the amendments take forward the suggestion made by the noble and learned Lord, Lord Rodger of Earlsferry, who was clearly looking ahead to the practicalities with which the courts will have to cope in dealing with cases arising out of the Scotland Bill, I hope that a favourable response will be received. I beg to move.

Lord Sewel

My Lords, these amendments would provide that the Secretary of State could produce in court a document bearing his certificate and describing the international obligation or the interest of defence or national security upon which he has based his decision to use one of his powers of intervention under Clauses 33 or 54. Furthermore, they would provide that the document would in any legal proceedings relating to such an order be conclusive evidence of the matters detailed within it.

I appreciate that the intention behind the amendments is to provide assistance to the courts in assessing what is an international obligation or the interests of defence or national security. As the noble and learned Lord indicated, the domestic courts do not generally take cognizance of international obligations. However, I do not believe that the amendments are appropriate.

First, I note that to use the powers in Clauses 33 or 54 the Secretary of State must have reasonable grounds to believe that a particular action or provision is incompatible with an international obligation or interests of defence or national security, or that an action is necessary by a member of the Scottish executive to ensure that an international obligation is fulfilled. The order itself must state the Secretary of State's reasons for making it.

In a judicial review of the use of the powers, the question would be whether those grounds are reasonable. The Secretary of State, in making such an order, will be aware that he must be able to demonstrate that it is being made on reasonable grounds. To my mind, it is inconceivable that he could do so without describing in some detail the matters that are the subject of that order. Obviously, the courts would place appropriate weight on all the material set out in the order in reaching a conclusion.

These amendments go further and would require the evidence in the document to be conclusive evidence of the matters detailed in it. That would simply go too far. It should be for the court to judge whether the Secretary of State's evidence is conclusive in that regard. That is an extremely important and fundamental issue. It is not sufficient just for the certificate to take with it the imprint of conclusiveness. It must be a matter for the courts to decide whether the Secretary of State has acted reasonably and reached an appropriate decision. Therefore, on that basis, I hope that the noble and learned Lord will feel able to withdraw the amendment.

9.15 p.m.

Lord Mackay of Drumadoon

My Lords, I am disappointed and I suspect so also will be the noble and learned Lord, Lord Rodger of Earlsferry, although I have not discussed the matter with him since he raised the issue.

The Minister's answer means that in judicial review proceedings there will be scope for a dispute, first, as to what are the international obligations of the United Kingdom, or what are the interests of the defence of the United Kingdom, or what are the interests of national security, before one moves on to the much more crucial issue of whether the Secretary of State had reasonable grounds to believe that a particular Bill was incompatible with one or other of the matters mentioned in Clause 33(1)(a).

I am quite sure that the noble and learned Lord, Lord Rodger of Earlsferry, made his suggestion in the hope that it may limit the scope and extent of judicial proceedings which may be raised to challenge any order made under Clause 33. That was certainly the purpose of bringing forward this amendment. However, the Government are quite clearly intent on resisting it, and tempted though I am, I do not seek the opinion of the House on this amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 34 [Stages of Bills]:

Lord Mackay of Ardbrecknish moved Amendment No. 133: Page 17, line 7, leave out subsection (1) and insert—

("(1) Each Bill shall be considered by the Parliament at the following stages—

1. (a) a general debate on the principles of the Bill;
2. (b) a stage during which a committee of the Parliament may hear evidence on and shall consider representations received from interested parties on the subject matter of the Bill, and at the conclusion of which the committee shall report to the Parliament on the evidence and representations it has received;
3. (c) a stage for a further general debate on the Bill, in the light of the report prepared in terms of paragraph (b) hereof, with an opportunity for members to vote on the general principles of the Bill;
4. (d) a committee stage for members of the Parliament to consider and vote on the detail of the Bill;
5. (e) a report stage to consider any amendments subsequent to the committee stage in paragraph (d); and
6. (f) a final debate and vote on the Bill, at which the Parliament can either pass or reject it.

(1A) A period of not less than three calendar months shall separate the stages of the Bill mentioned in subsections (1)(c) and (e) unless otherwise provided for by a resolution of the Parliament.").

The noble Lord said: My Lords, we are returning here to the issue of how the Scottish parliament will deal with legislation. That issue overlaps the second debate we had at this Report stage relating to a second chamber of the Scottish parliament. As your Lordships know, the Government have set their minds against having any second chamber at all, despite the fact that in this Bill we have clear evidence of the importance of a second chamber, given the number of government amendments, let alone the amendments of anybody else, which have been brought forward. Without the Opposition doing anything, it will take the other place quite a large proportion of a day to get through the Government's own amendments.

I do not complain about that because it is an indication that the Government are listening to the arguments. This Bill is important. It is not like any other Bill which we have dealt with and it is doing something quite dramatic to the constitutional arrangements of the United Kingdom. I make no complaint of the fact that the Government are bringing forward so many amendments. But my point is that that illustrates the importance of having a second chamber where those matters can be debated, dare I say it, rather less dramatically than affairs are usually debated in the other place where there is often a lot more heat than light, whereas in your Lordships' House there is always light and sometimes a little heat.

This clause sets out stages of a Bill in the Scottish parliament. The Government have a contradictory position in this regard. Clause 34(1) sets out three stages of a Bill which seem to me to be entirely a replication of the procedures in another place: there shall be a general debate on the Bill and members can vote on its general principles. That sounds like a Second Reading. There is then provision for consideration of the detail of a Bill. That sounds very much like our Committee stage. There is then a final stage at which the Bill can be passed or rejected. That is certainly the Third Reading in the other place which is fairly automatic compared with the procedures in your Lordships' House. But the Bill says that the standing orders "shall include". I accept that it says that but it is prescriptive. It does not allow the Scottish parliament to start off with a clean sheet on how it deals with legislation. The Bill provides that those procedures must be followed.

And yet ironically, on 28th July when we discussed this in Committee, the noble Baroness, Lady Ramsay of Cartvale, said that: the Government believe that it is not for us to prescribe the working practices of the parliament". Yet this clause prescribes the working practices of the parliament. The noble Baroness continues in col. 1404: The consultative steering group has already begun to consider how the legislative process might be handled by the Scottish parliament. It is very likely to recommend a vigorous pre-legislative process so that proposals for legislation which come before the parliament have been subject to rigorous scrutiny and participation and that the effects of the proposed legislation have been well considered".—[Official Report, 28/7/98; cols. 1403–1404.]

When we discussed on the first day of Report last week the question of a second chamber, the noble Lord, Lord Sewel, said, with reference to how the new parliament will approach the business of legislation, That is why we have set up the consultative steering group established by my right honourable friend the Secretary of State. The steering group has already recognised the importance of putting in place procedures to facilitate and encourage prior consultation on legislative proposals. It has endorsed the concept of ensuring that there are strong committees in the parliament able to scrutinise effectively any legislation that is brought before it".—[Official Report, 22/10/98; col. 1587.] One of my questions in the course of this debate is whether we can have some indication of the conclusions to which the consultative committee came so that we know, when we look at Clause 34, how the parliament is to approach legislation.

My amendment, which is simply a replica of the amendment I proposed in Committee—I said I thought I would return to it and indeed I am now doing so—proposes a situation not unlike that in Clause 34; not unlike our procedure here. But before it starts what I would call the parliamentary procedure we are used to here at Westminster, we should have a Bill presented with a general debate on the principles and then another stage during which the committee of the parliament can hear evidence, consider representations from interested parties on the subject matter of the Bill and report then to the parliament on the evidence and representations it received. We then move into what I might call a more conventional Westminster system.

No doubt there will be a lot of lip service paid to draft Bills and so forth. If it is not just lip service, I cannot see any reason why the kind of format suggested in this amendment should not be taken on board. If we are going to be prescriptive—I believe the Government are being prescriptive—we should certainly add in the prospect of draft Bills and the representation and evidence-taking that go with them. In many ways that would get round the lack of a second chamber. I have noticed that outside organisations often use this Chamber more than the other House in order to advance their case because they know that they have a better chance of winning an argument in your Lordships' House than in the House of Commons. Governments of both parties have occasionally found that to their cost.

I am suggesting in this amendment that, as we cannot have a second chamber in the Scottish parliament, those outside bodies ought to have a place in the legislative scheme of things where they can present their case and make their arguments.

