Sitting of 18 April 1978

Preamble
The House met at half-past Two o'clock
PRAYERS
[Mr. SPEAKER in the Chair]
PRIVATE BUSINESS

  KING'S COLLEGE LONDON BILL
  Order for Third Reading read.
  To be read the Third time upon Tuesday next.

  GREATER LONDON COUNCIL (GENERAL POWERS) BILL (By Order)
  Order for consideration read.
  Bill to be considered upon Tuesday next.

  ABINGDON MARKET PLACE BILL [Lords]
    UNION THEOLOGICAL COLLEGE OF THE PRESBYTERIAN CHURCH IN IRELAND BILL [Lords]
      GREATER LONDON COUNCIL (MONEY) BILL
      Read a Second time and committed.
ORAL ANSWERS TO QUESTIONS
  ORAL ANSWERS TO QUESTIONS
  Mr. Speaker: Yesterday, brief questions and answers proved a blessing for us all. I hope that we shall have the same today.
  EDUCATION AND SCIENCE

    School Meals
    Mr. Andrew F. Bennettasked the Secretary of State for Education and Science what account she is taking of the representations received since January on her consideration of the price of school meals for the next 12 months.
    The Secretary of State for Education and Science and Paymaster General (Mrs. Shirley Williams): As my right hon. Friend the Chancellor of the Exchequer announced in his Budget Statement last Tuesday, there is to be no increase in the charge for school meals in September. Local authorities will be reimbursed for the income they would otherwise lose this financial year, and consultations with their associations about how best to do this have already started.
    Mr. Bennett: I appreciate my right hon. Friend's answer, but will she make it clear that this represents a change of Government policy and that there will be a continuing subsidy to school meals rather than merely a deferment for a short period of the date of an increase?
    Mrs. Williams: Consideration is being given to the consequence of this decision for future years.
    Mr. Tim Smith: Will the right hon. Lady say what proportion of total current expenditure on schools will now be represented by the subsidy on school meals as a result of the decision?
    Mrs. Williams: I cannot give that information without notice, but the net cost of the school meals service is £377 million for 1978–79.
    Mr. St. John-Stevas: What has happened to the Government's pledge to halve the subsidy on school meals by 1980, which I think was given in a White Paper? Furthermore, has the right hon. Lady any plans to have any consultations

    229
    with the teachers so that their role in supervising meals may be clarified?
    Mrs. Williams: I am well aware that the right hon. and learned Member for Surrey, East (Sir G. Howe) indicated that the Conservative Party felt that the charge for school meals should be increased. The orginal decision to allow the subsidy to decline was taken before two years of pay policy. It is in the light of that that the Government feel that families badly need help with school meal charges.

    School Leaver Projects (European Community Grants)
    Mr. Spearingasked the Secretary of State for Education and Science what European Economic Community funds are being made available to the Inner London Education Authority and other education authorities in England or Wales for projects concerning school leavers.
    The Under-Secretary of State for Education and Science (Miss Margaret Jackson): A programme of pilot projects is being developed under the Education Ministers' resolution of 13th December 1976 on the preparation of young people for work, and it will be jointly financed by member States and by the Community. The Commission will make grants totalling about £105,000 per year over three years to the Inner London, Sheffield and Bradford education authorities.
    Mr. Spearing: Whatever the merits of these pilot projects, which are probably required, why is it that they cannot be financed either by local authorities in the normal course of action or by the Government? Why does the EEC have to come into local education matters?
    Miss Jackson: I take my hon. Friend's point that he would wish these projects to be totally financed from this country. However, in view of the substantial sums that we pay into the coffers of the Community, there is something to be said for getting back as much as we can.
    Mr. Haselhurst: Is it not extremely important that encouragement should be given to experiments of this sort? Might there not be further initiative from the Department to ensure that children may spend more time out of school buildings in order better to pursue their preparation for work?
    Miss Jackson: It has been the policy of my Department for a considerable period to seek to encourage projects of this kind.

    Adult Literary
    Mr. Christopher Priceasked the Secretary of State for Education and Science what representations she has received about the future of the adult literacy programme.
    The Minister of State, Department of Education and Science (Mr. Gordon Oakes): Since my right hon. Friend made her announcement on 5th December last about future provision for adult literacy, my Department has received 80 letters, of which 33 were from hon. Members.
    Mr. Price: Does not my hon. Friend agree that those letters represent considerable concern about the whole future of the adult literacy programme? Could he tell us what arrangements he is making, now that central funding has ceased, to monitor the effects, particularly among local authorities that are refusing to continue provision of this service or to help the voluntary bodies which have tremendous experience in this area? If they fall down on their job, what will my hon Friend do about it?
    Mr. Oakes: We are keeping a constant watch, but I should make clear that Government involvement has not ceased. It has been transferred to local authorities, where it belongs. The provision of £1·3 million was made in the rate support grant and I am pleased to tell the House that, on the whole, local authorities are carrying out their obligations in regard to adult literacy.
    Miss Fookes: Does the Minister appreciate that many local authorities are finding it difficult to continue the service? What about the position of voluntary organisations which are running schemes and can see the money running out on them?
    Mr. Oakes: We are making provision to help some of the voluntary bodies, as are local education authorities. I have three instances of schemes in Avon, Birmingham and the Wirral where voluntary schemes have been taken over by local authorities. That is the proper way to proceed.
    Mr. Ronald Atkins: Does my hon. Friend agree that money devoted to this sort of education—what one might call the lower end—probably brings greater returns in terms of human happiness and usefulness than any other education expenditure?
    Mr. Oakes: I entirely agree with my hon. Friend. We estimate that about 150,000 students have benefited from the provisions of the scheme since 1975. We have had enormous co-operation from volunteers and from BBC programmes such as "On the Move". It has been a great success.
    Mr. Rhodes James: Is the Minister aware that the Cambridge reading project, which has done admirable work on adult literacy in my constituency, has been deprived of its central funding and that the county council, as a result of cuts in the rate support grant and the new distribution formula, is finding it very difficult to make up the deficiency? Can the hon. Gentleman give some personal involvement in this matter?
    Mr. Oakes: The project's first application should be to the local education authority, but if the hon. Gentleman will write to me I shall look into the matter to see whether I can help.

    Disabled Children
    Mr. Ashleyasked the Secretary of State for Education and Science if she remains satisfied with the educational provision for disabled children.
    Miss Margaret Jackson: As I told my hon. Friend on 14th February, my right hon. Friend will continue to seek ways of improving the quality of special education.
    Mr. Ashley: That is a very complacent reply. As only 10,000 out of 750,000 children in hospital are receiving any sort of education, is it not time that the Department woke up, did something about it and consulted other Departments? Will the Minister consult the Department of Health and Social Security, the National Union of Teachers and the Chancellor of the Exchequer and report back to the House within a month about what they propose to do?
    Miss Jackson: I am touched by my hon. Friend's faith in the speed of response
    232
    of the people he has mentioned. Education of children in hospitals is a difficult area because so many children are in hospital for a very short period. There has been an excellent document recently from the NUT which we and the DHSS are studying. We hope to make progress in this area.
    Mr. Nicholas Winterton: Does the Under-Secretary think that the maintained sector of the education system is yet capable of dealing with disabled young people, whether they be partially sighted, hard of hearing or disabled in other ways? Does she not consider that the specialist education units for the deaf and the blind will be necessary in the foreseeable future in order to ensure that these deserving groups receive an adequate education and can participate fully in adult life later?
    Miss Jackson: It may be that many of these units, which are doing excellent work, will need to continue, but in a number of parts of the country it has been possible to educate more disabled children in ordinary schools and we are studying the progress made in this way.
    Mr. Carter-Jones: Will my hon. Friend accept that access is often the main problem in educating disabled children in ordinary schools? In this place we have two simple ramps which make the House available to a substantial number of people. Will my hon. Friend please advise local education authorities of the importance of access in the provision of education for disabled children in ordinary schools?
    Miss Jackson: I entirely agree with my hon. Friend's comments. We seek constantly to remind local authorities of the importance of these matters.

    Universities (Finance)
    Mr. Silvesterasked the Secretary of State for Education and Science what discussions she has held with the University Grants Committee on financial support to the universities.
    Mr. Oakes: My right hon. Friend discussed the subject extensively when she met the committee on 17th November last, and the firm and indicated figures of recurrent grant for the years 1978–79 to 1981–82 which she announced on 10th April took its views into account.
    Mr. Silvester: Why do current grant and the provisional figures that have been quoted make no allowance for the rectification of the demoralising anomaly in university teachers' pay?
    Mr. Oakes: As the hon. Gentleman knows, negotiations on this subject are continuing. The figures anticipate pay rises of between 6 per cent. and 10 per cent and price rises of between 6 per cent. and 7 per cent. As my right hon. Friend and I have told the House, if there were substantial increases in those figures as a result of the negotiations on university teachers' pay, the cash limits would be altered accordingly.
    Mr. Beith: Is the Minister aware that the latter part of his reply will be very much welcomed by those who believe that it is the Government who are resisting any negotiated attempt to get the anomaly put right more quickly? Will he make clear that if Committee B could propose tomorrow a rapid rectification, it would have his support?
    Mr. Oakes: I hope that the matter can be resolved quickly. The whole House feels that university teachers have been extremely patient. The industrial action that has been proposed, particularly the refusal to mark examination papers, would not help the negotiations and would create a great deal of hardship for many students. I hope that it is resolved before then.
    Mr. Ron Thomas: Does my hon. Friend agree that the large sums of public expenditure devoted to universities are a clear example of public money being provided without any public accountability? Is it not time that the Government looked at the relationship between the Government and the providers of the money and the universities? We are denied any opportunity of asking Questions on industrial relations or other matters involved with universities, and it is time that this was changed.
    Mr. Oakes: It is an ancient system in this country that the financing of universities goes via the University Grants Committee, and I would not want to change the system substantially. I have never found that my hon. Friend in particular or other hon. Members have felt inhibited from asking Questions
    234
    about matters concerning universities and union representation.
    Mr. Welsh: May I draw the Minister's attention to the concern expressed by Dr. Jack Gray and the Scottish Association for Asian Studies about cut-backs and the possible withdrawal of these courses from Scottish universities? Will the hon. Gentleman meet the UGC and press that funds should be made available to maintain these courses at present levels?
    Mr. Oakes: I shall make the hon. Gentleman's views known to the committee, though it is probably aware of the matters to which he has referred Perhaps I can discuss the matter with the committee at our next meeting.

    Assessment of Performance
    Mr. Formanasked the Secretary of State for Education and Science if she is satisfied with the development of national sample testing by her Department's assessment of performance unit.
    Mrs. Shirley Williams: Yes.
    Mr. Forman: Why have the Government been so slow in acting upon Conservative advice in this area, and why are they so timid and apologetic in their application of objective sampling? Does not the Secretary of State agree that information of this sort is an indispensable basis for raising educational standards?
    Mrs. Williams: I do not follow the point made by the hon. Gentleman. The assessment of performance unit was set up in 1975 by a Labour Government after a Conservative Government had been in power for four years and had set up nothing. We are about to proceed this year towards the assessment of mathematics, next year to the assessment of languages and the year after to the assessment of science. Therefore, we are moving with all due speed. I believe that the monitoring suggested is extremely sensible and will be very useful to the educational performances of this country.
    Mr. Christopher Price: Will my right hon. Friend confirm that for the raising of standards the methods suggested by the assessment of performance unit are very much preferable to some of the

    235
    suggestions from the Conservative Party, which is creating a system of competition between individual children with results published at individual schools? Does she also agree that the recent proposals to reintroduce selective education and grammar schools would tend not to raise standards at all?
    Mrs. Williams: On the second part of my hon. Friend's question, I can think of nothing that would be more upsetting for education than to go back to the reintroduction of selection. It is astonishing that education spokesmen of the Conservative Party are now suggesting that they should bring back grammar schools when it was the Leader of the Opposition under whom the proportion of children going to comprehensive schools increased from 28 per cent. to 55 per cent. It is hard to tell where the Conservative Party stands.
    As to testing, I wholly agree with my hon. Friend. The experience of the United States, which attempted to test every pupil in certain States, led to the following conclusion by the National Education Association, a non-political body:
    "The blanket use of tests … in some state assessment and local testing programmes appears to require inordinate amounts of time and resources on the part of teachers, other personnel involved … and the students themselves."
    I believe that that experience is wholly borne out by our own experience in the past.
    Mr. Raison: Is the Secretary of State prepared to take a less dogmatic view about the question of general testing? It is not a matter of creating competition. Does the right hon. Lady agree that it is a question of finding out what levels of performance exist among children, among schools and among the national system without any element of competition?
    Mrs. Williams: That is exactly what the assessment of performance unit is concerned with. It is based upon a light sampling test amounting to 2 per cent. of the children in the country. It is the considered view of those represented on the APU's governing body, which consists of teachers, educationists and a wide range of people, that this is the appropriate way to monitor performance.
    236
    It is not the Labour Party which is being dogmatic. It is the attempt to return to testing every pupil every year or so that is dogmatic.
    Dr. Boyson: We welcome the Secretary of State's statement about the sample testing. However, is she not aware that most parents are concerned about the standard of achievement of their own child and the standards of the schools to which they are going compared with the national standards?
    Although we do not want the publication of children's names, many of my hon. Friends and I believe that parents should know the standards achieved by their own children on the accountability talked about by the hon. Member for Bristol, North-West (Mr. Thomas) on the last Question and also the standards of the schools that they are attending compared with the national standards. Parents have a right to have that information if their children are to have a real chance in life.
    Mrs. Williams: Of course, we agree that they have a right to that information. That is why this Government have asked all schools to inform parents when they may see the teachers of their children and when they may see the head teachers. In addition to that, it is open to a parent to ask a teacher—indeed, it is a daily experience—how the children are doing. The evidence that I have put before the House based upon the testing in the United States shows that testing of the kind that the hon. Member for Brent, North (Dr. Boyson) continually promotes does absolutely nothing to improve the standards of education in schools—on the contrary.

    Teacher Training Candidates
    Mr. Wigleyasked the Secretary of State for Education and Science if she is satisfied with the advice given in schools to pupils wishing to go to teacher training colleges, in view of the difficulties recently experienced by young teachers in obtaining jobs.
    Miss Margaret Jackson: My Department circulates annually a new edition of its booklet "Careers in Teaching" to all careers teachers and careers officers in England and Wales. Recent editions have

    237
    included advice about the effects of the reduced number of training places.
    Mr. Wigley: Is the Minister aware of the possible serious effects that can come from the present wastage of teachers due to their unemployment? Is she aware, for instance, that there are 400 applicants for only 40 places in my county and that a large number of teachers were employed in job creation schemes last winter? Does she realise that this leads to many people in the sixth form who would otherwise have become teachers now withdrawing from doing this and that the number of those intending to go on to teacher training colleges is down to one-sixth of the previous figure obtaining in some schools? Does she realise that this will lead to a serious situation in two or three years' time? What is her reaction to it?
    Miss Jackson: We are anxious that fewer pupils should go into teacher training. We have reduced the number of places. We are anxious, however, to maintain the standards of those who attend teacher training. Nevertheless, we have done what we can, as the hon. Gentleman will know, through the rate support grant settlement, to make more money available for teacher employment. We hope and believe that local authorities will use the money in this way.
    Mr. Newens: Does my hon. Friend agree that future requirements for teaching staff should take into account the need to reduce the size of classes? Will she, therefore, reassure young people who are thinking of entering teaching that there is a worthwhile future ahead of them? Will she also press for the necessary public expenditure to be set aside in order to ensure that we can have smaller classes?
    Miss Jackson: Yes, Sir.

    University Entrants
    Mr. William Hamiltonasked the Secretary of State for Education and Science if she is aware of the widespread concern about the continuing small proportion of students from a manual worker background entering university: and what action she intends to take to resolve the problem.
    Mr. Oakes: My right hon. Friend and I fully share this concern. What might be done to increase participation by this group is one of the matters on which my
    238
    Department has invited views in its recent discussion document "Higher Education into the 1990s". Copies of the document are available in the Library.
    Mr. Hamilton: Will my hon. Friend confirm that for the last 50 years the proportion of undergraduates with a background of fathers with a manual occupation has remained unchanged at about 20 to 25 per cent.? Does he agree that this eventually percolates through to the higher echelons of the Civil Service, to the great detriment and disadvantage of Labour Governments? Will he consider setting up a working party of sons and daughters of working men to see whether we can seek a remedy to this situation?
    Mr. Oakes: I cannot go back 50 years at the moment, but I can confirm that in 1976 24 per cent. of successful university applicants were children of manual workers, and this proportion has tended to decline marginally over the last few years.
    Mr. Rifkind: Will the Minister confirm that the purpose of our educational system is not to assist Labour Governments? Will he confirm that the Government will bring no pressure on universities to apply any form of positive discrimination regarding non-educational qualifications for entry to universities?
    Mr. Oakes: I am not talking about positive discrimination, which can be insulting. However, I am concerned at the type of figure which shows that 50 per cent of the places in universities are taken by occupation groups whose parents represent 25 per cent. of the population. As the university population will inevitably decline in the 1980s because of the decline in the birth rate, universities must pay particular regard to the matter.
    Miss Joan Lestor: I support the proposition of my hon. Friend the Member for Fife, Central (Mr. Hamilton). Does not the Minister agree, however, that it is not only the section that he mentions that is at risk? There is also the maintenance of children in sixth forms and children and young people going into further education. The lack of support for them militates particularly against the lower income groups.
    Mr. Oakes: My hon. Friend makes a considerable point. The number of applications for universities from this group are less than they would otherwise be. I

    239
    am concerned that financial considerations should not deter potential higher education students from staying on in full-time education beyond the age of 16. But it is important to recognise that a system of mandatory grants for 16 to 19-yearolds would be very expensive.
    Mr. William Shelton: I believe I am right in saying—perhaps the Minister will tell me whether this is so—that the proportion in this country is higher than in Europe. It is higher than the proportion in France or Germany. Does the hon. Gentleman have those figures with him?
    Mr. Oakes: I do not have the figures with me. The types of education provided in European universities, the staff-student ratio, and so on, are so totally different from our system that it would be misleading to give figures. On all sides of the House, we would be entirely complacent to accept the present figures. Something must be done to improve them.
    Mr. Flannery: Does my hon. Friend agree with me that most people who send their children to private and so-called public schools do so because the classes are very small and, therefore, the teacher contact with each child is much greater than it is in State schools? Does not this underline that we need to reduce the number of children in our classes, to utilise all the teachers that we have available and to put more money into State education, so that the teachers will have smaller classes and can therefore teach the children better? Does my hon. Friend agree that this would help a great deal to ensure that the sons and daughters of manual workers have greater access to higher education?
    Mr. Oakes: It might help somewhat. There is no doubt that class size and performance have a great relationship to each other, but many other factors are involved. I think that my hon. Friend hit upon one of them before, and that is money.
    Dr. Boyson: Is the hon. Gentleman aware that the Opposition are as concerned about this matter as any Labour Members? Compassion and social ability are not the monopoly of the Left. Does it not strike the Minister that the decline in the proportional intake to universities
    240
    from the manual working classes has come at the same time as we have moved to comprehensive schools? These trends may be working in country and small town areas, but may it not be that in down-town areas in the centres of cities social ability has been reduced and that the deprived child from the poor background is not getting the way through that he did with good grammar schools?
    Mr. Oakes: That is a travesty of the truth. It is because O-levels and A-levels are now available and open to a much larger range of students than in the past that future prospects look brighter than they otherwise would.

    Science Research Council
    Mr. Macfarlaneasked the Secretary of State for Education and Science when she next plans to meet the chairman of the Science Research Council.
    Mrs. Shirley Williams: On Thursday, Sir.
    Mr. Macfarlane: Does the Secretary of State recognise that that is an encouraging date? Will she take the opportunity of discussing in particular with the chairman of the Science Research Council page 2 of the annual report, which states that the declining budgets which are likely to be available between now and the 1980s could well render the SRC unable to discharge its duties adequately and as it is hoped to do? Will she therefore ensure that in the long term some of the revenue from North Sea oil is diverted to helping hard-pressed British science, because in real terms the decline since 1973 has been far too significant?
    Mrs. Williams: I take the hon. Gentleman's point about North Sea oil. But he will recognise that since the report was published there has been an increase in real terms in the science budget, and that will be sustained in future years.
    Mr. Dalyell: On Thursday, will my right hon. Friend ask the chairman to give a view—perhaps prepared over several months—of the effect on the United Kingdom research pattern of the creation of a separate Scottish State?
    Mrs. Williams: I had not thought of discussing that matter with the chairman, but I shall certainly consider it in the light of my hon. Friend's representations.

    Unemployed Teachers
    Mr. George Rodgersasked the Secretary of State for Education and Science if she has any further plans to provide employment opportunities for unemployed teachers and student teachers who will become qualified in the current year.
    Mrs. Shirley Williams: In January 1978, 465,000 teachers were in employment in England and Wales, 2,700 more than in September last. My hon. Friend will also be aware that the rate support grant settlement for 1978–79 should enable local education authorities to employ nearly 471,000 teachers next school year—that is, some 11,300 more than would be needed simply to maintain previous policies. In addition, Statutory Instrument No. 422, which was laid before Parliament on 22nd March 1918, provides for the payment of superannuation benefits to certain older teachers who are retired early, which could help to create vacancies for younger teachers.
    Mr. Rodgers: I appreciate the measures that have been taken by my right hon. Friend. Does she agree, however, that it is absurd that simultaneously we should have the problem of over-size classes and unemployed teachers? In view of the anticipated further redistribution of resources by the Chancellor, will she press him to take steps to make funds available for this purpose?
    Mrs. Williams: My hon. Friend will be pleased to know that over the last three years the pupil-teacher ratio has steadily improved, and our plans indicate that it will continue to improve for at least two years ahead. In addition to the figures that I have already given, there will be vacancies for an additional 2,000 teachers in further education. The numbers of unemployed teachers have fallen from 10,500 in December last to 8,800 in March, which is some improvement.
    Sir Bernard Braine: Does the right hon. Lady nevertheless agree that there has been a tragic waste of young talent here, and does that not pose a deeper question? Is she satisfied that sufficient attention is being given currently in our schools to the gearing of education to the likely job opportunities in the next decade, when we all know that massive changes will have to take place in productive
    242
    methods and. Indeed, in jobs generally?
    Mrs. Williams: Yes, we are very much aware of that. That is one reason why we are encouraging far closer contact between schools and industry. One example in recent weeks has been the discussions that have now started with the Engineering Industry Training Board to see whether some part of the foundation year can be taken in the last year of school, particularly for those boys and girls for whom vocational education is especially attractive.
    Mr. MacFarquhar: Has my right hon. Friend had any talks with our right hon. Friend the Minister of State for Overseas Development with a view to seeing whether some of the unemployed teachers could be persuaded to go overseas to teach English and other subjects in Third world countries?
    Mrs. Williams: Yes, some consideration has been given to that matter. A number of teachers are going overseas, not only to teach English, but to help in the setting up of primary school systems—for example, in Fiji.
    Mr. Beith: Does the Secretary of State regret that she has still not found it possible to find a way of getting young trained teachers who are on the job creation scheme into the classroom by the use of those funds? Will not the whole structure of the teaching force in future years be distorted if we miss the best of the intake over these last two years?
    Mrs. Williams: On the latter point, we are making provision for additional jobs, particularly to give opportunities to the very able young people who are now trying to enter teaching. I do not believe that a figure of 11,300 more in schools and 2,000 more in further education is too shameful against an unemployment figure of 8,800.

    Adult Literacy
    Mr. Viggersasked the Secretary of State for Education and Science if she is satisfied with the current level of adult literacy.
    Mr. Oakes: No, Sir, and that is why I am glad that provision for adult literacy

    243
    is becoming a firmly established part of educational provision.
    Mr. Viggers: In view of the fact that our schools are passing out young adults 15 per cent. of whom are estimated to lack basic literacy, is it not time for a new initiative in the basic skills in schools?
    Mr. Oakes: They could not have been doing so very well in the past judging by the scale of adult literacy provision that we have had to make over the last two or three years. As my right hon. Friend said earlier, performances in schools are being looked at. We have sent out a questionnaire to local education authorities, replies to which will come in the summer, asking particularly what kind of provision is made in the teaching of English and so on.
    Mr. Gerry Fowler: Does my hon. Friend agree that while the resources for adult literacy and numeracy courses, and, indeed, for Russell priority courses as they affect the local education authority sector, largely go through the rate support grant, we shall have patchy provision? Does he further agree that some authorities will adopt what would not be the Government's priorities—for example, my local education authority, with its absurd and offensive course on fox hunting?
    Mr. Oakes: I certainly would not want the money to go on fox hunting. As I said in answer to an earlier question, the overwhelming number of authorities, which are democratically elected, are aware of their responsibilities in this area.

    Comprehensive Education
    Mr. Flanneryasked the Secretary of State for Education and Science which education authorities have not yet complied with the Education Act 1976; if any such authorities are using delaying tactics in failing to submit acceptable plans for comprehensive education: and if she will make a statement.
    Mrs. Shirley Williams: Of the 38 authorities required to submit proposals for all or part of their areas, only six have not yet complied. Of those, I expect proposals shortly from Barnet, where only one school is involved, Walsall, two
    244
    schools, and Shropshire, in respect of Newport. Proposals from Birmingham are delayed pending the outcome of my legal proceedings against the authority. The other two are Kirklees and Redbridge. I am aware of the possibility of delaying tactics and shall continue to use my powers under the Education Acts to ensure that the intentions of Parliament are carried out.
    Mr. Flannery: Does my right hon. Friend agree that the Conservative Party has repeated continually at the Dispatch Box that it is in favour of comprehensive education but that very few people agree that it is saying what it really believes? Does she also agree that a certain degree of firmness needs to be taken at this stage with those authorities which are clearly using delaying tactics and which were confident a short time ago that they would see a Conservative Government? Finally, does she agree that their hearts must have dropped recently because that chance is now receding somewhat?
    Mrs. Williams: I find myself a little puzzled. The hon. Member for Chelmsford (Mr. St. John-Stevas) said that the Conservative Party is the best friend of the comprehensive schools. His hon. Friend the Member for Brent, North (Dr. Boyson) said that it will defend the remaining grammar schools and bring them back. The hon. Member for Brent, North, in the Black Paper, also said that comprehensive schools and grammar schools were not compatible one with the other. Perhaps one of these days we shall know where the Conservative Party stands.
    Mr. Nicholas Winterton: Will the Secretary of State direct her attention to Cheshire? is she aware that her interference in that county's plans to go comprehensive by the issue of a directive in recent weeks has created complete chaos because a number of young people who had been assessed for selective education can no longer be allocated places in selective schools and there are inadequate places in the secondary sector if the county is to provide places in secondary schools which are within reasonable distance of the young pupils' homes?
    Mrs. Williams: Cheshire was warned in a circular a long time ago that we should not approve the continuation of

    245
    taking up places in selective schools. The hon. Member expressed concern about whether, when a child has entered a system of education in a selective school, we shall continue to support that child until his education has finished. Yes, we have always taken the view that we shall continue to support that child until his education is finished. The hon. Member will be receiving a reply from me to that effect shortly
    Mr. Terry Walker: Will my right hon. Friend direct her attention to Avon and the position in the Kingswood constituency? I am of the opinion that the 1976 Act is not being complied with in this connection. Will my right hon. Friend examine the situation and perhaps take some action?
    Mrs. Williams: We have recently written to Avon about some of the aspects of its comprehensive organisation. We are now awaiting a reply from that authority.
    Mr. St. John-Stevas: Does the Secretary of State agree that although local education authorities are bound to obey the law they are under no duty to fill in the gaps in the law which have been so trenchantly exposed by Mrs. Caroline Wedgwood Benn? Would not the Secretary of State be better employed in seeking to raise standards in all our schools instead of using all her efforts to destroy selective schools of proven academic worth?
    Mrs. Williams: I am determined to improve standards. But the worst thing that could possibly happen to the schools is the continuation of the constant battle in which the Opposition engage. The best way to improve standards is to settle once and for all the question of comprehensive reorganisation which has advanced so far under Governments of both parties in this country.

    Public Schools
    Mr. Bryan Daviesasked the Secretary of State for Education and Science if she will introduce legislation to integrate the public schools into the pattern of comprehensive secondary education.
    Miss Margaret Jackson: My right hon. Friend has at present no plans to do so but remains firmly committed to the long-term
    246
    aim in our manifesto of phasing out fee paying in schools.
    Mr. Davies: Does my hon. Friend accept that that is a disappointing reply? Surely there is a consensus in the House for the concept of equality of educational opportunity. Should we not therefore bring forward legislative proposals, with the support of the Opposition, to integrate the public schools so that we end the system whereby 10 times more resources are concentrated on the children of the privileged than on ordinary children? Is my hon. Friend aware that the privileged children then qualify for State subsidies in the form of higher education?
    Miss Jackson: As my hon. Friend will be aware, it is not easy to work out legislative proposals for doing what he suggests. I am sorry to tell him that there can be no prospect of the Conservative Party supporting legislation which is designed to ensure equality of opportunity in our education system. Plainly, the Conservative Party is devoted to the opposite view.
    Mr. St. John-Stevas: Will the Minister make it plain whether it is still the Labour Party's policy to make the provision of private education a criminal offence? Will she be warned by the fate of her right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley), who enunciated that policy some years ago and has since sunk without trace?
    Miss Jackson: There is no suggestion of making this a criminal offence. As for the fate of my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley), I should be happy to emulate it.
    Mr. Christopher Price: Could my hon. Friend make a little progress in this area by ensuring that, where the State provides money for boarding education through the Armed Services and the Diplomatic Corps, the grants are paid at a rate which will encourage the taking up of places in the maintained sector rather than at an inflated rate which serves only to perpetuate the public schools?
    Miss Jackson: We are considering this matter. We are anxious to do all that we can for the maintained sector of boarding education.
    Mr. William Shelton: Does the Under-Secretary accept that if she and the Government wish to phase out fee-paying schools the simple and easy way to do it is to raise standards in the maintained sector so that parents no longer wish to pay large sums of money to have their children educated privately?
    Miss Jackson: I agree that many parents are sadly deluded into thinking that one receives a better education if one pays for it. Unfortunately, an examination of the standards of many of the independent schools does not bear out that contention.

    PRIME MINISTER (ENGAGEMENTS)
    Mr. Viggersasked the Prime Minister if he will list his official engagements for Tuesday 18th April 1978.
    The Prime Minister (Mr. James Callaghan): In addition to my duties in this House, I shall be holding meetings with ministerial colleagues and others.
    Mr. Viggers: Has the Prime Minister had time today to see the Press reports which show that 977 officers are queueing to leave the Army? Is he aware that this figure represents the officer strength of 30 battalions and that the Royal Air Force may be short of 200 pilots by 1980? Is the Prime Minister aware of the disgust within the Armed Services at the Government's attitude to pay and conditions? Is he aware that this is masked only by their sense of discipline and high sense of duty?
    The Prime Minister: Yes, I have seen these interesting reports. They seem to me to be a piece of very useful information that someone has managed to get out during the period when the Government are considering this matter of pay. I congratulate the person whose initiative it was. We shall continue to consider the matter and we shall bring the answer before the House in due course.
    Mr. Urwin: I fully appreciate the extensive nature of my right hon. Friend's commitments for today, but will he try to find a little time to talk to the delegation of councillors from Sunderland who are lobbying Ministers at Westminster this week? If my right hon. Friend is not
    248
    able to do that, will he give urgent consideration to making an early visit to Wearside and the North-East to discuss these problems at greater length?
    The Prime Minister: I am aware of the request by my right hon. Friend the Member for Sunderland, North (Mr. Willey) for me to receive a deputation, but it seems better that I should receive a deputation from the North-East as a whole. That is what I propose to do.
    Mrs. Thatcher: May I press the Prime Minister a little further on the question which was put to him by my hon. Friend the Member for Gosport (Mr. Viggers)? Is he aware that those figures reveal an appalling situation in response to the Pay Review Body's decision last year and that about 7,600 people have either left the Armed Forces or have applied to leave as a result of last year's pay review? Will he agree to look at this pay claim on merit, not within the 10 per cent. guideline, otherwise we shall be in danger of having some equipment without people to service it properly?
    The Prime Minister: I am yet not sure what is the authority for these figures as no official announcement has been made. Clearly, someone has thought that it might help the pay claim if he produced them at this stage. I am unable to comment on whether or not they are accurate. If the Opposition know that they are accurate, perhaps they will tell me where they got the information. I should be interested to hear.
    Mr. Nicholas Winterton: What is your answer?
    The Prime Minister: The general position of the pay claim of the Armed Forces will be considered, as it is being considered, and an answer will be given to the House, against the background of all the other pay claims, the responsibility of the Government for the defence of the country and every other factor that must be taken into account before a decision is reached.
    Mrs. Thatcher: Is the Prime Minister saying that those figures are inaccurate or is he merely stalling? If they are accurate, is he prepared to take them into account in finalising the Armed Forces' pay claim?
    The Prime Minister: I am saying that the figures have not been officially issued.

    249
    I am not aware whether they are right or wrong. I am making inquiries about that. I believe that they were produced extremely fortuitously. I say for the third time that I shall be interested to see whether they are right or wrong. If they are right, it shows that there are better opportunities in civilian life than there are in the Armed Forces, or that many people think so. That is a factor that must be taken into account.
    I cannot be pushed into decisions on these matters without having regard to the whole of the situation that faces the country. I shall not be so pushed. I have every sympathy with the Service men.
    Mr. David Steel: May I ask the Prime Minister about Press reports on an entirely different matter? Do any of his meetings with his ministerial colleagues today relate to the Government assisting the passage of the Protection of Children Bill? If he could say something about that, it would be widely welcomed in all parts of the House.
    The Prime Minister: I regret very much that the progress of that Bill was impeded. My right hon. Friend the Leader of the House is now considering the matter to see what assistance can be given to ensure that, with the will of the House, it gets to the statute book. Where there is, as I understand it, an overwhelming view by the House, not a divided view—and I believe that this is what nearly everyone, it not everyone, wants—that the Bill should reach the statute book, I believe that the Government should do their best to help.
    Mr. Lee: Does my right hon. Friend agree that although that Bill should be given a fair wind, so also should the Bill which is being piloted through by my hon. Friend the Member for Darlington (Mr. Fletcher)? Will my right hon. Friend urge the Leader of the House to provide time for my hon. Friend's Bill too?
    The Prime Minister: Whatever sympathies I may have with these Bills, I think it is necessary to be careful about interfering with Private Members' time and saying that the Government must take responsibility for every Bill that does not manage to get through the House. I favour my hon. Friend's Bill, but there is a big division of opinion about it—
    250
    although it may involve only a small number of people—and, therefore, I do not think that the Government have the same responsibility there as they have in the case of the Protection of Children Bill

    PORTHMADOG
    Mr. Wigleyasked the Prime Minister if he will pay an official visit to Porthmadog
    The Prime Minister: I have at present no plans to visit Porthmadog much as I should like to do so.
    Mr. Wigley: Is the Prime Minister aware that in Porthmadog this winter the unemployment rate has been up to 15 per cent. and has worsened as a result of the Government's regional policies, particularly the withdrawal of REP? Is he further aware that during this period unemployment in Sweden stood at 2·1 per cent., in Austria 1·7 per cent. and in Norway 0·8 per cent.? Will he, therefore, stop peddling the myth that unemployment is a uniform problem in all Western countries?
    The Prime Minister: I do not think that the hon. Gentleman is comparing like with like. It so happens that the Government's measures have been of great assistance to Wales in the matter of employment, and that includes the investments made by the Welsh Development Agency. It is fair to say, especially on the basis of the results of a by-election last week, that the people of this country understand that the Labour Government are the best party capable of looking after the interests of the unemployed.
    Mr. Ioan Evans: As well as making his regular visits to South Wales, will my right hon. Friend travel to North Wales and refer the people there to the splendid victory at Garscadden, when nationalism was completely rejected? Will he advise the people of North Wales that, if the problem of unemployment is to be dealt with, it will be done by maintaining the economic and political unity of the people of these islands?
    The Prime Minister: Yes, I have no doubt about that, and no more has the Labour Party in Wales. If Plaid Cymru insists on independence, it will be rebuffed in Wales as the SNP was at Garscadden.
    Mr. Wyn Roberts: The people of Wales are very anxious to say "No" in the referendum vote on the Welsh Assembly. Is the Prime Minister aware that there is a danger that we shall not reach today or tomorrow the amendment to the Wales Bill dealing with the 40 per cent. requirement for the referendum which is now in the Scotland Bill?
    The Prime Minister: If the hon. Gentleman is right that people are anxious to say "No", no doubt we shall have the assistance of himself and all other hon. Members in getting the Bill through so that the people may take full advantage of the opportunity to do so.

    PRIME MINISTER (ENGAGEMENTS)
    Mr. Bryan Daviesasked the Prime Minister if he will list his engagements for Tuesday 18th April.
    The Prime Minister: I refer my hon. Friend to the reply which I have just given to the hon. Member for Gosport (Mr. Viggers).
    Mr. Davies: During a busy day, will my right hon. Friend have time to consider the rather sinister news that the Opposition appear to believe that a major priority, if they should ever form an Administration, should be to devote the best brains in Whitehall to beefing up the Contingency Planning Unit in order to defeat the trade unions in any confrontation which might arise? Is it not highly significant that the only planning that the Opposition believe in is planning of this destructive kind?
    The Prime Minister: I am not responsible for these Press reports, and I do not know whether the Opposition's attitude in these matters is sinister or naive. I do know that they do not understand the trade union movement. However, this is an interesting development. I suggest in all seriousness to the Opposition that they might consider publishing this report in order to avoid any sinister implications being put upon it.
    Mr. Tebbit: Will the Prime Minister spare us a little of his expertise on these matters since it was he who became the first Prime Minister for many years to use
    252
    troops for strike breaking, as he did during the fire brigade strike? Is he aware that we regard him as a bit of an expert on using troops for strike breaking and even in getting the approval of his hon. Friends to do so?
    Mr. Nicholas Winterton: Sunk without trace.
    The Prime Minister: I should like to deny the allegation that there were cries of "Author" when the hon. Gentleman rose to his feet to deal with this report. It is fair to say, however, that on the whole the Conservative Party tends in its dealings with the trade unions to be aggressive when it should be accommodating and to be timid when it should be bold. If the Conservatives would like me to hold a seminar on this question, I should be happy to do so.
    Mr. Skinner: Will my right hon. Friend accept from me as one who did not support him in his attempt to defeat the firemen that I should like him to turn his attention to another very important matter of saving jobs? Is he aware that the Minister of Agriculture is meeting the Bakers Union representatives today with a view to saving 4,200 jobs which will be lost because of the recent agreement to close down Spillers? Is he aware that the argument about spare capacity is no longer acceptable to these men? They are being asked to work 12-hour instead of 8-hour shifts. Is my right hon. Friend aware that from 22nd April, if these jobs are not saved, there will be an overtime ban in the baking industry?
    The Prime Minister: I am sure that on reflection my hon. Friend would not want to spread the belief that the firemen were defeated. They were not. They had an increase of 10 per cent. plus a pledge that their conditions would be brought up to the proper level over a two-year period. That was not a defeat but was a fair settlement for everybody. I hope that the information my hon. Friend gave me about the bakers will be brought out in the discussions with Ministers. That is the appropriate place for it to be discussed.
    Mr. Powell: Is it not absurd and derogatory to this House that, unlike any other Minister, the Prime Minister should be expected to answer without notice

    253
    questions of detailed fact? If this sort of programme is required, would it not be better on the radio?
    The Prime Minister: It is true that the character of Prime Minister's Questions—I do not know about the answers—has changed over a period of years. They seem to have become much more an opportunity to make party points and to reply to them than used to be the case. I regret that development. As far as I can, I try to prepare myself for it as long as the House wishes to do it in that way, but I believe that there is a better way of spending 15 minutes.
    Mr. Ashley: If my right hon. Friend manages to find time to meet the Spillers company, will he tell it that as a result of its ruthless action in sacking 8,000 men without notice—many of them in my constituency—there will be acute shortages of bread all over Britain? Will the Government now lean on this firm to reopen negotiations about the closing of those bakeries?
    The Prime Minister: I shall refer what my hon. Friend said to the appropriate Ministers and they must take due note of it.
    Mr. Burden: As there is a great deal of today still left, will the Prime Minister return to 10 Downing Street and ask questions about the position in the Armed Forces? If what is stated is true, it is tragic that men who have served and acquired the necessary expertise for a modern army are now leaving it. Is he aware that it will create a desperate situation in the future unless this man drain is stopped?
    The Prime Minister: The hon. Gentleman need have no fears. As soon as I saw this report on the tape at 1 o'clock, I asked that inquiries should be made. I did not have the replies by the time I came here at 2.30. I shall have the reply and we shall be able to check and see. [Interruption.] I work during the morning and do not spend the morning reading the tape. I saw it at 1 o'clock.
    My guess is that these figures are probably correct, because I dare say that whoever has let them out in order to influence opinion would have taken very good care to ensure that they were correct. If so, of course, they display a disturbing feature of the Armed Forces drain,
    254
    although I understand that recruitment is going well.
    But all this must be taken into account against the national situation, and I shall not be pushed on this matter any more than on any other. The Armed Forces will get a square deal—no more and no less.

QUESTIONS TO MINISTERS, (MR. SPEAKER'S RULING)
Mr. Speaker: Mr. Eyre—to raise a point of order.
Mr. Eyre: On a point of order, Mr. Speaker. At Prime Minister's Questions last Thursday, my hon. Friend the Member for Manchester, Withington (Mr. Silvester) raised the question of the distribution of leaflets to schoolchildren urging them to become members of the National Union of School Students and, to those who replied, further giving them information as to how disruptive activities should be carried on in schools. Although my hon. Friend's question included reference to the National Front as well as the Young Socialists, the Prime Minister declined to answer on the ground that the activities of the Young Socialists did not give rise to ministerial responsibility. The Prime Minister added that it would be wrong of him to use the Dispatch Box to make comments about party matters.
Left-wing activists in Birmingham, including the Young Socialists, are similarly working hard to distribute these leaflets and to encourage disruptive activity of this kind, and I wish to put a Question to the Prime Minister on 2nd May on this issue. In my submission, it is the nature of the activity rather than the agencies by which it is pursued that gives rise to ministerial responsibility, and these activities have widespread and serious consequences for society as a whole.
In these circumstances, Mr. Speaker, I ask you to give me guidance as to the manner in which ministerial responsibility, including Prime Ministerial responsibility, can arise in matters of this kind.
Mr. Speaker: First, perhaps I may say that the hon. Gentleman had sought to raise this point of order yesterday. I

255
have apologised privately to him for the fact that I overlooked calling him and moved on to other business.
When the hon. Member for Manchester, Withington (Mr. Silvester) asked the Prime Minister on Thursday last to consider the damage done by the distribution to schools of 100,000 leaflets by the Young Socialists, the Prime Minister replied that he had no official responsibility. This reply accords with the long-standing position that Ministers are not answerable to the House for party matters. There is, however, undoubted ministerial responsibility for what happens in schools. It would be open to the hon. Member to question the responsible Minister, for example, about the rules governing the reception and distribution of political leaflets in schools.
Mr. Heffer: Further to that point of order, Mr. Speaker. In view of the fact that the matter has now been raised in the House by the hon. Member for Birmingham, Hall Green (Mr Eyre), and in view of the fact that the Prime Minister was quite right to say that there was no ministerial responsibility will you give a ruling on the question, Mr. Speaker, because in fact the position is that the Young Socialists' leaflet pointed out only that there was a National Union of School Students affiliated to the National Union of Students? The former has two full-time organisers under the aegis of the National Union of Students. All that she Young Socialists did in their leaflet was to point out that anyone who wished to associate himself with that union could do so, and that is all, Mr. Speaker. On that basis, is it not quite wrong that hon. Members should take advantage of the House in order to raise extraneous matters that are political questions for parties and not matters for the House?
Mr. Speaker: Order. I have made it clear that the responsible Minister may be questioned in the House about what happens in schools.
Mr. Eldon Griffiths: Further to that point of order, Mr. Speaker I think that you have made it clear now that, in spite of the Prime Minister's view, it will be possible for hon. Members to pit down Questions to the Secretary of State for Education and Science about matters
256
arising in the schools. I should like to put this further point to you, Mr. Speaker Since the content of those leaflets in some respects was an incitement to public disorder—
Mr. Heffer: Rubbish!
Mr. Griffiths: —there is a question whether the police service may be involved in dealing with those problems of public order. May I ask you, Mr. Speaker, to rule also that it is proper to put down Questions to the Home Secretary as a result of matters arising from the leaflets referred to by my hon. Friend the Member for Birmingham, Hall Green (Mr. Eyre)?
Mr. Heffer rose—
Mr. Speaker: Order. I have made the position perfectly clear. The Secretary of State for Education and Science can be questioned about what happens in schools. If the hon. Gentleman can get any Question past the Table Office, I shall wish him the best of luck. But it is not for me to say offhand which Questions can be addressed. I have given a ruling on the important issue.
Mr. Heffer: Further to that point of order, Mr. Speaker.
Mr. Speaker: Order. I hope that both sides will not try to argue the matter out. I understand the strong feelings of the hon. Member for Liverpool, Walton (Mr. Heffer) on the question. If he has a real point of order for me to answer, I shall, of course, gladly answer it.
Mr. Heffer: Further to that point of order, Mr. Speaker. We really ought to have protection from statements made that the leaflet—[Interruption.]
Mr. Speaker: Order. There is no need for the temperature to rise over this question. I have given a ruling, and I think that both sides had now better take time to digest it.
Mr. Heffer rose—
Mr. Speaker: Order. I hope that the hon. Member for Walton will not pursue the matter. I know that he feels that an injustice is done by the charges made about the content of the leaflets. But I have not seen one of them. I cannot comment on it. I have only said that hon.

257
Members may ask Questions of the Secretary of State for Education and Science.
Mr. Heffer: Further to that point of order, Mr. Speaker. It may be that Opposition Members regard the matter as a bore, but the hon. Member for Bury St. Edmunds (Mr. Griffiths) made the statement that the leaflet was an incitement to public disorder. As you yourself said, Mr. Speaker, you have not seen the leaflet. In my view, 99·9 per cent. of Members of this House have not seen the leaflet. I have seen it.
Hon. Members: Oh.
Mr. Speaker: Order. We shall be requiring leaflets here if we go on with this. The hon. Gentleman is making his point. He is making it fairly enough, and I hope that he will now come to a conclusion.
Mr. Heffer: The point that I am making is that hon. Members are apparently allowed to rise in the House to say that certain statements are in fact incitements to public disorder, which is a grave charge. Therefore, if it is a grave charge, surely hon. Members who have actually read the leaflet have a right to say that it is not causing or likely to cause public disorder. Whatever defects there were in the leaflet it will not in fact do that. Unless the hon. Member for Bury St. Edmunds can produce the leaflet and let every hon. Member see it, I ask him to withdraw that statement. It is an absolute disgrace.
Mr. Speaker: Order.

RHODESIA
The Secretary of State for Foreign and Commonwealth Affairs (Dr. David Owen): I will, with permission, Mr. Speaker, make a statement on Rhodesia.
The United States Secretary of State and I met the leaders of the Patriotic Front in Dar-es-Salaam on 14th and 15th April. We also met President Nyerere. On 16th April we had talks in Pretoria on Namibia and Rhodesia with the South African Foreign Minister and on 17th April we met the signatories of the Salisbury agreement.
258
The aim of all these meetings was to prepare the ground for round-table talks to bring about a negotiated ceasefire and an internationally acceptable settlement.
I do not wish to hide from the House that there are still major differences between the parties, both of whom think they are winning. However, there are some signs that we could widen the existing areas of agreement in two important ways, both of them crucial, if we are to establish a neutral Administration for the transitional period, capable of holding fair and free elections.
First, the Patriotic Front is now closer to accepting a role for the United Nations in supervising a previously negotiated ceasefire and in monitoring the activities of the military and police forces. There is more understanding in Salisbury that United Nations involvement gives an assurance that sanctions would be lifted prior to independence.
Secondly, all would probably now agree to a Council with wide executive and legislative powers whose members would hold ministerial portfolios. The Patriotic Front said that, provided its other demands—some of which are unacceptable to us—were met, it could accept a Council presided over by a resident commissioner holding reserve executive powers over defence and law and order.
There was widespread recognition in all of Southern Africa that if we and the United States were to abandon the search for a negotiated settlement based on the principles of the Anglo-United States proposals there would be no alternative to a bitter and bloody conflict, with an uncertain outcome and the grave danger of it becoming internationalised and involving all the countries surrounding Rhodesia. The Patriotic Front accepted our invitation to round-table talks and the signatories of the Salisbury agreement have undertaken to give it serious consideration.
Mr. John Davies: I should like to thank the Foreign Secretary for his statement, which he has made so quickly after his return from Africa. I commend him on the efforts that he is clearly making, even though we think that they were belated, to achieve a reconciliation between the divergent viewpoints on Rhodesia. However, does he not think

259
that it is right to build on a firm foundation in seeking to achieve such a reconciliation? Does he not believe that a firmer foundation is to be found in the Salisbury agreement than in the Anglo-American proposals? The truth is that the Salisbury agreement has developed in a quite interesting way, in for instance the granting of amnesty to guerrillas in appropriate cases, the release of detainees, the appointment of both black and white Ministers and the work of the Executive Council.
Is it not perhaps unreasonable to imagine that those who have achieved what, as recently as a year ago, seemed an absolutely unhoped-for understanding between black and white alike should now conceive in any way compromising their agreement in favour of discussions when one of the parties to the discussions was reported yesterday as saying that his sole objective was to achieve a one-party Marxist State in Rhodesia? Does he not think that the only way forward to reconciliation lies in the agreement reached in Salisbury and perhaps in its evolution—but not its evolution in favour of those who still see their one way forward as fighting their way through to domination of that country?
Finally, will the right hon. Gentleman press upon the Leader of the House the need to hold a debate upon this matter? We have long asked for such a debate. We arranged, on something of an expediency basis, to have one immediately before the Easter Recess, but the time seems appropriate now to hold a proper debate on this matter as it reaches this important stage.
Dr. Owen: I thank the right hon. Gentleman for his opening remarks. I arrived back only this morning, but I think the House treats this matter with great seriousness—rightly so—and deserves to be kept as fully informed as possible.
On the right hon. Gentleman's question about one course being the only way forward, the problem is that both parties to the dispute believe that they have the recipe and the only way forward. Therefore, it is the job of the mediator, of the United States Secretary of State and myself, to try to search for an alternative route which can bring about a major
260
compromise affecting all sides. By trying to stick to principles we are better able to do that.
There has been substantial progress. It was nearly a year ago that I first visited Rhodesia and discussed with Mr. Smith some of the steps which needed to be taken. Looking back now, one sees that there has been tremendous progress. At that time, the principle of one-man, one-vote was rejected. At that time, independence in 1978 was not able to be confirmed. There are now considerable areas of agreement.
Unfortunately, the main area of disagreement is the continued non-inclusion of all the nationalist leaders and the inability to negotiate a ceasefire. It is to the attempt to achieve a ceasefire that we must now bend all our efforts. It may not be possible to do so, but I hope that we shall be able to have a negotiated ceasefire.
As for the question of a debate, the Leader of the House is here and will have heard the request. We had a debate a few weeks ago on the right hon. Gentleman's instigation, but I am always ready to discuss the issues.
Mr. Thorpe: Is the right hon. Gentleman aware that many of us who have met the leaders both of the Patriotic Front and of the Salisbury internal settlement have urged on each in turn the necessity for a genuine attempt to bring both sides together? Is he aware that if he were to give unqualified support, as the right hon. Member for Knutsford (Mr. Davies) has suggested, to one side to the exclusion of the other, it would completely defeat any prospect of getting both sides together? [An HON. MEMBER: "IS the right hon. Gentleman on the Marxist side or the other side?"] I am on the side of peace, and we shall get peace only through both sides coming together.
How long does the Foreign Secretary expect it will take before he receives a reply from Salisbury about their readiness or otherwise to attend and how soon does he expect to convene a conference?
Dr. Owen: I pay tribute to the right hon. Gentleman's constant efforts to use his influence with leaders of both sides to get them to negotiations. I believe that that is the course favoured by every

261
hon. Member who wants to end this distressing chapter. As for the question of when a meeting could take place, Secretary Vance and I were prepared to go towards the end of April. It is unlikely that we shall get a response in time for that, and I think that we shall have to search for a time some time in May. The problem is to have it as early as possible before we actually have open conflict and the waging of war between the black nationalist leaders but also at a time when people are more ready to compromise than they are currently.
Mr. Cledwyn Hughes: I thank my right hon. Friend for his untiring efforts to seek a solution to this difficult problem. Was the possibility of participating in free elections under United Nations supervision put to Mr. Nkomo and Mr. Mugabe and the other parties? If so, what was their reaction?
Dr. Owen: All sides have agreed to have fair and free elections. It is a question of trying to get agreement on the administration for the transitional period which each side will think fair to its case. I believe that a United Nations presence is one of the ways of having a neutral Administration. That is closer to acceptance by the Patriotic Front now than it has been before, but I think that some of the hostility to the United Nations, which was understandable at one time, particularly after the refusal to hear Bishop Muzorewa in Salisbury, has lessened as they have realised the need to get international acceptance.
Mr. Maudling: I appreciate the right hon. Gentleman's great difficulties and the great efforts that he is making to deal with this problem. May I put this one point to him? There has been an internal agreement, which we understand is to be subject to free and fair elections. Should the free and fair elections confirm the agreement will the British Government defend it come hell or high water?
Dr. Owen: The short answer to that question is "Yes". If there are free and fair elections and this House is satisfied that the fifth principle, being acceptable to the people of Rhodesia as a whole, is met and that there have been a transfer of power, an independence constitution and a new Government, I believe that this House would have to form that difficult judgment and remain true to the six
262
principles which we have held to through thick and thin.
Mr. MacFarquhar: Can my right hon. Friend confirm reports from Rhodesia that the broadcast he did with the Rhodesian Broadcasting Company has been censored? If he can confirm such reports, what conclusions does he draw as to the opinions of Mr. Smith about the viability of the internal settlement?
Dr. Owen: I have seen these reports in the South African newspapers. Secretary of State Vance and I did a television broadcast in the late afternoon in Rhodesia. I was given to understand that it was likely to go out that night. I certainly hope that it does go out. When I last visited Rhodesia in September, I was not allowed to go on Rhodesian television, but I had been allowed to do so in April.
The climate in which one will hold free and fair elections must be one with out any form of censorship whatever. The sooner that is abolished and the sooner the television network is made available to all people in Rhodesia, the better.
Mr. Amery: I appreciate that the right hon. Gentleman has to work closely with his American colleagues, but will he explain to Mr. Vance what Burke said long ago, that nothing is more futile than to be tied to the carcase of a dead policy? Will he recognise that the Anglo-American settlement is not acceptable to the Patriotic Front or to Salisbury? Will he also understand that most of us in the House believe that if he is not prepared to stop trying to undermine the internal settlement, that can only be interpreted as a determination at any price to avoid a confrontation with the Soviet Union in defence of democracy and majority rule in Southern Africa?
Dr. Owen: The quickest way of achieving the carcase of a dead policy would be for the United States and ourselves to abandon any attempts at a negotiated settlement. There is no one else who proffers the prospect of a negotiated settlement and a ceasefire. There are many people with guns, people who are ready to provide more guns, who would seize the opportunity to have a conflict that could involve many African countries and much loss of life in Africa. So I reject the charge that the American Secretary

263
of State is doing anything other than, as I am, negotiating a peaceful ceasefire, and we shall do so. It is not our job to undermine anything. It is our job to bring people together.
Mr. Alexander W. Lyon: Can there be a peaceful settlement without involving the Patriotic Front in the ultimate agreement? If its views are regarded as unreasonable, has my right hon. Friend seen the very balanced criticism of the internal settlement by the Catholic Institute, which indicates the serious dangers of leaving the Patriotic Front out of the settlement?
Dr. Owen: I think that there is a growing recognition in this country that there are problems with the internal settlement, that it is inadequate in quite a number of respects, and that it is right for us not to have endorsed it. Anyone who watched Panorama last night could see quite clearly that there are many conscientious black people who support what they call their boys and who will continue to support the liberation fighters. What we must try to do is to understand the motivation of the people on both sides who hold different views, and try to bring them together.
Mr. Maurice Macmillan: Does not the Foreign and Commonwealth Secretary think that he may be suffering from a dangerous delusion when he says that there is a danger of this conflict becoming internationalised, in the sense that it already is internationalised, with a massive build-up of Soviet-Cuban troops and with a high-ranking Russian general in charge of the Soviet-Cuban base in Mozambique? Can the right hon. Gentleman tell us how many tanks and MiG aircraft there are now in countries neighbouring Rhodesia, and whether it is true that guerrillas seeking to return peacefully without their arms from Zambia are being arrested and imprisoned to stop them so doing?
Dr. Owen: As the House knows, I have never hidden from the country the fact that there are Cuban involvements in some of the countries around Rhodesia. I made my views about this quite clear in the Mansion House only very recently. But I must tell the right hon. Gentleman that the way to stop that build-up and to prevent what he and others fear is certainly not to abandon the prospect of a negotiated settlement, and certainly
264
not to choose sides and seem arrayed only on one side, for to do so would mean that we should be condemned and criticised not only by people inside Rhodesia and some outside Rhodesia—all Rhodesians—but also by many African countries.
Mr. Faulds: Pursuant to his earlier reply, how will my right hon. Friend be able to defend, or the House accept, the outcome of any elections in Southern Rhodesia in which not all the political parties have been able to campaign or to put up candidates?
Dr. Owen: It will be difficult. That judgment will be extremely difficult to make. But I have always believed that if we give a veto to any side in this difficult and tortuous dispute we shall never bring about peace. We must go on seeking to get a neutral Administration which really can hold fair and free elections without armed conflict continuing.
It is very difficult to have a fair test of opinion on acceptability of a settlement while there is continued armed conflict. But to say that it is impossible ever to hold a fair test of opinion in those conditions would simply be to give a veto to people who wish to continue fighting. I do not believe that most of the people in the Patriotic Front wish such a thing. They want a fair and honourable settlement and they are prepared to fight their views on the elections.
Mr. Carlisle: I fully recognise the desirability of achieving Mr. Nkomo's involvement in any Rhodesian settlement, if that be at all possible, but does not the right hon. Gentleman agree that if the talks he has in mind have any chance of success they must be on the basis of building on what has been achieved through the internal settlement rather than going back to the original Anglo-United States proposals?
Secondly, does the right hon. Gentleman now accept, having been there recently, the real need for a senior diplomatic presence in Salisbury so that the Government can be advised on a day-to-day basis on what appears to be a rapidly changing situation?
Dr. Owen: There are many elements common to both sides which one can build on. Many of those elements are

265
incorporated within the internal arrangements, so it is possible to do that without also excluding the other side. I think that that is the important thing to try to do.
As to the hon. and learned Gentleman's last point, I offered in the context of working towards round-table talks to put in a more senior diplomat, and I believe that they are considering the situation.
Miss Joan Lestor: Does not my right hon. Friend agree that if Conservative Members continue to refer to Mugabe and Joshua Nkomo as if they are some sort of lepers because they may or may not be Marxists, those hon. Members will make it absolutely impossible for them to join any negotiating team? Would it not be a good thing to remind Conservative Members that 40 years ago Conservative Members and, indeed, all Members welcomed the intervention and support of the Soviet Union in what they considered to be a fight against Fascism? It seems very odd to some of us that at times they will hold up the very thing that they used to support in order to condemn people who see themselves in precisely the same situation as that in which Britain saw herself from 1939 to 1945.
Dr. Owen: I am convinced that all the nationalist leaders are prepared to take their chance on a test in an election. There is no doubt that there are different views and different ideologies as between the differing black nationalist leaders, but one of the essences of democracy is that one is able to put different ideological issues to the people and let them decide. That is the best way of resolving the ever-present conflict of views between the black nationalist leaders. It is the absence of a united view that has harmed and in my view put back the achievement of an independent Zimbabwe over the years.
Mr. Brocklebank-Fowler: In an earlier reply, the Foreign Secretary referred to the fact that the Patriotic Front had been excluded from any elections which were likely to take place in that country. Would he, for the record, care to register that that is not the case, and that the Patriotic Front is excluded from elections, if it is, by its own choice?
Dr. Owen: I do not think that the hon. Gentleman, who has a fair record of
266
looking at these things, would agree with that when he looks at the circumstances. It is true that the Patriotic Front has been given an offer to come in on the terms of the internal agreement. It sees that as exclusion. Perhaps that would be a better way to describe it. I must say that I do not think that it has been given what I described in this House some time ago as an opportunity to come back to the country to fight free and fair elections with honour and dignity. I believe, therefore, that the way to bring back the Patriotic Front is on the basis of a negotiated settlement, with participation in the negotiations.
Mr. Hooley: What is the prospect of getting rid of Smith?
Dr. Owen: At the moment, not very high. I think that he accepts that at the election he obviously will lose power. As to whether he wishes to stand in an election, and have his chance to be elected, if we are true and fair democrats we must accept that that can happen. I have no doubt that if, during the transitional period, he were to cease to be Premier, as he is still called—although he is part of a four-man Council—and to leave public life, it would certainly lessen much of the suspicion and hostility which exists in Africa.
Mr. Emery: Will the Foreign Secretary recall the answer that he gave when he said that the Patriotic Front wanted a full and fair settlement? Does he equate that with the statement from one of the leaders of the Patriotic Front that its objective is the setting up of a one-party Marxist State? Will the Foreign Secretary not realise that that sort of statement is just as damaging as the claim that the only way to obtain a settlement is by Smith going? There must be a proper balance, but from the statements of the Secretary of State it would appear to many people that it is in favour of the Patriotic Front.
Dr. Owen: Mr. Mugabe did not make that statement to me at the conference table. Had he done so, I would have told him my views. He said it outside the conference, and not in my presence. But I think that it is perfectly possible for anyone to fight an election in this country holding the view that there should be a

267
one-party State. If we believe in democracy, we have to be prepared to allow people with different ideologies and different views to fight elections. I make no secret of it. Of course, I do not hold those views myself.
But I do not believe that we should take too much notice of issues of this sort. Mr. Mugabe is a Left-wing Socialist and subscribes to some Marxist views. He has said openly, I believe, that he would prefer a one-party State. But even in that statement he said, I believe, that he would strive to convince others through fair democracy. It is not part of my job to defend Mr. Mugabe, nor do I intend to do it, but I intend to refute a charge that it is not possible to hold fair and free elections with people of different ideologies taking part.
Mr. Crawshaw: Will my right hon. Friend agree that, had the Salisbury agreement occurred about five years ago, it might have had some chance of success, with the prospect of peace in the future? But, however much one wants to solve this problem, is it not closing our eyes to reality to ignore the fact that the Salisbury agreement came about because of the pressure applied by the freedom fighters?
Is it not closing our eyes to reality to think that peace can be brought about on the basis of the Salisbury agreement alone? Is it not absolutely vital to make sure that the freedom fighters at least have a say in the agreement that is brought about? It would be easy to throw the burden over and think that we had solved the issue, but surely the fighting will continue unless the freedom fighters are at least involved in the agreement.
Dr. Owen: I agree with my hon. Friend that we should attempt to do everything we can to involve the freedom fighters. If we look at the history of this country over many years in facing difficulties of this sort, usually we find that we did not take sufficient account of the aspirations of freedom fighters. It was not that we leaned over backwards to meet the freedom fighters. Some of the allegations which have been made in the present context have been made against successive Foreign Secretaries in the past. It is the task of Foreign Secretaries to
268
seek peace and to talk to everyone but also to uphold principles. I shall uphold the six principles in this House and the principles underlying the Anglo-American proposals.
Several Hon. Members rose—
Mr. Speaker: Order. Before we get to the Wales Bill, which is governed by a timetable motion, we have a Ten-Minute Bill. I shall therefore take questions on the Rhodesia statement for another five minutes until 4.10 p.m.
Mr. Rhodes James: Will the Foreign Secretary say a little more about the discussions concerning the future role of the United Nations? Is he aware that some of us are very doubtful about the capability of the United Nations to undertake yet another peace-keeping operation in the present circumstances?
Dr. Owen: I think that the hon. Gentleman is right. One would be unrealistic to think that the United Nations' facilities would not be very considerably stretched, with a new demand in the Lebanon, a possible demand in Namibia, and a possible demand in Rhodesia. The one hopeful sign is that major countries are now showing a greater readiness to play a part in United Nations peace-keeping operations. France has contributed forces in the Lebanon. Countries such as Iran are contributing in the Lebanon. I think that there is greater hope that some of the bigger nations which have previously not participated in United Nations peacekeeping will do so, but the hon. Gentleman is right to point out that these demands will present a great challenge to the United Nations.
Mr. Newens: Will my right hon. Friend not agree that statements made in this House by Opposition Members—particularly bearing in mind that some of them previously expressed sympathy with the illegal Smith regime—can only make a peaceful agreement far more difficult? Will he, therefore, expressly state—especially in view of his reply to the right hon. Member for Chipping Barnet (Mr. Maudling)—that in no circumstances will the Government be prepared to come to terms with the so-called internal settlement and approve it, whether or not there is some form of election introduced to give it sanctity, or anything of that sort? Will my right hon. Friend state that he

269
will stand absolutely firm on the position which he has expressed here in the past?
Dr. Owen: I will stand firm on the principle of fair and free elections. The test that I would put would be one that I hope this House would put—that it must be acceptable to the people of Rhodesia as a whole. I think that my hon. Friend's anxieties about the manner in which that question might be put are shared by everybody in the House, but I think that we would deal with this as we have dealt with it before. There were many people in Africa who thought that this House would not accept the recommendation of the Pearce Commission if it was against the views of the then British Government. The then Government, to give them full credit, honoured their obligations to the six principles, and I will do no less.
Mr. Biffen: Since the Foreign Secretary's negotiating role must turn on the assessment, at least in part, that he has made of Mr. Mugabe, will he tell the House whether he thinks that Mr. Mugabe is irrevocably committed to the concept of a one-party Marxist State and its attainment by means of an armed struggle, or does he think that Mr. Mugabe's statements on these points are merely related to a negotiating position?
Dr. Owen: These are things for Mr. Mugabe himself to say. But if the hon. Gentleman will look at the statement, as I have done, he will see that it can be read as being within democratic politics—in other words, that this is Mr. Mugabe's view which he would put to the people, and that if he did not reach agreement, he would continue to search for it. Many people who have expressed both Marxist views and support for one-party States have operated within a democratic
270
framework. I think that we should not necessarily condemn Mr. Mugabe merely because of one, in my view, extremely ill-advised remark.
Mr. Nicholas Winterton: It is not the first time that Mr. Mugabe has said it.
Mr. Urwin: Why do you not shut up?
Mr. Speaker: Order. Theoretically, a remark such as that is addressed to me, and no one could have been quieter.
Mr. Dunlop: Is the Foreign Secretary aware of the visit not so long ago of Mr. Mugabe to the cities of Dublin and Belfast, where he met leaders of the Provisional IRA? Is the Foreign Secretary also aware that there was a reciprocal visit from the IRA to meet Mr. Mugabe and his companions in Mozambique? Could it be that the purpose of their meeting was to perfect the techniques of murder and destruction which these arch-terrorists have perpetrated in Southern Africa and Northern Ireland? Does the right hon. Gentleman think that these are suitable people to bring about a democratic solution in Rhodesia?
Dr. Owen: The hon. Gentleman knows that I deplore violence wherever it is. He knows perfectly well that each and every one must form his views in a democratic election about the candidates. It is the electorate who will decide this. I have little doubt that anyone who fights an election in Rhodesia will have little support for a claim for a one-party State, either from black or white Rhodesians.
Several Hon. Members rose—
Mr. Speaker: Order. I am sorry for all those hon. Members who are still standing, but we must move on. Ten-Minute Bill. Mr. Michael Neubert.

SHOPS (AMENDMENT)
4.10 p.m.
Mr. Michael Neubert: I beg to move,
That leave be given to bring in a Bill to allow the organisation on weekdays of promotional evenings on retail premises.
The Shops Act 1950, passed into law nearly 30 years ago, was itself a consolidating Act. The statutes which it superseded dated back to the period 1912 to 1938. Although the passage of time and changing circumstances would indicate the need for review and reform, there has been no amending legislation other than the Shops (Early Closing Days) Act 1965 which gave shopkeepers a right to fix their own closing day.
As the Under-Secretary of State for the Home Department acknowledged in an Adjournment debate on 28th April last year, successive Governments have treated amendment of the Shops Act as best left to Private Members' legislation because of its controversial nature. In that spirit, my Bill would amend the Act in a small particular. I hope that it will be both uncontroversial and unexceptionable since it seeks to regularise a well-established practice.
In recent years the practice has grown up of after-hours presentations of new products by retailers dealing in the more expensive kind of equipment, whose customers need time and considerable technical advice in order to make the right decision. The most familiar examples of this are motor cars and stereophonic sound systems.
Working men and women, particularly husbands and wives together, welcome the opportunity of an extended demonstration of new models after normal trading hours and in greater comfort and relaxation than shopping facilities usually allow. No purchases take place at the time and nor are orders placed, but it is understood by all that the purpose of these functions is to promote the eventual sale of the product. To this end representatives of the manufacturers are also often in attendance.
Under the Act, the organisation of such promotional evenings is permitted provided they do not take place on the actual shop premises. This is not very practicable, especially with regard to cars. Dealers would naturally prefer to demonstrate
272
new models in their own showrooms. To do otherwise would be to add to the costs which would eventually be passed on to the consumer in higher prices, as well as being much less convenient for all concerned.
Unfortunately, although many local authorities regard it as within their discretion to approve the holding of promotions on retail premises after hours, others observe the strict letter of the law and the Lord Chief Justice has upheld the view that, even though no transactions take place, such events must be interpreted as "the serving of customers" under the terms of the Act. As a result, a serious and inhibiting anomaly has developed.
For example, a random survey taken in October 1976 showed after-hours promotions on business premises to have been held at about that time in places as far apart as Aberdeen and Warrington, Carlisle and Winchester, Preston and Luton, Chislehurst and Hendon—the last two in London. Yet the London Borough of Havering—the starting point of my own interest in this matter—strictly refuses approval for these functions. In 1973 it successfully took a case to the High Court in defence of its interpretation. In the circumstances this may appear to be an excess of rectitude on the council's part. It reasonably maintains that if it did not carry out the duty conferred on it by Section 71(1)—
"to enforce within their district the provisions of this Act,"—
it would be open to an order of mandamus in the High Court.
These differing interpretations of the scope of their discretion by different local authorities lead to inequity and inequality of opportunity. As an illustration, one company in my constituency—which is a major Vauxhall dealer in East London—is able to hold after-hours promotions in its showrooms in other parts of the area but not in Romford. Naturally, it finds this difficult to understand and resents the effective discrimination.
My Bill would, therefore, regularise the position by allowing local authorities the discretion to approve the holding of a limited number of specific promotional functions on individual retail premises, after hours, on weekday evenings only. This small amendment to confirm existing

273
practice would not conflict with the principal purposes of the Act in respect of closing hours which were to safeguard employees from exploitation and to protect traders from unfair competition, since such events would be infrequent, subject to approval by the local authority and the opportunity open to all traders on application. I hope, therefore, that the House will give me leave to bring in this Bill.
4.17 p.m.
Mr. Sydney Tierney: I wish to oppose this Bill. At the outset I must say that the hon. Member for Romford (Mr. Neubert) has introduced what appears to be a simple piece of amending legislation aimed at dealing with what he calls an "anomaly" arising out of the 1950 Act. The Bill may sound simple in its presentation, but it is full of danger and is highly complicated in its practicability with regard to its application.
I am glad that the hon. Gentleman has not included Sunday trading where much of this kind of presentation and demonstration work takes place. At present, the Sunday trading situation is probably the worst aspect.
We have all seen on television, and in other media, advertisements about discount buying, promotional drives and so on, on Sundays. We have seen advertisements stating, "Bring the family for a day out" and that kind of thing. Some of us have often thought that some of these advertisements must come perilously close to advertising illegal activities.
The hon. Gentleman said that some local authorities turn a blind eye to the kind of promotion which he wishes to introduce—where one walks around, completes an order form and finalises the deal on a Monday, or, say, pays a few hundred pounds for a bag of carrots or whatever system is devised in this promotional situation. He also said that other local authorities observe the strict letter of the law.
The answer which the hon. Gentleman really seeks to his so-called "anomaly" is that all local authorities should turn a blind eye to this kind of promotion. But the real answer is that all local authorities should observe the strict letter of the law and the Act as it now stands. I think that is the answer to the
274
dilemma which the hon. Gentleman has come across.
As we all know, the basic principle of shops legislation has been based on the uniformity of its application. This equality under the law is of paramount importance, as is every other aspect of the law. Obviously, we hear a great deal of talk in the world of trade about fair competition, whatever that means. Yet many in competition in the commercial world seek advantages over their competitors—some fair and some unfair. It is wrong that an advantage should be given in the legislation of this House to some traders over others. In my opinion that is what this Bill seeks to do.
It would be wrong to legislate for the demonstration of certain goods outside permitted shopping hours but not to do the same for other goods in other circumstances. Who decides which goods come into the justifiable category? How does one limit and control by legislation the situation or the number of applications, which the hon. Gentleman mentioned in his speech? What about the cost of checking and enforcement by local authorities? It is not possible to bring in legislation of this kind. If introduced, it would give rise to pressure from the remaining traders for similar privileged exemptions from the present law.
The hon. Member said that men and women welcomed the opportunity for extended demonstrations of goods after normal trading hours. But where does the list end? In carpet and drapery shops there would be a call for demonstrations of new textiles and new designs. In do-it-yourself shops there would be a call for demonstrations of new tools and devices. Building merchants would want to demonstrate new materials and new brick-laying techniques. There would be a demand for demonstrations of furniture design and house planning in furniture shops. Hardware shops would want to demonstrate new mowing machines and compartmentalised greenhouses. Chemists' shops would want to demonstrate new cameras and film equipment. Food shops would want to demonstarte the cooking of new dishes or foods to eat and grow slim or how to get the best out of a piece of mutton. It goes on now in grocery and food shops.
There is not much left when one considers the list that could come out if this

275
kind of amendment to the law were made. What is more, supermarkets and hypermarkets would not want promotional functions affecting three-quarters of their stores and not the remainder. I am sure that chaos would result.
Are these promotional demonstrations to go on until 10 p.m. or 11 p.m.? I think that that is a valid question, bearing in mind that some shops now close at 9 p.m. on the so-called late night. If so, they will say "What nonsense. We can promote. We can demonstrate. We can take an order on these occasions. But we cannot take the money and complete the sale." Of course it will be nonsense and, before long, they will take the money. The result will be that shopping hours in the retail trades will go back to what they were 50 years ago.
Some people may ask "Why not?" We hear a great deal of talk in this House and elsewhere about prices. People have a limited amount of money to spend. If shops are allowed to stay open for eight, 10 or 12 hours a day, the amount of money available for spending is not increased. But if the shopping hours are increased, operational costs are increased, and those costs are recouped by increases in prices. The shopping public pay for those increased operational costs, and the Chopping public would have to pay for these demonstrations if they were allowed.
All over the country we suffer already from artificially high prices because of competitive advertising, over-elaborate packaging and presentation—sometimes the packaging costs more than the com
modity which is contained in it—and so-called discount buying on manufacturers' recommended or suggested retail prices leaves a lot to be desired However, I shall not dwell on that.
My final argument is one which I make with a measure of self-interest, which I declare. In the main, the hours worked by shop workers are tied to shop opening hours. Employers in the retail trades do not agree with piecemeal legislation of this kind. But USDAW, in which I have an interest, and the employers have always tried to strike a balance between the real needs of the general public and the rights of shop workers to reasonable working schedules USDAW members put up with antisocial hours to serve the public in an industry which is efficient and prosperous but which carries a low pay label. Workers in the industry have never had fair recognition of their contribution to the British economy, nor the standing and rewards which their services deserve What is more, 70 per cent. of the labour force is female, with other domestic responsibilities. If this Bill were passed it would make the working conditions of all shop workers more intolerable. For this and the many other reasons which I have given, I ask right hon. and hon. Members to oppose the Bill.
Question put, pursuant to Standing Order No. 13 (Motions for leave to bring in Bills and Nomination of Select Committee at Commencement of Public Business):—
The House divided: Ayes 128, Noes 148.
Question accordingly negatived.

