Sitting of 8 October 1998

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Ely.

Lord Macdonald of Tradeston
Angus John Macdonald, Esquire, CBE, having been created Baron Macdonald of Tradeston, of Tradeston in the City of Glasgow, for life—Was, in his robes, introduced between the Baroness Smith of Gilmorehill and the Lord Gordon of Strathblane, and made the solemn Affirmation.

The Youth Service: Future
3.13 p.m.
Lord Aberdare Lord Aberdare asked Her Majesty's Government:
What are their intentions for the future of the Youth Service.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, we have just published with the National Youth Agency an audit of youth services in local authorities in England which gives a wealth of information on all aspects of the youth service including current activity, the quality of provision, expenditure, partnerships and relationships with other services and future plans. We shall be taking the findings carefully into account before publishing a consultation paper on the future of the Youth Service. We have also encouraged the Youth Service to contribute to the Government's policies and programmes for young people, in particular New Deal and New Start.
Lord Aberdare: My Lords, I am most grateful for the answer provided by the noble Baroness. Is she aware that there are certain anxieties among the voluntary bodies in the Youth Service which may be allayed if the Minister says that those voluntary bodies will be fully consulted during the discussions and that their views will be received sympathetically? I declare a particular interest in the YMCA. But a number of other bodies in the voluntary sector also believe that their worries can be assuaged if they can be told that they will be fully consulted. There are over 700,000 volunteers in the Youth Service whose splendid work should be well remembered. If it is intended to take new initiatives can that occur without any disruption of the present services now provided by voluntary bodies?
Baroness Blackstone: My Lords, the Government enormously appreciate the contribution of the voluntary sector in providing youth services and recognise the extent of volunteering by a large number of people who put time and effort into this hugely valuable work. The Government will consult widely when they produce
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their consultation document. In particular, they want to hear the views of the voluntary sector about the future of the service.
Baroness Masham of Ilton: My Lords, does the Minister believe that there are sufficient youth leaders trained in the problems of drug and alcohol abuse among the young? If not, can the Minister do something about it?
Baroness Blackstone: My Lords, I welcome the question put by the noble Baroness. The Government believe that the work of the Youth Service in crime prevention generally and dealing with the problems of drug and alcohol abuse is very important. The training of youth service workers is supported by my department but is carried out largely by local authorities. I shall find out whether more work needs to be done to train people to deal with those particular problems.
Baroness Carnegy of Lour: My Lords, will the Government bear in mind when they carry out the consultation that it is not just the effort that goes into voluntary youth work that is so important, but that the expertise that resides within it is much greater than many people who are not involved recognise? I refer to expertise in working with young people, but also the training of youth leaders. Much of this work is done, admittedly financed by the Government and local authorities, at minimal expense and at a high level of competence. Will the noble Baroness bear that in mind and really listen to what they say, not just for the sake of listening but to learn from them? There is much to learn.
Baroness Blackstone: My Lords, the Government would not dream of just listening for the sake of it. We shall certainly take into account the views of experienced workers in the voluntary sector. I very much recognise the importance of what the noble Baroness has just said about the contribution of the voluntary sector to the training of youth workers.
Lord Tope: My Lords, is the Minister aware that the 1998 Youth Service audit, to which I believe she referred in her Answer, states that local authority expenditure on the Youth Service is now only 1.2 per cent. of general education expenditure by local authorities? Further, does she accept that part of the reason for that is the pressure exerted on local authorities who have felt the need to protect schools' budgets often at the expense of the Youth Service budget? Does the Minister also accept that the Government's welcome pressure on local authorities to passport money on to schools' budgets is likely further to reduce youth service expenditure? What practical steps do the Government have in mind to enhance and improve the funding of the Youth Service? In particular, what do the Government have in mind when they talk about placing the Youth Service on a statutory basis?
Baroness Blackstone: My Lords, the Government are currently considering the future funding of the voluntary sector in the Youth Service. Currently it is