The Minister will speak to Amendment No. 134. I have no objection to it. It deals with the fact that not all Bills are new legislation; some are consolidations as we call them here—I presume that is (a), Bills which restate the law". Others are Bills which "repeal spent enactments" and "private Bills". I have no problem with that.

Amendment No. 134A seeks to make provision for the parliament to be able to introduce emergency legislation. That is sensible. The Minister perhaps includes that in the first subsection of his Amendment No. 134. It is perhaps not so obvious, but we dealt with it in our subsection though I notice that we are dealing with the three stages as set down by the Government. Clearly, if the Government accepted my amendment we would suggest that the five stages could be truncated.

We appreciate that the Scottish parliament may want to enact emergency legislation, though I have to say to your Lordships—your Lordships will not be surprised—that the history of emergency legislation is not one which leads me to believe that the Scottish parliament would be wise to use the procedures for it very often. Your Lordships were dragged back from the Recess in September to pass emergency legislation and at considerable cost. I doubt whether that emergency legislation has yet been used. It could easily have waited until we come back in the normal course of events, but that is another argument. I believe that sometimes emergency legislation is flawed. It is government showing a knee-jerk reaction. Dare I say that governments of all parties, when they take such action and bring forward legislation on that basis, very often do not get it entirely right. I would not go as far as to say that they get it wrong, but often they do not get it entirely right. Nonetheless, I believe the provision should be there because the Scottish parliament has such important powers that it may well need to use emergency legislation.

But my main point is that as regards the bulk of the legislation we should go further than just prescribe a system that looks like the House of Commons. We should prescribe, if I may so call it, a pre-legislative stage. That is what my amendment does. I beg to move.

Lord Mackie of Benshie

My Lords, it is always a pleasure to listen to the noble Lord, Lord Mackay of Ardbrecknish, after dinner. He is more amiable and we are better placed to receive him. In Clause 34 the Government have been a little nannyish in that they are setting out the general debate and so forth. I should have liked them to say that each Bill shall be considered in the parliament using the best evidence available from the Parliament of Great Britain and from Scandinavia and that a system shall be produced which examines the whole of legislation properly. However, I suppose that the best we can expect is that room is left for the Scottish parliament to make up its mind on a great number of new measures.

I also believe that both the noble Lord, Lord Mackay of Ardbrecknish and the noble and learned Lord, Lord Mackay of Drumadoon, have done rather well. It is a very good suggestion. The proposal would be a great improvement on the kind of procedure that we have in this House. It would remove the need for the second chamber which the noble Lord considers to be so essential.

The fact is that we are useful in this Chamber because of the imperfections of the other Chamber. That is why we are so essential here and why we and the Scottish parliament should see to it that the first chamber has a system for examining Bills which produces legislation that does not need an enormous number of corrections by the second chamber due to the imperfections of the first.

That is why we believe the amendment is unnecessary. It is a good suggestion for noble Lords to look at, but we cannot support putting such detail into the Bill. It is nannying the Scottish parliament to a quite unnecessary degree. The Government themselves have gone too far, but we shall put up with it if they show some regret.

9.30 p.m.

Lord Sewel

My Lords, in that case I immediately show regret. It is a matter of balance as to how far one goes in indicating a general framework which is required and necessary and how far one leaves a degree of flexibility to the parliament itself. We cannot support Amendment No. 133. I appreciate that the noble Lord wants to ensure that the parliament has sufficient opportunities to consider and vote on the Bills before it and I agree with that. I also agree that it is important that the parliament should hear and consider the views of the bodies interested in a Bill. However, it is not for us to prescribe the details of the working practices of the parliament. The Government cannot accept these amendments which intrude too far. It must be for the parliament to decide on its own procedures, including arrangements for the scrutiny of legislation, and to put in place appropriate standing orders. That is why I have no difficulty in saying that there is no incompatibility between what I am saying now and what my noble friend Lady Ramsay said at an earlier stage. It is clearly for the parliament to put in place its own working arrangements. However, we think it necessary to provide a rudimentary, basic framework that the standing orders should address as a minimum.

We have put in three minimum stages of parliamentary scrutiny. They will apply to the vast majority of Bills of the Scottish parliament. As the noble Lord, Lord Mackay of Ardbrecknish, indicated, they include a general debate on the Bill with an opportunity for members to vote on its general principles; consideration of, and an opportunity to vote on, the details of the Bill; and a final stage at which the Bill may be passed or rejected. The whole point is that that is not the be all and end all of it. That is the minimum requirement. Further details should be left for the Scottish parliament to decide.

Reference has been made to the consultative steering group which my right honourable friend the Secretary of State has set up. It is, indeed, considering the details of the processes of legislation and of scrutiny which will build around the basic framework that this Bill requires. Previously, we said that the report would be ready by the end of the year. Things are moving considerably faster and we can now be more optimistic. We think that the report will be ready by Christmas! The parliament will have the recommendations of that consultative steering group to help it in framing its standing orders, but it is very much a matter for the parliament to decide on its own procedures and working practices as long as the minimum provision is satisfied in terms of the three stages that we have identified in this Bill. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

Amendment No. 134 replaces the current provision in Clause 34(2) which allows standing orders to modify the provisions about stages of Bills which are set out in Clause 34(1). The second part of the new provision clarifies the types of Bill for which different provision may be made. Essentially, the Bills to which the provision applies are those for which the procedure needs to be simplified—the noble Lord, Lord Mackay, identified most of them—such as consolidation Bills, statute law repeal Bills and private Bills. At Westminster, special procedures exist for similar classes of Bill either in statute or in standing orders. The first part of the new provision enables standing orders to make provision to enable the parliament to expedite proceedings in relation to a particular Bill. That will be appropriate where a Bill is needed in an emergency. I have a great deal of sympathy with the points made on that by the noble Lord, Lord Mackay.

I note that the noble Lord has tabled an amendment to the Government's Amendment No. 134. However, the Government are unable to support that amendment. As I have explained, the government amendment would ensure that for certain classes of Bill the parliament can provide for different procedures. The Opposition's Amendment No. 134A would mean that even the special categories of Bill for which special provision is made in the Government's Amendment No. 134 would have to go through the three stages provided by Clause 34(1), although I appreciate that the amendment attempts to provide that there need not be any delay between the stages. That does not in our view provide sufficient flexibility for those categories of Bill.

I turn now to the Government's Amendment No. 137. This is a technical amendment. Paragraph 5 of Schedule 3 requires standing orders to provide, in effect, that a Bill which affects Crown interests shall not be passed unless the appropriate consent has been signified. The amendment ensures that the reference to the passing of the Bill in that provision includes the approval of a Bill once it has been reconsidered by the parliament under Clause 34(3). Such reconsideration would occur where the Judicial Committee has found a provision of the Bill to be ultra vires or the Secretary of State has made an order in relation to the Bill under Clause 33. We have reached the position where I have to indicate that we cannot accept Amendment No. 133.

Baroness Carnegy of Lour

My Lords, before the noble Lord sits down, can he clarify one point for me? What is the position of Her Majesty if the Bill is passed by the parliament, receives Royal Assent and then, some considerable time afterwards, is found to be ultra vires? What is the position of the Queen if she has given the Bill Royal Assent and it is found not to be valid?

Lord Sewel

My Lords, a timetable is set down for a challenge to the vires of a Scottish Bill. I do not think there is any way in which Her Majesty would be involved.

Lord Mackay of Drumadoon

My Lords, before the noble Lord sits down, can I ask him if that is correct? Surely a Bill is open to challenge indefinitely. Once a Bill becomes an Act of Parliament, an individual member of the public, who claims to be adversely affected by it, could raise proceedings and seek to have the Act reduced. That is one of the possibilities that lies ahead, once a Bill becomes an Act, after Royal Assent, as my noble friend Lady Carnegy said. She has raised a very interesting issue. I do not suggest that I know the answer to it, but if Her Majesty has given Royal Assent to a Bill that is ultra vires, quid juris?

Lord Sewel

My Lords, I have not quite got the drift of the point of the noble Baroness. The noble and learned Lord, Lord Mackay of Drumadoon, is quite right, it is open to challenge. But I do not see how that affects the position of Her Majesty at all.

Baroness Carnegy of Lour

My Lords, with the leave of the House, I am not a lawyer and I do not know all that much about the constitution, but it seems to me that in our system the ultimate accolade of a Bill is Royal Assent and it becomes law. Never before have I heard of anybody having to go and say to Her Majesty, "I am sorry, I have got this wrong. Will you please pull this back and do it again?"