Clause 61

  POWER TO MAKE NEW PROVISION AS TO CERTAIN BODIES
  Amendment No. 293 proposed [5th April], in page 24, leave out lines 8 to 10.—[Mr. Brittan.]
  Question again proposed, That the amendment be made.
  Sir Anthony Meyer: As I was saying, Sir Myer, before we were interrupted by the spluttering of the Chancellor of the Exchequer's damp squib of a Budget, I believe that the hon. Member for West Lothian (Mr. Dalyell) was wrong when he said that Ministers who are unfortunate enough to have to deal with devolution will see their political careers blasted. That is quite wrong as regards the Minister of State, who I am sure every hon. Member on both sides of the Committee will agree has increased his already high reputation by the manner in which he has handled the Bill. The hon. Gentleman was prompt to intervene only recently to give the Committee an assurance, which some of us would like to see strengthened. However, his promptitude in intervening on that occasion reflects the way in which he has handled the Bill throughout.
  I agree strongly with all the points of order that have been made from both sides of the Chamber about the importance of debating and voting on the 40 per cent. amendment. I wanted to pay a compliment to the Minister of State because at the end of my brief remarks I shall say some extremely unpleasant things about not him but his Department.
  In a dazzling intervention at the beginning of the debate my hon. and learned Friend the Member for Cleveland and

  287
  Whitby (Mr. Brittan) pointed out that the amendment exposes the process whereby this seemingly harmless subsection could be used to extend the competence of the Assembly not merely within Wales but well beyond the Welsh border.
  If the Minister of State supposes that the Assembly would not seek to extend its competence beyond the borders of Wales, I suggest that he cannot have studied with his usual diligence the debates that took place some time ago on the setting up of, for example, the Welsh National Water Development Authority.
  In Part I of Schedule 7 many of the matters there contained relate to bodies concerned with the supply of water, inland waterways and forestry. These are matters that in a proper defence of Welsh interests could be held to require an active concern with what goes on beyond the borders of Wales. Rivers and forests march majestically over borders. If that is so, the Welsh Assembly, which like all elected Assemblies will be for ever seeking to extend its powers, will be bound to press the Minister to use the power given to him by the subsection. It will be bound to try to force the Minister to do what he has a power to do, and to judge by the way in which he responded by a shake of his head when I asked him to confirm that the word "modify" could not be interpreted to mean "extend", it seems clear that the Assembly, like me, will not expect any stout resistance from him or from the Secretary of State when it puts forward its demand that its competence should be extended.
  In short, the subsection is making the worst of a bad job. If there has to be a subordinate Assembly to which certain powers hitherto exercised by the United Kingdom Parliament are to be devolved, it is vital that the demarcation of functions be clearly, definitively and once and for all settled. If that is not done, we shall have a recipe for perpetual conflict. The subsection is a major ingredient in that poisonous recipe.
  The accident of the guillotine has pushed the amendment to the top of the queue. The result is that it is being debated. Some may say that it is being debated at greater length than its importance deserves, although I would disagree with that contention.
  288
  It has emerged in the course of brief debate that this harmless little subsection is intensely dangerous in its consequences. How many more such dangerous consequences and subsections are there lurking in seemingly harmless portions of the Bill that we shall never debate? The danger is immensely increased because we are trying to operate without parliamentary papers. You, Sir Meyer, were not even aware that I was due to open the debate today, because you were not in possession of a copy of Hansard. I understand that no hon. Member is in possession of a copy of Hansard.
  Mr. John Smith: I have one.
  Sir A. Meyer: Has it come out today? It was not available yesterday. I managed to duplicate a copy of Hansard that was in the Library. Our task is made much more difficult because without parliamentary papers we cannot give proper consideration to the random samples of the Bill that we are debating, let alone those that we are not.
  I must confess that the suspicion is growing that the Lord President, who is responsible both for getting the Bill through the House and for ensuring that we have a proper supply of parliamentary papers, is not exerting his utmost zeal to ensure that we get our papers. I hope that I am wrong in supposing that the absence of parliamentary papers, which is complicating our task, has anything to do with the right hon. Gentleman.
  The Government, who are pushing ahead so recklessly with Welsh and Scottish devolution, are hoping, no doubt encouraged by the result of the by-election in Glasgow, Garscadden, that they will be able to salvage some seats in Scotland, if not in Wales, and are quite ready to sacrifice the unity of the Kingdom to their own electoral prospects. They are selling our national heritage for a mess of porridge.
  5.0 p.m.
  Mr. Dalyell: The House will acquit me of being the creature or the toady of the Lord President, but I must say that the implication of the hon. Member for Flint, West (Sir A. Meyer) that, in order to get his way on Welsh devolution, my right hon. Friend has somehow arranged that we do not get parliamentary papers cannot be taken seriously. Let us dismiss

  289
  that. I hope that the hon. Gentleman will acquit my right hon. Friend of any such daft thoughts or deeds.
  I was also a little puzzled by what the hon. Member for Flint, West said about what I had said about careers. I read this in Hansard and tumbled that it was an off-the-cuff remark to the Home Secretary whom I tried to tempt into the debate, believing seriously that he and other senior Ministers should have interested themselves and heard part of our debates. Any remark that I made was to try to tempt him to hear what we had to say rather than an aspersion on my hon. Friend the Minister of State. That should be put in context.
  Time is of the essence so I shall raise just one subject—the British Waterways Board. I have received a letter from Mr. H. C. Rutherfurd, the solicitor to the Board. He says:
  "So far as the Board are concerned the proposals in both the Scotland and Wales Bills are precisely the same and will have the same effect."
  My hon. Friend the Member for Dagenham (Mr. Parker) knows that the Board is no less concerned now than it was when we first met them and at subsequent meetings that we have had.
  The public document of the Board says:
  "The Board are concerned that, should the proposals contained in the Bill affecting their Undertaking become law, the integrated system which they now control will become fragmented. The funds required for maintenance of the inland waterways and for capital investments will be derived from three sources with the probability that the principles applied in the allocation of such funds will not be consistent."
  If consistency is desirable—and I am assured by technical experts that it is—how do the Government propose to achieve consistency without the expenditure of great costs in terms of the Civil Service? How is policy to be synchronised for purposes which I think go no further than giving the Assemblies something to do? The search to find them something to do has been fairly frantic. I cannot see why we should acquiesce in the fragmentation of the British Waterways Board. The Board goes on:
  "It will no longer be possible for the Board to allocate their scarce resources of money and manpower in the best interests of the waterways."
  290
  Those who represent, for example, those concerned with the Union Canal between Edinburgh and Glasgow or any other canal in the United Kingdom know that the Board has problems and that its major problem is the shortage of money. These matters must be taken seriously. The Board goes on:
  "The proposals will enable the Scottish Assembly to alter the Board's statutory duties and responsibilities. A separate organisation could be created for the Scottish waterways which, in the view of the Board, would inevitably be much more costly and dissipate staff effort. The existing career opportunities for staff would be prejudiced."
  Does the same thing apply in Wales? What is to be the Welsh career structure? I am willing to be told that there is nothing to fear on this matter, but I have stated the view of the Board. The Board's document continues:
  "The Board have managed the inland waterways since the 1st January 1963. They remain of opinion that these can be administered intelligently and economically only as a unified system. This was acknowledged when the Water Act 1973 became law and re-affirmed in Paragraph 27 of the Green Paper about the future of the Water Industry. … They would, however, welcome the proposal for the appointment of Members to the Board representing Scottish and Welsh interests. This would enable these Bodies to keep themselves informed and to comment on the inland waterways in Scotland and Wales, without the untenable financial demarcations proposed in the Bill."
  The document points out:
  "Paragraph 15 of the White Paper stated that the essential task on which the Government have concentrated is that of developing the devolution schemes to define those areas of activity where decisions affect primarily people living in Scotland and Wales. It would be plainly wrong (they say) to devolve to the Scottish and Welsh Assemblies powers over activities which substantially affect people elsewhere or the well-being of the United Kingdom generally. The need is to achieve a balance—to reconcile unity and diversity in a stronger and better system, offering more achievement and satisfaction to the parts while improving the efficiency and stability of the whole."
  It would come better from others to raise the question of the Birmingham water supplies, but this is obviously a matter which must affect anyone concerned with the economic future of the United Kingdom.
  In the absence of any satisfactory explanation, the Board remains convinced that the principles for devolution as stated by the Government have not been correctly

  291
  applied in deciding that inland waterways should become a devolved matter. I hope that we shall have an explanation of that decision today.
  The document goes on:
  "The Board are not aware of any public pressure for inland waterways to be devolved—in fact, the evidence is to the contrary. Those concerned seem reasonably satisfied with the way in which the Scottish waterways have been managed within the overall finances of the Board even though such finances have been restricted.
  The Welsh waterway system which is much smaller is unlikely to be sustained and developed to the full if left dependent on Welsh resources alone. For example, most of those using the Llangollen Canal live in England as do most of those interested in the Montgomery Canal restoration. The Monmouthshire and Brecon Canal has more local use, but not to the extent that local resources are likely to be adequate to maintain it nor—in normal circumstances—to meet the existing need for considerable repair."
  Any of us who have to deal with canals know that the cost of repair is simply enormous. The Board goes on:
  "At present the Board can deploy finance according to operational needs rather than geographical location."
  What will happen if the Welsh and Scottish Assemblies are given responsibilities for the inland waterways? The Board's document continues:
  "The Board view with alarm the proposal that they will no longer be able to deal with their finance on a comprehensive basis. The artificial attribution of costs proposed in the Bill will add considerably to day-to-day work with no benefit to inland waterways and cannot be undertaken on a basis satisfactory to all. The Board note that theirs is the only nationalised industry created by the Transport Act 1962 to be affected by devolution. The British Transport Docks Board, for example, have harbours at Ayr and Troon and in South Wales which are managed locally. The functions of the British Railways Board in Scotland and Wales are not affected."
  Sir Raymond Gower: Is the hon. Gentleman not faced with the problem that once Assemblies are set up in Scotland and Wales, it is almost inconceivable that they will not want to control inland waterways and water authorities in their areas?
  Mr. Dalyell: That is correct. This is part of the argument of those of us who are completely against separation. Whether the Government like it or not, it is in the nature of the beast that once people become Members of Assemblies,
  292
  they will claim all sorts of things, and this will be one of them. There will be hardly any Assemblyman who thinks that he ought not to claim water.
  The hon. Member for Perth and East Perthshire (Mr. Crawford) would assent to this because if he were a Member of the Assembly, even if it were a devolved Assembly, within weeks he would be shouting for control of canals and all the rest of it. So that question is not in dispute. The Board goes on to say:
  "Since 1968 the Board's freight and amenity activities have become of increasing importance to Great Britain. The Government and users of the inland waterways regard the creation of uniform standards and unified management as essential. Certainly the promotion and development of Commercial Waterways for freight transport in a unified manner would be within the principles of the Government's transport policy.
  The Board administer the waterways economically and carry out the statutory duties imposed upon them by the Transport Acts 1962 and 1968. They apprehend that under other arrangements the administration of the waterways will be less economic; less efficient overall; not provide an adequate career structure for professional and other staff and put navigation on the inland waterways at risk."
  I have to emphasise that this is the Board's professional opinion and not the opinion of myself or any other amateur. The Board says:
  "No account appears to have been taken of the basic essential services provided by the Board in England for all the waterways, using suitably placed centres of specialist skills.
  In the Board's opinion the inland waterways should continue to be dealt with primarily on a Great Britain basis and can only suffer if the financial and legal obligations become divided. The proposals are unjust to those using or benefiting from the waterways.
  The Board recall Paragraph 20 of the White Paper, 'British Waterways: Recreation and Amenity' (Cmnd. No. 3401 1967):
  'In the waterways this country possesses a priceless asset, an asset whose value will grow as the demand for leisure facilities intensifies. The Government now intend the British Waterways Board to have a new and positive role to play in the development of this potential recognised by statute for the first time. This is in effect a new charter for the waterways. But to get the most out of this charter legislation and official action will not be enough. The Government is confident that many thousands of ordinary people will welcome its plans and it looks to all those who enjoy the waterways to help in seeing that they are fully, imaginatively and adventurously used as the great amenity network they are.'
  The Administration which published that White Paper obviously recognised that the

  293
  Board had a Great Britain function. However, this is not the first occasion upon which proposals have been made which could lead to disintegration of the Board's system. The Board have hitherto successfully resisted on firm grounds such proposals as being not in the public interest. They recall their observations on DOE Circular 92/71 that the professional and technical services which they provide for running the system (engineering, estates, freight, amenity, legal and accounts) are inextricably bound up one with the other. All depend on central direction. The essential and interdependent expertise is bound to be lost if control becomes fragmented. The Board provide economic use of scarce technical manpower. This cannot readily be replaced for parts of the system which may become separately organised and for which judgments will be made by those who have no responsibility for the system as a whole."
  I have deployed this case at some length. It is a serious case. Late at night there was a slightly bizarre interchange—at least, it read like a bizarre interchange—between my hon. Friend and me when I asked "What shall we say to Sir Frank Price, the chairman of the Waterways Board?" The interjection in Hansard is "Hello", and the argument went on. This is altogether an earlier hour. All I say to my hon. Friend the Minister of State is that it is not sufficient—I am sure that he did not mean to say it in this way—to say "Hello" to these arguments. They have to be faced, and I am sure that he will face them.
  5.15 p.m.
  Mr. Granby Onslow: I hope that I may intervene briefly to ask the Minister one or two questions relating to this amendment, and specifically to the use which he contemplates making of the power which would vest in him, if the Bill is passed as it stands, relating to the Welsh National Water Development Authority and to is fishery powers in particular.
  I ask this because, as I understand it, the Bill provides that the Assembly may control the way in which the Severn—Trent Water Authority carries out almost the whole range of its river management functions in that part of the River Severn basin which lies in Wales. The policies so imposed, which may well be designed to secure purely local objectives, may nevertheless be in conflict with the policies applied in England under the control of the Secretary of State for the Environment and the Minister of Agriculture, Fisheries and Food, and preclude the effective management of the River
  294
  Severn basin as a whole for the benefit of all local interests and millions of consumers throughout the Midlands and further afield.
  I am sure that the Minister does not need to be reminded of the importance of managing water resources as a unit in the case of a river, because this was clearly demonstrated in the drought of last summer. It is vital for each river system to be considered in its entirety, in drought conditions in particular but also at any time.
  It is because the powers relating to this part of the clause and to Schedule 7 would appear to affect the ability of the river to be managed as an entity that I seek to intervene briefly on this matter. The Minister will probably accept that it would be undesirable that there should be different arrangements applying to discharge consent between Wales and England. If that were so it would be possible for discharges to be made in one area or another under different conditions and perhaps only minimal treatment, which would be bound to have a harmful effect on the quality of the water. Having just heard that the Government's consent regulations are to be lowered as a convenience in order to implement the Control of Pollution Act, Part II, I am afraid that fishery interests are not particularly confident of the interest of this Government in investing in pure water.
  It is also true—I believe that the Minister will know this as well—that there could be difficulties if there were different byelaws applying to parts of the river which ran along the national boundaries, which is the case in relation to parts of the river Teme and the Severn in the Severn Trent Water Authority's area and also applies in the case of the Wye and the Dee in the Welsh National Water Development Authority's area.
  Perhaps I could interpolate there that the Welsh National Development Water Authority has already shown some disposition to uproot established byelaws and to seek to introduce, in pursuit of interests of its own devising, changes in practices which have been accepted and recognised as acceptable by conservationists, anglers and all interests for a long period in regard to the Wye.
  I know that the case is sub judice and that there is to be an inquiry under an inspector appointed by the Department

  295

  of Agriculture, Fisheries and Food in Cardiff shortly on the matter. But the auguries are not very good now because the initiative for change has come from the Welsh National Authority.
  The particular point that I want to stress—I declare an interest in so doing, in that I fish in Wales, I am a riparian owner in a small way and I vote in Wales, in case the Minister is not going to take this matter too seriously—is that there is considerable concern amongst those who fish in the rivers that run through England and Wales that there should not be a split personality approach to the interests of the river as an entity for angling purposes. This is particularly important where salmon are concerned because most of the catch of salmon is now taken in England and most of the salmon spawn in Wales.
  This makes it easy to see that it would be uneconomical for one authority to spend money and effort in looking after the spawning areas of a fishery unless there were some compensating benefit in the form of catches. This is inherent in the way in which salmon fisheries operate.
  Some people fear that there may be a conflict between salmon interests and other interests in Wales. They believe that if there is no exclusion of this function the predominant interest will go against the salmon fishery and that this might have a serious effect on the salmon fishery of the River Severn as a whole. The Minister probably has the figures, but in case he has not, I should say that they show in recent years that the overwhelming proportion of the salmon catch is made in the English part of the River Severn. They show that the commercial methods of catching in the estuary, for instance, in 1977 brought over 2,500 fish, and that the rod catch below Shrewsbury was some 650. Above Shrewsbury it was 340 which is a welcome increase, thanks to the new fish pass there.
  In the other head-waters, the Teme, the Vyrnwy, the Banwy and the Tanat, that catch tapers away, so that the overwhelming proportion of salmon are caught in the English part of the river. On the other hand, the number of redds counted in 1977 shows that there were 642 in the main part of the Severn in Wales, and
  296
  in the Rhiw, the Banwy, the Tanat and the Vyrnwy there were over 1,000 redds counted. But the number of redds counted in the English part of the river was minimal.
  If there is to be any assurance that the river will be managed in the interests of preserving and, I hope, improving the historic salmon fishery which the Severn represents, it is important that it should be managed as a unit and that there should be no conflict and subordination of local interests to the overall interests of the river.
  Mr. Gwynfor Evans: I am interested in the matter being raised by the hon. Gentleman. Does he agree that on the Continent of Europe there are numerous examples of different stretches of rivers which are controlled by different national authorities? That does not act in any way adversely to the fishery or other interests. If that is possible there, why is it not possible between us?
  Mr. Onslow: If the hon. Gentleman thinks that the history of the Rhine is an advertisement for international management of a salmon fishery, he had better take further instructions on the matter. The short answer is that this is the quickest way to destruction. There is no overriding interest. Therefore, local interests are put first. The end result is disaster. That is what I fear. The hon. Gentleman serves to underline my fear in this matter by suggesting that it will be effective to split responsibility and management in this way. I hope that the Minister will not take the same kind of casual, local, chauvinistic view as we have just heard from the hon. Member for Carmarthen (Mr. Evans) but will give me some reassurance on this matter.
  Mr. John Parker: I speak as a member of the Inland Waterways Amenity Advisory Council and declare my interest. That body was set up by the Government. It includes people who use canals and waterways both commercally and for leisure purposes—anglers, boaters and so on. There are two Members of the House of Commons on that body, one from each side. The hon. Member for Reading, North (Mr. Durant) represents the Opposition and I liaise between that body and the Government side.

  297
  We, the Inland Waterways Amenity Advisory Council, are advisers to the Government, and we have advised the Government on this matter. We certainly received the evidence from the British Waterways Board to which my hon. Friend the Member for West Lothian (Mr. Dalyell) referred. On the whole, we agreed with it. We have also had strong representations from users of waterways in Wales, and all are strongly against the devolution of inland waterways in Wales. In the main, these are all part of the English waterways system.
  Mention was made of Llangollen. There is also the important Montgomery Canal which many people are anxious to see opened for leisure purposes. The Prince of Wales Committee and the Variety Artistes Association have given a great deal of time and money and help, and there have been many volunteers, in trying to get the canal open. Slow progress is being made. It will be an important addition to amenities in the county of Powys as well as in England.
  Sir Raymond Gower: Does the hon. Gentleman regard it as practical politics or practical anything to have a Welsh Assembly and to leave internal parts of the Welsh waterways system under some other organisation? If he believes that—I am not speaking as a devolutionist—I suggest that it is absurd.
  Mr. Parker: I fully agree with the hon. Gentleman. I am taking the Montgomery Canal as an example. Powys is one of the poorest local authorities in the United Kingdom. When it builds new roads, it is driven almost of necessity not to think about the possible reclamation of the Montgomery Canal. It is only by grants from central Government towards the cost of highways and so on that Powys has been able to prevent the canal from being rendered impossible of being opened by the lowering of bridges and so on. Some temporary arrangements have been made in the last few years to meet local needs. But, in the long run, that canal will be opened only if it is part of a national system.
  Another canal exclusive to Wales is the Brecon and Abergavenny Canal. That is a very beautiful canal running through the Brecon Beacons. Recently there was a complete collapse of one section. Unless
  298
  money had been forthcoming from the United Kingdom Government, that section would not have been reconstructed. It is being reconstructed now. That section is essential to the operation of that canal. Money would not have been forthcoming from Cardiff, so canal users believe, for the reconstruction of the canal. If a separate organisation were set up to run the few canals in Wales, it would find difficulty in getting money from the Cardiff Assembly. The canals are all part and parcel of the English system. As my hon. Friend the Member for West Lothian said, the career structure, expertise and so on must come from within a United Kingdom body.
  I suggest that all who are interested in the waterways in Wales want them not to be devolved but to remain under the control of the United Kingdom. I agree with my hon. Friend the Member for West Lothian that people openly say "If we must find something for the Assembly to do, let us hand the waterways over because they are not important." That is the wrong attitude. I suggest that we do not want the inland waterways of Wales devolved. We do not think that it would be practical or desirable from the point of view of English or of Welsh users or in the interests of the structure of the system as a whole.
  Mr. W. Benyon: When my hon. and learned Friend the Member for Cleveland and Whitby (Mr. Brittan) opened the debate on this clause, he described it as a manhole clause. As someone who has not got his legal knowledge, I should describe it as a maze clause, because, wherever one turns, one comes up against what appears to be an impenetrable barrier of comprehension, incredibly confusing and difficult to understand.
  My interest in Part I of Schedule 7 is in the Forestry Commission. To find out the full ramifications on this matter one has to go from Clause 61 to Schedule 2, to Schedule 7 and finally to Schedule 11.
  I thought that the hon. Member for Dagenham (Mr. Parker) would refer to Amendment No. 92 standing in his name. I feel that I am in order in pursuing this matter at this time because experience of sitting on these Benches during these debates on the Bill makes me realise that often the spirit is willing

  299
  but the flesh is weak when it comes to getting on with the debate. I sometimes beg leave to wonder whether we shall reach Amendment No. 92.
  The Forestry Commission operates throughout the United Kingdom as a whole. It cultivates and markets its own timber and controls and particularly encourages the private sector as well.
  Some of my hon. Friends have reservations about the Forestry Commission. I do not share those reservations. I think that it is a peculiarly British institution which has made a great contribution to forestry. The important thing is that it works. It is a funny combination, but it works. The essence of the underlying regulations governing the Forestry Commission is that it is a centralised body looking at one forestry estate in England, Scotland and Wales.
  We lost the debate on the Scotland Bill. But the situation in Wales is different, and I suggest that the Committee can draw back from taking an irrevocable decision about the Forestry Commission. If not, the expertise and success that have been achieved will be at risk. It will be at risk because legislation is being introduced for the sake of legislation. There is no wrong to be put right; there is no injustice to be remedied. It is a desire to make what might be described as a tidy package.
  It has not been possible to refer to the Minister of State's arguments on the Scotland Bill in relation to the EEC. His argument then was that we were entitled to separate forestry and agriculture because the latter had certain EEC connotations and the Minister had to remain responsible. That is not so. There are great EEC ramifications in forestry and the two situations are the same.
  5.30 p.m.
  Mr. Dalyell: Murray Hunter, a Forestry Commissioner, in a letter of 14th April states:
  "It would not be proper for me to comment to you on the wording of the Bill, or how the Government or the Minister concerned would interpret it. These are matters on which the Government spokesman will no doubt give the appropriate explanations to the Committee, and the advice of officials will of course have contributed to these explanations."
  300
  One of the difficulties is that the experts in forestry feel tied out of loyalty. Given our system, they are quite right not to give what might be their real views on these matters. This is one of the difficulties that arises. There does not seem to be a single Welsh Member on the Government side who is concerned with devolution and forestry.
  Mr. Benyon: I accept what the hon. Member said. This is the difficulty. We do not know what advice is given by the experts on this question or on that question which was raised by my hon. Friend the Member for Woking (Mr. Onslow).
  It would be wrong for me to be derogatory about a future Welsh Assembly and to imply that it would be incapable of exercising the functions that the Minister now exercises. But the Assembly could exercise these functions differently. I draw the Minister of State's attention to Sections 4 and 5 of the Forestry Act 1976. In one of those sections the Minister is involved in the whole question of advances, planting grants and subsidies of one form or another. Section 5 deals with the question of restrictive covenants under which most of the timber in the private sector is grown. It is easy to see that under those two sections alone there could be a totally different regime in Wales from that in the rest of the United Kingdom.
  The ramifications of this are tragic. Timber is one of the commodities of which there is the greatest shortage throughout the United Kingdom. It represents our biggest import bill. If we play our part right and expand the industry over the next 25 years we shall be in a position, when the oil begins to run out, to have a viable timber industry. This can be done only if the estate is a United Kingdom estate and looked at as a whole.
  I turn to the point that was raised by the hon. Member for West Lothian (Mr. Dalyell) about the waterways. The hon. Member talked about staff, conditions of service and careers. The same situation will occur in the forestry industry. As far as I can see from this labyrinth that we have been through, there is nothing to stop an Assembly creating completely different conditions for Wales from those which apply in the rest of the United

  301
  Kingdom. The implications for the future of the forestry and timber industry are very great indeed. I hope that before it is too late the Government will take another look at this.
  Mr. Gerry Fowler: I have spoken frequently in our debates on devolution but this is one issue on which I speak primarily wearing a constituency or county hat. I represent a part of the country which is much affected by the provisions of the Bill.
  The River Severn flows through my constituency. If it were not for the control of the river further up, we should still experience the regular flooding of part of my constituency in the Severn Gorge with which I was familiar when I first represented The Wrekin.
  My constituency is in the Severn-Trent Water Authority area. Woods and forests cross the border between my county and Wales. I have an interest in seeing that there is an integrated waterways system.
  I take on board all the dangers that hon. Members have mentioned in the debate. Of course there are dangers. As the hon. Member for Buckingham (Mr. Benyon) said, this is a complex Bill. If one wishes to find all the provisions that relate to these six bodies, one has to examine several parts of the Bill. A wide variety of changes in the law are specified. There are also changes in who shall, hereafter, exercise executive functions. For example, one finds that if Schedule 2 is approved, it shall be the duty of the Welsh Assembly to promote a national policy for water in Wales in harmony with a national policy for water in England and to secure its effective execution by the bodies responsible.
  That shall be the duty of the Assembly. But what happens if—perhaps because of no will of its own and not deliberately—the Assembly fails in that duty? Of course there is a danger. The forestry provisions are similar. In the same schedule the Forestry Commission has powers to make regulations under Part II of the Forestry Act 1967, but they cannot be made without the assent of the Assembly.
  That poses the possibility that there will be radically different regulations for forestry in England and in Wales since the Forestry Commission would not be able to change the existing regulations in
  302
  Wales were the Assembly to withhold its consent.
  There are also the dangers of the type that my hon. Friend the Member for Dagenham (Mr. Parker) mentioned in connection with waterways. What would happen under Clause 50 of the Bill if there were, in the course of a financial year when the capital programme for loans to this body by the Welsh Assembly had already been approved, a need for a substantial, emergency, additional capital expenditure? The provisions in Clause 50(1) appear to place restrictions on the ability of the Assembly to act and help the body that is affected.
  There are dangers. But we have to set against them the need to make a sensible devolution package and to devolve together functions which go together. It makes little sense to say that we shall reserve, for example, all powers over water to the Minister responsible to this House. That would be separating it from all local functions. I accept that there has to be, in some sense, a national water system and a pattern of large water authorities. But we all know that the supply of water is a localised matter in many parts of the country. It would make little sense to say that we should retain ultimate responsibility and leave that matter for the Minister who is ultimately responsible to the House. It would not make much sense to say that we should retain Welsh waterways in the same manner since much of their usage is, and should be, of a local character.
  It would not make much sense to say that we shall retain the River Severn because it flows for much of its length through England and has its source in Wales. I do not think that there are real dangers of the sort that were described earlier.
  I recognise that those dangers exist potentially. We have a conflict of view. There are potential dangers but we must devolve as much as we can of essential local Welsh matters if we are to have a sensible package of devolution. We cannot simply pick out bits and pieces over which British national control should be retained.
  When I was dealing with devolution in a ministerial capacity I never came across a body that said it wanted to be devolved. Many bodies said that they

  303
  did not want to be devolved, but it would be surprising to come across a United Kingdom national body the members of which said unanimously or even in a majority that they wanted to be devolved to Scotland and Wales, that the powers that were now exercised in subordination to a Minister should not be continued in that way but that they wanted to be responsible to two or three masters.
  None of the bodies said that, but that does not support an argument against devolution. There is, therefore, this conflict of interests, and that is where I come to the amendment before the Committee. It seems to me that this debate has in a sense been stood on its head. The provision that the hon. and learned Member for Cleveland and Whitby (Mr. Brittan) seeks to delete is the essential safeguard against the potential dangers that I have described.
  At present the Bill says,
  "In relation to a body listed in Part I of Schedule 7 to this Act, a Minister of the Crown may by order modify or exclude any provision of this Act."
  Of course there must be such provisions if there is to be rapid action when Clause 50(1) impedes the emergency provision of capital expenditure, or might be held so to do. Action of that sort must be possible when something goes seriously amiss in the co-ordination of water policy in England and Wales. But the Opposition should be seeking to strengthen the provisions of this subsection, not delete them.
  Mr. Dalyell: I quite understand the reluctance of anyone to give up powers. However, when my hon. Friend was a Minister of State what did he say to these bodies on two issues? First, is their career structure to be broken up between Wales, Scotland and England? Secondly, how did he reply to the question of the pooling of expertise and technical capacity? It seems that it is not just a question of a body wanting to give up its authority. There are very real technical reasons for not doing that, given the shortage of resources and that technical expertise in these matters is concentrated.
  Mr. Fowler: I do not think that those questions arise in respect of the boards or bodies that we are discussing. It is possible to mount the first of my hon.
  304
  Friend's arguments in respect of the Civil Service. It is a specious and spurious argument even in that respect, however, because all along we have said that we shall keep a single United Kingdom Civil Service. His argument certainly does not apply to the British Waterways Board or the Forestry Commission. They will keep a united expertise and a single structure. Doubtless, members of the Forestry Commission will be examining specifically the problems of forests in Wales. I have no doubt that they do that at the moment, and I can see no significant difference in that respect.
  Mr. Leon Brittan: Does the hon. Member not recall that in our debate on 5th April reported at column 590, I made clear that I accept that the purpose is to enable, the Government to restrict the powers of the Welsh Assembly, but I said that the language of the Bill enabled those powers also to be increased. It was to that that I objected. I set out the procedure by which that could happen. Even if the Government do not wish it, they may find, once the Assembly is set up, that they are under considerable pressure to use the power that the Bill gives them.
  Mr. Fowler: We are back to an old familiar point. In any event I do not accept that "modify" means "extend" or, at least, "extend significantly". As it stands the Bill says that a Minister may by order modify or exclude any of the provisions of the Act. The Opposition repeatedly argue that if the Welsh Assembly asks the Minister so to do the Minister will inevitably and inexorably do it—[HON. MEMBERS: "No."]. If the Opposition are not arguing that, what are they arguing? There seems to be no validity in the argument that to confer power upon the Minister is ipso facto to confer upon the Assembly the power to extend its own powers.
  Mr. Brittan: If the hon. Gentleman is serious in his question the answer can be given very simply. One of two things will happen. Either the pressure will be very great and the Minister will acquiesce, in which case there will be an extension of non-statutory powers in a most undesirable piecemeal way. Alternatively, the Minister will resist, in which case there will be precisely the kind of political

  305
  clash and conflict between Westminster and Whitehall, on the one hand, and Cardiff and Whitehall, on the other, which those of us who oppose the Bill seek to avoid.
  5.45 p.m.
  Mr. Fowler: It is not unknown for local authorities to seek an extension to their powers, whether collectively or individually, I have yet to hear the argument that because they can do that and because the House may on the recommendation of a Minister on occasions agree to accede to such a request, we should not have local authorities. Yet that would be the burden of the hon. Gentleman's argument.
  Mr. Onslow: The hon. Member says this grandly and largely, but can he nominate an authority which can arrogate powers to itself in this way? Is it not more customary for them to seek to promote a private Act?
  Mr. Fowler: That is precisely my point. The hon. Gentleman asks whether I can name a body which can arrogate powers to itself in this way. But by the provisions of this Bill the Welsh Assembly could not arrogate powers to itself. I think that the nub of his argument is the point we have come back to so frequently in our debates. The Opposition object in principle to devolution. They are not objecting only to the devolution of particular powers. They do not like the notion that we can create an Assembly in Wales which can exercise a range of powers which at the moment is exercised by Ministers responsible to this House. They will not recognise that in a complex Bill of this sort it is necessary to provide safeguards such as this clause contains, and they will not accept that those safeguards are of the essence of devolution if devolution is to work. It is their fundamental hostility to the Bill which is at issue, not the provisions of this clause.
  Mr. Michael Spicer: Like the hon. Member for The Wrekin (Mr. Fowler), I have a constituency which is supplied with water by the Severn-Trent Water Authority. I therefore have the same interest as the hon. Member, but I come to totally different conclusions from him. Perhaps this is for the reason that he mentioned, that I start from the premise of being highly suspicious
  306
  about devolution and I feel that all sorts of problems and anomalies are unnecessarily created by the Bill. I do not dismiss the problem that he rightly raised—the issue of national objectives being left to the Assembly and the problems of resolving the difficulties that arise, problems that the hon. Gentleman seemed to dismiss as non-problems or as problems that were worth suffering because of the wider objectives of the Bill. I totally disagree with the hon. Member.
  The main problem in my constituency and in the whole of the West Midlands arises in a sense because 50 per cent. of the water supplied throughout the region and 90 per cent. of Birmingham's water will under the Bill be within the control of an authority upon which the bodies that I deal with are almost totally unrepresented. The consumer in my part of the country is to be virtually powerless in dealing with the provision of water.
  The Bill, recognising this to some extent, says what it will do by nods and winks; and, in the context of what we are talking about, this is one of the nods and winks. The Minister can intervene on certain occasions—and there is very little definition in the Bill as to when he can intervene—and matters can be referred to him; if there are conflicts he will step in. There are schedules which list the particular instances in which he can do this.
  As my hon. and learned Friend the Member for Cleveland and Whitby (Mr. Brittan) said, in this case the Minister's powers for intervention, as expressed here, might actually worsen the situation for my constituents and the supply of water in my area, because the pressure on him from Wales, in circumstances which are highly individual, make the situation worse rather than better.
  Therefore, I support the amendment because I think that we have an excuse here for not doing anything specific about the resolution of these conflicts and problems which are created by the Bill. What I would rather see is amendments brought forward—by the Government I hope—to deal quite specifically with the problem by allowing far greater representation, for instance, by the bodies supplying water to the authority which, in effect, will be sovereign in this matter.

  307
  I agree with the hon. Member for Dagenham (Mr. Parker), who said that he feels that this is all a bit of a tragedy because we are looking for jobs for the Assembly to do and we thought that water was an innocent thing. But, as has been shown in the case of fisheries, the supply of water and forestry, many highly sensitive matters are involved here, and I suspect that they have not been formally thought through.
  But if we cannot get greater representation, I feel that there is an obligation upon the Government to build into the Bill, at the very least, the machinery whereby, quite formally, the Severn-Trent Water Authority, in this case, can make public representations and public objections in a way in which it will feel totally uninhibited in terms of representing the interests that it serves. At present, the whole thing is done, as I say, by nods and winks in the Bill—"Come and see us quietly. The Minister can intervene in certain circumstances." But what is proposed is totally unspecific and very worrying.
  I am sure that the Minister has had plenty of representations on this precise matter from the Severn-Trent Water Authority. That authority is extremely concerned about the vagueness of the Bill and about the authority's ultimate powers to serve and represent its interests, which are now becoming extremely ill-defined.
  The reason I support the amendment is that the Bill does not do anything to cover the specific anomalies and specific conflicts which, if allowed to persist, will result in the largest water authority in the country being powerless, in effect, to serve the consumers that it has been set up to serve. We might as well wind it up, because it will remain powerless, in effect, on all major matters of policy.
  I hope that the Minister will come up with something rather more specific than the generalised statement that we are now debating which, anyway, could work to the further detriment of the authority concerned.
  Mr. Colin Shepherd: I am very grateful—and I am sure that the Committee concurs with me—to my hon. and learned Friend the Member for Cleveland and Whitby (Mr. Brittan) for exploring the argument so nicely in his
  308
  opening remarks on the amendment. The clarity with which he put forward the pitfalls opened by the Bill was quite remarkable. My hon. and learned Friend drew attention to the manner in which the Minister could, in a very insidious way, expand the powers relating to forestry. I should like to address my remarks to the question how these matters can relate to water, with specific reference to the Welsh National Water Development Authority, which covers Herefordshire.
  Herefordshire is one of the areas referred to by my hon. Friend the Member for Flint, West (Sir A. Meyer) as being sensitive. We are very sensitive about the way in which we are overshadowed by the WNWDA in the whole matter of water. There is considerable apprehension in Herefordshire, especially among the farming population. In fact, to sum it up basically, we are not happy with the safeguards that are set out in the Bill.
  Herefordshire is covered by the Wye hydrological basin, relating to the WNWDA, and partly covered by the Severn hydrological basin, which is dealt with by the Severn-Trent Water Authority. Therefore, problems are beginning to manifest themselves by the fact that the two water authorities are to be handled differently under the Bill. One is to be considered mainly part of Wales or under Welsh auspices, and the other is to be considered mainly part of England under English auspices.
  In Herefordshire we do not take kindly to the concept of control from Wales. I have said before in earlier debates on this devolution Bill that we spent a long time asserting our difference from Wales, and that we see this now being eroded back to where we started. As it is, we do not relish being part of the WNWDA. There are problems enough in having a split ministerial responsibility between the Secretary of State for Wales and the Ministers at the Department of the Environment, without the added dimension of a Welsh Assembly being an additional spanner in the works.
  Since the vast majority of the territory of the WNWDA is in Wales, Herefordshire and, indeed, part of Cheshire will, under the provisions of the Bill, be heavily overshadowed by Wales. Indeed,

  309
  Clause 65, which we may or may not reach in this consideration, indicates that under the proposals of the Bill, all of Herefordshire is to be covered by the WNWDA and is to be considered as part of Wales for water purposes. This will have the effect of extending the sphere of operation of the Welsh Assembly across the border and into parts of England. I do not think that this is acceptable.
  Mr. Cledwyn Hughes: Will the hon. Gentleman say whether he is sympathetic with that area of Mid-Wales which has been heavily overshadowed by the Severn-Trent Water Authority since 1974, or does his sympathy extend only one way?
  Mr. Shepherd: My sympathy extends very much towards my part of the world, which is Herefordshire. But I should like to make it quite clear that I want to see the whole question of water removed from the concept of devolution altogether. I think that it is a national matter which does not lend itself to being tackled in a devolved manner. The problems that we are creating for ourselves by running together regional water areas which cross national boundaries and then trying to run national boundaries through them make a nonsense of the whole issue. This is one of the symptoms of that nonsense, which we are now trying to tackle, to which the Bill gives rise and, indeed, amplifies.
  I have said that it is not an attractive proposition to have the Welsh Assembly with a finger in English pies and, indeed, particularly in Herefordshire pies, because the Welsh Assembly will be responsible, in electoral terms, only to Welsh interests. This cannot be acceptable to the English areas affected. As a result of the clause, Ministers will have powers to
  "modify or exclude any provision of this Act."
  It is difficult to see how the interests of the English side of the border can be guaranteed protection.
  It is set out that, in effect, Herefordshire will be subject to the Welsh Assembly for a whole host of functions. These include drainage charges—I have specific interest in land drainage matters—the appointment of nominee land drainage members of the Welsh National
  310
  Water Development Authority, and the payment, constitution and appointment of regional land drainage committees.
  Local representation in bodies involved in these matters is immensely important to farmers and fishermen in the South Herefordshire area. Schedule 11 indicates that one member from Hereford will be appointed by the Hereford and Worcester County Council to the regional land drainage committee. But one member will be very heavily overshadowed by the massive weight of Welsh opinion on the other side. What guarantees have we that Herefordshire's interests will be properly safeguarded? I can see none in the Bill.
  The anticipated urban domination of the Welsh authority—Assembly—I will insist on calling the Welsh Assembly the Welsh "authority" and I have a feeling that that is what it will turn out to be—its anticipated urban domination does not breed any confidence that rural interests, let alone Herefordshire's rural interests, will be adequately considered, let alone safeguarded. With the powers contained in subsection (2) left in the Bill, there can be no guarantees that the representation will not be either modified or excluded in the future.
  In trying to fight this, the representatives from the English side of the border will be hopelessly outgunned by the Welsh interests with specific reference to land drainage matters. The Welsh National Water Development Authority, the Welsh Office and the Welsh Assembly have overlapping functions. Are local and regional land drainage committees to be the servants of one, two or all those masters?
  6.0 p.m.
  Mr. Gwynfor Evans: I am following with interest the hon. Member's speech about Herefordshire being overshadowed by Wales. I often think of the similar situation of Wales being overshadowed by England. However, he had a remedy. He could have put down an amendment to make Wales an entity in the administration of water, thereby excluding Herefordshire completely. There was no need to follow the hydrological principle. It is not followed in the Fens or for rivers running between Scotland and Wales, and it need not be followed in the case of Wales.
  Mr. Shepherd: I considered that, but felt that it was better to take the concept of water out of devolution altogether because of the problems that it created. I see no reason to modify my views in the light of the hon. Gentleman's intervention.
  I am worried about political influence on the Herefordshire and Cheshire side of the border as a result of the structure of the Welsh Assembly, whose politics may be quite different. Because of the extension of the Assembly's powers across the border through the WNWDA, it could impose policies to which Herefordshire was completely unsympathetic.
  I understand that the Severn-Trent Water Authority has received assurances against that kind of control by the Welsh, but I cannot see how the Bill provides safeguards. Are we to depend totally on ministerial assurance?
  Mr. Michael Spicer: With reference to what my hon. Friend said about the lack of rural representation under the new regime, if we continue to have a Labour Government, any reassurance on that matter is likely to count for very little anyway.
  Mr. Shepherd: I heartily agree. That is certainly the sort of point which worries me. Arrogant Socialist government often seeks to dictate to areas which are not under its control. The same problem will arise over the water representation on the WNWDA. Schedule 11 provides for the appointment of five members from England—one each from the county councils of Cheshire and Hereford and Worcester, one each from the district councils covering Herefordshire and Worcestershire and one as a sort of carve-up between the Secretary of State and the Minister.
  The amendment to the Water Act 1973 contains that explicit structure:
  "…the Welsh Assembly shall not charge any committee of the Assembly with the exercise of the power to make an order varying that constitution."
  So far, so good. But under the clause, if that was not to take effect, the Minister would have power to vary Schedule 11. He would therefore be able to amend the Water Act 1973 by statutory instrument subject to the negative procedure, which seems too easy a way to do a massive exercise like amending a major Act.
  312
  I have tried to show that in my part of the country we are not happy with the safeguards or the way in which the interests of rural England and the Marches will be looked after in the circumstances which will arise from the Bill. I hope that the Minister will give me some positive statement on how these matters will be safeguarded.
  Mr. John Parker: That great Welshman Nye Bevan was one of the strongest opponents of devolution. He made a speech in which he said that the problems of sheep farmers in Devon, Carmarthen and Argyll were similar and should be dealt with by one Government. Quite rightly, the Government have decided not to devolve agriculture—but they are to devolve forestry.
  Most of us who are interested in forestry favour its integration with agriculture. Because the EEC has a common agricultural policy, ours has to keep in line, whereas there are so far no pronounced EEC policies on forestry. That may not continue for long. Interesting discussions are going on in an attempt to co-ordinate European forestry policy. In the Alps and many other areas, such as parts of central France, big reafforestation programmes are in hand because it is realised that much of the hill peasant farming is no longer viable in modern conditions.
  The same is true in this island. Much hill farming is not viable without a subsidy from the State. It may be necessary and desirable from our national point of view to keep hill farming going. As a member of the executive of the National Trust, I know that we do that in the Lake District to keep land in its present condition, grazed by sheep so that it will not return to scrub.
  Mr. D. E. Thomas: I think that the hon. Member said that hill farming was not viable. Hill farming in the kind of areas that I represent is certainly an essential part of the cycle of breeding and rearing animals and the lambs and calves bred in those areas are then exported into the lowlands for fattening. Far from hill farming not being viable, market prices recently have shown a substantial improvement, particularly in that sector, although there are problems with the overall income generated. But the hill cow subsidy is a subsidy to the producer

  313
  which is reflected in the total cycle of agricultural production. Without that input, it would not be possible for the whole cycle to be viable.
  Mr. Parker: I agree that I probably exaggerated, but it is a fact that the merging of hill farms is necessary to make life viable for many farmers. In the national interest—not the Welsh, the Scottish or the English, but the British interest—we must keep a great deal of hill farming going, if necessary through State subsidy. If we are to have a big forestry industry—we need it in view of the large imports of wood products—land must be made available for afforestation. The great difficulty for the Forestry Commission and private people wanting to plant is to obtain the necessary land.
  There should be a United Kingdom policy on how to use our limited supply of land. I would favour discussions among forestry interests on both sides of the Committee and between the Government and the Forestry Commission and private owners to achieve an agreed planting programme for the next 50 years. Such a programme was set out in 1919. I estimate that by the end of this century we shall have approximately carried out that planting programme, partly through the Forestry Commission and partly through private owners. A national policy and programme on forestry must be agreed, and it can be done only on a United Kingdom basis. It must be linked with agriculture. There must be no competition but a planned division of land use between those interests.
  I agree that in our forests there should be recreational and other activities. The Forestry Commission and a number of private owners have done a great deal to develop these leisure activities, but that is not the main purpose of growing forests. The main purpose is to produce timber. This is very important from a national point of view, because the timber-producing countries are tending to send the finished products here and the timber-using industries will find it more and more difficult to obtain their raw materials if they cannot obtain them inside this country. Therefore, we must have forestry run on a United Kingdom basis.
  What do the Government propose? The Forestry Commission is to remain a United Kingdom organisation. The
  314
  English part of forestry is to be financed from Westminster, but the Assemblies in Wales and in Scotland are to control the amount of money made available and the size of staffs in Wales and Scotland. I do not see how it is possible to run an industry successfully on a United Kingdom basis when it is divided up in that way.
  Why should this one particular nationalised industry be divided up? We do not propose to divide up coal, the railways, iron and steel or any of the other nationalised industries. There is no case for dividing up forestry in the way suggested.
  There is strong opposition to this proposal throughout the industry. Last weekend I addressed a gathering of professional foresters from the whole of the United Kingdom. They were all against the proposal to divide up forestry or devolve it in this way.
  Most members of the Civil Service trade union covering the Forestry Commission are in Scotland, but their organisation is strongly against devolution and the breaking up of the industry. I agree that it has been said that the career structure will be safeguarded. I have found only one private forester who supports devolution, and he is a Scot, not a Welshman. Everywhere else people in the industry, whether in the Commission or working in the private woodlands, are against devolution of the industry. They want it to remain united.
  Mr. Dalyell: The Commission is somewhat muted, because it has Civil Service loyalties. With his great knowledge of the industry, can my hon. Friend confirm that there will be great problems for the administration of forests in England if the headquarters remain in Edinburgh and great problems in Scotland if it does not? After it has been taken from Basingstoke, to have yet another upset would not be a good idea.
  Mr. Parker: I am strongly in favour of the headquarters being in Scotland, because the greater amount of the land already forested or to be forested is in Scotland. But the danger here is that the English and Welsh sections may feel out on a limb because they are much smaller than the Scottish section of the industry.
  The industry must be planned on a United Kingdom basis. Who can

  315
  organise if the planting programmes are to be decided by the Assemblies in Scotland and Wales while Westminster decides the programme for England? Who can organise matters not knowing where the finances will come from year to year? That strengthens my case for trying to have an agreed 50 years programme.
  I believe that this is another example of the Government's looking around for something to devolve. They asked "Why not the Forestry Commission? Why not pass it over or divide it up?" I think that that has been rather the attitude. If we are to have proper use of land in this small island in the years to come, it must be decided on a United Kingdom basis. There must be unity in policies on agriculture and forestry, and they must work together.
  Mr. Jasper More: I want briefly to support and reinforce what has been said by my hon. Friends and the hon. Member for Dagenham (Mr. Parker) about forestry. I had the honour on Monday last week to be invited to a large forestry gathering in Wales. I am unable to pronounce the name of the county in which the meeting was held, but I think that before local government reorganisation it was Flintshire.
  Sir Raymond Gower: Clwyd.
  6.15 p.m.
  Mr. More: Although the temperature was several degrees below zero and there was a strong north-east wind, I had the opportunity to talk to a considerable number of the 100 or so people present, mostly from Wales, I think. I did not hear from any of them any desire that there should be devolution of forestry to Wales.
  We also had the honour to have with us the Chairman of the Forestry Commission and I had the opportunity to listen to a considerable speech from him. It may be that because of his official position he is unable to make any definite pronouncements about the merits or otherwise of devolution, but there was certainly nothing in the tenor of his speech to suggest that he actively favoured it.
  The hon. Member for Dagenham referred to some of the disadvantages that must flow from any disorganisation of the
  316
  present Forestry Commission structure. He mentioned integration with agriculture. I am sure that when we see what is being done or attempted in Europe and what is likely to be done or attempted in this country we must realise the importance of this.
  The integration of forestry and agriculture is a most difficult and complicated question. It ultimately all comes down to a question of land use. It is absurd to think that in Wales this will be done by an authority which is different from the Ministry which will still be dealing with agriculture from London.
  One might also mention the critical and topical problem of tree diseases. Some of us are aware of the terrible devastation that has recently happened to our elms. I read an alarming article in a forestry paper in the past few days saying how many potential tree diseases there were in the world. The total was about 100. At any time, because of the large imports of timber that we must have, our trees may become infected by any of those diseases. When that happens, it is surely sensible that we should have an authority which is paramount in the whole of this island—disease control must be a question of geography more than anything else—and is capable of putting forward concerted policies which geographically cover the whole of Great Britain.
  I do not know what expertise there would be in a Welsh Assembly to deal with such questions. I do not even know whether it would be possible to translate into the Welsh language most of the diseases. I am not an expert on this.
  If it would be bad to make this suggested devolution to the Assembly, I believe that it would be even worse to leave the position as it is apparently contemplated in the clause, because it is left in a state of total uncertainty.
  It seems that we might be left chronically with the Minister being subjected to recurring pressure from an Assembly to make an order for devolution in regard to forestry, an order which he had not originally made. To have permanent uncertainty in this important industry would be the worst possible result.
  Therefore, I hope that on reconsideration the Minister will accept the amendment and Amendment No. 92 and stop this nonsense.
  Mr. John Smith: Some time ago, it seems, the hon. and learned Member for Cleveland and Whitby (Mr. Brittan) moved the amendment, on the sixth day of our Committee proceedings, and put forward in his usual careful way a precise legal argument, the general effect of which was that the powers conferred on the Minister by the Bill were too wide and might be abused. Indeed, the hon. and learned Gentleman argued that there could be a form of creeping devolution whereby the Minister, without reference to Parliament or with inadequate reference to Parliament, could confer on the Welsh Assembly extra powers of a kind which might not meet the approval of Parliament if the matter were put forward in the most precise way in which most of the matters are dealt with in the Bill.
  We are in this case dealing with the bodies listed in Schedule 7, and subsection (2) has relevance to the bodies in Part I of Schedule 7. These are bodies which operate at present on an England and Wales basis or a Great Britain basis. Consequently, some provision needs to be made to divide their responsibilities so that they can account satisfactorily to and be responsible to the Welsh Assembly for their activities in Wales, while remaining responsible to the Government for their other operations.
  Another way to do it—it was attempted in the Scotland and Wales Bill—would be to make special detailed arrangements for all the bodies concerned. But that would have burdened the Bill with immense detail about accounts, appointments, finance and other matters which might better be dealt with by order.
  I have sympathy with the hon. Member for Buckingham (Mr. Benyon), who said that he had difficulty in finding his way round the Bill. I agree that in some parts it is complex. But if we do not take the slightly broader power set out in the clause, we have to go into greater detail. One of the effects of carrying the amendment would be that we should have to go into greater detail, and would find the problems even greater.
  Another difficulty is that if detailed arrangements are made in advance, it means that they have to be made without the opportunity for the Welsh Assembly to be consulted on the nature and
  318
  detail of the changes to be made. Indeed, in many cases the Assembly might be content that only minor changes were made—for example, enabling it to make a nomination to a board of management, or some such matter as that.
  It was necessary, in dealing with these bodies, to distinguish between those whose devolution is central to the devolution of functions in the field in which they operate and those whose devolution can be postponed. We felt that provision must be made for the first group from day one, and they are listed in Part I of Schedule 7. Other functions, whose devolution could be postponed without producing administrative complication, are set out in Part II. Accordingly, those bodies shown in Part I have already had most of the relevant functions transferred by the entries in the appropriate part of Schedule 2. Some of the functions which need to be divided as between England and Wales are at present expressed in a way which makes them unsplittable—if I might use that word—without some modification.
  The effect of an order under the clause would be to re-express the functions in a way which would make them operable separately by both the Assembly and the Minister. The order is needed not just to confer clearly defined powers on the Assembly but to tidy up the powers remaining with the Minister. By contrast, functions relating to bodies shown in Part II have mostly been reserved in the appropriate parts of Schedule 2. An order under Clause 61(3) is accordingly needed in order to transfer these functions for the first time.
  I could go into greater detail, but I think that the essential point argued by the hon. and learned Member for Cleve land and Whitby was that it was really too much to give this power to the Minister. Very often in a Bill—and subsequently in an Act of Parliament—quite wide powers are given to the Minister, and Parliament is rightly careful about conferring such powers on the Minister, and asks Ministers for justification for them. The justification that I offer here is that it allows us to cut down a great deal of the detail in the Bill. This means that, in a sense, we have to take on trust to a certain extent the powers that the Minister exercises; but that is a usual' feature of many Bills. It is also worth

  319
  bearing in mind the limited scale that is involved here. It is only the bodies in Part I of Schedule 7 which are affected by the subsection which it is sought to delete.
  One point which might be of interest to my hon. Friend the Member for West Lothian (Mr. Dalyell) is that we intend later in the course of these debates to accept amendments in the name of my hon. Friend the Member for Dagenham (Mr. Parker) and in the name of the hon. Member for Reading, North (Mr. Durant) which will have the effect of transferring the British Waterways Board and the Inland Waterways Advisory Council from Part I to Part II. My hon. Friend the Member for Dagenham and the hon. Member for Reading, North both made detailed representations to the Government on the matter, and I had the opportunity of discussing them. Although I do not think that they agreed with all my arguments or conclusions, I think they accepted that we were seeking to assist in some way. As I have indicated, it is our intention to accept the amendments, so that there will be these exclusions from Part I. Therefore we are dealing only with the rest of the bodies in Part I.
  Some hon. Members seemed to feel that the Welsh Assembly could take power to itself, but these powers can be conferred only if a Minister of the Crown seeks to give it the powers. I do not know that it would be a characteristic of a Government that they would readily seek to shower new powers upon a Welsh Assembly. It would have to be a considered collective decision by the British Government that certain powers ought to be transferred. The likelihood of there being vast changes to the devolution settlement by the use of ministerial powers of this character is, therefore, a little farfetched politically.
  The hon. and learned Member for Cleveland and Whitby did not say that this would happen. What he said was that, on the face of the words in the Bill, it could technically happen, and I think that is so. But we have to look at it with an eye to some political reality.
  Before I leave that part of the argument, I should perhaps mention that the hon. and learned Gentleman referred briefly to the fact that the only safeguard
  320
  that Parliament has is the negative resolution procedure. Although he did not develop that at length, it was a key part of his argument. He said that such wide powers, on the face of it, were to be given to a Minister that it was not very desirable for the control of Parliament to be only by the negative resolution procedure. I have thought very carefully about that. There is a great deal of substance in what the hon. and learned Gentleman said. Amendment No. 294 relates to this point.
  Having reflected on this matter, I am convinced by the hon. and learned Member's argument that it would be desirable that, instead of the negative resolution procedure applying here, the affirmative resolution procedure should apply. I therefore intimate to the Committee that if the hon. and learned Gentleman moves Amendment No. 294 at the appropriate point—I think that will not be very far from now—I shall be disposed to accept it.
  There were some other points raised in the debate with which I should now like to deal. Hon. Members ranged far and wide on a number of precise points. The hon. Member for Woking (Mr. Onslow) mentioned fishing and pure water, and the necessity for having a national policy on water resources. I thought that his aspirations on policy questions were desirable, and that there ought to be the maximum co-ordination between the Welsh Assembly and the British Government on the management of our water resources.
  The hon. Gentleman may care to note that Clause 65(3) and Part II and Part IV of Schedule 8—we may come to those later on—give the Minister considerable powers to intervene to protect the interests of England, Indeed in Schedule 8, Part II, paragraph 3(1)(b) on page 66 there is specific mention of the interests of the owners of fishing rights in England. The Severn will continue to be managed as a whole by the Severn-Trent Water Authority. The authority will remain in existence, even though ministerial powers may be divided. The hon. Gentleman should, with respect, weigh that in the balance together with the points that he made.
  Mr. Onslow: Does the Minister believe that those who fear that local interests

  321
  in Wales may be able to override national interests in the Severn as a whole are imagining things which will not come to pass? Is it not possible that these things will happen?
  Mr. Smith: One has to look at these matters with a eye to reality. I am simply reminding the hon. Gentleman that there is power in the Bill, in the event that such a thing occurred, for the Minister to intervene. That is a protection which relates to the sort of concern that the hon. Gentleman has in mind. I feel that it is reasonable for me to draw his attention—and that of his constituents who are concerned about the matter—to that point.
  During the debate I have heard feats expressed about England dominating Wales, and equally about Wales dominating England. It rather depends on which side of the border one is standing, or which side one represents. I felt that the hon. Member for Hereford (Mr. Shepherd) did not have a very large vision. He said that he was interested not in Wales but only in Hereford. The Government in planning legislation have to look at both sides, and we have tried to do our best by giving quite wide powers of intervention, if they are needed. We hope that it will be possible for many of these matters to be resolved by co-operation between the Assembly and the British Government.
  6.30 p.m.
  Some hon. Members feared that Amendment No. 92 would not be reached. As a result the hon. Member for Buckingham, the hon. Member for Ludlow (Mr. More) and my hon. Friend the Member for Dagenham took the opportunity to air their views on forestry. I think that they are wrong. I think that we shall reach Amendment No. 92. The knife on this part of the guillotine does not fall until 9 o'clock. I have indicated that we are likely to accept a number of amendments between now and Amendment No. 92. Therefore, it is quite possible that we shall have a debate on Amendment No. 92.
  In fact, we might even have been on that debate now were it not for the fact that some hon. Members were so apprehensive that we might not reach it that they made their speeches in advance. The hon. Member for Buckingham was
  322
  quite frank about that. I think that it would be better to have a proper debate on forestry when we come to that matter. My hon. Friend the Under-Secretary of State for Wales is anxious to reply to that debate when it is reached.
  The main point of this debate has been about subsection (2) and the attempt and suggestion by the hon. and learned Member for Cleveland and Whitby that it should be deleted. These are all matters of judgment. I think I have gone some way to allay some of the fears by indicating that in the circumstances we are agreeable to accepting the affirmative resolution proposals. It may that the hon. and learned Gentleman will wish to withdraw his amendment. But that is a matter for him. The offer to accept the amendment is in no way conditional upon his doing that. We have come to the view that the affirmative resolution is genuinely more desirable because some complicated matters may be involved about which Parliament ought to be reassured.
  Mr. Brittan: The Minister of State said that some people were afraid that England would dominate Wales while others were afraid that Wales would dominate England. He drew the conclusion that those fears were unjustified. I would draw the conclusion that if it is possible to arouse fears on both sides of the Anglo-Welsh border then something must be seriously wrong with the Government's proposals.
  In moving this amendment a fortnight ago, I made clear that our objection was to the fact that the Minister was able, without a full Act of Parliament, to extend the devolution powers of the Welsh Assembly not only by transferring the powers of certain independent bodies to the Assembly but also by extending the provisions of the Wales Act itself, so that the Schedule 2 powers could be greatly increased and more power be given. In addition, the powers which at present are excluded in Schedule 2 could be removed by the modification which the Minister could make.
  The Minister of State was candid enough to indicate that that was a justified fear in the sense that those powers did exist under subsection (2). If, of course, the Act had said "limit" rather than "modify", that fear would not have

  323
  been justified. But the Minister has not suggested altering that. The situation remains that what the Government are proposing would enable the Government to transfer powers to the Welsh Assembly and to modify the Act itself, greatly increasing the devolved powers passed to the Welsh Assembly.
  It is true that Clause 61 has been sufficiently eroded by the arguments that have been put forward for the Government to indicate that they are prepared to remove two of the bodies from Part I of Schedule 7 and also to substitute the affirmative resolution procedure for Clause 61(5). These are certainly improvements to the Bill, but they do not deal—
  Mr. Dalyell: Is not the hon. and learned Gentleman a little naive about this—
  Mr. Brittan: I have not finished yet.
  Mr. Dalyell: Is it conceivable that an Assembly, in the first few months of its existence, would not ask precisely for that transfer?
  Mr. Brittan: I can assure the hon. Gentleman that I was not being naive. I was about to say that, although the changes which the Government indicated they would accept were beneficial, they do not go far enough for me to seek to withdraw the amendment or to do anything other than advise my right hon. and hon. Friends to support it in the Division.
  The Minister talked about political reality. Although the power theoretically existed for the Minister to confer new powers, over and above what was in the Bill, by the order referred to in subsection (2), he asked whether it was likely that the Minister would do so. In answer to that, I revert to the point that I made in an earlier intervention. One of two things will happen. Either the pressure will be exerted and the Minister will acquiesce—that is one undesirable consequence in which devolution powers will be passed to the Assembly without a proper Act of Parliament and simply by means of a statutory instrument, an order
  324
  and a vote of this House, but not proper legislation—or there will be strong representations from Cardiff which the Minister will resist.
  What we say is that that will lead to precisely the kind of political conflict which is at the root of our objections to this whole form of devolution. That will happen again and again. It is because we object to that happening that we shall divide the Committee and seek to persuade it that it is not right for subsection (2) to remain in the Bill.
  Mr. Dalyell: Had there not been a guillotine motion I would have repeated at length, ad nauseam and seriatim, all the questions which I have put about the Inland Waterways Board. However, I shall spare colleagues that for the only reason that there is a guillotine.
  Frankly, if I was churlish about it, I would say to my hon. Friend the Minister of State "Thank you very much for nothing". This transfer from Part I to Part II is meaningless. It sounds good enough, but it is absolutely empty and meaningless. It is impossible that an Assembly would not ask for these powers. Therefore, here again we are at a point of conflict.
  Sir Raymond Gower: I am sorry that the Minister of State appeared to think that in making this relatively small concession he was removing our chief objection to this part of the Bill. He seemed to think that what remained was comparatively trivial or less important. But what is very objectionable is that the power for a Minister in future to extend this area of devolution should exist in the Bill at all. The Bill should either provide a full procedure for some separate future legislation—it should make clear that it did not envisage any such extension—or there should be no Parts I and II at all.
  Even so, that would not meet our objection because our objection is to the clause itself which permits this procedure. I am sorry that the Minister of State thinks that that is so unimportant.
  Question put, That the amendment be made:
  The Committee divided: Ayes 146, Noes 165.

  Division No. 171]

  AYES

  [4.26 p.m.

  Atkins, Rt Hon H. (Spelthorne)

  Drayson, Burnaby

  Hamilton, Michael (Salisbury)

  Atkinson, David (Bournemouth, East)

  Dunlop, John

  Havers, Rt Hon Sir Michael

  Awdry, Daniel

  Durant, Tony

  Hawkins, Paul

  Beith, A. J.

  Edwards, Nicholas (Pembroke)

  Hayhoe, Barney

  Benyon, W.

  Elliott, Sir William

  Hicks, Robert

  Berry, Hon Anthony

  Emery, Peter

  Hodgson, Robin

  Biffen, John

  Evans, Gwynfor (Carmarthen)

  Holland, Philip

  Biggs-Davison, John

  Eyre, Reginald

  Hooson, Emlyn

  Body, Richard

  Fairbairn, Nicholas

  Hunt, David (Wirral)

  Bottomley, Peter

  Fell, Anthony

  Irving, Charles (Cheltenham)

  Brittan, Leon

  Fisher, Sir Nigel

  James, David

  Bryan, Sir Paul

  Fletcher, Alex (Edinburgh N)

  Jenkin, Rt Hon P. (Wanst'd&W'df'd)

  Buchanan-Smith, Alick

  Forman, Nigel

  Johnson Smith, G. (E Grinstead)

  Burden, F. A.

  Freud, Clement

  Jopling, Michael

  Butler, Adam (Bosworth)

  Fry, Peter

  Kaberry, Sir Donald

  Chalker, Mrs Lynda

  Glyn, Dr Alan

  King, Evelyn (South Dorset)

  Clark, William (Croydon S)

  Goodhart, Philip

  Kitson, Sir Timothy

  Clarke, Kenneth (Rushcliffe)

  Gow, Ian (Eastbourne)

  Knox, David

  Cooke, Robert (Bristol W)

  Gower, Sir Raymond (Barry)

  Lamont, Norman

  Crawford, Douglas

  Grieve, Percy

  Lawrence, Ivan

  Crowder, F. P.

  Grimond, Rt Hon J.

  Lawson, Nigel

  Dodsworth, Geoffrey

  Grist, Ian

  Le Marchant, Spencer

  Lewis, Kenneth (Rutland)

  Percival, Ian

  Stanley, John

  Macfarlane, Neil

  Peyton, Rt Hon John

  Steel, Rt Hon David

  MacGregor, John

  Powell, Rt Hon J. Enoch

  Steen, Anthony (Wavertree)

  Madel, David

  Pym, Rt Hon Francis

  Stewart, Ian (Hitchin)

  Marshall, Michael (Arundel)

  Rathbone, Tim

  Tebbit, Norman

  Marten, Neil

  Renton, Tim (Mid-Sussex)

  Thomas, Dafydd (Merioneth)

  Mates, Michael

  Rhodes James, R.

  Thompson, George

  Meyer, Sir Anthony

  Ridley, Hon Nicholas

  Thorpe, Rt Hon Jeremy (N Devon)

  Miller, Hal (Bromsgrove)

  Ridsdale, Julian

  Trotter, Neville

  Mitchell, David (Basingstoke)

  Roberts, Michael (Cardiff NW)

  Viggers, Peter

  Molyneaux, James

  Roberts, Wyn (Conway)

  Wainwright, Richard (Colne V)

  Montgomery, Fergus

  Ross, Stephen (Isle of Wight)

  Wakeham, John

  Moore, John (Croydon C)

  Rost, Peter (SE Derbyshire)

  Wall, Patrick

  More, Jasper (Ludlow)

  Sainsbury, Tim

  Weatherill, Bernard

  Morrison, Hon Peter (Chester)

  Shepherd, Colin

  Welsh, Andrew

  Mudd, David

  Shersby, Michael

  Wigley, Dafydd

  Neave, Airey

  Silvester, Fred

  Winterton, Nicholas

  Newton, Tony

  Smith, Timothy John (Ashfield)

  Young, Sir G. (Ealing, Acton)

  Onslow, Cranley

  Speed, Keith

  Pardoe, John

  Spence, John

  TELLERS FOR THE AYES:

  Pattie, Geoffrey

  Spicer, Michael (S Worcester)

  Mr. Roger Sims and

  Penhaligon, David

  Stainton, Keith

  Mr. Michael Neubert.

  NOES

  Abse, Leo

  Golding, John

  Parry, Robert

  Allaun, Frank

  Gould, Bryan

  Pavitt, Laurie

  Archer, Rt Hon Peter

  Graham, Ted

  Price, C. (Lewisham W)

  Atkins, Ronald (Preston N)

  Grant, George (Morpeth)

  Radice, Giles

  Barnett, Guy (Greenwich)

  Grant, John (Islington C)

  Rees, Rt Hon Merlyn (Leeds S)

  Bates, Alf

  Hamilton, James (Bothwell)

  Richardson, Miss Jo

  Bean, R. E.

  Hamilton, W. W. (Central Fife)

  Roberts, Albert (Normanton)

  Bennett, Andrew (Stockport N)

  Hardy, Peter

  Robinson, Geoffrey

  Bishop, Rt Hon Edward

  Harper, Joseph

  Roderick, Caerwyn

  Boardman, H.

  Harrison, Rt Hon Walter

  Rodgers, George (Chorley)

  Booth, Rt Hon Albert

  Hayman, Mrs Helene

  Rooker, J. W.

  Bottomley, Rt Hon Arthur

  Heffer, Eric S.

  Rose, Paul B.

  Bray, Dr Jeremy

  Hooley, Frank

  Sedgemore, Brian

  Brown, Hugh D. (Provan)

  Hughes, Roy (Newport)

  Sever, John

  Brown, Robert C. (Newcastie W)

  Hunter, Adam

  Silkin, Rt Hon S. C. (Dulwich)

  Buchanan, Richard

  Jenkins, Hugh (Putney)

  Sillars, James

  Callaghan, Jim (Middleton & P)

  Jones, Alec (Rhondda)

  Silverman, Julius

  Canavan, Dennis

  Jones, Barry (East Flint)

  Skinner, Dennis

  Cant, R. B.

  Kelley, Richard

  Smith, John (N Lanarkshire)

  Carmichael, Neil

  Kerr, Russell

  Snape, Peter

  Carter-Jones, Lewis

  Kilroy-Silk, Robert

  Spearing, Nigel

  Castle, Rt Hon Barbara

  Lamborn, Harry

  Spriggs, Leslie

  Clemitson, Ivor

  Lestor, Miss Joan (Eton & Slough)

  Stallard, A. W.

  Cocks, Rt Hon Michael (Bristol S)

  Lewis, Ron (Carlisle)

  Stewart, Rt Hon M. (Fulham)

  Cohen, Stanley

  Litterick, Tom

  Stott, Roger

  Coleman, Donald

  Lyon, Alexander (York)

  Strang, Gavin

  Cook, Robin F. (Edin C)

  Lyons, Edward (Bradford W)

  Taylor, Mrs Ann (Bolton W)

  Corbett, Robin

  McDonald, Dr Oonagh

  Thomas, Jeffrey (Abertillery)

  Cox, Thomas (Tooting)

  McElhone, Frank

  Thomas, Mike (Newcastle E)

  Craigen, Jim (Maryhill)

  MacFarquhar, Roderick

  Thomas, Ron (Bristol NW)

  Cryer, Bob

  MacKenzie, Rt Hon Gregor

  Thorne, Stan (Preston S)

  Cunningham, Dr J. (Whiteh)

  Maclennan, Robert

  Tomlinson, John

  Dalyell, Taom

  McNamara, Kevin

  Torney, Tom

  Davies, Ifor (Gower)

  Madden, Max

  Urwin, T. W.

  Dean, Joseph (Leeds West)

  Mallalieu, J. P. W.

  Wainwright, Edwin (Dearne V)

  Dempsey, James

  Marks, Kenneth

  Walker, Terry (Kingswood)

  Dewar, Donald

  Marshall, Dr Edmund (Goole)

  Watkins, David

  Dormand, J. D.

  Mellish, Rt Hon Robert

  White, Frank R. (Bury)

  Dunwoody, Mrs Gwyneth

  Mendelson, John

  Whitehead, Phillip

  Eadie, Alex

  Mikardo, Ian

  Whitlock, William

  Ellis, John (Brigg & Scun)

  Mitchell, Austin

  Willey, Rt Hon Frederick

  English, Michael

  Morris, Alfred (Wythenshawe)

  Williams, Alan Lee (Hornch'ch)

  Evans, Fred (Caerphilly)

  Morris, Charles R. (Openshaw)

  Wilson, William (Coventry SE)

  Evans, Ioan (Aberdare)

  Morris, Rt Hon J. (Aberavon)

  Wise, Mrs Audrey

  Ewing, Harry (Stirling)

  Newens, Stanley

  Woof, Robert

  Flannery, Martin

  Noble, Mike

  Young, David (Bolton E)

  Foot, Rt Hon Michael

  O'Halloran, Michael

  Forrester, John

  Ovenden, John

  TELLERS FOR THE NOES:

  Fowler, Gerald (The Wrekin)

  Padley, Walter

  Mr. Sydney Tierney and

  Garrett, John (Norwich S)

  Park, George

  Mr. E. Fernyhough.

  Garrett, W. E. (Wallsend)

  Parker, John

  Division No. 172]

  AYES

  [6.38 p.m.

  Amery, Rt Hon Julian

  Hamilton, Michael (Salisbury)

  Page, Rt Hon R. Graham (Crosby)

  Arnold, Tom

  Hampson, Dr Keith

  Percival, Ian

  Atkins, Rt Hon H. (Spelthorne)

  Hannam, John

  Peyton, Rt Hon John

  Atkinson, David (Bournemouth, East)

  Haselhurst, Alan

  Pink, R. Bonner

  Banks, Robert

  Havers, Rt Hon Sir Michael

  Powell, Rt Hon J. Enoch

  Bell, Ronald

  Hawkins, Paul

  Prentice, Rt Hon Reg

  Bennett, Dr Reginald (Fareham)

  Heath, Rt Hon Edward

  Pym, Rt Hon Francis

  Benyon, W.

  Hicks, Robert

  Raison, Timothy

  Berry, Hon Anthony

  Hodgson, Robin

  Rathbone, Tim

  Biffen, John

  Holland, Philip

  Renton, Rt Hon Sir D. (Hunts)

  Biggs-Davison, John

  Hordern, Peter

  Renton, Tim (Mid-Sussex)

  Boscawen, Hon Robert

  Hunt, John (Ravensbourne)

  Rhodes James, R.

  Bottomley, Peter

  Hurd, Douslas

  Ridley, Hon Nicholas

  Braine, Sir Bernard

  James, David

  Ridsdale, Julian

  Brittan, Leon

  Johnson Smith, G. (E Grinstead)

  Rifkind, Malcolm

  Brocklebank-Fowler, C.

  Jopling, Michael

  Roberts, Michael (Cardiff NW)

  Brooke, Peter

  King, Evelyn (South Dorset)

  Roberts, Wyn (Conway)

  Brotherton, Michael

  King, Tom (Bridgwater)

  Rodgers, Sir John (Sovenoaks)

  Bryan, Sir Paul

  Knox, David

  Ross, William (Londonderry)

  Buck, Antony

  Lamont, Norman

  Rost, Peter (SE Derbyshire)

  Butler, Adam (Bosworth)

  Langford-Hoit, Sir John

  Shelton, William (Streatham)

  Carlisle, Mark

  Latham, Michael (Melton)

  Shepherd, Colin

  Chalkor, Mrs Lynda

  Lawrence, Ivan

  Shersby, Michael

  Channon, Paul

  Lawson, Nigel

  Silvester, Fred

  Clark, William (Croydon )

  Le Marchant, Spencer

  Sims, Roger

  Clarke, Kenneth (Rushcliffe)

  Lewis, Kenneth (Rutland)

  Skeet, T. H. H.

  Clegg, Walter

  Luce, Richard

  Smith, Timothy John (Ashfield)

  Cooke, Robert (Bristol W)

  Macfarlane, Neil

  Speed, Keith

  Dean, Paul (N Somerset)

  MacGregor, John

  Spence, John

  Dodsworth, Geoffrey

  McNair-Wilson, P. (New Forest)

  Spicer, Michael (S Worcester)

  Drayson, Burnaby

  Marshall, Michael (Arundel)

  Stainton, Keith

  Dunlop, John

  Marten, Neil

  Tapsell, Peter

  Eden, Rt Hon Sir John

  Mather, Carol

  Taylor, Teddy (Cathcart)

  Edwards, Nicholas (Pembroke)

  Maudling, Rt Hon Reginald

  Tebbit, Norman

  Elliott, Sir William

  Mawby, Ray

  Temple-Morris, Peter

  Emery, Peter

  Maxwell-Hyslop, Robin

  Thomas, Rt Hon P. (Hendon S)

  Fairbairn, Nicholas

  Meyer, Sir Anthony

  Townsend, Cyril D.

  Fletcher, Alex (Edinburgh N)

  Miscampbell, Norman

  Viggers, Peter

  Fowler, Norman (Sutton C'f'd)

  Mitchell, David (Basingstoke)

  Wall, Patrick

  Gardner, Edward (S Fylde)

  Moate, Roger

  Weatherill, Bernard

  Glyn, Dr Alan

  Molyneaux, James

  Wells, John

  Gorst, John

  Moore, John (Croydon C)

  Wiggin, Jerry

  Gow, Ian (Eastbourne)

  More, Jasper (Ludlow)

  Winterton, Nicholas

  Gower, Sir Raymond (Barry)

  Morrison, Hon Peter (Chester)

  Young, Sir G. (Ealing, Acton)

  Gray, Hamish

  Mudd, David

  Younger, Hon George

  Grieve, Percy

  Nelson, Anthony

  Griffiths, Eldon

  Neubert, Michael

  Grist, Ian

  Newton, Tony

  TELLERS FOR THE AYES:

  Grylls, Michael

  Nott, John

  Mr. Jim Lester and

  Hall-Davis, A. G. F.