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funded to the tune of approximately £3 million per annum. As to local authority provision, the Government are aware of the very wide variations to which the noble Lord referred. It is for local authorities to decide how to allocate the funding that is provided by central government and it is up to the Youth Service to make representations. Part of the variation is due to different levels of voluntary provision in different local authorities, but I hope the noble Lord will recognise that the Government have increased the funding that is available to local authorities for spending across a whole range of services.
The Government are considering the statutory basis of the Youth Service. They will do so further in the light of consultation on the document that they will publish later.
Lord Elton: My Lords, when the Government review the development of the Youth Service, will they bear in mind that it is part of a much larger spectrum of voluntary services relevant to young people? Will they bear in mind the importance of keeping young people in step with, informed of, and co-operating with the youth offending teams which the Government are setting up, so that there is a co-ordinated strategy to keep young people out of crime rather than many strategies going off in helpful but diminishing useful directions?
Baroness Blackstone: My Lords, yes, joined up policy in this area is as important as in many other areas.
Lord Roberts of Conwy: My Lords, may I ask the noble Baroness to express the Government's appreciation—as I do the last Government's appreciation—of the excellent leadership given by the chairman of the Wales Youth Agency, Mr. Gerald Davies, who is now retiring after six years in that office? He brought to it many of the skills that he had shown on the rugby field. Perhaps I may say how delighted we are that he is to be succeeded by a talented and lovable broadcaster, Mr. Roy Noble.
Baroness Blackstone: My Lords, yes, I shall be delighted to pass on the Government's gratitude to Mr. Gerald Davies for all his hard work and effort in the Youth Service in Wales. I should also like to say how much I have appreciated his prowess on the rugby field.

Privatisation: Public Accounts Committee Report
3.21 p.m.
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
With regard to the recent report by the House of Commons Public Accounts Committee Getting value for money in Privatisations, what is their estimate of the final cost to the Treasury and the taxpayer of the previous government's policy of privatisation.
Lord McIntosh of Haringey: My Lords, the House of Commons Public Accounts Committee report GettingF
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value for money in privatisations followed the committee's normal practice of not making judgments about the rights or wrongs of the policy of privatisation. However, the report concluded that the way privatisations were implemented in the past meant that the taxpayer did not always get full value for assets being sold. Because there is no easy way of estimating what the full value of the assets would have been, it is not possible to produce a definitive estimate of the final cost to the taxpayer. Any such estimate would be subject to a wide margin of uncertainty.
Lord Dean of Beswick: My Lords, I am grateful to the Minister for that detailed reply. Is he aware that the valuation for the sale of water authorities in Wales and England was £4.4 billion? However, they were sold for £3.6 billion. That is an identifiable figure of £800 million which was chucked away. Is he also aware that when I left Manchester the assets in water were approximately £500 million. Those assets were stolen from local authorities by the last government and flogged off to buy a few boats, with no compensation, despite the pleadings of the former Prime Minister Edward Heath and the late Lord Rippon, a former Secretary of State during that period. They asked the Government to give the money to the people to whom those assets belonged. Is it not about time that the people responsible for that legalised robbery were brought to book for it?
Lord McIntosh of Haringey: My Lords, I am grateful to my noble friend for choosing to refer to the privatisation of water. I refer him to an excellent pamphlet which I wrote after the privatisation of water which was published by the Institute for Public Policy Research in which he will find further ammunition for what he said.
The Public Accounts Committee report refers back to two earlier reports which made two specific criticisms of privatisation of water: first, on the scale of the completion and success fees which were granted: and, secondly, on the major mistake made in selling the shares at one go rather than in stages. However, that is only one of many examples which are in the fascinating report from the PAC.
Baroness Oppenheim-Barnes: My Lords, can the Minister say what estimate has been made by the Treasury as to the amount of taxpayers' money it would have cost if those industries had not been privatised but had still been the subject of debt and subsidy, about which we hear very little?
Lord McIntosh of Haringey: My Lords, I said in my first Answer that there is no definitive estimate of the final cost to the taxpayer. However, I remind the noble Baroness that privatisation has not resulted in the end of subsidy. On the contrary, in the case of the railways the public subsidy to the railway industry has doubled as a result of privatisation and, as we all know, the quality of service has declined dramatically.
Lord Razzall: My Lords, in the light of the Minister's answers to the previous questions, and of