Lord Sewel

My Lords, yes, the Queen grants Royal Assent—that is absolutely true—but the Queen is not involved if a Bill is challenged. Her role in approving a Bill passed by the Parliament is formal. She is not in anyway dragged into the argument about the vires or any matter like that.

Lord Mackay of Ardbrecknish

My Lords, my noble friend Lady Carnegy has raised an interesting point to which we may return. Possibly the Queen would be all right because the Government would make provisions and exercise some discretion in these matters—or the Home Secretary might exercise some discretion.

I was grateful to the noble Lord, Lord Mackie of Benshie, for saying that my amendment was a good suggestion at which he hoped members of the Scottish parliament would look. But he thought that not only was I nannying too much, but that the Government were nannying too much. He has a point. The Government cannot complain about my amendment when they have such a detailed clause in the Bill. It is almost a case of how far does nanny go.

The Minister seemed to agree that it would be sensible if the parliament heard from outside bodies during the legislative procedure which would improve the legislation, but that was for the parliament to provide these arrangements. He told me that the consultative steering committee would report by Christmas and give its suggestions. But they are only suggestions. With apologies to Alice, my question is: when is prescribing not being prescriptive? It would appear to be, "When I say so", according to Ministers. They cannot complain about me being prescriptive when they have Clause 34 here.

I am not convinced about this. If we have Clause 34(1) in the Bill, it is not a good argument to say, "Yes, we agree with what you are saying in your clause and that would be a good way for the Scottish parliament to proceed, but it is far too prescriptive". If Clause 34(1) was not in the Bill, I would understand that and I would settle back in my seat. But I am not sure that I do settle back comfortably in my seat. Before I make a decision, perhaps I should say that I fully accept Amendment No. 134 and the consequential amendments and I am content with the Government's arguments against my Amendment No. 134A. But I still feel that the points I make in my amendments are valid ones. If we are going to lay down processes in a Bill, I think we should lay down pre-legislative processes as well for a single chamber parliament. I am therefore going to seek the opinion of the House.

9.40 p.m.

On Question, Whether the said amendment (No. 133) shall be agreed to?

^*Their Lordships divided: Contents, 37; Not-Contents, 85.

Division No. 2
CONTENTS
Annaly, L.	HolmPatrick, L.
Attlee, E. [Teller.]	Kingsland, L.
Balfour, E.	Kintore, E.
Byford, B.	Luke, L.
Carnegy of Lour, B.	Lyell, L.
Carnock, L.	Mackay of Ardbrecknish, L.
Carr of Hadley, L.	Mackay of Drumadoon, L.
Chalker of Wallasey, B.	Middleton, L.
Chesham, L.	Montrose, D.
Courtown, E. [Teller.]	Northesk, E.
Craigavon, V.	Norton of Louth, L.
Crathorne, L.	Renton, L.
Cross, V.	Rowallan, L.
Darcy de Knayth, B.	Selkirk of Douglas, L.
Dixon-Smith, L.	Stodart of Leaston, L.
Ellenborough, L.	Strange, B.
Fookes, B.	Trefgarne, L.
Fraser of Carmyllie, L.	Vivian, L.
Henley, L.	Wise, L.

NOT-CONTENTS
Acton, L.	Grantchester, L.
Ahmed, L.	Grenfell, L.
Alli, L.	Hardie, L.
Amos, B.	Hardy of Wath, L.
Archer of Sandwell, L.	Hilton of Eggardon, B.
Bach, L.	Hogg of Cumbernauld, L.
Bassam of Brighton, L.	Hollis of Heigham, B.
Berkeley, L.	Hoyle, L.
Borrie, L.	Hughes of Woodside, L.
Burlison, L.	Hunt of Kings Heath, L.
Carlisle, E.	Islwyn, L.
Carmichael of Kelvingrove, L	Jay of Paddington, B. [Lord Privy Seal.]
Carter, L. [Teller.]
Castle of Blackburn, B.	Jeger, B.
Chandos, V.	Judd, L.
Christopher, L.	Kennedy of The Shaws, B.
Clarke of Hampstead, L.	Lockwood, B.
Clinton-Davis, L.	Macdonald of Tradeston, L.
Cocks of Hartcliffe, L.	McIntosh of Haringey, L. [Teller.]
Crawley, B.	Mackenzie of Framwellgate, L.
Davies of Coity, L.	Mackie of Benshie, L.
Dean of Thornton-le-Fylde, B.	Maddock, B.
Desai, L.	Mallalieu, B.
Dixon, L.	Mar and Kellie, E.
Donoughue, L.	Milner of Leeds, L.
Dormand of Easington, L.	Monkswell, L.
Evans of Parkside, L.	Morris of Castle Morris, L.
Falconer of Thoroton, L.	Nicol, B.
Farrington of Ribbleton, B.	Phillips of Sudbury, L.
Gordon of Strathblane, L.	Pitkeathley, B.
Goudie, B.	Ramsay of Cartvale, B.
Graham of Edmonton, L.	Randall of St. Budeaux, L.

Rea, L.	Thomson of Monifieth, L.
Rendell of Babergh, B.	Thurso, V.
Sainsbury of Turville, L.	Tomlinson, L.
St. John of Bletso, L.	Tordoff, L.
Sawyer, L.	Turner of Camden, B.
Sewel, L.	Uddin, B.
Simon, V.	Varley, L.
Smith of Gilmorehill, B.	Whitty, L.
Steel of Aikwood, L.	Williams of Mostyn, L.
Symons of Vernham Dean, B.	Winston, L.
Taylor of Blackburn, L.	Young of Old Scone, B.

[^* see col. 2053]

Resolved in the negative, and amendment disagreed to accordingly.

9.49 p.m.

The Deputy Speaker (Lord Lyell)

My Lords, before I call the next amendment I must inform the House that in a Division earlier this evening on Amendment No. 129, the numbers of those voting were Content, 40, Not Content, 85, rather than the numbers that were announced.

Lord Sewel moved Amendment No. 134: Page 17, line 13, leave out subsection (2) and insert— ("() Subsection (1) does not prevent standing orders making provision to enable the Parliament to expedite proceedings in relation to a particular Bill. () Standing orders may make provision different from that required by subsection (1) for the procedure applicable to Bills of any of the following kinds—

1. (a) Bills which restate the law,
2. (b) Bills which repeal spent enactments,
3. (c) private Bills.").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 134A and 135 not moved.]

Lord Sewel moved Amendment No. 136: Page 17, line 18, at end insert— ("() a reference made in relation to the Bill under section 32 is withdrawn following a request for withdrawal of the reference under section (ECJ references)(2)(b),").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Sewel moved Amendment No. 137: Page 17, line 24, after ("36(1)(a)") insert ("and paragraph 5 of Schedule 3").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Sewel moved Amendment No. 138: After Clause 36, insert the following new clause—

PROCEEDINGS BY OR AGAINST THE PARLIAMENT ETC

(".—(1) Proceedings by or against the Parliament shall be instituted by or (as the case may be) against the corporation on behalf of the Parliament.

(2) Proceedings by or against—

1. (a) the Presiding Officer or a deputy, or
2. (b) any member of the staff of the Parliament,

shall be instituted by or (as the case may be) against the corporation on his behalf.

(3) In any proceedings against the Parliament, the court shall not make an order for suspension, interdict, reduction or specific performance (or other like order) but may instead make a declarator.

(4) In any proceedings against—

1. (a) any member of the Parliament,
2. (b) the Presiding Officer or a deputy,
3. (c) any member of the staff of the Parliament, or
4. (d) the Parliamentary corporation,

the court shall not make an order for suspension, interdict, reduction or specific performance (or other like order) if the effect of doing so would be to give any relief against the Parliament which could not have been given in proceedings against the Parliament.

(5) References in this section to an order include an interim order.").

The noble Lord said: My Lords, as I mentioned on the first day of Report in the debate on an earlier group of amendments about the validity of acts of various office holders, these amendments together with Amendment No. 138 are part of the results of our consideration of your Lordships' concerns that the parliament should be able to go about its business without undue interruption from the courts. Noble Lords made it clear that the Bill should say more about this than was contained in the Bill at an earlier stage. I hope noble Lords will agree that this is what this new clause achieves.

I hope it is reasonably self-explanatory. The new clause will restrict the remedies which may be granted against the parliament. We judge that it would be wise to ensure that no court may make an order for suspension, interdict, reduction or specific performance, or another like order, nor should it be able to make any interim order. We think this provides a broad protection against attempts to manipulate the business of the parliament via the courts. We hope that this will go a considerable way to assuaging the concerns expressed by noble Lords at earlier stages.