  Onslow, Cranley

  Lord James Douglas-Hamilton.

  NOES

  Allaun, Frank

  Crawshaw, Richard

  Grant, John (Islington C)

  Anderson, Donald

  Cryer, Bob

  Grimond, Rt Hon J.

  Archer, Rt Hon Peter

  Cunningham, Dr J. (Whiteh)

  Hamilton, James (Bothwell)

  Atkins, Ronald (Preston N)

  Davidson, Arthur

  Hamilton, W. W. (Central Fife)

  Atkinson, Norman

  Davies, Bryan (Enfield N)

  Harper, Joseph

  Bain, Mrs Margaret

  Davies, Ifor (Gower)

  Harrison, Rt Hon Walter

  Barnett, Guy (Greenwich)

  Dean, Joseph (Leeds West)

  Hayman, Mrs Helene

  Bates, Alf

  Dempsey, James

  Heffer, Eric S.

  Bean, S. E.

  Dewar, Donald

  Hooley, Frank

  Bennett, Andrew (Stockport N)

  Dolg, Peter

  Hooson, Emlyn

  Bishop, Rt Hon Edward

  Dormand, J. D.

  Howells, Geraint (Cardigan)

  Blenkinsop, Arthur

  Douglas-Mann, Bruce

  Hughes, Rt Hon C. (Anglesey)

  Bottomley, Rt Hon Arthur

  Duffy, A. E. P.

  Hughes. Roy (Newport)

  Bray, Dr Jeremy

  Eadie, Alex

  Hunter, Adam

  Brown, Hugh D. (Provan)

  Ellis, John (Brigg & Scun)

  Janner, Greville

  Brown, Robert C. (Newcastle W)

  Ellis, Tom (Wrexham)

  Jay, Rt Hon Douglas

  Buchanan, Richard

  Evans, Gwynfor (Carmarthen)

  Johnson, James (Hull West)

  Callaghan, Rt Hon J. (Cardiff SE)

  Evans, Ioan (Aberdare)

  Johnston, Russell (Inverness)

  Callaghan, Jim (Middleton & P)

  Ewing, Harry (Stirling)

  Jones, Alec (Rhondda)

  Canavan, Dennis

  Fernyhough, Rt Hon E.

  Jones, Barry (East Flint)

  Carter-Jones, Lewis

  Fletcher, Ted (Darlington)

  Jones, Dan (Burnley)

  Cocks, Rt Hon Michael (Eristol S)

  Foot, Rt Hon Michael

  Kelley, Richard

  Cohen, Stanley

  Fowler, Gerald (The Wrekin)

  Kerr, Russell

  Coleman, Donald

  Garrett, W. E. (Wallsend)

  Kilroy-Silk, Robert

  Cook, Robin F. (Edin C)

  George, Bruce

  Lambie, David

  Cox, Thomas (Tooting)

  Gould, Bryan

  Lamborn, Harry

  Crawford, Douglas

  Grant, George (Morpeth)

  Lestor, Miss Joan (Eton & Slough)

  326

  327

  Lewis, Ron (Carlisle)

  Pavitt, Laurie

  Thomas, Dafydd (Merioneth)

  Litterick, Tom

  Pendry, Tom

  Thomas, Jeffrey (Abertillery)

  Lyons. Edward (Bradford W)

  Penhaligon, David

  Thomas, Ron (Bristol NW)

  McElhone, Frank

  Radice, Giles

  Thompson, George

  MacFarquhar, Roderick

  Rees, Rt Hon Merlyn (Leeds S)

  Tierney, Sydney

  McGuire, Michael (Ince)

  Roberts, Albert (Normanton)

  Tomlinson, John

  MacKenzie, Rt Hon Gregor

  Robinson, Geoffrey

  Varley, Rt Hon Eric G.

  Maclennan, Robert

  Roderick, Caerwyn

  Wainwright, Edwin (Dearne V)

  McMillan, Tom (Glasgow C)

  Rodgers, George (Chorley)

  Walker, Harold (Doncaster)

  McNamara, Kevin

  Rooker, J. W.

  Walker, Terry (Kingswood)

  Madden, Max

  Rose, Paul B.

  Ward, Michael

  Mallalieu, J. P. W.

  Ross, Stephen (Isle of Wight)

  Watkins, David

  Marks, Kenneth

  Ross, Rt Hon W. (Kilmarnock)

  Watt, Hamish

  Marshall, Dr Edmund (Goole)

  Rowlands, Ted

  Welsh, Andrew

  Mendelson, John

  Sedgemore, Brian

  White, Frank R. (Bury)

  Mikardo, Ian

  Sever, John

  Whitehead, Phillip

  Millan, Rt Hon Bruce

  Silkin, Rt Hon John (Deptford)

  Whitlock, William

  Mitchell, Austin (Grimsby)

  Silkin, Rt Hon S. C. (Dulwich)

  Wigley, Dafydd

  Morris, Charles R. (Openshaw)

  Silverman, Julius

  Willey, Rt Hon Frederick

  Morris, Rt Hon J. (Aberavon)

  Skinner, Dennis

  Williams, Rt Hon Shirley (Hertford)

  Newens, Stanley

  Smith, John (N Lanarkshire)

  Wilson, Gordon (Dundee E)

  Oakes, Gordon

  Spriggs, Leslie

  Wilson, William (Coventry SE)

  Ogden, Eric

  Stallard, A. W.

  Wise, Mrs Audrey

  O'Halloran, Michael

  Steel, Rt Hon David

  Woodall, Alec

  Ovenden, John

  Stewart, Rt Hon Donald

  Woof, Robert

  Padley, Walter

  Stewart, Rt Hon M. (Fulham)

  Palmer, Arthur

  Stoddart, David

  TELLERS FOR THE NOES:

  Pardoe, John

  Strang, Gavin

  Mr. Ted Graham and

  Park, George

  Taylor, Mrs Ann (Bolton W)

  Mr. James Tinn.

  Parry, Robert

  Question accordingly negatived.
  Mr. John Smith: I beg to move Amendment No. 90, in page 24, line 21, after 'imposing', insert
  ', or enabling the imposition of,'.
  This amendment is similar to one that was moved on the Scotland Bill. It arises from the fact that Clause 61(3)(d) provides that an order dividing responsibility for any public body listed in Schedule 7 may impose
  "any special limits in addition to or in substitution for existing limits".
  The provision is intended to cope with the situation where an existing Act lays down a statutory limit on the amounts which may be advanced to a body from the National Loans Fund or, as in the case of the Housing Corporation, on the total amount of guarantees which may be issued.
  Statutory limits of this kind cease to have any relevance when the Welsh operations of the bodies concerned are subject to the control of the Assembly with the advances to be made from the Welsh Loan Fund. Therefore, it is desirable to make it possible to have separate Welsh limits laid down.
  Clauses 61(3)(d) as it stands enables a ministerial order itself to impose new Welsh limits on the total which may be advanced to the British Waterways Board for its Welsh operations. This could involve some derogation from devolution in that it could involve the Minister in
  328
  decisions which properly accord to the Assembly as part of its new responsibility for the body concerned. The amendment accordingly provides for an alternative procedure which is likely in practice to enable the ministerial order to provide for any new limit that is desired to be imposed by the Assembly, possibly by order made in plenary session.
  Paragraph 12 of Schedule 11 already provides for limits on borrowings by new towns in Wales to be so laid down by the Assembly. This is purely a technical amendment and I hope that the Committee will agree to it.
  Amendment agreed to.
  The Under-Secretary of State for Wales (Mr. Alec Jones): I beg to move Government Amendment No. 217, in page 24, line 22, at end insert:
  '(dd) providing, in the case of a body listed in Part II of Schedule 7 to this Act, for the application of section 50 above;'
  The Chairman (Mr. Oscar Murton): With this we shall take the following amendments:
  No. 91, in Schedule 7, page 64, leave out lines 5 and 6.
  No. 93, in page 64, leave out lines 11 and 12.
  No. 94, in page 64, line 23, at end insert:
  'The British Waterways Board. The Transport Act 1962 (c. 46), section 1'.

  329
  No 95, in page 65, line 13, at end insert:
  The Inland Waterways Amenity, The Transport Act 1968 (c. 73), section 110' Advisory Council.
  Mr. Jones: Government amendment No. 217 is consequential upon the decision already announced to hon. Members that we propose to accept Amendments Nos. 91, 93, 94 and 95. However, I must say that when it was made known that we were prepared to accept the amendments the news was not greeted with much pleasure in some parts of the Committee and I began to wonder whether we were doing the right thing.
  This matter was raised earlier when we were discussing inland waterways in general terms. The Government believe that the responsibility for inland waterways and, by extension, ministerial responsibility for operations in Wales of the British Waterways Board and the Inland Waterways Amenity Advisory Council should be transferred to the Welsh Assembly at some stage. It is not the case, as has been suggested, that the Government are scurrying around looking for functions to give to the Assembly.
  The waterways have close links with other devolved matters. They are very closely connected with tourism, the countryside and leisure facilities. If these matters are to be devolved it is reasonable and proper, and it makes a neat package, for the inland waterways to be devolved similarly. We must take account of the fact that responsibilities for transport infrastructure are to be devolved as well.
  We have received a number of representations suggesting that the immediate transfer of responsibility for these bodies could cause certain difficulties. When we were discussing this matter on the Scotland Bill the Government accepted comparable amendments which will, in fact, permit the timing of the devolution of these responsibilities to depend on a request from the Scottish administration.
  For these reasons, I ask the Committee to accept the amendment.
  Mr. Tony Durant: I accept that the Government have been kind enough to make a small concession, but although it was made in line with the concession on the Scotland Bill there is a
  330
  fundamental difference between the Welsh and Scottish waterways. The Welsh waterways are connected directly with England and are not separate canals and waterways. Therefore, I hope that, despite this concession, the Minister will reconsider this matter at a later stage.
  The idea of the operation of the inland waterways being set up as a separate entity in Wales is almost laughable. There are 80 miles of canals and 20 locks. The existing staff consists of two engineers and about 60 manual workers. To set up a board to run this operation is a complete nonsense and I urge the Minister to rethink the matter.
  The amendment enables the Assembly to take this on "at some time". The dangers of "some time" can be those of the Assembly doing things in no time at all. The Welsh will be anxious to do things and they will set up a new water authority to get on and run these canals. With 80 miles of waterways this is a nonsense. The canals include a reserve waterway of 30 miles—the Monmouthshire and Brecon Canal, which is not part of the British Waterways Board itself. Therefore, the whole proposal is a complete nonsense.
  The voluntary bodies are very concerned about this matter. They feel that the British Waterways Board provides a good back-up service to the work they are doing to try to get the canals reopened, and to provide a leisure industry on which Wales depends. But they believe it is nonsense to set up a new authority to run a small organisation like this.
  Much of the operation is run from two towns across the border—Northwich and Gloucester. This means setting up an administrative headquarters to run the new authority, and this would mean once again entering into a lot of bureaucratic machinery to run a very small entity.
  The Select Committee, which looked at the whole question of the British Waterways Board, said:
  "Your Committee recommend that the Government should table an amendment to remove the British Waterways Board from the provisions of the Scotland and Wales Bill".
  That was the view of a Select Committee of this House which examined the matter in considerable detail and it was recommending that the Government

  331
  should delete that body from the Bill. Although there are some arguments on the Scottish side where it can be said that the canals are treated as separate because there are more of them, the waterways in Wales run directly into England. Therefore, the provision as it stands would be a nonsense.
  7.0 p.m.
  The other important matter relates to the Select Committee report on the future of the British Waterways Board—a report which puts in question the Government's White Paper on the future of the water industry. Because of the Select Committee's report, I believe that we should go ahead and debate the water industry and try to elicit what the Government intend to do about the future of the water industry. That matter is tied up with these provisions and is important in considering the future of inland waterways. Many of the voluntary bodies are concerned and anxious that they will not obtain the backup which they have obtained from the British Waterways Board in carrying out many of the voluntary projects.
  I urge the Minister to think again about this matter in relation to Wales because the situation as it stands is ridiculous. We should aim at providing a body that will be able to do something worthwhile for the inland waterways.
  Amendment agreed to.
  Amendment made: No. 294, in page 24, leave out lines 41 to 43 and insert:
  "No order shall be made under this section unless a draft of the order has been laid before and approved by a resolution of each House of Parliament."—[Mr. Brittan.]
  Question proposed, That the clause, as amended, stand part of the Bill.
  Mr. Wyn Roberts: My hon. and learned Friend the Member for Cleveland and Whitby (Mr. Brittan) was right to describe the clause as a manhole clause. A great deal has come up from this manhole in the course of this debate, and when we go down into the manhole we find that it leads us into the tunnels of Schedule 7.
  Considerable permissive powers are given in Clause 61 to Ministers of the Crown in relation to the bodies in Schedule 7. There are 24 public bodies listed
  332
  in the schedule, six in Part I and 18 in Part II, but the Government have now transferred two of these bodies from Part I to Part II, which was a wise thing for the Government to do.
  By Clause 61 a Minister of the Crown may by order subject to affirmative resolution—and we are glad that the Government accepted our amendment in that regard—make significant changes in the composition and supervision of these bodies after consultation with them. Exactly what the word "consultation" means in this context remains to be seen, but I imagine that the Government can proceed with or without the agreement of the body concerned.
  The difference between the bodies listed in Parts I and II is that those in Part I are subject to Clause 61(2) whereby a Minister of the Crown
  "may by order modify or exclude any provision of this Act".
  We are familiar with excluded powers and functions—indeed, Schedule 2 is full of them—but the power to modify provisions can mean an addition to or subtraction from the powers of the Assembly. My hon. and learned Friend was right to imply that the greater threat was to increase the powers of the Assembly at the stroke of a ministerial pen, and subject now to an affirmative resolution.
  I believe that subsection (2) also reveals the Government's uncertainty about the rectitude of their proposals in regard to the bodies listed in Part I. They are important bodies in the sense that their policies and activities have repercussions far beyond Wales. In this instance we have the Government seeking to tamper with their constitutions and delivering to an untried Assembly powers of appointment to them.
  Some of these bodies require that those nominated to them should be able to take a British national view in addition to a Welsh national view. Some are bodies which require primarily from their members considerable knowledge and expertise in the subject, and the question is whether the Assembly can provide such people. Will they not by their nature be politically-motivated persons who will have to beat the Welsh drum all the time? They will be answerable to the Assembly, and nothing will matter there except the direct and immediate interests of Wales.

  333
  There is a similar but shorter schedule to the Scotland Bill—Schedule 13—providing for Assembly nominations to certain bodies with United Kingdom responsibilities. If Wales and Scotland can press their regional interests, English national interests will have to be represented, too. That seems to me to be logical and inevitable. Therefore, the whole character of the public bodies affected may be changed. I do not think the Government wish to see such a change, but they have landed themselves with it, and, in my opinion, it will come about.
  With regard to the 20 bodies now listed in Part II of the schedule, an order under Clause 61
  "shall not be made except at the request of the Assembly".
  In other words, the provisions of the Bill may not be modified or excluded in relation to those bodies. There are important bodies here, too, such as the National Water Council, which was set up under Section 4 of the 1973 Water Act. So far as I can see the Government at present do not intend to tamper with the constitution of that body. It has a statutory Welsh member in the chairman of the Welsh Water Authority. Members of the council have to be
  "persons appearing to the Secretary of State or the Minister, as the case may he, to have special knowledge of matters relevant to the functions of the water authorities".
  There is no regional representative qualification for membership, yet the Government are leaving the door open so that the Welsh Assembly could press for the power of nomination.
  That is the significance of Part II and, for that matter, of the whole schedule. It is a launching pad for an extension of Assembly influence and power and threatens to undermine the wholly British approach and character of the public bodies concerned. This clause and schedule anticipates the outward ripples of devolution and the regionalisation of bodies which hitherto have been British-national in composition and outlook.
  We have heard a great deal about the need to democratise nominated bodies, and that has been one of the Government's major arguments for devolution. But what will happen in practice? We can see how local authority representation may be undermined on the water authority for Wales and assembly nominees
  334
  substituted, but what do we really mean when we talk of Assembly appointments? We mean appointments by the Chief Executive and the ruling caucus of the Assembly in all probability. That will be no more democratic than the present system and possibly a good deal less.
  What should concern us most is the threat to British institutions with an all-British outlook. I do not think that the House of Commons can approve such a major change of policy and direction as that proposed in the Bill. What we are discussing is giving Ministers the power to sabotage major pieces of legislation to which Parliament has given considerable time and thought over the years. What is worse is that if we pass the clause and schedule we shall be contributing directly to the undermining of the unity of the United Kingdom as it is represented by the public bodies listed in the schedule.
  Considerable mention has been made of forestry. There was a short debate on forestry during proceedings on the Scotland Bill. On that occasion the Government failed to give a convincing reply. That is why I suspect that some Labour Members have tabled an amendment on forestry that suggests that the Forestry Commissioners be deleted from the schedule.

  That raises the key question whether forestry should be a devolved subject. The arguments against it are that forestry has traditionally been closely allied to agriculture, which is not being devolved except as regards land use and management. Forestry is under the control of a United Kingdom body—the Forestry Commission—and is a subject requiring uniform treatment throughout the United Kingdom.
  There is a strong argument against the proposed divorce between forestry and agriculture. That argument has considerable force because before land can be taken for forestry it has to be cleared as being surplus to agricultural requirements. That has meant that in the past the Ministry of Agriculture, Fisheries and Food has had to be consulted. It now appears that when dealing with Wales the Assembly will have to be brought into the picture and its permission obtained. It is not clear to me whether the Ministry of Agriculture, Fisheries and Food will, as represented by the Welsh Office, have to be consulted as well.

  335
  Afforestation relates to land use. That is a devolved subject, together with agricultural land management, the countryside, tourism and rural development. It could be argued that the Assembly alone will have to be consulted and that the Ministry of Agriculture, Fisheries and Food may safely be ignored. If that is so, farmers who are also timber growers will have to deal with two separate bodies. It will be necessary for them to deal with the Secretary of State and the Welsh Office as regards their farming activities and with the Assembly through the Forestry Commission when dealing with their timber growing.
  The split between forestry and agriculture is highly debateable. It is strongly opposed by the Timber Growers Association, on the ground that forestry and agriculture are sister industries and that they should work closer together rather than drift into possible opposition. The Government's statutory advisory body, the Home Grown Timber Advisory Committee, is also against devolving responsibility for forestry.
  The real worry of timber growing is that the grants available for planting and management will no longer be uniform throughout the United Kingdom but will vary according to region and that different policies will be pursued in different parts of the United Kingdom. For example, in Wales there is a real fear that because of the preponderance of industrial area representation in the Assembly there will not be much sympathy for the rural timber grower, and little financial support.
  All these matters have British-national implications. We have heard from various hon. Members about the importance of forestry to the United Kingdom economy. About 11 per cent. of the total area of Wales is afforested. Of that acreage about 8 per cent. belongs to the Forestry Commission and 3 per cent. to private timber growers. In United Kingdom terms, timber is our third largest item on the import bill. Surely it is vital to British interests that afforestation should be properly encouraged so that we may meet far more of our timber needs from our native resources.
  7.15 p.m.
  It is a well-known fact that other countries—some of which have been mentioned,
  336

  and are frequently mentioned by Plaid Cymru Members—have afforested far more extensively than the United Kingdom and have less dependence on imports, which come mainly from Eastern European countries.
  The case against the divorce of forestry from agriculture has been well put by the Scottish Woodland Owners Assocation. What it says about Scotland is equally applicable to Wales. It observes that there are two major users of rural land and that there is a uniformity of view among all who deal with the two industries that they must work in closer partnership and not in opposition.
  Land use policy in relation to the private sectors of forestry and agriculture, the assocation says, is bound up with the payments of grants and subsidies. Forestry is to be devolved, but agriculture is to remain the responsibility of the United Kingdom Government. As the Assembly's policy for forestry could be at variance with the Government's policy for agriculture, and vice versa, divergence could arise between the two industries hindering their coming closer together.
  The association argues that the Government should retain responsibility for forestry and agriculture and should move towards a grant system embracing them both for the fuller development of land in the uplands and hills throughout Britain. To bring that about it is essential that the formulation of policy and the grant system for the two industries should remain under one control. These are the arguments that the Government have failed to answer to date.
  The assocation goes on to tackle an argument put forward by the Minister of State. On 1st February the hon. Gentleman said that
  "the Government's involvement with agriculture is in financing agriculture. It is very difficult to make different arrangements for financing support systems in agriculture in different parts of the United Kingdom."—[Official Report, 1st February 1978; Vol. 943, c. 606.]
  That is a difficulty that applies equally to forestry.
  Mr. John Smith: The hon. Gentleman has referred to the Government's attitude to forestry. Why is it that we seem to be dealing at length with forestry on every conceivable occasion except the specific amendment to which the Committee will

  337
  turn following this debate, which relates to forestry? It would be much more intelligent for the Committee to concentrate on forestry when it considers the appropriate amendment.
  Mr. Roberts: I am sure that we shall reach the amendment. Surely the Minister will not deny that forestry has been extensively talked on during the debate. He knows that Clause 61 refers to the schedule and that the Forestry Commissioners are specifically mentioned in the schedule.
  Mr. John Smith: The hon. Gentleman says that forestry has been referred to extensively in the debate. That is right, but the only person who has spoken in the debate so far is himself. The extensive reference comes from himself and no one else.
  Mr. Roberts: I am seldom in the position when I have to say to a Minister that I regret that I gave way to him. However, I am afraid that I must say that on this occasion. The hon. Gentleman knows as well as I do that we have debated the clause quite extensively in discussing the amendments to it and that forestry has featured prominently in our discussions.
  We are dealing specifically with the power of a Minister to make provisions by order to enable powers to be exercised by the Assembly to authorise the appointment of additional members to the Forestry Commission, to apportion assets and to change financial arrangements. The whole of Clause 61 betrays the uncertainty of the Government and indicates that they are still in a state of muddle as regards the bodies in Part I of Schedule 7, including the Forestry Commissioners. The political and constitutional aspects of whether it is wise or unwise to devolve forestry are no less interesting and important than the economic aspects. In some ways, they are, perhaps, more important.
  The Forestry Commission is apparently not shaken by the prospect of devolution. I have a letter from the secretary to that effect. The commission has been helpful to me over matters of fact. The secretary said in his letter:
  "As I am sure you will appreciate, the Government having decided to proceed with the proposal to devolve forestry, the Forestry Commission's task, as an arm of the Government,
  338
  is to determine in what way it can be made to work in the best interests of forestry. The existing organisation of the Commission is in fact well suited to the task. The flexibility needed to manage the Commission's business efficiently, in both its role as Forestry Enterprise and Forestry Authority, and to take full account of regional differences is provided at present by the maximum devolution of responsibility to eleven Conservators (5 in England 4 in Scotland and 2 in Wales). The Commissioners accordingly regard the Government's decision to maintain the Forestry Commission as the instrument for carrying out the English, Scottish and Welsh policies as a workable one."
  Mr. Dalyell: Who is that letter from?
  Mr. Roberts: It is a letter from Mr. P. J. Clarke, the secretary of the Forestry Commission. He talks about devolution in terms of the responsibility of the 11 conservators, but we are talking not about the conservators but about the commissioners.
  Let us look more closely at what is proposed. There are 10 commissioners, including one with a special interest in Wales. They are appointed by Her Majesty the Queen on the advice of Ministers. In addition, there is a national committee for Wales comprising nine members, with the Welsh Commissioner at their head, two regional advisory committees, one for North Wales and one for South Wales, and the two conservators.
  We are talking about the power of Ministers to appoint additional commissioners. It must be significant that the Government want this power and we are entitled to ask why they want it. I believe that the answer is fairly clear. The commission at present is not primarily a regional representative body. It represents forestry interests as a whole and ancillary businesses. The Forestry Act 1967 is clear on the composition of the commission. It says:
  "Of the persons for the time being appointed to be Forestry Commissioners—

  (a) at least three shall be persons who have special knowledge and experience of forestry;

  (b) at least one shall be a person who has scientific attainments and a technical knowledge of forestry; and

  (c) at least one shall be a person who has special knowledge and experience of the timber trade."

  The Act goes on to provide regional representation on the national committees for England, Scotland and Wales.

  339
  The Government appear to want to change all this at the top—at commission level—to enable regional representation to take place. Clearly, this could take precedence over the interests of forestry as a whole in the United Kingdom. That is the crux of the matter.
  I give the Government credit because I believe that they are dubious about the wisdom of the change that they have in mind. That is why Clause 61(1) is permissive. It may be why we have a Part I and a Part II of Schedule 7, with Clause 61(2) applying only to the bodies listed in Part I.
  The inclusion of the Forestry Commissioners in Part I, coupled with the amendment in Schedule 11 to the 1967 Act, may help a further stage of devolution. The changes in the Act described on page 73 of the Bill envisage separate regulations for Wales concerning the felling of trees. These cannot be made without the consent to the Assembly and parliamentary consent is done away with in the last two lines on that page. The commissioners' powers to make byelaws are to be restricted in Wales and will not be able to be operated without the consent of the Assembly, and once again Parliament's powers are to be set aside.
  In other words, what is contemplated is an entirely different kind of Forestry Commission with members appointed as representatives of regions in addition to, or in place of—we do not know which—the members appointed for their knowledge and experience of the industry. Behind these regional commissioners in Scotland and Wales will be the Assemblies with power to change regulations and byelaws. This set-up cannot be conducive to the formation and execution of a United Kingdom policy for forestry. That is abundantly clear.
  Equally, any Welsh or Scottish commissioners, appropriately having the best interests of their own areas at heart, may have an undue influence on policy in the United Kingdom as a whole. As a Welshman, I should be the last to complain about this; but I also have a sense of fairness and if Wales and Scotland are to have regional representation I know that it will not be long before the
  340
  various regions of England are asking for representation on that basis.
  Mr. Dalyell: How will they have any sort of influence? Presumably, the three sets of commissioners will be appointed by three different bodies. The Welsh Assembly will appoint the Welch commissioners, the Scottish Assembly will appoint the Scottish commissioners and the British Parliament will appoint the English commissioners. Surely, therefore, they are atomised, and this is part of the whole argument.
  Mr. Roberts: We are talking about a permissive power. I do not have the hon. Gentleman's imagination. This could work out in a variety of ways, but it is quite possible that it could work out in the way he has suggested. I emphasise that the requirements of the 1967 Act are specific and I cannot see how the requirements of the Wales and Scotland Bills, which provide for a different sort of commissioner—a regional representative—are consonant. The procedure is totally objectionable because of the drastic change of policy that can be brought about simply by order.
  Another subject that has been extensively discussed in this debate is the Welsh Water Authority. The hon. Member for Wrexham (Mr. Ellis) has a later amendment on this subject. He is not the only hon. Member concerned about the authority being included in the schedule. The authority itself is concerned at the proposal. So, too, are the Welsh local authorities which appoint most of the members of the authority. They are very concerned about the permissive powers given to Ministers to authorise the appointment of additional members.
  7.30 p.m.
  The exercise of this power could, in the case of the Welsh National Water Development Authority, overturn the predominance of local authority appointees if the Minister so wished. At present there are 35 members of the WNWDA—20 nominated by the local authorities and 15 by Ministers. The Secretary of State has transferred his powers of appointment to the Assembly, under Schedule 2, and those powers are described in Section 3(10) of the Water Act 1973, now to be amended according to paragraph 39 of Schedule 11 to the Bill.

  341
  The constitution of the WNWDA is thus liable to change. Five of its members are to represent English local authorities on the Welsh borders. No committee of the Assembly can make an order varying the constitution, but there is no suggestion that the Assembly itself may not do so. That is something that the Committee must bear in mind.
  When the constitution of the Severn-Trent Water Authority is described, the proposed amendment to the 1973 Act specifically states—I quote from paragraph 33 of Schedule 11, on page 77 of the Bill—
  "orders … shall be so framed that the total number of members appointed by the Secretary of State, the Minister and the Welsh Assembly is less than the number of those appointed by local authorities."
  There is no similar provision proposed for the WNWDA, and one suspects that the intention is to pack it with Assembly nominees rather than local authority representatives.
  Thus the democratic principle inherent in the present system of appointments to the WNWDA, the same principle that underlies the composition of English authorities, looks as though it is to be set aside so that instead of a body largely nominated by the local authorities we shall have a body predominantly nominated by the Assembly.
  There is a real difference in that the local authority nomination system allows for a better and fairer geographical distribution of representation than, I suspect, the Assembly system will allow. We certainly need clarification of the Government's intentions in this area of devolution.
  The Government are clearly and rightly concerned about the water situation in Wales and the possible misuse of powers by the Assembly. Why else should the Government write into the Bill such extensive powers of intervention on the part of the Secretary of State? They form a major part of Schedule 8—which again, alas, we are unlikely to debate before 9 p.m. this evening. The WNWDA has been reassured by the Government and told that it does not fall under Clause 62(1) and that there is, therefore, little likelihood of its functions being assumed by the Assembly. This has been confirmed by the Written Answer given to my hon. Friend the Member for Eastbourne
  342
  (Mr. Gow) on 16th March. Nevertheless, it seems to me that if the WNWDA falls under Schedule 7 and Clause 61, with its curious powers to
  "modify or exclude any provision of this Act"
  and to appoint additional members, then a situation could develop in which the WNWDA fell into the category of bodies whose functions could be assumed.
  In any case, Clause 62 lends itself to more than one interpretation, as we shall see if we reach it. So the assurance given to the WNWDA does not seem to be a secure assurance at all.
  The reconstitution of the WNWDA so that responsibility may be devolved to the Assembly again highlights the difficulty of safeguarding the British national interest, which is clearly involved since Welsh water is supplied to major English cities. The Government have done their best, I think, to protect that interest by imposing duties upon the Assembly and by giving the Secretary of State these powers of intervention. But these measures quiver with uncertainty as to the eventual result.
  Then there is the geographical split of power on England—Wales lines, to which my hon. Friend the Member for Hereford (Mr. Shepherd) referred. This split may result in different practices being followed within the authority's own area as a result of the independent exercise of powers by the relevant English Minister in the English sector of the authority's area and by the Assembly in the Welsh sector of the authority's area. The position has been summed up as follows by the WNWDA, but it is really almost a comical summing up because it shows the utter folly of this split of powers. I shall certainly not go through all of what the authority says. However, it begins by saying:
  "The independent exercise of these powers could inter alia lead, under the Rivers (Prevention of Pollution) Acts 1951 to 1961, to one half of, say, the Dee Estuary being controlled waters and the remainder uncontrolled, and the Welsh and English parts of the authority's area having different forms and content of effluent registers and consents to discharge, and different policies for the determination of appeals against consent conditions."
  The authority goes on to talk of the Control of Pollution Act 1974 and, again, about the possible effect of a split. Similarly, it talks of the Water Act 1945,

  343
  the Water Resources Act 1963 and so on. Of the Water Resources Act 1963, the authority says:
  "It could lead to the impossible position of there being two different determinations of the minimum acceptable flow at the same location, where the national boundary follows the mid-line of the river, to two different policies on Section 60 appeals, and to two different sets of directions for exercise of authority discretion to reduce charges for certain abstractions."
  Mr. Cledwyn Hughes: Is not the hon. Gentleman really dealing with this matter and the boundaries on the Dee and so on as if they were the boundaries between Siberia, Russia and China? Does he not think that the same type of co-operation can be achieved after devolution as exists now between the various local authorities along the border?
  Mr. Roberts: I shall be coming to that point. I know that the right hon. Gentleman has heard a great deal of the debate on the clause, but perhaps he has not heard all of it. Certainly it seemed to me that there was some confusion, because, as the right hon. Gentleman knows only too well, the boundary of the WNWDA does not coincide with the national boundaries of England and Wales. Therefore, there is this overlap with regard to powers. To suggest a split along the lines proposed in the Bill gives rise to these possible situations, as the WNWDA has pointed out to us.
  The WNWDA goes on to talk about the effect of the split of powers on the Land Drainage Act 1976, the Salmon and Freshwater Fisheries Act 1975, and so on. But what the authority says is what the right hon. Gentleman has just suggested, namely, that there should be consultation. I assure hon. Members that, if they read this document from the authority, they will see what a reductio ad absurdum devolution is in the context of the WNWDA.
  If the Government are determined to go ahead, the Welsh National Development Water Authority's advice to include provisions to ensure consultation is certainly valid and the least that should be done to try to prevent future conflict. That there will be conflict we can be pretty certain. The Government are also clearly fearful of it, but determined to proceed in the fond belief that everything
  344
  will turn out right in the end. Frankly, I do not share their optimism.
  Mr. Dalyell: I have one observation to make and two questions to ask.
  I think that my hon. Friends on the Front Bench and, indeed, my right hon. Friend the Member for Anglesey (Mr. Hughes), the chairman of the Parliamentary Labour Party, who supports the Bill, ought to pay some attention to what the hon. Member for Conway (Mr. Roberts) and many other hon. Members have been saying in recent days. I wonder whether we have underestimated to some extent the effect of the geographical pressures that we are building into these bodies for the first time. The truth is that never before in organisations such as the British Waterways Board has there been a temptation to fight for one's own corner. From now on people will fight for their own geographical corner rather than take an overall view.
  That is not how the British Waterways Board has worked. I have had a great deal to do with that body for constituency reasons. On the whole, it takes an overall view. Now it will be very different. The hon. Member for Conway was right to point out that the inevitable result of setting up this kind of arrangement will be that the various regions of England, far more than ever before, will fight for their own corner. If this is what we want, well and good, but I do not think that it will lead to efficiency in the management of the waterways.
  I have two questions. First, what is the extra cost to the United Kingdom taxpayer of this division of responsibility for waterways in Scotland and in Wales by setting up an organisation in Wales to look after, as we heard from the hon. Member for Reading, North (Mr. Durant), about 80 miles of waterways? My right hon. and learned Friend the Secretary of State or my hon. Friend the Under-Secretary of State must surely know the extra cost that is envisaged for this new arrangement.
  Sir George Sharp, the chairman of the Labour-controlled Fife local authority and a heavyweight of the Labour Party in local government, described the Scotland Bill publicly in The Sunday Times as "useless, impractical and crazy". He knows something about these matters

  345
  That was the opinion of a most experienced Labour local authority heavyweight in Scotland about the Scotland Bill at the weekend. Therefore, I ask: what is the extra cost of the new arrangement?
  The second question is purely factual, and perhaps I should know the answer. Where, under this scheme, are forestry policies to be made in relation to Wales? Are they to be made in Cardiff or are they still to be made in Edinburgh? What is the role of Edinburgh in relation to forestry in Wales? Who appoints the Forestry Commissioners responsible for Scotland, for Wales and, indeed, for England? I do not think that I do my hon. Friend the Minister of State an injustice, but I thought that in an interjection he said "But it does not work like that." I stand open to all kinds of corrections, but I merely ask the factual question: who appoints the Forestry Commissioners who will in future be responsible for Welsh forests, for Scottish forests and for English forests? For example, to what extent will forestry in Wales be in any way connected with decision-making at the Forestry Commission's headquarters currently in Edinburgh?
  7.45 p.m.
  Mr. Emlyn Hooson: One of the arguments for empire is that it is always possible from the centre to take an overall view. The argument of the centralists has always been that the more centralised the power is, the easier it is to take an overall view.
  Where does the logic of that argument lead us? It would lead us to the argument that there is no need for any kind of subordinate government or legislative power at all, because everything is best done from the centre. I totally reject that argument.
  I have been provoked to make this contribution because we have had the most exaggerated criticisms of this clause and its provisions. While the hon. Member for Conway (Mr. Roberts) was on his feet, I went into the "No" Lobby and looked at the powers of the Secretaries of State under Acts passed by the Conservative Government, namely, the Local Government Act 1972, the Water Act 1973 and the National Health Service Reorganisation Act 1973 to see what provisions were reserved to the respective
  346
  Secretaries of State to make new pro visions as to certain bodies and so on. I suggest that the hon. Gentleman should look at those Acts. The criticism made by the Conservative Opposition of Clause 61—that it reserves power to the Secretary of State which could be misused—could be made of each of those Acts. We have always in modern times reserved powers to Secretaries of State. In each of the Acts that I have mentioned, such powers could in theory be misused.
  The Opposition, in order to try to frighten the people of Wales about this matter, are suggesting that these particular powers actually will be misused. They did not make that sugegstion on the Local Government Act, on the Water Act or anything of that kind.
  The truth is that while the Bill has been going through Committee we have had a constant repetition of Second Reading arguments. It is utter hyprocrisy for the Opposition to say that the guillotine has made it impossible to have detailed consideration of the Bill. When there is an opportunity for detailed consideration of the Bill, they resort nevertheless to all the arguments that they used on Second Reading. As those who have taken an interest in this matter know, we have heard a continued campaign against the Bill and all its provisions. There has been a total disregard, by and large, of the specific provisions in the Bill. There has been no real attempt to improve the Bill, but simply an attempt to kill it. That is what the debate has been about. I am convinced that, as a matter of procedure, if we are to have a careful and detailed consideration of a Bill, it is better that it should go to a Committee upstairs than that it be left to a Committee on the Floor of the House.
  Sir A. Meyer: I shall not conceal from the hon. and learned Gentleman that many Opposition Members are opposed to devolution altogether. The worry that we express is not that the Assembly is given too great powers but that we are building into the Bill an invitation to the Assembly to seek to increase its powers. That is what makes this legislation different from anything previously. We have an elected body which has an open invitation to try to put pressure on the Minister to concede greater powers. That is what concerns us.
  Mr. Hooson: I heard what the hon. Gentleman said. In modern legislation many reserve powers are generally left with Ministers and there is therefore theoretically enormous scope for misuse. In fact, however, Ministers generally dare not misuse these powers because this country's democratic base depends not only on Acts of Parliament but on constitutional conventions. The country could not be run democratically were it not for the constitutional conventions which govern our behaviour. No doubt, they will develop in any relationship between the House of Commons and the Welsh Assembly and between the Secretaries of State and the Welsh Assembly. It is on that basis that civilised democratic government depends. The House of Commons must naturally be careful to see that it does not give to a Minister excessive power or power which could be exercised in a way for which he could not be called to account.
  The truth is that we have ways and means of calling any Minister to account if he oversteps the mark. It seems to me that there is a campaign to put exaggerated fears into the mind of the Welsh electorate. I can understand people who are against devolution in principle. So be it. If they are against it, they are against it. But hon. Members on the Opposition Front Bench are doing an ill service to Wales by grossly exaggerating the dangers of this Bill.
  Sir Raymond Gower: The hon. and learned Member for Montgomery (Mr. Hooson) might be right to say that some Opposition spokesmen have been prone to exaggerate their fears. But he is wrong in his description of the powers in the clause and the powers which existed before in Secretaries of State for Scotland and Wales. I hope that the hon. and learned Member will consider this aspect. After all, the Secretaries of State are Ministers in a Government for the whole of the United Kingdom. The pressures on them are not merely to look after the interests of Scotland and Wales but they must look after the whole of the United Kingdom.
  The pressures that might obtain in the Assemblies will be of a different order. Their horizon will probably end at their responsibilities for Scotland and Wales.
  348
  They will not have this larger vision of the whole of the United Kingdom. That is why it is natural that some hon. Members on both sides of the Committee have expressed these fears, particularly when discussing the transfer of United Kingdom services.
  Mr. Hooson: Surely the hon. Member accepts that people's minds work on different levels. A man can be a good community councillor and yet be a tremendously good European. He can be interested in the Common Market. He can take a broad national view of British politics and yet be a devoted county councillor, always fighting for his patch in the county council. Exactly the same will happen in the Welsh Assembly. It almost certainly will happen.
  Sir R. Gower: That might well be the case. But the water issue is not easily kept within the territories of Scotland or Wales. For that reason hon. Members have been somewhat apprehensive that this clause contains unusual powers for possible extension and change after the Bill has been enacted.

  It was natural that hon. Members should also be dissatisfied with the degree of protection in the Bill. The hon. and learned Member for Montgomery is wrong in his assessment. In expressing these fears we have not exaggerated. The way in which the clause is drafted is open to serious criticism. I hope that the hon. and learned Gentleman will think again.
  Mr. Alec Jones: I agree with the hon. and learned Member for Montgomery (Mr. Hooson) that much of the debate on the clause revealed a basic hostility to the concept of devolution. It is true that hon. Members went somewhat further since in many contributions suspicions were cast on the motives of a Welsh Assembly and on the ability of an Assembly to do the job properly. It seemed to me to be a permanent search for conflict, looking down every manhole—or up every manhole, according to the direction in which one wished to go.
  We are dealing with public bodies which operate in Wales across a wide range of functions. These bodies have responsibilities which affect the day-to-day lives of Welsh people. It is right that when we are transferring functions to an elected Welsh Assembly these bodies should

  349
  somehow be made accountable to that Assembly for their actions in Wales. That is what the clause and the schedule seek to do.
  The complication is there because these bodies exist either on a Great Britain basis or on an England and Wales basis. To suggest that this grants draconian powers to the Secretary of State is a nonsense. The powers are limited because they apply only to subsection (2).
  My hon. Friend intimated earlier that having taken into account some of the criticism we were prepared to agree to accept Amendment No. 294 so that the statutory instrument made under Clause 61 will be subject to affirmative resolution. That means that these "draconian" orders are now to be subjected to affirmative resolution of the House of Commons. To describe that in the way in which hon. Members described it is a form of exaggeration.
  The debate has focused attention on two bodies—the Forestry Commission and the water authorities. Even if one accepted the case against devolution or that one could have a form of devolution, one cannot contemplate any devolution without devolving responsibilities for water. That is not on. Water is far too sensitive an issue in Wales to contemplate devolution without granting powers over it to an elected Welsh Assembly. We have sought to devise a machinery of Government which will make the Assembly responsibile for water in Wales and, at the same time, graft on essential safeguards so that the England—Wales aspect is protected. I believe that it is protected. If we had time to discuss Clause 65 we would see the safeguards in that clause and in Schedule 8.
  Mr. Wyn Roberts: Does the Minister accept the argument that has been made to us by the Welsh Water Authority that there is a need for some kind of consultative process to ensure that a clash about the use of powers between the Secretary of State and the Assembly does not occur?
  Mr. Jones: The hon. Member returns to the suggestion that the Assembly would be so dull as to try to act without any form of consultation. There will be many issues with which the Assembly will have to deal, apart from water, over which there will have to be consultations,
  350
  whether it likes it or not. The whole nature of modern Government, whether it is exercised in the House of Commons or in a Welsh Assembly, depends to a considerable extent on consultation. As a Minister at the Welsh Office I spend an enormous amount of time consulting. Hon. Members should not ask me to find that duty to consult in a particular case in statute. Any responsible Minister or body—and I believe that the Assembly will be a responsible body—will have to consult and will consult when the situation demands.
  Hon. Members have referred to the Forestry Commission. There is a relationship between agriculture and forestry. However, we are convinced that it is right to devolve forestry in Wales while at the same time reserving for the Government and for Parliament those aspects for which a single policy is essential for the whole of Great Britain. What are the essential aspects that we are reserving? First, we are reserving the tax system which is of fundamental importance to the private sector of the forestry industry. We shall be reserving plant health matters, an essential advisory service, and we are also reserving the apparatus of a single Forestry Commission serving the whole of Britain with a common staff structure and pay scale.
  8.0 p.m.
  We were asked about the appointment of forestry commissioners. The procedure will remain unchanged. The appointments will be made by Her Majesty the Queen on the advice of the Prime Minister, as happens now. Policy will be decided by the commissioners subject to directives, and those directives will be given to the commission either by the Ministry of Agriculture in England or by the respective Assembly in Scotland or Wales.
  We must see these directives in perspective. They are now extremely rare. Instead of their being issued at the drop of the hat, the arrangements are satisfied through the normal proceses of consultation.
  Mr. Benyon: In that case why are the forestry commissioners listed in Part I of Schedule 7 when each of the powers the hon. Member has mentioned are contained in Clause 61(3)?
  Mr. Jones: I did not catch the hon. Gentleman's point. The commission is listed in Part I of Schedule 7 because it is one of those bodies—the others include the Housing Corporation, the Severn-Trent Water Authority and the Welsh National Water Development Authority—the functions of which we believe should be transferred to the Assembly at the earliest possible moment. Those in Part II can tolerate some delay, and the Secretary of State would make an order adjusting the arrrangements between these bodies only after receiving a request from the Assembly itself. This is a central concept of devolution, which is why Part I provisions would not need a request from the Assembly.
  Mr. Wyn Roberts: The Minister said that appointments to the Forestry Commission would continue to be made by Her Majesty the Queen. Did he mean by that that Clause 61(3)(b) providing for an order requiring or authorising the appointment of additional members does not apply or is unlikely to apply to the Forestry Commission?
  Mr. Jones: I shall take another look at the point the hon. Member is making, but my understanding is that if an order were made requiring the appointment of additional forestry commissioners, it would still be made by Her Majesty the Queen on the advice of the Prime Minister.
  In Clause 61 and Schedule 7 we have established a fair division which will make these bodies responsible, first, to the Assembly for their functions in Wales and, secondly, to central Government for their functions in the rest of the United Kingdom. Given the complications, it is not easy to try to devise a system which can deal with bodies operating on this basis.
  Mr. Dalyell: I should like to thank my hon. Friend the Minister for that answer. I hope that any hon. Member who thinks that he will become a Member of the Welsh Assembly is under no illusion but that on the question of forestry he is simply a member of a powerless advisory body. I do not know whether that satisfies hon. Members. I see the hon. Member for Merioneth (Mr. Thomas) shaking his head. However, the Minister has news for him because this
  352
  is Edinburgh government. The people who appoint the commissioners will clearly have absolute authority. It will be a unitary Forestry Commission, but that was the understanding of some of those who work for the commission. We have heard a very interesting answer from the Minister. The Welsh Assembly is only an advisory body. On forestry the Welsh Assembly is an advisory body only.
  Mr. Jones: My hon. Friend is reading a lot more into my reply than was intended. I was dealing with the appointment of the commissioners and I said that policy would be decided by the commissioners subject to directives of the Welsh Assembly, and so on. One has to bear in mind that it will be a matter for the Assembly to decide how much land should be devoted to forestry in Wales, and it will be up to the Assembly to balance expenditure on afforestation. These then are considerable powers for the Assembly, but I did not make the suggestion that my hon. Friend seemed to think.
  Mr. Dalyell: Those who have the power of appointment will retain the real power, especially if that is combined with Treasury power. What relationship will exist between the Executive of the Welsh Assembly and the forestry commissioners based in Edinburgh where a difference of opinion arises? I do not say "if", because there will certainly be differences of opinion. Who will resolve them? I fear that we are getting into a great muddle on this issue.
  Mr. Jones: My hon. Friend is looking for differences. Who resolves the differences now? One cannot imagine that there are never differences under the present set-up over the needs and interests of forestry as between Wales and other parts of the United Kingdom. These are now resolved mainly by sensible consultations between sensible people. That is how it will be in the future, except that it will involve different people. Instead of there being Ministers and commissioners, it will involve Members of the Welsh Assembly and commissioners.
  Mr. Dalyell: As I understand it at present, these differences are resolved either by the full Cabinet or more likely by a Cabinet sub-committee. That is a

  353
  united body in the sense that its members are of the same Government. The situation will be wholly different under the new set-up. The bodies will be different and they may represent different political parties. The same problems of conflict that we have discussed many times before in the last 39 days of debate are present here, too, and that is a fact of life. This is a complexity which is unlikely to be resolved. This is not only a question of opening manholes or of saying that these differences will be resolved by reasonable men. If we were all reasonable men there would be no need for the Bill in the first place, but the situation is not like that. There are great conflicts. There will be conflicts about water. The Minister says that that is such emotive subject that it is unthinkable that the powers over it should not go to the Welsh Assembly. In such circumstances the conflicts are built in, and we do no service to ourselves in pretending that these conflicts do not exist.
  Sir Raymond Gower: The Minister has been very good in answering the question put to him, but can he not conceivably see any difference between a state of affairs in which these matters are settled, to use his own words, by sensible people acting in a sensible way, who are predominantly members of the same administration and therefore on good terms with each other, and a new situation in which the Assembly may be hostile to the administration here? Can he not see any difference in those two situations?
  Mr. Jones: Let us consider some of these bodies. I doubt whether one could say that the Dental Estimates Board will be hostile to a Labour or a Conservative Government. I cannot see a great deal of political contact involved with the Horse Race Totalisator Board. There is the Public Health Laboratory Service Board. There is a whole range of bodies. I think there are about 24 of such bodies in Part II. Those are advisory bodies who will tender the same technical and professional advice to a Welsh Assembly as they now tender to a Government.
  The bodies in Part I are probably causing a little more controversy. The water authorities seem to be the hot dogs. The water authorities have existed for a number of years and often have on them a majority of members who hold a political
  354
  view that is very different from that of the central Government, and it has not caused the great upheaval which the hon. Member for Barry (Sir R. Gower) seems to suggest.
  Sir R. Gower: I did not mean that. I meant if the body is subject to a direction from an Assembly which is hostile to the existing Government here.
  Mr. Jones: The point that I was making about the 24 bodies in Part II was as to the hostile directive that one gives to the Gaming Board for Great Britain. I do not think that is on. Basically we are talking of the water authority. The Welsh Assembly will be responsible for drawing up a Welsh water policy which will have to conform, by this very statute, to the England and Wales water policy. I would have thought that that was a perfectly reasonable and sensible provision.
  Mr. Dalyell: I shall make one observation. Whatever the Welsh situation, I am absolutely clear that it was news to a great many people in Scotland that the forestry commissioners are to be appointed in relation to Scottish forests by the British Government. That is something which we still will have to go into. Whatever the actual fact of the situation, the impression is abroad that Scottish forestry will be under a Scottish Assembly—almost full stop.
  Sir R. Gower: They are all Scotsmen, anyway.
  8.15 p.m.
  Mr. Dalyell: If that is the case we have problems about the English forests. I asked a factual question, and I hope that my hon. Friend has the answer. What is the extra cost of creating a Welsh waterways authority? There must be some estimate because we know that in everything that the Government do there is a cost-price tag attached to it. It may be very small, for all I know, but a new organisation which has to run 80 miles of waterways, or whatever it is, will presumably require extra costs. As my hon. Friend is searching for an answer, I shall draw his attention to the British Waterways Board's view:
  "The Welsh waterway system which is much smaller is unlikely to be sustained and developed to the full if left dependent on Welsh resources alone. For example, most of those using the Llangollen Canal live in England as do most of those interested in the Montgomery

  355
  Canal restoration. The Monmouthshire and Brecon Canal has more local use, but not the extent that local resources are likely to be adequate to maintain it nor—in normal circumstances—to meet the existing need for considerable repair."
  If these things are to be done on a Welsh basis, it will require a separate organisation. In my capacity as one who is concerned, as are my hon. Friends, about costs to the United Kingdom taxpayer, I ask what is the Government estimate for creating a new organisation. I see that my question seems to send the Under-Secretary to sleep. I am waiting for an answer.
  We are for ever being chided with making Second Reading speeches. I ask a very reasonable, factual question. What is the estimated cost of this new organisation for waterways? The answer is a lemon, as in so many other things. Nobody knows.
  The Chairman: It is no good looking at the Chair, because the Chair knows nothing about it.
  Mr. Dalyell: Perhaps my hon. Friend the Member for Neath (Mr. Coleman), the Government Whip, knows the answer. Perhaps my hon. Friend the Minister of State at the Foreign Office knows. He is informative on every other subject. Perhaps my hon. Friend the Member for Wrexham (Mr. Ellis) can answer my question. Finally, I turn to the chairman of the Parliamentary Labour Party.
  Mr. Alec Jones: I had not intended rising to speak in the debate again, but I do so because on several occasions while we have been going through Committee my hon. Friend has asked questions about costs and has been told that the total figures of costs are those in the Financial Memorandum. I am not able to split each cost down to match the wording of every line in any particular clause, but although my hon. Friend the Member for West Lothian says that he has not heard, we have given him the details. My right hon. Friend the Secretary of State spelt out some of the information in a major debate on the subject. It is not the case that the answers have not been given, but somebody has not been listening.
  Mr. Dalyell: It is not good enough for my hon. Friend to say that I am not
  356
  listening. I have been rooted and listening to every word.
  Mr. Jones: I was sleeping a minute ago, according to my hon. Friend.
  Mr. Dalyell: It is not an unreasonable question to ask. We are discussing the important subject of Welsh water. We are setting up a new Welsh waterways authority. What is the rough cost of it? If I have missed the answer, perhaps I could be reminded, if I am stupid or have not heard or have been temporarily absent for half a minute. The least that the Government Front Bench can do is to remind me. I know that it is irritating for my hon. Friends, but it is a legitimate question. I can be silenced in a moment by being given a figure. I am not filibustering. I want to get on to the next business, as does the Secretary of State.
  Question put and agreed to.
  Clause 61, as amended, ordered to stand part of the Bill.

ORDERS OF THE DAY

  WALES BILL
  [7TH ALLOTTED DAY]
  Considered in Committee. [Progress, 5th April.]
  [Sir MYER GALPERN in the Chair]
  4.30 p.m.
  Mr. Ioan Evans: On a point of order, Sir Myer. We have had a list of the provisional selection of amendments for today and tomorrow. My question relates to the selection of those amendments to be debated after 5 p.m. tomorrow.
  In the course of the Scotland Bill a decision was taken by the House about inserting a minimum requirement into the referendum. This was endorsed by the House on a subsequent occasion, and the matter has gone to the House of Lords. The Lord Chancellor has said that the Government accept the amendment.
  The danger in the discussions that take place in this Committee is that, if Amendment No. 325 on Clause 83 is not reached, we will not have an opportunity to insert a minimum requirement into the referendum for Wales. May we have an indication, through you, Sir Myer, from the Government or from the Business Committee that we shall at least have a decision on this matter, or preferably a debate? This is essential, because the Government are accepting a decision that the House has taken on this matter on a similar Bill.
  The First Deputy Chairman of Ways and Means (Sir Myer Galpern): The hon. Member for Aberdare (Mr. Evans) is referring to Amendment No. 325, which obviously has been selected and which appears on the list. The question of the speed with which we shall deal with the preceding amendments is entirely in the hands of hon. Members. If they decide not to deal with the preceding amendments, no doubt Amendment No. 325 will be reached. The Chair cannot guide or regulate the speed with which hon. Members will deal with amendments. Therefore, I do not see that this is a matter for the Chair.
  Mr. Eric S. Heffer: Further to that point of order, Sir Myer. In view of the fact that it would be absolutely ludicrous for a 40 per cent. position to exist in the Scotland Bill and not in the Wales Bill—[HON. MEMBERS: "Why?"]—because it is quite right for the Welsh and the Scots people to have the same proposition in front of them and it would be ludicrous if they did not—may I ask whether the Government have indicated that they will bring forward an amendment in line with the will and wishes of the majority of hon. Members expressed on the Scotland Bill? If the House of Commons wishes to change its mind on the Wales Bill, it is perfectly entitled to do so. However, the Government should take account of the expressed will of the House of Commons on the Scotland Bill and bring forward a Government amendment just in case we do not reach the Back-Bench amendment on the list today.
  The First Deputy Chairman: Fortunately or unfortunately, I am not a confidant of the Government. What they are proposing is beyond my knowledge. It is for the Government to decide; it is not a matter for the Chair.
  Mr. Leo Abse: I appreciate the limitations imposed on you, Sir Myer. I know, however, that you will appreciate that nothing will arouse greater indignation in Wales than the notion that, by stealth or conspiracy, a situation has been created by which Parliament cannot express its wishes as it expressed them on the Scotland Bill, to the effect that, unless 40 per cent. of the population of Wales wishes to have devolution, devolution will not occur.
  Although you have said that it is up to the Committee, if it wishes, not to speak at length on all the amendments which have been tabled, we know that, given a proliferation of amendments on minutiae tabled by Plaid Cymru, and given the lack of initiative on the part of the Government in bringing a business motion before the Committee, it is apparent to all that a conspiracy is afoot which is an abuse of the Committee. This prevents the will of the Committee from being expressed, and it will have the effect that, using the weapon of boredom, a small fanatical minority will be able to impose its view on the Welsh people.

  281
  I am asking you, Sir Myer, to protect the Committee from this abuse, and it is within the Government's hands to refute the charge that they are privy to what is taking place. If they wish to refute that charge, it is open to them to table a business motion and to put it before the Committee.
  Now that the Chief Whip is present, I would ask you, Sir Myer, in order to protect the business of the Committee, to invite my right hon. Friend to tell the Committee what steps he is taking to make certain, not merely that there should be a debate—because that is not enough—but that there should be an open debate on the subject of the 40 per cent. The Government should give their reasons for the present situation and should explain why so many fears are being expressed on this topic. They should explain why we are being denied the opportunity of being able to say, on behalf of the Welsh people, that in no circumstances will a small persistent minority bore Wales to death. We should not allow a small group of people in Wales to trick the Principality into devolution.
  The First Deputy Chairman: Hon. Members are fully aware that the Chair can protect the Committee only within the ambit of the Standing Orders. Nothing is being done here in the provisional selection of amendments which has departed from what has been laid down by Parliament. Therefore, to put the matter mildly, it is beyond my understanding to allege that there has been a conspiracy.
  It is quite conceivable that hon. Members may decide to ignore the other amendments and simply go on to Amendment No. 325. I do not know what hon. Members will do; it is for them to decide. But there may have been some argument if it had been said that Amendment No. 325 was not included. It is on the Notice Paper according to the decision by the Business Committee, and that is where it will stay so far as the Chair is concerned.
  Sir Raymond Gower: On a point of order, Sir Myer. I appreciate that you are in considerable difficulty—
  The First Deputy Chairman: I am not in any difficulty.
  Sir R. Gower: Perhaps I worded that badly.
  The First Deputy Chairman: It is hon. Members who seem to be in difficulty—or who are acting as though they are.
  4.45 p.m.
  Sir R. Gower: The Committee is certainly in great difficulty. Whatever the merits of the 40 per cent. argument, I believe that the two Bills, the Scotland Bill and the Wales Bill, are of great concern to the United Kingdom as a whole. I respectfully submit that it would be most unwise of Parliament to have a different basis of decision in the case of Scotland from that of Wales. On that score I echo the remarks of the hon. Member for Liverpool, Walton (Mr. Heffer).
  Is it not possible for the Government now to take the opportunity to give an assurance that, at some stage before this point is reached, they will bring forward proposals to enable the Committee to examine the matter objectively?
  Mr. Ian Gow: May I raise a rather different point of order, Sir Myer? The document that is before the Committee is headed by you, Sir Myer, "Provisional selection of amendments". That means that before tomorrow you will have the power to alter the selection in the light of representations which may be made to you. In view of the crucial importance of Amendment No. 325 and the fact that your provisional selection shows that there are 17 amendments which come before even the group of amendments of which No. 325 is one, may I submit that you should reconsider your provisional selection to take account of the submissions which have been made to you from both sides of the Committee?
  Secondly, may I ask that in reconsidering your provisional selection for tomorrow you should afford to the Minister of State, Privy Council Office, the Patronage Secretary and the Secretary of State for Wales, or to one of them, the opportunity of submitting to you reasons why you should not deviate from your provisional selection of amendments?
  Finally, may I ask about a procedural point. If you, Sir Myer, decide to leave the provisional selection for tomorrow as it is today, is it possible as a matter of

  283
  procedure for hon. Members, having heard the Government Front Bench and having listened to other hon. Members, even supposing that we did not reach in debate Amendment No. 325, to vote on that amendment?
  The First Deputy Chairman: If the hon. Gentleman is correct in believing that the Committee feels strongly about this matter, there is a simple way round the situation. They should get the agreement of the Committee not to discuss any amendment until we reach Amendment No. 325. I assure the hon. Gentleman that there will be no question of a departure in dropping amendments which have already been selected. The amendments which have been selected are strictly in order and are as important and as vital to those who have tabled them as is Amendment No. 325. It is a novel idea, and certainly one that would never be accepted by the Chair, to suggest that we should drop the amendments that precede Amendment No. 325 in order to allow Amendment No. 325 to be dealt with.
  Mr. Francis Pym: I rise in the hope that the Government will feel able to assist the Committee at this stage. We do not want to take any more time than we have to on this matter because we are again beginning this debate an hour late on a timetable day.
  We know that the Government have not tabled an amendment of their own dealing with the referendum, whereas they did not seek to defend Clause 1 or Clause 39, and they have tabled their own amendment in regard to the separation of any referendum, if it is held, from a General Election. But they are entitled under the timetable motion, if they so wish after the guillotine has fallen, to move an amendment that now stands in the name of any hon. Member. I am certain that the Government would like to debate Amendment No. 325, as would the whole Committee.
  The Government have acknowledged the desirability of making the provisions of the Wales Bill similar to those in the Scotland Bill; otherwise they would not have tabled some of the amendments which they tabled to the Scotland Bill in their own name and would have sought to defend Clauses 1 and 39. I ask the
  284
  Government to make a statement so that we can make progress now. I ask them to say that in the unhappy event that Amendment No. 325 is not reached tomorrow evening, they will give an undertaking to move Amendment No. 325 so that the Committee may vote on it.
  The First Deputy Chairman: The right hon. Gentleman is correct in saying that it would be in order for the Government to move, after the guillotine has fallen, Amendment No. 325. But whether they will take that course is beyond my knowledge. There seems to be no response from the Government Front Bench, so far as I can see. We do not want to spend the whole of our time dealing with points of order and still not reach Amendment No. 325.
  The Minister of State, Privy Council Office (Mr. John Smith): Further to that point of order, Sir Myer. It was not possible for me to rise earlier as you were on your feet answering the point of order made previously. I recognise the nature of the concern that is being expressed. I undertake that the Government will consider carefully the points that have been made.
  The First Deputy Chairman: I am sure that hon. Members will be prepared to accept that undertaking. They have the whole day to consider the matter. They have heard all the points of order. Fortunately, I shall not be in the Chair tomorrow when these points of order are further raised.
  Mr. D. E. Thomas: Further to that point of order, Sir Myer. I assure you and the whole Committee that there has been no conspiracy between the Plaid Cymru Bench and the Government Bench or, as far as I am aware, between other Benches. Amendments have been tabled which, as you rightly said, Sir Myer, are in order. Of the amendments that have been selected there are only six in the names of Plaid Cymru Members. There is no intention on our part to delay debate or, if we could, to spin out debate on irrelevancies.
  The amendments raise important matters of principle relating to the powers of the Assembly and the Secretary of State. There is the basic issue of the

  285
  dating of the Assembly and the holding of a referendum.
  As for the argument raised by the hon. Members for Liverpool, Walton (Mr. Heffer) and Pontypool (Mr. Abse), we as a party are always anxious for parity with Scotland in all matters. However, I see no justification in arguing that because the 40 per cent. clause has been inserted in the Scotland Bill it should go into the Wales Bill. The proposals in the Scotland Bill are for legislative powers to go to the Scottish Assembly whereas the Welsh proposals are for an executive Assembly. In that sense the Bills are essentially different. It does not follow that because a certain amendment of ballot-rigging effect was inserted in the one referendum it should be inserted in another.
  Several Hon. Members rose—
  The First Deputy Chairman: Order. I hope that hon. Members will bear in mind the time that we have already spent on these points of order. They have, of course, served a useful purpose. The Minister of State has been present and he has promised to consider the whole situation. Surely, it would be better to leave these points of order and to proceed with the rest of the business.
  Mr. Tam Dalyell: Would it be possible, Sir Myer, for my selfish benefit, to publish with the amendments that have been selected the times when you will be in the Chair?
  The First Deputy Chairman: I shall oblige the hon. Gentleman with that information on consideration of payment.
  Mr. Ioan Evans: I do not want to delay the proceedings of the Committee, Sir Myer, and I appreciate that the Minister has given an undertaking to consider providing the opportunity of having a debate and vote on the issue. However, when shall we be informed of the Government's decision? It would be wrong for us to have only a last-minute indication. We should be given as early an indication as possible—at least early tomorrow. Surely, that is a reasonable request.
  Mr. Gerry Fowler: I, too, do not wish to delay the Committee, Sir Myer, but I must draw your attention to the danger of proceeding each day in
  286
  this way when dealing with points of order, which presents a one-sided view. I wish to make it clear that not everyone on the Labour Benches shares the view that it is desirable to have a vote on the amendment without a debate. In my view, the Bill differs significantly from the Scotland Bill and does not have the same constitutional implications.
  Several Hon. Members rose—
  The First Deputy Chairman: Order. We shall not have a debate on that issue.

Schedule 7

  PUBLIC BODIES
  Amendment made: No. 91, in page 64, leave out lines 5 and 6.—[Mr. Alec Jones.]
  Mr. Benyon: I beg to move Amendment No. 92. in page 64, leave out lines 7 and 8.
  I must confess that after the latest intervention of the Minister, I am more confused than I was when we started. I start from the premise that I read the Forestry Act 1967, and where the Minister comes into the matter I insert "the Assembly" The question that I sought to ask the Minister during his speech related to the commissioners, with whom the amendment was concerned. If the amendment were to be passed it would not remove forestry from a devolved area. It would simply restrict the power of the Minister to alter the existing situation as regards the commissioners. Under Clause 61(3), among the powers proposed for the Minister is
  "…requiring or authorising the appointment of additional members".
  The hon. Member for West Lothian (Mr. Dalyell) has sought an answer on this. Does that mean that there is no devolved power for the number of commissioners

  357
  to be varied? Is that what the Minister meant in an earlier debate?
  I do not want to rehearse the forestry arguments, but I would repeat one point made by the hon. Member for Dagenham (Mr. Parker). Although it is reasonable to talk of the powers vested in a Minister in relation to local government Acts, it is not the same when one is dealing with an industry. The hon. Member for Dagenham rightly pointed out that functions in relation to British Leyland. British steel and other nationalised industries are not being devolved. Why devolve in relation to this industry?
  Agriculture and forestry interact. The EEC is considering its forestry policy and is about to produce a composite document. It will be crazy if we cannot deal with the two together. I hope that the amendment will elicit some clarification.
  Mr. Alec Jones: Most of what I would say in reply to the amendment has been said already on the many occasions when the subject of forestry has cropped up.
  The hon. Member for Buckingham (Mr. Benyon) asked whether the Welsh Assembly would have power to change the composition of the Forestry Commission. I would not have framed the question like that, but under Clause 61(3)(b), which provides for an increase in the number of members, that increase could come about only after consultation between the Assembly and the Forestry Commission, and then after my right hon. Friend had made an order which would have to receive the agreement of Parliament under the affirmative resolution procedure.
  Mr. Benyon: Then it is true to say that the Assembly's function is purely advisory.
  Mr. Jones: Not in the general sense of the word, but the actual appointment of any additional commissioners will be made by Her Majesty the Queen on the advice of the Prime Minister.
  As I said earlier, I do not deny that there is a strong link between agriculture and forestry. The devolution of forestry matters recognises that the case for a vigorous forestry policy rests at least as much on social and environmental considerations, for which the Assembly will be primarily responsible, as on economic
  358
  factors. The main links are between forestry and other devolved activities which are important to the economy of rural Wales—the countryside, tourism, and the functions of the Development Board for Rural Wales. Forestry has closer links with those matters than with agriculture. That is why we feel that we were right to devolve forestry, with safeguards.
  Mr. Dalyell: In the past half hour, we have seen how much, in this case as in so many others, there is of window dressing, of the trappings without the substance. That is highly dangerous. Within weeks of election, the Assemblies will tumble to how little they can do. The Welsh Assembly will be simply advisory. The real powers in this matter remain with the Treasury and the Forestry Commission. The Assembly will apparently be given power over the Welsh matters, yet at the first sign of conflict it will be defeated. That will just lead to discontent and will make the situation unsatisfactory. This window dressing is politically dangerous.
  Mr. Jones: I do not want to keep repeating myself, but it is just not true that the Assembly will have the trappings and not the power when dealing with forestry. It will finance forestry activities in Wales. The old saying is "He who pays the piper calls the tune." That means that the Assembly will have some powers—and, I think, far more considerable powers than has been suggested.
  Mr. Benyon: We have now jumped to another point, and an important one. Although, under Clause 4, the Assembly will give grants for forestry, surely the Forestry Commission itself will still be financed direct by the Exchequer, even though its activities may take place in Wales.
  Mr. Dalyell: This is where we are in a difficulty of having our cake and eating it. Now my hon. Friend the Under-Secretary says "But, of course, the Assembly has great power because it is in charge of finance." If this is meaningful, we come back to another matter. What happens then to the coherent strategy and the coherent policy of the Forestry Commission? If we say "Ah, but the Assembly has a final say in relation to finance, the Assembly pays the piper and calls

  359
  the financial tune", we cannot talk about the coherence of these bodies, be it the Forestry Commission or the British Waterways Board. Once again, this is a question of having one's cake and eating it. It is one thing or the other. One cannot have it both ways.
  Amendment negatived.
  Amendment made: No. 93, in page 64, leave out lines 11 and 12.—[Mr. Parker.]
  8.30 p.m.
  Mr. Tom Ellis: I beg to move Amendment No. 261, in page 64, leave out lines 15 and 16.
  The Chairman: With this we are to take the following Amendments:
  No. 257, in page 25, line 7, at end insert:
  "Provided that this subsection shall not apply to the Welsh National Water Development Authority".
  No. 258, in page 27, line 11, leave out "The" and insert:
  "if it appears to him to be expedient for the purpose of securing a more efficient supply of water, the".
  No. 259, in page 27, line 16, leave out from "but" to end of line 18 and insert:
  "any such order shall be subject to special parliamentary procedure".
  Mr. Ellis: In his speech on the Question, That Clause 61 stand part, the hon. Member for Conway (Mr. Roberts) referred to the four amendments in my name, and seemed to do so with some approval, as if he assumed that they were on the Notice Paper because of a profound disagreement that I have with the devolution proposals in respect of water. I hasten to disabuse him of that notion. The amendments are on the Notice Paper for a comparatively narrow purpose—to clarify the situation in respect of a statutory water company which has its registered office in Wrexham in my constituency, the Wrexham and East Denbighshire Water Company.
  I have been in contact with my hon. Friend the Minister of State for about 12 months about this subject, going back to the original Scotland and Wales Bill. I pay tribute to my hon. Friend for the great deal of trouble he has taken in trying to explain to me by letter the precise position of the statutory water company consequent upon the passing
  360
  of this Bill. But, as a number of hon. Members have said during the debate today, the Bill is very complex and it is difficult for people such as I who are not highly skilled in these matters to understand clearly what the position would be. Therefore, I tabled the amendments as probing amendments to see whether I could be enlightened even further than I have been so far.
  My hon. Friend has tried to reassure me by letter. I should like that reassurance to go a little further if possible, and be told that the water company will remain as a separate water company. It is the only statutory water company in Wales coming within the ambit of this legislation. It acts as an agent for the Welsh National Water Development Authority. I hope that I shall receive the reassurances I seek. If I have them, I shall be very happy, with the Committee's permission, to withdraw the amendment.
  There are a number of reasons why I want to see the Wrexham and East Denbighshire Water Company remain a separate statutory water company and be quite free of any danger of being incorporated by the action of the Welsh Assembly into the Welsh National Water Development Authority or any other body. It should remain separate as the only separate water company in Wales in the authority's region.
  My reasons have nothing to do with any criticism that I would make of the authority. On the contrary, I am full of praise for it. I should like to mention in passing that now that its new chairman, Mr. Haydn Rees, following the unfortunate death of his predecessor, is beginning to get to grips with the problems of the water industry in Wales, one senses the feel of purposeful steering beginning to develop in that authority. I pay tribute to the chairman and his staff. My anxiety to retain the water company as a separate institution has nothing to do with any criticism of the authority.
  The plain fact is that it seems to me important, for many reasons which have nothing to do with devolution, that we should retain a different type of semi-independent water agency within the overall ambit of the authority. The statutory water companies generally have always been very sensitive to public opinion.

  361
  They are very close to the public. Water is such an important service. Indeed, for many years people hardly knew that the water companies existed. One simply turned on the tap, the water came, and that was that. They were hardly noticed partly because they were very sensitive.
  It is important, for a number of other reasons, that the position of a water company should be clarified. For example, the water company in my area is in the process at the moment of raising £2 million in order to further its technical developments over the next five years It is raising this money on the market and has responsibilities to its creditors, employees and shareholders. It is therefore important, for all these reasons, that the water company should be quite clear exactly what will happen to it over the coming years.
  There is another important reason for arguing that it should remain as it now is, as a semi-independent water-supplying service. The statutory water companies as they now exist—and this is the only one in Wales—form an independent unit for water supply within an industry which is for the most part operating on a multifunctional basis. It must be very helpful, therefore, within such an industry to retain at least one water company in order to allow the performance of the industry generally to be measured.
  This is a clear example, in microcosm, of the value of a mixed economy. On technical grounds and on quite pragmatic business grounds, it is a very useful thing to have as a criterion by which the efficiencies of the water authority and of the company itself can be measured. It is for these reasons that I want it to continue as it has continued since the reorganisation of water a few years ago.
  A number of clauses in the Bill refer to the position of the Welsh Assembly, the Welsh National Water Development Authority, and so on, and to the various changes. I was at one stage a little anxious about Clause 62, and the possibility of changes being made under it. I am very happy that my hon. Friend was able to reassure me that under that clause nothing can happen to the water company by any action of the Welsh Assembly because, as was pointed out, the Welsh Assembly has no powers under the clause to take over the functions which apply to a body save when all the existing ministerial
  362
  powers of appointment to it are to be devolved to the Assembly. As was pointed out, paragraph 39 of Schedule 11 provides that one member of the body should be appointed jointly by the Secretary of State and the Minister.
  Sir A. Meyer: The hon. Gentleman is, as ever, showing himself vigilant in the defence of his constituents' interests, without mentioning that the charges of his local water company in Wrexham are substantially lower than those prevailing elsewhere in Wales. Will he accept that there are occasions on which others of us, who are less attached to the principle of devolution than he is, may be led to uphold the interests of our constituents, even when it leads us to oppose devolution, in exactly the same way as the hon. Gentleman's defence of his constituents is leading him to utter the most impeccable Tory sentiments that I have heard for some time?
  Mr. Ellis: It is a question not of making a Tory speech but of looking after a supremely efficient water authority. Many authorities in Wales have been far less efficient than this one It so happens that this one is supremely efficient. I had the great good fortune, during the 1976 drought, to visit the water company and see its various reservoirs There was no shortage of water whatsoever in Wrexham. However, the public was very upset, assuming that the company was negligent in not applying some kind of rationing system. For this reason, the company, towards the end of August or in early September, despite the fact that it had plenty of water, felt obliged to meet its customers' demands and introduce a rationing system. That is a measure of its extreme efficiency.
  Mr. Wyn Roberts: Is the hon. Gentleman further aware that his water company, the Wrexham and East Denbighshire Water Company, contributes currently £37,000 towards the equalisation fund, whereas the Welsh water authority is a receiver from that fund to the tune of about £6 million?
  Mr. Ellis: I am prepared to accept those figures. But the Welsh National Water Development Authority, which has barely got under way—I referred earlier to its first dynamic chairman—inherited many problems which stem essentially

  363
  from private business. Therefore, if the hon. Gentleman is criticising any shortcomings of the water authority he is criticising the history of the water supply industry—largely private—in the whole of Wales. It is a great tragedy that we always tend to take up some kind of get a serious, considered, objective assessment of a particular problem without all party line on this matter. One cannot the various party points being trotted out, almost by some kind of Pavlovian reflex action.
  There is the question, which is quite important, about the procedures under Clause 65 which might have a bearing on the possible future of the water company. Clause 65 deals with water and provides:
  "For the purposes of section 10 above any power which, by any provision specified in Part I of Schedule 8 to this Act, is conferred on a Minister of the Crown shall be deemed—

  (a) so far as it is exercisable in relation to the Welsh National Water Development Authority, to be a power exercisable as regards Wales; and

  (b) so far as it is exercisable in relation to the Severn-Trent Water Authority, not to be a power exercisable as regards Wales."