We do not think that we can put the parliament completely above the courts. For that reason we have left open to the courts the option of making a declarator. It will, of course, be for the parliament itself to decide how it should react to any such declarator. The parliament would not be liable for contempt of court if it merely decided to take no action to give an effect to a declarator. Rather, it will essentially be a political decision for the parliament to decide how to react in such cases. We believe the parliament will wish to be seen to be upholding the law and in most cases would expect it to comply with any court judgment, in particular any which directly affects the civil rights of individuals, for example, concerning the legitimacy of the withdrawal of rights and privileges of an MSP.

However, there may be circumstances in which it would be reasonable for the parliament to decide to take no action, notwithstanding the declarator to the effect that the parliament had acted unlawfully. For example, where a Bill which is nearing the end of its legislative passage is held not to have complied with some technical provision of standing orders about the procedures for introducing a Bill, it might be perfectly reasonable in those circumstances for the parliament to press on with that Bill, secure in the knowledge that the resultant Act could not be challenged because of the defect in procedure.

We think that this strikes the right balance for a body which has to be both free to go about the business of law making while not actually being above the law. We have also taken the opportunity in the new clause to prevent actions being pursued by the back door, against individuals associated with the parliament.

Finally, it may be helpful if I make it clear that under the Bill as presently drafted, and as we propose that it should be further amended, the parliament would have considerable competence to legislate about its protections from judicial proceedings. We intend to bring forward amendments to Schedule 4 which will make it clear that those parts of the Bill which deal with protection from judicial proceedings—namely, Clause 37 dealing with contempt of court, Clause 38, which provides some protection in the context of defamation, and the new clause in this amendment—may be modified by the parliament. I will explain the effect of those amendments in more detail when we come to debate them. However, the intention is that they would ensure that the parliament would have considerable scope to develop its own protections in the light of experience.

The parliament would, for example, be able to provide that certain types of proceedings could not be brought against it at all. However, it could do that only within the competence provided by the Bill. It could not, for example, make such provision as would infringe rights conferred by the proposed human rights Act, since it is prevented from doing so by Clause 28(2)(d). Noble Lords will appreciate that that is a significant point in its own right.

I am conscious that this is a potentially large and complex subject. I hope noble Lords will agree that we have the balance about right. We have concluded that we cannot justify attempting to mirror Westminster privileges. Those privileges are wide-ranging and in certain respects apply for largely historical reasons. We recognise, however, that the parliament needs protection. We believe that the collection of privileges that we now propose to provide, taken together with the proposed amendments to clarify the scope of the parliament's power to legislate on this matter, is the appropriate way to proceed. I hope that noble Lords will agree. I beg to move.

Baroness Carnegy of Lour

My Lords, this is an interesting matter. The noble Lord said that future amendments will allow the parliament to increase its own protection. He also said that he did not think it right that the parliament should have privilege in the way that this Parliament does. Does that mean that the amendments that he will bring forward will prevent the parliament having the kind of privilege that this Parliament has? Will there be boundaries as regards the scope that the parliament has for further legislating for its own protection?

The Earl of Mar and Kellie

My Lords, I wish to ask a question about the office holders mentioned in subsections (2) and (4). I wonder whether the words, "acting in their capacity as such", have been accidentally omitted. Without those words, I suspect that the individuals may end up being somewhat over-privileged.

Lord Mackay of Drumadoon

My Lords, I welcome this amendment. It undoubtedly meets one of the major concerns that I have expressed on more than one occasion in relation to the Bill as presently drafted. I have referred to the fact that in local authority affairs it is not uncommon for interdict proceedings to be raised for the purposes of trying to prevent a meeting taking place or an item of business being considered. I sought to persuade your Lordships and the Government that that would be highly undesirable in the affairs of the new parliament. I very much welcome the fact that that point is recognised in this amendment. It also covers other issues such as suspension, reduction or orders for specific performance.

I am grateful for the very detailed explanation of the Government's position lying behind this amendment, touching as it does on the attitude to the extension to the Scottish parliament of the concept of parliamentary privilege as enjoyed by this Parliament. That statement and the statement made earlier in relation to Amendment No. 112 will be of great assistance to me and, I suspect, other Members of this House when we consider Amendment No. 192B next week.

I hope it does not sound churlish if I say that I do not believe that the amendment goes far enough, but I welcome the stage that it has reached. I am sure it will be of great benefit not only to parliamentarians but to the courts in the years ahead.

Lord Sewel

My Lords, I thank the noble and learned Lord, Lord Mackay of Drumadoon, for what he said. I hope that we have got the balance about right. There may be nuances either side of the line, but broadly we have it right. In relation to the remarks of the noble Earl, Lord Mar and Kellie, I do not believe it is necessary to put in wording such as "in their capacity as presiding officer". The protection afforded to them would not protect them in relation to a private matter. The whole context of the clause makes it clear that it is in relation to the parliament. I believe that it is all right.

As for the point made by the noble Baroness, Lady Carnegy, we are not creating a situation where the parliament would have identical privileges to those enjoyed by this Parliament. The privileges enjoyed by this Parliament to an extent flow from history and the fact that the Parliament starts as a court. The limitations are those to which I referred in terms of Clauses 37, 38 and the new clause, so there is a limitation on the extent to which the parliament could accrete to itself new privileges. It is likely to be more helpful if we delay the provision until Schedule 4. I commend the amendment.

On Question, amendment agreed to.

10.p.m.

Clause 40 [Calculating time for meeting of the Parliament]:

Baroness Ramsay of Cartvale moved Amendment No. 139: Transpose Clause 40 to after Clause 3.

The noble Baroness said: My Lords, this is a technical amendment. It simply relocates Clause 40 to be alongside Clauses 2 and 3 because those are the only two clauses to which it relates. Clauses 2 and 3 require the parliament to meet within seven days, beginning immediately after the day of the poll at the general election. Clause 40 excludes Saturdays, Sundays and various holidays from the calculation. Given their close relationship, it seems to us only sensible to locate the provisions together. I beg to move.

On Question, amendment agreed to.

Lord Mackay of Ardbrecknish moved Amendment No. 139A: After Clause 40, insert the following new clause—

POWER OF THE PARLIAMENT TO CHANGE TITLES

(" . The Parliament may change the titles "Scottish Executive" and "First Minister" to such other titles as it considers appropriate.").

The noble Lord said: My Lords, I beg to move Amendment No. 139A and with it speak to Amendments Nos. 139B and 139C. We have been over this ground a number of times. The first amendment simply empowers the parliament to decide on the titles of the Scottish executive (that is, the government of Scotland) and the First Minister (that is the Prime Minister).

The Government are being entirely, utterly and completely prescriptive in their approach to the titles, in contrast to the previous debating points they brought forward to your Lordships. Not only are they prescribing the titles but they seem determined that the parliament should not be able to change them. My view, which I have expressed to your Lordships before, is that despite the case the Government argue about Northern Ireland, "First Minister" will not last as a title. I suspect it will become "Prime Minister". To an extent, that would be a pity, not because I worry about a rival Prime Minister to the current incumbent in Downing Street north of the Border, but because it would be better if we used—as they do in some Commonwealth countries—the word "Premier" to describe the chief Minister of a devolved or state parliament.

We have been over this before. I wonder whether the Government have even reflected on changing their minds in so far as they might allow the Scottish parliament to decide. This is an issue which normally brings together the Liberal and Conservative Oppositions and the Government should take account of that and take on board the fact that we are not doing this in a negative way but because we think it would be a sensible way forward. It would give those gentlemen and ladies and that body the kind of titles that befit the kind of parliament the Government continue to tell me they wish to set up in Scotland. I beg to move.

Lord Renton

My Lords, I support the amendment moved by my noble friend Lord Mackay of Ardbrecknish. In particular I support Amendments Nos. 139B and 139C. There are two reasons for supporting that change. First, the title "premier" has a good precedent. In the past the head of the Stormont Government in Northern Ireland was known as the Premier. Secondly, "Premier" is shorter than "First Minister" and we should aim for brevity whenever we can.