  That has the effect of extending the jurisdiction of the Assembly into England, since part of the Welsh National Water Development Authority's area is in England, and conversely to exclude part of Wales as part of the Severn-Trent Water Authority.
  Clause 65(2) states that:
  "The Secretary of State may, with respect to any statutory water company (within the meaning of the Water Act 1973) which supplies water to an area most of which is within Wales, by order make provision similar to the provision made by this Act with respect to the Welsh National Water Development Authority but no such order shall be made unless a draft of it has been laid before and approved by resolution of each House of Parliament."
  But because the company is the only statutory water company supplying water to an area most of which is in Wales, Clause 65(2) can apply only to the Wrexham company, It would, therefore, seem that an order under that subsection, taken in conjunction with Clause 65(1), could provide for a transfer of the company to the Assembly and, incidentally, comprise a clearly identifiable purpose.
  I know that there are various protections and consents which appear to be
  364
  required in respect of orders affecting the interests of the company. But it is not clear to me exactly how the procedure for an application under Clause 65 would operate in practice. Any order which may at present be applied for under the provisions of the Water Act 1945, or the Water Resources Act 1963, must comply with the procedures laid down, and if the powers in relation to subordinate legislation are insufficient for the purpose the proposals can be implemented only by means of the Bill.
  I should like to know exactly what powers would be available to the Secretary of State, or to the Assembly, beyond those already contained in the Water Act or the Water Resources Act. If there are any such powers, what protection will be afforded to the company, its employees, creditors and shareholders, in respect of any application to transfer the undertaking of the company to the Welsh National Water Development Authority?
  There has been a great deal of correspondence between my hon. Friend the Minister of State and myself. He has by letter tried to explain a lot of the procedures.
  I shall now finish in order to give my hon. Friend an opportunity of reassuring me on the precise position of the future of the water company under the Bill. I hope that he will be able to reassure me that the Wrexham Water Company will continue to exist as a separate and clearly identifiable water service agency, whether under the Welsh Assembly, if it comes about, or even if it does not come about.
  8.45 p.m.
  Mr. Nicholas Edwards: Amendment No. 257 takes us for the first time, with a foothold, into Clause 62. I suspect that, due to the operation of the guillotine, this is the only opportunity that we shall have to make a passing reference to what is a very important clause. It might be described as the "abolition clause" because it enables the Assembly, with the consent only of the Secretary of State, without reference to this place, to take over the powers of and, if it wishes, to abolish a number of very important bodies in Wales. I think that a passing reference to it is in order.
  We have here an amendment which seeks to exclude one specific important

  365
  body. It happens that Opposition Amendments Nos. 278 and 279, which have been grouped separately, were directed to a very similar argument as that to which the hon. Member for Wrexham (Mr. Ellis) addressed his remarks, which was finding out what might be the position of the Welsh National Water Development Authority. The hon. Member took the amendment directed to the Welsh National Water Development Authority and related it to a specific water company and made some passing reference to the position of the Welsh National Water Development Authority. The Opposition's amendments sought to clarify the position.
  The Explanatory and Financial Memorandum to the Bill indicates that the takeover and abolition powers are to apply to those bodies in which all ministerial appointing powers are transferred to the Assembly. The Opposition's amendments suggested that the position would have been clearer if the clause were redrafted so that it applied only to bodies where the Assembly had power to appoint all the members, which would have identified clearly the Welsh National Water Development Authority. The fact that it is not identified clearly and that the clause is confused is confirmed by the fact that the authority has had to approach the Government to get clarification on this matter and that correspondence has had to pass to throw some light on the position.
  The hon. Member for Wrexham is right that the Welsh National Water Development Authority is let out by paragraph 39 of Schedule 11. But this seems to be an obscure and back-door way of doing it, and it is not at all satisfactory. The Opposition would have preferred to see much clearer wording in the clause as it stands. But the simple fact is that this body appears to be let out, whereas a number of important bodies are very much brought into the provisions of the Bill by Clause 62. They include the Wales Tourist Board, the Welsh Development Agency and the Development Board for Rural Wales, as well as a number of advisory bodies such as the Historic Buildings Council, the Central Advisory Body for Education for Wales and the Ancient Monuments Board for Wales, as well as the area health authorities.
  The bodies which can be executed in this way under Clause 62 were listed in a
  366
  Written Answer on Thursday 16th Match. Therefore, Amendment No. 257 refers to a very remarkable and important clause. Here we have a number of bodies set up by Parliament after extensive debate which can be removed at the request of the Assembly and only on the say-so of the Secretary of State.
  I have not the time to elaborate now and to quote all the remarks which were made at the time, but I have in mind all the remarks by the Under-Secretary and by the Secretary of State when setting up the Welsh Development Agency and these other bodies about the vital importance of this kind of organisation, about the importance of getting the right kind of representatives on it, about the need for specialist skills, and about the need for small, compact and efficient bodies. All these arguments were spelt out to us. Yet the Assembly can simply wipe out the whole thing on the consent of the Secretary of State without reference to Parliament at all. All the undertakings we were given about these bodies—the Welsh Development Agency, the Development Board for Rural Wales and the Land Authority for Wales—can be simply wiped out in this way without adequate parliamentary debate.
  Therefore, a reference to these bodies and the fact that one particular one among them is exempted is fully justified in the brief time that we have available up to the fall of the guillotine.
  It is not clear why the Welsh National Water Development Authoirty should have the rare privilege of being exempt from abolition. Presumably, the complications of dealing on a cross-border basis were too complex. Apparently, the relationships with the English authorities prevented it. This places the board in a privileged position because almost all the other nominated bodies that were set up at the same time by the Government and for which these powerful arguments were adduced by the Secretary of State and the Under-Secretaries in debate are subject to summary execution.
  This is a matter for considerable concern for Wales, for those bodies and the people who work in them. They cannot be certain that they can continue functioning in the specialist and independent way in which they are functioning. It

  367
  is hard to see how many functions could be carried out by elected committees. It is hard to envisage how specialist advice of the Historic Buildings Council for Wales or the Library Advisory Council for Wales could be carried out by an elected committee. It is equally hard to see why the abolition of area health authorities, which is possible under Clause 62, would bring government any closer to the people. Clearly, it would take it further away.
  I am glad that in the short time available I have been able to identify the effects of Clause 62, which is an abolition clause, which deliberately contradicts many of the undertakings given by the Ministers in setting up all these bodies. In fact, many of the bodies were set up simultaneously with the drafting and preparation of this Bill.
  The Secretary of State for Wales (Mr. John Morris): I assure the hon. Member that the Government are not in breach of any undertaking. I can see why the Conservatives always fight to defend nominated bodies. It is always the way in which they can perpetuate power in Wales, in or out of office. There is no suggestion that we are in breach of any undertaking that has been given. We are seeking to democratise these bodies and it is open to the Assembly to consider the best form of running the bodies, with the consent of the Secretary of State.
  Mr. Edwards: I had intended to end my speech in time to enable the Minister to reply. However, I have just been provoked into going on.
  Let us consider a few of these bodies. We have one defunct council—the Central Advisory Council for Education in Wales—listed in the parliamentary answer to which I have referred. We have three learned bodies and three bodies set up by the Socialists since they came to power—the Land Authority for Wales, the Welsh Development Agency and the Development Board for Rural Wales. We also have the Development Corporation which contains six known Socialists out of nine members. We have the Wales Tourist Board which is chaired by Mr. Ednyfed Hudson Davies, the former Labour Member for Conway who is now prospective Parliamentary Labour candidate for Caerphilly. That is hardly the
  368
  stuff from which the underhand perpetuation of Conservative administration is carried out.
  The truth is that the nominated bodies about which we are talking in these provisions were set up by the Secretary of State for Wales and are packed with his nominees and party hacks, as are almost all the bodies with which we are dealing.
  Mr. Dafydd Wigley rose—
  Mr. Edwards: No, I shall not give way. For the Secretary of State to talk about the Conservative Party perpetuating power through nominated bodies is an insult to the people of Wales and their intelligence.
  Mr. John Morris rose—
  Mr. Edwards: No, I do not intend to give way.
  Mr. John Morris rose—
  The First Deputy Chairman of Ways and Means (Sir Myer Galpern): If the hon. Gentleman does not give way, that situation must be accepted.
  Mr. Edwards: I have no intention of giving way. I gave way earlier to the right hon, and learned Gentleman and I am now replying to the "phoney" and erroneous point he made. The truth is that these bodies have been appointed by him and packed by his nominees.
  Mr. Morris rose—
  Mr. Edwards: I am not giving way.
  Mr. Morris: The hon. Gentleman is afraid to give way.
  Mr. Edwards: The right hon, and learned Gentleman should not lose his temper at the Dispatch Box. He should not behave in that uncontrollable way when he is faced with the truth of politics in Wales. That truth is well known to the Welsh people. The truth is that the Labour Party, through its party caucus and party nominations, packs the political bodies in Wales.
  Mr. Wigley: On a point of order, Sir Myer. Is it in order for the Conservative Front Bench spokesman to make a slur on those people by suggesting that they are members of the Labour Party?
  The First Deputy Chairman: Mr. Edwards.
  Mr. Edwards: The Secretary of State has revealed his hand only too clearly.
  Mr. John Morris rose—
  Mr. Edwards: I have already said that I do not intend to give way to the right hon, and learned Gentleman.
  Mr. Morris rose—
  The First Deputy Chairman: Order. We have only a few minutes left before the guillotine falls. Let us get on with it.
  Mr. Edwards: I propose to conclude my remarks so that the Under-Secretary of State for Wales may reply to his hon. Friend the Member for Wrexham. I think that it would be a courtesy to that hon. Gentleman to allow the Minister to do so.
  I am delighted to give way to the Under-Secretary of State for Wales, who always seeks to reply to debates sensibly and reasonably. But I shall not listen to the kind of point that was put by the Secretary of State for Wales about the Conservative Party when what he said was a travesty of the truth—in fact, a reverse of the truth. It is the Labour Party that seeks to dominate the Welsh people through the exercise of party patronage and the appointment of party hacks.
  Mr. Alec Jones: The hon. Member for Pembroke (Mr. Edwards) said that I am always sensible and reasonable when replying to debates. I wish that I had a few more minutes in which to speak so that I could show him how sensible and reasonable I can be. I recall that he tried this game in our debates in the Welsh Grand Committee when we discussed the Arts Council. On that occasion his remarks acted like a damp squib. He knew then, as he does now, that what he says is nonsense.
  I wish to refer to the remarks of my hon. Friend the Member for Wrexham (Mr. Ellis), who is concerned about the future existence of the Wrexham and East Denbighshire Water Company. It is a technical problem, and when my hon. Friend said that he hoped I could dispel his doubts he flattered me because I have already attempted to answer him in a
  370
  long and complicated letter. I know that if I were to try to cover those matters in two or three minutes I should fail.
  Because ministerial powers of appointment are retained, the Welsh Water Authrity does not meet the criteria for being subsumed under Clause 62. Therefore, it will remain an independent body in regard to the water company. The Welsh Water Authority cannot be subsumed under the Bill as it stands. Therefore, the water company itself cannot be subsumed. There are no ministerial appointments to the water companies, and so long as that situation obtains no subsuming under Clause 62 can possibly occur. Therefore, in regard to the company's fear that it could be subsumed by the powers in the Bill, I assure my hon. Friend that that is not the case and that adequate remedies and precautions are built into the Bill. In the Government's view, my hon. Friend's amendments are not necessary. Amendment No. 217 would not prevent the devolving of water functions. In fact, it would make it extremely difficult to introduce practical arrangements to deal with the divided responsibilities of the water authority, part going to the Assembly and part to the Government.
  I hope that my hon. Friend will accept this brief reply as an assurance that as the Bill stands neither the Welsh National Water Development Authority nor the Wrexham and East Denbighshire Water Company can be subsumed—
  It being Nine o'clock, The CHAIRMAN proceeded, pursuant to the Order [16th November] and the Resolution [1st March], to put forthwith the Question already proposed from the Chair.
  Question, That the amendment be made, put and negatived.
  The CHAIRMAN then proceeded to put forthwith the Questions necessary for the disposal of the Business to be concluded at Nine o'clock.
  Amendments made: No. 94, in page 64, line 23, at end insert—
  'The British Waterways Board. The Transport Act 1962 (c.46), section 1'.
  No. 95, in page 65, line 13, at end insert—
  'The Inland Waterways Amenity The Transport Act 1968 (c.73), section 110'. Advisory Council.—[Mr. John Smith.]
  Schedue 7, as amended, agreed to.

Clause 62

  POWER OF ASSEMBLY TO ASSUME FUNCTIONS OF CERTAIN BODIES
  Question put, That the clause stand part of the Bill:—
  The Committee divided: Ayes 150, Noes 130.

  Division No. 173]

  AYES

  [9.01 p.m.

  Allaun, Frank

  Grimond, Rt Hon J.

  Pendry, Tom

  Anderson, Donald

  Hamilton, James (Bothwell)

  Penhaligon, David

  Archer, Rt Hon Peter

  Hamilton, W. W. (Central Fife)

  Radice, Giles

  Atkins, Ronald (Preston N)

  Harrison, Rt Hon Walter

  Rees, Rt Hon Merlyn (Leeds S)

  Atkinson, Norman

  Hayman, Mrs Helene

  Roberts, Albert (Normanton)

  Bain, Mrs Margaret

  Henderson, Douglas

  Roderick, Caerwyn

  Barnett, Guy (Greenwich)

  Hooley, Frank

  Rodgers, George (Chorley)

  Bates, Alf

  Hooson, Emlyn

  Rose, Paul B.

  Bean, R. E.

  Howells, Geraint (Cardigan)

  Ross, Stephen (Isle of Wight)

  Beith, A. J.

  Hughes, Rt Hon C. (Anglesey)

  Ross, Rt Hon W. (Kilmarnock)

  Bennett, Andrew (Stockport N)

  Hughes, Roy (Newport)

  Rowlands, Ted

  Bishop, Rt Hon Edward

  Hunter, Adam

  Sedgemore, Brian

  Blenklnsop, Arthur

  Janner, Greville

  Sever, John

  Boardman, H.

  Jay, Rt Hon Douglas

  Silkin, Rt Hon S. C. (Dulwlch)

  Bray, Dr Jeremy

  Johnson, James (Hull West)

  Skinner, Dennis

  Brown, Hugh D. (Provan)

  Jones, Alec (Rhondda)

  Smith, John (N Lanarkshire)

  Brown, Robert C. (Newcastle W)

  Jones, Barry (East Flint)

  Snape, Peter

  Buchanan, Richard

  Jones, Dan (Burnley)

  Spriggs, Leslie

  Callaghan, Rt Hon J. (Cardiff SE)

  Kerr, Russell

  Stallard, A. W.

  Callaghan, Jim (Middleton & P)

  Kilroy-Silk, Robert

  Steel, Rt Hon David

  Canavan, Dennis

  Lambie, David

  Stewart, Rt Hon Donald

  Carter-Jones, Lewis

  Lamborn, Harry

  Stewart, Rt Hon M. (Fulham)

  Cocks, Rt Hon Michael (Bristol S)

  Lestor, Miss Joan (Eton & Slough)

  Stoddart, David

  Cohen, Stanley

  Lewis, Ron (Carlisle)

  Strang, Gavin

  Cook, Robin F. (Edin C)

  Lyons, Edward (Bradford W)

  Taylor, Mrs Ann (Bolton W)

  Crawford, Douglas

  McElhone, Frank

  Thomas, Dafydd (Merioneth)

  Crawshaw, Richard

  MacFarquhar, Roderick

  Thomas, Jeffrey (Abertillery)

  Cryer, Bob

  McGuire, Michael (Ince)

  Thomas, Ron (Bristol NW)

  Cunningham, Dr J. (Whiteh)

  MacKenzie, Rt Hon Gregor

  Thompson, George

  Davies, Bryan (Enfield N)

  Maclennan, Robert

  Tinn, James

  Davies, Ifor (Gower)

  McMillan, Tom (Glasgow C)

  Tomlinson, John

  Dean, Joseph (Leeds Watt)

  McNamara, Kevin

  Wainwright, Edwin (Dearne V)

  Dempsey, James

  Madden, Max

  Wainwright, Richard (Colne V)

  Dolg Peter

  Mallalieu, J. P. W.

  Walker, Harold (Doncaster)

  Dormand, J. D.

  Marks, Kenneth

  Walker, Terry (Kingswood)

  Douglas-Mann, Bruce

  Marshall, Dr Edmund (Goole)

  Ward, Michael

  Dunn, James A.

  Mikardo, Ian

  Watkins, David

  Eadie, Alex

  Millan, Rt Hon Bruce

  Watt, Hamish

  Ellis, John (Brigg & Scun)

  Mitchell, Austin

  White, Frank R. (Bury)

  Evans, Gwynfor (Carmarthen)

  Morris, Charles R. (Openshaw)

  Whitehead, Phillip

  Evans, John (Newton)

  Morris, Rt Hon J. (Aberavon)

  Whitlock, William

  Ewing, Harry (Stirling)

  Newens, Stanley

  Wigley, Dafydd

  Fernyhough, Rt Hon E.

  Oakes, Gordon

  Wilson, Gordon (Dundee E)

  Fletcher, Ted (Darlington)

  Ogden, Eric

  Wilson, William (Coventry SE)

  Fowler, Gerald (The Wrekin)

  Ovenden, John

  Wise, Mrs Audrey

  Freud, Clement

  Padley, Walter

  Woodall, Alec

  Garrett, W. E. (Wallsend)

  Palmer, Arthur

  Woof, Robert

  George, Bruce

  Pardoe, John

  Gould, Bryan

  Park, George

  TELLERS FOR THE AYES:

  Graham, Ted

  Parker, John

  Mr. Joseph Harper,

  Grant, George (Morpeth)

  Pavitt, Laurie

  Mr. Donald Coleman.

  Grant, John (Islington C)

  NOES

  Amery, Rt Hon Julian

  Buck, Antony

  Eden, Rt Hon Sir John

  Arnold, Tom

  Butler, Adam (Bosworth)

  Edwards, Nicholas (Pembroke)

  Atkinson, David (Bournemouth, East)

  Carlisle, Mark

  Elliott, Sir William

  Banks, Robert

  Chalker, Mrs Lynda

  Emery, Peter

  Benyon, W.

  Channon, Paul

  Fairbairn, Nicholas

  Berry, Hon Anthony

  Clarke, Kenneth (Rushcliffe)

  Fletcher, Alex (Edinburgh N)

  Biffen, John

  Clegg, Walter

  Fowler, Norman (Sutton C'f'd)

  Boscawen, Hon Robert

  Cooke, Robert (Bristol W)

  Gardner, Edward (S Fylde)

  Bottomley, Peter

  Dean, Paul (N Somerset)

  Glyn, Dr Alan

  Brittan, Leon

  Dodsworth Geoffrey

  Gorst, John

  Brocklebank-Fowler, C.

  Douglas-Hamilton, Lord James

  Gow, Ian (Eastbourne)

  Brooke, Peter

  Drayson, Burnaby

  Gower, Sir Raymond (Barry)

  Brotherton. Michael

  Dunlop, John

  Gray, Hamish

  372

  373

  Grieve, Percy

  Mather, Carol

  Roberts, Wyn (Conway)

  Griffiths, Eldon

  Maudling, Rt Hon Reginald

  Ross, William (Londonderry)

  Grist, Ian

  Maxwell-Hyslop, Robin

  Rost, Peter (SE Derbyshire)

  Grylls, Michael

  Meyer, Sir Anthony

  Sainsbury, Tim

  Hall-Davis, A. G. F.

  Miscampbell, Norman

  Shelton, William (Streatham)

  Hamilton, Michael (Salisbury)

  Mitchell, David (Basingstoke)

  Shepherd, Colin

  Hampson, Dr Keith

  Moate, Roger

  Shersby, Michael

  Hannam, John

  Molyneaux, James

  Silvester, Fred

  Haselhurst, Alan

  Moore, John (Croydon C)

  Sims, Roger

  Havers, Rt Hon Sir Michael

  More, Jasper (Ludlow)

  Sinclair, Sir George

  Hawkins, Paul

  Morrison, Hon Peter (Chester)

  Smith, Dudley (Warwick)

  Heath, Rt Hon Edward

  Mudd, David

  Smith, Timothy John (Ashfield)

  Hicks, Robert

  Nelson, Anthony

  Speed, Keith

  Hodgson, Robin

  Neubert, Michael

  Spence, John

  Holland, Philip

  Newton, Tony

  Spicer, Michael (S Worcester)

  Hunt, John (Ravensbourne)

  Onslow, Cranley

  Stainton, Keith

  Hurd, Douglas

  Page, Rt Hon R. Graham (Crosby)

  Tebbit, Norman

  James, David

  Percival, Ian

  Temple-Morris, Peter

  Johnson Smith, G. (E Grlnstead)

  Peyton, Rt Hon John

  Thomas, Rt Hon P. (Hendon S)

  Jopling, Michael

  Pink, R. Bonner

  Townsend, Cyril D.

  King, Evelyn (South Dorset)

  Powell, Rt Hon J. Enoch

  Viggers, Peter

  King, Tom (Bridgwater)

  Prentice, Rt Hon Reg

  Wall, Patrick

  Knox, David

  Pym, Rt Hon Francis

  Weatherill, Bernard

  Lamont, Norman

  Raison, Timothy

  Wells, John

  Langford-Holt, sir John

  Rathbone, Tim

  Wiggin, Jerry

  Latham, Michael (Melton)

  Renton, Rt Hon Sir D. (Hunts)

  Winterton, Nicholas

  Lawrence, Ivan

  Renton, Tim (Mid-Sussex)

  Younger, Hon George

  Lawson, Nigel

  Rhodes James, R.

  Luce, Richard

  Ridley, Hon Nicholas

  TELLERS FOR THE NOES:

  Macfarlane, Neil

  Ridsdale, Julian

  Mr, Spencer Le Marchant,

  MacGregor, John

  Rifkind, Malcolm

  Mr. Jim Lester.

  Marshall, Michael (Arundel)

  Roberts, Michael (Cardiff NW)

  Question accordingly agreed to.
  Clause 62 ordered to stand part of the Bill.
  Clause 63 ordered to stand part of the Bill.

Clause 64

  COUNTRYSIDE COMMISSION FOR WALES
  Amendments made: No. 297, in page 26, line 37, at end insert—
  '(12A) Section 62 above shall apply in relation to the Welsh Commission as it applies in relation to the bodies there referred to'.
  No. 322, in page 26, line 26, at end insert—
  '(d) section 49 of the North Wales Hydro Electric Power Act 1973.'—[Mr. John Smith.]
  Clause 64, as amended, ordered to stand part of the Bill.

Clause 65

  WATER
  Question put, That the clause stand part of the Bill:—
  The Committee divided: Ayes 150, Noes 129.
  Question accordingly agreed to.
  Clause 65 ordered to stand part of the Bill.
  Schedule 8 agreed to.

Clause 66

  PLANNING
  Question put, That the clause stand part of the Bill:—
  The Committee divided: Ayes 148, Noes 128.

  Division No. 174]

  AYES

  [9.30 p.m.

  Allaun, Frank

  Cunningham, Dr J. (Whiteh)

  Henderson, Douglas

  Anderson, Donald

  Davies, Bryan (Enfield N)

  Hooley, Frank

  Archer, Rt Hon Peter

  Davies, Ifor (Gower)

  Hooson, Emlyn

  Atkins, Ronald (Presten N)

  Dean, Joseph (Leads West)

  Howells, Geraint (Cardigan)

  Atkinson, Norman

  Dempsey, James

  Hughes, Rt Hon C. (Anglesey)

  Bain, Mrs Margaret

  Doig, Peter

  Hughes, Roy (Newport)

  Barnett, Guy (Greenwich)

  Dormand, J. D.

  Hunter, Adam

  Bean, R. E.

  Douglas-Mann, Eruce

  Janner, Greville

  Beith, A. J.

  Dunn, James A.

  Jay, Rt Hon Douglas

  Bennett, Andrew (Stockport N)

  Eadie, Alex

  Johnson, James (Hull West)

  Bishop, Rl Hon Edward

  Ellis, John (Brigg & Scun)

  Jones, Alec (Rhondda)

  Blenkinsop, Arthur

  Evans, Gwynfor (Carmarthen)

  Jones, Barry (East Flint)

  Boardman, H.

  Evans, John (Newton)

  Jones, Dan (Burnley)

  Bray, Dr Jeremy

  Ewing, Harry (Stirling)

  Kerr, Russell

  Brown, Hugh D. (Provan)

  Fernyhough, Rt Hon E.

  Kilroy-Silk, Robert

  Brown, Robert C. (Newcastle W)

  Fletcher, Ted (Darlington)

  Lambie, David

  Buchanan, Richard

  Fowler, Gerald (The Wrekin)

  Lamborn, Harry

  Callaghan, Rt Hon J. (Cardiff SE)

  Freud, Clement

  Lestor, Miss Joan (Eton & Slough)

  Callaghan, Jim (Middleton & P)

  Garrett, W. E. (Wallsend)

  Lewis, Ron (Carlisle)

  Canavan, Dennis

  George, Bruce

  Lyons, Edward (Bradford W)

  Carter-Jones, Lewis

  Grant, George (Morpeth)

  McElhone, Frank

  Cocks, Rt Hon Michael (Bristol S)

  Grant, John (Islington C)

  MacFarquhar, Roderick

  Cohen, Stanley

  Grimond, Rt Hon J.

  McGuire, Michael (Ince)

  Coleman, Donald

  Hamilton, James (Bothwell)

  MacKenzie, Rt Hon Gregor

  Cook, Robin F. (Edin C)

  Hamilton, W. W. (Central Fife)

  Maclennan, Robert

  Crawford, Douglas

  Harper, Joseph

  McMillan, Tom (Glasgow C)

  Crawshaw, Richard

  Harrison, Rt Hon Walter

  McNamara, Kevin

  Cryer, Bob

  Hayman, Mrs Helene

  Madden, Max

  Mallalleu, J. P. W.

  Roderick, Caerwyn

  Thompson, George

  Marks, Kenneth

  Rodgers, George (Chorley)

  Tierney, Sydney

  Marshall, Dr Edmund (Goole)

  Rose, Paul B.

  Tinn, James

  Mlkardo, Ian

  Ross, Stephen (Isle of Wight)

  Tomlinson, John

  Millan, Rt Hon Bruce

  Ross, Rt Hon W. (Kilmarnock)

  Wainwright, Edwin (Dearne V)

  Mitchell, Austin

  Rowiands, Ted

  Wainwright, Richard (Colne V)

  Morris, Rt Hon Charles R.

  Sedgemore, Brian

  Walker, Harold (Doncaster)

  Morris, Rt Hon J. (Aberavon)

  Sillars, James

  Walker, Terry (Kingswood)

  Newons, Stanley

  Silkin, Rt Hon S. C. (Dulwich)

  Ward, Michael

  Oakes, Gordon

  Skinner, Dennis

  Watkins, David

  Ogden, Eric

  Smith, Rt Hon John (N Lanarkshire)

  Watt, Hamish

  Ovenden, John

  Snape, Peter

  White, Frank R. (Bury)

  Padley, Walter

  Spriggs, Leslie

  Whitehead, Phillip

  Palmer, Arthur

  Stallard, A. W.

  Whitlock, William

  Pardoe, John

  Steel, Rt Hon David

  Wigley, Dafydd

  Park, Georgs

  Stewart, Rt Hon Donald

  Wilson, Gordon (Dundee E)

  Parker, John

  Stewart, Rt Hon M. (Fulham)

  Wilson, William (Coventry SE)

  Pavitt, Laurie

  Stoddart, David

  Wise, Mrs Audrey

  Pendry, Tom

  Strang, Gavin

  Woodall, Alec

  Penhaligon, David

  Taylor, Mrs Ann (Bolton W)

  Woof, Robert

  Radice, Giles

  Thomas, Dafydd (Merioneth)

  Rees, Rt Hon Merlyn (Leeds S)

  Thomas, Jeffrey (Abertillery)

  TELLERS FOR THE AYES:

  Roberts, Albert (Normanton)

  Thomas, Ron (Bristol NW)

  Mr. Ted Graham and Mr. Alf Bates

  NOES

  Amery, Rt Hon Julian

  Havers, Rt Hon Sir Michael

  Pink, R. Bonner

  Atkinson, David (B'mouth, East)

  Hawkins, Paul

  Powell, Rt Hon J. Enoch

  Banks, Robert

  Heath, Rt Hon Edward

  Prentice, Rt Hon Reg

  Benyon, W.

  Hicks, Robert

  Pym, Rt Hon Francis

  Bitten, John

  Hodgson, Robin

  Raison, Timothy

  Boscawen, Hon Robert

  Holland, Philip

  Rathbone, Tim

  Bottomley, Peter

  Hunt, John (Ravensbourne)

  Renton, Rt Hon Sir D. (Hunts)

  Brittan, Leon

  Hurd, Douglas

  Renton, Tim (Mid-Sussex)

  Brocklebank-Fowler, C.

  James, David

  Rhodes James, R.

  Brooke, Peter

  Johnson Smith, G. (E Grinstead)

  Ridley, Hon Nicholas

  Brotherton, Michael

  Jopling, Michael

  Ridsdale, Julian

  Buck, Antony

  King, Evelyn (South Dorset)

  Rifkind, Malcolm

  Butler, Adam (Bosworth)

  King, Tom (Bridgwater)

  Roberts, Michael (Cardiff NW)

  Carlisle, Mark

  Knox, David

  Roberts, Wyn (Conway)

  Chalker, Mrs Lynda

  Lamont, Norman

  Ross, William (Londonderry)

  Channon, Paul

  Langford-Holt, Sir John

  Rost, Peter (SE Derbyshire)

  Clarke, Kenneth (Rushcliffe)

  Latham, Michael (Melton)

  Sainsbury, Tim

  Clegg, Walter

  Lawrence, Ivan

  Shelton, William (Streatham)

  Cooke, Robert (Bristol W)

  Lawson, Nigel

  Shepherd, Colin

  Dean, Paul (N Somerset)

  Le Merchant, Spencer

  Shersby, Michael

  Dodsworth, Geoffrey

  Lester, Jim (Beeston)

  Silvester, Fred

  Drayson, Burnaby

  Luce, Richard

  Sims, Roger

  Dunlop, John

  Macfarlane, Neil

  Sinclair, Sir George

  Eden, Rt Hon Sir John

  MacGregor, John

  Smith, Dudley (Warwick)

  Edwards, Nicholas (Pembroke)

  Marshall, Michael (Arundel)

  Smith, Timothy John (Ashfield)

  Elliott, Sir William

  Mather, Carol

  Speed, Keith

  Emery, Peter

  Maudling, Rt Hon Reginald

  Spence, John

  Fairbairn, Nicholas

  Maxwell-Hyslop, Robin

  Spicer, Michael (S Worcester)

  Fletcher, Alex (Edinburgh N)

  Meyer, Sir Anthony

  Stainton, Keith

  Fowler, Norman (Sutton C'f'd)

  Miscampbell, Norman

  Tebbit, Norman

  Gardner, Edward (S Fylde)

  Mitchell, David (Basingstoke)

  Temple-Morris, Peter

  Glyn, Dr Alan

  Moate, Roger

  Thomas, Rt Hon P. (Hendon S)

  Gorst, John

  Molyneaux, James

  Townsend, Cyril D.

  Gow, Ian (Eastbourne)

  Moore, John (Croydon C)

  Viggers, Peter

  Gower, Sir Raymond (Barry)

  More, Jasper (Ludlow)

  Wall, Patrick

  Gray, Hamish

  Morrison, Hon Peter (Chester)

  Weatherlll, Bernard

  Grieve, Percy

  Mudd, David

  Wells, John

  Griffiths, Eldon

  Nelson, Anthony

  Wiggin, Jerry

  Grist, Ian

  Neubert, Michael

  Wlnterton, Nicholas

  Grylls, Michael

  Newton, Tony

  Younger, Hon George

  Hall-Davis, A. G. F.

  Onslow, Cranley

  Hamilton, Michael (Sailsbury)

  Page, Rt Hon R. Graham (Crosby)

  TELLERS FOR THE NOES:

  Hampson, Dr Keith

  Percival, Ian

  Mr. Anuhony Berry and

  Hannam, John

  Peyton, Rt Hon John

  Lord James Douglas-Hamilton.

  Haselhurst, Alan

  Division No. 175]

  AYES

  [9.26 p.m.

  Allaun, Frank

  Hamilton, W. W. (Central Fife)

  Penhaligon, David

  Anderson, Donald

  Harper, Joseph

  Radice, Giles

  Archer, Rt Hon Peter

  Harrison, Rt Hon Walter

  Rees, Rt Hon Merlyn (Leeds S)

  Atkins, Ronald (Preston N)

  Hayman, Mrs Helena

  Roberts, Albert (Normanton)

  Atkinson, Norman

  Henderson, Douglas

  Roderick, Caerwyn

  Bain, Mrs Margaret

  Hooley, Frank

  Rodgers, George (Chorley)

  Barnett, Guy (Greenwich)

  Hooson, Emlyn

  Rose, Paul B.

  Bates, Alf

  Howells, Geraint (Cardigan)

  Ross, Stephen (Isle of Wight)

  Bean, R. E.

  Hughes, Rt Hon C. (Anglesey)

  Ross, Rt Hon W. (Kilmarnock)

  Beith, A. J.

  Hughes, Roy (Newport)

  Rowlands, Ted

  Bennett, Andrew (Stockport N)

  Hunter, Adam

  Sedgemore, Brian

  Bishop, Rt Hon Edward

  Janner, Greville

  Sever, John

  Blenkinsop, Arthur

  Jay, Rt Hon Douglas

  Silkin, Rt Hon S. C. (Dulwich)

  Boardman, H.

  Johnson, James (Hull West)

  Skinner, Dennis

  Bray, Dr Jeremy

  Jones, Alec (Rhondda)

  Smith, John (N Lanarkshire)

  Brown, Hugh D. (Provan)

  Jones, Barry (East Flint)

  Snape, Peter

  Brown, Robert C. (Newcastle W)

  Jones, Dan (Burnley)

  Spriggs, Leslie

  Buchanan, Richard

  Kerr, Russell

  Steel, Rt Hon David

  Callaghan, Rt Hon J. (Cardiff SE)

  Kilroy-Silk, Robert

  Stewart, Rt Hon Donald

  Callaghan, Jim (Middleton & P)

  Lambie, David

  Stewart, Rt Hon M. (Fulham)

  Canavan, Dennis

  Lamborn, Harry

  Stoddart, David

  Carter-Jones, Lewis

  Lestor, Miss Joan (Eton & Slough)

  Strang, Gavin

  Cocks, Rt Hon Michael (Bristol S)

  Lewis, Ron (Carlisle)

  Taylor, Mrs Ann (Bolton W)

  Cohen, Stanley

  Lyons, Edward (Bradford W)

  Thomas, Dafydd (Merioneth)

  Coleman, Donald

  McElhone, Frank

  Thomas, Jeffrey (Abertillery)

  Cook, Robin F. (Edin C)

  MacFarquhar, Roderick

  Thomas, Ron (Bristol NW)

  Crawford, Douglas

  McGuire, Michael (Ince)

  Thompson, George

  Crawshaw, Richard

  MacKenzie, Rt Hon Gregor

  Tierney, Sydney

  Cryer, Bob

  Maclennan, Robert

  Tinn, James

  Cunningham, Dr J. (Whiteh)

  McMillan, Tom (Glasgow C)

  Tomlinson, John

  Davies, Bryan (Enfield N)

  McNamara, Kevin

  Wainwright, Edwin (Dearne V)

  Davies, Ifor (Gower)

  Madden, Max

  Wainwright, Richard (Colne V)

  Dean, Joseph (Leeds West)

  Mallalieu, J. P. W.

  Walker, Harold (Doncaster)

  Dempsey, James

  Marks, Kenneth

  Walker, Terry (Kingswood)

  Doig, Peter

  Marshall, Dr Edmund (Goole)

  Ward, Michael

  Dormand, J. D.

  Mikardo, Ian

  Watkins, David

  Douglas-Mann, Bruce

  Millan, Rt Hon Bruce

  Watt, Hamish

  Dunn, James A.

  Mitchell, Austin

  White, Frank R. (Bury)

  Eadie, Alex

  Morris, Charles R. (Openshaw)

  Whitehead, Phillip

  Ellis, John (Brigg & Scun)

  Morris, Rt Hon J. (Aberavon)

  Whitlock, William

  Evans, John (Newton)

  Newens, Stanley

  Wigley, Dafydd

  Ewing, Harry (Stirling)

  Oakes, Gordon

  Wilson, Gordon (Dundee E)

  Fernyhough, Rt Hon E.

  Ogden, Eric

  Wilson, William (Coventry SE)

  Fletcher, Ted (Darlington)

  Ovenden, John

  Wise, Mrs Audrey

  Fowler, Gerald (The Wrekin)

  Padley, Walter

  Woodall, Alec

  Garrett, W. E. (Wallsend)

  Palmer, Arthur

  Woof, Robert

  George, Bruce

  Pardoe, John

  Grant, George (Morpeth)

  Park, George

  TELLERS FOR THE AYES

  Grant, John (Islington C)

  Parker, John

  Mr. A. W. Stallard and

  Grimond, Rt Hon J.

  Pavitt, Laurie

  Mr. Ted Graham

  Hamilton, James (Bothwell)

  Pendry, Tom

  NOES

  Amery, Rt Hon Julian

  Edwards, Nicholas (Pembroke)

  Holland, Philip

  Atkinson, David (B'mouth, East)

  Elliott, Sir William

  Hunt, John (Ravensbourne)

  Banks, Robert

  Emery, Peter

  Hurd, Douglas

  Benyon, W.

  Fairbairn, Nicholas

  James, David

  Berry, Hon Anthony

  Fletcher, Alex (Edinburgh N)

  Johnson Smith, G. (E Grinstead)

  Biffen, John

  Fowler, Norman (Sutton C'f'd)

  Jopling, Michael

  Boscawen, Hon Robert

  Gardner, Edward (S Fylde)

  King, Evelyn (South Dorset)

  Bottomley, Peter

  Glyn, Dr Alan

  King, Tom (Bridgwater)

  Brittan, Leon

  Gorst, John

  Knox, David

  Brocklebank-Fowler, C.

  Gow, Ian (Eastbourne)

  Lamont, Norman

  Brooke, Peter

  Gower, Sir Raymond (Barry)

  Langford-Holt, Sir John

  Brotherton, Michael

  Gray, Hamish

  Latham, Michael (Melton)

  Buck, Antony

  Grieve, Percy

  Lawrence, Ivan

  Butler, Adam (Bosworth)

  Griffiths, Eldon

  Lawson, Nigel

  Carlisle, Mark

  Grid, Ian

  Le Marchant, Spencer

  Chalker, Mrs Lynda

  Grylls, Michael

  Luce, Richard

  Channon, Paul

  Hall-Davis, A. G. F.

  Macfarlane, Neil

  Clarke, Kenneth (Rushcliffe)

  Hamilton, Michael (Salisbury)

  MacGregor, John

  Clegg, Walter

  Hampson, Dr Keith

  Marshall, Michael (Arundel)

  Cooke, Robert (Bristol W)

  Hannam, John

  Mather, Carol

  Dean, Paul (N Somerset)

  Haselhurst, Alan

  Maudling, Rt Hon Reginald

  Dodsworth, Geoffrey

  Havers, Rt Hon Sir Michael

  Maxwell-Hyslop, Robin

  Douglas-Hamilton, Lord James

  Hawkins, Paul

  Meyer, Sir Anthony

  Drayson, Burnaby

  Heath, Rt Hon Edward

  Miscampbell, Norman

  Dunlop, John

  Hicks, Robert

  Mitchell, David (Basingstoke)

  Eden, Rt Hon Sir John

  Hodgson, Robin

  Moate, Roger

  378

  379

  Molyneaux, James

  Renton, Tim (Mid-Sussex)

  Spence, John

  Moore, John (Croydon C)

  Rhodes James, R.

  Spicer, Michael (S Worcester)

  More, Jasper (Ludlow)

  Ridsdale, Julian

  Stainton, Keith

  Mudd, David

  Rifkind, Malcolm

  Tebbit, Norman

  Nelson, Anthony

  Roberts, Michael (Cardiff NW)

  Temple-Morris, Peter

  Neubert, Michael

  Roberts, Wyn (Conway)

  Thomas, Rt Hon P. (Hendon S)

  Newton, Tony

  Ross, William (Londonderry)

  Townsend, Cyril D.

  Onslow, Cranley

  Rost, Peter (SE Derbyshire)

  Viggers, Peter

  Page, Rt Hon R. Graham (Crosby)

  Sainsbury, Tim

  Wall, Patrick

  Percival, Ian

  Shelton, William (Streatham)

  Weatherill, Bernard

  Peyton, Rt Hon John

  Shepherd, Colin

  Wells, John

  Pink, R. Bonner

  Shersby, Michael

  Wiggin, Jerry

  Powell, Rt Hon J. Enoch

  Silvester, Fred

  Winterton, Nicholas

  Prentice, Rt Hon Reg

  Sims, Roger

  Younger, Hon George

  Pym, Rt Hon Francis

  Sinclair, Sir George

  Raison, Timothy

  Smith, Dudley (Warwick)

  TELLERS FOR THE NOES:

  Rathbone, Tim

  Smith, Timothy John (Ashfield)

  Mr. Peter Morrison and

  Renton, Rt Hon Sir D. (Hunts)

  Speed, Keith

  Mr. Jim Lester.

  Question accordingly agreed to.
  Clause 66 ordered to stand part of the Bill.

Schedule 9

  INTERVENTION BY SECRETARY OF STATE IN PLANNING MATTERS
  Amendment made: No. 98, in page 68, line 28, after 'matter', insert 'concerning Wales'.—[Mr. John Morris.]
  Schedule 9, as amended, agreed to.
  Clause 67 ordered to stand part of the Bill.

Clause 68

  TRANSFER OF PROPERTY
  Amendments made: No. 99, in page 28, line 18, leave out '(a)'.
  No. 100, in page 28, line 20, after 'transfer', insert
  'or, as the case may be, the granting of the rights concerned'.—[Mr. John Morris.]
  Clause 68, as amended, ordered to stand part of the Bill.

Clause 69

  STAMP DUTY
  Amendment made: No. 101, in page 28, line 38, leave out from 'made' to 'the' in line 39 and insert 'by, to or with'.—[Mr. John Morris.]
  Clause 69, as amended, ordered to stand part of the Bill.
  Clauses 70 and 71 ordered to stand part of the Bill.

Clause 72

  DETERMINATION OF ISSUES AS TO ASSEMBLY'S POWERS
  Mr. Timothy Raison: I beg to move Amendment No. 315, in page 29, line 16, at end add
  'or whether the failure to take any action constitutes a breach of the law'.
  The First Deputy Chairman (Sir Myer Galpern): With this amendment we are to take Amendment No. 342 in page 29, line 16, at end add
  'and without prejudice to the foregoing, the Attorney General and any other person may institute and the Assembly may defend proceedings seeking a determination of any question whether the Assembly is in default in the fulfilment of any duty placed on it or transferred to it by this Act and seeking an oder requiring the fulfilment of such duty, provided that no such proceedings shall be instituted by any person other than the Attorney General unless that person is or would be aggrieved by such default or has an interest in the fulfilment of such duty.'.
  Mr. Raison: The Committee will agree that the clause is very important. It supplements the limited provisions of Clause 35, which relate only to reserved matters or to matters to do with the European Community. Clause 72 empowers the Attorney-General to take proceedings against the Assembly if it exceeds or proposes to exceed its powers. I think that that provision is entirely right.
  However, the clause does not provide a mechanism for ensuring that the Assembly carries out the law of the land. In a sense it can be said that it covers sins of commission but does not cover sins of omission. I am told by one of my hon. and learned Friends that it covers malfeasance but does not cover non-feasance. My

  381
  amendment seeks to do that. It seeks to cover failure by the Assembly to carry out any action, within its own terms, which is a part of the law of the land. As I understand it, the amendment of my right hon. Friend the Member for Cambridgeshire (Mr. Pym) is also concerned essentially to do the same thing.
  Perhaps I may say in parenthesis that my amendment takes two lines to say what it has to say whereas my right hon. Friend's amendment takes nine to say what he wants to say. I appeal to my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton), who wrote a report on this matter, for his support. I think that after writing his report he must agree that a two-line amendment is invariably better than a nine-line amendment. But I have a nasty sneaking feeling that there will be some lawyers or clerks in the Committee who will say that the nine-line amendment is necessarily better than the two-line amendment.
  The problem that my amendment seeks to discuss arises from the nature of this rather absurd Bill. The essential ingredient of this Bill, unlike the Scotland Bill, which was bad enough, is the attempt to separate the law-making from the executive power.
  Those who argue that we are talking in this Bill about very much the sort of relationship that exists between central and local government in my view have got it quite wrong, because the Welsh Assembly is meant to take over certain of the powers, which may include supervisory powers, of central government. In no sense is that Assembly to be seen as a variant on local government.
  It seems to me that if we are to have the scheme which is put forward in the Bill it is absolutely essential that there should be some power of the type I am proposing. Without such a power, the laws could become a mockery and Parliament—this House and the other place—could be made to look impotent.
  It is also possible that we could have a Welsh Assembly which could use non-compliance with, or non-enforcement of, the law as an important political weapon. I do not think that if we have a Welsh Assembly it will normally seek to flout the law of the land. I believe that by and large it will be responsible. It may occasionally be committed to views
  382
  which I rather deplore, but I think that it will be perfectly serious.
  However, when we are making constitutions, as we are now, we have a duty to consider the worst possibilities rather than assume that everything will be carried out in an atmosphere of airy congeniality and good wishes. Therefore, it is entirely proper that, as I have said in previous debates, we should be prepared for things going wrong. That, essentially, is what my amendment is about.
  Before saying a little more in the development of my case, I want to raise a question to which we should have an answer, even though the answer may well be fairly obvious. The question that I should like to put to the Attorney-General, who I am glad to see taking part in the debate, is this. Is it the case that the Assembly's actions can effectively be only actions that are specifically assigned by law to the Secretary of State? In other words, if one is considering the powers of the Assembly which are transferred to it, is it fair to say that those powers are simply those which our existing laws say are responsibilities that lie with the Secretary of State?
  9.45 p.m.
  In the major fields of education, housing or health, does the Assembly have any powers except those which, under our existing statutes, are assigned to the Secretary of State? I do not think that I need labour the point. As the Attorney-General knows better than I do, in any statute we are liable to find certain duties which fall on local authorities, and other provisions which say that the Secretary of State shall or may—it may be a power or a duty—do such and such.
  If I understand the Government's scheme correctly, what is transferred to the Assembly has nothing to do with what the local authority is required to do but has entirely to do with what the Secretary of State is required to do. Often the job of the Secretary of State is to make sure that the local authority does what it ought to do. I should like the Attorney-General simply to clarify this point, to make it clear that what we are talking about is simply the transfer of the powers of Ministers to the Assembly rather than in any sense giving the Assembly a whole range of activities within the devolved fields.

  383
  I suppose it is the case, therefore, that any action handed over to the Assembly which is not assigned by law to Ministers is technically ultra vires. The Assembly in itself has no control over whether local authorities provide education or housing or social services or services for the disabled—except in so far as the existing laws say that the Secretary of State shall make sure that the local authorities provide services for housing, education, the disabled, or whatever it may be.
  I hope that I have made that point clear enough for the Attorney-General to be able to answer. It seems to me that there is confusion about this question. In talking about the supervisory role of the Secretary of State, I mean not just those rather sinister powers which sometimes appear at the back of legislation but the financial powers which have a great deal to do with making sure that the local authorities do what the Government want them to do.
  It should be clearly understood that the Assembly cannot override the law. There is still some public misapprehension on this point. To support that statement, I shall quote briefly from an article which appeared in New Society on 13th April 1978, entitled "A Welsh Echo" by Gavin Weightman. He states:
  "Wales abolishes its area health authorities, new town development corporations (both of them) and its Central Advisory Council for Education.… In fact, there are no firm prospects of the proposed Welsh Assembly doing any of these things.… The point is that, after devolution, it could if it wanted to."
  I believe that those statements are wrong and that the Welsh Assembly could not abolish its area health authorities, it could not abolish its new town development corporations, and it could not abolish its Central Advisory Council for Education. Indeed, I have a sneaking suspicion that Wales does not have a Central Advisory Council for Education. It is on exactly the same Vote as England, which by statute is meant to have a Central Advisory Council for Education but which since the days of the Plowden Committee, on which I had the honour to sit, has been in abeyance and therefore in breach of the law. I should be grateful if the Attorney-General would confirm that the statement put forward in the article that I have quoted is an incorrect statement and a misunderstanding of the position.
  Mr. Hooson: Of the two new town development corporations, one has already been absorbed into the Development Board for Rural Wales.
  Mr. Raison: I will not dispute that. I am trying to get at a more important point in this context, which is that if an Act of Parliament says that there shall be a central advisory council, or area health authorities, or new town development corporations, it is not within the purview of the powers of the Assembly to say "No, we shall not have one after all." I may be wrong about new town development corporations. I do not claim to be an expert in this matter. But it is very important that the public should understand the nature of the powers which are put forward in the Bill.
  Having raised that point, I should like to turn to one or two specific examples of where these sins of omission might occur. Basically, they must occur where the law, in effect, says that the Secretary of State "shall" do such and such. In other words, what we are talking about—if I understand the position correctly—is not what appear in Bills as "may" clauses but "shall" clauses. I am referring to those matters where there is a clear duty on the Secretary of State to behave in a particular way.
  Where the law simply says that a local authority shall do something—or that an individual shall or shall not do something—I imagine that that is a matter for decision by the courts. What we are concerned about is the situation where the Secretary of State has a particular burden.
  I should like to give one or two examples of what I have described as "shall" clauses. It is quite difficult for a non-lawyer Back Bencher, unarmed with research assistants and so on, to comb the statute books as thoroughly as Ministers would if they were in an equivalent position. Life is too short, and my knowledge of the law of the land is too limited, to do more than bring forward one or two specific examples.
  One example which I found was in the Town and Country Planning Act 1971 where Section 24 says that:
  "The Secretary of State shall by order … provide for the granting of planning permission".
  This refers to what are generally called general development orders. In other

  385
  words, that particular Act does not say that the Secretary of State "may" provide by order for the granting of planning permission. It states that he "shall".
  I do not envisage that the Welsh Assembly would seek to upend, or not to implement, that particular notion. But it is just possible that it might take a totally different view of planning requirements from that which is embodied in the law of Britain as it stands. It is reasonable that we should be sure that the Assembly is not able to honour this particular law in the breach rather than in the observance.
  Better examples can perhaps be found in the National Health Service Reorganisation Act 1973, where there is a sequence of sections which lay duties, as opposed to powers, on the Secretary of State. Section 3 states:
  "It shall be the duty of the Secretary of State to make provision for the medical and dental inspection at appropriate intervals of pupils in attendance at schools maintained by local education authorities".
  Section 4 says:
  "It shall be the duty of the Secretary of State to make arrangements, to such extent as he considers necessary to meet all reasonable requirements in England and Wales, for the giving of advice on contraception,"
  and so on.
  Section 5 says:
  "It shall be the duty of the Secretary of State to establish by order in accordance with Part I of Schedule 1 to this Act—
  (b) authorities, to be called either Area Health Authorities or Area Health Authorities (Teaching) in accordance with the following subsection, for such areas in Wales and the said regions as he may by order determine;".
  Section 6 says:
  "It shall be the duty of the Secretary of State to exercise the powers conferred on him by subsection (1) of the preceding section and the following subsection so as to secure—
  (a) that the regions determined in pursuance of those subsections together comprise the whole of England, that the areas so determined together comprise the whole of Wales and those regions and that no region includes part only of any area;".
  As I have said, I do not think that it is likely that the Welsh Assembly would want to overthrow any of these provisions, but it might. It might decide that it does not wish to have that form of organisation for the National Health Service in Wales. In other words, it might decide that it is not prepared to enforce the law
  386
  of the land as embodied in the 1973 Act. Therefore, it is very important that we know where we are. The question which I put is, what will happen if the Assembly decides not to operate the law as it is set out?
  Very good examples of the problem are to be found in education, a subject on which I touched in an earlier intervention. Sections 70 and 71 of the great 1944 Education Act lay a duty on the Minister, or Secretary of State as he now is, to provide a register of independent schools and to serve notice of complaint on independent schools which do not meet certain standards, and so on. In other words, the 1944 Education Act recognises the existence of the independent sector in education and says that the Secretary of State has certain duties which are in a sense duties of supervision but which are also duties of support for the independent sector in education.
  It is conceivable that a Welsh Assembly is elected which is not very keen on independent education and which decides that it does not wish to operate these provisions of the 1944 Act in terms of independent education. I am asking the Attorney-General to say what will happen in that case, and the purpose of my amendment is to make sure that it will not be within the power of the Welsh Assembly to take that kind of decision in flat defiance of the law as set out by Parliament.
  Mr. Dalyell: It will be possible for the Scottish Assembly to do precisely that.
  Mr. Raison: Of course, because the Scottish Assembly is a legislative body. I take the hon. Member's point, but for the moment I want to concentrate on Wales.
  I give one other example from education where perhaps the politics are the other way round. This, again, is an example on which I touched in an earlier debate. It relates to the provisions of the 1976 Education Act which set out to impose comprehensive education on every local authority regardless of whether the authority or the people of the area wished to have it. Section 1 of the 1976 Act provides that local education authorities must have regard to the comprehensive principle. But, interestingly enough, when it comes to the way in which that is to be enforced, it gives the Secretary of

  387
  State only a power and not a duty to enforce.
  Up till now, I have been talking about areas where the word "shall" is used and there is a duty. Now there is a duty on the local authority to have regard to the comprehensive principle, but there is only a power with the Secretary of State to make sure that the provisions of this Act are carried out.
  Sir David Renton: What my hon. Friend has said of the Secretary of State would appear under Clause 72 to be equally true of the Attorney-General. He is merely given power—he "may" institute and the Assembly "may" defend proceedings for the determination of any question. If the object of the Attorney-General being mentioned in the Bill in this way had any force, one would have thought that he would have been placed under an obligation so as to ensure that the statute was observed.
  Mr. Raison: That is an extremely important point. I was not proposing to touch upon this question of the place of the Attorney-General. He does not appear directly in my amendment, and I have the feeling that my hon. and learned Friend the Member for Cleveland and Whitby (Mr. Brittan) will say a little about the Attorney-General specifically. So I shall not be drawn, other than to say that is an important part of this debate.
  I was saying that the 1976 Education Act opened up the possibility that local authorities in Wales might decide not to implement the provisions of that Act. The Assembly might be sympathetic the other way rather than with the views of the present Government. It might therefore do nothing about making sure that the local authorities operated the provisions of the 1976 Education Act. Although in principle I should be delighted if that occurred, I hardly feel that the present Government would be happy with a situation where it was possible for both local authorities and the Welsh Assembly to defy the intentions if not the strict letter of the 1976 Education Act.
  Sir A. Meyer: Will my hon. Friend agree that particularly in education there is potential for conflict very near the
  388-90
  surface. In many parts of Wales although there are—
  It being Ten o'Clock, The CHAIRMAN left the Chair to report Progress and ask leave to sit again.
  Committee report Progress.

  BUSINESS OF THE HOUSE
  Ordered,
  That the Motion relating to Ways and Means may be proceeded with at this day's sitting, though opposed, until any hour.—[Mr. Frank R. White.]

  WALES BILL
  Again considered in Committee.
  Sir A. Meyer: As I was saying, there is a potential for conflict here in that if there is a majority in the Assembly which is determined to enforce comprehensive education in the strict sense of the word, it might take objection to the emergence of something that was close to a grammar school. On the other hand if there is a majority that is devoted to the interests of the Welsh language, the structure of Welsh education would move far from the comprehensive principle.
  Mr. Raison: I am grateful to my hon. Friend. That is an interesting point.
  What would happen if the Assembly rejected the 1976 Act in principle and did not ensure that it was enforced? I do not think that the Assembly will spend all its time refusing to operate the law of the land but there are people wanting such an Assembly whose passionate desire is to leave the United Kingdom. There are some, like the hon. Member for Merioneth (Mr. Thomas), who is sitting on my left, who wants to see Wales as an independent country in some sort of mystical relationship with England. We must recognise that all sorts of things could happen.
  When we are making a constitution we should be prepared for difficult moments rather than rely on good will the whole time. There is a serious deficiency in the Bill as it stands. The Attorney-General has power to intervene only when the Assembly commits sins of commission. The fact that the Bill does not apply to the Assembly's failure to carry out the law of the land is a grave deficiency. I hope that the Attorney-General will recognise this and accept my amendment.
  Mr. Brittan: I hope that it will be convenient for me to speak also to Amendment No. 342 which is grouped with this amendment so that the Committee may consider them together. I entirely endorse everything that my hon. Friend the Member for Aylesbury (Mr. Raison) has said and I certainly support his amendment and the spirit behind it.
  He made some modest disclaimers at the outset of his remarks. He has no need of a lawyer to assist him and we have learnt enormously from his own research into education.
  Clause 72 enables legal action to be taken by the Attorney-General to stop the Assembly exceeding its powers but does not provide means for ensuring that the Assembly performs the duties conferred upon it by the Bill. We believe that this is an important gap in the machinery which needs to be filled to ensure that the Assembly can be prevented from not carrying out the duties that are imposed upon it.
  The essential difference between Amendment No. 315 and Amendment No. 342 is that the latter amendment gives the right to bring action not only to the Attorney-General but to some other people, the identity of whom I shall go into in a moment. This relate, to the intervention of my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) who pointed out that the clause is permissive in that the Attorney-General is not under any duty to institute proceedings. Even if Amendment No. 315 were accepted and the scope of the clause were extended to non-feasance as well as to malfeasance, it would still not impose a duty on the Attorney-General.
  There are two ways in which that problem could be dealt with. One is the way I am proposing in Amendment No. 342 which is, in appropriate circumstances, to give persons other than the Attorney-General the right to take such action. The second alternative, I suppose, would be to impose a duty on the Attorney-General, but as the whole point at issue is whether the Assembly has been in breach of its duties or has failed to carry them out, the only way in which the Attorney-General can have a duty
  392
  imposed upon him is to use words such as "The Attorney-General shall institute and the Assembly may defend proceedings for the determination of any question if it appears to the Attorney-General that anything done or proposed to be done by the Assembly is not within its powers or that the Assembly has failed to carry out its duties."
  That would leave the discretion to the Attorney-General in the sense that he would have to be satisfied in his own mind that there had been a breach of duty because there could be no possibility of an objective requirement that the Attorney-General should institute proceedings if there had been a breach because it could only be his opinion whether there was a breach. It would always be for the courts to decide, in the last analysis, whether that were so or not.
  I believe that it is preferable to follow the formula in Amendment No. 342 which gives people other than the Attorney-General the right to attest to the question whether the Assembly has failed to carry out a duty that has been conferred on it.
  Before going into the subject of that formulation, I wish to touch on one or two of the other matters dealt with by my hon. Friend the Member for Aylesbury. I should like tentatively to put forward a view and to attempt to answer some of the questions that he raised, if only to give the Attorney-General the opportunity to say whether he accepts what I have said on these points.
  Mr. Dalyell: Quite apart from courts of law, can the hon. and learned Gentleman imagine what he would do if he were a Welsh politician elected to the Assembly and wished to make speeches if the Attorney-General sought to interfere with what might be points of law but undoubtedly would be seen to be points of politics?
  Mr. Brittan: There would certainly be controversy on any occasion that the Attorney-General sought to exercise either the powers conferred upon him by Clause 72 or the slightly extended powers sought to be conferred on him by both these amendments. There is no way of avoiding that if there is to be devolution of this kind.

  393
  There are only two alternatives. Either one does not have a system of judicial review at all, in which case there is nothing to stop the Assembly exceeding its powers and doing whatever it likes, which would be quite intolerable and unacceptable, or alternatively a procedure of judicial review which at least means that in the last analysis the decision whether the Assembly has exceeded its powers is taken by the courts. Nevertheless, the raising of the issue is likely to be highly controversial politically. That is the essence of the scheme. As we are reminded so often, there is no way of avoiding it.
  Before dealing with the differences between Amendments Nos. 315 and 342 in slightly more detail, I shall seek to express a view on the issue raised by my hon. Friend the Member for Aylesbury—namely, whether it is right that the Bill seeks to confer on the Assembly the powers of the Secretary of State for Wales.
  I venture to suggest that the Bill does much more than that. That is made clear in Clauses 10, 11, 12, 13 and 14. In Clause 10 the Assembly is given the powers as regards the charges given to Ministers of the Crown that are
  "specified in the first column of Schedule 2".
  In Clause 11 the Assembly is permitted to do anything that
  "it considers appropriate to support museums, art galleries, libraries, the Welsh language, the arts, crafts, sport and other cultural and recreative activities".
  That is in no way confined to what Ministers may now do.
  Under Clause 12 the Assembly may
  "make arrangements for the provision in Wales for services for the war disabled and (b) may make grants towards the carrying on of public passenger transport undertakings in Wales".
  That is not confined to what Ministers may do. Under Clause 13 the Assembly may
  "review the structure of local government in Wales".
  I know of no power of a Minister to do that.
  Even more important than that, the Committee will recall the debates that we have recently concluded on Clause 61, which enables powers at present exercised by independent bodies of the sort
  394
  specified in the two parts of Schedule 7 to be transferred to the Assembly. Those powers at present are exercised not by Ministers of the Crown but by bodies such as the Forestry Commission and the Housing Corporation as specified in Schedule 7.
  If, therefore, an order is made under Clause 61, there may be a transfer to the Assembly of powers that have never been exercised by a Minister of the Crown. At the end of the day, we have a package of powers that it is fair to say is based upon, and the basic framework of which derives from, powers of Ministers of the Crown, especially the Secretary of State for Wales, but which, on the other hand, are considerably in excess of those powers. I see no move from the Treasury Bench so I suspect that my statement of the position is accurate.
  Mr. Raison: I am fascinated and flabbergasted by what my hon. and learned Friend has just said. He has raised something that I had not taken on board. It seems that under Clause 11 the Assembly
  "may do anything it considers appropriate to support museums, art galleries, libraries, the Welsh language, the arts, crafts, sport and other cultural and recreative activities".
  Surely that deserves, as my hon. and learned Friend is saying, a full explanation. Does it mean that the Assembly may say, for example, that only the Welsh language shall be used in Welsh schools without any statute to back that action? It may be that I have been unobservant but I never appreciated the enormous implications of the clause. We deserve an answer from the Attorney-General.
  Mr. Brittan: My hon. Friend has not been in the least unobservant. In fact, there has been nothing to observe. That is not because we have not noticed these matters or because we have not been vigilant. The reason is that the guillotine has fallen in such a way that it has been impossible to debate draconian provisions of the sort that I have outlined. It is at a late stage in our consideration of the Bill that we have to raise fundamental matters by a side wind and through the back door. That illustrates the argument that the hon. Member for West Lothian (Mr. Dalyell) has employed repeatedly and with devastating accuracy—that whatever provision of the Bill we examine there are underlying it problems of constitutional, political and legal magnitude

  395
  and scope that have not been faced by the Government and which the House of Commons rarely has an opportunity to deal with except on the surface.
  I revert to the provisions of Clause 72. As there is no legislative power in the hands of the Welsh Assembly there may be no objection in principle to judicial review. However much the analogy with local government may be painful to those who seek to make political mileage out of the creation of an Assembly which, for political purposes, if it has to have any point at all, must be presented as something more than another tier of local government, in constitutional terms and as a creature of Parliament with no legislative independent existence, it must necessarily be subject to judicial review.
  10.15 p.m.
  It is interesting that normally the problems whether the Assembly has exceeded its powers will arise in ordinary proceedings between citizens or between a Government Department and a citizen. The point can always be taken that the power that the Department purports to rely upon is ultra vires the Assembly and therefore the law against the individual citizen should not be enforced.
  That is the normal way in which questions of vires are likely to arise, but there may be a question of public intervention in advance to stop anything being done or to seek a general determination of vires questions before they have crystallised in a particular case.
  I understand that it is to establish the standing of the Attorney-General in bringing such proceedings that Clause 72 has been introduced. Without that clause, it might be argued that he had no standing. However, there seems to be the gap that although this provision could deal with questions of malfeasance, it cannot deal with questions of nonfeasance.
  While we are considering the normal way in which judicial review operates, will the Attorney-General explain why in the Scotland Bill special provisions and a whole schedule were introduced to deal with the question of the stage at which the constitutionality of what was being done by the Assembly could be challenged? There is nothing about that in this Bill except the provision that the Attorney-General should institute proceedings
  396
  that are the equivalent of the taking of the matter to the Judicial Committee of the Privy Council before Scottish Assembly legislation can be enacted.
  I take it that the only difference and therefore the only justification for the absence of the special procedure and the Judicial Committee is that there is no legislative devolution to the Welsh Assembly. I see that in relation to the Judicial Committee—it may be thought inappropriate to use the special court in that way—but I do not see how the same point arises in relation to the special procedure for considering questions of vires.
  Although the legislative point does not arise, questions of vires will arise and it may not be appropriate to treat the Welsh Assembly which, if it is to be anything at all, will be an expression of national democratic opinion, in the same way as any other body set up by the House where the question of vires is considered in the courts in the ordinary way without any special procedure. I throw that open for consideration.
  Mr. Dalyell: During the three recent Divisions, I wandered over to another place where noble Lords were discussing precisely this special procedure in the Scotland Bill—and I heard it being knocked into a cocked hat by Lord Scarman, Lord Wilberforce, Lord Dip-lock and others. I must not talk too much about another place, but this reveals again how many loopholes there are in the Scotland Bill.
  Mr. Brittan: I am not surprised to hear the news that the hon. Gentleman brings from elsewhere. I was well aware of the anxieties on those points that were expressed in this House. The problem is that the procedures are full of difficulties, but the political problem is that without such special procedures, difficulties will arise if points of constitutionality or vires arise in ordinary litigation and are dealt with without special procedures.
  However, the real point of difference is that Amendment No. 342 is not merely to provide a few more lines of verbiage but to provide an opportunity for persons other than the Attorney-General to institute proceedings to see whether or not the Assembly is in default and has failed to carry out a duty that has been imposed on it.

  397
  My hon. Friend the Member for Aylesbury gave examples of duties concerning education which are imposed at present upon Ministers but which will be transferred to the Assembly. One could go further in the same field and refer to Section 100 of the Education Act 1944, which requires the Minister, now the Secretary of State and in future the Assembly for Wales, by regulations to make provision for payments to education authorities for a whole variety of purposes. It may well be that the Welsh Assembly will disagree with some of the purposes prescribed under Section 100 and will feel disinclined to make regulations for such provision.
  Similarly, the voluntary schools are totally dependent for the bulk of their payments for their maintenance on a payment by the Secretary of State. If that is transferred to the Welsh Assembly and the Assembly does not support voluntary schools, again, without a power to ensure that the duty is complied with, difficulties—to put it mildly—could arise.
  Mr. Ivan Lawrence: Will my hon. and learned Friend help me with what I seem to see, at first blush, as a rather strong objection to his amendment? It extends the power of access of criticism to the situation of conflict beyond that of merely the Attorney-General to any other person, bearing in mind the political ramifications that exist, and yet the Attorney-General will have to consider these moves to see whether it is appropriate for the procedures to be followed. Can one not see here an immensely increased burden of work upon the Attorney-General, which it would be impossible for any one man to bear? If he tried to bear it, he would very soon be driven into his grave. If one considers the ramification of that, surely one must conclude that it is a proliferation of assistant Attorneys-General. We might have to get back to a situation in which we have, as in Cromwell's day, an Attorney-General for Wales—
  Sir David Renton: Henry VIII.
  Mr. Lawrence: —with all the bureaucracy that that involves, and one just gets into a madhouse. Perhaps my hon. and learned Friend will incline his mind to that point.
  Mr. Brittan: I am tempted to agree, because the prospect is so horrific that even if there were the faintest chance of it occurring, one would wish to prevent it. However, in candour, I do not think that in this case the Attorney-General would have too great a burden upon him, and certainly no extra burden as a result of the amendment, because I suggest that the burden is on him already under Clause 72. My hon. Friend is right in the sense that the burden is a great one, but it is not rendered greater by Amendment No. 342 because under Clause 72 the Attorney-General may institute proceedings to see whether anything has been done which is in excess of the powers of the Assembly.
  It is true that the Attorney-General is not obliged to do that, but I cannot imagine that any responsible Attorney-General would not consider it part of his duty to give serious consideration to the acts of the Welsh Assembly and to take action if he thought that the Assembly was acting in excess of its power and that there was no way of stopping that other than taking legal action.
  It may be that the Attorney-General will find it possible to advise the Committee whether he would regard it as part of his duties, under the clause as it stands, to consider whether he should act in relation to the acts of the Welsh Assembly, whatever decision he ultimately comes to.
  On the point made by my hon. Friend the Member for Burton (Mr. Lawrence), I do not see that any extra duty is imposed on the Attorney-General by allowing others to institute proceedings. If the Attorney-General has to consider whether to act, that is the end of his duty. But then the question is whether others should be allowed to act. I have confined the definition of persons who may bring proceedings to a limited category—
  "no such proceedings shall be instituted by any person other than the Attorney-General unless that person is or would be aggrieved by such default or has an interest in the fulfilment of such duty."
  The Attorney-General does not have to consider whether other people have the right to bring such proceedings, because he is not required under the amendment to operate any filter. They do not have to persuade him. They have the right, and the court has to decide whether they have the standing. I recognise that of

  399
  necessity the language that is used must be of a general kind and cannot precisely describe the people who will have the standing, but the words which are used, as the Attorney-General will know so much better than I do, frequently appear in statutes on a whole variety of matters conferring standing on people. One thinks of local government statutes which talk about "interested people" and other statutes which talk about "aggrieved people". Although those phrases are necessarily general, the courts have not found it an impossible burden to distinguish between those who genuinely have a legal interest or are aggrieved and those who have not.
  Without going into the technicalities, one could fairly summarise it by saying that for these purposes persons aggrieved would be persons who would be affected in some way over and above the generality of the population of Wales. Who that would be would depend on the particular Act. But it does not seem that any tremendous harm is done by giving such people at least the opportunity to test in the courts whether the Assembly has failed to carry out its duty. The courts will readily be able to throw out those who either do not have the standing that is required to mount the proceedings or, when they do mount them, are shown to mount a challenge to the authority and vires of the Assembly which, on analysis, does not stand up. If the Assembly plainly has acted within its powers, the court can readily throw out the action.
  It seems that unless we are content simply to leave the matter to the Attorney-General without any possible challenge to it other than a political challenge in the House of Commons, it is right that there should be some extra opportunity to take the matter to court. If the Attorney-General questions the wording of the amendment and accepts the spirit of it but would like the benefit of advice from parliamentary draftsmen to alter the phraseology, no one will be more pleased than I.
  The alternative is every time to have even more political battles than the hon. Member for West Lothian fears, so that the question whether the Attorney-General ought to have acted but did not act necessarily has to be the subject of a challenge and debate in the House rather than possibly taking some of the wind
  400
  out of it by having another person who is genuinely interested or aggrieved seeking to move and persuade the court that the Assembly has failed to act.
  10.30 p.m.
  Mr. Dalyell: The issue raised by the hon. Member for Aylesbury (Mr. Raison) on the sins of omission and commission of the Assembly is very important. Therefore, am I not at once entitled to ask: where are all those people who want it? We have the Attorney-General, my right hon. and learned Friend the Secretary of State for Wales, his PPS, the Under-Secretary of State and no one other than a dissident Scot who, to use the words of Sir George Sharp, the local government heavyweight in Scotland, thinks that the schemes are crazy, impractical and useless.
  The Attorney-General must not take it amiss if I say that he is extremely welcome to our debate. It is high time that my right hon. and learned Friend, with all his authority, came here to give authoritative legal opinions. I do not wish to trespass upon order but I must say that I have just been listening to the Lords debating some of the issues which the Commons never discussed. I am not criticising the Commons lawyers, but when I heard the speeches of Lord Wilberforce and Lord Scarman, and the interjections of Lord Diplock and Lord Dilhorne, and the non-answer from the Lord Chancellor—it was a very charming answer but a non answer—I really wondered what sort of mess we have got into.
  Once the legal heavyweights applied their minds, it was revealed yet again that there are not manholes but yawning opencast gaps of enormous proportions in what we are discussing. The gaps are as large as the gaps in the Government Benches. I stood at the Bar of the other place and heard these serious men saying that of course this cannot be worked unless we have a constitutional court.
  I am not sure that the House of Commons will be pleased when it wakes up and finds that the House of Lords suggests that the only way round the problem is to create a constitutional court as a side-wind to the Scotland Bill—as an afterthought. I have a suspicion that if we are to have a constitutional court in this country it will not come as a sub-amendment at the Report stage of the Scotland Bill. It needs a great deal more discussion.
  Mr. Gow: In fairness to the Attorney-General, is it not right to say that this is the first appearance from him on this Bill, that he never appeared at all during the Scotland Bill, and that we had only intermittent appearances from the Lord Advocate? Should not the hon. Member for West Lothian (Mr. Dalyell) pay tribute to his right hon. and learned Friend rather than rebuke him?
  Mr. Dalyell: I was welcoming the Attorney-General with the generosity of spirit for which I am well known on this subject. Seriously, it is high time that other Ministers realised what is up. I hope that they have been reading the debates in the other place—particularly the legal contributions—with the assiduity of some of us.
  I shall put two questions and then sit down. I shall cut out the long speech that I might otherwise have made. First, is it possible to resolve these problems at all without a constitutional court? I was persuaded by Lords Wilberforce and Scarman—who know far more about these matters than I ever shall—as to the necessity of it. We should have some comment on the question whether the Government at some stage will give their view, in the Commons, about the merits or otherwise of having a constitutional court.
  It is fair for a non-lawyer to say that when this case has been deployed powerfully by some of the legal heavyweights in the land at least it requires an answer. I do not put it any higher than that.
  Mr. Nicholas Fairbairn: This matter is more serious even than the hon. Member for West Lothian (Mr. Dalyell) has said. I hope that the Attorney-General will not take it amiss if I say that the major constitutional problems that arise from this Bill, and even more from the Scotland Bill, have not received one whisper of attention from a Government Law Officer. Compare that with what happens when we have a quasi-constitutional court in the other place. It is an abominable fact that the Government are introducing two measures with impossible legal conflicts, and we have not heard so much as a muted word from any of the Law Officers.
  Mr. Dalyell: The truth is that the Scotland Bill has been absolutely savaged.
  402
  As far as I can gather from the Government Front Bench in the other place, there was no answer to the questions. It was floundering in seeking to reply, simply because there was no reply. The Lord Chancellor's reply was charming and ridiculous. I shall leave it at that.
  When it comes to a question of this House and the Attorney-General ordering another Assembly not only not to do things but to do things, what kind of reaction is that likely to provoke? Here we come back to the political dimension. The idea of the Government, in the form of the Attorney-General, ordering an Assembly which will undoubtedly eventually be called a Parliament to do certain things will provoke just the kind of resentments upon which the nationalists will feed. Well may the hon. Member for Caernarvon (Mr. Wigley) smile. This will play into his hands. Think of all the speeches that he could make about the way in which the Assembly had been ordered by the Attorney-General to do this or not to do that.
  It may not have been the Government's intention, but as I understand it from lawyers this can be construed in a perfectly understandable way to mean that never will Ministers have had such power to order people to do things. These powers will be greater than the powers that they have over local authorities at present. I do not know how Members of the Welsh Assembly will enjoy that. I promised not to make too long a speech, but really, really, really!
  Sir David Renton: It may surprise the hon. Member for West Lothian (Mr. Dalyell) to hear me say that, if anything, he has understated the legal complexities with which the Welsh Assembly will be confronted. This clause, under which certain powers are given to the Attorney-General, should require us to take stock of the legal position in which the Assembly will find itself. In spite of the considerable powers which are plainly stated in the Bill, the Assembly will find itself "cabin'd cribb'd and confin'd" in various ways. It will find that Ministers will be competing with it—that Ministers and, necessarily, the ombudsman will be acting as overseers and watchdogs. It will perhaps need what we have not had in this country for 400 years—an Attorney-General for Wales to try to sort out the difficulties for it. I only

  403
  hope that he will be of greater distinction than the last one—Mr. Rich.
  My hon. Friend the Member for Aylesbury (Mr. Raison) invited me to comment on the drafting of his amendment. He has been exceedingly skilful in achieving his purpose with the greatest possible brevity. I hope that I do not appear disloyal if I say that on balance I prefer his two lines to the first five lines of the Front Bench amendment.
  On the other hand, the proviso to the Front Bench amendment raises important constitutional issues which the House dare not ignore. It is one of the basic rights, not only of an Englishman or a Welshman but of a Scotsman, to have recourse to the courts and not merely to depend on the Attorney-General to take to court a matter in which he
  "is or would be aggrieved by such default or has an interest in the fulfilment of such duty."
  The rights to sue, to prosecute, to maintain and defend the basic freedoms are not even granted by Parliament—they have been assumed throughout our long history.
  If the Attorney-General—any AttorneyGeneral—is given the sole right in Wales to challenge in the courts any overenthusiastic use of its powers by the Assembly we shall have failed in our duty. I hope that the right hon. and learned Gentleman will comment specifially on the proviso that I have mentioned.
  Will the right hon. and learned Gentleman also explain the meaning of the first words of Clause 72—
  "Without prejudice to any power exercisable apart from this section"?
  What powers are envisaged? Are they the powers of the Secretary of State, for example? In our debates on Clause 35, my hon. and learned Friend the Member for Cleveland and Whitby (Mr. Brittan) referred to the "politically charged decisions" that the Secretary of State would have to make. Are we to assume that when the Secretary of State has exercised a power under the Bill, that is the kind of power that the Attorney-General will have to accept, whether or not, as an honest lawyer, he agrees with it?
  That question is basic to the two amendments, to our understanding of the clause, and to the famous position of the Law Officers of the Crown, the best of
  404
  whom have been prepared to tell the whole Cabinet when they were wrong. That has not often happened, and it has not often needed to happen, but it is vital for the freedom of this country that it should happen. Suppose that the Secretary of State presumes to exercise his powers in a way which unjustifiably interferes with the powers which Parliament will have provided that the Assembly should enjoy—if the Bill gets the Royal Assent and the assent of the people of Wales in the referendum. In such a conflict, where will the right hon. and learned Gentleman stand?
  The hon. Member for West Lothian posed a question which I do not think it is really incumbent upon us to answer. He no doubt put it to his right hon. and learned Friend the Attorney-General. But as I have followed the hon. Gentleman in this debate and have so greatly admired his pertinacity over both the Scotland Bill and this Bill in challenging not only the Government but Parliament in order to make sure that what we are attempting to do is right, it may not come amiss if I venture to make a brief comment on the question that he posed.
  10.45 p.m.
  I am expressing a purely personal opinion when I say this. The courts of this country—the High Court and the Court of Appeal, with final appeal to the House of Lords—are in essence all-embracing in their jurisdiction in terms of the various branches of the law. We have not so far contemplated the idea of a special constitutional court. I think that if we were to have a federal constitution we would have to have that, by analogy, perhaps with the Federal Supreme Court of the United States, in order to see whether vires and the entrenched provisions of such a constitution were being observed.
  But when we are devolving to Wales or to Scotland, I would rather see—I repeat that I am speaking purely for myself—the Scottish courts interpreting the application of the devolution Act, if it ever becomes so, in Scotland, and the courts of England and Wales interpreting the devolution Act for Wales. Anyway, it would be very interesting to know whether the Government even have a mind on this matter. If they have, let us know what it is.
  The Attorney-General (Mr. S. C. Silkin): It may be of comfort to the right hon. and learned Gentleman to learn what I am told. I was not present in the other place when my hon. Friend the Member for West Lothian (Mr. Dalyell) was. In relation to what my hon. Friend described as the heavy legal talent in that place, I am told that Lords Wilberforce and Scarman favoured a constitutional court and that Lords Hailsham, Diplock and Morris took a different view. On a Judicial Committee composed in that way, that it is a majority of three to two against.
  Sir D. Renton: I am grateful for that intervention. It clears the air a great deal, and it means that we should be discussing the amendments in the context which we all understood when my hon. Friend the Member for Aylesbury moved his amendment, that we are considering powers which might be exercised by an Attorney-General in the courts of this land as they are and not as they might be.
  Sir Raymond Gower: Did my right hon. and learned Friend note that the Attorney-General's response did not indicate whether the Government had ever given any thought to this matter?
  Sir D. Renton: I had hoped that in the politest way possible I had indicated that one did wonder whether the Government had ever done so.
  However, I have said enough. It would be helpful if the right hon. and learned Gentleman were fortunate enough to catch your eye fairly soon, Mr. Godman Irvine, and therefore I shall sit down.
  Mr. Peter Thomas: My intervention will be very short. It is most unfair that the Attorney-General, who apparently has made his first appearance in the Committee, should have been under attack by both his side and the Opposition. Therefore, it is only right that there should be a short objective intervention.
  I hope that the right hon. and learned Gentleman will appreciate that these two amendments are put forward with a great deal of determination that something should be done to remedy a situation that inevitably requires to be changed.
  406
  Clause 72 is concerned with the institution of proceedings, and Clause 11 states the powers of the Assembly. My hon. Friend the Member for Aylesbury (Mr. Raison) thought that they were confined to the powers which the Secretary of State has at the moment. The Attorney-General will see that the Assembly may do anything that it considers appropriate to support, inter alia, the Welsh language. Perhaps the Attorney-General will apply his mind to what he might do, in the exercise of the powers set out in Clause 72, if an aggrieved person were to suggest to him that in the exercise of its powers in Clause 11 the Assembly had done something which caused considerable anxiety and distress to one or two people in Wales.
  My hon. Friend referred to what might happen in education. This is of some importance, because in Clause 72 the Attorney-General has discretion to institute proceedings. I do not agree with my hon. Friend, who suggests that it would be mandatory. That could not happen. I do not accept that that would be so. But the Attorney-General is placed in an impossible position, is he not, as the Attorney-General for England, if the Assembly, under its powers in Clause 11, does something which causes distress to a large section of the community in Wales?
  People may feel aggrieved, in that their interests have been affected and they are unable to take any action, because they believe that what has been done, although within the powers of Clause 11, may be outside what they consider to be the remit—if that is the word—of the Education Act 1944 in relation to the Assembly. There may, therefore, be something for the courts to decide. The Attorney-General would, as I have suggested, he placed in an invidious position. It would be a political issue, and he would have to decide under the discretion given to him in Clause 72.
  For that reason, although I had reservations about Amendment No.342 when I first saw it, I believe that it really has force. The power to institute proceedings is limited to a certain category of people, namely, people who are aggrieved and who would have to prove to a court that they were aggrieved before they could proceed. All those people have an interest, and the interest would have to

  407
  be proved. The Attorney-General should think about this. It is something that may cause a future Law Officer of the Crown in England considerable embarrassment, unless something similar to what is contained in the amendment is accepted.
  Mr. Dalyell: Does the former Secretary of State for Wales, from his ministerial experience, envisage any difficulties about an English Attorney-General being seen politically to intervene on what would be interpreted in some quarters as purely Welsh domestic issues?
  Mr. Thomas: I envisage that there might be difficulties in certain circum stances. I certainly hope that we are not entering into a period in which Wales will not accept the Law Officers of the Crown, as Wales has in the past. In fact, Wales has accepted not only institutions such as the Law Officers of the Crown but the law of England. Only a few years ago the relevant wording was changed to refer to the Assize Commission of England and Wales. This is something that we not only accept but nurture in Wales.
  Whatever development takes place, I hope that this Bill will not cause a rift, so that we shall say that we do not accept the Attorney-General for England and Wales. That is likely to be an embarrassment to the Attorney-General and his successors. I do think that something, such as is proposed in this amendment, should be thought of very seriously.
  The Attorney-General: The last remarks of the right hon. and learned Member for Hendon, South (Mr. Thomas) are remarks which must lie at the very basis not only of the Bill as a whole but of the purpose of Clause 72.
  Indeed, it is right that when we look at this clause and the powers generally which are thought to be necessary in a situation that we shall be facing when the Welsh Assembly is set up, we should look at it in the way in which the right hon. and learned Gentleman did. We are not facing a situation of, as it were, a hostile tribe; we are facing a situation in which there will be conferred upon the Welsh Assembly powers which are essentially powers of Ministers of the Crown.
  That is just as true whether we are looking at the powers of Ministers which are transferred or at the powers of prerogative
  408
  nature which are contained, for example, in Clauses 11 and 12 and, to a certain extent, Clause 13. Those are the sorts of powers which are exercised by Ministers of the Crown even if they step outside what is perhaps properly or constitutionally the subject of Ministerial powers as such.
  That is the first essential which one has to have regard to. As the hon. Member for Aylesbury (Mr. Raison) put it clearly and forcefully at the beginning of his remarks, we are not talking about a super local authority, or anything of that kind; we are talking about powers held, or capable of being held, by a Minister in this country which will be held in the same capacity by the Assembly in Wales as a result of the provisions in this Bill and, of course, of any future legislation under which other powers may be devolved to it.
  It is essential that that should be understood and recognised. Indeed, it is for that very reason that it has been thought necessary that this clause should appear in the Bill at all. In the ordinary way, when one is dealing with ministerial powers, one does not have the situation that the Attorney-General has the right to go to the court in order to question whether the use by Ministers of their powers is a proper use or not—whether it is ultra vires or intra vires.
  On the other hand, if one is talking about a local authority there is no doubt that Ministers—the Attorney-General in particular—have that right. But here we are talking about ministerial powers—powers which are the exact parallel of the powers which at present are held by Ministers of the Crown—a Secretary of State or other Ministers.
  Because it is recognised by the Government that it is desirable, in some way, to determine any conflict that may exist in future on the question whether the powers are those of the Secretary of State in London or those of the Assembly in Wales, notwithstanding that they are ministerial powers, this provision has been inserted in the Bill to enable the Attorney-General to—
  It being after Eleven o'clock. THE CHAIRMAN left the Chair to report Progress and ask leave to sit again, pursuant to Order [16th November].
  Committee report Progress; to sit again tomorrow.