Lord Fraser of Carmyllie

My Lords, of all the debates that we have had on this Bill I believe this to be the most fatuous. It is quite absurd that we continue to require of the Government a change when we all hope the Scottish parliament will have the guts and verve to say that it will give its leader whatever name it chooses. I am at one with the noble Lord, Lord Steel of Aikwood. If the parliament decides to describe that individual as the premier or prime minister factually that will be the way that the matter will evolve. It is quite clear to me that the Government are not prepared to accept this. It is dumb and insensitive and will not do them any good. The simple question I put to the Government is the following: if those who head up the Scottish executive determine that their first minister is to be described as the prime minister or premier is that in any sense justiciable? If that change is adopted by the parliament is there anything that this Parliament or the Scottish courts can do about it?

Baroness Ramsay of Cartvale

My Lords, with Amendments Nos. 139A, 139B and 139C the Opposition return us again to the question of whether it is appropriate for the Scotland Bill to prescribe by what names certain office holders created by the Bill should be known. These amendments in particular address the titles of the first minister and the Scottish executive. Previous amendments, with which we have all become very familiar, have addressed the title of presiding officer.

By now noble Lords know only too well, since I explained it at some length—at too great a length, according to the noble Lord, Lord Mackay of Ardbrecknish—only last Thursday on the first day of Report stage, that the Government believe that in the interest of legal certainty certain titles should be prescribed in the Bill. By prescribing the legal title of these important offices we ensure that references in this legislation and all future legislation is consistent and there is no confusion about the roles and responsibilities.

The Government consider that it is particularly important to ensure that the names First Minister and the Scottish executive are clearly established from the outset. As noble Lords will appreciate, the Bill places very important responsibilities on the members of the Scottish executive and the First Minister. It is important that everyone is clear about who is to exercise those responsibilities. I believe that people will find it more helpful in that regard to have distinct titles on the face of the Bill. The titles in the Bill serve the purpose and we believe that the amendments are unnecessary. The terms "First Minister" and "Scottish executive" are already in general use in the press.

As to the term "Premier" as an alternative to "First Minister", I see no advantage, with respect to the noble Lord who has moved the amendment and the noble Lord, Lord Renton. I appreciate that there is a history of the use of that title in other administrations, such as in the provincial and territorial parliaments of Canada. As the noble Lord, Lord Renton, explained, in the past it has been used in Northern Ireland. However, I remind the noble Lord that today the title is First Minister of the Northern Ireland Assembly, not "Premier". The title "First Minister" is in constant use in the press. Every time Mr. Trimble is mentioned the title "First Minister" comes automatically to most people's lips. In that context, the title "Premier" has a long and distinguished history.

But we are looking at a different situation and we must have regard to how the title would be received in Scotland today. When a similar amendment was debated in the other place the point was made that there was a risk of confusion with the Premier League, and there were other football references. I have no opinion on that matter. However, I believe that to introduce the term "Premier" now would create more confusion than enlightenment. As I have already said, the title "First Minister" is being increasingly used by the press and public. It is clear, unambiguous and descriptive of the office. The Government therefore believe that this is the right title and are not willing to accept the amendment.

The noble and learned Lord, Lord Fraser of Carmyllie, asked about the power of the parliament to change the titles. The Bill prescribes the legal titles for various offices. The provisions of the Bill which provide those titles cannot be altered by the parliament as they are not included in the list of provisions in Schedule 4 which the parliament will be able to modify. A partial direct answer is that the parliament would not be able to change those titles by standing orders. However—this answers the other part of the noble and learned Lord's question—it would be possible for the parliament in its standing orders to make provisions about the forms of address to be used in the proceedings of parliament if it so wished. It may choose to use terms other than those prescribed in the Bill within its own proceedings. But I am also sure that the parliament would wish to consider carefully whether it was appropriate for someone to be addressed other than by his legal title, bearing in mind the potential risk of public confusion. No doubt the parliament will wish to have regard to what terms become common usage among the public at large. Ultimately that usage would be a matter for the parliament to decide. I ask the noble Lord to withdraw the amendment.

Lord Steel of Aikwood

My Lords, the Government are being ridiculous on this question. I think that the word "fatuous" has been used. We could go through Roget's Thesaurus and produce a list of adjectives. It is a nonsensical argument which we have had over and again. The fact is that the parliament in Scotland will decide what to call its officials, as the Assembly in Northern Ireland has already done, and as is allowed for in the Government of Wales Bill. Why the Scotland Bill should be different from those two I do not understand.

I have a constructive suggestion to make to the Government. Why do they not convene a focus group and put all the titles to that group? I understand that that is the convention of the Labour Party. It would find that none of the titles had any resonance and common sense might be introduced before we reach Third Reading.

Lord Mackay of Ardbrecknish

My Lords, the reason that we return to the matter again and again is that we are overcome with amusement at the Government's arguments. They have gone a little further tonight. They have tried some new arguments: that there might be confusion with the Premier Division. My noble and learned friend Lord Mackay of Drumadoon who knows about these matters points out that in the higher courts of Scotland there is a First Division and a Second Division. Does the noble Baroness think that plaintiffs arraigned before either of those courts believe that they are going to a football match? Of course not. I think that that perhaps takes the prize.

My noble and learned friend also points out that in a court case reported recently the Lord Advocate had to oppose "Robbie the Pict". If someone can be called "Robbie the Pict" in legal journals, it seems to me that someone can be called Premier or First Minister.

The argument is definitely Alice in Wonderland. The noble Baroness's position is, "Words mean what I say they mean, and that is it". She answered my noble and learned friend Lord Fraser of Carmyllie with a "partial" direct answer. It is either a direct answer or it is not a direct answer. One cannot have a partial direct answer.

Like the other two noble Lords who have spoken, I cannot understand why the Government do not see how ridiculous their position is. The simple fact of the matter is that these people will be called what I think common parlance demands that they be called: that is, Prime Minister or Premier. I prefer the government to start with Premier; they might get that to hold. If they do not do so, the title will be Prime Minister. There is the Speaker. There is the First Minister; we have dealt with him. The other chaps and "chapesses" will be called Ministers. That is the simple fact of the matter. I believe that the Government are behaving most amazingly.

I should like to put in the Bill proper names for those people—names which are understood around the English speaking world, as my noble friend Lord Renton said. At the very least we should make it clear on the face of the Bill that the parliament can make its own decisions. We shall probably return to the matter at Third Reading to see whether the Government can come forward with any better arguments. I am almost tempted to say that we may give them a prize for the best argument they come up with. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.15 p.m.

Clause 41 [The Scottish Executive]:

[Amendments Nos. 139B and 139C not moved.]

Lord Mackay of Ardbrecknish moved Amendment No. 140: Page 19, line 2, at end insert— ("() No Minister of the Crown may be appointed as a Scottish Minister (including as a Scottish Law Officer).").

The noble Lord said: My Lords, this and the related amendment deal with overlapping memberships. Until yesterday morning, the amendment was described in both the Welsh and Scottish Bills as "the Ron Davies amendment". Unfortunately, we have to change that. The problem is that as this and the Welsh Bill are constructed, it is possible for one and the same person to be a Minister of the Crown and a First Secretary or junior Minister in the Scottish government.

Earlier in our proceedings during discussions on agriculture and fisheries, the noble Lord, Lord Sewel, made it clear that: UK Ministers are accountable to a UK Parliament and Scottish Ministers are accountable to the Scottish parliament".—[Official Report, 28/7/98; col. 1434.] The Minister was absolutely right. That is how it will be and that is how it should be. How is it possible for someone to be answerable to the Scottish parliament and to the UK parliament, which are different governments with different responsibilities, different collective Cabinet responsibility and different accountability? It is just not possible.

Earlier in the year Mr. Donald Dewar thought for a moment or two that he might at the same time be Secretary of State for Scotland and First Minister. I suppose that I had better use the term "First Minister" or I shall be sent to the tower for such an infringement of the Government's legalistic view. Mr. Donald Dewar, being an intelligent and honourable man, quickly realised that that was a ridiculous position and indicated that it would not be carried forward. It is a ridiculous position. No one should be allowed to contemplate it. That is true also for the other Ministers. My amendments simply put on the face of the Bill what I believe should be the position. It is that no Minister of the Crown in the United Kingdom Government can at the same time be a Minister in the Scottish parliament.

The noble Lord, Lord Sewel, in his defence, tried to flatter me by saying that my services might be needed by both governments looking after the same portfolio. Even that amount of flattery did not persuade me of the argument. I am not persuaded at all. I believe that we should make it clear that no one should be allowed to do both jobs. It is incompatible with the way we look at government and ministerial accountability. How can the same person be accountable to two different parliaments perhaps for two different policies? It is just not possible.