WAYS AND MEANS

  VALUE ADDED TAX ON SUPPLIES BY WELSH ASSEMBLY
  Resolved,
  That section 19(4) of the Finance Act 1972 shall be amended by inserting before the words "and any part" the words "or of the Welsh Assembly".—[Mr. John Smith.]

  THORN ELECTRONICS (FACTORY CLOSURES)
  Motion made, and Question proposed, That this House do now adjourn.—[Mr. Snape.]
  11.1 p.m.
  Mr. Edward Lyons: On 5th April, Thorn Consumer Electronics Industries Limited announced firm proposals to close down in July its Bradford and Shipley television factories, leaving only an isolated design and development team of 80 engineers in Bradford. This cataclysmic decision, since the word "proposals" used by Thorn is merely cosmetic, will force 2,100 workers and executives into the dole queue, bringing misery to them and their families. It will also damage the work prospects of future generations of local school leavers, impoverish the Bradford region, and undermine the long-term competitive ability of the British television and components industry.
  Not a word of appreciation for the past services of its staff appeared in Thorn's official announcement. No vestige of serious concern for its staff—no element of loyalty or commitment to them—is yet obvious. The announcement was buttressed by the publication of some selective statistics seeking to show that technological change demanded massive cuts in overheads and mass sackings. Thorn's Bradford staff insist that the statistics are misleading.
  On the same day that the closure was announced, Thorn advertised in the local Enfield Press for 22 different types of worker under the savagely ironic heading,
  "It pays to work at Thorn."
  Those at Thorn have repeatedly and successfully enlisted the help of Government Ministers and local Members of Parliament in order to limit Far Eastern imports
  410
  and to prevent the opening of a television factory by Hitachi in Durham in competition with Thorn, but Thorn now discharges that debt of gratitude by treating Ministers and Members of Parliament alike with contemptuous indifference.
  There was neither advance consultation nor advance notice either to Ministers or to Members of Parliament, and Thom's thanks to both is to smash the Government's regional policy by closing its factories in an intermediate area, which Bradford is, and concentrating in the South-East.
  I naturally assumed that to close down of one of Europe's largest, most successful and modem colour television factories must mean that Thorn was in financial difficulties. So I looked at the 1977 Thorn Industries report. To my amazement I found that net profits, including television rentals, of the consumer electronics division were £57·4 million—a jump of nearly £10 million compared with 1976. Most of this came from rentals, but the chairman, Sir Richard Cave, said that a small increase in manufacturing profits had been achieved.
  Japanese imports have only 10 per cent. of the United Kingdom colour market, and since the PAL licensing system prohibits Japan from exporting to Europe colour sets over 20 inches, and since Hitachi was forbidden to manufacture here, one could scarcely imagine that here was a scenario for closure at Bradford.
  Undoubtedly, there have been technological advances but this trend is not new. If these advances alone endangered Thorn in Bradford, it is astonishing that Thorn did not say so months ago in its arguments to show what additional damage Hitachi's coming to Britain would do. The powerful argument that Thorn already needed to cut 2,000 people was never used in that debate, and MPs were permitted to assume that no Hitachi in Durham meant continued manufacture at the main Thorn factories at Gosport, Enfield and Bradford.
  This technological evolution cannot have taken Thorn by surprise. Therefore, I am sceptical about it as a reason for closure. After all, Thorn employs 74,000 people in the United Kingdom. It has plenty of room for relatively painless contraction by natural wastage, by phasing out the hundreds of those over 65 and by

  411
  voluntary redundancies. This course was not taken. Instead, there is evidence of a determination to close. Good television models, such as the 9000 and 9200, have been transferred from Bradford. Problem models such as the 9500 have been transferred to Bradford. The 9500 required 1,000 design changes while actually in production and the work force coped nobly, but the development costs were laid at Bradford's door.
  The suspicion must arise that Thorn wishes to close Bradford as part of a long-term design to withdraw from manufacturing and, instead, to import foreign sets for distribution through its profitable rental outlets. Even if this is not the case, Thorn's recent history, including the closure of the Skelmersdale television tube factory, with the loss of 1,400 jobs, does not indicate too robust a commitment to fight for Britain.
  Bradford employed more than 4,000 people in 1974. Now it is 2,200 and in July it may be none. Can Thorn be persuaded to change its mind? That is crucial for Bradford. Bradford has a first-class work force, working on the premises, with a brilliant design team. Industrial relations have improved dramatically over the past two years. The workers are capable of great things if they are not impeded by London management. But enthusiasm, skill and reputation for quality are only part of the answer.
  Thorn must spend more on research and development and forward planning. It is an utter disgrace that with its huge resources it is having to import 80,000 colour portables from Germany. Why? Because it fails to anticipate the market trends and thus has no colour portable yet of its own. It waits to see what succeeds elsewhere before developing its own model. What an indictment! Thorn has made no real move in video cassettes despite the great future for these.
  Thorn must also spend more on market research and advertising for sale. Aggressive marketing is needed. The trouble is the depressed psychology of Thorn Electronics' senior executives. If Thorn can develop the will, Bradford can survive and prosper and contribute to the general Thorn success story.
  The staff is now putting forward detailed plans for survival. I do not
  412
  propose to go into those or to anticipate them, but what is necessary is that Thorn should not just patiently listen but should seriously listen at the meetings to be held to discuss those proposals. If Thorn does not listen, Bradford's serious unemployment figure will rise substantially.
  I now come to what the Government can do to assist. Thorn, in Bradford, in its main factory, is divided into two parts. No. 1 factory is the old Baird factory, and across the road is the modern 1969 television factory which, I believe, is owned by the Norwich Union. It is generally conceded that there could be a withdrawal from the No. 1 factory as a move to cut overheads. In order for Thorn to derive benefit from such a move, it is essential for the No. 1 factory swiftly to be sold or let.
  I hope that my hon. Friend the Minister will tell us tonight of the Government's proposals to afford assistance to ensure that overheads can be cut, but may I ask what the Government intend to do about this challenge to their original policy? What pressure will they bring on Thorn to be mindful of the need to keep jobs in the intermediate areas? Those are matters which everybody in the Bradford area will listen to very carefully indeed.
  I know that the Minister, in common with all hon. Members from Bradford and the Bradford region, was distressed by the surprising announcement by Thorn. Tonight he speaks on behalf of the Government, and he knows that if regional policy is to mean anything at all strong efforts will have to be made to ensure that the Thorn main board is brought into discussions to achieve a change of mind in the directors who run the Thorn consumer electronics subsidiary.
  Nobody who has met the executives of the work force recently, as have Bradford Members of Parliament, can fail to be impressed by their conviction that there are solutions to these problems or by their conviction that the statistics and general picture presented by the Thorn consumer electronics management is defeatist and distorted. The executives are convinced that there is no overwhelming argument for closure. They believe that, given the will, there is a need for serious examination of the position and scope for the continuous operation of Thorn, in

  413
  profit for the company, in satisfaction for the work force, in general prosperity for Bradford, and in tribute to the Government's regional policy—a policy which it is essential should succeed if the British regions are to continue to be worth living in.
  11.13 p.m.
  The Under-Secretary of State for Industry (Mr. Bob Cryer): I first want to make some general remarks about the position of the consumer electronics industry.
  The difficulties of the industry in the United Kingdom have been evident since the dramatic fall-off in demand for consumer electronic goods, notably colour televisions, in 1974. At that time the United Kingdom industry was geared to producing 2·5 million colour television sets per annum, but since then demand has dropped to its present level of around 1·5 million sets, and forecasts do not project any significant increase in today's level in the foreseeable future. I may add that today's position is in no way due to the increase in VAT from May 1975 to April 1976.
  In addition, as my hon. and learned Friend pointed out, modern production developments have brought about a need for considerably lower levels of employment. The whole of the United Kingdom consumer electronics industry faces a period of rationalisation and reorganisation if it is to be able to face the challenge of competition. However, it should be noted that the sector working party report, in paragraph 6.9, said:
  "The SWP believes that the size of the labour force necessary to its 1980 objectives will not be significantly different from that in 1976."
  At present the Government are providing encouragement to the industry through their support of the inter-industry arrangements that are designed to restrict imports of consumer electronic goods, principally from Japan. The Government have also taken direct action to limit the import of portable monochrome television sets from Taiwan and South Korea. These actions have provided the industry with a breathing space in which it can reorganise.
  In recognising that, the consumer goods sector working party of the Electronics
  414
  EDC of NEDO has commissioned a consultancy study to consider the performance and structure of the United Kingdom electronic consumer goods industry. It will present its detailed findings as soon as possible. They are expected at some time early in the summer.
  It is extremely surprising that Thorn should have produced a proposal to close the Bradford plant when the working party is producing a report on the industry. The action by Thorn is clearly pre-empting any conclusion that the study may make if it pursues the draconian proposal to close the Bradford plant. In the meantime, the major and underlying problem within the industry—that of over-capacity—has been considered under the Government's industrial strategy by the sector working party. In its annual report, which was published last December, it was recommended that the industry's capacity should be rationalised by between 20 per cent. and 30 per cent.
  My hon. and learned Friend presented a strong case. I shall deal in some detail with the Thorn closure at Bradford. The loss of over 2,000 jobs in an area of high unemployment is a severe blow to the local community. I share the concern of the work force and those hon. Members who have connections, like myself, with Bradford. I know that my right hon. Friend the Minister of State, Department of Industry—the Member for Swansea, West (Mr. Williams)—has an exactly similar concern. At a meeting last week with several hon. Members my right hon. Friend asked for a meeting between representatives of the Bradford work force and the Thorn management, with himself in the chair, to discuss a possible alternative proposal that is now being drawn up by representatives of the Bradford work force. Steps are being taken to set up the meeting to take place on 25th April.
  It is heavily ironic, as my hon. and learned Friend said, that the proposed closure comes shortly after the controversy over Hitachi. The industry made much of the likely adverse effects on unemployment if Hitachi set up production in the United Kingdom. Thorn and other parts of the industry, both managements and unions, were keen to lobby the Government on the possibility of Hitachi

  415
  setting up production in this country, and understandably so given the problem of over-capacity, Thorn's enthusiasm for communicating with the Government seems to have evaporated on the closure proposal. We were told of the proposal only on the same day as hon. Members and the unions. It is, as my hon. and learned Friend said, something of a stark contrast of attitude.
  A job loss of this magnitude would be tragic, and would be made even more so by virtue of the fact that it would fall in an assisted area. Assistance is given—Bradford is in an intermediate area—precisely because unemployment is greater than in other areas. Bradford is a programme authority under the Government's proposals for the Inner Urban Areas Bill. It ranks for some significant form of assistance because of those problems. To rob Bradford of these jobs is, as my hon. and learned Friend said, to fly in the face of the Government's regional policy.
  I understand that the company argues that it is impossible for it to obtain the savings both in manpower and in overheads to enable it to remain viable unless a whole manufacturing unit is closed. The company claims that for various reasons—principally that other important activities beside colour television assembly are undertaken at its remaining plants—Bradford is the plant proposed for closure. It must be said that out of approximately 9,000 employees only 100 are employed on research and development. That is a very small number for such a competitive area of activity and for the development of new jobs to replace those that are inevitably being diminished within the industry.
  In its report the sector working party recommends, in paragrph 8, that
  "no support is given by the Government to the creation of additional capacity within the industry at this stage. Further, that the Government and its agencies should consider support for the eliminatoin of spare capacity from the sector, and for the creation of alternative employment for the plants and work forces concerned."
  We think that sector working parties have an important role to play in laying out a general strategy for industry. Clearly, in its report the working party envisaged discussion of its proposals. We are awaiting the report on the industry,
  416
  commissioned by the working party, before embarking on a detailed assessment of the position.
  Thorn's immediate proposal for closure of the Bradford plant ignores the recommendation in the report for a planned reduction in capacity, the possibility of Government support and the creation of alternative employment. We have not given any support to the creation of additional capacity so we are playing a part in the general strategy envisaged in the working party report.
  If workers at Thorn's are to be given a chance to demonstrate their ideas to retain production, the company must be serious in assessing the proposals and not simply watch the three weeks go by while it cynically plans to issue redundancy notices to finish at the summer holidays.
  The shop stewards, as my hon. and learned Friend pointed out, have many ideas. They claim that Bradford can be made to work, and work well. If we are to succeed in retaining our manufacturing base as a trading nation, we need to harness the undoubted enthusiasm and energy that is available from working people who build up a relationship of trust between themselves and the management. It would be rendered doubly difficult to build up such a relationship under the threat of the issue of redundancy notices.
  Any assessment of capacity in the industry must be made by means of joint discussions and not by a unilateral declaration from the executive suite. People who give their lives to work have the right to be treated with decency and respect by the representatives of the owners of capital. Lives are more important than capital.
  I should like to deal with some of the specific points put forward by Thorn's regarding the closure. The company claims that it needs to save £5 million of overheads and that the matter is immediate. Thorn is not a poor company. My hon. and learned Friend mentioned the profits for two years, I should like to go further back.
  From 1970, the net profits of Thorn Consumer Electronics are: 1970—£20 million, 1971—£24·4 million, 1972—£29·5 million, 1973—£40·2 million, 1974—£48·2 million, 1975—£47·4 million, 1976—£47·7 million and 1977—£57·4 million. It is

  417
  clear that Thorn has not been unsuccessful in achieving net profits of considerable magnitude.
  Thorn occupies a dominant position in the television rental industry and separate figures for manufacture are available for only two years. In 1972, manufacture accounted for £11·3 million of profits and rental for £18·2 million. In 1973, manufacture accounted for £16 million of profits and rental for £24·2 million. It is a fairly safe assumption that within the profits for 1977 manufacturing accounts for a reasonable part.
  In these circumstances, it would be reasonable to suppose that Thorn is able to make some provision for research and development in providing new products and so providing new jobs. Electronics was to be the great growth industry to replace some of the traditional industries, such as textiles, in which Bradford has been affected by reverses.
  Clearly, against that financial background there should be room for considerable manoeuvre by this gigantic capitalist enterprise. If it finds that it can afford to run only part of the site in Bradford—the site consists of two areas, the old Baird factory and another factory that is less than 10 years old and is the most modem and largest television factory in Europe—the Department of Industry could examine the possibility of converting the older part of the factory into units for small firms.
  We have recently had a feasibility study in Calderdale and we are now widening our area of examination for such a possibility. I emphasise that it is a possibility. We have made a serious examination of a mill in Calderdale, which has not proved satisfactory, unfortunately, but certainly we would be willing, if there were a possibility, to enter into an examination of this property in order to reduce the overheads, so that Thorn could entertain the possibility of retaining an important number of jobs in its major Bradford factory.
  This possibility can be considered, however, only if Thorn is willing seriously to re-examine the position, taking into account the proposals put forward by shop stewards. We have no powers to compel Thorn to take a decision either
  418
  way. Contrary to popular myth, we do not have enormous powers of intervention in industry. We can only persuade. I hope that Thorn can be persuaded that its proposal should be reconsidered and that serious discussions can be entered into with a view to placing Bradford on a viable basis, taking into account the plan put forward by the shop stewards and the points so ably raised tonight by my hon. and learned Friend.
  My hon. and learned Friend has mentioned the plan of the shop stewards with enthusiasm. I have not seen the details of the plan and nor has my hon. and learned Friend, so far as I know. But certainly what has impressed us is the enthusiasm, the determination and the dedication of the work people's representatives that we have met. In my view, this determination and enthusiasm must be harnessed into British manufacturing industry if we are to succeed in harnessing all our people's talents for the future.
  Not to consider seriously these proposals but to treat them merely as part of a time consuming exercise would be to generate cynicism and disenchantment and that is something that we must set our eyes against.
  If I may repeat my words, I very much hope that serious discussions can be entered into with a view to placing Bradford on a viable basis, taking into account the plan put forward by the shop stewards and the points so ably raised by my hon. and learned Friend tonight.
  In conclusion, a great tribute is due to my hon. and learned Friend and other Bradford Members of Parliament who have taken up this cause and pressed it so ably. They have taken up a cause when they were met with a proposed decision on which they were not consulted, and on which the shop stewards' representatives were not consulted, and they have sought to reverse this decision in order that meaningful and proper discussions can be entered into. I hope that their efforts, and the efforts of the Government and of all the parties involved, will result in success, and a reassessment of this very serious proposal.
  Question put and agreed to.
  Adjourned accordingly at twenty-eight minutes past Eleven o'clock.

AGRICULTURE, FISHERIES AND FOOD
  European Farm Price Review
  European Farm Price Review
  Potatoes
  Potatoes
WALES
  Hawarden Airport
  Hawarden Airport
  Roads Policy
  Roads Policy
ENERGY
  Oil and Gas
  Oil and Gas
  Gas Account Debts (Warrant Sales)
  Gas Account Debts (Warrant Sales)
EDUCATION AND SCIENCE
  Comprehensive Schools (Sixth Forms)
  Comprehensive Schools (Sixth Forms)
  Fircroft College, Selly Oak
  Fircroft College, Selly Oak
  School Transport
  School Transport
  Burnham Committee
  Burnham Committee
  Education Standards
  Education Standards
  Further Education Students
  Further Education Students
  Schools (Governing Bodies)
  Schools (Governing Bodies)
  Violent Children
  Violent Children
  Student Awards (Arts Courses)
  Student Awards (Arts Courses)
  Comprehensive Schools (York Conference)
  Comprehensive Schools (York Conference)
  Comprehensive Reorganisation
  Comprehensive Reorganisation
  Primary School Closures
  Primary School Closures
  Higher Education Students (Grants)
  Higher Education Students (Grants)
  Local Education Authorities
  Local Education Authorities
  School Building Programmes
  School Building Programmes
  Truancy
  Truancy
  Speech Defects
  Speech Defects
  Illiteracy
  Illiteracy
  Remedial Education
  Remedial Education
  School Meals
  School Meals
  Teachers (Retirement)
  Teachers (Retirement)
  Political Education
  Political Education
  Mathematics Teaching
  Mathematics Teaching
  Head Teachers (Appointments)
  Head Teachers (Appointments)
  University Teachers (Pay)
  University Teachers (Pay)
  Examinations
  Examinations
  Education Act 1976
  Education Act 1976
  Religious Education
  Religious Education
  Gifted Children
  Gifted Children
  Arts Council
  Arts Council
  Teachers (Employment)
  Teachers (Employment)
  Social Priority Schools Allowance Scheme
  Social Priority Schools Allowance Scheme
  Public Schools
  Public Schools
  Expenditure
  Expenditure
  Museum (Purchase Grants)
  Museum (Purchase Grants)
  School Population
  School Population
  School Meals
  School Meals
HOUSE OF COMMONS
  Members' Salaries
  Members' Salaries
SOCIAL SERVICES
  National Insurance Contributions
  National Insurance Contributions
  General Practitioners (Remuneration)
  General Practitioners (Remuneration)
  Infant Mortality
  Infant Mortality
  Unemployment Benefit
  Unemployment Benefit
  Pensions
  Pensions
  Supplementary Benefit (Expelled Schoolchildren)
  Supplementary Benefit (Expelled Schoolchildren)
  Children's Spectacles
  Children's Spectacles
  Means Tests
  Means Tests
  Fertility Drugs
  Fertility Drugs
  Disabled Persons (Equipment Evaluation)
  Disabled Persons (Equipment Evaluation)
  Mentally Handicapped Persons
  Mentally Handicapped Persons
  Booth Hall Hospital, Manchester
  Booth Hall Hospital, Manchester
  Disabled Married Women (Benefits)
  Disabled Married Women (Benefits)
  Electro-convulsive Therapy
  Electro-convulsive Therapy
  Psychosurgery and Electro-convulsive Therapy
  Psychosurgery and Electro-convulsive Therapy
  Mental Patients (Compulsory Treatment)
  Mental Patients (Compulsory Treatment)
  Psychosurgery
  Psychosurgery
  Disabled Ex-Service Men (Pensions)
  Disabled Ex-Service Men (Pensions)
INDUSTRY
  Post Office Vehicles (Accidents)
  Post Office Vehicles (Accidents)
  Post Office Engineers (Dispute)
  Post Office Engineers (Dispute)
  Departmental Organisations
  Departmental Organisations
  Footwear (Assistance)
  Footwear (Assistance)
  Textiles
  Textiles
  Regional Development Fund
  Regional Development Fund
TRADE
  Zambia
  Zambia
  Common Fund
  Common Fund
  PRIME MINISTER (ENGAGEMENTS)
  PRIME MINISTER (ENGAGEMENTS)
  TUC
  TUC
  GOVERNMENT LEGISLATION
  GOVERNMENT LEGISLATION
  NORTHAMPTON
  NORTHAMPTON
  NEW INVENTION
  NEW INVENTION
  STRASBOURG
  STRASBOURG
  SECRETARY OF STATE FOR EMPLOYMENT
  SECRETARY OF STATE FOR EMPLOYMENT
  SCOTLAND
  SCOTLAND
  DERBYSHIRE
  DERBYSHIRE
  LISBON
  LISBON
  HESSLE
  HESSLE
  LABOUR AND TRADE UNION MOVEMENT
  LABOUR AND TRADE UNION MOVEMENT
  CBI
  CBI
  POLITICAL PARTIES (IRELAND)
  POLITICAL PARTIES (IRELAND)
  AFRICAN COUNTRIES
  AFRICAN COUNTRIES
  "HORSE AND HOUND"
  "HORSE AND HOUND"
  BIRKENHEAD
  BIRKENHEAD
SCOTLAND
  Tweed and Eye Fishings (Protection Orders)
  Tweed and Eye Fishings (Protection Orders)
  LUTON
  LUTON
NORTHERN IRELAND
  Probation Service
  Probation Service
EMPLOYMENT
  Wool Carding Machines
  Wool Carding Machines
  Unemployed Persons
  Unemployed Persons
  Apprenticeship Schemes
  Apprenticeship Schemes
  Health and Safety
  Health and Safety
  Females
  Females
  Thanet
  Thanet
  Job Release
  Job Release
  Short-time Work (Compensation)
  Short-time Work (Compensation)
OVERSEAS DEVELOPMENT
  Aid
  Aid
TRANSPORT
  Motorways (Repairs)
  Motorways (Repairs)
  Driver and Vehicle Licensing Centre
  Driver and Vehicle Licensing Centre
  Vehicle Registration Document Error
  Vehicle Registration Document Error
ENVIRONMENT
  East Midlands (Review Document)
  East Midlands (Review Document)
  Enforcement Notices (Appeals)
  Enforcement Notices (Appeals)
  Water Rates
  Water Rates
NATIONAL FINANCE
  Child Allowances (Children Overseas)
  Child Allowances (Children Overseas)
  Income Tax Debts (Warrant Sales)
  Income Tax Debts (Warrant Sales)
  Tax Thresholds
  Tax Thresholds
  Living Standards
  Living Standards
  Capital Allowances (Buildings)
  Capital Allowances (Buildings)
  Expenditure
  Expenditure
  International Monetary Fund
  International Monetary Fund
  Personal Incomes
  Personal Incomes
  Capital Transfer Tax
  Capital Transfer Tax
  Pay Policy
  Pay Policy
  Income Tax
  Income Tax
FOREIGN AND COMMONWEALTH AFFAIRS
  Diplomats' Children (School Fees)
  Diplomats' Children (School Fees)
  Cyprus
  Cyprus
  Hong Kong
  Hong Kong
  Disarmament (United Nations Special Session)
  Disarmament (United Nations Special Session)
  PHOTOCOPYING CHARGES
  PHOTOCOPYING CHARGES
  DIRECTOR OF PUBLIC PROSECUTIONS
  DIRECTOR OF PUBLIC PROSECUTIONS
DEFENCE
  Aircraft Crash (Thetford)
  Aircraft Crash (Thetford)
  Armed Forces (Mileage Allowance)
  Armed Forces (Mileage Allowance)
  Rapier Missile System
  Rapier Missile System
  Jaguar Aircraft (BAOR)
  Jaguar Aircraft (BAOR)
  Disturbance Allowance
  Disturbance Allowance
  Service and Civilian Personnel (Pay and Allowances)
  Service and Civilian Personnel (Pay and Allowances)
  Expenditure
  Expenditure
  BAOR
  BAOR
  Naval Personnel
  Naval Personnel
  Service Personnel (Housing Possession)
  Service Personnel (Housing Possession)
  Baggage and Furniture Allowances
  Baggage and Furniture Allowances
  Service Families (Education and Health Facilities)
  Service Families (Education and Health Facilities)

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR On the Woolsack.
Prayers—Read by the Lord Bishop of Derby.

PENSIONS FOR THE OVER 80s
Lord LEATHERLAND Lord LEATHERLAND: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper, and perhaps, in accordance with the rules of the House, I should declare a personal interest.
The Question was as follows:
To ask Her Majesty's Government whether they will substantially increase retirement pensions for people aged 80 years and over.
Lord WELLS-PESTELL: My Lords, I was hoping my noble friend would declare an interest in this Question in view of the fact that I understand he is 80 years of age today. That being the case, I am sure your Lordships would wish me, on behalf of the whole House, to extend to him our congratulations and good wishes. Having said that, it is with regret that I must tell him that the Government have no plans to make a substantial increase in retirement pensions for the over 80s. Their policy has been to concentrate available resources on improving the level of retirement pensions generally, rather than to give special priority to one group of beneficiaries solely on grounds of age. Retirement pensions, including the non-contributory pensions for the over 80s, will continue to be increased annually at least in line with the movement of prices or earnings, whichever is more favourable to pensioners.
Last week, the Government announced that pensions are to be increased in November, and this will raise their real value to a record level. However, the Government are conscious that the very old may have special needs and priorities. As many of your Lordships will be aware, the Government will shortly be publishing
974
a discussion document entitled On the Needs of the Elderly, prior to the publication next year of a White Paper on the needs of the elderly. This will cover the needs of the very old and, in particular, whether they can best be met by the provision of cash or services. The Government look forward with interest to the reaction to these documents.
Lord SHINWELL: My Lords, may I ask my noble friend whether, if the Chancellor of the Exchequer is disturbed by the present financial stringency and cannot do anything for the over 80s, he could budget for less expense by doing something for the over 90s?
Lord BLYTON: My Lords—
Several noble Lords: Order!
Lord WELLS-PESTELL: My Lords, it is the custom of your Lordships' House that whoever puts down the Question should, if he wishes to do so, immediately put a supplementary question.
Lord LEATHERLAND: My Lords, I thank my noble friend for his reply which, although cautious, was slightly hopeful. Would he not agree that the over 80s are the orphans of the storm from an inflationary point of view? Does he appreciate how difficult it is for them to get part-time jobs and that many of them will receive nothing whatever from the income tax cuts announced in last week's Budget? Finally, will he bear in mind that during their working lives wages were at a low level, making it difficult for them to acquire a nest-egg for their old age?
Lord WELLS-PESTELL: My Lords, my noble friend has raised a number of points and I think I can best answer by saying that one cannot argue but that the over 80s are worse off in certain respects than some people over 75. The Government are endeavouring to look at the real needs of elderly pensioners, those over 80, because we may well find that it is not necessarily cash they want but perhaps services like better nursing facilities, meals-on-wheels and things of that kind; it may be that services are much more important than money. One must also bear in mind that pensions are increased in line with earnings or

975
prices, whichever is the greater, and that the over 80s get the same increase as those who are also on retirement pension.
Lord REIGATE: My Lords, is it not a fact that a higher percentage of those over 80 are receiving supplementary benefit than those between 70 and 80?
Lord WELLS-PESTELL: I do not know whether that is so, my Lords. It might be, but I could not answer Yes or No.
Lord BLYTON: My Lords, is my noble friend aware that he could have told my noble friend Lord Leatherland—to whom I wish many happy returns of the day—about the aged persons' allowance, a benefit of 25p a week?
Lord WELLS-PESTELL: My Lords, it is perfectly true that those over 80, whether they are receiving a contributory or non-contributory pension, receive an age addition allowance of 25p. I am not for a moment suggesting that it is adequate and it may well be that that sort of thing will need to be looked at in the future. I would point out, however, that it was not increased by the previous or the present Government. It would cost a considerable sum to raise it by a substantial amount; for example, if we were to increase the age addition of 25p a week to £1 it would cost no less than £50 million a year, and at this particular juncture we are not in a position to make increases of that kind.
Lord BOYD-CARPENTER: My Lords, can the noble Lord confirm that in the files of the Department of Health and Social Security there are studies going back many years to the time when the age allowance was initiated, which demonstrates very clearly that in general the needs of the over 80s are considerably more severe than those of younger pensioners, both because they can do less for themselves and because their equipment, and clothes, and other things are wearing out? In considering this very real social problem, on which there is considerable feeling, will the noble Lord not be misled by the spritely vigour of his noble friend who asked the Question?
Lord WELLS-PESTELL: My Lords, I would not be prepared to accept that
976
researches done a good many years ago were relevant to the present situation. I have done some research in my time, not in this field; but researches done many years ago are not necessarily relevant to the period in which a fresh research should be undertaken. We are undertaking that research, and, as I said, we shall be issuing a document for consultation in the very near future, prior to issuing a White Paper on the needs of the elderly.
Lord BOOTHBY: My Lords, can the noble Lord give an assurance that Her Majesty's Government will give some consideration to those who are over 75, because they are sometimes very old?
Lord LEATHERLAND: My Lords, finally, may I ask my noble friend, before he pays too much attention to the suggestion from the noble Lord opposite—that supplementary benefit is available to these people—to bear in mind that these people have long memories, which go back to the hungry 'thirties and to the old-fashioned Poor Law, and that their pride very frequently prevents them applying for this kind of supplementary benefit, which they quite erroneously associate with the old-fashioned Poor Law?
Lord WELLS-PESTELL: My Lords, I would accept that, for the simple reason that I believe Members of your Lordships' House on all sides lament the fact that so many of our benefits are not being taken up by people when they ought to apply for them.

ANNAN REPORT ON BROADCASTING
2.45 p.m.
Baroness MACLEOD of BORVE Baroness MACLEOD of BORVE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they intend to implement all or any of the findings of the Annan Report on the Future of Sound Broadcasting (Cmnd. 6753).
The MINISTER of STATE, HOME OFFICE(Lord Harris of Greenwich):

977
My Lords, the position on the report of the Committee on the Future of Broadcasting remains as indicated in my reply on 2nd March to a Question by my noble friend Lord Boston of Faversham: the Government are still considering the Committee's recommendations and the many comments we have received on them, with a view to formulating proposals which can be presented to Parliament in the form of a White Paper.
Baroness MACLEOD of BORVE: My Lords, I thank the noble Lord for that reply. Is he aware that, in September 1977, the Independent Broadcasting Authority issued a list of local radio stations that it would like to open? There were 15 in number, and from that the Authority would like to select eight. Can the noble Lord say whether the Government are thinking along the lines of giving further local radio stations to the Independent Broadcasting Authority?
Lord HARRIS of GREENWICH: My Lords, this is one of the matters which is being looked at at the moment, but I cannot say anything before we publish the White Paper.
Lord ORR-EWING: My Lords, does the noble Lord recall that this Government, and the previous Government, have set up innumerable Royal Commissions and other official inquiries? These have done admirable work, and have produced excellent reports, but absolutely no action results. Why is it that 13 months after the Annan Report came out—and the Government probably had it a little earlier than that—the Government are not able to give permission to the IBA to go ahead with this expansion, which does not raise legislation? It could be done quite simply, involving no public funds at all, and it would be very popular with the public.
Lord HARRIS of GREENWICH: My Lords, one of the recommendations of the Annan Committee was that a local broadcasting authority should be set up. We are looking at this proposal, and we are formulating a proposal which will be put to Parliament. But the White Paper will undoubtedly have the most profound influence upon the whole future of British broadcasting up to the end of this century. It seems to me that in that situation we should get it right.
Lord BOSTON of FAVERSHAM: My Lords, while appreciating that the Government may well feel reluctant to announce decisions piecemeal on these matters, does my noble friend not feel that there is a case, once decisions have been taken on certain matters, for at least some of those matters to he severed from the others and not held up until the whole package is complete? I may say that I disagree with the recommendation of Annan, but does not my noble friend feel that the future of local broadcasting is just such a matter which it would be possible to sever, and that it is a pity to hold it up for the whole of the rest? Once decisions were taken on that matter, could not that matter be announced?
Lord HARRIS of GREENWICH: No, my Lords; I do not believe that it would be a good idea to have instalments on a White Paper. I think it is necessary to deal with all these matters at the same time.
Baroness MACLEOD of BORVE: My Lords, can the noble Lord tell me, finally, when the White Paper is expected?
Lord HARRIS of GREENWICH: No, my Lords; I prefer to say that it will be as soon as possible. I am afraid I cannot give a precise date.

AIRPORT CAPACITY FOR LONDON
2.49 p.m.
Lord BOYD-CARPENTER Lord BOYD-CARPENTER: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in view of the delay in proceeding with additional terminal capacity at Heathrow and the absence of plans to build a second runway at Gatwick, they are satisfied that adequate airport capacity will be available in the London area to meet the traffic to be expected in the first half of the 1980s.
Baroness STEDMAN: My Lords, with the completion shortly of the redevelopment work at Heathrow and Gatwick,

979
terminal capacity in the London area airports will be about 50 million passengers a year, compared with a throughput of 32 million passengers in 1977. This capacity, and the developments envisaged in the White Paper on Airports Policy, with the existing runways, should be sufficient to meet the demand in the first half of the 1980s.
Lord BOYD-CARPENTER: My Lords, may I ask the noble Baroness two questions? The first relates to her reference to the early completion of the work at Heathrow. Is that intended to cover both the completion of the public inquiry, and then the completion of the fourth terminal? Secondly, has she, and have the Government, taken into account the fact that previous traffic forecasts were based on the old fares system and that recent developments and the popularisation of cheap fares are likely to bring about a very substantial increase in traffics? Finally, on that point, has she seen that that appears to be the view of British Airways?
Baroness STEDMAN: My Lords, so far as the first point is concerned, when I referred to the completion of the redevelopment work I meant the completion of the redevelopment work which is in hand now. I understand that the public inquiry will start on 31st May. When we have the recommendation about the fourth terminal depends on how much evidence is submitted and how long it takes to deal with it. On the second point, we are aware of the fact that there are cheap fares and we are aware that the number of air passengers is increasing year by year; but we think that when the redevelopment of the central area at Heathrow. which has really brought about the recent congestion, is completed it will raise the airport's capacity to 30 million passengers a year. In addition, the Government's present policy of transferring traffic to Gatwick, where there is spare capacity, and the ban on whole plane charter flights at Heathrow from 1st April of this year, will help to relieve the congestion at that airport. We are satisfied that BAA are working along these lines.
Lord BOYD-CARPENTER: My Lords, in view of the noble Baroness's reference
980
to Gatwick, with its planned passenger throughput of 25 million passengers a year, can she tell me whether there is any other airport in the world where anything like that airport capacity is planned on the basis of one runway?
Baroness STEDMAN: My Lords, I could not answer the second part of the noble Lord's supplementary question, but I can say that the British Airports Authority are satisfied that the single runway at Gatwick will be capable of handling the expected growth in the traffic.
Lord GLENKINGLAS: My Lords, will the noble Baroness hear in mind that, as in the case of the electricity supply, guessing at the number of passengers who are likely to travel has always been a major stumbling block? Does she not perhaps think that the mistakes which were made a few years ago, when we were looking at the question of a new airport, are being repeated; and are we in any way ready to deal with the situation if the estimates are seriously wrong, which I think they may well be?
Baroness STEDMAN: No, my Lords. The Government and the BAA are satisfied that the estimates on which they are working are now reasonable ones.
Earl AMHERST: My Lords, would the noble Baroness not agree that the proposal to erect the fourth terminal on the South side of Heathrow Airport is unsatisfactory from almost every point of view and cannot meet the problem in the short-term, let along the long-term?
Baroness STEDMAN: My Lords, the noble Earl made a very valuable contribution on these lines to a debate we had recently in your Lordships' House. I have today written to him suggesting that his points were valid ones and telling him where to make them to the public inquiry which is in hand. At this moment I cannot predict what will be the outcome of the public inquiry.
Lord LEATHERLAND: My Lords, may I ask my noble friend whether I am right in gathering from her remarks that the urgency to upgrade Stansted Airport in Essex to a full-size third London airport is perhaps not quite so great now as it was a few months ago?
Baroness STEDMAN: My Lords, the White Paper provided for the expansion of Stansted to handle 4 million passengers a year. Beyond 1990, the White Paper has outlined three options for further consideration: first, a major expansion at Stansted; secondly, the development of a military airfield as a civil airport; or, thirdly, the construction of a completely new airport. With respect, I do not think it would he helpful at this stage to consider the implications of these options, until we know what the decision is about proceeding with a fourth terminal at Heathrow.
Lord AVEBURY: My Lords, if the noble Baroness tells us that any further development at London Airport is conditional upon the traffic forecast beyond the year 1990, does that not require that we take a view as to the likely trend in oil prices, and aviation fuel prices in particular, beyond that point? Has she studied the evidence from the major oil companies, such as British Petroleum, showing that world oil production is likely to be declining by that time, and therefore increasing very steeply in price; and what effect does she think this will have on the traffic through London Airport? Will it exceed the 50 million passengers throughput which is containable within the existing terminals?
Baroness STEDMAN: My Lords, I personally have not considered these points, but I am sure that the BAA and the Department considered all of them before making the recommendations in their White Paper.
Lord ORR-EWING: My Lords, in view of the fact that 25 million passengers pass through Gatwick Airport, will the noble Baroness bear in mind that a single runway has sometimes to be repaired and can be very vulnerable to an accident; and that if that runway had to be closed in such an emergency, with 25 million people counting on travelling from that airport, the whole of the metropolitan air travel would be in a desperate position?
Baroness STEDMAN: My Lords, it would be necessary, in that event, to use the runways at other London airports. In 1976-77, the Gatwick runway was closed due to obstruction for a period of
982
four hours and 44 minutes only. That is the only closure we have had.
Lord JACQUES: My Lords, is my noble friend aware that many of us congratulate the Government on not over-expanding the airport facilities? Over-expansion disturbs a great many people and wastes public money.
Baroness STEDMAN: My Lords, I welcome the support of my noble friend. Of course we have to take into account what are the effects of expansion of airports on the environment in general, as well as on the use of them by airport travellers.
Lord THOMAS: My Lords, would the noble Baroness not agree that, as well as putting emphasis on the expansion of London airport capacities, it would be a very good thing indeed to see that the provincial airport capacities are increased, thereby dispersing the load, dispersing the noise factor and collecting more traffic conveniently?
Baroness STEDMAN: My Lords, I accept the noble Lord's views on the use of the regional airports; but the fact is that 80 per cent. of the passengers using London airports have either origins or destinations in the South-East, and it would be unrealistic to expect that any substantial traffic could be diverted into the regions. But we believe that, in the longer term, there has to be a policy of rationalisation and concentration of services at selected airports in order to lead to a greater use of some of the regional airports.

AU PAIR GIRLS: WELFARE
2.57 p.m.
Baroness VICKERS Baroness VICKERS: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in view of the report submitted to the Home Office in September 1977 by International Youth Welfare concerning au pairs in the United Kingdom, action is being taken to update the Home Office leaflet Au Pair in Britain.
Lord HARRIS of GREENWICH: My Lords, yes; a revision of this leaflet is in hand. International Youth Welfare sent their final report, Au Pair in Britain, to the Home Office on 14th March last. There had been a meeting in October 1977 at which a preliminary report had been discussed; and we were sent in January a draft for a new leaflet to be used in connection with the revision which we had already begun. We are grateful to International Youth Welfare for the work they have done and the draft they have provided. Partly in consequence, the revision of the Home Office leaflet is now well advanced, and my right honourable friend will shortly be consulting other Departments and organisations which are involved or which may be able to offer helpful advice.
Baroness VICKERS: My Lords, may I thank the noble Lord for that Answer? I must say, and he will be pleased to hear, I am sure, that it is the best Answer I have ever had on this subject. In view of the fact that there are 15,000 girls coming from 24 different countries, and that 67 per cent. of them did not receive the present leaflet, w ill he make certain that this is put right in the future, in view of the fact that a lot of girls are having to work 50 hours instead of the regulated 30 hours laid down by the Home Office and that 10 per cent. of them do not get a free day and 44 per cent. get a free day only at the will of their hosts?
Lord HARRIS of GREENWICH: Yes, my Lords, the noble Baroness is on to an important point. It is obviously highly desirable that these girls should have copies of this leaflet, and certainly we will do everything possible to ensure that they get them. They are made available by members of the immigration service, and they are also available at British posts abroad; but the noble Baroness, as I have indicated, is quite right. We are aware of the concern in this particular matter, and we will certainly do what we can to ensure that these copies are distributed as widely as possible.
Baroness GAITSKELL: My Lords, is the Minister aware that many of us have never heard of so much ill-treatment to au pair girls? Is the Minister also aware that those of us who have children and
984
grandchildren, and friends with children, very rarely come across any such ill-treatment but find that the au pair girls have much leisure, plenty of time for education, a place in the family and good wages? I, for one, find it very difficult to have any kind of strong feelings about this.
Lord HARRIS of GREENWICH: My Lords, I think the position is that in many cases the situation is exactly as my noble friend describes it, but I am bound to say that in others there have been fairly disagreeable episodes concerning some of these girls, and obviously we want to deal with this matter as satisfactorily as possible.
Lord MERRIVALE: My Lords, if I may presume that the reason why au pair girls wish to come to this country is to learn English or to improve their English, can the noble Lord say in what languages, apart from English, these leaflets are produced?
Lord HARRIS of GREENWICH: My Lords, I am afraid that I cannot give an answer off-hand to that question, but I will make inquiries and let the noble Lord know.

RHODESIA
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, with the leave of the House, at a convenient moment after 3.30 p.m. my noble friend Lord GoronwyRoberts will be repeating a Statement on Rhodesia.
DINNERS
Baroness LLEWELYN-DAVIES of HASTOE: May I take this opportunity of reminding your Lordships that dinners are available this evening and tomorrow evening.

SCOTLAND BILL
3.2 p.m.
The LORD CHANCELLOR(Lord Elwyn-Jones): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

985
Moved, that the House do now again resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 18 [Legislative competence of Assembly]:
The CHAIRMAN of COMMITTEES: I regret that it has not been possible to produce a revised Third Marshalled List of Amendments. Therefore, there are two documents before your Lordships: the Third Marshalled List itself and a Supplementary List which begins with Amendment No. 307 in the name of the noble Lord, Lord Harmar-Nicholls.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 76:
Page 8, line 10, at end insert—
"(3) Where any provision of a Scottish Assembly Act which is within the legislative competence of the Assembly conflicts with any provision of an Act of Parliament, the Act of Parliament shall prevail so long as it is in force".
The noble Earl said: We turn now to Clause 18 of the Bill. Your Lordships may recall that on the last occasion that this Bill was in Committee in your Lordships' House there was quite a spirited debate, particularly on the effects of Clause 17(2). The matter to which I would draw the attention of the Government today is rather different in that it goes more, as I suggest, to matters of construction as between an Assembly Act and an Act of Parliament. The situation which I would postulate is this: At some time following an Act of the Scottish Assembly, there may on investigation be found matters which could well be inconsistent with an existing United Kingdom Act—if I may call it so—or there may be an element of repugnancy.
Taking the situation as it exists, it could be put right in, I suppose, three ways apart from litigation. First, the Assembly, taking its power under Clause 17(2), could legislate to amend the United Kingdom Act. That would be one way out. Secondly, the United Kingdom, Westminster, Parliament could amend either its own Act or the Act of the
986
Assembly. One hopes very much that that would not lead to what has been described in another place as a "ping-pong situation"; but that is really a political point which may arise later in the debate and I do not wish to deal with it at this stage. Thirdly, under Clause 34, the Government could make an Order in Council which could amend either the United Kingdom Act or the Scottish Assembly Act. I think I am right about that.
In any of these ways, the inconsistency, if it exists, could be rectified. That does not help the situation which exists when the inconsistency is discovered. What is to happen in such an eventuality, one does not know. The Bill is silent. However good the draftsmen may be on either side of the Border and whatever consultations there may be either between the Executive in Scotland and the Government at Westminster or between those who are actually responsible for the Acts, I suggest that it is inconceivable that mistakes will not be made and inconsistencies will not occur. Therefore, one asks what is to happen when such a situation arises.
What are to be the normal rules of statutory interpretation?—because the ordinary canons, as 1 understand, would not apply. An analogy to all this is afforded by the European Communities legislation. Under the European Communities Act, of course, provision is made in effect that legislation emanating from Europe shall prevail over domestic legislation. That is part of the European Communities Act and it is easy for all to understand. What has perhaps been less plain and has become increasingly less plain recently is the way in which domestic courts are to interpret whatever it is that may come out of Europe. Indeed, the case of Simmenthal has added fuel to the flames, in that the European Court of Justice regards the domestic courts of the United Kingdom—and for one moment I am not talking about Scotland—as being in what could be described as a considerably inferior position.
If I may quote from The Times report of 13th March about the case of Simmenthal—which for those of your Lordships who may not be familiar with it is an Italian tax case—the court held that:

987
"a national court, called upon in the exercise of its jurisdiction to apply Community law rules, shall ensure the unhampered application of those rules, if necessary, by leaving unapplied, on its own authority, any national law rule, even if enacted subsequently, which is contrary to Community law, without requesting or awaiting prior appeal of such national law rules by national legislative enactment or by any other national constitutional process".
The reason for quoting that part of the judgment is to point out that, as our existence in the Community progresses, rules of construction are being thrust upon us; it may be, in the end, a better way for citizens to comport themselves—at least they will know, one hopes, where they are. My point is that, as this Bill stands, where such inconsistencies arise people will not know where they are. The point of the Amendment (putting the matter shortly) is to suggest, at any rate, to the Government one means by which at least where an inconsistency is discovered the matter may be logically left where it is unless or until somebody does something about it. I beg to move.
3.9 p.m.
The SOLICITOR-GENERAL for SCOTLAND(Lord McCluskey): I hope that the Committee will forgive me if, in replying to the noble Earl, I deal with matters that go a little further. I do so quite deliberately because I am given to understand that not every provision in this Bill is wholly understood by every Member of the Committee. This may be a suitable opportunity to try to assist those noble Lords who have not followed all the provisions to follow this particular one.
As the noble Earl has said, we talked about Amendment No. 225 on a previous occasion and there are really two interlocking questions for consideration by the Committee. One of them is this. Should Acts of Parliament be given any degree of protection against amendment by, or repeal by, Acts of the Scottish Assembly? The other question, which is one to which this particular Amendment is related, is this: In the event of conflict or apparent conflict between an Act of Parliament, on the one hand, and an Act of the Assembly on the other, should the Act of Parliament automatically prevail?
988
Amendment No. 76 is directed to the second of these questions and I touched upon the other aspect when replying to Amendment No. 225. 1 should like to try to explain the background a little more fully than 1 did on that occasion. The Bill describes the legislative competence of the Assembly in terms of devolved matters. I cannot emphasise this wording or concept too strongly. I can perhaps best illustrate and demonstrate the concept by drawing attention to the relevant provisions of the Bill. In effect, 1 shall be describing a critical aspect of the structure of the Bill: and I would hope that this proves useful both for this and other matters.
That detail is contained in Schedule 10; and one gets there through a chain of provisions leading from the first four lines of Clause 18(2), through paragraph I of Schedule 2, thence into Clause 59(2) and ultimately to Schedule 10. The Committee will see that the matters described in Schedule 10 are in the main described in quite general terms. Part I is paramount: it sets out the devolved matters assembled, for convenience, in groups. Part II then identifies, again in general terms, matters which are not included in the groups, although otherwise they would be. So far, there has been virtually no mention of any enactments. Then we come to Part III. Part III refers copiously to existing enactments; but as the preliminary paragraphs to Schedule 10 (at the foot of page 47 of the Bill) and particularly paragraph (b), make clear, the object of referring to these enactments is simply to indicate whether the matters dealt with in those enactments are or are not devolved matters included in the groups. In a phrase, Part Ill does the fine tuning. It is a large-scale map, as it were, of the frontier between the devolved matters and the matters which are not devolved.
So the Committee will see that the Assembly's legislative competence relates to and is defined in terms of matters. It does not relate to Acts of Parliament. The Government have no particular concern to protect whatever legislation they may have passed in relation to any particular devolved matter. Wherever it wants protection, the Government have already secured it by the provisions of Schedule 10 as it stands, either by not devolving the matter or by specifically excepting it in Part II.

989
Against that background, it becomes easier to understand the real content of legislative devolution. The Assembly may be content to adopt existing legislation relating to devolved matters. That legislation will, indeed, continue to apply as at and from the first moment when devolution takes effect. But thereafter it will be competent for the Assembly, subject to various constraints that are laid down in the Bill, to which I do not need to refer in detail here, to treat that legislation however it likes. It may amend it; it may repeal it; or it may supplement it by passing legislation in new areas: for example, pollution or the criminal law—areas in which there are certain parts untouched so far by Act of Parliament. The extension of legislation into new areas may, indeed, be the first and main step forward which the Assembly takes. There is no reason why Parliament should claim that whatever legislation it has previously passed in relation to what will become devolved matters should stand for all time. This is the central feature of legislative devolution: let the Assembly do what it will—subject always to the constraints which I have mentioned—in relation to matters properly within its competence.
That was the main argument which I foreshadowed when I was speaking on Amendment No. 225. There is no general justification for entrenching Acts of Parliament: to do so would be inconsistent with the whole philosophy of devolution. Where the Government want existing legislation—or rather, the matters to which it relates—protected against Assembly legislative action, the Bill has already achieved that. The Committee will see that in Parts II and III of Schedule 10 and also in the provisions to be found in Clause 60(1) and 60(2). The Committee will, I hope, see clearly the relevance of this to the Amendment we are now considering, Amendment No. 76, and I should say something about what the noble Earl said about the possibility of the game of legislative ping-pong developing between Parliament and the Assembly. Again, we touched on this in the earlier debate but it is a matter of real importance and we must try to get it right. The key to it is that there are really two possible situations.
In the first situation, Parliament could be legislating on a devolved matter because
990
the United Kingdom Government and the Scottish Executive have agreed that it should do so. It could, for example, prove convenient that Ministers should promote Westminster legislation implementing an international obligation for the whole of the United Kingdom. Or some emergency situation might arise in which Parliament is capable of moving quicker than the Assembly. In these cases, there is no reason why the provisions as enacted by Parliament, and by consent, and relating to matters within devolved legislative competence, should not thereafter be entirely within the Assembly's competence to reconsider.
That is the first situation. The second is rather different. However regrettable and remote the possibility, the Government at Westminster might find themselves forced to legislate on a devolved matter without the blessing of the Scottish Assembly. In that situation it would be legislating deliberately. In extreme cases, it could be legislating contrary to the wishes of the Executive. Reason and common sense should prevent the Assembly from seeking to overturn that legislation; but the Government might conclude that in order to achieve certainty, they should protect their legislation against future Assembly legislation and accordingly entrench it. The way to achieve this would be by some explicit provision placing that legislation expressly outside the Assembly's legislative competence. It might even be necessary—again in the most extreme case—to adjust Schedule 10 of the present Bill by a subsequent Act of Parliament.
If I may summarise, there is, in the Government's view, no general case for protecting Acts of Parliament as such against Assembly Acts. It is matters that count, not Acts of Parliament. To give any special degree of primacy to Acts would be to distort the whole structure of the Bill. So in general I would submit that there is no reason why an Act of Parliament as such should prevail every time it is in conflict with an Assembly Act. If the conflict occurs in a devolved matter Parliament has no need to assert any primacy. I suggest that this goes a long way to meeting the concern which the noble Earl and the noble Viscount have expressed by putting down this Amendment. I hope it also takes account of what the noble and learned Lord, Lord

991
Hailsham of Saint Marylebone, said when we dealt with this matter in Committee on 12th April.
May I come specifically to this particular Amendment. What it seeks to do—and I do not think the noble Earl would dispute this—is to provide a rule of thumb for determining how the courts are to resolve the particular question when there is a conflict between the provision in an Act of Parliament and a provision in an Act of the Assembly. The result is clear but it could be unfortunate and I should like to formulate the matter in a slightly different way. The Scotland Bill is a declaration that Parliament does not ordinarily intend to legislate in relation to devolved matters. Accordingly, if it does so in future, it will be doing something extraordinary. It will be doing it either deliberately or, as the noble Earl also foreshadowed, accidentally.
If it does it deliberately—if there is a deliberate intention to legislate on a devolved matter—that will either be with the consent of the Assembly or contrary to the wishes of the Assembly. This presents no problem in protecting the Act of Parliament, if that is what is desired. If, however, the legislation by the Westminster Parliament in relation to a devolved matter is inadvertent or accidental, then I have to ask the question: Why should this Act seek to preserve that inadvertent piece of legislation against an Assembly Act? After all, the Assembly will not be legislating inadvertently in relation to devolved matters. Accordingly, if one wants a rule of thumb as to which should prevail, one might say that the better rule of thumb is that where there is conflict, it should be the Assembly Act which prevails rather than the Act of Parliament.
In relation to the final point that the noble Earl made—namely, the attitude of the courts and the guidance for the courts, I suggest that the courts would not welcome—and certainly do not need—any mandatory or statutory rule of construction. There is, I believe, no call for any rule of this sort at the present time. Even under the present system, there can be apparent or real repugnancies between the provisions of different Acts of Parliament. However, the assiduity of draftsmen, the vigilance of Parliament
992
in scrutinising legislation and the expedience of the courts in applying rules of interpretation ensure that at the present time conflict is virtually unknown and is, of course. always resolved if it does appear.
It is always a highly relevant consideration that a court is obliged to decide any case in front of it and cannot simply declare itself baulked because of an apparent conflict. Is it unreal to suppose that the courts will, after devolution, apply the same rules and will not be put off by the consideration that the provisions under consideration are the products of two different Legislatures? It may be that experience will show that in this we were wrong to take this particular attitude and, if that should turn out to be so, we shall know exactly what has been going wrong and why and Parliament can then consider what remedy will be appropriate. I do not suppose it will be as simple as the one mentioned by the noble Earl in his Amendment.
I apologise for the length and complexity of this particular exposition. I hope that, if it has been difficult to follow, noble Lords will have an opportunity to look at it and that it may provide some guidance as to the whole scheme of legislative devolution. I would ask the noble Earl, in the light of the explanation I have given, to reconsider whether he wishes to press this particular Amendment.
3.23 p.m.
Lord HARMAR-NICHOLLS: The last words of the noble and learned Lord, I think, justify including this Amendment. He said that he had to give a lengthy answer—of course it was right that he should do that—and he said it was very complex. It is because it is so complex and because there are so many doubts and so many byways that could be taken either by the Assembly or by Parliament, that something simple that can be clearly understood should be inserted. This Amendment seems to do just that. At the end of the day, the Amendment will only be doing what the noble and learned Lord has said he thinks will happen if the terms of the Bill as it now stands are worked out.
Lord McCLUSKEY: I am sorry: even though I was lengthy I was obviously

993
not clear. The Amendment does something which is quite clear, but it does not necessarily achieve the result that the courts would achieve. Under the normal rules of construction, the courts, looking at two apparently repugnant pieces of legislation, will hold that the later one prevails over the earlier one. This is a different rule, and therefore the courts would find themselves having a mandatory statutory rule thrust upon them through this Bill, which would apply only to this kind of question and not to any others.
Lord HAR MAR-NICHOLLS: That was the point I was going to come to next, actually. I should have thought the courts would welcome this. The noble and learned Lord said they would not, and he thought that they would like to be the final adjudicators. I should have thought that clear instructions which arc mandatory would have been the sort of thing that is wanted. In all the circumstances, I cannot see how anybody could object to the proposition that, should any of these things happen—the noble and learned Lord says he does not think they will, or they may not happen—the fact is that the Act of Parliament shall prevail; I would have thought that fundamental. I should have thought that is one thing that should he made absolutely clear, because if one looks at Schedule 10 (the noble and learned Lord said quite rightly that it is split into three sections) and if one reads that Schedule carefully, one will see that there are so many contradictions in it, or at least there are so many words that could seem to be contradictory. While I think that there may still remain problems that have to be settled on merit, I should have thought the overriding point was that where there is conflict, whether deliberate or accidental, it is the Act of Parliament that shall prevail. That should be accepted and should be written into the Bill very clearly, as indeed these words would do.
If the kind of thing which the noble and learned Lord thought would not happen did happen, he said that Parliament could pass another Act to put the matter right. That is the very thing that disturbs me about this and I am really coming back again to my real objection to this Bill: the minute that the Westminster Parliament has to do that, you
994
are building in a conflict which is much wider, deeper and more dangerous than the legalities which the noble and learned Lord has been dealing with. Because there is a risk of that—the noble and learned Lord himself said that is the very thing he has just been explaining, and that concerns only one paragraph in the whole Bill and it is complex and difficult to follow—it is vital that the fundamental point should be spelled out very clearly: namely, that where there is a conflict it should he the Westminster Act that prevails.
The noble and learned Lord is learned in these matters. My only claim in that direction is that I am still a student member of Middle Temple: I have eaten my dinners and that is as far as it has gone. Indeed, they were not even dinners, but lunches, because it was in war-time and it was cheaper to get a lunch there than anywhere else under rationing. So I know it is a presumption. on complex matters of this kind, for me even to attempt to be in conflict with the noble and learned Lord. However, I should have thought, on sheer grounds of common sense—and I have always found, however difficult lawyers may make them appear, that our laws are usually based on common sense if one has the courage to get down to the base—that the courts would have welcomed the clear guidance that this Amendment gives. I see nothing in the very interesting explanation which the noble and learned Lord has given which, at the end of the day, would prevent his accepting this Amendment. I hope that my noble friends will be able to produce arguments which may persuade the noble and learned Lord to do just that.
Lord MACKIE of BENSHIE: Since the noble Lord, Lord Harmar-Nicholls, has reduced the matter to an element of common sense, I feel I can compete with him there. I think that in this case you devolve power for a very simple reason: that is, because the people on the spot understand the situation better than those who are farther away from it. That is the whole object of the exercise. Then you lay down conditions, of which there are masses in this Bill, all of which will no doubt be discussed in detail, saying on what matters you may not legislate. Therefore it appears that this Amendment,

995
which rightly probes one of the conditions of the Bill, has to give way to the explanation—which I must say I thought I understood—in the face of common sense in that if the Assembly, legislating on a matter, is to find itself automatically overturned by a previous Bill, whether it has been forgotten about or passed inadvertently or not, then really you have a source of conflict. So I must say that on common-sense grounds it appears that the Amendment, however useful, perhaps should not be pressed.
Lord WILSON of LANGSIDE: In relation to this Amendment, not for the first time I find myself in agreement with the noble Lord, Lord Harmar-Nicholls, in everything he has said. Like the noble Lord, Lord Mackie of Benshie, I also listened with great interest and thought I understood what the noble and learned Lord, Lord McCluskey, was saying. But what he did say surely did not meet the point of the Amendment. I would make two observations in support of that view. He did not dispute that conflict is a not unlikely outcome of these provisions; nor did he say with any clarity or certainty how that conflict, when it arises in this particular context, is to be resolved. In that situation, I should have thought that the argument of the noble Lord, Lord Harmar-Nicholls, was irresistible; namely, that if there is to be conflict, let us provide here and now for a method by which it will he resolved. What the noble Lord said about the background to the Bill is of great general interest, but it surely does not meet the point of the Amendment moved by the noble Earl, Lord Mansfield.
Lord CAMPBELL of CROY: The noble Lord and the noble and learned Lord, Lord McCluskey, have taken the opportunity with Amendment No. 76 to give a description of the whole construction of the Government's devolution scheme and the way in which the Bill has been drafted; and so far as it went, that will be useful in the discussions during the Committee days of this and next week. He said that the competence of the Assembly is to be determined with reference to the matters which are devolved and not with reference to Acts of Parliament. He also told us that Part III of Schedule 10 was a piece of fine tuning. We are interested to have that advance
996
notice and description because we shall certainly be asking questions when we come to it.
He described a situation where there was agreement between Westminster and the Assembly upon Westminster legislating in a devolved area. He also touched on situations where there was disagreement, but, so far as I heard, all this was relating to future legislation; that is, situations where the Parliament or Government at Westminster were considering bringing in a Bill and where a new Bill was under consideration at the Assembly in Edinburgh. I should like to ask him—because I do not think he touched on this—what happens when it is discovered that a Bill which has been enacted in Edinburgh is in conflict with an Act of Parliament which was passed in the past.
For example, it may be found that something which was entered into and passed in good faith is found to be in conflict with the 1968 Act at Westminster. However carefully draft legislation may be examined in the course of being amended and appearing as an Act of the Assembly, it may be discovered that there is some conflict , and there appears to be no way in the Bill of dealing with that situation. The noble and learned Lord was describing to us a situation where legislation was starting.
I must also agree with what my noble friend Lord Harmar-Nicholls said, and what the noble and learned Lord, Lord Wilson of Langside, said, that there is bound to be conflict when there is disagreement. The noble and learned Lord, Lord McCluskey, described a situation where the Parliament at Westminster may feel obliged to do something against the wishes of the Assembly at Edinburgh. That is bound to cause conflict and many of us are worried that, if there is not a clear procedure for dealing with the situation, it will only make the conflict worse and we shall have the kind of situation which all of us are trying to avoid. At present the Bill appears to make no proper provision for this kind of situation, and so we must ask the noble and learned Lord in due course to consider this further.
Viscount DILHORNE: The noble Earl, Lord Mansfield, has drawn attention to a point of considerable difficulty. As I

997
understand it, this Amendment is intended to give some help to the courts, but I am not sure that it will give very much assistance. The noble Earl did not explain the relationship between this Amendment, if carried, and Clause 17(2). I think that needs to be studied in some degree and explained. As I read the Amendment, it secures that an existing Act of Parliament, or an Act passed in the future, is to prevail over a provision in an Assembly Act so long as that Act of Parliament remains in force. I hope I have got that right. IT that is so, it means that what this United Kingdom Parliament is giving to the Assembly with one hand it is taking power to take back with the other. If anything is likely to lead to real conflict between the Assembly and the United Kingdom Parliament, I think that would be likely to be it.
There was one other matter, in the course of the interesting exposition of how this Bill is intended to work given by the noble and learned Lord, Lord McCluskey, which I did not undertsand. Of course Bills very often do not work at all as they are intended, and that may be the fate of this one. The noble and learned Lord said this—and this is what puzzles me:
"Parliament may pass a measure which deals with a devolved matter which is within the power of the Assembly and so trespass on the sphere of the Assembly. It may either do it deliberately with consent or inadvertently or in opposition to the wishes of the Assembly".
I hope I have got that right. He went on to say:
"If it does it deliberately in opposition to the wishes of the Assembly, that can be made entrenched".
I should like him to explain how that can be done. If the Assembly always has power under Clause 17(2) "to amend or repeal a provision made by or under an Act of Parliament", it seems to me that, as it stands under the Bill without the Amendment of the noble Earl, one is likely to get what he describes as a "ping-pong" situation arising if there be any attempt by the United Kingdom Parliament to legislate as to a devolved matter contrary to the wishes of the Assembly. I hope he will explain how, in the light of Clause 17(2), he thinks that an Act of Parliament can he entrenched and not interfered with by an Assembly.
998
He said that there would be no problem when the Assembly agrees to Parliament covering the whole of the United Kingdom in some piece of legislation which affects a devolved matter. That may be so at the time of the legislation: but does it mean—I should like to be clear about this—that, although with consent the United Kingdom Parliament deals with a devolved matter, there is anything to stop a future Assembly from altering that? I should have thought not. I should have thought that as the Bill now stands, it was always within the competence of the Assembly to alter a provision of a United Kingdom Act, whether in existence when the Assembly is created or passed thereafter at any time, so long as that provision relates to a devolved matter.
In construing the relationship between an Act of Parliament and an Assembly provision to see whether they really are in conflict, I myself agree with the noble and learned Lord, Lord McCluskey, that what is called, by the noble Lord, Lord Mackie of Benshie, and the noble Lord, Lord Harmar-Nicholls, a commonsense approach, is likely to lead to very uncommon difficulties.
Lord DOUGLAS of BARLOCH: I have tried to follow this discussion. With respect, I think the noble and learned Viscount, Lord Dilhorne, has gone on to a point which is not at present at issue. As I understand it, the Amendment is dealing with enactments of the Scottish Assembly which conflict with Acts of Parliament, and we must remember that this involves two different considerations. If the Scottish Assembly passes legislation which is not within its province to deal with, obviously it can conflict with an Act of Parliament, but if it passes legislation which is within its province to deal with—and that is what the Amendment refers to—then it does not matter whether or not it conflicts with an Act of Parliament. It is entitled to do so. If it is not entitled to do so the whole Bill becomes completely futile. Devolvement of power to a Scottish Assembly is limited by existing United Kingdom legislation relating to the matters which are within the competence of the Scottish Assembly. It must have the power to amend and, in that sense, to conflict with legislation which has been passed at Westminster.
Lord STRABOLGI: I suggest that this may be a good moment to hear a Statement which is at present being made in another place. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

RHODESIA
3.40 p.m.
The MINISTER of STATE, FOREIGN and COMMONWEALTH OFFICE(Lord Goronwy-Roberts): My Lords, I will with permission read a Statement on Rhodesia which is now being made in another place by my right honourable friend the Secretary of State for Foreign and Commonwealth Affairs. The Statement is as follows:
"I will, with permission, Mr. Speaker, make a Statement on Rhodesia.
"The United States Secretary of State and I met the leaders of the Patriotic Front in Dar-es-Salaam on the 14th and 15th of April. We also met President Nyerere. On 16th April we had talks in Pretoria on Namibia and Rhodesia with the South African Foreign Minister and on 17th April we met the signatories of the Salisbury Agreement.
"The aim of all these meetings was to prepare the ground for round table talks to bring about a negotiated ceasefire and an internationally acceptable settlement.
"I do not wish to hide from the House that there are still major differences between the parties, both of whom think they are winning. However, there are some signs that we could widen the existing areas of agreement in two important ways, both of them crucial if we are to establish a neutral administration for the transitional period, capable of holding fair and free elections.
"First, the Patriotic Front is now closer to accepting a role for the United Nations in supervising a previously negotiated ceasefire and in monitoring the activities of the military and police
1000
forces. There is more understanding in Salisbury that United Nations in-volvement gives an assurance that sanctions would be lifted prior to independence.
"Secondly, all would probably now agree to a Council with wide executive and legislative powers whose members would hold Ministerial portfolios. The Patriotic Front said that, provided their other demands (some of which are unacceptable to us) were met, they could accept a council presided over by a Resident Commissioner holding reserve executive powers over defence and law and order.
"There was widespread recognition in all of Southern Africa that if we and the United States were to abandon the search for a negotiated settlement based on the principles of the Anglo/ United States proposals there would be no alternative to a bitter and bloody conflict, with an uncertain outcome and the grave danger of it becoming internationalised and involving all the countries surrounding Rhodesia. The Patriotic Front accepted our invitation to round table talks and the signatories of the Salisbury Agreement have undertaken to give it serious consideration ". My Lords, that is the end of the Statement.
3.44 p.m.
Lord CARRINGTON: My Lords, the House will wish to thank the noble Lord, Lord Goronwy-Roberts, for repeating that Statement and, since we are to have a debate on Southern Africa next week, I shall confine myself to a very few remarks. I am quite sure that it is right that the Foreign Secretary should still be trying to get agreement between the two sides, and if the gap has narrowed that is welcome, though there is a very long way to go. But I think that the British and American Governments, and in particular Mr. Young, must not give the appearance of favouring the Patriotic Front, with its forces, at the expense of the internal group.
We ought to remember, and should remind ourselves, that of the two parties with whom the Government are dealing one has accepted, without qualification, the conditions for independence laid down by successive Governments, both

1001
Conservative and Labour, including a supervised general election; while the other party, without much evidence of public support in Rhodesia but with large guerrilla forces, armed and financed by the Soviet Union, is asking for what amounts to total control of Rhodesia in the interim period; and, indeed one of those leaders has openly advocated a one-Party Marxist State. No doubt Dr. Owen the Foreign Secretary, cannot say these things so bluntly, but it is not a bad thing that those of us who are not so inhibited can do so. So let us work for an association between the two sides; that must be right. But let us, above all, have regard—because it is ultimately Britain's responsibility—to the wishes of the people of Rhodesia.
Lord GLADWYN: My Lords, we on these Benches should also like to thank the noble Lord for repeating this important Statement. In our view, the Secretary of State is to be congratulated on making what seems, at any rate, to have been some progress towards a settlement, together with his United States colleague; though here I must say that I personally associate myself, to some extent, with what the noble Lord, Lord Carrington, has said. We also entirely agree with the last paragraph of the Statement. Unless there is some agreement between the Patriotic Front and the new regime in Salisbury, we can only expect a continuation and, no doubt, an extension of the war. In this connection, would the noble Lord like to comment on the recent report that a Russian general has arrived in Mozambique and is engaged in preparing for an invasion of Rhodesia, based on tanks and MIG fighters from a base North of Beira?
3.47 p.m.
Lord GORONWY-ROBERTS: My Lords, may I first thank the noble Lord, Lord Carrington, for the tone and content of his contribution this afternoon. I think that we all welcomed what he said, and the way in which he said it, and I certainly include my right honourable friend the Foreign and Commonwealth Secretary in what 1 am saying. I am quite sure that what the noble Lord said to us will be most welcome to him. I merely want to underline one or two of the points of non-inhibition which the noble Lord felt able to make.
1002
Of course we do not seek to place a premium on violence. The whole object of the exercise is to ensure that there is an orderly movement into independence in Rhodesia. I am quite sure that my right honourable friend, the British Government and the British people would not countenance an attitude which encouraged the idea in Rhodesia, or anywhere else, that the way to get an acceptable solution is to spill blood. On the question of meeting the wishes of the people of Rhodesia, this is of course very much the vital fifth principle, and here, again, it is the basis of my right honourable friend's assiduous efforts of the past few weeks and months, and the efforts that he proposes to make, hopefully in an all-party round table meeting in the near future.
Equally, the noble Lord, Lord Gladwyn, made a constructive contribution to our very interim consideration of the situation, bearing in mind that we are to have a debate next week. I take under advisement what he had to say about Russian generals in Mozambique and other places, and I hope that next week, if he will develop that and other points, I may be able to reply more fully.
Baroness GAITSKELL: My Lords, may I ask the Minister whether we can follow the example of our own Foreign Secretary, and not take Mr. Andrew Young too seriously? After all, he is very young, very new and has a lot to learn.
Lord GORONWY-ROBERTS: My Lords, Mr. Young is a very able young American leader who has shown great enthusiasm in regard to the solution of these problems. I do not think that we should exaggerate too much what is said from time to time by enthusiastic negotiators, including those from our own country.
Lord LEE of NEWTON: My Lords, is my noble friend aware that those of us who have for many years wished to see majority rule in Rhodesia believe that, if there is now further scope for discussion with the object of bringing the two sides together, so be it, but that many of us will be a little anxious if it appears that some of the leaders of Rhodesian opinion are becoming more concerned about where, at the end of the day, they finish up in the leadership than they are about the

1003
achievement of majority rule for the Rhodesians?
Lord GORONWY-ROBERTS: My Lords, this is not an unusual situation for politicians in politics. On the other hand, as my right honourable friend, a former Secretary of State, knows better than I, it is a difficult but necessary operation that, in achieving a peaceful settlement, regard has to be had even for unacceptable points of view which are held by people all around the table. As my noble friend knows, the hope is that we can effect the highest common factor of agreement among all the parties, including the Patriotic Front and elements in Rhodesia who up to now have proved as obdurate and unreasonable as have certain elements in the Patriotic Front. But we are not without hope. It is necessary to emphasise the difficulty of the operation, but it is also necessary at all times to emphasise the need to continue with the kind of negotiation that my right honourable friend, together with Mr. Cyrus Vance and, indeed, Mr. Andrew Young, has been conducting.
Lord SOMERS: My Lords, I, too, should like to thank the noble Lord for having repeated the Statement. I wonder whether he can explain to the House why his right honourable friend is so anxious to see in power the leaders of the Patriotic Front who have been responsible for the death of thousands of innocent Rhodesian black people—women and children—and have killed them in the most savage, horribly indecent way? Why does he want to see these people leading the country?
Lord GORONWY-ROBERTS: My Lords, it is for the people of Rhodesia, of all creeds, colours and backgrounds, to decide who they want to lead them, and it is for us to do our best to ensure that they have the opportunity to choose their leaders, whoever they are. It is not for us, I suggest, to apply certain criteria to potential leaders which might equally be applied to another set of leaders. I do not believe that we can advance the argument very profitably on that basis. Two principles are involved. The first is that the people of Rhodesia, whoever they are, should choose. The second is
1004
that we must do everything that we can to ensure that they have a fair and free choice.
Lord HARMAR-NICHOLLS: My Lords, there is one very narrow, tactical point which arises out of the Statement. Reference has been made to the need to come back to the Anglo-American agreement. I am wondering whether it is wise to continue to present the Anglo-American agreement in such definite terms. They were not accepted by the Patriotic Front; they were not accepted by the others. It is quite clear that circumstances have altered a little. While what the Anglo-American agreement wanted was quite sound, and one applauds it, to cause the other people now to accept something that they previously turned down may make a solution of the conflict rather more difficult than if it were said that the Anglo-American agreement, as it was first presented, can now be amended and replaced by something else. I believe this would be preferable, rather than that the impression should once again be given that it is the Anglo-American agreement and nothing else that must form the basis of the discussions.
Lord GORONWY-ROBERTS: My Lords, I think that the noble Lord has put it very fairly. I believe that on another occasion in this House I have put it this way: that what we rest on are the Five Principles, and in particular the fifth principle which states that the people of Rhodesia should choose. The Anglo-American proposals are, we suggest, a very good way of implementing those principles, but they are by no means sacrosanct. They are a means of applying irrefutable principles.
Lord LOVAT: My Lords, I do not know how well the noble Lord understands the Matabele people, but they have a rather interesting proverb which runs:
"The wise goat keeps his mouth shut when the witch doctor approaches the flock with a knife."
May I suggest that the noble Lord should pass on these remarks to Mr. Andrew Young who seems determined to precipitate a blood-bath in Rhodesia.
Lord GORONWY-ROBERTS: My Lords, no doubt Mr. Young could command his own set of proverbs in reply.