Therefore, I believe that we should put the words in my amendment on the face of the Bill so that it is clear for all time that no Minister of the Crown may be appointed a Scottish Minister, including a Scottish Law Officer, and no Minister of the Crown may be appointed as a junior Scottish Minister. I cannot believe that the noble Lord, Lord Sewel, will say that he can conceive of a circumstance—I hope that he does not give the same one that he tried last time—in which it might be otherwise. I beg to move, in the hope that the Government will either take the amendments on board or promise to return at Third Reading with their own amendment.

Lord Renton

My Lords, when the noble Lord replies, I wonder whether he will enlighten your Lordships as to whether, if somebody is both a Minister of the Crown and a Scottish Minister, he will be able to draw the salaries of both appointments.

Lord Stodart of Leaston

My Lords, I take the greatest risk in intervening, first, as a simple farmer talking about the professions, and, secondly, because of my fairly recent deficiency.

In the vintage days of Ross there were times in the Scottish Standing Committee in another place when there was kudos in taking 40 minutes to make a speech. I achieved that in a debate on the laws of land and tenancy in the Shetlands. I cannot remember the exact title of the debate.

Just today I remembered some advice I had before I got into another place in 1959. I would repeat it to the Opposition then. It was not totally unfounded. It concerned the use of chattels or small items involved in a will. I have only heard today that great expression called praepositus. None of the Opposition knew what I was talking about then.

I have had these glimmers of interest in and professional advice about the law, and I admire the profession. But I would not dream of doing anything other than supporting the argument.

Lord Sewel

My Lords, when we discussed this issue earlier, I offered an argument in defence of the position which was crafted carefully and deliberately to attempt to protect the future employment prospects of the noble Lord, Lord Mackay of Ardbrecknish. On that occasion, he spurned my offer so I took back that argument.

Seriously, we have looked at this matter and I recognise that there is a significant tension between the concepts of both ministerial accountability and collective responsibility and membership by the same person of two different executives. I assure the noble Lord, Lord Mackay of Ardbrecknish, that we have every intention of coming forward on Third Reading with amendments which will deal with this point, both for members of the Scottish executive and junior members, ensuring that they cannot hold office in the two executives concurrently.

Lord Mackay of Ardbrecknish

My Lords, bang goes one good set of amendments that could have given us a lot of sport! Having said that, I am grateful to the Minister. It is common sense and I am pleased that he has seen it. He obviously reflected on his argument on the last occasion and thought that it was not well founded. It seemed to be founded entirely on my position 20 years in the future. He probably realised that the Scottish parliament would be in a perilous state if, in 20 years time, it had to rely on my efforts. However, my noble friend Lord Renton is living proof that, if I were as fit as he, 20 years would not make much difference and I would be able to come to Scotland's aid in those circumstances.

Lord Sewel

My Lords, I might take back the offer if the noble Lord continues.

Lord Mackay of Ardbrecknish

My Lords, I am grateful to the Minister. This is sensible. It makes the position clear for the future. I am grateful for his comments and for accepting the principle behind the proposal. I look forward to his amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 [The Scottish Law Officers]:

Lord Hardie moved Amendment No. 140A: Page 20, line 16, at end insert— ("(1A) The Lord Advocate and the Solicitor General for Scotland may at any time resign and shall do so if the Parliament resolves that the Scottish Executive no longer enjoys the confidence of the Parliament. (1B) Where the Lord Advocate resigns in consequence of such a resolution, he shall be deemed to continue in office until the warrant of appointment of the person succeeding to the office of Lord Advocate is granted, but only for the purpose of exercising his retained functions. (1C) Subsection (1B) is without prejudice to section 287 of the Criminal Procedure (Scotland) Act 1995 (demission of office by Lord Advocate).").

The noble and learned Lord said: My Lords, during consideration of the Bill in Committee, the noble and learned Lord, Lord Rodger of Earlsferry, raised some points upon whether the Lord Advocate could resign and whether he would be required to do so in the event of the parliament resolving that the Scottish executive no longer enjoyed the confidence of the parliament. That led us to consider further whether the Bill deals adequately with the Scottish Law Officers' right to resign and the circumstances in which they should be required to resign. Although there is nothing in the Bill which prevents the Scottish Law Officers from being able to resign, further reflection has led the Government to conclude that the Bill should make it clear that they are able to do so.

Clause 42(2) requires the First Minister to tender his resignation to Her Majesty if the parliament resolves that the Scottish executive no longer enjoys the confidence of the parliament. Clause 44(3)(c) requires a Minister appointed by the First Minister under Clause 44 to resign in the same circumstances and Clause 46(4)(c) also requires a Junior Scottish Minister to resign in those circumstances. As presently drafted, the Bill does not impose the same requirement on the Scottish Law Officers, although there is nothing to prevent them from doing so voluntarily. We reflected on that point also and concluded that the Bill should provide that the Scottish Law Officers should also be required to tender their resignations if the parliament resolves that the Scottish executive no longer enjoys the confidence of the parliament.

Amendment 140A contains savings provisions to provide that where the Lord Advocate is required to resign, he shall be deemed to continue in office until his successor is appointed for the purposes of the retained functions. It is important that there should always be a Lord Advocate for the purposes of the conduct of solemn criminal proceedings because all indictments run in the name of the Lord Advocate of the day and would fall if he demits office. I say that, though noble Lords may be aware from newspapers that there is a recent exception in Dumbarton. There is already an express provision in Section 287 of the Criminal Procedure (Scotland) Act 1995 for indictments to remain effective even although the Lord Advocate has demitted office and, where the office of Lord Advocate is vacant, for indictments to be brought in the name of the Solicitor-General. Amendment 140A provides for that provision to continue to have effect. However, as this existing savings provision is only for criminal proceedings, a general saving provision is also required for the purposes of the other retained functions of the Lord Advocate—in particular, his functions in relation to civil proceedings or his other Law Officer functions. I beg to move.

On Question, amendment agreed to.

Lord Selkirk of Douglas moved Amendment No. 141:

Page 20, line 16, at end insert—

("() The Lord Advocate and Solicitor General for Scotland shall each be qualified as either—

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

The noble Lord said: My Lords, this issue was ventilated in earlier debates on the Bill. As the House well knows, in the 1920s the issue was raised as to whether the Lord Advocate can be either an advocate or a solicitor. At that time there was a proposal that a Glasgow solicitor should be appointed Lord Advocate. That proposal was rejected. Since then thinking has advanced considerably. Indeed, the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, which I took through the House of Commons, gave to solicitors the right to apply for rights of audience in the higher courts. I took that Bill through and believe strongly that solicitors should not be discriminated against when they are solicitor advocates and qualified as such. It is reasonable that suitably qualified solicitors should be able to become Lord Advocate and this amendment seeks to ensure that there is no bar to a solicitor becoming Lord Advocate.

Solicitor advocates can choose to be qualified either in the higher civil courts or in the higher criminal courts or in both. I can well understand that the Lord Advocate might advance the view and insist on only solicitor advocates who are qualified in both civil and criminal law being considered for appointment. I believe that it will be a sad day for Scotland if the Lord Advocate seeks to close off the tap to a considerable reservoir of legal talent. If he will not agree to this amendment, I hope that in due course noble Lords will seek to test the opinion of the House. I beg to move.

10.30 p.m.

Lord Fraser of Carmyllie

My Lords, this is a matter which has been considered previously during Committee stage. When it fell to the noble and learned Lord the Lord Advocate to respond he said, It is said that it was a radical suggestion that a solicitor should be appointed as Lord Advocate. The Lord President of the day—Lord President Clyde—wrote a memorandum to Downing Street, which was published. That memorandum states clearly that it is part of the unwritten constitutional law of the land that the Lord Advocate and Solicitor-General for Scotland are appointed from among the members of the Scottish Bar. That springs, in the same way as other parts of the law, from long custom. It has not been felt necessary in the past to prescribe the qualifications for office of the Scottish Law Officers and it is not clear why that should be necessary now".—[Official Report, 28/7/98; cols. 1484–5.] When I read those words a tear of reassurance welled in my eye to know that the noble and learned Lord the Lord Advocate was still properly discharging the task that he previously occupied as shop steward for the Faculty of Advocates and that even in this soi-disant, radical Government the courses of reaction should be so prominent. I was pleased and reassured by that.

However, when we came to deal with the matter at a later stage when my noble and learned friend Lord Mackay of Drumadoon moved an amendment that the Advocate-General, which was a newly-created post, should be qualified as an advocate or a solicitor under the Solicitors (Scotland) Act 1980, in response the noble and learned Lord the Lord Advocate said, As noble Lords will be aware, the offices of Lord Advocate and Solicitor-General are held by custom by members of the Scottish Bar". He is still absolutely on track and discharging the proper responsibilities of a shop steward. He continued: It has not been felt necessary in the past to prescribe the qualifications for those offices. It is not clear why that should be necessary in respect of the new office". I am still deeply reassured that the noble and learned Lord still has these characteristic reactions within his thinking. He continued, Effectively, although the office of Advocate General is new, it will have functions similar to those held by the Lord Advocate. He or she will have to give advice to the United Kingdom Government on Scots law". Up to this point I am really charmed by the argument and very keen to part company with my noble and learned friend Lord Mackay of Drumadoon. Suddenly, a couple of minutes later, the Lord Advocate gets a radical spring in his step and goes on to ask why issues of qualification should be put in statute. He said: Why should the Prime Minister not be entitled, if he thinks it appropriate, to appoint a professor who is not a member of either branch of the profession?"—[Official Report, 6/10/98; col. 376.] That might be a good argument. It is certainly an alternative argument. What we need to resolve this evening is whether the argument which the noble and learned Lord first advanced, that there are unwritten rules about the role of the Scottish Law Officers and that we should not have them in any sense put about with express requirements, but should leave the practice as unwritten—that is an exceptionally good ruse to ensure that it remains within the purview of the Faculty of Advocates—is his true position rather than the completely different argument that he then advanced: that there should effectively be no qualification requirements for any one of the three law officers.

More seriously, I must advise the Government that those are two distinct arguments and it is not possible to ride both of them at the same time. If the noble and learned Lord thinks that it is time to acknowledge, as my noble friend Lord Selkirk of Douglas indicated, that there are those now qualified in the law of Scotland in respect of whom there is no reason why they should not become Lord Advocate or Solicitor General, given the rights of audience that they enjoy in the higher courts, then we should now put it on the face of the statute, or at least acknowledge that solicitors with those qualifications should be capable of occupying any one of the three roles. It is time to bring this to an end. We must discover whether these three high legal offices in the law of Scotland are to be open on a far wider basis or whether there will continue to be the narrow restriction pursued in the past.

Lord Renton

My Lords, a very powerful argument in favour of the amendment moved by my noble friend Lord Selkirk of Douglas and an argument which has not yet been put before the House is that the amendment would have the advantage of removing at last the historic anomaly whereby a solicitor may not become Solicitor-General.

Lord Mackay of Ardbrecknish

My Lords, I intervene only briefly in this debate because, as the House knows, I am the only Mackay who is not a lawyer. Therefore, I am here in the guise of referee.

I have not yet heard the argument of the noble and learned Lord the Lord Advocate, but he will have to work pretty hard to convince me that my noble friend Lord Selkirk of Douglas does not have a point. From the outside, there appear to be some pretty archaic and arcane divisions in the legal profession. Perhaps I say that because my son is a solicitor and would not qualify for either of these high offices, although I doubt whether he would want to be considered. It seems a bit ridiculous in this day and age, especially when some solicitors are allowed to appear in the higher courts, that a distinction should still be made with regard to the offices of Lord Advocate and Solicitor-General.

Unless my noble friend Lord Selkirk of Douglas is convinced by the arguments which are about to be led by the noble and learned Lord the Lord Advocate, I shall be happy to support him in the Lobby if he chooses to press the amendment to a Division.

Lord Hardie

My Lords, as has been said, the amendment would require the law officers to the Scottish executive to be legally qualified in Scotland either as an advocate or as a solicitor. That is the extent of the amendment. It does not specify that any solicitor has to have rights of audience, so we could be talking in terms of an advocate or solicitor of one day's standing being appointed. I am sure that that was not the intention.

As noble Lords will be aware, the offices of Lord Advocate and Solicitor-General are held by custom by senior members of the Scottish Bar. The noble and learned Lord, Lord Fraser of Carmyllie, is correct that that was the position that I adopted both at the last Committee stage and in respect of the Advocate General. As I explained in Committee, it has not been felt necessary in the past to prescribe the qualifications for office of the Law Officers and I am still at a loss to understand why that is necessary now. To do so would be inconsistent with the Government's intention to legislate for a responsible parliament and executive which can be expected to ensure that holders of those vital offices are qualified for them. Surely that is the only question for the First Minister and the executive of the day.

As the noble and learned Lord, Lord Fraser of Carmyllie, stated, I referred at the Committee stage to the memorandum prepared by the first Lord President Clyde in 1924. In referring to that memorandum I did not say that I considered it inappropriate to appoint as Law Officers anyone who is not a member of the Faculty of Advocates, as the noble Lord, Lord Mackay of Ardbrecknish, has suggested.

The question of a possible appointment of a solicitor to one of these offices is a matter which is not really appropriate for this Bill. As with the appointment of any Minister, including the Law Officers, the decision as to who should be appointed is essentially for either the First Minister in Scotland or the Prime Minister in the context of the United Kingdom. There is nothing in the Bill to prevent a suitably qualified solicitor from being appointed as a Scottish Law Officer. But, just as I would not expect an advocate of one day standing to be appointed, I would not expect a solicitor of one day standing to be appointed.

The advent of rights of audience for solicitors and of solicitor-advocates may well give rise to a question as to whether it is strictly necessary for the Lord Advocate and the Solicitor-General to be drawn only from the Faculty of Advocates. I would suggest to the noble Lord that there are a number of interests which it would be appropriate to consult before proceeding with any change on this matter. In view of the wide range of the Law Officers' responsibilities, both formal and informal, the most important qualification is that he or she should command the respect of the courts, the respect of the legal profession and the respect of those that the Law Officers are appointed to advise, including the Scottish parliament.

At a previous stage of the Bill, the noble and learned Lord, Lord Hope of Craighead—who is not in his seat this evening—emphasised that the most important qualification was the need for someone of standing in the eyes of the court. That is the qualification that is required, not the formal qualification.

While it is true that more solicitors are seeking rights of audience in the supreme courts, they may only have rights if they satisfy certain criteria. Even then, at the present time very few have rights in both Supreme Courts—civil and criminal. Part of the function of the Lord Advocate is to deal with both civil and criminal law in the Supreme Court. It would be extremely difficult for someone who did not have a right of audience in both courts to hold office as either Lord Advocate or Solicitor General. This may be an issue which, in the fullness of time, the Scottish parliament may wish to consider, but it is not an appropriate subject for this Bill.

As I indicated at the outset, the amendment as it is framed could result in a newly-qualified advocate or solicitor, with no standing in the eyes of the courts, being appointed.

Lord Mackay of Ardbrecknish

My Lords, perhaps I may intervene. I am puzzled by that particular line of argument. Is there anything in the statute now that prevents a lawyer who was admitted to the Bar yesterday being appointed Lord Advocate? I understand that there is not. It is common sense that he or she would not be. It is not a terribly good argument for the noble and learned Lord the Lord Advocate to be advancing that, somehow or other, this amendment would mean that people would take leave of their senses and appoint somebody who had just been admitted to the Bar.

Lord Hardie

My Lords, I accept that there is no question of any statutory provision about the qualifications that are required at present. It is a matter of custom. As I have said, the noble and learned Lord, Lord Hope of Craighead, emphasised that the most important feature was the candidate's standing in the eyes of the court.

10.45 p.m.

Lord Fraser of Carmyllie

My Lords, I am most grateful to the noble and learned Lord for giving way. When we discussed the issue of the qualifications of the Advocate-General in Committee on 8th October, it was the noble and learned Lord the Lord Advocate who drew the parallel between the qualifications of those who held the office of Lord Advocate and Solicitor-General and the qualifications of the person who might be appointed to this new office of Advocate-General. Perhaps I may say to the noble and learned Lord that it seems to be an entirely apt parallel to be drawn. But where the noble and learned Lord loses me in his argument is that he has indicated that the qualifications of the Lord Advocate and Solicitor-General might be subsequently determined by the Scottish parliament. However, that cannot be true in respect of the Advocate-General because he will be an officer of the Westminster Parliament. If the Government are to develop a consistent argument, it must be true that what is said about the Lord Advocate and the Solicitor-General is equally true of the position of the Advocate-General.