1005
I think that we are a little in danger of engaging in a slight, friendly altercation with our friends. We should all unite, on both sides of the Atlantic and with our friends in Africa, who are myriad, on the central purpose of these negotiations and should draw in support of those negotiations proverbs from America, Europe and Africa.
The Earl of PERTH: My Lords, would the noble lord agree that whatever may be the opinions in the House about Mr. Young, we all welcome the American participation with ourselves in talks to seek a solution?
Lord GORONWY-ROBERTS: My Lords, I, in turn, welcome wholeheartedly what the noble Earl has said. I do not think that anybody in this Chamber would dissent from the content and the warmth of what we have just heard.

SCOTLAND BILL
3.57 p.m.
Lord STRABOLGI: My Lords, I beg to move that the House do once again resolve itself into a Committee on this Bill.
Moved, That the House do again resolve itself into Committee.—(Lord Strabolgi.)
On Question, Motion agreed to.
House in Committee accordingly.
[VISCOUNT HOOD in the Chair.]
Debate resumed on Amendment No. 76.
The Earl of LAUDERDALE: When the noble and learned Lord, Lord McCluskey, is in his best unbuttoned mood racing through a brief, it is not always easy to follow him, particularly if one is a non-legal layman. I have been puzzled by several things which I thought he said, and which I noted down as well as I could while he was speaking at some speed. First, there is the question of inadvertence. I believe it is granted by the noble and learned Lord that there can be situations in which, by pure accident, an Act of the Scottish gathering or Convention might be found to conflict with an Act of Parliament, or vice versa. But what the noble and learned Lord said was that there would be no inadvertence on the part of
1006
the Scottish Assembly. Inadvertence, however, is the common lot of man, so far as Parliamentary life is concerned.
Lord McCLUSKEY: When the noble Earl thought that I was racing through my brief, perhaps he failed to hear and certainly he failed to understand what I said. I said that it would not be inadvertent for the Assembly to legislate in relation to a devolved matter, because that is what the Assembly is for. If, post-devolution, the Westminster Parliament legislates on a devolved matter and does not do so either by agreement with the Assembly or deliberately over-rides the wishes of the Assembly, then it legislates inadvertently. I hope that the point is now clear to the noble Earl.
The Earl of LAUDERDALE: It is getting a little clearer, but I feel rather like the student who went to his economics tutor and, after an hour, was asked whether he was less confused, to which he replied, "I am less confused, but at a higher intellectual level". I will take the noble and learned Lord's word that it is accepted that there could be inadvertent mistakes made as much by the Scottish Convention as by Parliament. However, what worries me much more is the kind of answer which I received from the noble and learned Lord. For example, he said that Parliament does not ordinarily mean to intervene in devolved matters. Then in extraordinary cases it does mean to do so, and this is not a very happy signal to the people of Scotland. It is one thing to devolve matters for good and all; it is another thing to devolve them and to say, "Yes, but there will be moments when we shall come charging in and we shall have to act".
If I have understood him incorrectly, then there is an opportunity for him to make it clearer because this will be important from the point of view of public opinion. As I understood it, he said that the Parliament of Westminster will not ordinarily mean to intervene in devolved matters. What we really want to know is that it absolutely does not mean to intervene in devolved matters. The noble and learned Lord then went on to say that the Parliament at Westminster might be forced to legislate on devolved matters contrary to the wishes of the Edinburgh Assembly. Surely this

1007
is one of the nubs of the whole thing. There is the possibility—even the likelihood—that at times the political colour of the gathering in Edinburgh will be different from the political colour of the gathering at Westminster. That is almost inevitable sooner or later; indeed it may happen all the time.
That is the situation that worries some of us who want to see a measure of devolution at some stage in some way, but see here a set of propositions that simply seem to add up to confusion. The Government are saying that Westminster might be forced to legislate on devolved matters, contrary to the wishes of the Edinburgh Assembly. Surely it is important that we should get the matter clear and the purpose of the Amendment before us, as I understand it, is to make the matter clear.
Again, the noble and learned Lord said that Parliament may have to act to adjust Schedule 10. That is not very encouraging to those in Scotland who are hoping for the best out of this Bill and who want to see devolution done clearly and cleanly and effectively without danger to the Union as a whole. On the contrary, it is a recipe for confusion and dissension. Then 1 understood the noble and learned Lord to say that there is no reason why a Parliamentary Act need prevail in all cases. We must surely know. As I followed the noble and learned Lord's discourse it was terribly confusing. One is not quite sure whether Parliament is supreme or not. Apparently Parliament is not ordinarily intending to intervene and yet extraordinarily it might. This needs to be made much clearer than it is already. Here and elsewhere in the Bill we have ample opportunity for confusion and dissension and there are plenty of people about, seen and unseen, who wish to exaggerate confusion and dissension to the damage of our country as a whole. I hope the noble and learned Lord can make the matter clearer to simple people than he has made it so far, and if he takes me as a sample of a simple man that will not be a bad thing.
4.4 p.m.
The Earl of SELKIRK: I found the noble and learned Lord's remarks
1008
extremely interesting. He drew a little bit of the curtain aside from the appalling Part III of Schedule 10, and 1 have never understood how that particular part worked with the Bill. So far as I understood him, he said that any Act passed here can in fact be amended by the Scottish Assembly. Secondly, that the purpose of the Government is that within a properly devolved subject the Government have no intention, except in unusual circumstances, of interfering. Indeed, the Bill provides ample statutory arrangements by which, if necessary, Parliament can intrude.
I do not entirely know what the noble and learned Lord means by an "entrenched clause", unless he means simply an Amendment to the Bill. That may be the meaning of the words "entrenched clause" but it is not quite the usual meaning in a constitutional sense. But that is not really the question which my noble friend was asking. He was asking what happened to the people on the spot. Here is the problem—which law are we to follow? My noble friend Lord Lauderdale and others have made the point that people must know; they have to make provision for the future. One has to arrange one's affairs within the law of the country. One must have some idea of what the law will be next year, or perhaps the year after. It seems to me that we should know one way or the other.
I think the noble and learned Lord, Lord McCluskey, comes down on the opposite side to the noble Earl, Lord Mansfield. He says that it ought to be the Act of the Assembly which shall prevail so long as it is in force. Would he accept that? I think it is more important that we should know which Act applies rather than that we should leave it vague. I would rather have one or other as the prevailing Act on the correct subject: that is to say, within a devolved subject within the legal competence of the Assembly, in so far as its Acts are the last on the Statute Book they should take precedence over the United Kingdom Act. Is that what the noble and learned Lord would like?—because I believe it to be a great advantage to have one side perfectly clear rather than to leave it vague as it is at the present time.
Lord McCLUSKEY: There are a number of points to be dealt with and I hope I shall be forgiven if I answer one of the points that was in fact put by the noble Earl. The Amendment—and I did not deal with this before because I thought it was plain—in the last few words says:
"the Act of Parliament shall prevail so long as it is in force".
The noble Earl and the noble Viscount, Lord Colville of Culross, accept Clause 17(2), which is the clause which makes it plain—and both the noble and learned Viscount, Lord Dilhorne, and the noble Earl, Lord Selkirk, referred to this—that a Scottish Assembly Act may amend or repeal a provision made by or under an Act of Parliament. So in the ordinary situation when the Assembly comes to legislate, the draftsmen will discover that there is in existence an Act of 1968, such as was mentioned by the noble Lord, Lord Campbell of Croy, or some other Act, and that there is an existing provision. The draftsmen will pick that up and, using the powers conferred upon them by Clause 17(2), the Assembly will then repeal the Act of Parliament.
Lord CAMPBELL of CROY: But can the noble and learned Lord absolutely guarantee that that will always happen?
Lord McCLUSKEY: No, and I will return to the matter of inadvertence later. But the genius of the Amendment is that it recognises that, and the significance of the words, "so long as it is in force" is that Clause 17(2) enables that Act of Parliament to be repealed by the Assembly, so the movers of the Amendment were in no doubt about that particular point. I hope that answers the point raised by the noble and learned Viscount about the relationship between this Amendment and that particular clause and I hope I shall be forgiven for presuming to answer on the noble Earl's behalf, but it is germane to the whole point.
The noble Earl, Lord Selkirk, quite rightly took me up for using the word "entrenched" because it is not a word which is properly known in our jurisprudence. I was using it in the Committee as a form of shorthand, for which I hope I shall be forgiven. As he says, what an Act of the Westminster Parliament can do in future, if it wants to ensure that one of its provisions shall not be repealed
1010
or amended by the Assembly on a subsequent occasion, is this. It may achieve that in one of two ways: it may use words such as "notwithstanding anything contained in Section 17(2) of the Scotland Act 1978" et cetera, or, alternatively, it may amend the Scotland Act of 1978 in order to prevent the Assembly from legislating on that matter in the future.
Viscount DILHORNE: Then if Parliament passes an Act in that form, what is to stop the Assembly from repealing it?
Lord McCLUSKEY: As I have said, it would amend the Scotland Act and amend either Clause 17(2) or some part of the Schedules in order to prevent the Assembly from having the legislative competence to repeal that Act of Parliament. In other words, on any future occasion the Westminster Parliament can, if it has to do so, amend the Scotland Act so as to remove from the Assembly the competence to amend a particular Act of Parliament and in that way, although I agree that it is a shorthand term, it can entrench any future provision.
The noble Lord, Lord Campbell of Croy, asked me a question: I hope I have dealt with part of it, and the other part I seek to deal with now. He says, "If the Assembly Act is in conflict with an Act which had been in existence in the past, which one prevails?" Of course one hopes that the draftsman picks up the point. If he does not do so, then the ordinary rules of construction prevail. It is not for me to lecture this Committee, including noble and learned Lords and others, on what they are, but the general rule is that where you have a legislature which enacts two provisions the subsequent one will always prevail over the earlier one, if there is an apparent conflict and they do not within themselves contain the means of resolving the conflict. I was asked specifically whether we do not have a need for a clear procedure. My answer would be that we should not be telling the Westminster Parliament in this Bill how to legislate in future on these matters. That is a matter for the Westminster Parliament to decide.
If one gets the inadvertent case—and that is the one which the Amendment is really homing in on, although I am afraid I have broadened the argument because

1011
I thought it might be useful, because I gave a pledge to the noble Earl, Lord Selkirk, at Second Reading that I would give some explanation about Schedule 10; I hope to give another one later—where the Assembly deliberately legislate in the devolved field and the Assembly draftsmen and the Assembly Members fail to pick up the fact that there is an existing statute, the ordinary rules would prevail. I would be content to leave that to the courts, and I hope the Committee will also be content. if the boot is on the other foot, and it is the Westminster Parliament which, while not intending to legislate in the devolved field, inadvertently puts a provision into a Bill which infringes on that particular field, then different considerations would apply. It becomes a matter of construction, in the terms of the whole Act of the Westminster Parliament, whether or not it was the intention to do this. I do not contend that one should have the rule, which I said was slightly more logical, that the Assembly measure should prevail over the Westminster Act. What I said was that one could make out a good case, perhaps a better case, for that, but the best case could be made out for saying to the courts, "These cases have arisen in the past and you have dealt with them. Apply the rules that you consider appropriate to that particular kind of case". I suggest that is not difficult. I hope the noble Earl will make it clear whether or not these explanations are acceptable to him.
4.13 p.m.
Lord HARMAR-NICHOLLS: I think this is another case where the legal outlook is in conflict with the Parliamentary outlook. The noble Lord seems to have produced a new system where many of the responsibilities are put on Parliamentary draftsmen. Parliamentary draftsmen do not exist, any more than the people in the Box exist; it is Parliament which makes the decision. We have a recent example, which divided both Houses, where Parliamentary draftsmen did not realise that a Bill was hybrid; it had a great effect on the way certain legislation would be affected, and it caused part of Government legislation to be withdrawn.
I do not believe that one ought to rely upon Parliamentary draftsmen, excellent
1012
though they are, being the watchdogs to that extent in that sort of situation. I believe it is Parliament's responsibility to make the position as clear as it can in Parliamentary words, to avoid such responsibility being thrown on the shoulders of people who do not exist in terms of being part of the legislation-making machine. To say that the conflict may not be there, or will not be there because the Parliamentary draftsmen will be aware of the legislation which exists, when only a month or two ago that situation did happen on a matter which was very much in everyone's mind, is, I think, very worrying.
Lord DRUMALBYN: May I ask the noble and learned Lord one question, which I think I am right in interpreting as being within the context of his, I thought, very clear statement? Is he envisaging this Amendment, and indeed the whole question, in the context of the interpretation in the Scottish courts of devolved legislation in relation to any other legislation? Is this the point which is involved? It seems to me rather a long way from my noble friend's approach, but if this is the narrow purport of this Amendment it would be very much clearer to me.
Lord McCLUSKEY: That is how I read the Amendment. I would not say exclusively the Scottish courts, because it is conceivable that a point of this kind might arise not in the Scottish courts, and indeed the Bill envisages that and makes provision for resolving certain issues. But, in the vast majority of cases, because the devolved matters relate to people in Scotland, one would expect any litigations to be in the Scottish courts. That is how I understand the Amendment, and I hope that answers the noble Lord's question.
Lord LOVAT: With great respect, would align myself with the noble Earl, Lord Lauderdale. I do not think the Minister has fully explained to the simple man what would happen if the balance of political power in Scotland shifted entirely. This could very well happen. I have been in your Lordships' House long enough to remember that in the early 'thirties Glasgow Council became a Labour Council, and people said at the time that it could never happen again.

1013
As it happens, there has never been any other council in the interval since that time. I think we are all probably anxious to see that the Scottish Nationalists do not control the Assembly: this is part of the object of devolution. What is going to happen if we find ourselves with a strong Scottish National Party in control of the Assembly who wish to separate from the United Kingdom—something which appals us in Scotland?
Lord McCLUSKEY: If I may reply, and I apologise for speaking once again, what the noble Lord says has absolutely nothing whatever to do with this Amendment. We are considering in Committee the advisability of providing a statutory rule for resolving a possible conflict that might arise through inadvertence. That is what we are discussing. I do not propose to take up the time of the Committee answering questions of the kind raised by the noble Lord, which have nothing to do with this Amendment.
The Earl of LAUDERDALE: I know the noble Lord is always very patient, and he will learn as time goes on to address his mind to those of us who arc at the bottom of the third form. I am not quite sure whether I heard him answer the very pointed question put by the noble and learned Viscount, Lord Dilhorne: Why cannot the Assembly under Clause 17(2) amend Parliament's amendment of their own Acts? He does not seem to have answered that, or perhaps I did not understand it.
Lord McCLUSKEY: I thought I did, and I thought the noble Earl, Lord Selkirk, pointed the answer to that question. If one had to do it, the Westminster Parliament could amend the Scotland Act itself so as to remove from the legislative competence of the Assembly the competence to amend the provision that they want to—and I use the word in inverted commas—"entrench".
Earl FERRERS: Is not that in fact quite a fundamental weakness? What the Government have done is to produce a Bill to devolve certain powers to Scotland, and, as the noble and learned Lord, Lord McCluskey, says, all they have to do at a later date is to repeal Clause 17(2) and then presumably everything that the Scottish Assembly does thereafter becomes
1014
wholly subordinate to the United Kingdom Parliament.
Lord McCLUSKEY: What the movers of the Amendment are talking about is a small technical matter. What the noble Earl is talking about is something entirely different. Surely 1 can explain, even to the thircl-formers, that the whole concept of legislative devolution is that once devolved matters have been devolved to the Assembly the Westminster Parliament is intending to stand back. If, for example, the United Kingdom Parliament has to enact an international obligation in relation to a devolved matter, where the Assembly has declined to do so—in that kind of extreme situation where the Assembly refuses to do what it ought to do in relation to a devolved matter and where the United Kingdom have an obligation under international law, or in some such context—you would find the United Kingdom Parliament legislating in relation to a devolved matter against the will of the Assembly. That is a very unusual situation and it might call for very unusual measures. I am not suggesting for one moment that it will happen every day. I suggest that it is unlikely to happen at all.
Earl FERRERS: I am sure that the noble and learned Lord is being very helpful to the third-formers, but perhaps he will now help the fifth-formers. One thing he said was really surprising; namely, that Parliament passes this Act and gives powers to the Assembly, but Parliament does not intend to interfere. Parliament is sovereign. It may be that the Government do not intend to interfere in anything that happens in the future, but, as the Bill is written and as I understand it, there is the possibility for the Assembly to legislate on certain matters and the possibility for the United Kingdom Parliament to legislate on those matters. With the greatest respect to the noble and learned Lord, I do not think that it is right to say that Parliament does not intend to interfere. If the Bill is passed and becomes an Act, the United Kingdom Parliament has just as much right to interfere as the Assembly has to legislate. Is that not a fact?
4.21 p.m.
Viscount DILHORNE: I should like to thank the noble and learned Lord,

1015
Lord McCluskey, for dealing with the point which I raised. I quite agree that there should be power in the United Kingdom Parliament to secure that any international obligation into which we enter is honoured by the whole of the United Kingdom, whatever may be the wishes of the majority in the Assembly. Of course, the noble and learned Lord has said that that can be done, but he has gone so far as to say that the United Kingdom Parliament would only legislate in circumstances like that. I am sure that he would make no claim to commit any future Parliament to any course of action.
Quite frankly, I think that he must concede that it would be within the power of a future Parliament to reduce the area of devolved matters and take away some of those matters from the Assembly if the Parliament of the day thought that that was a wise thing to do. I think that he must concede, under the Bill as it now stands, that there would be that power. At the same time I think that one could safely predict that no Government in their senses would be likely to do something which would perhaps lead more quickly than anything else to a break-up of the Union. However, that power would surely be there.
The noble and learned Lord has said that some of the questions raised in this debate have gone beyond the subject of the Amendment. I personally do not think that he is really the right person to complain of that, because he gave an address in answer to the speech of the noble Earl which covered a whole range and widened the debate. Indeed, I am grateful to him for having done so, because I think that what he has said is valuable and may lead to a greater understanding. For myself, I thank him for his explanation.
The Earl of MANSFIELD: This debate has ranged a good deal wider than my noble friend and I ever dreamt when we came to discuss and later to table this Amendment. A number of questions have been fired at the noble and learned Lord, Lord McCluskey. As the noble and learned Viscount, Lord Dilhorne, has said, he is the author of his own hurt in that he took the opportunity to come down from the mountain bearing what I know,
1016
when we read it in the Official Report, will be very wise words.
However, I do not think that at any rate the first part of his answer had anything very much, if at all, to do with my Amendment. I shall even forgive him for shooting my fox in the shape of the noble and learned Viscount, Lord Dilhorne, because what the Amendment does not do—and this point was taken by the noble Lord, Lord Mackie—is to fetter in any way the legislative power of the Scottish Assembly. As the noble and learned Lord himself said at one point, it is a comparatively narrow Amendment on a comparatively legalistic point, or at any rate a lawyer's point, and it is merely meant to encourage the Government to write into the Bill the state of affairs which would exist when the Bill becomes an Act, so that unless and until an Act of Parliament was changed by the Scottish Assembly, the Act of Parliament would prevail.
A great deal of the debate has centred upon what could be a matter of confrontation between the Scottish Assembly and the United Kingdom Parliament, and that certainly was not in my mind when the Amendment was tabled. Never-the less, I think that the debate has been of considerable value. I am still not entirely happy that the point of the Amendment has been answered by the noble and learned Lord, because when the whole thing eventually came down to his answer he said, in effect: "Oh well, we shall use the ordinary canons of construction so far as Statutes are concerned—the later one will prevail." Therefore, if the situation which I postulated is the one which is causing the difficulty—in other words, we have a United Kingdom Act followed by an Assembly Act—then, of course the Assembly Act will prevail, always provided that it meets the criteria laid down in Schedule 10. I am not happy that that will necessarily be the situation that comes about.
The noble and learned Lord was pretty quick to get round the other part of my hypothesis, that it may be that it is the United Kingdom Parliament at Westminster which is, in fact, inadvertently "trespassing", if that is the correct word—I hope that it is not the wrong one—into Scottish territory. I still think that it would be preferable to write something into the Bill which takes care of that

1017
situation. I do not think that the ordinary canons of construction are very helpful in this respect. I tried to illustrate this with what I might call the "European situation", which I think is more in point. Nevertheless, I believe that the best thing to do is to go away and read, and see what I can make of, what the noble and learned Lord said in his first answer. Indeed, I might even hope that the noble and learned Lord would also go away and read what was said in the Official Report, because I do not think that the matter has been resolved entirely satisfactorily and we may have to come back to it. However, in the meantime I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 18 agreed to.
Schedule 2 [Legislative competence of Assembly]:
4.28 p.m.
Lord MORRIS Lord MORRIS moved Amendment No. 222:
Page 41, line 31, leave out ("Subject to paragraph 8 of this Schedule").
The noble Lord said The noble Lord said: I beg to move Amendment No. 222. This Amendment is intended to be a paving Amendment to Amendment No. 295 which stands in my name, and with your Lordships' permission T shall speak to that Amendment at this stage. Schedule 2, paragraph 2, states:
"Subject to paragraph 8 of this Schedule, a provision is not within the legislative competence of the Assembly if it extends to any part of the United Kingdom other than Scotland".
However, Schedule 2, paragraph I, provides quite simply that,
"a provision is within the legislative competence of the Assembly if, and only if, the matter to which it relates is a devolved matter".
As your Lordships are aware, those matters that are devolved matters are contained in Schedule 10. For a matter to be a devolved matter it must extend only to Scotland. Surely that is the intention of the Bill. However, I should like to ask the noble and learned Lord, Lord McCluskey, why is it felt necessary to over egg the cake by the inclusion of this paragraph? Why is it felt necessary to state in the negative what has already been well, clearly and firmly stated in the
1018
positive? Notwithstanding that point, paragraph 8 of Schedule 2 provides that paragraphs 1 and 2
"do not prevent any provisions from being within the legislative competence of the Assembly if those provisions—

(a) are necessary or expedient for making other provisions effective or for the enforcement of other provisions; or

(b) are otherwise incidental to or consequential on other provisions".

This paragraph must be considered to be so broad as totally to disaffect paragraph 2 of Schedule 2. As I understand it, paragraph 8 permits the Scottish Assembly to legislate for other parts of the United Kingdom and to legislate on matters which have not been devolved. That paragraph 8 empowers the Scottish Assembly to legislate on English matters was made quite clear by the Minister in another place in his reply when this matter was discussed. He said, inter alia:
"If we did not deal with it by having these ancillary provisions it would be necessary to pass an Act of Parliament to make all the consequential changes in United Kingdom legislation". —[Official Report, Commons, 29/11/77; col. 418.]
So be it. Why, indeed, should Westminster not be able to legislate on matters concerning the United Kingdom which have been affected by legislation passed by a Scottish Assembly? The extent to which the Scottish Assembly could legislate seems virtually limitless, as all that is required is that a proposal should be expedient or otherwise incidental to other provisions. Permitting the Assembly to legislate for England would give it greater authority than would be enjoyed by the Parliament of an independent Scottish State, but would also lead to inevitable conflict between Edinburgh and Westminster, as any measure which applied to England would not be subject to the scrutiny of Parliament. We could easily reach the position in which a person resident in England was punished for infringing an Act passed by the Scottish Assembly by some action taken in England. An aggrieved party would have no redress through the United Kingdom Parliament. I maintain that that is an intolerable situation.
In rebuttal in another place the Minister stated:
"But if there were some disagreement and if a Scottish Assembly attempted to sneak past as an

1019
incidental provision something which was a substantive matter which was not within its legislative competence, the United Kingdom Government could refer it to the Judicial Committee as a matter of vires, and the Judicial Committee could decide whether it was incidental or consequential, or whether it was an attempt to legislate for the United Kingdom".—[Official Report, Commons, 29/11/77; col. 419.]
However, under Clause 17(2), as noble Lords are well aware:
"A Scottish Assembly Act may amend or repeal a provision made by or under an Act of Parliament".
That broad statement must itself cover the question of vires, which would have to be interpreted in a strictly judicial manner. However, what would be the position where an Act was clearly intra vires, as being necessary, yet could still be the cause of problems within England? Perhaps I may give an example. Antipollution legislation might well necessitate certain provisions being enforced upon Northumberland and Cumbria. The main legislation which applied to Scotland would be within the vires of the Assembly. Paragraph 8 of Schedule 2 would bring the incidental provisions relating to England within the vires of the Assembly, yet this provision could be very damaging. What could Parliament do?
In any event, I, at least, need guidance on the legal effect of paragraphs 1 and 2 of Schedule 2, taken with paragraph 8. I believe this matter to be of critical importance, for if it is not cleared up it will provide a field-day for the lawyers arguing these matters of competence before a constitutional court, the Judicial Committee of the Privy Council, or whatever body is set up to examine these matters. I should have thought that clarity was of the essence in enacting what is or what is not within the competence of the Assembly. I beg the noble and learned Lord, Lord McCluskey, to consider this matter with his characteristic Scottish thoroughness and care, for the inclusion of paragraph 8 can lead only to confusion and bitter contention. I cannot believe that this can be the intention of Her Majesty's Government. I beg to move.
The Earl of MANSFIELD: I wonder whether it would be for the convenience of the Committee if Amendment No. 78 standing in my name was considered along
1020
with the Amendment of my noble friend Lord Morris. There is no particular necessity for it, but we are now talking about paragraph 8 of Schedule 2 and, of course, they are all wrapped up in each other. I wonder what the noble and learned Lord, Lord McCluskey, thinks.
Lord McCLUSKEY: On that point,I am happy to say that the spirit at least of part of Amendment No. 78 is acceptable to the Government. Indeed, I shall be thanking the noble Earl, Lord Mansfield, and the noble Viscount, Lord Colville of Culross, for drawing our attention to the matter. I shall refer to that when I reply to this debate. The other part of that Amendment—if part of it then survives—is a slightly separate point. It may be that we can speak about it, but we would not necessarily cover the whole of Amendment No. 78 in relation to this.
Lord BOYD-CARPENTER: I think that, in tabling this Amendment, my noble friend Lord Morris has rendered the Committee and, indeed the education of opinion outside a considerable service. We are, of course, all subject to guidance on the legal construction of the Bill, which the noble and learned Lord, in his usual amiable and clearly-expressed way, will no doubt give us in a moment. Anything that I say on this highly complex Bill must be subject to any correction that he may see fit to make.
As I read the Bill and as, apparently, my noble friend reads the Bill, the particular provisions affected by his two Amendments—paragraphs 2 and 8 of the second Schedule—appear to confer on the Scottish Assembly power to legislate for England, for Wales, and indeed for any part of the United Kingdom. As my noble friend said, this is rather an astonishing provision. If Scotland were—as some people there appear to want—to achieve independence, it would be inconceivable that the full sovereign legislature of a foreign Power should be entitled to legislate to affect matters in England. Yet it is apparently proposed that this subordinate legislature, with powers carefully hedged and fenced in by many of the Schedules to the Bill, is to be given power to legislate on matters affecting people living outside Scotland.

1021
As I understand it, provided that it can be sustained that the provisions:

"(a) are necessary or expedient for making other provisions effective or for the enforcement of other provisions; or

(b) are otherwise incidental to or consequential on other provisions",

then the Scottish Assembly will be entitled to legislate affecting matters in England. As I understand it, that means that if, in order to give full effect to their legislation in Scotland, there are practical reasons why the law should affect people in England or Wales, then they have power so to legislate. That seems to raise considerable questions of principle.
Those resident outside Scotland have no vote for the Scottish Assembly; nor have they any means of holding Scottish Secretaries to account for what they do. They will be completely unrepresented. In respect of these devolved matters, it would be no use them coming to Westminster and seeking their Westminster Member of Parliament or the help of a Westminster Cabinet Minister, because both of those functionaries would have to say, "Under the Scotland Act this is outwith our jurisdiction". Therefore, they could have their interests affected by measures carried by an Assembly in which they have no vote and operated by Ministers over whom they have not even a fictitious fraction of control. That cannot be sound constitutional sense. No doubt the noble and learned Lord will say that these will only be fairly small matters, but would they?
One of the matters devolved by Schedule 10 to the Assembly is control of aerodromes. It is at least possible that the Scottish Assembly, in exercise of its undoubted power to regulate aerodromes in Scotland, presumably including all the provisions for controlled air space round and about them, might decide that in order safely to operate Prestwick airport it was desirable to cut off air traffic into Carlisle because it might interfere with air traffic patterns. That would plainly be ancillary to the main power of regulating the Scottish aerodromes. Perhaps the example of Carlisle is a good one because the Burghers of Carlisle can be fairly easily roused. I can tell the noble and learned Lord that they certainly would he if this kind of thing happened.
There are many examples. One of the functions of the Assembly will, I
1022
understand, be to regulate dogs. Suppose there is an outbreak of rabies (as sooner or later there will be as it moves across Europe) in the British Isles. The Scottish Assembly regulating dogs might order that all dogs be tied up, muzzled, or otherwise disposed of. It might well be argued that there is no use doing that if, when you come to the Border, the kindly English, with their love of their canine friends, were allowing these animals to romp happily about the fields. It would surely be necessary and ancillary to the Scottish legislation that some control should be exercised at any rate over the sort of radius of action of a dog from the Border southward.
These may be frivolous matters. However, there is the question of pollution. It is quite obvious that it is no use introducing strict measures against pollution—this again is a devolved matter—right up to the Scottish Border if the English, under another jurisdiction, can happily spread the pollution, shall we say, into the rivers, including the beautiful river in which my noble friend frequently fishes. Therefore, it would be arguable that the Scottish anti-pollution measures should bite on certain areas of Northumberland.
It may be that they would be wise and prudent measures. I am not concerned with that. I am concerned, and I hope the Committee is concerned, with the constitutional indecency of that happening, because it would be subjecting in matters of large, medium or small importance—it does not matter which—the citizens of this country to a jurisdiction over which they had no control and imposed by people whom they had no part in electing.
Does the noble and learned Viscount wish to intervene? I am always alarmed when I see his massive frame showing signs of eruption.
Viscount DILHORNE: That being so I will erupt. I was hoping to follow the noble Lord. I thought he had finished.
Lord BOYD-CARPENTER: The noble and learned Viscount's hopes will shortly he fructified, as so often they are. This is a little more than a minor adjustment. It is not good enough to say, as was said by a Minister in another place on an almost identical Amendment, "If there is any difficulty about this, the Judicial Committee

1023
will sort this out", because the Judicial Committee is an august body, for which I have the profoundest respect—I say that particularly as the noble and learned Viscount is going to follow me, and it would be rash to indulge in any impertinence against that body, which is a body of the highest standing—and it does not always sit next week if you suddenly want a hearing. Its processes are as stately as its importance justifies, and a good many months or perhaps years might pass before a matter of this sort could be sorted out.
Would it not be simpler to accept these Amendments, to accept that the Scottish Assembly should not legislate for England, and that, if it is necessary for the proper operation of Scottish Assembly measures that they should bite in England, the task of arranging this should be undertaken by this Parliament? Just to throw a final complication into an already complicated matter, what happens if the Scottish Assembly to be set up under this Bill seeks to legislate in Wales?
4.44 p.m.
Viscount DILHORNE: I want only to ask one question of the noble and learned Lord, Lord McCluskey, following upon what the noble Lord, Lord Boyd-Carpenter, has said. It may be a difficult question for the courts to determine whether or not a particular provision applying outside Scotland is ancillary and necessary to the Scottish measure. I should like to put to him a case where I should think it might well be said that the provision was clearly necessary and ancillary. The Assembly can legislate in respect to criminal offences. It can make new criminal offences. Giving a power of arrest and power of search might be ancillary, and indeed necessary, in relation to that Act of the Assembly.e
As I see it —and I should like to know whether the noble and learned Lord, Lord McCluskey, will confirm it—if an Act creating a new criminal offence is passed by the Assembly it will be within the power of the Assembly to give a power of arrest over anyone in England, and maybe a power of search as well. I hope he can deal with this. I said "England", but I should have thought the power would also extend to Wales, but that may add more
1024
provocation. If that is so, there really is a big question of principle lurking behind this Amendment.
Lord MACKIE of BENSHIE: I looked at this paragraph in the Schedule. I seem to remember it being explained in various other Bills that you had to put in a clause like this because there were always unforeseen circumstances which might arise, such as buying property, or something, in England which was not covered by the Act up to now, and that really it was a blanket clause which introduced excessive powers which were moderated by common sense.
A number of people are perturbed. The noble Lord, Lord Boyd-Carpenter, is obviously worried in case the Scots should seek to muzzle English dogs. Even if the Scots might seek to muzzle not only dogs in England, I doubt whether they would have the power. I think the Minister could allay a number of fears. My honourable friend the Member of Parliament for Berwick-upon-Tweed has, for example, had representations from people in his constituency about the Scottish powers with respect to pollution and fishing for salmon in the river Tweed. I understand, the law is different in Scotland from the law in England with regard to drift netting. The law on pollution may be different. I think that on this Schedule the Minister might be able to give art assurance to those people who are worried. that this paragraph of the Schedule is not intended to give this sort of power to the Scottish Assembly. If he did that, I think that it would allay a number of fears in various parts of Scotland.
Lord HARMAR-NICHOLLS: The noble Lord, Lord Mackie of Benshie, said that a similar thing has been put in legislation for overriding common sense reasons. I doubt whether there has been an addition as loosely worded as this one. It is quite clear when one reads my noble friend's Amendment that paragraph 2 of Schedule 2 is in direct contradiction in terms of the meaning of the words to paragraph 8. I was happy when I first skimmed through paragraph 2. It says:
"a provision is not within the legislative Competence of the Assembly if it extends to any i part of the United Kingdom other than Scotland".

1025
Very good. That is what I want. We are not likely to get conflict if we can have that made clear. Then the opening seven words,
"Subject to paragraph 8 of this Schedule",
completely negative that.
I remember that it was theorem 13 of Euclid causes one to go to a great deal of trouble to prove that two lines that are not parallel are in fact parallel One proves it with the angle. It is very well done, and one did a lot of swotting at home and got it clear. Having proved that the two lines that were not parallel were in fact parallel by the angles, one then said, at the end, that by hypothesis that was not so and therefore they were not parallel. That is precisely what is happening here; paragraph 2 seems to give a clear indication that it does not want the Assembly to have power over other parts of the United Kingdom; yet when one looks at paragraph 8 one sees that it gives them all the power anyone could possibly want to do just that.
The words are so loose, and that is the point I am making to the noble Lord, Lord Mackie of Benshie. It says they can do these things—the things that in paragraph 2 it says they did not want them to do— "if it is necessary". Who will decide if it is necessary? Who is the power who will say, "That is necessary"? And "necessary" is the least harmful of the words to which I wish to refer, because I think "necessary" has a legal meaning and can be defined in law. Nevertheless, who will say whether or not it is necessary?
We then go on and we see that if they cannot find that something is necessary they can try to see "if it is expedient". If somebody cannot find expedient reasons for doing anything then they are a little short on imagination. Nor do I believe "expedient" has a legal definition. Yet here we are writing it into the Statute. We know what "expedient" means in ordinary language; if something suits you, right or wrong, you simply say, "I want to do this". That is being expedient and getting away with something you are not entitled to get away with. Thus, "necessary" may be "expedient", and in my view it should not be on the Statute Book at all, especially where there is a possibility of conflict arising from the
1026
Scottish Assembly interferring with what are United Kingdom matters.
Then in sub-paragraph (b) it goes on to show that if "necessary" and "expedient" cannot be used, one can use the phrase "if it is incidental"; if something is incidental it can be done. But incidental to what? Who will decide whether something is incidental as a subsidiary to some main point they may have in mind? I doubt whether "incidental" has a legal definition should it eventually reach somebody who must arbitrate in the matter. If you cannot get away with "necessary" and if you find it rather difficult to prove that something is "expedient" or "incidental", you move on to the wonderful phrase "or consequential". If you cannot prove in law that black is white, when we know it is not, when all you have to show is that something is necessary, expedient, incidental or consequential, then I do not think it is possible to administer any sort of law anywhere.
The Amendment is absolutely right; with all these loopholes, paragraph 2 should not be allowed to stand subject to paragraph 8. The simple question I ask the noble and learned Lord, Lord McCluskey, is this: who will decide? Will it be the Secretary of State? Must it go to one of the courts? Or will it be referred to one of the judicial committees? We should be told who will decide which of these words, most of which are incapable of legal definition, apply in order to complete the negative of what we set out to do in paragraph 2. I have seen many Acts where the beginning is contradicted by the end, but when we have a small Schedule like this, where the end completely contradicts the beginning, that makes me even more doubtful whether we should leave the matter to the Parliamentary draftsmen who were mentioned in connection with the last Amendment.
The Earl of SELKIRK: I am wondering whether Scotland, in the sense it is used here, has any territorial waters, a point which may or may not be important. Rivers are given three miles, but there are such things as oil rigs in the North Sea which I believe come under the judicial jurisdiction of the Scottish courts. I do not know whether it is intended that they should be brought in. Obviously one end of the pipe will be under the Scottish

1027
Assembly—Convention, call it what you will—for planning and a number of other reasons. I do not know what happens at the other end of the rig; that may come under a different form of legislation. This may not be the appropriate point in the Bill at which to ask this question, but it may be relevant to what the meaning of the word "Scotland" is in this sense.
Lord DIPLOCK: I confess that I feel considerable unease about paragraph 8 of Schedule 2, and for two reasons. I will not elaborate the vagueness of the words "necessary" or "expedient" for making other provisions effective for enforcement and "incidental" or "consequential". Whether they fall within those words will ultimately be a matter for decision either by the Judicial Committee of the Privy Council or, if it is in the course of litigation, by the House of Lords. Whether a matter is expedient is, I believe, an inapt one to he decided by a judicial body because basically it is a political, rather than a judicial, question. I must say that I should feel some difficulty, some incapacity, in deciding that sort of question; I should not feel confident that the decision I should make would be wise from the political point of view, and after all we want legislation to work and to be successful.
Secondly, I ask the noble and learned Lord, Lord McCluskey, and the Government to consider whether this paragraph is really necessary. There is plenty of legislation with ample legislative power; the Colonial Law of Validity Act, under which the Australian States still act today, prevents their legislating for anywhere outside their own territories, and they have got on perfectly well for many years, for one hundred or more years, without a provision of this kind. For those two reasons—doubts as to its necessity and doubts as to its being good policy to leave these kind of political matters to be decided by judicial minds—I suggest that consideration be given to omitting paragraph 8 from Schedule 2.
4.58 p.m.
Lord McCLUSKEY: Again, I acknowledge that the noble Lord, Lord Morris, has tabled the Amendment because it raises issues the importance of which the Committee has well appreciated and out-
1028
lined. I am asked to explain why we have paragraph 8 in Schedule 2 at all—what it is designed to achieve—and I seek to do that by referring first to paragraphs 1 and 2 of the schedule. As noble Lords have pointed out, we start with paragraph 1, which defines the legislative competence of the Scottish Assembly by reference to "devolved matters", which are described, as I said, in Schedule 10. Schedule 10, particularly Part III, is long and complex and has been criticised on that account, but it is long and complex because Parliament has for many years past, at the instance of successive Governments, passed a great deal of legislation relating to matters which are now to be devolved, and that, however unpalatable, is a fact which this Bill must take into account.
We have formed the view that, when it comes, in a scheme of devolution, to dividing up the spheres of responsibility between the two legislatures, one cannot simply do this nowadays by means of some simple and uncomplicated list; we must deal with a great mass of legislation, all affecting different subject areas which interlock in a complicated manner, and that it is impossible to legislate on any major subject today without touching marginally on a host of other subjects. At the very lowest, there will be cross-references to be corrected in other legislation. Indeed, this can be readily seen by looking at any Bill which comes to this House; there is always a schedule of minor and consequential Amendments which attach to any major Act dealing with subjects such as health, or housing, or local government.
In our view, it follows from this that, if we give the Assembly legislative competence extending solely, simply and strictly to devolved matters, we shall be needlessly fettering it. Its legislation would always be incomplete, or there would always be a risk that it could not complete its legislation. So we must—subject to answering the second point which the noble and learned Lord, Lord Diplock raised—somewhere make provision for the Assembly's legislation to be perfected, to be completed, and for all necessary and consequential provisions to be enacted.
We have sought to do that in two principal ways. First, I should like to direct the attention of the Committee to

1029
Clause 34, to which I think those who have spoken would take no exception. This clause provides that:
"Her Majesty may by Order in Council make any such amendments of the law of the United Kingdom or any part of it … as appear to Her to be necessary or expedient in consequence of any provision made by or under any Scottish Assembly Act".
I think that the objections that have been taken to paragraph 8 would not be taken in the same sense to that provision. Plainly that is the major piece of machinery which is available. But, as the Committee will appreciate, that involves coming each time to Parliament, and it involves Affirmative Resolutions. This is designed to deal with the kind of situation where a fairly major intrusion into the law south of the Border is thought to be necessary, and of course Parliament would have the necessary control over that.
We also have paragraph 8 of Schedule 2. The Government consider that the Assembly ought to be equipped to make its own consequential provisions; and that is the intention and the object of paragraph 8. To put it another way, paragraph 8 of the schedule serves a vital purpose in the ordinary practical legislative processes of the Assembly. As 1 have said, to legislate effectively on any particular matter it will usually be necessary to deal marginally with other matters. I gave the example of cross references to correct in other legislation; let me give an example within the context of Schedule 10 itself. It is strongly arguable that provisions of an Assembly Act on, for example, housing (which is contained in Group 4 of Part I of Schedule 10) could make a purely consequential amendment of the law relating to compulsory acquisition, which is not devolved—it is contained in paragraph 6 of Part II of Schedule 10—and yet it would still be legislation on housing within the meaning of the Bill. But clearly there could be some room for doubt, and the object of paragraph 8 is to remove that kind of doubt.
The noble Lord, Lord Harmar-Nicholls, deplored the looseness of the wording, but I have to tell him that we took the wording from the provisions of an Act passed in 1973, and introduced by the previous Government; it was the Northern Ireland Constitution Act. Of course, I accept
1030
that the context is rather different, and it is desirable to look at the context, very briefly, before founding too strongly upon the use of the same words, because it was envisaged there that the Northern Ireland Assembly could legislate on transferred matters, but not on excepted matters. However, it would be allowed to legislate on excepted matters if, in the opinion of the Secretary of State, the relative provision was ancillary to other provisions within the Assembly's ordinary competence. Accordingly, Section 5(7) of that Act provided a definition of "ancillary", which is the one we have taken and put into paragraph 8 of Schedule 2—
Lord HARMAR-NICHOLLS: Are the words "expedient", "incidental" and "consequential" in that Act?
Lord McCLUSKEY: Let me read the wording so that I leave the matter in no doubt. Unfortunately, one has to go through subsections (1), (4) and (7), but I think the relevant wording is:
"For the purposes of this section a provision is ancillary to other provisions if it is a provision which is necessary or expedient for making those other provisions effective or which provides for the enforcement of those other provisions or which is otherwise incidental to, or consequential on, those provisions".
That is the precedent for the wording which the noble Lord, Lord HarmarNicholls, thought—but apparently does not now think—was loose.
Viscount DILHORNE: The noble and learned Lord realises that that applies a subjective test, as it is in the opinion, is it not, of the Secretary of State or some other politician? Under paragraph 8, it is not a subjective test; it is a matter for decision of the courts. I echo and support strongly the observation of my noble and learned friend Lord Diplock, that it really is not a matter for judicial decision as to whether or not something is expedient. That is a decision for politicians.
Lord McCLUSKEY: I hope to deal with that particular matter when I reach what the noble and learned Lord, Lord Diplock said. If one takes it that a provision such as paragraph 8 of Schedule 2 is necessary for completing and perfecting competent legislation by tidying up the loose ends which protrude

1031
into areas which are not devolved, we recognise that it is incumbent upon us to make sure that there is machinery to safeguard against any possible abuse. There must be some way to afford the kind of protection which the noble Lord, Lord Boyd-Carpenter, thought might be lacking.
I was going to ask whether it is at all likely that the Scottish Assembly would want to start altering the law of England, or for that matter, the law of Wales; why on earth should it want to do so? But I had not taken account of the fertile imagination of the noble Lord, Lord Boyd-Carpenter, who has, quite properly, drawn attention to provisions where one could conceivably see that, as a necessary consequence of legislation intended to be domestic to Scotland, it might be desirable to extend provisions across the Border—
Lord BOYD-CARPENTER: To complete this point, may I ask whether the noble and learned Lord is therefore confirming my reading of the provisions—that they confer power on the Scottish Assembly to pass legislation operative in England or Wales?
Lord McCLUSKEY: That is subject to certain limitations. I do not accept the examples that the noble Lord, Lord Boyd-Carpenter, gave. For example, in relation to airspace, devolved powers relating to aerodromes do not extend to the regulatory powers of the Civil Aviation Authority. The Government accept that it is essential that such matters be dealt with on a United Kingdom basis. As paragraph 8 of Schedule 2 does not allow any cross-Border spillover into what is a non-devolved matter, I think that that deals with that particular point. The whole purpose of paragraph 8 of Schedule 2 is to allow the Scottish Assembly to change the law which applies south of the Border in so far as it falls within the wording of paragraph 8 of Schedule 2.
I was intending to come on to the safeguards, and I wonder whether I may outline them. First, with regard to consultation, it could reasonably be assumed that, before a Scottish Secretary promotes a Bill which laps over the edges of the devolved matters, he will clear it with Ministers, and indeed officials will surely have discussed the matter before
1032
this stage is reached. So the intention to legislate will, I think, be clear, and will be before the eyes of Ministers and Members of the Assembly.
Then there is the wording of the sub-paragraph itself. I refer particularly to the word "otherwise" in paragraph 8(b), line 36. I believe that that makes it fairly clear that the permitted provision has to be incidental to, or consequential on, other provisions which are within the legislative competence of the Assembly, as spelled out in Clauses 18 and 59, and Schedules 2 and 10.
I turn now to the third point. If the Secretary of State considers that a particular provision is not ancillary within the sense of the paragraph, he will be obliged, under Clause 19(1)(a), to refer that to the Judicial Committee. This is a powerful constraint, because if any provision of a Bill is found to be ultra vires, the whole Bill is stopped; that is the effect of the word "wholly" which appears in Clause 18(2).
There is also the matter which I mentioned when the noble Earl asked whether it would be convenient to take this Amendment along with Amendment No. 78. I do not want to anticipate that debate, but the Government accept that Clause 35 override powers should be available against consequential provisions made under paragraph 8 of Schedule 2, whether or not properly so made. Therefore, Clause 35 override powers are to be available, and that is the purpose of the Government Amendment No. 253, which noble Lords will see on the Marshalled List.
So one has the constraint of reference to the Judicial Committee and the overriding Clause 35. Then, finally, if required, though I would hardly think it necessary to use such a hammer to crack such a nut, there is the hammer of legislative override itself, United Kingdom legislation, to deal with the matter, although one cannot really conceive that that would be essential having regard to the other provisions.
So, if I may try to summarise the Government's view on this matter, if the Assembly's legislative competence is to be capable of operating effectively and efficiently and without a constant and

1033
possibly irksome need to come to Westminster to seek time-consuming orders under Clause 34 or even legislation, then we must have powers such as are set out in paragraph 8. We have looked very closely at the safeguards, and we believe that they are adequate for the purpose. In fact, we believe they are more than adequate: they are ample. We have looked also at the wording of the paragraph—and I would be more confident in making the assertions that I propose to make had it not been for the intervention of the noble and learned Viscount and the noble and learned Lord, Lord Diplock. In the light of what they have said, I think we must go back and look at the two points. I think we must ask: Is it necessary at all? That was a matter which we certainly considered; and, in a sense, one could say it might have been better had it never appeared in the Bill at all. Now, if one takes it out, one seems to be taking something away.
However, we will certainly consider whether, in the light of the ordinary doctrines referred to by the noble and learned Lord, Lord Diplock, it is essential; and we will also look at the wording. But if we come to the view that it is essential to have some such provision, then I shall have to say to the Committee that one can only, in a sense, tamper with the wording. You need, if you are going to have a provision of this kind, to have something to make it clear that the Assembly can have this very limited perfecting or completing power. So in that spirit I will take the matter away, if the noble Lord, Lord Morris, considers that proper, and look at it.
Lord HAILSHAM of SAINT MARYLEBONE: I do not know quite what my noble friend will do, but I am very glad to acknowledge the conciliatory and reasonable spirit in which the noble and learned Lord has just explained rather a complicated matter to the Committee; and I would not have intervened except to underline from my own point of view two things which were said by the noble and learned Lord, Lord Diplock. The first is that I think I am right in saying that he was referring in part of his speech to the Colonial Laws Validity Act 1865. That has operated very well in colonial and dominion legislatures for a very long time, and I am bound to say that, having made
1034
that reference to it. and should it turn out, as I think he implied, that the words now inserted in paragraph 8 are not present, it would seem to me to indicate that there is very great substance in the view that paragraph 8 is not necessary at all; and if it is not necessary at all it would remove a bone of contention if it were taken out. There is too much tendency in our modern legislation to insert provisions ex ahundanti cautelâ—I use the old English pronunciation of Latin despite the noble Lord, Lord Mackie, who thinks he knows how the Romans pronounced it. At any rate, there is too much of a tendency of that kind. It was noted very recently in a remarkable book by a gentleman called Sir William Dale—that is, the extraordinary prolixity to which modern statutes are beginning to tend—and if a bone of contention can be removed altogether, this would save us a lot of bother on Report.
The other point I wanted to make is that on the assumption (which I hope I am wrong in making) that something of this kind is required, or is thought to be required, by the Government, there is a clear distinction, I think, between the word "expedient" and the words "ancillary" and "consequential", and possibly "necessary", for the reason that the noble and learned Lord, Lord Diplock, gave. When you get a question of expediency, you ought, I think, in drafting a statute, to make the Executive responsible, because expediency is not well decided by judicial people, not because they are not competent to decide it but because it is of great importance to our constitution to preserve the Judiciary from being compelled to interfere in political matters and from there by rendering themselves subject to unnecessary criticism. So that, if the word "expedient" is required, I would suggest to the noble and learned Lord that some machinery should be discovered to make the Executive responsible for deciding what is expedient, so that they may be answerable to Parliament, and not the courts.
On the other hand, when you are dealing with words like, "ancillary", or "consequential", and I think also "necessary", although I express that view less dogmatically, you are dealing with words which are in fact construed by the courts without difficulty almost every day of the week, and in a context which is not altogether dissimilar from that which we

1035
are now discussing; because the vires of a company as defined by its memorandum of association almost aways contains some reference to ancillary matters of this kind, or, alternatively, judicial decisions about the vires of various corporations also cover things which are "ancillary". For instance, in the matter of the purposes of a charity, which in this respect is not defined in any statute, which are ancillary to the purposes of a charity—I am sorry to tell the noble and learned Lord, Lord McCluskey, that this is a matter of the law of England rather than of Scotland, but it is, I think, fairly trite law of England—are things which are constantly decided by the courts. I do not think the judges would find any embarrassment in applying that, but they would find, or might find, that, even if they were quite willing to handle questions of expediency, it would bring about in Parliament the kind of criticism of the Judiciary which all of us would prefer to avoid.
Lord WILBERFORCE: May I make one very modest suggestion which may commend itself to the noble and learned Lord? It is that he should consider the doctrine of pith and substance. It has long been a principle of constitutional law in the British Commonwealth that in deciding whether legislation is valid or not you consider its pith and substance—that is, the heart and core of it—and the fact that it may spill over marginally into something outside does not furnish a ground for declaring it invalid. I venture to think that if the noble and learned Lord digs out the authorities about this he may find it sufficiently takes care of the problem, without the need for paragraph 8.
The Earl of PERTH: If I understand aright, the noble and learned Lord, Lord McCluskey, is to think about these things again. I would ask that, in thinking about those things, he would direct his attention particularly to the question of pollution, because it seems to me that in the case of pollution there is a real likelihood of a difference of opinion between England and Scotland. Let us take the case, on the Solway, of the River Nith. On both sides there are important industrial factories and plants.
Lord HAILSHAM of SAINT MARYLEBONE: Nuclear, too.
The Earl of PERTH: Certainly: and the ICI, Dumfries. It may well be that the people of Scotland will think that they want to have tougher pollution measures, or less tough measures, than those in England. All I would ask is that, when this whole matter is considered again, the possibility of conflict from a totally different point of view as to what is or is not necessary being taken on one side of the Border from that taken on the other is brought into account.
5.20 p.m.
Lord BOYD-CARPENTER: Only for the record, I should like—in view of the line the noble and learned Lord has taken, I should like him (it being on the record) to consider it further—to take up his contradiction of the point I made about the devolution of aerodromes and the effect on the issue raised by this Amendment. He dismissed my argument that there might be a clash of interests in respect of the approach patterns of airports in England and Scotland by drawing my attention to the fact (of which I was already aware) that the powers and activities of the Civil Aviation Authority are, mercifully, not devolved under this Bill. But the noble and learned Lord, in using that argument, must have been unaware of the fact that, except at aerodromes owned by the British Airports Authority, the Civil Aviation Authority hardly ever does the airport local approach control. That is undertaken by the airport authority.
Subject to what he may feel, the fact that Schedule 10 contains "aerodromes" would seem at least to raise the presumption that the airport control at those aerodromes—if undertaken by the local aerodrome authority, as, practically speaking, in all except British Airports Authority's airports it is—would be devolved; and, therefore, there may be a real clash here. May I suggest one solution of this would be to accept an Amendment which already stands on the Marshalled List in respect of Schedule 10, to delete "aerodromes". Modesty forbids me from indicating in whose name that Amendment stands.
Lord MORRIS: I am grateful to the noble and learned Lord and to all those who have spoken on this Amendment. Notwithstanding that, I could not help

1037
feeling that what the noble and learned Lord is suggesting in his answer is that, during the course of the preparation of this Bill, it was really too much like hard work to get the Bill right. The difficulty that he pointed out, the mix of law, goes to illustrate what a constitutional ants' nest this piece of legislation has stirred up. I am grateful for his suggestion that he will look at this point further, and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
The DEPUTY CHAIRMAN of COMMITTEES(Baroness Wootton of Abinger): I have to inform the Committee that if Amendment No. 223 is agreed to, I will not be able to call Amendment No. 277.
5.23 p.m.
Lord WILSON of LANGSIDE Lord WILSON of LANGSIDE moved Amendment No. 223:
Page 42, line 10, leave out sub-paragraph (2).
The noble and learned Lord said: Lord Morris has asked me to move this Amendment and I should acknowledge at the outset that it does not, at least as I present it, raise questions of such magnitude and importance as did the last Amendment. I need only say that I think it is probably a majority view, both in your Lordships' House and outside, that the Government were right not to devolve tax-raising powers to the Scottish Assembly. However, it appears by paragraph 4(2) of Schedule 2, certain powers over the rating system in Scotland are conferred on the Assembly. There is, I understand, considerable doubt, particularly in industry, as to the precise extent of these powers which are conferred by this provision.
The object of the Amendment, as I present it, is simply to get from the Government a fuller and clearer statement of precisely what are the intent and meaning of paragraph 4(2) of Schedule 2. This is an area, particularly from the point of view of industry, in which certainty is of some importance. There is, I understand, concern within industry that here we have another tier of Government given power to interfere in an area where, particularly to those responsible to industry, certainty is all-important. I would, therefore, ask the noble Lord who
1038
is to reply to expand upon the intent and meaning of these provisions. I beg to move.
The Earl of MANSFIELD: As it is my Amendment which will fall if that of the noble and learned Lord, Lord Wilson of Langside, prevails, perhaps it would be convenient to speak to my Amendment at this moment of time. At first blush, the words in the Schedule raise the eyebrows. One has been brought up to the belief that not only was this Bill not intended to give any tax-gathering powers to the Assembly but that, as matters stood and according to the philosophy of devolution as this Government see it, it is impossible to make provision for any tax-raising powers which would not have a profound and, possibly, disastrous effect upon the unanimity of the United Kingdom.
What I should like to ask the noble Lord who is about to reply is what is meant by this. Under head (a) the competence is within the Schedule if it is only designed to alter a rate levied at the passing of this Act "without substantially changing its character". I ask this of the noble Lord, Lord Kirkhill—who is looking expectant, and in that sense I am expecting him to reply. What is a rate in this sense? Is it, perhaps, what I, in my ignorance, understand to be a rate imposed by a local authority'? I see him nodding agreement. If so, one asks why it is necessary that it should be written into the Bill.
Secondly, what are the circumstances in which a rate could be altered by a local tax or substituted by a local tax; who would be the unhappy citizens who would have to pay the tax; and what would be the rate of the tax? Could the noble Lord confirm certain suspicions that this might be a way of enabling the Scottish Assembly to slip in something which would be highly unwelcome (such as a tourist tax or rate of VAT or something like that) as it were, by the back door in this Bill? Thirdly, what is a local tax under head (c) of sub-paragraph (2) which can be altered without substantialy changing its character? These are really matters of information, but I think your Lordships would be interested to know whether this sub-paragraph has not in it a great deal more than appears.
Lord BOYD-CARPENTER: I should like to ask the noble Lord when he comes to reply to carry his explanation even further than the noble Earl asked him to carry it. There appears in all the three subsections the words "without substantially changing" or words to that effect. I should like him to give some interpretation of those words. Do they mean that you can alter the rate of the rate, the amount or the level of the rate to an unlimited extent so long as you preserve the structure for collection? Or does it mean you have to remain substantially on the current levels? It is possible, as certain local authorities in England have shown, so to change the character of a local rate, by doubling or trebling it, that what had been a reasonable and accepted impost has become an outrageous burden. I should like to know whether these words "without substantially changing" are intended to put some limitation on the power to increase the amount raised or whether they bite solely on the machinery by which it is raised.
5.30 p.m.
The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill): The noble and learned Lord, Lord Wilson of Langside, as indeed the noble Earl, Lord Mansfield, and the noble Lord, Lord Boyd-Carpenter, have asked—me at least initially—to explain the thinking behind paragraph 4 and this I should do first of all. The intention is declared unequivocally in paragraph 4(1) of Schedule 2. That is an intention that the Scottish Assembly should have no general legislative competence! in relation to tax matters. But, to go on from there, what sub-paragraph (2) of paragraph 4 does, and what it is strictly limited to doing, is to provide the Assembly with a perfectly appropriate competence to legislate in respect of the local government rating system which of course is specifically devolved in Group 5 in Part I of Schedule 10.
I have said that the effect of subparagraph (2) of paragraph 4 is strictly limited, I should go on to say that it is in fact limited to the extent that the Assembly's competence is confined, first, to modifying the existing rating system, secondly, to replacing the existing rating system by a similar local tax—that is, one levied only by elected local authorities
1040
and related to the occupation of property. That would enable a change to be made from the present basis of assessment on the notional rent to, for instance, capital value, and, thirdly, to making further modifications to such a local tax. The Assembly could therefore change the existing system within a limited range of options in the light of experience. What it could not do would he to introduce an entirely new form of tax-raising power at local authority level.
The effect of Lord Wilson's Amendment would be to deny the Scottish Assembly any competence whatever to legislate about local authority taxation. But, in the Government's view, this would be at odds with the view already stated in the White Paper of November 1975. For noble Lords who wish to look at it, this appears at paragraph 110. At that paragraph, it states clearly that the Assembly should have powers to adjust the application of the systems of rating and valuation for rating to suit local conditions.
The White Paper went on in the same paragraph to state that only Parliament would be able to authorise new forms of local taxation. That, in the Government's view is what the Bill achieves; to do otherwise would involve a significant derogation from the scope of the devolution of local government and local finance, and it would create a boundary between devolved and non-devolved matters within the general devolved area of local finance which could not, in my view, be rationally defended. Looking at the position in a purely practical way, how well would Parliament be placed and how well would the United Kingdom Government be placed to consider legislation in this part of a subject—local government generally and local government finance in particular—which is otherwise devolved?
May I also add that Parliament would retain to itself the sole right to legislate to create any entirely new taxes. This is in line with the Government's belief that the creation of any entirely new tax would carry serious implications for national finance and for national policies in the reserved fields. Such implications would arise for instance if the present system were replaced by a local income tax or by a power for local authorities to levy tax on motor vehicles, for example. The

1041
Scottish Assembly will have no competence in such matters.
The noble Earl, Lord Mansfield, thought that we might link these two Amendments, and I welcome the suggestion. The noble Earl's Amendment does not go quite so far as the Amendment to which I have been speaking. It appears to accept the general basis of the Government's attitude but seeks to confine the Assembly's power to modifying the existing system. All I can usefully say to the noble Earl is this: there is a difference in view between the Government side and the noble Earl's own perfectly tenable position. We think that the noble Earl's Amendment draws the boundary in the wrong place. We would not say more than that. We think that such a restriction as the noble Earl suggests could well cause unnecessary frustration if the Assembly wished, quite reasonably, to embark on a wider reform of local finance that stopped short of having the kind of national repercussions that the present arrangements are des1igned to guard against.
In the Government's view, the Assembly should have a competence to arrange devolved matters in such a way as best suits Scottish conditions. This was certainly a policy emphasis that developed in the other place. After devolution, the Assembly will be in the best position to assess these conditions and provide solutions. I do not think that decisions on these matters have implications for the rest of the United Kingdom. Therefore, they fit the Government's criteria for deciding what matters can be and should he devolved. In the Government's view, that just about strikes the right balance. That is as fair an expression of the Government's view as I can give the noble Earl.
5.37 p.m.
Lord HARMAR-NICHOLLS: The noble Lord has explained what the Government intend this paragraph to mean. I wonder whether, on close examination, it does mean that. I am worried about the word "substantial". It is perfectly clear from what the noble Lord has explained that the Government do not want the devolved Assembly to have powers to bring in a new form of tax or a new tax. One accepts that. But, in explaining that, he said that the Assembly
1042
would have new powers to raise the rateable value and do things like that. It would not be substantially changing the rate but would be extending its scope.
Lord KIRKHILL: Perhaps I expressed myself badly. I was suggesting that the rating formula could be altered.
Lord HARMAR-NICHOLLS: If the formula results in a higher rateable value under which extra rates have to be paid, a rose by any other name would smell just as sweet. I do not know whether it makes much difference whether I am being asked to pay more tax or more rates. It is the same impost that I have to meet.
Lord KIRKHILL: The rate poundage might then drop. It depends at which point one does these things.
Lord HARMAR-NICHOLLS: It may not of course. It has been made quite clear by people who frighten me and who may be in charge of the Assembly that they want to handle the cash. That is why they have grumbled about the financial provisions. They have said that they want to be in a position to get the cash, handle it and show that they are in charge of some of the finances in Scotland. As the noble Lord explained, the formula in this paragraph could be changed. It could result in extra rates being paid. That would not be a new tax. It would fit in with this, but, in terms of the impost upon the majority of people in Scotland who have to pay rates, it would mean that they had this extra obligation to meet.
Perhaps the noble Lord, Lord Wilson of Langside, had this in mind when he was concerned with this paragraph. Unless it can be defined a little more clearly to avoid this extra impost being put upon the citizens of Scotland, I believe that we ought to make it clear in the referendum that this is possible. If I am a Scotsman and am asked to vote in the referendum as to whether or not I want this measure, when it becomes an Act, I may, if I have a feeling that there is no possibility at all that it is going to cost me any extra money on my rates or taxes, be inclined to support it for all sorts of other emotional reasons which the noble Lord. Lord Mackie of Benshie, so effectively represents. If I thought the result of this paragraph in this Act meant that there was a real risk—

1043
because I could form a judgment as to the mentality of the people who may get a majority in the Assembly and would have the power to do these things—that those sort of people would in this roundabout way put this extra impost upon me, it would make a very big difference to the way I would vote in the referendum.
So what I am saying is that this paragraph ought to be made clearer than it is at the minute as to whether or not they will have no powers from this either to levy excessive rates or taxes in order to bolster up the power that they are seeking before they take the next step towards separation, or whatever it is. That ought to be made crystal clear, before it comes to any referendum, so that people when casting their votes will know that this is the risk they are taking.
It would be better from every point of view if the noble Lord could look at it again and make it mean in words what he has just explained the Government want it to mean. I am not contesting in any way what the Government want and I accept that their integrity is absolutely clear, certainly after the explanation which has been given by the noble Lord; but I am saying that these words could result, if a group of people in the Assembly so wished, in bringing about something which is equivalent to a change of tax. If that is a possibility, the people who have to take a final decision in the referendum ought to know about it. It ought not to slip through.
Lord TAYLOR of GRYFE: I am about to put a point which is largely the same as that raised by the noble Lord, Lord Harmar-Nicholls, and perhaps the noble Lord, Lord Kirkhill, would deal with them both at the same time. This is a difficult area—the area of relations between the local authorities and the Assembly—and unless it is clearly defined and understood there will be continual tension between the Assembly and the local authorities. Some noble Lords have expressed the view that the new Assembly should undertake as one of its first duties the reorganisation of local government, but what will be fundamental to this relationship is the question of financial powers and the ability of local authorities to raise local finance.
1044
The noble Lord, Lord Kirkhill, has made it abundantly clear that any fundamental change in local rating and local taxation would not be within the competence of the Assembly but within that of Parliament. Could he just define the areas within which the new Assembly could have interventionist powers concerning local finance? Could he give some examples, for instance, of where it would be competent to interfere and where it would be incompetent to do so?— because if the Assembly has substantial powers in this direction it could certainly undermine the authority of and respect for local government.
Lord KIRKHILL: I should like, if I may, to say briefly to both noble Lords, Lord Harmar-Nicholls and Lord Taylor of Gryfe, that if there was—and I myself gave the example earlier—a formula rating change passed through the Assembly, the result of that change in financial terms would not go to the Assembly as such but to the local authorities concerned, who are the rating authorities.
In regard to the specific point just raised by the noble Lord, Lord Taylor of Gryfe, we shall be discussing his point when we reach Clause 63, which has rather wide financial implications. I think it would be rather more appropriate to reply to him in depth at that stage. However, I can confirm, as he will know well, that the rate support grant stands as a devolved function and of course there will be a relationship between the local authorities and the Assembly at that point as there is presently between the Secretary of State and the local authorities. These are matters which will have to be discussed later, I think.
5.45 p.m.
Lord CAMPBELL of CROY: The noble Lord, Lord Taylor of Gryfe, has rightly pointed out how important the relationship between the new Assembly and the local authorities is going to be, and the noble Lord, Lord Kirkhill, has sought to explain the intentions of the Government in this passage from the Schedule. We are grateful to him, because certainly an explanation was necessary. It was very difficult to follow what the Government intended, and we are glad to have confirmation that the

1045
word "rate" here does mean a local authority tax—in that sense, "the rates" as we know them only too well.
I should like to ask the noble Lord some questions arising from the explanation that he has given. He made it clear that a local tax is all that the Assembly could try to alter; but does a local tax mean, by definition, the equivalent of rates, that is to say, something controlled by each local authority? Would a local tax introduced in place of a rate still be something the level of which was set by each local authority within its control? I think it is very important that that should be known and defined, because a local tax could be just a general term meaning a tax levied in Scotland and not elsewhere. Again, could the noble Lord give us an example of the kind of tax which could be brought in to replace the rate? What have the Government in mind? As we know, there are limits within EEC regulations as to what kind of tax can be brought in in place of rates. The Government clearly must have something in mind, otherwise they would not have made this provision in the Bill.
My next point is one that I put without considering the question of whether or not it is wise, because that is a larger question, that there should be a tax-raising power. The Government, from this explanation, have confirmed that it is their intention that there should not be a tax-raising power for the new Assembly. I think that when we reach the later financial clauses we can discuss that general question more fully, but what we are concerned with here in the Amendment of my noble friend and of the noble and learned Lord, Lord Wilson of Langside, is whether the wording of this Schedule carries out without ambiguity the intention which has just been explained by the noble Lord, Lord Kirkhill.
Sub-paragraph (1) says quite definitely that the Assembly is not empowered to impose or alter any tax—I repeat "any tax"—which presumably anybody reacting the Bill for the first time would think included a local tax. Sub-paragraph (2) appears to describe how a rate can, first of all, be converted into a local tax and then how the local tax can be altered. It does seem contradictory. The only qualifying words are "not substantially"
1046
and, as we know only too well from the debates we have had in this Chamber on other measures, the words "substantial" and "substantially" can be read in many dfferent ways. There has been a lot of argument as to whether or not the words shall appear in Bills. So that does not help to clarify the situation here.
In addition to the questions I have put to the noble Lord, I should like to ask another, to which he may revert later in the Bill. Will he make it clear whether it is completely within the competence of the new Assembly, as the Bill is now drafted, to carry out a reorganisation of local government in Scotland?—because many of us realise that if a new Assembly comes into existence it may well be necessary to make changes in local government: otherwise there are going to be too many tiers of government and Scotland will be over-governed. One of the possibilities then could well be the disappearance of one of the present tiers of government. Is the Assembly to be completely in charge of that? Local government is devolved to the Assembly. If it is to be completely in charge of that I can see a good deal of conflict arising between the local authorities and the Assembly.
The question of financial repercussions will also arise—what is going to happen to the rates which a tier of local authorities is at present levying? From the wording we are now discussing it certainly appears that a little ingenuity or interpretation by an Assembly could well end up by the Assembly receiving revenues from what is called a local tax, unless the noble Lord can answer some of the points I have raised.
The Earl of LAUDERDALE: May I add something in support of my noble friend Lord Campbell of Croy? If ever there was a need for clarity it occurs here. One thing that is quite clear about this Bill is that it is going to start a colossal row and tension between the Convention, on the one hand, and the local authorities, on the other. There is power in the Bill to abolish the regions or the districts, as the case may be. What is so frightening about this Schedule is the ambiguity. The noble Lord—who, after all, has a long and distinguished career as Provost of Aberdeen and possibly knows more about local government than anyone else in this House—will know very well