Lord Hardie

My Lords, the noble and learned Lord will be aware that this amendment deals with the qualifications of the Lord Advocate and the Solicitor-General and not the Advocate-General. We had a vote on the Advocate-General and the House decided the issue. As far as concerns the Lord Advocate and the Solicitor-General, the fact of the matter is that after May that matter will be devolved. Is it appropriate for this Parliament to stipulate what qualifications should be required of these two offices, which will be offices of the Scottish parliament? At the end of the day, it will be a matter for the First Minister to decide who he will appoint, and there is nothing to prevent him from appointing a solicitor or a professor of law. It would have to be someone who had a standing in the eyes of the court.

Lord Fraser of Carmyllie

My Lords, the noble and learned Lord keeps saying that it will be someone of standing in the eyes of the court. I would hope that whoever is the Premier would appoint someone to these offices who enjoyed a standing in the eyes of the court. However, I have to say that it seems to me to be essentially an irrelevance because in appointing this individual it would be wholly unprecedented for the Prime Minister of the United Kingdom formally to request an opinion of the Scottish courts as to whether "X" was acceptable in the eyes of the court. It is a matter which lies within the political judgment of the First Minister or the Prime Minister of the day. I do not think the noble and learned Lord can escape by looking towards what might be the attitude of the court on the acceptability of a particular individual's qualifications and experience as a way to ensure that the right person was available.

Lord Renton

My Lords, before my noble and learned friend sits down, does he agree that within living memory, and perhaps going back centuries, every Law Officer on both sides of the Border has been appointed because he was already a King's Counsel or a Queen's Counsel?

Lord Fraser of Carmyllie

My Lords, with the leave of the House, I do not think I can respond to that point because I had intervened in the speech of the noble and learned Lord the Lord Advocate.

Lord Hardie

My Lords, to answer the point raised by the noble Lord, Lord Renton, I think that there have been one or two exceptions in recent years. The noble and learned Lord, Lord Fraser of Carmyllie, could confirm his status at the date of his appointment as Solicitor-General. I think that the last Solicitor-General was made a Queen's Counsel the day before his appointment. It was certainly fairly close to it.

I accept that this is a political issue for the Prime Minister or the First Minister of the day. However, the noble and learned Lord, Lord Fraser, will be aware that Prime Ministers—and, it is to be hoped, the First Minister—will not operate in a vacuum and will make appropriate inquiries about prospective candidates so that they will know what view the court may hold of a particular prospective candidate.

In short, I go back to the position outlined by the noble and learned Lord, Lord Hope of Craighead, that it is essential to have someone who has the confidence of the court. We know that, in practice, the politicians will take soundings to ensure that the appropriate person has that. All I am saying is that it is not appropriate to fetter the discretion of the First Minister by putting on the face of the Bill qualifications which may in fact have the effect of excluding certain candidates. In those circumstances, I ask the noble Lord to withdraw the amendment.

Lord Steel of Aikwood

My Lords, before the Minister sits down, I should like to make one point. It seems to me that the noble Lord, Lord Selkirk of Douglas, is simply trying to extend the range of people from whom the Premier may appoint the Lord Advocate and Solicitor-General. If it is a choice between the Lord Advocate quoting from the grandfather of the noble and learned Lord, Lord Clyde, in 1922 and custom or the radicals on the Conservative Benches, I think, on balance, we prefer the latter.

Lord Hardie

My Lords, perhaps I may deal with the noble Lord's point. It is not a question of extending the range of people from whom the Prime Minister may choose. I have said that the Prime Minister can choose whom he wishes, but the practice has been to appoint someone who has had a certain standing in the courts and someone who, traditionally, has been at the Bar—almost invariably at the senior Bar. Therefore, I am not restricting the Prime Minister's choice; nor, indeed, am I restricting the First Minister's choice. The latter will simply choose who he or she thinks is the appropriate candidate to be Lord Advocate or Solicitor-General.

Lord Selkirk of Douglas

My Lords, I have listened most carefully to what has been said and I am very grateful to noble Lords for their support of my amendment. I am particularly grateful to the noble Lord, Lord Steel of Aikwood. Indeed, he is absolutely right to suggest that what we are seeking to do is to extend the categories of those who could be eligible for consideration.

Of course, I fully accept that the noble and learned Lord the Lord Advocate is correct to say that rights of audience in both courts would be necessary and also that the person concerned should be of standing in the eyes of the court and have its confidence. However, the noble and learned Lord advanced an argument that appointments in the past have only been made by custom and that, by custom, those appointed have been advocates.

If I may say so, during all the long and distinguished years in which Lord Advocates have been appointed, not one woman has ever been appointed. It could equally well be argued that women have not been appointed as a matter of custom. I would not for one second defend that particular argument, but what we want is the best man or woman for the job. That is the test: the best man or woman for the job, and one of standing in the eyes of the court. The person might be an advocate or a solicitor/advocate; indeed, it might be a man or a woman. However, either way, we should aim for advancement on merit. Because the noble and learned Lord is reluctant to accept that principle, I seek to test the opinion of the House.

10.53 p.m.

On Question, Whether the said amendment (No. 141) shall be agreed to?

Their Lordships divided: Contents, 34; Not-Contents, 71.

Division No. 3
CONTENTS
Annaly, L.	Lyell, L.
Attlee, E.	Mackay of Ardbrecknish, L.
Blatch, B.	Mackay of Drumadoon, L.
Byford, B.	Mackie of Benshie, L.
Carlisle, E.	Mar and Kellie, E.
Carnegy of Lour, B.	Monson, L.
Carnock, L.	Montrose, D.
Chesham, L.	Northesk, E.
Courtown, E. [Teller.]	Phillips of Sudbury, L.
Dixon-Smith, L.	Renton, L.
Ellenborough, L.	Rowallan, L.
Fraser of Carmyllie, L.	Selkirk of Douglas, L.
Henley, L.	Steel of Aikwood, L.
HolmPatrick, L.	Strathclyde, L. [Teller.]
Hope of Craighead, L.	Thurso, V.
Kingsland, L.	Tordoff, L.
Luke, L.	Wilson of Tillyorn, L.

NOT-CONTENTS
Acton, L.	Hoyle, L.
Ahmed, L.	Hughes of Woodside, L.
Alli, L.	Hunt of Kings Heath, L.
Amos, B.	Islwyn, L.
Archer of Sandwell, L.	Jay of Paddington, B. [Lord Privy Seal.]
Bach, L.
Bassam of Brighton, L.	Judd, L.
Berkeley, L.	Kennedy of The Shaws, B.
Burlison, L.	Kintore, E.
Carmichael of Kelvingrove, L.	Lockwood, B.
Carter, L. [Teller.]	Macdonald of Tradeston, L.
Chandos, V.	McIntosh of Haringey, L. [Teller.]
Clarke of Hampstead, L.	Mackenzie of Framwellgate, L.
Clinton-Davis, L.	Monkswell, L.
Cocks of Hartcliffe, L.	Nicol, B.
Crawley, B.	Pitkeathley, B.
Davies of Coity, L.	Ponsonby of Shulbrede, L.
Davies of Oldham, L.	Puttnam, L.
Dean of Thornton-le-Fylde, B.	Ramsay of Cartvale, B.
Desai, L.	Randall of St. Budeaux, L.
Donoughue, L.	Rea, L.
Dormand of Easington, L.	Rendell of Babergh, B.
Evans of Parkside, L.	Sawyer, L.
Falconer of Thoroton, L.	Sewel, L.
Farrington of Ribbleton, B.	Simon, V.
Gordon of Strathblane, L.	Smith of Gilmorehill, B.
Goudie, B.	Stone of Blackheath, L.
Graham of Edmonton, L.	Symons of Vernham Dean, B.
Grantchester, L.	Taylor of Blackburn, L.
Grenfell, L.	Tomlinson, L.
Hardie, L.	Turner of Camden, B.
Hardy of Wath, L.	Uddin, B.
Harris of Haringey, L.	Whitty, L.
Hilton of Eggardon, B.	Williams of Mostyn, L.
Hogg of Cumbernauld, L.	Winston, L.
Hollis of Heigham, B.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

11.1 p.m.

Clause 46 [Junior Scottish Ministers]:

[Amendment No. 141A not moved.]

Lord Sewel moved Amendment No. 142:

After Clause 46, insert the following new clause—