1047
that there must already be apprehension in the regions and districts that some of their functions, or alternatively their rate-raising powers, are to be taken from them. Is it not common sense to expect that where considerable power is already entrenched, particularly in the regions, they will themselves lobby and perhaps put up candidates in one form or another to come into the Convention and stifle this very operation? In fact this is a recipe for conflict.
It is because of that recipe for conflict, which could tear Scotland apart so that the proposed Assembly—or Convention, as I prefer to call it—becomes a source of disunity and not unity in Scotland, that I believe it is so important to get this matter absolutely clear. In many parts of the regions there is already foreboding of clash and confrontation on this point, the more so because the Convention or Assembly would itself seem to be a rather futile affair unless its Members are disciplined by the responsibility for raising money which they are going to spend and facing the unpopularity of raising more money than is currently being raised. Again behind the whole conception of the Bill—for those who have apprehensions about it, as I have—is the fear that the Assembly or Convention will keep on asking Westminster for more money, whereas, saddled with a fair and square responsibility to raise extra funds if they want to spend more themselves, they would be curbed in that appetite.
Will the Government recognise—as I am sure the noble Lord must from his long and distinguished experience—that there is here the germ of very serious conflict between the existing local authorities and the new gathering? For myself, I should like to see the Convention have proper money-raising powers. Without that it cannot be seen to be responsible. This is all burked in the Bill except in so far that there are powers in it to grab local rate-raising powers. That is a source of conflict. If there is a case for clarity here more than anywhere else in the Bill, I believe it lies in this danger of conflict between several tiers of government.
Lord WILSON of LANGSIDE: Will the noble Lord forgive me if I add one incidental question to the formidable list
1048
of those which have already been put to him? This I ought to know from my reading of the Bill and what has gone before, but can he confirm what will be the position so far as industrial and other de-rating provisions are concerned in future? I assume the Assembly will have legislative powers in these regions. I am sorry to put this to him at the end of the debate rather than at the beginning but I overlooked the matter. Am I right in that assumption?
Lord KIRKHILL: May I first of all reply to the very pertinent point raised by the noble Lord, Lord Campbell of Croy, and remind him quite gently that I did indicate earlier in my remarks that a rate is a tax levied only by a local authority and related to the occupation of property. There can be no equivocation about that point. The Government's position is that such a tax need not take the form of rates in the pound on an assessed valuation. I must say that I gave an off-the-cuff example of capital value as being one method. I suppose formula rating is another. I think it is fair to say that the Government have no conclusive view about this. If the Assembly wished to take some other formula which no one is yet thinking about then provision would allow them to legislate accordingly. That is the position we are in this afternoon. I can confirm to the noble Lord, Lord Campbell of Croy, that the Assembly would be in a position to re-reorganise local government. That is certainly within their competence.
I should perhaps say to the noble Earl, Lord Lauderdale, that I had been expressing earlier—and I think I did so with clarity—that if there is a change in the rating formula then the monies which accrue from that change go to the local authorities. The Scottish Assembly cannot pinch the money. There can be no question of that, as I thought he was suggesting.
The Earl of LAUDERDALE: I am much obliged to the noble Lord, but he has earlier confirmed that there are powers in this Bill to re-reorganise local government. Supposing that involves, shall we say, abolishing the regions; what happens to their rate-raising powers? In that case do they not go to the Assembly?
Lord KIRKHILL: No. The rate-raising power then goes to whatever type of authority is then created at the local authority level. For example, it might be a new one-tier authority.
The Earl of LAUDERDALE: I am much obliged to the noble Lord for giving way, he is always so courteous and kind and helpful. Supposing for the sake of argument the Convention decides to abolish the regions. There are rates raised by the regions—would they not then fall to be raised by the Convention or the Assembly?
Lord KIRKHILL: The rates which would then fall to be raised would be levied by whatever type of local authority structure was put in the place of the regions. Quite clearly there can be no dispute about that.
The Earl of LAUDERDALE: Could not the Assembly literally take over the powers and functions of the regions?
Lord KIRKHILL: If the Assembly were to behave in what I would consider in the circumstances outlined as a completely outrageous manner, it would no longer be a rate. The political consequences of that kind of politickering would be quite disastrous for the Assembly. I cannot see that happening at any point.
May I make one other point? The noble and learned Lord, Lord Wilson of Langside, asked the position on industrial de-rating. The position would be that the Assembly could legislate on that point.
Lord WILSON of LANGSIDE: I am grateful to the noble Lord on the Front Bench for his careful explanation, and to other noble Lords who took part in the debate. In the circumstances I think the sensible course for me would be to ask the leave of the House to withdraw my Amendment.
Lord HARMAR-NICHOLLS: Before the noble and learned Lord asks the leave of the House to withdraw his Amendment, may I ask a question? Could the Assembly raise a lottery? That would not be a tax; it would not be a rate. If it came off it would be a very good way of getting cash into the till. Is that ruled out?
Lord KIRKHILL: I can see no point in the present Bill which would permit the Assembly to do that.
Lord WILSON of LANGSIDE: I was about to say that I thought the sensible course, if your Lordships agree, is that I should ask for leave to withdraw my Amendment. That leaves the Amendment of the noble Earl, Lord Mansfield, still standing, and I shall be happy to leave any further comments to his much more articulate voice.
Amendment, by leave, withdrawn.
[Amendment No. 77 not moved.]
The DEPUTY CHAIR MAN of COMMITTEES: I have to draw your Lordships' attention to the fact that if Amendment No. 295 is agreed to, I cannot call Amendment No. 78.
[Amendment No. 295 not moved.]
6.1 p.m.
The Earl of MANSFIELD The Earl of MANSFIELD moved Amendment No. 78:
Page 42, line 37, at end insert ("Provided that nothing in this paragraph shall affect the powers of the Secretary of State under sections 35 and 37 of this Act, and a provision may be a reserved matter within the meaning of those sections notwithstanding that it falls within this paragraph").
The noble Earl said: We have already had a wide-ranging and very considerable debate on this Schedule and, more particularly, on this paragraph of the Schedule. There is one matter, though, about which I should like to ask the noble and learned Lord,' Lord McCluskey. The question arises as to whether override powers can be used in relation to something which extends beyond Scotland. Coupled with that is the question which I want to ask the noble and learned Lord.
In his opinion, does Schedule 2 extend to Statutory Instruments? It is an important little point for this reason. Clauses 18 and 19 extend to legislative competence and the scrutiny of Bills. Nothing has so far been said as to Statutory Instruments. I was aware that a new Amendment, so to speak, No. 253 has been tabled in the name of the noble and learned Lord the Lord Chancellor, which, as it were, rewrites subsection (2) of Clause 35. But that clause also goes to Bills, and not to Statutory Instruments

1051
made in consequence of Bills. In those circumstances, it may just be that the device which my noble friend and I have used in our Amendment, would serve the purpose better than what the noble and learned Lord said would be the ease with Amendment No. 253. At any rate, I put it forward for his consideration. I beg to move.
Lord McCLUSKEY: As I indicated earlier, the Government sympathise with the objective behind this Amendment, or at least that part of it which relates to the legislative competence of the Assembly. Indeed, that is why the Government have put down their own Amendment No. 253, which I shall seek to explain when I come to it. That Amendment will ensure that the Secretary of State can use his override powers under Clause 35 to block an Assembly Bill, notwithstanding that it is within the legislative competence of the Assembly by virtue of paragraph 8 of Schedule 2. Of course, all this is subject to such reconsideration of that paragraph as we make in the light of the observations from your Lordships earlier.
With regard to the second point of whether Schedule 2 extends to Statutory Instruments, I have to suggest to the noble Earl that it does not. The reason for that is that Schedule 2 derives its whole existence from Clause 18, subsection (2) of which states:
"Any question whether a provision contained in a Scottish Assembly Act is within the legislative competence of the Assembly shall he determined in accordance with Schedule 2 to this Act."
I think it is clear—and I hope that I shall be corrected if I am wrong—that Schedule 2 is therefore concerned with, and only with, legislative competence, and not with the possibility of making Statutory Instruments of that kind which are dealt with in other clauses of the Bill.
It is for that reason that, while we are happy to accept the principle that lies behind that part of the Amendment which relates to Clause 35, we are not happy with the Amendment in so far as it relates to "Section 37", as it is properly put in the Amendment. We think that that is not relevant to this matter. Accordingly, I shall in due course be moving Amendment No. 253, which deals with that first point. For the reason I have given, it would not be appropriate to accept the
1052
second part of the noble Earl's Amendment and perhaps, in the light of Clause 18(2) and its provisions, and the character of Schedule 2, he would like to reconsider whether he wants to press that at any stage.
The Earl of MANSFIELD: I am grateful to the noble and learned Lord, but perhaps I may ask him where in the Bill subordinate legislation is dealt with. May I go back to the analogy of rabies? It would be within the competence of the Scottish Assembly to pass a Bill dealing with rabies, if it should come along, and it is quite within the bounds of probability that the Secretary dealing with such matters could, in effect, initiate the necessary subordinate legislation. To quote an example, it might be that dogs on each side of the Tweed should have to wear muzzles if there were an outbreak of rabies, which he thought could spread from the North of England into Scotland. If Schedule 2 does not cover that eventuality, then what does? If nothing does, should it not be written in?
Lord McCLUSKEY: I think the position is that subordinate Instruments are dealt with in a great many places in the Bill, and we are coming fairly soon to some of them. But may I refer, in particular, to Clause 21(1) which states:
"Where, by or under any Act passed before this Act, any power to make, confirm or approve orders, rules regulations or other subordinate legislation is conferred on a Minister of the Crown, then … it shall be exercisable by a Scottish Secretary."
That is one of the examples. Of course, there is Clause 22 and there are various other provisions, including the Schedules, relating to this matter. I am sure that the noble Earl will have noticed them. Does that sufficiently answer his point at this stage?
The Earl of MANSFIELD: I do not think that it does, but I shall not press the noble and learned Lord any further on it tonight, because I am not sure that this is the right part of the Bill. But I am sure that the noble and learned Lord has perceived my point, that there may well be subordinate legislation which is passed in consequence of a future Act. I am well aware of what Clause 21 says about past Acts, but there may be legislation subordinate to, and consequent on, a

1053
perfectly proper Act of the Scottish Assembly, which may then, as it were, be repugnant, although it may be months or years after the passing of the original Assembly Act. That is the situation which I was postulating, and that is part of the situation which this Amendment tries to foresee. But, in the circumstances, I shall not pursue the matter tonight and I beg leave to withdraw the Amendment.
Amendment, by leave withdrawn.
Shedule 2 agreed to.
Clause 19 [Scrutiny of Assembly Bills]:
6.9 p.m.
Viscount DILHORNE Viscount DILHORNE moved Amendment No. 79:
Page 8, line 11, after ("Secretary of State") insert ("and the First Secretary").
The noble and learned Viscount said: It might be to the convenience of the Committee if with this Amendment we consider Amendments Nos. 80, 81, 296, 297, 84 and 88. They all deal with the same subject and with three particular aspects of that subject. Last Wednesday night we had a rather excited debate on the question of the effect of an Assembly Act once it had received the Royal Assent. It was said by my noble and learned friend, whose opinion I always respect even if I do not always agree with it, that for the United Kingdom Parliament to make a law that an Assembly Act which had received the Royal Assent should be the unchallengeable law of Scotland was the negation of the rule of law. I was a little astonished at the limitation on the powers of the United Kingdom Parliament. However, we are not discussing that point tonight and I mention it only for this reason: if we are to have Acts of the Assembly which are challengeable at any time in the courts of Scotland, England and Wales, then it seems to me to be most important to reduce, so far as possible and so far as properly can be done, the number of occasions on which those challenges will be made.
However important it may be that there should be the right of challenge of an Act when it is passed, surely it is much more important that there should be adequate machinery to prevent the Assembly from passing an Act and that Act getting the Royal Assent if, in fact, the Act is outside
1054
the competence of the Assembly. I hope that there will be agreement on that point at least and that tonight we shall not have such an excited debate.
With regard to this matter, my noble friend Lord Home of the Hirsel and I think that the Bill is seriously defective, and I should like to ask the Committee to note three points. I ask the Committee to note, first, that the only person who can refer a Bill of the Assembly to the Judicial Committee for a decision as to whether or not that Bill is within the competence of the Assembly is to be the Secretary of State for Scotland. The second point that I ask the Committee to note is that before he can do so, the Secretary of State must have formed the opinion that the Bill is ultra vires the Assembly. The third thing which I ask the Committee to note is that before the Secretary of State can refer it to the Judicial Committee, the Bill must have passed the Assembly.
Whether or not a Bill is within the competence of the Assembly as dealing with devolved matters is a pure question of law. It involves consideration of the terms of this Bill when it becomes an Act and the terms of the Assembly Bill. It is those two documents which will have to be looked at. It is a purely legal question. Only when that is done can one reach a decision as to whether or not a Bill is within the competence of the Assembly. Under this Bill as it now stands, however, it is not a lawyer who is called upon to decide this legal question. It is the Secretary of State.
Those who hold, and have held, that high office are almost invariably persons of high distinction but I do not think, although I may be wrong, that they have ever been very distinguished lawyers—and that maybe is a matter for regret. Indeed, it was one of the main arguments last Wednesday of my noble and learned friend Lord Diplock that if my Amendment then had been accepted it would have been left to a political figure, the Secretary of State alone, to decide whether or not to make a reference to the Judicial Committee.
We may be told that the Secretary of State will act on the advice of the Lord Advocate. Presumably he will have the advice of the Lord Advocate, but is the Secretary of State bound to act upon it?

1055
If he is not bound to act upon that advice, the Secretary of State—a political figure who is more involved in politics than law officers normally are, although nowadays they seem to be more involved than they were in my day—is surely exposed to the liability of being accused of referring a Bill to the Judicial Committee for political reasons. I should have thought that it was desirable to avoid that liability, if possible. If the Secretary of State is bound to act on the advice of the LordAdvocate,would it not be better in this Bill to put the responsibility on the Lord Advocate for deciding whether or not to make a reference? I should have thought that then he would be far less likely to be attacked on political grounds.
If the Secretary of State forms the opinion that the Bill is ultra vires, and he refers it to the Judicial Committee and if that Committee decides the Secretary of State is wrong and that the Bill is intra vires, what then will be the position of the Secretary of State? He will have held up—it may be for months—and held up wrongly the enactment of an Assembly Bill, and I should have thought that he would be liable to be attacked on that account. And if it be known that he and his Party are opposed politically to the Party which forms the majority in the Assembly, the Secretary of State's liability to be attacked on political grounds for making the reference to the Judicial Committee will, it seems to me, be considerably increased.
If the decision is to be made by somebody who is not a lawyer, as the Bill proposes then my noble friend and I think that it should be not only the Secretary of State who can make the reference but the First Secretary as well. That is the first point which is raised by Amendment No. 79 in this series of Amendments.
However, since tabling that Amendment and the consequentials to it, I have been giving further thought to the matter, and I think now that the Lord Advocate should be the person responsible for deciding in the first place this question of pure law. We were told, I think last Wednesday, by the noble Lord, Lord O'Neill of the Maine, that in Northern:Ireland the practice is to obtain a certificate from the Attorney General of Northern Ireland. The noble Lord said that the system had worked
1056
there very well. I should have thought that such a system would be an improvement. Because we have not put down an Amendment to that effect, I should like to say straight away to the noble and learned Lord the Lord Chancellor that we shall not be pressing that Amendment to a Division. That may give him some slight relief.
That is the first question which is raised by this series of Amendments. The second question is whether whoever has power to refer should have power to do so only when he has decided that the Bill is ultra vires. I think that is too strict a test. The arguments may be evenly balanced and sometimes it may be very difficult to decide that the Bill is ultra vires. When there is real doubt as to whether or not the Bill is infra vires should not there be power to refer it to the Judicial Committee and obtain the opinion of that Committee? As the Bill now stands, if there are doubts they cannot be resolved before the Bill receives the Royal Assent. They can be resolved only following the post-enactment procedure, because the Secretary of State has to be of the opinion that the Bill is ultra vires before he can make any reference. That is the second point.
The third point I want to raise is a related point and there are Amendments down to deal with it. It is this: should a reference be possible only when the Bill has passed the Assembly? One does not know with what speed the Assembly will operate; how long it will take for a Bill to get through the Assembly. It may operate faster or slower than Parliament, but as the Bill stands it is only after it has been through all its stages in the Assembly that a reference can be made. My noble friend Lord Home of the Hirsel pointed out on Second Reading that that might be a very great source of friction. I would think it would lead to a considerable feeling of resentment if, after taking a lot of trouble, perhaps through a hot summer, the Bill gets through the Assembly to be held up by a reference. So we tabled Amendments to enable a reference to be made before the Bill has passed through the Assembly. But, as I see it, that is open to some objection because one does not want every Bill—Bills which have no possibility of being passed but about which there is a doubt as to the competence of the Assembly—to be referred to the Judicial Committee. I think the Judicial

1057
Committee would want it perhaps least of all. But surely it would be desirable in some cases that there should be that power to refer a Bill before it has been passed. As the Amendments which I have tabled stand, I have to recognise that they are defective, so that may relieve the noble and learned Lord the Lord Chancellor again because I do not propose to divide on them. They are defective in that they are drafted only to secure a reference before the Bill has passed the Assembly and where a Bill, during its passage, is so amended as to bring in a position which is ultra vires. On reflection, I think now it would be much better to give whoever has the power to refer to the Judicial Committee a discretion, either to refer a Bill once it is presented to the Assembly, before the Assembly has worked on it, or after the Bill has passed.
What I have in mind is this: If a Bill is introduced to the Assembly by the majority Party in that Assembly, and so is likely to pass, if there were doubts about its vires, it might be convenient to have it referred without delay. On the other hand, if it was a Bill about which it was thought that there was little possibility of it being passed, it might be much more convenient to wait until it had passed. I should like to suggest to the noble and learned Lord the Lord Chancellor that the power to make a reference should be given to the Lord Advocate, that it should be a power to refer in any case of real doubt and at the discretion of the Lord Advocate; it should be a power to refer before a Bill has passed the Assembly, after it has been presented, as well as a power to refer after it has passed the Assembly. Of course the provision about it not being submitted for the Royal Assent, if the Judicial Committee said it was ultra vires, would stand.
I hope I have explained the point of these Amendments sufficiently clearly. I can only ask the Government to give serious attention to them, even if they cannot give an immediate reply. I tabled them with the help of my noble friend because, to my mind, if the Amendments are made on the lines I have suggested, there will be a considerable improvement to the Bill. This would be due to the real need, as I see it, to secure machinery to prevent the Assembly passing a Bill and that Bill getting the Royal Assent when it is ultra vires, which is as good as it can possibly be made. I beg to move.
Lord HOME of the HIRSEL: I am rather sorry that my noble friend and I were unable to draft an Amendment which would provide a pyrotechnic display such as we had the other night. As a member of Lord Lauderdale's third form, I found it entirely enjoyable. From the discussion earlier this evening, I think we see how important it is to introduce a certainty of definition as to what is and what is not a Scottish Bill. One of the most important purposes of this Amendment from my point of view, as my noble and learned friend has said, is to obtain an accurate designation for such a Bill, and at the earliest possible stage.
In the Bill the Government provide for scrutiny, as indeed they must, but it is very late. Like my noble and learned friend, I do not think that in proposing the Secretary of State and the Chief Secretary we have got the right machinery, but we are entirely flexible as to what the machinery should be, and that is why we are not going to press these Amendments. But in the context of Scottish legislation as it is now, we have a precedent, and a successful precedent, as to how to deal with the question of whether a Bill is intra vires or is outside the scope.
I am a little rusty in my recollection of the procedures in another place, but I believe I am right in saying that when a Bill goes to the Scottish Grand Committee it is simultaneously designated by Mr. Speaker to be a purely Scottish Bill. That procedure has many advantages, because from the start the limits of the Bill are known. So far as I know—and I have consulted two ex-Secretaries of State in this House—the judgment of Mr. Speaker in this matter was never questioned, either at the beginning or during the progress of a Bill.
There is another advantage in designating a Bill as purely Scottish at an early stage. The Promoters of the Bill and the legal advisers to the Promoters and the Parliamentary draftsmen know exactly what they have to do. They know that they have to pass this hurdle at an early date, and therefore they take the greatest care that the Bill is in fact intra vires.
My noble and learned friend has said a word or two about the machinery, and my noble friend Lord Harmar-Nicholls earlier recalled (and your Lordships will remember it) the dispute over the hybrid

1059
Bill. I remember that there was a certain procedure there. I think that certain gentlemen were set up as Examiners and those Examiners reported on the Bill. Would it be possible to have Examiners drawn from the officials who serve the Assembly and the officials who serve the Westminster Parliament, and that early on they should pronounce on whether the Bill falls within the scope of Schedule 10? I prefer the suggestion made by my noble and learned friend that it should be the Lord Advocate. The great advantage of the Speaker is that he would be seen to be totally non-political. The Lord Advocate is more or less nonpolitical and is accepted as being nonpolitical in Scotland. I think this is probably the best suggestion; but there are other possibilities, and in moving this Amendment we hope that the Government will consider them and perhaps come forward with a suggestion of their own at the Report stage.
6.30 p.m.
Lord MORRIS of BORTH-Y-GEST: May I express general agreement with the line of thinking behind the speeches of my noble and learned friend Lord Dilhorne and the noble Lord, Lord Home of the Hirsel. Last Wednesday your Lordships debated the question whether it was desirable to have post-enactment scrutiny by the courts. I have discussed the matters involved with my noble and learned friend Lord Dilhorne and he was good enough to say that I was in agreement with the views that he was expressing. I have since read his speech and the speech of the noble Lord, Lord Home of the Hirsel, and I found myself in agreement with their views.
That matter is not before your Lordships this evening, and I would not think it opportune, possibly not even seemly, to reopen discussion on that matter. But what I would submit is that if the view is taken, or may be taken, that there will be post-enactment scrutiny, and if that view is not acceptable to all your Lordships, does it not emphasise the point that it is highly desirable to devise the best machinery possible to ensure that at the earliest moment a Bill that is to come before the Assembly, or possibly a Bill that has been before the Assembly, is one that is within the powers of the Assembly,
1060
and to arrange all that before the stage comes for Royal Assent?
May I remind your Lordships that, though views were strongly expressed last Wednesday that there should be post-enactment scrutiny, this has never been regarded as a straightforward or an easy matter. Indeed Her Majesty's Government took very great care before they arrived at the views that they have expressed. Your Lordships may remember that in the relevant Command Paper of 1976 the Government left that matter open for discussion and they described it as a complex matter. I refer to the Command Paper of 1976 in which it was said:
"The question arises whether after Assent has been given an Assembly Act should he open to review in the courts on the ground of vire; that is, whether the courts should have jurisdiction to declare at the instance of a litigant that an Assembly Act goes outside the powers conferred by the devolution Act. The issue is more than just a legal technicality and there arc arguments both ways.".
Then, very fairly, the Government in the next paragraph summarised the arguments in favour of judicial review. In the following paragraph, very fairly, they summarised the arguments against judicial review, and then said that they welcomed public discussion before there was a final decision. Then in the Command Paper of August 1976 the Government said that the previous Command Paper
"explained the complex problem of whether after an Assembly measure has received Assent by Her Majesty in Council and thus become an Act the courts should be able to consider at the instance of any litigant whether it is within the devolved powers. The Government have weighed very carefully the views expressed and have decided that there should be a right of access to the courts in this respect".
That, if I may say so, is very reasonable. One can understand that. One can respect the decision. One can respect it even though one regrets it. But the whole of that, I suggest to your Lordships, does indicate that there are powerful views that are opposed to the idea that after Her Majesty has given Assent to a measure there should still be opportunity to declare that it was ultra vires.
Does not that all point to the desirability of taking all possible steps to see that what a certain number of your Lordships regard as undesirable—that is, post-enactment scrutiny—should be

1061
avoided by taking the best steps that can be devised to ensure that before the stage conies for Royal Assent it should be determined that the measure is within the powers of the Assembly.
My noble and learned friend Lord Dilhorne has indicated, and the noble Lord, Lord Home of the Hirsel, has indicated, that they both have no settled view as to who should be the prime mover, but I do respectfully strongly support the view advanced by the noble and learned Viscount, Lord Dilhorne, that it should not be left, as it is the present measure, for the Secretary of State to have to come to an opinion and then for the question as to whether he is of a certain opinion to determine the issue whether the matter should go for consideration by the Judicial Committee. I much prefer some word such as "doubts".
I should have thought that if it could reasonably and fairly be argued that a measure is not Ultra vires it would be reasonable to refer that at the earliest moment to the Judicial Committee, or to whatever body is to decide. I should have thought that when any measure is being considered those who sponsor it and those who favour it would go to very great pains to ensure that they are within the powers of the Act. I should have thought those who are opposed to the measure would be alert to raise every point and bring it to the notice of those advancing the measure. That would all be so reasonable. Is not that the time at which these matters should be considered?
It may he that the Lord Advocate should be the person who is to move in the matter. But will not the fears of many of your Lordships who regret the idea of post-enactment scrutiny—that is to say, after Her Majesty has given her Assent to a measure—be met to a considerable extent if every possible means are devised to ensure that at the earliest moment, and in the most clearway, it can be ascertained and determined whether a measure is within the powers given to the Assembly?
Lord KINROSS: I wanted to make two points. In the first place, I support the views that have been put forward by the noble and learned Lords and by Lord Home of the Hirsel as to the necessity of getting a Bill which is going to the
1062
Assembly passed as being infra vices of the Act at the earliest possible moment. This can avoid an enormous amount of time and trouble in the future. The second point I wish to make is that the machinery for this might well be that which is employed in this House and was employed, as Lord Home said, for the Aircraft and Shipbuilding Industries Act not so very long ago, when Examiners were appointed from this House. Whether they are a standing body or not I do not know, but I think they would be the suitable people to adjudicate upon an Assembly Bill before it was submitted to the Assembly. I know that some of them are lawyers and that would be very suitable.
Lord FRASER of TULLYBELTON: On this occasion I am glad to say that I find myself in complete agreement with my noble and learned friend, Lord Dilhorne, particularly on the first of the points that he mentioned a moment ago. I strongly agree that the decision whether to refer a Bill before enactment for consideration by the Judicial Committee or whatever the body may be, would be much more appropriately taken by a lawyer or a legal official, presumably the Lord Advocate, than by the Secretary of State.
I have in mind the somewhat slightly analogous case of Community directives which are considered in this country when they come out in draft. There have been cases where draft directives issued by the European Community have been considered by the Legal Sub-Committee of your Lordships' House and have been thought to be ultra vires. However, the final decision has been on political grounds—and I have no doubt at all on perfectly proper political grounds—that it is not worth fighting it because it would lead to political complications and it is better to let the ultra vires directive go through in the interests of general peace and harmony.
That may be a proper political decision, but if we are to operate a very complicated scheme such as is contained in the Bill, I should have thought that it was quite essential that the decision on whether to remit a Bill for consideration as to the vires should be taken on strictly legal grounds and in no sense on the grounds of political bargaining. If it were done on the latter sort of grounds, it seems to me

1063
that it would lead to endless complications and perhaps very undesirable results. Therefore, I would strongly support the suggestion that the proper person to take the decision is someone—probably the Lord Advocate—who is a lawyer.
The only other matter that I should like to raise on this point is that I suggest that it would really be better to fix the responsibility for referring a Bill on one person—in my view the Lord Advocate—rather than dividing it between two people who might disagree and on whom in any event it is always more difficult to pin the responsibility than on a single person who has to make up his mind. In my view the proper person is the Lord Advocate.
6.44 p.m.
Lord DIPLOCK: Three points are raised by the proposed Amendments. On some of them I find myself in agreement with my noble and learned friend Lord Dilhorne and the noble Lord, Lord Home of the Hirsel, and on others I have doubts and on one I disagree. So far as agreement is concerned, I suggest that, as this is a purely legal question as to whether it is within the legislative competence of the Assembly, it would be better that the decision whether to refer or not be left not to a political Minister but to a lawyer. I venture to think that the obvious person would be the Lord Advocate. unless it would be the Solicitor-General for Scotland.
The question on which I have doubts is the formula suggested as a condition precedent to a reference. At present it is if the person concerned is of opinion that it is not within the legislative competence of the Assembly. It may be that some better formula than that could be used, but if it is merely a question of doubt which makes it compulsory to refer it to the Judicial Committee of the Privy Council then, having looked at Schedule 2 and Schedule 10 this afternoon, there must be many matters upon which one could be described as having doubts and very few on which one could be described as being perfectly confident.
The matter on which I do not agree with my noble and learned friend—I regret having to come to this—is the suggestion that the reference should take
1064
place, or there should be a possibility of reference, before the Bill had been passed by the Assembly and thus was ready for the Royal Assent. It does not seem to me that that would work. As regards whether it is within the legislative competence of the Assembly the question is whether, if it became a Scottish Assembly Act, it would be only within the legislative competence of the Assembly. That means that every clause must be within the legislative competence.
Until a Bill has reached the stage when all the clauses have been settled and until the possibility of amendment has disappeared, it is quite impossible to know what is being referred to the Assembly: and the answer that that is within the legislative competence will necessarily apply when it has reached the later stage, with possibly amendments as well. Therefore, in that respect I agree with the provision in the Bill that it should be only after the Bill has passed the Assembly and is ready for the Royal Assent.
Lord HOME of the HIRSEL: I should like the noble and learned Lord to enlighten me about this. After all, the procedure of vetting a Bill before it is introduced has been undertaken by the Speaker over all these years with great success and everyone from that moment knew where he was, and amendments which fell outside his ruling were almost automatically dismissed and it was accepted that they should be dismissed because he had ruled them virtually out of order from the start.
Lord DIPLOCK: The essential difference is that once an Act has been passed by the Parliament at Westminster, whether it be called a Scottish Act or whatever, it is law, and it is unquestionable. No one can go to the courts and say: "Please say that this is ultra vices as it is not a Scottish Bill because the Examiners were wrong when they said it was". However, with an Assembly Act, after it has been enacted anyone who is affected by it can go—I hope it will be to the House of Lords—at any rate to the courts, and say: "No, this was ultra vires" and it is their word and their decision that matters and not that of any Examiners who looked at it before.
Lord WILSON of LANGSIDE: In venturing to express support for this series of Amendments may I say a brief word on the situation of the Lord Advocate. Of course, if it were expressed to be the responsibility of the Secretary of State then the Secretary of State, as the noble and learned Viscount, Lord Dilhorne, said, would have the advice of the Lord Advocate. In the real world in which Lord Advocates and Secretaries of State live, it is, for practical purposes, unthinkable that in a matter of this sort a Secretary of State would proceed other than in accordance with the advice that the Lord Advocate tendered to him.
There is, of course, in an indefinite future or an uncertain future always, as they say, "a first time" and it may be that the best course to take—if it is decided that the Secretary of State is not the appropriate Minister because he is too political a figure—would be to put the responsibility where, in the real world as we have known it to date in this kind of area, it has always rested: namely, on the Lord Advocate.
Lord SCARMAN: I should like to address myself to what my noble and learned friend Lord Wilberforce said earlier this afternoon—the pith and substance of the Amendments. The Amendments are themselves defective and therefore there is not much point in looking in any detail at their terms. However one matter does seem to me to have been overlooked in our discussions so far and that is that Clause 19(1)(a) of the Bill makes it mandatory upon the Secretary of State, if he is of opinion that a Bill is not within the legislative competence of the Assembly, to refer the question to the Judicial Committee. With respect to those who have preceded me in the debate I should have thought that it was essential to retain in the Bill that duty if the Secretary of State reaches that opinion.
Of course, there is another problem which has been much canvassed in dealing with these Amendments, and that is what is to be the duty of the Secretary of State or the First Secretary if he is in doubt? indeed, for the reasons mentioned briefly by my noble and learned friend Lord Diplock, even after consulting the Lord Advocate and other lawyers of almost comparable brilliance and distinction, he
1066
may be in doubt, after he has puzzled his way through Schedules 2 and 10 of the Bill. Clearly something must be done—and this is where, respectfully, I agree with the pith and substance of these Amendments—to ensure that a reference may be made pre-enactment by a Secretary of State, a Lord Advocate, or whoever is the appropriate authority, if there is doubt, but that must be discretionary.
I would ask your Lordships to give serious thought before proposing the deletion from the Bill of the duty upon the Secretary of State if he reaches a clear opinion. Of course, that opinion may be wrong and that is why it is so valuable that he should not act upon it, except by referring it to the Judicial Committee of the Privy Council for a ruling. That is the only point I wish to make. If it is of any interest or assistance to your Lordships, I point out that I support the broad line taken by my noble and learned friend Lord Diplock on these Amendments.
6.51 p.m.
The LORD CHANCELLOR: First there seems to be common ground about the necessity for proper scrutiny of the vires of an Assembly measure before an Assembly Bill is submitted to Her Majesty in Council for the Royal Assent. There also seems to be a desire that whatever steps are taken to test the question of vires should be taken in such a way as to minimise the friction between Governments, Assembly and Parliament. Both those propositions at any rate, out of the welter of difficulty, seem to be agreed.
On the first matter, what is proposed in the Bill has the merit of clarity and it leaves the responsibility for initiating the process of reference to the Privy Council to the Secretary of State. I note that the officer is described as "the Secretary of State", and I should like to give further thought to the possibility that that may not necessarily be limited to the Secretary of State for Scotland. In the ordinary language of an Act of Parliament it is certainly not limited. However, in practice, I apprehend that it is the Secretary of State for Scotland who will be primarily involved in these activities.
I think that we have perhaps been in danger of forgetting that a decision on whether or not there should be a reference is not taken in isolation. Quite a series

1067
of steps will have been taken during the progress of a Bill when the question of vires will certainly have been capable of being considered and will, I am sure, have been considered. The Scottish Executive itself, which will presumably introduce the measure, will be guided by its own Law Officer on any question of the extent of the competence of an Assembly Bill. It can reasonably be expected that the presiding officer of the Assembly and the Clerk to the Assembly would provide proper advice on the vires question. I have little doubt that standing orders will be set up to provide a formal check of the question of vires, or even certification of the question of vires in relation to the Bill itself, when it is introduced, and in relation to any Amendments that may be moved during the passage of the Bill.
Therefore, there is that machinery which will be astute enough to examine the question of vires. We must assume that we are dealing with responsible officials, responsible lawyers and a responsible body of men constituting the Assembly, who will not be operating at arms' length with their opposite numbers; but there will be consultation at the political level and at the highest level.
Of course the Secretary of State will have available to him the advice, not only of the Scottish law officers but, of course, of the Attorney-General and the Solicitor-General, and such other advice that can be obtained from Whitehall. So a whole range of advice will be available to the Secretary of State, and closest to him, of course, will be the Lord Advocate. Therefore, in my submission, given that considerable collection of opportunities for practical examination of vires as the proceedings continue, I apprehend that at the end of the day it will he rare indeed that this very problem will arise. However, we cannot exclude the possibility that it may arise, and that is the occasion for intervention by those outside the Assembly; namely, the Secretary of State or whoever Parliament decides the person should be.
As I have said, the Secretary of State will not only have the advice of his own Lord Advocate or the Solicitor-General but he will also have contact with, and the availability of advice from, the Attorney-General and the Solicitor-General in London. Therefore, it is more appropriate
1068
in all those circumstances that it should fall to the Secretary of State to make this important decision. I agree that it is eminently a legal question; indeed, it is entirely a legal question; but it has very important political implications and complications. Therefore, I respectfully submit that the view that the Secretary of State should be the linchpin is the right one.
Then comes the question as to, so to speak, the state of mind in which the Secretary of State should operate. appreciate the information of the noble and learned Viscount, Lord Dilhorne, that we need not penetrate the details of these Amendments, which he will think about again. No doubt, therefore, we shall have to return to the nuts and bolts of what is proposed at a later stage. There is a proposal that instead of the Secretary of State having to be of the opinion that a Bill is not within the legislative competence of the Assembly, it will suffice for him to put in train the operation of a reference to the Judicial Committee if he doubts whether a Bill is within the legislative competence of the Assembly.
I think that a requirement should be placed firmly upon the Secretary of State to make up his mind whether lie thinks there is something wrong and that the Bill is ultra vires; then lie should act and refer. The difficulty of leaving the matter in the stage of doubt, a mere scintilla of doubt—or whatever the nature of the doubt may be: it is not identified, or qualified—is that it could result in a very large number of unnecessary references to the Privy Council. At any rate, before he presses any further amendment of that proposal to a Division, I invite the noble and learned Viscount to consider the language of the Amendment, according to which the Secretary of State has to be of opinion, and has to come to a decision on the matter.
Next comes the question of the point at which the intervention should take place. Under the proposals of the Bill, it takes place after the Bill has been through and been passed by the Assembly. It is suggested that, in addition to the power to intervene at that stage, there should be a further power to intervene at an earlier stage. That would at any rate duplicate the possibility of friction, would it not? I see great force in the

1069
observations of the noble and learned Lord, Lord Diplock, as to what might be the consequence of that.
If the matter is to be referred at the stage of presentation, that will mean that at the stage of presentation of all Bills the Bill will have to be examined, presumably by the Secretary of State, for vires. In proceeding through the Assembly, as through Parliament, many Bills will of course fall by the wayside, especially the large number of Private Member's Bills—and I assume that there will be machinery for Private Member's Bills being introduced before the Assembly. Before ever they reach the richness of fruition of being passed by the Assembly, they will have fallen by the way. Is it really necessary that, before the stage of the decision as to whether the Bill survives the Assembly, Bills which may have no hope of survival should nevertheless, because they contain a vires element, have to be referred to the Judicial Committee? In my respectful submission, that would be an unnecessary burden to impose upon it. This constant presence of the Secretary of State over the proceedings of the Assembly from the moment the Bill is presented would create the maximum of irritation from the beginning of the procedures in the Assembly right to the very end, and, even after the intervention at the beginning, the Assembly would still have to face the possibility of "Big Brother" coming in again at the very end.
I invite noble Lords to the view that this double process of intervention would increase irritation, and that irritation would be increased if, as I understand was originally contemplated by the noble and learned Viscount, Lord Dilhorne, there were to be intervention when Amendments are introduced and moved during the progress of the Bill. That really would be a constant intervention, fussiness, overseeing, shadowing each stage of the progress of a Bill through the Assembly. That again would be a prescription for irritation and friction, and not for reasonable collaboration. Whitehall would be ever present in the legislative process.
In the light of these submissions which I make to your Lordships, I venture the view that on the whole—this matter is not easy—what is proposed in the Bill is probably most calculated to achieve the
1070
twofold purpose I mentioned at the beginning, and which is common to the House, of effective scrutiny before Royal Assent, and avoidance of friction so far as is reasonably practicable in any relation between Parliament and a subordinate legislature.
7.4 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: I am sure that the Committee is grateful to the noble and learned Lord for his exposition of the subject. I do not want to prolong this discussion which has been interesting and, being obviously highly technical, is not one upon which these Benches would wish to express a collective opinion of any kind. However, the House as a whole will have to come to a decision in these matters in the long run, though not on this occasion as my noble and learned friend Lord Dilhorne has indicated his desire not to pursue the matter at this stage.
Nevertheless, it might be of assistance both to the noble and learned Viscount and to the noble and learned Lord the Lord Chancellor if I briefly described what we on these Benches tend to think about these three quite separate problems. In the first place, I personally agree with my noble and learned friend Lord Diplock and the noble and learned Lord the Lord Chancellor, that, on reflection, it may be accepted that the point of reference ought to be after passage through the Assembly. The reasons for that have been so fully rehearsed by the noble and learned Lord and by my noble and learned friend Lord Diplock that I do not think I want to repeat them. I think that they are on the whole conclusive.
However, there is a point on which I still retain a good deal of doubt about the present phraseology of the Bill, and I hope that the noble and learned Viscount, Lord Dilhorne, will return to this at a later stage. It is the question of what happens when, without being definitely of the opinion that a matter is not within the powers of the Assembly, the Secretary of State, or whoever is selected as the appropriate officer, is of the opinion that a serious or substantial question arises as to whether a matter is or is not within the competence of the Assembly.
I myself am convinced, as was the noble and learned Lord, Lord Scarman,

1071
that in such a case there ought to be a reference. I quite see that where the Secretary of State can make up his mind he ought to make up his mind to refer it if he is quite clearly of the opinion that the matter is ultra vires, but anyone who has rambled through Schedules 2 and 10 must realise that great doubts can arise under them, the more so as this particular section of the Bill relates not merely to a Bill as a whole as it comes before the Assembly but to any provision of a Bill. One of the subsections clearly refers to that.
I should have thought that, in everybody's interest, it was desirable that, where a substantial question arises as to vires, there should be pre-enactment review and that the matter should be referred, assuming that the matter is of sufficient size to make it worth while and that there is sufficient probability of its arising in practice. Obviously, as the noble and learned Lord, Lord Scarman, has said, an element of discretion, would in such a case have to be left to the Secretary of State or the Lord Advocate, as the case might be, but I do not think that, in promoting this reference to the Judicial Committee, one should overlook the possibility that the Secretary of State or Lord Advocate might come to the conclusion that it was far better to clear the matter up, without coming to the conclusion that it was positively ultra vires.
7.8 p.m.
Viscount DILHORNE: I think that we have had a useful debate. I rather suspect that the noble and learned Lord the Lord Chancellor was expecting me to confine myself strictly to these Amendments because it seemed to me that some part of his reply was more related to the Amendment than it was to my speech. I never suggested in my speech that a Bill should be referred after every Amendment had been made to it. I suggested no duplication of that sort. What I suggested was that whoever had the duty, or power, to refer ought to have a discretion as to when he did refer. In some cases it might be convenient—it might be by agreement—to refer it at an early stage; in other cases only when it has passed through all its stages in the Assembly.
1072
I also pointed out that if amendments happened to be made during its passage, one might have to refer that amendment, but I was not, in moving this group of Amendments, pinning myself to one particular point of time for a reference but speaking in favour of giving more discretion to whoever it is to make the reference as to the particular time when he should do it because it might be convenient in some cases to wait to the end and in some cases not to do so. The answer to my noble and learned friend Lord Diplock is of course that if one referred at the beginning and no amendment was made which could possibly raise the question of vires, one would not have to consider referring again; if an amendment was made raising such a question, one would merely refer that particular provision.
That is not the most important point raised by this Amendment. I think the really important point is this. In what circumstances should a reference be made? I have no objection to the proposal put forward by my noble and learned friend Lord Scarman. If the Secretary of State reaches the opinion that a Bill is ultra vires, then of course there must be a reference to the Privy Council. That is as the Bill stands. But I do not think that goes far enough because, if there is no power of referring a Bill where there is a real doubt about the vires, then one is leaving the test of its validity entirely to the post-enactment procedure. I feel very strongly that there should be a power, I suggest a discretionary power, on the Secretary of State or whoever has the duty, where he thinks there is a real positive doubt—and I am not trying to draft while on my feet—to refer and get that doubt resolved by the Judicial Committee.
It is all very well for my noble and learned friend to say that one need only look through Schedule 10 to see there is a doubt in every line; I do not entirely agree with that observation because I think the Bill is better than that. At the same time, I should be perfectly content to leave it to whoever was the person in charge, in the exercise of his discretion, to be able to refer where he thought there was real doubt.
I come to the third and final question: who should be the person to decide? The noble and learned Lord the Lord

1073
Chancellor went through the whole list of the people who would give advice to the poor Secretary of State, a layman. I should have thought the debates in this Committee would have indicated how infrequently it is that legal advice is unanimous. There will be the poor Secretary of State having advice from the Solicitor-General for Scotland, from the Lord Advocate, from all kinds of people and even, the Lord Chancellor said, from the Attorney-General and the Solicitor-General. The only person left out, I noticed, with some care was the Lord Chancellor—the noble and learned Lord left himself out—and no doubt that was absolutely deliberate and not inadvertent; we discussed "deliberate" and "inadvertent" earlier.
Be that as it may, what is the poor Secretary of State to do? He is not the right person to decide purely legal questions. I ask the Lord Chancellor to consider again how much any Secretary of State will be exposed to attack unfairly if this responsibility is put on him. I believe it would be much better if it were left to the Lord Advocate. The Lord Advocate has to initiate proceedings when it comes to the court; let him initiate a reference. I think that would be acceptable and would reduce the possibility of friction. I cannot go with the Lord Chancellor in the suggestion that, contrary to the intention of these Amendments, they would he likely to promote friction.
I ask the Lord Chancellor to give serious consideration to this again by giving him the power—this is the one to which I attach most importance—to refer where there is real doubt and where it is really in the public interest that that doubt should be resolved. Do not put it on the Lord Advocate or anyone else to have to make a decision and then possibly be condemned or found to have made the wrong decision by the Judicial Committee. We have had a useful debate and, with the leave of the Committee, I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 80 and 81 not moved.]
Lord STRABOLGI: My Lords, I beg to move that the House be now resumed.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

HOUSING (FINANCIAL PROVISIONS) (SCOTLAND) BILL
Report received.
7.15 p.m.
The DEPUTY SPEAKER (Lord Segal): My Lords, I must inform the House that, owing to printing difficulties, there is no Marshalled List, so it will be necessary to describe the Amendments as the first, second, third Amendments, and so on.
Schedule 2 [Minor and consequential amendments]:
Lord KIRKHILL Lord KIRKHILL moved the first and second Amendments en bloc:
Page 16, line 25, after ("includes") insert ("(a)")
after ("houses") insert ("; or (b) a house or houses and other premises.".")
The noble Lord said: My Lords, these Amendments deal with a small technical point; the intention in the Bill is not modified because of them. The purpose is to clarify and secure beyond doubt the original intention behind the amendment of Section 24 of the Housing (Scotland) Act 1969 which is to bring within the scope of the repairs notice procedure commercial premises in tenements or other buildings containing houses in disrepair. The wording of paragraph (7) of Schedule 2 was modified to meet the wishes of the Opposition, accepted by the Government at House of Commons Committee stage. The intention was to make it clear that non-housing premises within a building could be brought within the scope of repairs notices issued by a local authority under Section 24 of the Housing (Scotland) Act 1969 and would meet their share of the costs. The Government accepted the principle of that Amendment. It is only right that the owners of, for example, commercial premises in a building which includes houses—say a tenement building in Scotland—should share responsibility for common repairs required and should be made the subject of a repairs notice. The present wording of paragraph 6(d) might still not be construed as allowing a repairs notice to be issued in respect of a building which included premises other than houses. The insertion of the phrase

1075
";or (b) a house or a houses and other permises" puts the matter beyond doubt.
Lord CAMPBELL of CROY: My Lords, we are grateful to the noble Lord, Lord Kirkhill, for explaining these two Amendments. They appear to be drafting and consequential, following acceptance by the Government in another place of a Conservative Amendment, and these two Amendments continue the purpose behind the agreement in another place and I commend them to the House.
On Question, Amendments agreed to.
Lord KIRKHILL Lord KIRKHILL moved the third Amendment:
Page 16, line 30, after ("among") insert ("the persons having control of").
The noble Lord said: My Lords, this is another minor technical Amendment which, like the first two, does not modify the intention of the Bill. Paragraph (7) in Schedule 2 would at present amend the Housing (Scotland) Act 1969 to the effect that the cost of repair works undertaken by a local authority consequent on a repairs notice is apportioned amongst houses and other premises in a tenement building. It is now considered necessary to provide specifically that the apportionment is to identifiable persons, thus bringing the Bill into line with the existing provisions in Section 25(1) of the 1969 Act.
On Question, Amendment agreed to.
Lord KIRKHILL Lord KIRKHILL moved the fourth Amendment:
Page 16, line 39, at end insert—
("8A. In section 16(3) (rent allowances to private tenants)—

(a) after the word "person" where it first occurs there shall be inserted "(a)";

(b) at the end there shall be added the words "or (b) who is a tenant of a house which has or had on the appropriate day a rateable value not exceeding £600 and who would be such a protected tenant or statutory tenant if the house of which he is a tenant has or had on the appropriate day a rateable value not exceeding £200.

In this subsection "appropriate day" means—

(i) in relation to any house which on 1st April 1978 comprised or formed part of land and heritages for which a rateable value was shown on the valuation roll then in force, means that date, and

1076

(ii) in relation to any other house means the date on which such a value is or was first shown on the valuation roll.".")

The noble Lord said: My Lords, I apologise to the House for introducing this Amendment at such a late stage. Its purpose is to correct a serious anomaly which has only recently come to light. The anomaly concerns the effect of the recent revaluation of property in Scotland on the scope of the rent allowance scheme. If the Amendment is not made, a number of tenants will be denied access to a rent allowance for which they would have been eligible but for the revaluation.
The scope of the scheme—with one small exception—is defined by reference to the criteria for protected tenancies under the Rent Acts. One of these criteria is a rateable value limit contained in Section 6 of the Rent (Scotland) Act 1971. That rateable value limit affects the eligibility of tenants for a rent allowance, even if their tenancy is not itself protected. For example, it affects tenants of housing associations—the group which, in practice, is most likely to be affected by the anomaly.
The problem is caused by the revaluation which took effect from 1st April this year. A newly-built or converted house whose rateable value is fixed for the first time after 1st April this year, is likely to have a rateable value roughly three times as large, on average, as the value which would have applied to comparable property prior to revaluation. In these new circumstances the statutory limit of £200 rules out new and converted property of a standard which was always intended to be within the scope of the rent allowance scheme. The Amendment seeks to remove the anomaly by introducing a new limit of £600 for the purpose of the rent allowance scheme.
My Lords, the simplest, and obvious, way of achieving the objective would be to alter the rateable value limit in the Rent (Scotland) Act 1971. But such an Amendment would be outwith the scope of this Bill. But we can deal with the point in the present Bill by amending the scope of the rent allowance scheme. The terms of the Amendment reflect the complexity of achieving the desired effect without either significantly widening or narrowing the scope of the rent allowances scheme.
This is a detailed, but important, Amendment which I felt should be put before your Lordships without delay. I wish to acknowledge in public the consultations I have had with the noble Lord, Lord Campbell of Croy, who, with complete impartiality, and utter fairness, permitted the Amendment to come forward this evening. I confess that we have had to prepare it in a rush, and I think that we will wish to make a small, but vital further change to make quite sure that we preserve the right to rent allowances of housing association tenants, and similar categories. It is a complex piece of drafting, but I think that your Lordships would want us to get it absolutely right. Therefore, there may be a further minor Amendment at Third Reading. I beg to move.
Lord CAMPBELL of CROY: My Lords, again we are grateful to the noble Lord for explaining the Amendment, which is the substantial Amendment to the Bill at this stage. It seeks to remove unfairness to a number of private tenants, an unfairness which would have arisen due to the effects of the recent valuation on the rent allowance scheme in the 1972 Act. I would remind your Lordships that the rent allowance scheme is the counterpart to the rent rebate scheme in the public sector, and my understanding is, as the noble Lord has explained, that most of those affected in Scotland are private tenants of housing associations, rather than other private tenants; and I saw the noble Lord nodding just now because I was responsible for the 1972 Act and for bringing in the rent rebate schemes and the allowances for private tenants. I hope that the noble Lord will look very carefully again, as he has suggested he will, to see that he has the wording absolutely right to cover all the tenants of housing associations whom we both have in mind. I shall certainly be ready to acquiesce in any change that may be necessary to make sure that the categories we have in mind are completely covered.
The noble Lord has confirmed that the Government must have realised only recently that the revaluation had this effect, and the noble Lord was good enough to let me know in the middle of last week that this Amendment was probably needed. From these Benches, we have no objection to holding the
1078
position for the benefit of these private tenants until the time comes for a more appropriate Act to be amended. Thank heavens that this House exists! If there were no Second Chamber, it would not be possible at this stage to make sure that this unfairness did not arise. These private tenants would have found themselves being, unintentionally, discriminated against. This is a comparatively straightforward Bill, and it has had full examination in several days of Committee in another place; yet this point has come up only at this stage. Several Government Amendments were made at Committee stage, and now there are these at Report stage. When a Bill is passing through Parliament revision, second thoughts, and even further thoughts occur, and these must be regarded as normal. The Second Chamber makes sure that there are opportunities of improving the legislation and ensuring that a Bill is as good as it can be before it leaves us.
On Question, Amendment agreed to.
Lord KIRKHILL Lord KIRKHILL moved the fifth Amendment:
Page 25, line 27, at end insert—
("37A. In section 6(I)(b) (payment of improvement grant) for the words" or 7(4) "there shall he substituted" 7(4) or I0A(4)".")
The noble Lord said: My Lords, this is a further minor consequential Amendment. It is of a purely drafting character. I beg to move.
On Question, Amendment agreed to.

EUROPEAN COMMUNITIES (DEFINITION OF TREATIES) ORDER 1978
  EUROPEAN COMMUNITIES (DEFINITION OF TREATIES) (NO. 2) ORDER 1978

    EUROPEAN COMMUNITIES (DEFINITION OF TREATIES) (NO. 3) ORDER 1978
    7.27 p.m.
    Lord GORONWY-ROBERTS: My Lords, I beg to move that the draft European Communities (Definition of

    1079
    Treaties) Order 1978, and the draft European Communities (Definition of Treaties) (No. 2) and (No. 3) Orders, 1978, which were laid before this House on 20th March, be approved.
    The Schedule to the first order contains four co-operation agreements between the EEC and the Mashraq countries; that is to say, Syria, Jordan, Egypt and the Lebanon. The Schedule to the (No. 2) order 1978 contains Agreements between the European Coal and Steel Community, and the same Mashraq countries, while the (No. 3) order contains similar agreements between the ECSC and the Maghreb countries; that is, Tunisia, Morocco, and Algeria. The agreements which are the subject of the present orders are similar to the three EEC/Maghreb agreements which the House debated last November. They represent another important plank in the Community's Mediterranean policy, known as the overall Mediterranean approach.
    This approach, devised in 1972, is aimed at putting the Community's trade and aid relations with its developing Mediterranean neighbours on a more coherent footing. Previously there had been only a series of piecemeal arrangements, but since 1972 the object has been to treat the developing Mediterranean countries as consistently as possible, bearing, in mind their different needs and capacities. As applied to the Mashraq countries, this approach has meant revising and improving existing agreements with Egypt and the Lebanon, and concluding, for the first time, agreements with Syria and Jordan.
    As regards contents, noble Lords will, I hope, have found adequate detailed information in the Explanatory Memoranda, which have been laid before the House, accompanying the texts of the Agreements contained in the various Command Papers. I shall, therefore, confine myself to a few general remarks about the provisions of the treaties. With regard to the trade provisions, the most notable feature of the EEC Mashraq agreements, covered by the order, is the encouragement they give to the development of industry in the four countries concerned through the almost complete removal of tariff barriers on those countries' industrial exports to the Community. In
    1080
    addition, the Community has agreed to forgo reverse preferences; that is, the Mashraq countries are not required to reduce the tariffs which they apply to Community exports for the purpose of protecting their own developing industries.
    I suppose there is a danger that in encouraging industry in developing countries the Community will harm its own industries, particularly those which are currently experiencing difficulties, such as the textile and oil refining industries. To guard against this danger and to strike a balance between the spirit of co-operation and that of prudence, the Community has retained the right under the Mashraq Agreements to apply the full rate of Customs duties on quantities of products, such as certain textiles and refined petroleum products, shipped in above certain ceilings. This right expires at the end of 1979; but thereafter the Community will continue to be protected by clauses in the agreements themselves providing for safeguard measures to be taken in the event of upsurges of imports causing serious economic disruption.
    On the agricultural side, under the terms of the Mashraq Agreements the Community will grant tariff concessions on various products such as citrus fruit, vegetables and grapes. As with the industrial concessions, various restrictions are placed on these concessions to protect the Community's own agricultural production, particularly by application of calendars—that is a phrase which rather attracts me, the "application of calendars"—which means that tariff concessions are granted only for periods during the year when there is little or no Community production of the product in question.
    Besides laying down terms of trade, the treaties before us today also make provision for economic and financial co-operation with the Community. The precise nature of the economic cooperation remains to be defined in future discussions between the Community and its partners. The treaties do, however, lay down broad guidelines—such as promotion of private investments, promotion of businessmen's visits, assistance with marketing and co-operation in the fields of science and technology—and also provide for the creation of machinery to supervise the carrying out of this co-operation. This machinery will take the

    1081
    form of Joint Co-operation Councils meeting yearly to review progress and decide how co-operation can best be defined and further pursued.
    With regard to financial co-operation, the details vary, of course, from treaty to treaty, and they are set out in the Explanatory Memoranda. In the case of the Mashraq countries, the financial co-operation is mixed; that is, it consists of European Investment Bank loans, raised on the world market, which are then extended to the Mashraq countries on concessionary terms, thanks to interest-free subsidies provided from the Community budget. In addition, in some cases there are grants.
    In looking at the detail of the various agreements it is important to remember that they are intended to form a composite whole aimed equally at encouraging trade and at promoting the development of the countries concerned through co-operation with the Community. Each aspect of relations which the agreements cover—trade, economic co-operation and financial co-operation—is intended to be complementary to the others. Thus, trade concessions on industrial products should, when the agreements come into force, be matched by Community-backed investment in those industries which can eventually find markets for their products inside the Community. This approach towards development as something inseparable from trade policy represents the extension into the Mediterranean of the philosophy behind the already existing Lome Agreement between the Community and 52 African, Caribbean and Pacific States, which are all, of course, developing countries, though the stress in the Mashraq and other Mediterranean agreements is inevitably slightly more on industrial developments than on agricultural developments, given the differences between the economies of the Mediterranean countries and those of the Lomé countries.
    The agreements we have before us are not only important economically and developmentally. They also contain a political dimension, in that throughout the negotiations a close parallel was observed between the way the Mashraq countries were treated and the way Israel is treated in its agreements with the Community. This parallel reflects the Community's even-handed attitude in the Middle East
    1082
    question. Politically, commercially and developmentally, therefore, the treaties before the House today represent important achievements for the Community. As additions to an already long list of agreements between the Community and third countries, the agreements reflect what I think may fairly be described as the outward-looking character of the Community, and also the way other countries, particularly developing countries, increasingly look towards the Community as a partner.
    The Schedule to the (No. 2) Order 1978 covers four European Coal and Steel Community Agreements with the Mashraq countries; that is Syria, Jordan, Egypt and Lebanon. The three treaties covered by the (No. 3) Order deal with agreements reached by the ECSC with the three Maghreb countries—that is, the Maghreb countries as distinct from the Mashraq countries, the Maghreb countries to which we refer being, of course, Tunisia, Morocco and Algeria.
    In view of the subject matter of the agreements, it might be thought that they could encourage the countries concerned to develop their steel industries more rapidly than they might have done without the agreements. While this is a possibility, we have to bear in mind that part of the purpose of these agreements is to encourage economic development in the countries concerned. Having said that, we should not lose sight of the fact that total steel production in the Maghreb and Mashraq countries is small. Also, these countries will be well aware of the world steel situation, and this is likely to discourage them from taking the financial risks involved in vastly increasing steel capacity at this time. From what we know of the forward plans of the Maghreb and Mashraq countries up to the mid-1980s, there appears to be little cause for concern on this score. Our bilateral trade in ECSC products is currently at a very low level, and the balances in all cases are in our favour. In any case, there are, of course, safeguard provisions in the agreements, which I am satisfied and I am sure the House will also be satisfied—are adequate to cover the relatively slight risk of disruption of trade. My Lords, I beg to move.
    Moved, That the draft European Communities (Definition of Treaties) Order

    1083
    1978, laid before the House on 20th March, be approved.
    That the draft European Communities (Definition of Treaties) (No. 2) Order 1978, laid before the House on 20th March, be approved.
    That the draft European Communities (Definition of Treaties) (No. 3) Order1978, laid before the House on 20th March, be approved.—(Lord Goronwy-Roberts.)
    7.38 p.m.
    Baroness ELLES: My Lords, I should like to take this opportunity to thank the noble Lord, Lord Goronwy-Roberts, for moving these draft orders and for giving a very full and ample description of their content and purpose—if I may say so, a complete complement to the Explanatory Memorandum which we have already had at our disposal, and for which I am personally extremely grateful. It is, of course, relevant to say in relation to these co-operation agreements, and agreements, that we are now dealing with an area of the world where the EEC in fact has its main trading partner. The Arab League has now reached that stage, and I think this is very largely due to the "global approach", as it is called, that the European Communities have been pursuing since 1972, fully supported in this area, I am thankful to say, by both Governments, the Conservative Government followed by the present Government. I think they have made a very large contribution to the benefits of the people of those areas.
    I am not going to go into great detail over these agreements, and the noble Lord has already touched on them, but I think that we should sometimes be rather pleased with ourselves in the European Community. It is so often knocked about in this country for its supposed internal failures, but this, I think, can be called a success area of the Community policy: that is, in the external policies and the way it has gone out to help such a vast and important area of the world. In this particular case, we are referring, as the noble Lord, Lord Goronwy-Roberts, rightly indicated, to the Mashraq and Maghreb areas of the Arab countries—all of which, as he said, are in deficit to the Community. It is in no way a way of considering we are enriching ourselves
    1084
    at the expense of rich Arab countries; it is quite the reverse. These agreements go towards helping those particular areas of the Arab League which are in deficit.
    Here again, I think it should be said that, when so much is said by the developing countries at the UN and in other international fora about the North/South dialogue and the new international economic order, this, to me, is the new international economic order. The West is actually contributing to the social and economic development of these people—and in a very concrete way. This is the result of the North/South dialogue. I think we should sometimes say this with more force than we do.
    After all, one aspect of this is that, under these arrangements, financial assistance is going to be given to these countries over the next three years until 1980, to the tune of 630 million units of account. That is no small figure coming from the European Community to an area supposedly so rich in oil and where parts of that area are investing heavily in the West. Sometimes we should remember what we are doing for other countries as well as being knocked for so many other things that in the eyes of the world we apparently seem to be failing to do. This, I believe, is a success story.
    I think that there are some things that we have to be careful about, particularly in relation to agricultural products. I should be loth to see free imports of agricultural products which are already being produced by the Southern part of the Community and might affect farming and the lives and financial success of farmers on the Northern shores of the Mediterranean within the European Community. This will have to be watched so that they are in no way harmed by these agricultural imports.
    I think that we should be aware also of the enormous increase in trade which we now have with these countries. One figure which came to light in some of the documents I have read is that in 19651967 exports were worth in the region of 3,000 MUA and by 1973-1975 they were worth 11,000 MUA. I give this figure merely to indicate the interchange of financial, technical and other assistance being developed between these two very important areas of the world—and in

    1085
    particular, I would say, that, in a way, the West can help this part of the world to develop its economic and social wealth in order to contribute to the maintenance of peace in what is a crucial and delicate area in international affairs.
    There is one other thing which I think is also relevant. It is not only financial and commercial dealings that we are having with these countries. In the West, and in the Community, there are over 800,000 migrant workers from these countries; their rights are protected under these agreements and in connection with them and as a result of them. For instance, there is in Article 43 one of these cooperation agreements between the EEC and the Lebanese Republic under which their nationals are protected within the arrangements made by these agreements. This is a valuable contribition to better understanding between races of different parts of the world.
    I shall not keep your Lordships much longer. I am grateful to the noble Lord for having introduced these orders and I should like, on this side of the House, to recommend that we approve them.
    Lord BANKS: My Lords, I should like briefly to join with the noble Baroness in thanking the noble Lord, Lord GoronwyRoberts, for his thorough explanation of these orders. I should like to welcome the extension of what he described as the overall Mediterranean policy by means of these treaties. I was interested in what the noble Lord said about the application of the Lome philosophy to the Mediterranean countries; and the fact that no reciprocal tariffs are insisted upon is an aspect of that philosophy. I very much appreciate what he has said about the even-handed approach of the Community as far as the Arab countries and Israel are concerned.
    Finally, I should like to say that I think it very important to strengthen the overall Mediterranean policy at the present time because it may be under some degree of pressure once we proceed to enlargement of the Community, bringing Mediterranean-type countries within the Community. For these reasons, I welcome these orders and hope that the House will support them.
    7.46 p.m.
    Lord GORONWY-ROBERTS: My Lords, may I briefly express my apprecia
    1086
    tion of both contributions to which I think the House has listened with the greatest of pleasure. No questions have been asked of me. I think that is a tribute to the inter-Party way in which we all worked over the need to improve the provision of information in respect of orders like this, which can be very complicated, legally and economically.
    I should like to express my appreciation of the contribution made from the Bench opposite and from the Liberal Benches in making it possible for this information to be made available more fully, more precisely and more understandably in its present form. The Explanatory Memoranda, I think, must rank as papers of great capacity and clarity; and I was delighted to hear the noble Baroness refer to them.
    As she said, this constitutes a major achievement by the Community. What she said was echoed by the noble Lord, Lord Banks, when he reminded us of the nature of the EEC which is, after all, not so much expansionist as outward-looking. There is a difference. There is nothing imperialist about the Community; it is increasingly universalist, which is a different thing to be. Those of us who spent rather reluctant periods of their very early lives in reading the classics—reluctantly, but with later profit—will recall that the Romans—great pioneers in civilisation and government, and in many ways, in economic planning—always regarded the Maghreb and Mashraq countries as part of Europe for these practical purposes; and I sometimes think that as many inspiring remnants of Roman civilisation are to be found in North Africa as in Southern Europe.
    The noble Baroness referred to the balance of trade between the four Mashraq countries, which is favourable to this country; so there is no need to be worried about the concessions we are making to them on tariffs. I see that the figures are £106 million sterling in our favour in regard to Egypt—who is our major trading partner; £54 million sterling with Jordan; £4 million sterling with the Lebanon—and there are circumstantial reasons of recent origin for that comparatively low figure—and £56 million sterling in our favour in our trade with Syria.

    1087
    We must not expect that these substantial balances will always be of this order. This country has always looked to an ultimate balance over a number of years; otherwise, there can be no steady and mutally beneficial world trade—an impeccable Liberal sentiment with which I am sure the noble Lord will agree.
    At the moment that is the positon. Therefore, any of the concessions, which the noble Lord. Lord Banks, quite rightly said ought to be made, are safely made. In any case, there are safeguards for any of the members of the contractual community. If they, or some of their industries, find themselves in serious danger, there are provisions for putting the matter right. There is a good deal of talk about protectionism these days. If protectionism is inevitable or necessary, this is the best way to do it: by paradoxically but effectively uniting the principle of freer trade, especially with people less well off than we are, with a judicious provision within that arrangement for a possible adjustment if and when that is necessary.
    On Question, Motions agreed to.
    Lord STRABOLGI: My Lords, I beg to move that the House do now adjourn during pleasure until 8.15 p.m.
    Moved accordingly, and, on Question, Motion agreed to.
    [Sitting suspended from 7.51 p.m. until 8.15 p.m.]

SCOTLAND BILL
House again in Committee on Clause 19.
[Amendments Nos. 296, 297 and 82 not moved.]
Lord WILBERFORCE Lord WILBERFORCE moved Amendment No. 241:
Page 8, line 15, leave out from ("the") to ("Council") in line 16 and insert ("Constitutional").
The noble and learned Lord said: With this Amendment, as when one enters Harrods' store in Knightsbridge, we enter upon a different world; namely, the world of which body exactly is to
1088
carry out the important and onerous tasks of a judicial review. This particularly significant Amendment, No. 241, is one of a series your Lordships will find scattered through the Marshalled List, of which the most important are No. 247 on page 5 and No. 278 on page 17, which introduces the new Schedule. With the permission of the Committee, I will speak to all of them together, because it would be unintelligible to deal with one alone.
The purpose of them can be stated in one short sentence; namely, that my noble and learned friend Lord Scarman and I propose that there should be substituted in this Bill, as regards a judicial review, pre- and post-enactment for the Judicial Committee of the Privy Council, a new body which we suggest should be set up under this Bill and which we call the Constitutional Council, with the powers and composition stated in the Schedule to which I have referred. This proposal, with others having to do with the composition of the review body, necessarily rests upon certain assumptions which must be hypothetical at the present state of discussion on the Bill. The basic assumption, of course, is that there will be some process of judicial review, whether pre-enactment, post-enactment or. as the Bill presently states, both.
As T endeavoured to say on the Second Reading of the Bill and as my noble and learned friend Lord Scarman so brilliantly succeeded in explaining on Second Reading, this is of the greatest importance because we are setting up an Assembly which is not sovereign, with extensive powers but under the sovereignty of the United Kingdom Parliament. As your Lordships now know only too well, the Bill defines in very great detail what the Assembly has and has not power to do.
The noble and learned Lord, Lord McCluskey, earlier in the evening took us on a conducted tour through the various provisions in this Bill which may become relevant—rather at a galloping pace, I may say, and rather too fast for my slow mind. But it was a very valuable review. He started from Clause 18, which defines the legislative power of the Assembly. Then one goes to Schedule 2, which states what is within the legislative competence of the Assembly and sets out some exceptions of a very important character.

1089
Then one goes to Schedule 10 with its groups of devolved matters and those matters which are excluded from the groups, and the mysterious Part III which I am afraid I still fail to understand. Lastly, you get to Schedule 12 which sets out the devolution issues (to use the technical expression) which may arise and which will be the subject of legal proceedings. I shall not weary your Lordships by going through them again. I am perfectly content to take the benefits of a phrase used last week by my noble and learned friend Lord Diplock when he said that these provisions represented the most complicated constitutional structure of any in his experience—and that is quite enough to make the point.
I suggest that the arguments which come out of that are three. First, they are very complicated and technical and require for their decision an expert body, inevitably of lawyers, and preferably an expert body of a permanent character. Secondly, since they are likely to give rise to friction between Scotland and the rest of the United Kingdom the decision must be in the hands of a body which has the confidence of both the citizens of Scotland and the citizens of the rest of the United Kingdom. Thirdly and most important, the questions which have to be decided are questions of a constitutional character such as in Europe would come before a so-called constitutional court, in Canada, Australia and the United States would come before a body set up to decide constitutional questions, and the system of law by which they are to be judged and decided I should think would be unquestionably constitutional law.
The Bill sets up the Judicial Committee of the Privy Council as the body to decide these questions, both pre-enactment in Clause 19 and post-enactment in Schedule 12. There are proposals which in due course will have to be considered by this Committee to substitute, as regards post-enactment, the House of Lords acting judicially. There are proposals set down by other noble Lords for other bodies to do this task. I believe I speak for my noble and learned friend and myself in saying that neither of these primary choices, the Judicial Committee of the Privy Council nor the House of Lords, is really suitable for this very important task. The Judicial Committee of the Privy
1090
Council was probably, no doubt I should think, introduced into the Bill for two reasons: first, it has the power under existing legislation, that is the Act of 1833, to give advisory opinions on references to it. The second reason is that it was the body chosen to decide questions of legislative validity, both pre-enactment and post-enactment, in the Government of Ireland Act of 1920, Section 51. Just dealing with that, to my knowledge that procedure has been used only once, so it has never been really tested in operation.
If one looks at the matter on its merits one has to admit that the Judicial Committee of the Privy Council is far from ideal as a reviewing body, certainly as regards post-enactment questions. The questions which will come before it will be questions of United Kingdom constitutional law, but the highest body in this country on United Kingdom law is the House of Lords which is not bound by decisions of the Judicial Committee of the Privy Council. The House of Lords is a truly United Kingdom court composed of judges from England, Wales, Scotland and sometimes Northern Ireland. It is the highest authority on Scots law, on English law and on the law of Northern Ireland. The Judicial Committee is none of these things.
This dilemma is very much spotlighted by Amendment No. 202, which the Committee will find on page 22 of the Marshalled List. It reads:
"Status of decisions of the Judicial Committee A decision of the Judicial Committee under paragraphs 9, 17, 22 and 23 of this Schedule shall be binding on all courts in England and Wales, Scotland and Northern Ireland".
To say that a decision of the Judicial Committee is binding on the House of Lords, which for some 700 years has been the highest judicial authority in this Kingdom—which I would say is an inevitable provision under the present scheme—is to produce a very serious distortion of the constitutional position in this country.
Moreover—and I tread here on more delicate ground—the Judicial Committee of the Privy Council is a numerous and amorphous body. If one leaves out such characters as the Lord President of the Council and ex-Lord Presidents of the Council who are ex-officio members of the Judicial Committee, it consists of

1091
about 35 United Kingdom members and, I think, nine overseas members, a total of over 40 members. Surely it is contrary to constitutional propriety to leave the decision on important and probably contentious constitutional matters to five judges selected out of these 40 or more persons—probably differently selected for each case. I am not going to suggest that the court would be "packed" in any way, certainly not by the present incumbent of the Woolsack or by any of his probable successors, but in a contentious case there is bound to be, some day, a contention that a particular board or committee of five has been chosen in such a way as to produce a decision, whether a convenient or an inconvenient one. Such a contention, however ill-founded, is very hard to refute and the mere making of it is liable to destroy confidence.
I received through the post the other day, as I expect several others of your Lordships did, a document emanating from a political party, called The ABC of Devolution. If you look up the letter "J" in this ABC, it says:
"J is for the Judicial Committee of the Privy Council"
and it goes on to say, taking various examples,
"If a decision went against us, we would be saying the same things as were said about the national Industrial Relations Court, even worse about the members of the Judicial Committee of the Privy Council".
It goes on to mention by name one of my noble and learned friends. There is, in fact, a dilemma on this. Either the members are chosen at random, in which case you get a body lacking in consistency; or else you always select the same persons, in which case you come near to our proposal or else are criticised. So that I am strongly in favour of a body of fixed composition to make these decisions.
What about the House of Lords, which clearly enjoys very substantial support as the supreme reviewing body? May I say that if 1 had to choose between the Judicial Committee of the Privy Council and the House of Lords in its appellate capacity, I should very much prefer the House of Lords, which has the advantage of being a United Kingdom court, and the supreme United Kingdom court. It is nearer to a fixed body, though even there a selection has to be made of five
1092
out of nine which gives rise to various permutations, but you are getting nearer to a fixed body.
I take it that the main objection to the House of Lords is that, by definition, it is part of the Parliament at Westminster and therefore unsuited to be an impartial arbiter, as between Westminster and Edinburgh. Of course, we all know here that the Appellate Committee has a life of its own under its own Statute, the Act of 1876, and we all know that it acts judicially and does not regard itself as, in any sense whatever, a tool of the Westminster Parliament. But the appearance remains. It is organically a part of the Westminster Parliament. Moreover, the House of Lords has not at present the power of giving advisory opinions, as the Judicial Committee of the Privy Council has. Of course, it could be given by the Bill, but the Bill and no Amendment that I have seen suggests that it should have that power.
Those who favour the House of Lords for post-enactment review, as one sees by later Amendments, leave under the present structure the Judicial Committee of the Privy Council for pre-enactment review. Even for the United Kingdom, which has lived on anomalies and eccentricities for a great many years, this seems a very strange and illogical set-up to have one body doing the pre-enactment and another doing the post-enactment. It is no answer, when one is treating a constitutional problem seriously, to say, "It will probably be the same five people, just wearing different hats". I do not think that that is a good enough answer. So, so far, if my analysis is correct, neither of the two suggested bodies is ideal, particularly not the Judicial Committee of the Privy Council as proposed by the Bill.
Therefore, what we suggest is a special body created for this job. We have called it, tentatively, a constitutional council, for various reasons; perhaps by infection from the name "Privy Council", perhaps taken from the French—the Conseil Constitutional—which has pre-enactment powers. But knowing that noble Lords in this House have a predilection for discussing names and titles, as was shown when discussing the name to be given to the Assembly—Convention, moot, witenagemot and so on—and knowing that it is a subject for discussion here

1093
we have made provision in our Schedule for Parliament to rename it, if it wishes, the Constitutional Court. That is in paragraph 3 on page 18 of the Marshalled List. Perhaps we could have named it the Constitutional Court as of now, but we thought that that might be unduly ambitious at the present stage.
Your Lordships will see the powers of this body narrowly defined in the Schedule, in paragraph 1 on page 17 of the Marshalled List. They are narrowly and strictly confined and are related to the functions under this Bill. They are to consider matters referred under Clause 19 of the Bill, which is the pre-enactment, and,
"to consider and decide any devolution issue in accordance with Schedule 12",
which is the post-enactment. Its composition in the new Schedule is set out on the following page. But this is just an attempt, sketched out by amateur hands, to suggest what might be acceptable and it has no kind of validity or firmness about it.
If the proposal, in general, were to commend itself to the Committee, then it would be right to hand this straight over to the noble and learned Lord the Lord Chancellor to take it in hand and put it into shape. The main point to which we attach importance is that it is fixed in number to seven members. We took seven as a convenient number, which happens to coincide with that of the High Court of Australia and we suggest that all judges must sit on all cases so that you get a permanent body, and no opportunity for criticism that the composition has been fixed. Then we propose—and this is only a suggestion, which may please some and deter others—that as well as professional judges, such as Lords of Appeal, there should be experts in constitutional law; probably professors or people of that kind. But if that encounters some revulsion or dislike, that is a proposal which can easily be dropped.
To make clear one point which I think has not been quite understood, our suggestion is that the judges of this Council should be seconded to it from existing institutions, rather in the same way as the judges of the Restrictive Practices Court are seconded from their ordinary jobs while retaining their normal responsibilities. The Lords of Appeal, who are
1094
mentioned there, would of course continue to carry out their functions as Lords of Appeal in this House, or in the Judicial Committee of the Privy Council.
The proposals do not, I think, cost anything—so that the noble and learned Lord the Lord Chancellor need not worry about that—any more than the Judicial Committee of the Privy Council costs anything; and we know very well that the noble Lord and his Department are remarkably adept at getting justice without undue expense. Just as the Financial Memorandum to the Bill does not make any provision for extra expense in the Privy Council, either through judges' pay or through staff, similarly there should be no doubt that this structure can easily be accommodated without any organisational or financial complications.
That is all that I need to say about the composition and powers of the Bill. The Committee can see for itself the details which we suggest in the Schedule, which are not essential and no doubt can be improved. But I want to say something else, other than simply placing this structure before the Committee. I want to be absolutely honest, open and explicit about it. These proposals have been put down—and I am sure that I can speak for my noble and learned friend Lord Scarman who, I hope, will be here shortly—because I hope that the setting up of this Council may mark a tiny step, a premier pas, towards constitutional progress in this country.
It really is time that we in this country took our Constitution seriously. There are great movements of thought and opinion in the country at large which believe that we cannot go on with our present state of constitutional anarchy or, if you like, non-constitutional despotism, or even, as this Bill does, with a fuzzy kind of reliance upon convention. The recognition that these are constitutional issues, to he resolved by a constitutional council or a constitutional court with definite lineaments rather than blurred outlines, may, if this is not too optimistic, start a chain of new thinking and new action.
It is easy to say, of course, that this is neither the time nor the place for this suggestion; the other place will not like it; we can get on quite well as we are.

1095
I can hear all of these objections before they are made. Our voice from these Benches is only a small one, but we do believe in our proposals. We hope that the Committee will not reject them just because they are new. If any place is the right one for new thinking on constitutional matters, it is the House of Lords, and if any occasion is right for a modest innovation it must be when we are taking the greatest constitutional step we have taken since 1707. I beg to move.
8.42 p.m.
Lord DIPLOCK: The debates in the Committee of this House during the last two or three days have, I am sorry to say, disclosed what I hoped would always remain a secret: that those of us who are members of both the Judicial Committee of the Privy Council and the Appellate Committee of the House of Lords are not always unanimous in our views. I had little thought to hear from my noble and learned friend Lord Wilberforce the first attack in 278 years upon the Act of Settlement. That great constitutional landmark in the history of this country gave security of tenure to the judges of all the superior courts. They were there for life, so long as they behaved themselves.
This new constitutional court is to be appointed by members of the Executive for three years. Not if they behave themselves but if they commend themselves to the Executive, they will be eligible for reappointment. I would venture to suggest that we should consider very carefully before we change what has served this country well for 278 years and hitherto without question.
What is this body to be? It is to consist of five Lords of Appeal. I will not go into that matter. Its members will not be limited to those who normally sit in either the House of Lords or the Privy Council. There are to be added two professors—I take it of constitutional law—in order to make sure that questions of statutory construction are well decided.
My first objection to this proposal is that it strikes at the root of the Act of Settlement. My second objection is that, if we permit pre-enactment consideration of the validity of legislation to go to the Judicial Committee of the Privy Council and, as I shall be suggesting later when
1096
we come to some further Amendments, post-enactment to go to the House of Lords, unless there is to be some packing of those who constitute the members of the Privy Council who sit on pre-enactment references (and, in the presence of my noble and learned friend on the Woolsack, I cannot believe that this would be a possibility), we shall, broadly speaking, get the same people deciding pre-enactment vires as those who will decide post-enactment. The one thing that this Amendment is certain to secure is that they will not be the same people, because our two professors—with their three-year tenure of office, dependent upon the will of the Executive—will be added to those to whom we normally entrust decisions upon matters of statutory construction.
I should not mind—indeed to some extent I would prefer the House of Lords to be the body to whom the pre-enactment references were made. However, I do not object to the Judicial Committee of the Privy Council undertaking that function because, as I have said, I have confidence that it will not be packed for that purpose. There are at least two reasons in support of that view. First, this function was conferred upon the Judicial Committee of the Privy Council in 1920 by the Government of Ireland Act and thereafter operated for 50 years without any difficulty. Secondly, although one could confer upon the House of Lords jurisdiction to give advisory opinions, that jurisdiction already exists in the Judicial Committee of the Privy Council and has existed, if my arithmetic is right, for about 144 years. Therefore, I should not object to pre-enactment references going to the Privy Council rather than to the House of Lords.
When the time comes for some further Amendments, I shall be supporting my noble and learned friend Lord Dilhorne in suggesting that all post-enactment matters should go finally to the House of Lords rather than to the Judicial Committee, but that point I need not deal with now.
May I say a word about other common law constitutions. I do not speak of the civil law ones: there are a variety of constitutional courts in both Italy and France. Nearer to home, in the kind of jurisdictions which are familiar to our concepts—in Canada, Australia and even

1097
in the United States—the constitutional courts which decide whether or not matters are intra vires are courts of general jurisdiction: courts which are the final appellate courts in other matters as well; courts which in those countries exercise the same jurisdiction as the House of Lords in this country. I would not mind—I think there is something to be said for it—provision that, in these matters of pre-enactment references, or indeed references post-enactment, a single decision of the appropriate body, the Judicial Committee of the Privy Council, were alone given. I often wish that in our ordinary jurisdiction in the House of Lords we did not have this plethora of separate opinions and speeches.
I say that because, although this will be a court in effect which is exercising the functions of a constitutional court, where there is a constitutional court, as in the United States of America or in the High Court of Australia or the Supreme Court of Canada, it is often useful to have dissenting opinions because times change and ultimately you find with the development of the Constitution that a dissenting opinion of 20 years ago becomes the majority opinion today. This is necessary and desirable where the Constitution cannot easily be changed because it requires a referendum or some other complicated way of doing it. But it is not necessary in this particular kind of Statute because the Bill, when it becomes an Act, will still be subject to amendment by the Parliament at Westminster and so it is not necessary to have dissenting opinions in order to provide the springboard from which development can take place in the future.
I was going to say that I have a good deal of sympathy, but, to be honest, I have very little regarding what my noble and learned friend Lord Wilberforce indicated was an attempt to fly a constitutional kite, not so much for the purposes of the Scotland Bill but for some future developments of the Constitution which he did not quite disclose; but I could have a guess or two at them when I see that my noble and learned friend Lord Scarman is a supporter of this Amendment. I would suggest to this Committee that, if this is a kite, this is the time to cut the string and let it float away.
8.54 p.m.
Lord WILSON of LANGSIDE: I support this Amendment, and perhaps I should explain to the Committee that when I tabled the Amendment which follows this on the Marshalled List I was unaware of the Amendment which the noble and learned Lord, Lord Wilberforce, has proposed to your Lordships. I think it is an excellent Amendment. I should perhaps explain that, when I tabled my own Amendment, it was not with any serious intention of suggesting that it would be appropriate that a Scottish court should. deal with the problems which it is now proposed under the Amendment should go to the constitutional body, but rather in order to express what here I must call mild surprise, but what outside this House I would call outrage, at the Government's proposal to make the Judicial Committee of the Privy Council the judicial body for these purposes.
The Judicial Committee of the Privy Council is of course an august body on which no one would cast aspersions and for which everyone must have the greatest of respect. It was perhaps the appropriate body to which issues arising in former colonies which have become Dominions might properly be referred, or even in which issues arising in former colonies through which the wind of change had blown and had made free could he referred. But, of course, so far as I am aware Scotland was never a colony; and it struck me as being surprising on the part of the Government, both when the Scotland and Wales Bill was in Parliament and the present Bill, that they should have thought this was an appropriate body. I am only sorry that when I applied my poor mind to this question the only thing I could think of suggesting, because I lacked the imagination and vision of the noble and learned Lord, Lord Wilberforce and the noble and learned Lord, Lord Scarman, was that the Scottish court might take it over in order to raise the issue. I should have thought that whatever else was appropriate, the Judicial Committee of the Privy Council was not historically the appropriate body to resolve issues arising within the Scottish Assembly or between the Scottish Assembly and the Parliament of Westminster. With those considerations in mind, I respectfully support this Amendment.
Lord MORRIS of BORTH-Y-GEST: Rarely have I enjoyed a speech more than the speech of my noble and learned friend Lord Wilberforce. Rarely have I appreciated advocacy as brilliant as that of my noble and learned friend Lord Wilberforce in building up a case to suggest that the Judicial Committee of the Privy Council would be inadequate for the tasks that may come before it. My noble and learned friend presides with such distinction over that body. Is there any task that might go to that body in reference to vires within this Bill to which my noble and learned friend and all my noble and learned friends around me would not be more than adequate to give the right answer? It is not as difficult as all that. There is a problem. It is in the Bill. Can you find within the Act the power to legislate in those terms? Day in and day out my noble and learned friends are delving into Schedules, interpreting sections, coping with words, saying what they mean, and they take it all in their stride. This would be a matter of great simplicity for my noble and learned friends.
But what really also intrigued me was that part of the speech when my noble and learned friend said, "Ah, now I am going to be very frank. This is in possible preparation for something else." What? He did not quite tell us that. What is it—a federal system? Are we to legislate and say, "Well, there might in the future be a federal system and, in case there is, we will legislate in advance to have a court to deal with federal matters". Many are of the opinion that geographically and historically our development has been so different from the development of the United States of America, Canada and Australia. May we have so managed our affairs that a federal system, as is often understood, is now too late?
What else lay behind this intriguing part of my noble and learned friend's speech when he was so frank as to say that this really is in preparation for something else. Is it some kind of Bill of Rights? Is it something to circumscribe the power of Parliament? There are some of us who believe that the time is not ripe for any limitation of the powers of Parliament. There are some of us who think that you can avoid present troubles if you have a system whereby those who are legislating truly represent those who wish some
1100
particular legislation to be passed. But is this constitutional court of the United Kingdom in preparation for something of that kind—a Bill of Rights, limitation of the power of Parliament? Had not we better discuss these matters—not today, but on some occasion when the matter becomes relevant—before we discuss how to cope with them if we ever come to that point? Might my noble and learned friend be saying "Ah, well, we will set up this court, but then later on, if it is found that there is very little work for it to do under this Scotland Act, we will say the poor little court must have something to do; let us have a Bill of Rights; let us have new constitutional problems". I end as I began, by thanking my noble and learned friend for his perfectly brilliant speech and for giving us such a heady line of thought.
9.3 p.m.
Lord HAILSHAM of SAINT MARYLEBONE: Your Lordships may have divined some vague difference of opinion which has broken out unexpectedly on the Cross-Benches. My task is, of course, to pour oil on the troubled water. I must, first of all, let your Lordships into a secret. Forgetting for the moment the constitutional Council which is proposed in my noble friend's Amendment, what is the difference between the Judicial Committee of the House of Lords and the Judicial Committee of the Privy Council? This is not generally known. It is a large Daimler car. The Judicial Committee of the House of Lords normally consists—if the Lord Chancellor is not himself present, which one always hopes he will be—of a committee of five, with Lord Diplock, Lord Wilberforce or perhaps Lord Dilhorne in the Chair, and Lord Fraser of Tullybelton and at least one other Member of the House of Lords, let us say Lord Russell of Killowen. Occasionally they scrape the bottom of the barrel and then they may ask Lord Hailsham of Saint Marylebone or Lord Morris of Borth-y-Gest. That is the Judicial Committee of the House of Lords; a very fine body of men. However, what is the Judicial Committee of the Privy Council? You might see Lord Wilberforce or Lord Diplock in the Chair, or possible even Lord Dilhorne, and then there is, of course, Lord Fraser of Tullybelton and then again another Member of

1101
the House of Lords, Lord Russell of Killowen or possibly even, to go down again scraping the bottom of the barrel, Lord Hailsham of Saint Marylebone or Lord Morris of Borth-y-Gest. What is the difference between these two vastly different judicial bodies? A large Daimler car, because one sits upstairs and one sits in Downing Street; that is the difference.
What will be the composition of this splendid new body of my noble and learned friend Lord Wilberforce, whom I join with others in complimenting on his delightful and persuasive speech. Well, I suppose there might be in the Chair Lord Diplock, or possibly Lord Dilhorne, or there might even be Lord Wilberforce, and then there is Lord Fraser of Tullybelton, Lord Russell of Killowen and possibly even Lord Hailsham of Saint Marylebone. There will be two extra; they will be professors. I do not know which professors; it makes a great deal of difference which. But apart from that there seems to be a certain sameness. The trouble is, of course, that I do not know what they will do without their Daimler car, or where they will sit.
This is a fascinating suggestion, and I am tempted to pursue the matter. The noble and learned Lord, Lord Wilberforce, talked about the premier pas towards a reconstitution of our Constitution a subject very dear to my heart. After all, C'est le premier pas qui compte, as they said of the man who was seen to walk without his head or with his head underneath his arm. The first thing I want to say is that one must look at this thing rather more in the abstract than we have done.
The differences between what my noble friend Lord Wilberforce suggests and what is existing in the Bill are not quite so large as might at first sight appear. He wants a fixed panel of seven. That, if you have the two professors, will almost be de rigour; otherwise what would you do without Lord Fraser of Tullybelton and the rest of them. I think I know who would be turned out first. At any rate you have a fixed court. This can be done without legislation. The Lord Chancellor could make it a convention or make it a rule of court that there should always he a panel of seven and it should consist normally of a fixed number. I would not recommend leaving out the sick man, as my noble and learned friend Lord Wilber-
1102
force suggests, because then you would get three and three and they might be evenly divided.
Indeed, if today's debate is any shadow of the future casting itself in advance, it would be only too probable, if you had three and three, that they would be equally divided. It is possible in litigation on appeal, but that is no great misfortune because in such a case the judgment appealed from stands. If there is a mere reference to an advisory opinion—and there is only one opinion to be delivered as I see from the latter part of the Amendment of my noble friend—it is difficult to know exactly what they would say. Therefore, we must have an uneven number, whatever else we do.
Is this a very unsuitable body, as the noble and learned Lord, Lord Wilson of Langside, said? Is it an outrage upon the body of Scotland that the Judicial Committee should be the one to decide this matter? I do not think there is much in that. Ulster survived. It had its other troubles but under the Government of Ireland Act 1920 the Privy Council had this jurisdiction. It survived during 50 years of troubles without anyone, I think, once adverting to the outrage on the body of Ulster. It is the only thing which has not been an Irish grievance in my political life. Therefore, I do not think that one can complain very much that this is unconstitutional quoad Scotland. I think that it might be an inconvenience.
Whether we choose the Judicial Committee or the House of Lords, there are normally only two Scottish Law Lords and often they are very badly needed because Scottish appeals are coming on and off all the time. Therefore, I think that it would probably be desirable, even if the Judicial Committee is retained, that Her Majesty should be advised to appoint Scottish Privy Councillors to the Judicial Committee. After all, every member of the Court of Appeal is a member of the Privy Council and therefore of the Judicial Committee, although they seldom sit until they have retired.
In the reign of good Queen Victoria they were offered the alternative of being made members of the Privy Council or having a rise in salary. For some reason which has always been obscure to me, they opted for the Privy Counsellorship. That

1103
is a curious piece of judicial history, but it is true.
The one point upon which the noble and learned Lord, Lord Wilberforce, and the noble and learned Lord, Lord Diplock, agreed was that there should be no dissenting voice allowed. I think that that is rather hard, especially in constitutional matters. I am not alone in that view. If it were only my own voice that were spoken on this side, I should perhaps suppress my opinion, but I know that it was the view of the late Lord Reid who was a judge for whom I personally had the profoundest adoration and respect. He was one of the greatest judges of the twentieth century in this country. He always said how valuable it was in the House of Lords, unlike the Privy Council, that every Lord made his opinion separately, not because they would all say the same thing in the same tone of voice, but in order to prevent their words being taken down and treated like the words of Almighty God spoken from Sinai and engraved by Moses on two tablets of stone. I believe that the late Lord Reid was right about that.
Personally, I look back on the great dissenting judgments with a certain amount of respect and affection. I think now of the judgment of Lord Atkins in Liversidge v. Anderson which is now universally applauded. I shall not go any further into questions like a conspiracy to corrupt public morals, for fear of embarrassing the Cross Benches. However, there have been a number of very notable dissenting judgments upon this subject which have won widespread applause at least among the professors.
I must say, as a footnote, that it is an embarrassment if one sits on the Judicial Committee that one is driven either to make a dissenting voice which is only a very newly acquired right or else to submit to the embarrassment of simply writing one's name in the book as dissenting and no one ever knows that one does not agree with the judgment delivered. One has conversations about the judgment but one is not allowed to reveal what has taken place in Council and the fact that one may have differed very strongly from the majority is a fact which, unless one makes use of one's special new dispensation, one is never allowed to say. I think that in these constitutional matters it would, in
1104
fact, be highly embarrassing if no dissenting voice could be uttered and I should prefer the general rule.
Having said all that, 1 think that we have had a very interesting debate. There are important questions to be decided and thought about. I am eager to hear the reply of the noble and learned Lord the Lord Chancellor and, indeed, if the noble and learned Lord, Lord Scarman, were here, to hear his voice in support of the Amendments. I do not believe that the world will come to an end whichever view is taken, but we ought to get this right, if we can and I should like to hear the Lord Chancellor. I imagine that the noble and learned Lord, Lord Wilberforce, would like to take stock of the situation in the light of this debate and that therefore we shall not proceed to a Division which would he a very exciting one if it took place. I can only declare from the Conservative Benches that there would be a free vote.
9.14 p.m.
Lord WILSON of LANGSIDE: Although I do not wish to delay the reply of the noble and learned Lord the Lord Chancellor, which I am sure your Lordships are all anxious to hear, I should like to pursue the question of the suitability of the Judicial Committee of the Privy Council as the body properly to arbitrate in relations between the Scottish Assembly and Parliament at Westminster. The noble and learned Lord, Lord Hail-sham of Saint Marylebone, seemed to think I had suggested that it would be constitutionally inappropriate. Of course. I have no grounds for saying that. I am saying that it would be psychologically and historically inappropriate.
The noble and learned Lord, Lord Hailsham, said that Ireland had contrived to live with the Judicial Committee. That can be very misleading. We can learn a lot constitutionally from the experience of Ireland and Northern Ireland, but it can be very misleading politically in a great variety of ways to compare the situation in Scotland with the political situation in Ireland. My point is that Northern Ireland is a Province. We were never a colony of England; we were an independent and proud people, as all people are proud—no more, no less. We entered into a partnership with the

1105
English. A fundamental condition of that partnership was that we should have our own independent legal system. Of course, the Judicial Committee of the Privy Council fitted in perfectly well with the Northern Irish system, where, I understand, the English law rules. In Scotland, Scots law rules.
My submission was that the Judicial Committee of the Privy Council, which is an august and impressive body, has no place in arbitrating between the Scottish Assembly and Parliament at Westminster. That was why I felt that the suggestion of the noble and learned Lord, Lord Wilberforce, that there should be a constitutional Council was perhaps altogether appropriate. Otherwise, I should have been inclined to say, had I committed myself to my own Amendment, that the Scottish people would on the whole prefer to have the arbitration of the Lord President of the Court of Session and the Lord Justice Clerk rather than that of the Judicial Committee of the Privy Council, august body though it be.
Lord HAILSHAM of SAINT MARYLEBONE: Perhaps the noble and learned Lord, Lord Wilson of Langside, will forgive me for saying that, in fact, the Inner House of the Court of Session is subject to that wicked body, the Judicial Committee of the House of Lords, which is composed, among others, of Lord Wilberforce. Although the membership has been slightly different over the centuries, it has, in fact, been culturally the same.
Lord WILSON of LANGSIDE: The noble and learned Lord, Lord Hailsham, would of course he aware that in the criminal law we are final.
Baroness ELLES: Before the noble and learned Lord on the Woolsack replies to this Amendment and as my noble and learned friend Lord Hailsham of Saint Marylebone has given us the right of a free vote from these Benches, perhaps a free voice may say a few words in support of the Amendment of, if I may so call him, my noble and learned friend Lord Wilberforce.
With the greatest respect, many arguments have been advanced by noble and learned Lords in favour of enforcing the necessity for such a constitutional court.
1106
My noble and learned friend Lord Hailsham has indeed outlined the fact that it is precisely the same people who fulfil both functions, acting both on the Judicial Committee of the House of Lords and on the Judicial Committee of the Privy Council, divided only by a Daimler car. I am not at all sure that we would not rather see a greater division than a Daimler car, with different people appointed to deal with this extremely difficult matter of the devolution issues of a Scottish Assembly.
The noble and learned Lord, Lord Diplock, considered that this Amendment was an outrage to the Act of Settlement. Does he not also consider, together with many other noble Lords in this Committee, that this particular Bill is an outrage to the Act of Union? Does he not think, therefore, that drastic measures need to he taken to deal with a drastic situation? Will he not agree that new ideas are needed in our constitutional provisions in this country? When we were debating the extremely interesting report of Sir David Renton on secondary legislation, I remember very well that there was considerable concern as to how secondary legislation would be considered in relation to the main enabling Statutes. I also remember that the questions of a conseil d'etat, or some kind of constitutional court were considered. I am not at all sure that the noble and learned Lord, Lord Wilberforce, has not also found the answer to that problem in his Amendment.
The noble and learned Lord, Lord Morris of Borth-y-Gest, has mentioned the question of the limitation of the powers of Parliament. Many would think that it would be a very good thing indeed in the present circumstances that we should have a limitation on certain Acts of Parliament. Certainly there should be limitations on the abuses of the State, and the constitutional court might again be a way of dealing with that particular problem, with which many democratic States are now faced.
I do not pretend to go on arguing with the many suggestions and comments of distinguished noble and learned Lords who have commented on my noble and learned friends' Amendment, but they should give much more serious consideration to this Amendment than they have done. I, for my part, would give my full support to this Amendment.
Lord DIPLOCK: I should like to explain to the noble Baroness that I have not expressed my views in general on this Bill because I thought that if I did I might be disclosing that I had some political views about it. I have restricted myself to the purely technical matters of judicial review.
9.21 p.m.
The LORD CHANCELLOR: This has been a fascinating debate, illustrating once more the many-sidedness of truth. It began with a remarkable statement by the noble and learned Lord, Lord Wilberforce, that here in the background of this Amendment is to be the solution to the state of constitutional anarchy from which we are presently suffering, and constitutional despotism. It brought to mind the newspaper correspondent who cabled to his editor, "Impossible to exaggerate gravity of situation here, but I will do my best".
There has been lurking in the background, as the noble and learned Lord, Lord Morris of Borth-y-Gent, so attractively pointed out, this undefined, vast solution that is to creep in through the back door of the Scotland Bill; the solution to the limitation of the powers of Parliament. The whole vista is to he opened before us. Now I see that the noble and learned Lord, Lord Scarman, has come in. It was suspected that perhaps the voice of Scarman was behind what is now proposed to us.
This is indeed a remarkable situation in which we find ourselves. Here we are dealing with the question as to whether there is in existence in this country now a body sufficiently competent and respected, enjoying the confidence of the people of these islands, to deal with the problem of interpretation of Scottish Assembly Bills or Scottish Acts of the Assembly. I should have thought we have one that has survived certainly more than a century; the Judicial Committee of the Privy Council, and the House of Lords sitting in the Appellate Committee. The Judicial Committee of the Privy Council has been dealing with problems of advising on constitutional questions for a long time. While it is true that it is not in its ordinary sense a United Kingdom court in that its historical and traditional role has indeed been to advise Her Majesty on problems
1108
arising from the colonies and the Commonwealth, it has developed in standing and experience by dealing precisely with constitutional questions, and with the wide range of matters under special reference. Indeed the noble and learned Lord, Lord Wilberforce, reminded us of this in the debate on Second Reading.
As indeed the noble and learned Lord, Lord Hailsham, indicated, it follows legislative precedence—more recently from Northern Ireland, also from the Dominions and the Commonwealth—in providing for the reference of such questions to the Judicial Committee of the Privy Council. In carrying out the task which is proposed for it in the Bill, it will be carrying out precisely its traditional role within our Constitution. As the noble and learned Lord, Lord Scarman, said on Second Reading, it will be wholly appropriate in providing the voice of the Crown in Council on legislative proposals before a Bill has become law.
The noble and learned Lord, Lord Fraser of Tullybelton, said that it was in line with both principle and precedent that the pre-enactment review, if there is to be one, should be the Judicial Committee of the Privy Council. Here it is, ready made by us, not imported from anywhere else. Here is a British native product that has survived over the decades and is universally respected throughout the world, and now we want to put in its place a constitutional council of seven with only one agreed judgment and, of course, two professors.
It is a remarkable vote of no confidence in this great institution that we should now seek to depart from it on to some sea that has no shore. There is no indication of what this new body, to which it is the precursor, is to be. The noble and learned Lord, Lord Wilberforce, said frankly that this was only the curtain raiser; it is the prologue to this remarkable play that is to be played at some uncertain date and in an uncertain future. It has provided a most attractive and entertaining debate, but nobody is seriously thinking that it could be introduced in this way into this Bill on Scottish devolution, important as it is.
There have been comments about the composition of the proposed council and some criticism of the composition and

1109
unsuitability of the Judicial Committee itself. In view of the anxieties that have been expressed, I would say that perhaps that expertise in Scottish law and Scottish history will not be available to it; that if there was a reference under Clause 19, or indeed in the Appeal Committee or Judicial Committee, on post-enactment challenge, there would certainly be Scottish judges in the Committee. I can certainly give that assurance so long as I am holding this office. There is no difficulty in achieving that; there are ten distinguished Scottish lawyers available, so there will be no fear, therefore, that a powerful Scottish element will not be available who will come armed with long experience on the judicial bench and not restricted by the terrors which were so vividly described by the noble and learned Lord, Lord Diplock, of a three-year tenure of office, with all the threats to the independence of the Judiciary that fixed terms of that kind so notoriously create and provide.
My submission, therefore, is that we should not put a fifth wheel on this splendid carriage that has taken our judicial processes down the decades but that we should enjoy the use of it. It may not be a Daimler or a Rolls-Royce, but it is a well-tried vehicle for dealing with the precise problems that it will be called on under the Bill to perform.
I will not be tempted to pursue some of the implications which Lord Wilberforce frankly confessed to be behind the Bill—the impact on administrative law and what purposes will be sought for it—but he is perfectly right to say that there will probably not be many references on vires questions to the Judicial Committee of the Privy Council. I do not think many cases will arise after Royal Assent, and it is right to say that there is nothing more dangerous than a body which is given statutory existence and has nothing to do. All sorts of devils creep into that empty space and therefore, while we owe a debt of gratitude to Lord Wilberforce for this fascinating debate, I suspect that the view of noble Lords on the whole will be that it is satisfactory at any rate that the matter is not going to be tested in a vote.
9.31 p.m.
Lord SCA RMAN: May I first apologise to the Committee for not being present
1110
during what, it is plain to me from having heard the noble and learned Lord the Lord Chancellor, must have been a fascinating debate. I should like to tell you why I was not present. I had a long-standing engagement to address this evening, as Master Reader, the Bar students of the Middle Temple, and my subject was constitutional reform—the need for a written Constitution, a Bill of Rights, and a constitutional court. I venture, very modestly, to suggest to your Lordships, with great respect which I, as a new Member, have for your Lordships' House, and for this Committee, that perhaps, if one thinks for the longterm future of this country, that audience could be just as influential as your Lordships' House. At any rate, that has to be my defence for having absented myself from a debate upon an Amendment which I had the honour to support.
It gives me a present advantage over all of you. My enthusiasm for the Amendment is utterly undimmed by the force of power of the arguments that have no doubt been marshalled against it. Let me say, in a few words, why I support this Amendment, or this series of Amendments. First, as I said in my Second Reading speech, I welcome the provisions in the Bill for judicial review. They are not unsound provisions, and they are one way of implementing a principle which I believe essential in the coming years for the safeguarding of our liberties.
But I support the Amendment of the noble and learned Lord, Lord Wilberforce, simply because I think that it provides a better way of doing the job than the existing provisions, though those provisions are sound, and I should rather have them than none at all. I ask myself rhetorically —and I will seek to answer it—why do I prefer, and why do I suggest that your Lordships may prefer, the constitutional council-cum-constitutional court, to judicial review by the Privy Council pre-enactment and by the House of Lords or Privy Council post-enactment?
I start with a broad proposition. It is wrong, I suggest to the Committee, to think of the Scotland Bill as a kind of magnified exercise in local government. This is a constitutional Bill of the highest importance. I cannot think of a constitutional step more important than what is embedded in the Bill. Therefore, we are

1111
not considering how we should handle the review of by-laws passed by a local authority. We are considering whether there should be—and the Bill accepts the principle—a judicial review of law passed by a Legislature which has power to make laws.
It seems to me, therefore, that if one is to put flesh and blood on to judicial review, and the principle is accepted, one should do it in a way which measures up to the constitutional importance of the Bill. It is because we are dealing with a new Legislature and a new source of law, and because we are introducing at that level in our constitutional set-up the principle of judical review, that I ask myself, and I ask your Lordships to ask yourselves, whether it is sufficient to pour this perhaps intoxicating new wine into those old historical bottles, the Privy Council and the House of Lords.
Now, there are objections—they are not insuperable objections, I think, but there are objections—to using the Privy Council and the House of Lords for these very important functions. First of all, let me take the Privy Council. There is an historical objection to making use of the Privy Council, even though it is in many ways a thoroughly suitable body. The Privy Council is the modern emanation of the development of the Curia Regis, which looked after the off-shore possessions of the Norman kings and, later, the English kings. It began with a Norman jurisdiction exercised over the Island of Guernsey. Then, as the centuries rolled on, it was extended to the plantations, the colonies and the dominions. Now, although I am an Englishman, I happen not to put Scotland into the category of off-shore possessions of the Crown; neither do I think of Scotland as a plantation, a colony or a dominion. Scotland is a part—an integral part—of the United Kingdom, just as are Northern Ireland, Wales and England. Scotland is entitled, as are the other areas of the United Kingdom, to have its legal disputes —and there are legal disputes arising from judicial review—decided, not by the Crown in Council, which historically looked after our off-shore possessions, but by the courts of the land. Therefore, there is an historical reason why the Privy Council, geared as it is to overseas and colonial problems, and experienced though it
1112
undoubtedly is in constitutional matters, particularly in the constitution of Canada, is not necessarily the appropriate body when considering a United Kingdom problem.
When one turns to the House of Lords, the argument is partly historical and partly, as regards public opinion, emotive. Let me explain what I mean. The argument against entrusting post-enactment judicial review to the House of Lords is that we really would be asking the Scots to do something which they are proud never to have done. No appeal lay from the High Court of Justiciary to the Scottish Parliament; and, therefore, after the Union in 1707, no appeal lay in criminal matters from the Court of Justiciary to the Crown in Parliament, which then was in West minster. Again, this is an historical argument but it is a good reason why many Scots—and I respect them for it—do not wish to see the House of Lords entrusted with this post-enactment judicial review across the board. That is the historical reason.
The emotive reason is this. We are talking—and let us not forget it—about judicial review of legislation. Of course, all us experienced and, some of us, learned people know perfectly well that there is a tremendous difference between the House of Lords sitting judicially and the House of Lords in its legislative role, but many will misunderstand it if legislation which has been passed by an Assembly which the United Kingdom Parliament has authorised to legislate is subject to review in the one Chamber which, whatever its qualities, has no elected element at all.
Again, we all know that the judicial element of the House of Lords is so very different from the House of Lords in its legislative capacity; but it just points out that the House of Lords, though it would do the job magnificently is just, so to speak, off the bulls-eye. It would he all right, but it is just off the bulls-eye; just as the Privy Council would do the job all right, but it is just off the bulls-eye. We are dealing with a new constitutional picture, with a new Legislature and with new legislation. Why not have the courage to say that this calls for a new constitutional bottle, a new constitutional judicial body? We shall begin be calling it a Council. That is the British way of concealing the truth behind euphemistic

1113
terms like, for instance, the term "devolution". That is one very nice way of doing it. But sooner or later we are coming to a court as, perhaps sooner rather than later, we are coming to a federation.
9.42 p.m.
The Earl of PERTH: I rise with great hesitation when I know how many noble and learned Lords have spoken with eloquence and skill on this matter. But there is one point which occurred to me when I was listening to the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Scarman, about the Judicial Committee of the Privy Council. We have been told that, over the last 100 years, it has been concerned with questions of the colonies or of the Commonwealth—as the noble and learned Lord, Lord Scarman, put it, the overseas possessions of the Kings and Queens of this country.
If I were a member of the Scottish National Party I might take comfort in the thought that the Judicial Committee will be charged with the task which is now proposed. My reason for saying that is that, in almost every case that it has had to judge, the country concerned has ultimately become independent. Would it not be better in those circumstances to find a new name, a new motor car and a new place?
Lord WILBERFORCE: I will not detain the Committee for very long, but I should like to make one or two points on this debate. It has been a debate, very strong in wit, very strong in compliments—some of them slightly lefthanded—but not, if I may respectfully say so, very strong in argument. The arguments produced are either fallacious or not, in my respectful opinion, convincing.
Let us start with my noble and learned friend Lord Diplock. He waved in our faces the Act of Settlement, that great Constitutional pillar. I am not quite sure what it has to do with Scotland. But it does not meet my point in the slightest degree. If one takes the trouble to read my Schedule, it is perfectly clear the judges there—and I leave out the professors for the moment—are Lords of Appeal who are appointed under the Act of Settlement,
1114
and it does not make the slightest difference to their constitutional position that you say they are seconded for three years, or for any other period, to a particular court. This is done every day with judges. They are seconded to different courts for different purposes. Nobody has ever suggested that that is contrary to the Act of Settlement. Let us forget about that one. His second argument was: "We have the Government of Ireland Act. That has operated for 50 years without difficulty." One case, that is all. Is that operating for 50 years without difficulty? If I may say so, that is not a very solid argument.
Then he passed to Canada, Australia and the United States of America, which I thought I covered quite adequately in my opening remarks. Their case supports my argument rather than his because in each of those cases they are constitutional courts set up under their respective constitutions, the Constitution of the United States, the Constitution of Australia and the British North America Act which founded the Dominion of Canada. In every case they have fixed numbers of judges to decide these questions. That is exactly what I am trying to do with the body which we have suggested. I do not think that is a very solid argument.
Then he said: "This is a kite. It is not so much for the Scotland Bill as for some sinister purposes". That is of course a complete misreading of our Schedule which defines with the utmost particularity and narrowness the functions which this court is to have. There is nothing sinister about it. Its functions are (a) and (b): (a) to consider and decide matters under Section 19; (b) to consider and decide devolution issues under Schedule 12. How can it be said that the proposal is not so much for the Scotland Bill as for something else? It is entirely for the Scotland Bill. Just because I hinted at various future developments which might or might not be desirable, it hardly makes the point that this is not relevant to the Scotland Bill. It is tailored exactly to the Scotland Bill: it does not go an inch beyond it.
My noble and learned friend Lord Morris of Borth-y-Gest, who paid a number of charming compliments to me of a somewhat indirect kind, put up two complete Aunt Sallies, if I might say so. He said, "Why is it suggested that the

1115
Judicial Committee of the Privy Council is capable of deciding United Kingdom law?" Of course it can, it can decide anything. They are very eminent men. They can decide any question of the United Kingdom or any other law. With great respect, that is not the point. In the first place, it never does decide questions of United Kingdom law, except when dealing with dentists and redundant churches, and that is hardly a good parallel.
The whole point which I was concerned to make, and which nobody has answered, is this. It is quite inappropriate to set up the Judicial Committee of the Privy Council as the supreme authority on United Kingdom law when in the first place there is the House of Lords which occupies that position and, in the second place, there is now a whole new range of problems which have never been considered by the Judicial Committee at all. The second Aunt Sally which my noble and learned friend put up was that he was terrified that this might foreshadow some control of Parliament. "What a dreadful thing" he said. It sends shivers down everyone's spines. I am very glad to see that it did not send any shiver down noble Lords' spines. I know perfectly well that a great many people here will be only too glad to see some control of Parliament. They might perhaps not be very willing to say so in public debate. That is a bogey which I do not think need frighten anybody.
I am sorry if the noble and learned Lord, Lord Hailsham of Saint Marylebone, spent so much time on the Daimler, which now I am afraid has been degraded to a Rover second class, but he made a lot of fun about the noble and learned Lords, Lord Wilberforce, and Lord Dip-lock, the noble and learned Viscount, Lord Dilhorne, and the noble and learned Lord, Lord Fraser of Tullybelton, and so on. He did that beautifully, of course. If I may respectfully say so, it does not do justice to this particular theme. It may well be—and I said this in opening—that the same people or substantially the same people do the job, whether it is in one place or the other. That is not doing justice to the constitutional argument. One must have a proper organ with proper powers and proper functions defined if one is to do justice to the task which falls on the Judiciary under this Bill.
1116
The noble and learned Lord said two things of a concrete character. The first I welcome, and the second I do not. First, he said that it would be a good thing if the Lord Chancellor, in his discretion, were to say: "Let seven members sit on every occasion". That I would welcome. If that move could be made, it would be an improvement on the present set-up. The second point, which I was not so enthusiastic about, was that the noble and learned Lord said: "You can always appoint more Scottish Members". That is exactly what I object to.
There may be moves to appoint more Scottish members, more English members and more Northern Irish members in order to obtain some ideal balance. That is exactly what you should not do with constitutional courts: you should not play about with their composition. That is why I venture to suggest that there should be a fixed composition of three Englishmen, two Scotsmen and two characters who may be—
Lord HAILSHAM of SAINT MARYLEBONE: If I may say so, I was not suggesting that they should be floating members; I was trying to get over the difficulty that, with only two Scottish Law Lords available for the whole of the work of the Judicial Committee of the House of Lords and of the new body, if there is one, it might be necessary to have two in order to make two available.
Lord WILBERFORCE: There seems to be some difference of opinion between the two Front Benches. The noble and learned Lord says only two; the noble and learned Lord the Lord Chancellor said, rather to my surprise, that there were 10 available. I do not quite know where he gets the 10 from, but there may be more than two. All I was wishing to oppose was the idea that it might be desirable at some stage for some Minister—for that is what it means—to appoint more Scottish members in order to achieve some sort of balance. That idea is undesirable.
Then the noble and learned Lord, the Lord Chancellor, said that we were embarking
"on an undefined sea with no shore".
That is exactly what the Amendment does not do because, as I have already tried to explain, the functions of this body

1117
are defined with the utmost particularity. They cannot be extended to control Parliament, to introduce a Bill of Rights or any of those other terrible things that people seem so afraid of: they cannot be extended at all without another Act of Parliament. Therefore, I do not quite see how it is "a sea with no shore". On the contrary, my Amendment would give a very circumscribed jurisdiction—much more circumscribed than exists under the present Bill.
If I may revert to my Harrods metaphor, the trouble with the present stage is that we really do not know now what the shopping list is going to be. This is the first Amendment that has come on and we are going to be faced with discussion as to whether we shall have the Judicial Committee throughout, the Judicial Committee for pre-enactment and the House of Lords for post-enactment, or the Inner House, or variations on any of them. I do not believe the Committee are willing or able to make a final choice on this until we see what the field of selection is likely to be.
So, with the approval of the Committee, which I hope they will agree that this is a proper course, I should like to maintain my proposition in cold storage—I may be willing to drop the professors if people do not like them—and bring it forward at a later stage of the Bill when one sees which alternative best commends itself to the Committee as a whole. It may he that, when the Committee have finally settled on their choice, there will not be so much difference between what they choose and what my noble and learned friend and I have proposed. Then they will be able to make a choice between a narrow range of alternatives. With permission, I should like to withdraw the Amendment at this stage, but I would hope
1118
to bring it forward at a later stage when we see how the Bill progresses.
Amendment, by leave, withdrawn.
9.53 p.m.
Lord WILSON of LANGSIDE Lord WILSON of LANGSIDE had given Notice of his intention to move Amendment No. 242.
Page 8, line 15, leave out ("Judicial Committee of the Privy Council") and insert ("Inner House of the Court of Session").
The noble and learned Lord said: Perhaps it might be appropriate if we reminded ourselves of what lies behind all this discussion and all the hilarity and the wit of these debates. It is, of course, Scottish nationalism and, of course, Scottish nationalism is fuelled by a great variety of things, and not least by the ineptitude, from time to time, of British government. I think that, having regard to the history of the Judicial Committee, which was so graphically presented to your Lordships by the noble and learned Lord, Lord Scarman, your Lordships will in due course be ready to give very serious consideration to the proposals in the Amendment standing in his name and in that of the noble and learned Lord, Lord Wilberforce.
In view of what was said by the latter noble and learned Lord, I shall not move this Amendment. We should remember that what lies behind all this is Scottish nationalism, and that what fuels the fire of Scottish nationalism is all kinds of things great and small. Of course, I am suggesting that the kind of thing which adds just a little bit more fuel to the fire is appointing to adjudicate on issues between the Scottish Assembly and the Parliament of Westminster a body with the kind of history of the Judicial Committee of the Privy Council, a history so graphically painted by the noble and learned Lord, Lord Scarman.
9.57 p.m.
Viscount COLVILLE of CULROSS Viscount COLVILLE of CULROSS moved Amendment No. 83:
Page 8, line 17, leave out ("and") and insert—("or

(b) if he is of the opinion that the Bill is not compatible with Community obligations of the United Kingdom, he shall refer the question whether it is so compatible to the Judicial Committee of the Privy Council for decision, and for the purposes of reaching a decision thereon or under sections 36(7) or 37(5A) (but for no other purpose of this Act) the Judicial Committee shall be a court and the process of reaching a decision shall be deemed to constitute legal proceedings within the meaning of section 3 of the European Communities Act 1972; or

(c)")

The noble Viscount said: I am not sure what the right metaphor here is. Perhaps 1 should invite to enter with me the Galerie Lafayette as we move across the Channel. I do not suppose that I can initiate quite so enchanting a debate on this Amendment as that which we have just had. Nevertheless, might I suggest to the Committee that this is a matter of some importance. Because they are consequential, I think we could discuss with it Amendments Nos. 86 and 92. The problem is what to do about incompatibility between Assembly legislation and the obligations which fall upon us from the European Community. The Bill speaks of obligations, and I therefore envisage that the Government are talking in terms of decided or concluded law or legislation or Directives or whatever they may be. We are not talking in terms of incompatibility as between an Assembly Act and something which is still in the formative shape at Brussels. We are talking about incompatibility with defined European law.
The solution in the Bill at the moment is to lump together the obligations that we have under the treaties with all other international obligations. These are to be dealt with by the Executive and not by the courts—whatever those courts may be as a result of the outcome of the last debate. Of course, the straight incompatibility between the Scottish Assembly legislation and the terms of this Bill is to be dealt with judicially. When I was considering this I asked myself why it should be so. There are probably two reasons: first, it is plainly justice in that
1120
conflict between what the Scottish; Assembly has done and the powers that they have been given within which they may act is a matter which the courts can deal with. It would also seem to me possible that the reason for this is that the Scottish Assembly will have been passing, will have passed or be proposing to pass legislation—because this is a pre-enactment review which will have a direct effect upon the individual and a direct effect which may, on this hypothesis, be one which they are not entitled to impose. For those reasons therefore it should be a court rather than an executive body which should tell them that they have no power to do any such thing.
If those are among the right reasons for making this choice under subsection (1)(a), then it seems to me that branding the Community obligations as a single entity with all other international obligations under paragraph (b) must be misguided. One thing is absolutely plain: that is, so far as I understand it, that European obligations arc not in the least the same animal under our domestic legislation and in our domestic courts as are our international obligations.
I have sought in this series of Amendments to separate them out. That is the effect of the three Amendments to which I have just referred. We shall deal with matters under paragraph (a), as they have already been discussed by the Committee. Then we separate out the European obligations, and incompatibilities between Scottish Assembly legislation and them, into a new subsection. Then we leave the other international obligations as they are in the Bill at the moment.
As to the latter, I can see the force of this, because of course other international obligations and treaties do not have the force of law in this country, unless they are specifically legislated into our domestic Statute Book. One has only to look at the various treaty enactments that we have seen in this House over the last years, whether it be IATA or something else, to see that they have to be put into our Statute Book before they have direct force in this country.
But that is not the case with European obligations. They have direct applicability

1121
in the domestic law of this country; not only that, they have overriding direct applicability. If we pass a Bill in this Parliament which is inconsistent with the European obligations, then, as my noble friend Lord Mansfield said earlier on today —and I wish that he had not stolen my thunder, because it is my case—the European Court has just ruled that the domestic tribunals shall hold inconsistent domestic legislation to be inapplicable and it shall not be enforced. Therefore, there is an inherent overriding power in the emanations from the European organisations, which has a direct effect on what the British courts may do—and this in the courts all over the British Isles, as they are at the moment.
Therefore, I suggest that we have exactly the same two sets of precondition, which have, I think, lent force to the provisions in paragraph (a), whereby the incompatibility is sent directly to the courts. Just as a clash between the Scottish Assembly legislation and the powers in this Bill would be a directly justiciable issue, and would directly affect members of the public who might fall foul of the inconsistency between the two, it is precisely the same in regard to inconsistencies with European obligations. They, too, are directly justiciable and all courts in this country are seized of them automatically; first, under the treaties and, secondly, under the European Communities Act 1972. Secondly, they are directly applicable to the citizen as an individual, because in his own individual case as it comes before the courts, or as the legislation potentially affects him, which is the same point as under paragraph (a), there is a direct impact on the individual who may in due course be affected by this legislation.
I should, therefore, have thought that logic and common sense would not leave to the Executive the question of incompatibility between a Scottish Assembly Act and a European Community obligation, because this is not a matter for the Executive. This is a matter of law. This is a matter for the courts, with which they are already seized under our existing legislation in this country. It seems to me that whatever body deals with incompatibilities under paragraph (a) can also be seized of incompatibilities under
1122
the European set-up that I have mentioned. That, therefore, is what I have done in this series of Amendments.
There are only two footnotes that I ought to mention. The Committee need not worry very much about the references forward to Sections 36(7) and 37(5A). That is only me trying to be tidy, and to pave the way for future Amendments which we shall discuss on another occasion. But I thought it necessary, in order to bring the provision that I am suggesting within the realm of the treaties and also within the terminology of the domestic legislation. to say a word about the status of the Privy Council, if that is what it is to be, when it reaches a decision on a pre-enactment reference.
First, in order to have the opportunity of going to the European Court of Justice, which, after all, is the definitive body on whether or not something is compatible with the treaties, you have under the treaties themselves to have a court seized of the matter. I am not sure that it is entirely plain under Clause 19 of the Bill that when the Judicial Committee of the Privy Council is dealing with a reference it is, for these purposes, a court. Therefore it would seem to me to be necessary to spell that out.
Secondly, one needs to make the provision fit in with Section 3(1) of the European Communities Act, because that subsection says:
"For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European court, be for determination as such in accordance with the principles laid down by in any relevant decision of the European Court)".
It seems to me that, if the Judicial Committee were to be given the task of deciding this incompatibility, there are two things that they might do. First, they might send it to the European Court under the Treaties to get a definitive answer from that court. May I remind the Committee that to do that is not necessarily something which causes a long delay. If they have to do so, the European Court can move extremely quickly and be very thorough in the process.
Secondly, after the Judicial Committee have looked at the decisions which have

1123
already been handed down by the European Court they might find that they do not need to send it there because the European law is already clear. In those circumstances, they would need to use the powers which are provided under Section 3 of the European Communities Act so that they can be guided by what the European Court has already said, in the same way as other domestic courts are entitled—indeed, I think, required—to take these matters into account.
I am not suggesting that this drafting is correct, but I believe that it deals with some practical problems which must be tied up before one can satisfactorily deal with the matter. The main point is that I do not think that this is a matter for the Executive. It is justiciable and I think that it should go to the courts. I beg to move.
10.7 p.m.
Lord DIPLOCK: I should like to support this Amendment. The question whether a Bill is compatible with Community obligations is a question of law. It involves interpreting two types of legislation: one the Scottish Assembly Bill and the other the Directive, Regulation or Article of the Treaty with which it is suggested that it is incompatible. That is purely a question of law—as much a question of law as under paragraph (a).
Under the Community Act, regulations are part of Scots law. They are directly applicable as part of the law of Scotland. There are many articles of the Treaty which are part of Scots Law. They are directly applicable as part of the law of Scotland. Under many Directives, there are provisions which are directly applicable. They are part of the law of Scotland. This is entirely a justiciable matter, where the provisions of the Scottish Assembly Bill conflict with those parts of the law of Scotland which derive from the Community obligations of this country and which, under the European Communities Act 1972, are part of the law of Scotland.
It is doubly important that this particular legal question should go to a court or tribunal (I add "tribunal" to "court" because that is covered by Article 177 of the Treaty) and not to an Executive
1124
decision, because the ultimate interpreter of Community law, of the Treaty, Directives and Regulations, is the European Court of Justice—not any court in this country. Courts in this country are required by the European Communities Act 1972 to follow the law as laid down by the European Court.
Thus, when any question of this kind which involves the interpretation of European law—Community obligations of Directives, Articles of the Treaty or Regulations—arises, if we are to get the right answer, if we are to know whether this is part of the law, whether or not it is infra vires, it is essential that it should go through a procedure through which the matter may be referred to the European Court of Justice in order to get the final interpretation of what the Community obligations are. The only way of doing that is by referring the matter to a court or tribunal, and the Judicial Committee of the Privy Council is such a court or tribunal. It is one which, since there would be no appeal from it, would be under an obligation to refer the matter to the European Court, unless it was a question of interpretation which had already been decided by decisions of the European Court.
I suggest to the noble and learned Lord, Lord McCluskey, that this is a matter which requires consideration. I say with some confidence that, when he has given consideration to it, he will come to the conclusion that the way provided in this Amendment is the only correct way of dealing with this particular problem of compatibility between Scottish Assembly Acts and our duties under the Treaties and our Statutory obligation under the Act of 1972.
Lord DRUMALBYN: I wish to add a word or two in support of the Amendment moved by my noble friend Lord Colville of Culross and supported by the noble and learned Lord, Lord Diplock. Both of them have spoken mainly about Instruments that are of direct applicability, but there is also the very important side of those Directives which constitute obligations to be implemented by the legislation of the Member countries. In this connection Scotland is not a Member country per se, but the Assembly will be legislating on devolved matters which are very much

1125
affected by many of the Directives. When these Directives come along they have to be looked at by the Departments concerned to see to what extent the existing law is affected, the existing law being both United Kingdom law and Assembly law, when the time comes. This must be done and, although the Assembly law has yet to come, one has to consider what the situation will be and what is the best method of handling it.
I am quite certain that the right way to handle it is to refer this to the Judicial Committee for examination where there is any doubt whatever. I think the right person to look at this is the Secretary of State, if only because he will he coordinating for the United Kingdom Ministries as a whole and he can be the focal point for the examination of Scottish Assembly legislation in this matter. But, where there is doubt, it would seem to me to be quite wrong for him to interpret the Directive and to lay down for the Scottish Assembly how they are going to legislate in the matter. It ought to be for a court to say whether new Assembly legislation is out of keeping and out of step with the Directives that already exist.
Of course, this has to be looked at from two points of view, and I can quite see how it is that the Government have taken this view, because inevitably one will be considering not only what is already laid down in Directives but what is in the pipeline, what is coming along and is likely to be laid down. I take this opportunity of saying this because I think it is probably the only opportunity one will get in the passage of this Bill.
This is a very important matter for the Scottish Assembly. I should like to know what will be the arrangements for liaising between the United Kingdom Departments which will be taking part in the formation of these Directives and the Scottish Executive. This is very important because it can also affect Assembly legislation which is in the pipeline. But I do not see how the Secretary of State himself could say to the Scottish Assembly, "You cannot legislate in that way until the Directive is finalised". One has to remember that Directives very often take a long period in gestation. So, while I should like to know what are the proposals for
1126
keeping the Scottish Assembly informed of what is going on in Brussels—and indeed for participating in what is going on, because that is very important—at the same time, I think one must be quite clear that where a Directive has been made and where it appears that a Scottish Bill is not in line with that Directive, the right course is for the Secretary of State to refer the matter to the Judicial Committee of the Privy Council.
The Earl of SELKIRK: I do think that this will be an extremely embarrassing problem for the Secretary of State which will probably arise if we leave the Bill as it is. He has virtually to tell the Assembly what they must do, and we here know already that we shall have to do something we do not want to do. That is what is going to happen because the EEC is going to pass legislation some of which we shall not like. We have to face up to it; we have done it already, and the Scots will have to do it. If the Secretary of State goes to the Assembly and says, "You cannot do that" or "You must do that", that will arouse opposition. I believe he will be in a much stronger position if he says that the judicial body—whether it he a constitutional court or the Judicial Committee—says that this is the right course. I believe this will be much easier for the Scottish Assembly, or Convention or whatever you call it, to accept than simply the ipse dixit of the Secretary of State. I think this is a very embarrassing position for him and it will cause difficulty. I believe, therefore, that this would be a much easier course to take.
Lord SCARMAN: I should like to support the Amendment very much for the reason just given by my noble friend Lord Selkirk. The difficulty that I envisage for the United Kingdom, for the Secretary of State and for the Scottish Assembly, will be that there is bound to be doubt sometimes—in fact, quite frequently—as to whether an Assembly Bill is compatible with Community obligations. The European Court of Justice is empowered to protect the treaties and to interpret them. The Secretary of State cannot be sure that his opinion is correct if the matter is difficult or complex. Moreover, I should have thought that it would be highly embarrassing for all concerned if

1127
the question ultimately had to be determined after the Bill had become law and after it was challenged, and the matter was then taken to the European Court and a ruling adverse to the United Kingdom and to the Assembly law was then reached.
The virtue of this Amendment, and the reason why I support it, is that it seems to me that it provides a way in which embarrassment can be avoided and clarity and certainty obtained at an early stage, without imposing upon the Secretary of State a most invidious responsibility.
Lord BALERNO: The argument emphasises how utterly important it is that Scotland should be independently associated with the EEC in the consultations leading to the Directives which will be issued. In those circumstances the Assembly will be well aware of what is coming before it and what it will have to decide and it will not be taken by surprise, as would be the case if it were not freely consulted at any early stage.
10.22 p.m.
Lord McCLUSKEY: First of all, I should like to say that I accept entirely the analysis of the matter with which the noble Viscount, Lord Colville of Culross, opened his address. The reasons which he supposed we might have for having the provisions in this form were substantially the reasons for having the provisions in this particular form.
Secondly, I must confess that I approached the matter by looking at the question with which the noble Lord, Lord Drumalbyn, dealt rather than the question of direct applicability. It may be that 1 was wrong, but I looked at the wording of the Amendment and compared it with the wording of Schedule 1 to the European Communities Act 1972. Amendment 83 refers to:
"Community obligations of the United Kingdom".
I had rather read that, as I think perhaps the noble Lord, Lord Drumalbyn, may have read it, as indicating obligations resting upon the Member State. However, "Community obligation" as defined in Schedule 1 to the European Communities Act 1972 means:
1128
"any obligation created or arising by or under the Treaties, whether an enforceable Community obligation or not".
Looking at that definition and knowing that the noble Viscount does not use words unless he intends them to have some specific meaning, I understood him to mean something rather different from "Community obligation" as defined in Schedule 1. Therefore, I am prepared to deal with the point of obligations upon the United Kingdom rather than the point of obligations which are directly applicable.
Viscount COLVILLE of CULROSS: I entirely understand that. Will the noble and learned Lord tell us with which obligations the Bill deals as it is now drafted? It seemed to me that it was probable that it dealt with both.
Lord McCLUSKEY: I think that one must look at the Bill. We are talking about both in the Bill. Of course, if the noble Viscount is of the opinion that the Bill is not compatible with Community obligations, I think that one could say, having regard to the terms of Schedule 1 to the 1972 Act, that the Bill is concerned with both. I think that the answer that I would offer is, in truth, applicable to both the separate points which have been made. As the noble Viscount put it, the question is: Is there a justiciable issue which it is proper to refer to a court? He looked at the reasons why issues of vires might go to a court and issues of this kind might be thought to be different. In my submission, there is not at this stage a justiciable issue. The issue at this stage is one truly of administration because, when one is talking about a Bill, at this stage there is no contested issue of law appropriate for judicial interpretation.
The issue is not one of vires; it is an issue as to whether a provision, which is not yet law, and one which would be intra vires, is compatible with existing international obligations. It is Her Majesty's Government who maintain and have the responsibility for the conduct of international relations, and who accept—and have to accept—on an international level the responsibility for securing the implementation of obligations entered into at that level. That is clear in this context from Article 189 of the Treaty, which refers to Member States. The responsibility for securing that obligations

1129
are obtempered rests upon the Member State, in this case the United Kingdom Government; and Her Majesty's Government cannot delegate that responsibility either to a subordinate legislative body, on the one hand, or to a court, on the other.
Lord DIPLOCK: I do not want to interrupt the noble and learned Lord, but surely it is just as much a justiciable issue as it is under paragraph (a). If the Scotland Bill is given the Royal Assent and so becomes part of Scots law the question is: Will it be in conflict with the directly applicable community law in Scotland? Surely that is a justiciable issue, just as much as the justiciable issue under (a).
Lord McCLUSKEY: I agree that the distinction, of which the noble and learned Lord, Lord Diplock, doubts the existence, is a subtle one; but I would suggest that there is a distinction. At the end of the day, given that the United Kingdom Government have the responsibility for ensuring that international obligations are carried through, they cannot delegate to some court the responsibility for deciding whether or not that international obligation exists. That is the distinction.
The vires question can be sent to a court and the Bill provides that it will be sent to a court: the court determines that purely legal question, and that is an end of the matter. But if the United Kingdom Government, having the responsibility for ensuring that an international obligation is obtempered, refer that to a court, the responsibility still rests upon the Secretary of State. If the court should happen to get it wrong, the Secretary of State cannot shelter in his international forum behind the decision of the domestic court. I would suggest that that is the distinction.
Lord DRUMALBYN: Before the noble and learned Lord leaves that issue, is that entirely right? The domestic court is capable of referring the matter to the European Court of Justice before it gives its decision. In that case, there should be no chance at all of its diverging from the correct interpretation, as seen by the European Court.
Lord DIPLOCK: Not only is it capable of doing so; it is obliged to do so.
Lord McCLUSKEY: I wonder whether the noble and learned Lord could help me by pointing to a provision in the Treaty which obliges the European Court of Justice to entertain a question of this kind; that is to say, a question of the possible conflict between, on the one hand, a provision in a Bill and, on the other hand, an existing obligation? I shall not pretend that I have made a complete search of the Treaty, but I have not yet found a provision under which the European Court will entertain the question of a possible, hypothetical conflict between a Bill, which may or may not pass an Assembly, and a provision in it, on the one hand, and an existing obligation to the Community on the other hand.
Lord DIPLOCK: Article 177.
Viscount COLVILLE of CULROSS: The noble and learned Lord must be wrong. The Bill has already passed the Assembly. There is no doubt about what its contents are. This was the whole point of the argument earlier in the Committee. We know what is in the Bill. The question is whether or not it is compatible.
Lord McCLUSKEY: I am looking at Article 177. It provides:
"The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty; (b) the validity and interpretation of measures taken by the institutions of the Community; (c) the interpretation of the statutes of bodies"
established by an Act of the Council, where those Statutes so provide. I defer to the noble and learned Lord, but I did not read Article 177 as conferring upon the Court of Justice jurisdiction to give a ruling about the interpretation of a provision contained in a Bill, which is not law, emanating from the Scottish Assembly.
Lord DIPLOCK: The Court of Justice is the final court which English courts and Scottish courts are bound to follow on the interpretation of Community legislation. The Judicial Committee of the Privy Council will be the final court on the interpretation of Scottish legislation. What one has to see—and this is a justiciable issue—is whether the proposed legislation in the Bill is compatible with

1131
the Community legislation. If there is any doubt in the minds of the Judicial Committee as to what the correct interpretation of the Community legislation is, they are not only entitled they are bound to refer that matter to the European Court of Justice and to apply the interpretation which the European Court of Justice has given. I am bound to say that I cannot see that this is not a purely justiciable issue which has to be determined in this type of case.
Lord McCLUSKEY: I am sorry that I cannot carry the noble and learned Lord with me in drawing the distinction between the point that arises in a case, and the kind of point that arises in relation to a provision in a Bill which has not yet become law. Of course, I will certainly look at what has been said by noble Lords and noble and learned Lords in relation to this, to see whether or not the thinking that lay behind the provision and the resistance to this Amendment is still sound, particularly in the light of the point about direct applicability which I had not, 1 confess, prepared to meet in the way it was presented.
I should like to add, in relation to the obligations which rest upon Her Majesty's Government, or upon the State, that it is Her Majesty's Government, and no one else, who have to face infraction proceedings which may arise under the Treaty. Therefore, it is Her Majesty's Government who insist upon maintaining the full means of exercising that responsibility so that they can, if necessary, block an Assembly Bill (as is allowed by Clause 19(1)(b)) that apparently contravenes a Community obligation. Of course they can decide themselves to secure implementation of Community obligations in relation to devolved matters. It would be totally unacceptable for the Government, who have the international responsibility, to be unable to take quickly the necessary action to secure full implementation simply because the Judicial Committee was determining whether a Bill involved contravention of a particular obligation.
I want to emphasise that point: it may be that the Judicial Committee can, in certain circumstances, move very quickly, but if there was an obligation upon Her Majesty's Government to implement a
1132
Community obligation, they could not stand by and not implement it while they waited for the Judicial Committee to consider the matter which had been referred to it.
The Earl of SELKIRK: Could we not take emergency action under Clause 36, which deals with the power to prevent or require action? I am thinking only of emergency action.
Lord McCLUSKEY: We are talking in Clause 19 about primary legislation, whereas I think Clause 36 is directed to a different matter, so the answer to that question must be, No. I accept that the provision in the Bill is a deliberate derogation from devolution, but I ask the Committee to see it in perspective. Those who are familiar with the earlier measure—the Scotland and Wales Bill—will recall that, originally, devolved responsibility for all devolved matters to do with the Community and other international obligations rested with, and only with, the United Kingdom Government. The present Bill contains a move away from that and leaves the way free for the Scottish Assembly and the Executive to implement those obligations within devolved areas; but the Bill retains an oversight of this responsibility and that, as I say, must be securely vested in the Government and in the Secretary of State acting for the Government, and one sees that in Clause 19 and in Clause 60(3).
That is the Government's position on the matter. As I have indicated, I shall, in the light of the debate, look at the matter again. I am not trying to suggest that the Government propose to change their position, but I must take account of what has been said by noble Lords and the noble and learned Viscount, and I do not think I can add to what I have said about that.
The Earl of PERTH: Can the noble and learned Lord help the Committee on the question raised by the noble Lords, Lord Drumalbyn and Lord Balerno? I accept that in the last analysis the responsibility is Her Majesty's Government's; but what machinery do the Government propose to ensure that the Scottish Assembly is brought into consultation either with Her Majesty's Government or the Community in Europe?
Lord McCLUSKEY: I am obliged to the noble Earl for reminding me of that matter; I had intended to deal with it but was referring to other matters. So far as liaison is concerned, the answer can, I think, only be that we cannot at this stage legislate for liaison arrangements; that must be a matter for discussion between the Executive, when it is formed, and the Government of the day. It is surely not possible to legislate for that matter—indeed, it would not be wise to try to do so, in advance of the setting up of the Executive and hearing their view on what arrangements they would want, what kind of representation, whether permanent or temporary and so on—and it would be impossible and unwise to try to lay down hard and fast rules. That is the only answer I can give, but I submit it is a sound one.
10.38 p.m.
Lord DRUMALBYN: Before we leave this question, one is bound to be especially troubled by the kind of indirect relationship that will arise in this case. EEC Directives, for example, will come out and will be addressed to Her Majesty's Government and the other Members. It will then be the duty of Her Majesty's Government vis-à-vis the EEC to ensure that all law in Britain—whether United Kingdom, English, Welsh or Scottish—conforms to those Directives. The difficulty about the Directives is that they cover to a large extent what is already in our law; but the law will have to be changed in certain respects. In the early stages, the same changes in the law could easily be made both by the Assembly and by Westminster because the law starts by being roughly the same in the two places; but gradually there is likely to be increasing divergence as the Assembly builds up its own law from the law that is enacted at Westminster. Does the noble and learned Lord envisage that, simply because the United Kingdom has this responsibility, vis-à-vis the Community, of ensuring that the Directives are implemented, the Westminster Parliament will continue to legislate even on devolved matters? Or, on the devolved matters in Scotland, will it be possible for the Assembly to legislate separately, even though they are doing the same thing, as they have to do under the Directive?
Lord McCLUSKEY: First, in relation to Directives which require action within the Member State—and not Directives which may be directly applicable—the Bill certainly envisages that the Assembly has the competence to implement a Directive which requires legislative action within the Member State. It certainly has, within the devolved field, the competence to do that. Clause 60(3) states:
"If it appears to a Minister of the Crown—

(a) that the implementation of a Community obligation or any other international obligation of the United Kingdom requires the exercise of any power to make a subordinate instrument; and

(b) that the power could be exercised by a Scottish Secretary; but

(c) that it is desirable that it should be exercised by a Minister of the Crown,

he may exercise the power as if the matter with respect to which it is exercisable were not a devolved matter".
So the scheme of the Bill is, in relation to devolved matters, where there is a Community obligation which requires to be perfected within the Member State by further legislative action, or by subordinate Instrument, that can be done either by the devolved Assembly, or by a Scottish Secretary, or it can be done by the United Kingdom Parliament, or by a Minister of the Crown. One hopes that these matters will be discussed, and that whatever is the most suitable vehicle will be the one chosen. But, at the end of the clay, having regard to the scheme of the Bill, and for the reasons I gave earlier—about the need for the United Kingdom Government to accept and honour the responsibility that they have for ensuring that international obligations are met—the ultimate responsibility rests with Her Majesty's Government.
Lord THOMSON of MONIFIETH: May I ask my noble and learned friend about a matter arising out of these questions? He has explained that in this Bill, as compared with the previous Bill, devolved matters relating to these Community Directives can now be dealt with by the Scottish Assembly. Has he given consideration to some of the consequences which may flow from this? If, for example, there is, as often happens, a Community Directive which has optional clauses, will it be open to the Scottish Executive and the Scottish Assembly to implement these optional clauses in Scotland while they are not

1135
implemented in the rest of the United Kingdom? Will it be open to the Scottish Executive and the Scottish Assembly to implement Directives on a different timetable from what may happen in the rest of the United Kingdom?
Is he aware that there is considerable concern, among those who have to deal with the consequences of these Directives in this country, that we shall get into an extremely untidy, complicated, and difficult situation if these matters are not thought through? I do not press my noble and learned friend for an answer on this matter now, but it comes up later in the Bill, and I believe that we need much more clarification on this.
Lord McCLUSKEY: By way of a preliminary to that point, I should like to say that it very often happens that obligations which are accepted as being, in effect, United Kingdom obligations are, at the present time, brought into force in Scotland on different dates from the rest of the country, because there is sometimes a need for separate Scottish legislation. The noble Baroness, Lady Elles, referred earlier to the Renton Committee Report; that report makes it very clear that that is so. When we speak of devolved matters, that may well be so in relation to devolved matters in a Community context. But I welcome the opportunity given to me by my noble friend Lord Thomson of Monifieth to return to this matter when I deal with Clause 60(3), when I can then give him the considered answer which his point properly deserves.
The Earl of PERTH: Can the noble and learned Lord help us just a little further? He said that it was too early to lay down what would be the machinery in the question of consultation. But would he go this much further and undertake that the British Government will have such machinery after consultations in due time with the Assembly?
Lord McCLUSKEY: All I can properly say is that, once there is another party to talk to in the form of a Scottish Executive, the British Government will talk to that party about what is the best way to secure that these matters are
1136
properly liaised—if I may be forgiven that word—between the Scottish Administration and the United Kingdom Government.
Viscount COLVILLE of CULROSS: I do not think we have heard the last of the political aspect that has arisen on this Amendment. Indeed, I am not entirely sure that the House, as it will be at that time, on another stage of the Bill, will wish to leave the matter so much in the air that we finally send this Bill back to another place without knowing, at any rate in embryo, what kind of arrangements might be made between the United Kingdom Government and a Scottish Assembly. I dare say that the nuts and bolts will have to he screwed on when it comes to the final details; but I think we are going to need to know a good deal more than the noble and learned Lord has been able to tell us this evening. However, as the noble Lord, Lord Thomson, has indicated, we shall be coming back to that, and I shall be very happy to listen to the debate then.
I should like now to deal with the comparatively narrow, but 1 think important matter that arises on this Amendment. I am not going to press it this evening because I am not sure that I have got it right; but, conversely, I am. if I may say so to the noble and learned Lord, absolutely amazed that neither he nor his advisers have apparently even thought of the directly applicable aspect of European Community Articles, Directives and Regulations. It really is absolutely elementary, if I may say so to him with the greatest possible respect, that these are a fact of life which we now have in the courts of this country, and which are directly applicable. I think that, on that line, when he comes to consider what has been said, particularly by the two noble and learned Lords on the Cross-Benches, he will find that there is no distinction whatsoever in logic or in principle between directly applicable European Community obligations and the provisions which are dealt with under paragraph (a).
I do not think it matters whether or not there is anything similar in existence within the Treaties which would allow the European Court to take cognisance of a dispute at a pre-legislative stage if in this country, as I think I am right in saying,

1137
we provide in our own domestic legislation that these are to be legal proceedings and that it is to be before a court or tribunal, in which case I would have thought it fell fairly and squarely within the provisions of the Treaties themselves. If there is any doubt about this, why does the noble and learned Lord not go and ask the institutions in Brussels and in Luxembourg and see what they say about it? If he does not know the answer, they are, I think, the people to go to, even if he has to do it somewhat informally at this stage. Perhaps he could do that, and make sure there is no technical defect in that respect.
Lord McCLUSKEY: May I ask the noble Viscount this? He does accept, I suppose, that at the present time the United Kingdom Parliament, when it introduces legislation, does not in fact go to the European Court while the Bill is in the House to ask whether the Court considers that the Bill is compatible or is not compatible with the international obligations or directly applicable Regulations or Directives? What the Government do in that case is to make their own judgment on the matter, because they have the responsibility, and then, of course, they face the possibility that once the legislation becomes statute law they might then face proceedings in the European Court, where that legislation might be attacked. Why does the noble Viscount suggest it should be different in relation to directly applicable matters when the Scottish Assembly is legislating? Why should he suggest that the responsibility should go to someone other than the Secretary of State?
10.49 p.m.
Viscount COLVILLE of CULROSS: Because when the United Kingdom Parliament passes Acts of Parliament there is no pre-enactment review, and there is therefore no opportunity for this to be done. Very likely it would be an extremely good thing if it was done, but we have no machinery under our unwritten Constitution which will set it up. In the Bill we are providing for a complete set of machinery which is exactly applicable to this situation. If the thing is going to be justiciable on the vires of this Bill, I cannot see the smallest difficulty in making it justiciable on the question of
1138
direct applicability and vires as between the Scottish Assembly Bill and the European Community obligation. The Bill has by that time passed the Scottish Assembly. It is in its final form and nobody can tinker with it. We know what its provisions are and, subject to the rest of the machinery of this Bill being satisfied, it will become an Act of the Assembly in that form.
I cannot see why the noble and learned Lord is making such heavy weather of this. Surely, it is better to get it right before it goes on to the Scottish Statute Book and people start regulating their lives accordingly only to find out that they have got it wrong, and that the whole thing was wrong and should not have been imposed in the first place. What is the noble and learned Lord suggesting we should do about this—merely leave it so that, when the thing is passed and is found to be wrong, some people will have acted in accordance with the Bill as it stands on the Statute Book and will have prejudiced their position and will not be able to revert to what their position previously was? Or that other more astute people will go to better legal advisers and see that the whole thing is in conflict with the European Community, and then get the benefit of not having it applied to them? Is the noble and learned Lord suggesting, when we have the machinery for review before it goes on to the Statute Book, that it should be left to chance?
Lord McCLUSKEY: With respect, the noble Viscount does himself less than justice. As Clause 19(1) provides for the moment in (b) , if the Secretary of State comes to be of the opinion that the Bill is not compatible with the Community obligations, that is the end of the Bill. It does not become an Act. What the noble Viscount proposes is that, if he comes to that very same opinion, he should refer the question to the Judicial Committee and, possibly, thence to the European Court. But in neither situation would a Bill get on to the Statute Book—and particularly in the situation envisaged by the Bill in Clause 19(1)(b). The Bill would not get on to the Statute Book if he reached the very opinion that the noble Viscount suggested he ought to reach before sending it to the Judicial Committee.
Viscount COLVILLE of CULROSS: I do not think that the noble and learned Lord has thought this through. With great respect, the Secretary of State—and I am not talking about the other half of this, which is the non-directly-applicable department, as it were, of our European obligations; and I want to come back to that—will have to form a view in relation to the directly-applicable obligations. What I am suggesting is that he may be wrong. He may think it is compatible and so does not do anything about vetoing it; and he is wrong. If there is doubt about it, he must resolve it one way or another. If there is doubt, he must make up his mind whether or not it is compatible.
Only if he comes to the conclusion that it is incompatible as the clause stands will he veto it. If he thinks that, on balance, or whatever the test will be, it is compatible, he will allow it to go forward. There is no other machinery whereby it can be vetoed; it will go on to the Statute Book—and then it is found to be wrong. Then the situation arises that I have suggested to the noble and learned Lord.
I am suggesting that all this can be easily prevented by the Secretary of State not having to take a decision which, with great respect to him, he is not competent to take, which is a judicial decision, and not an Executive or Parliamentary decision, on the technical matter which the noble and learned Lord, Lord Diplock, has said falls fairly and squarely within the definition of a justiciable issue.
The noble and learned Lord is going to be faced by us again with another Amendment on this which I hope next time he is going to receive with a great deal more welcome than was the case just now. I am not going to leave the matter in this form on this part of the problem of the conflict with Europe. On the other half, I think he may have a point. The noble Lord, Lord Thomson, will know better than I what are the varieties of Directives and Regulations which come from Brussels. I know that some of them can be instantly recognised by anybody as being directly applicable. Quite a lot of them cannot be recognised, one way or the other, by anybody until a case arises when some court has to
1140
think: "Does this, in fact, take a form whereby it is to be interpreted as having a direct effect upon the actions of an individual within the domestic legislation as brought in by the European Communities Act?" Some of them are not directly applicable at all and would only be entertained by the European Court if a Nation State, at the suit of the Commission, as a rule, was the litigant.
It is the latter kind which I suspect has dominated the Government's thinking on the way they have drafted this paragraph. Of course it is right that this should be taken care of, because I quite see that if the matter is not directly applicable and what it involves is the Government of this country, whether it is the United Kingdom Government or the Scottish Executive, legislating in order to do something that vye have been told to do by one or other of the European institutions, the Government must keep their hand on that matter.
That is a political matter like the other international obligations with which I have not sought to interfere which are at the moment dealt with in a separate subsection according to my Amendments. I see the sub-division; I hope that the noble and learned Lord also sees the point about the part of it with which I am concerned. I do not think that the Bill deals with my part; I believe there is a lacuna in it and something we really ought to think of seriously again, especially if the Government have never thought of this before. The noble and learned Lord has already promised us quite adequate reconsideration of this matter. I do not want him to say any more about it. I am sure he will think about it and, he may be assured, so will we and we will be back.
Lord MACKIE of BENSHIE: I wonder whether the noble and learned Lord could help the layman with this matter. As I understand it, he wants to make absolutely certain before a Bill becomes law and before it goes through the Assembly perhaps, that consultations take place, both with the Judicial Committee of the Privy Council and perhaps to seek an opinion from the European Court. Could he tell me what this means in terms of time? It appears to me as a layman in these matters that if we are

1141
going to wait for judicial opinions from all over Europe, it might be better to take a risk on the opinions of our own lawyers which we might get a little more quickly.
Viscount COLVILLE of CULROSS: I touched upon this. When I went to talk to the members of the European Court last year, I was given two examples. One was the fishery case, which was a Government versus the Commission one, and the other one was a matter which concerned the Republic of Ireland. Perhaps that was the fishery one; I cannot now remember. The proceedings had been dealt with at such speed that, I think, from the initiation of the proceedings until the delivery of the judgment of the Court, after it had been translated from its original French into English, vetted by the British judge and delivered to the Embassy, the period was something under five days. If that is not fairly impressive, I do not know what we can show in this country to equal it. In the circumstances, we have explored this issue so far as we can, and, for the moment, I should like leave to withdraw the Amendment on the undertakings that the noble and learned Lord has given and on the promise that I have given that we will return to the matter.
Amendment, by leave withdrawn.
[Amendments Nos. 84, 86 and 85 not moved.]
Baroness LLEWELYN-DAVIES of HASTOE: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

COMMONS REGISTRATION (CARDIGANSHIRE) BILL
Examiner's Certificate that no further Standing Order is applicable; Ordered to lie on the Table.
CHRIST CHURCH WOBURN SQUARE AND SAINT MATTHEW OAKLEY SQUARE BILL [H.L.]
Reported from the Unopposed Bill Committee with Amendments.
KENDAL MARKET BILL [H.L.]
Reported from the Unopposed Bill Committee (on Re-commitment) without amendment.
  ANIMAL WELFARE ADVISORY COMMITTEES
  ANIMAL WELFARE ADVISORY COMMITTEES
  TECHNOLOGY AND INDUSTRIAL EMPLOYMENT
  TECHNOLOGY AND INDUSTRIAL EMPLOYMENT
  CHEDDAR CHEESE: PRODUCTION AND IMPORTS
  CHEDDAR CHEESE: PRODUCTION AND IMPORTS
  CHEDDAR CHEESE IMPORTS
  CHEDDAR CHEESE IMPORTS
  FARMHOUSE CHEESE PRODUCTION
  FARMHOUSE CHEESE PRODUCTION
  CHEESE IMPORTS FROM EIRE
  CHEESE IMPORTS FROM EIRE
  FARM ANIMALS: WINTER LOSSES AND EXPORTS
  FARM ANIMALS: WINTER LOSSES AND EXPORTS