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the report of the Public Accounts Committee to which he referred, have the Government had any change of mind regarding the future of the Post Office, or London Transport? As the noble Lord will be aware, in both cases there are rumours that the Government propose privatisation.
Lord McIntosh of Haringey: My Lords, I do not comment on rumours.
Lord Mackay of Ardbrecknish: My Lords, is the Minister aware that we welcome the conversion of his Front Bench, if not his Back Bench, to the merits of privatisation? We are not surprised, given the world success of such companies as British Telecom, BritOil, British Airways, British Steel and a whole list of others which are now world leaders. Our example has been followed around the world.
Can the Minister assure us that the privatisation programme will continue under this Government now that they have seen the light? When will the privatisation of, for example, the National Air Traffic Services, the Tote and National Savings be brought forward?
Lord McIntosh of Haringey: My Lords, the noble Lord will not succeed in driving a wedge between me and my Front Bench colleagues on the one hand and my colleagues on the Back Benches on another hand. On the other hand, we are of one mind on these matters.
As the noble Lord well knows, proposals for the extension of public private partnerships in the areas to which he refers were made by the Chancellor of the Exchequer in announcements this summer. Further announcements will no doubt be made by the appropriate Ministers is due course.
Earl Russell: My Lords, the Question asked for the final cost. When we consider such issues as disrepair, is it not a great deal too early to say?
Lord McIntosh of Haringey: My Lords, it is always too early to give the final costs of anything, unless we come to Armageddon within the lifetime of this Parliament. Even if we did, it might be rather difficult to achieve that.
Lord Clinton-Davis: My Lords, does my noble friend recall the grotesquely exaggerated claims made by the then Government about the benefits that would be conferred on the travelling public as a result of privatisation of British Rail? Does he also recall that British Rail was denuded by that Government for some 18 years of the wherewithal to enable the appropriate investment to be made and which was so necessary?
Does my noble friend agree that the omission of any mention of that factor in the question by the noble Baroness on the Opposition Benches is somewhat surprising and misleading?
Lord McIntosh of Haringey: My Lords, anyone who travelled to Blackpool on the Sunday before the Labour Party Conference, as did my noble friend and I,
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will have first-hand experience of privatisation. To be fair, the Question by my noble friend Lord Dean was much wider. It referred to the analysis of the experience of privatisation, with no fewer than 35 previous reports of the Public Accounts Committee. The report to which I referred is fascinating. It gives a detailed analysis, which deserves the attention of all Members of this House, of the many failings of the previous Government in implementing privatisation.

Newspaper Pricing: OFT Report
3.28 p.m.
Lord McNally Lord McNally asked Her Majesty's Government:
When they expect to receive the Office of Fair Trading report on predatory pricing in the newspaper industry.
The Minister of State, Department of Trade and Industry (Lord Simon of Highbury): My Lords, the Director General of Fair Trading has asked News International to provide detailed information about The Times newspaper to enable him to assess the impact of its trading strategy on its competitors. The director's investigation and its timing are a matter for him. It is the director's responsibility to decide whether there is a case for making a reference to the Monopolies and Mergers Commission.
Lord McNally: My Lords, I thank the Minister for that Answer. Has he had time to read the text of an outstanding speech made at a fringe meeting at the Labour Party Conference by the noble Lord, Lord Hattersley, who called for an amendment to the Competition Bill, which is shortly to return to this House, in order to give specific protection to the newspaper industry and guarantee quality, diversity and choice in the face of predatory pricing and other unfair competition? How is it that experienced parliamentarians such as the noble Lord, Lord Hattersley, Mr. Mullin and Mr. Radice believe that such amendment is possible but the Minister still resolutely refuses to bring one forward?
Lord Simon of Highbury: My Lords, such a plethora of good papers were produced from the fringe meetings at our conference that I have not had time to assimilate them all. I shall hasten to the website to do so. It is clear to those who have studied the Competition Bill, which we shall discuss later, that there are perfectly adequate powers to cope with predatory pricing. No doubt we shall debate the issue when we come to it.
Baroness Carnegy of Lour: My Lords, in defence of the Minister, does he agree that it is not always necessary to legislate in order to make something happen? When the issue was last discussed in this House the price of The Times on the Monday was l0p while last Monday it was 30p.
Lord Simon of Highbury: My Lords, I have already made it clear that all the information that is required for real action to take place, if it is required to take place,

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is in the hands of the Director General of Fair Trading. We should distinguish between what we would like and the legality of cases we are discussing. There are political preferences and there are legal realities; we must attend to the legal realities.

Kosovo: NATO Planning
3.32 p.m.
Baroness Ludford Baroness Ludford asked Her Majesty's Government:
What decisions were taken at this week's NATO meeting on military action in Kosovo.
Baroness Ramsay of Cartvale: My Lords, NATO Ambassadors have met daily since Monday 5th October. No formal decisions on military action in Kosovo have been taken in this period. NATO planning now stands at a very high degree of readiness to pursue military options in pursuit of the international community's goals, should this be necessary.
Baroness Ludford: My Lords, I thank the Minister for that Answer and appreciate that it is a fluid situation. Can she confirm that the justification for military action is not as a punishment for President Milosevic, or to make western leaders feel better, or even to be seen to be doing something after six months—some would say years—of passivity in the face of human rights abuses in Kosovo, but that it is to stop genocide and brutality and to enforce Security Council Resolution 1199 which is still being flouted? Does she agree that any airstrikes will have to be followed up, probably by the deployment of ground forces and forceful pressures for a solution to bring stability, democracy and meaningful self-government to the Kosovars?
Baroness Ramsay of Cartvale: My Lords, the international community is united in its resolve to ensure that President Milosevic complies fully with United Nations Security Council Resolution 1199. That was a UK-drafted resolution and it was adopted on 23rd September. It makes clear the steps which the Yugoslav authorities must take to avert humanitarian catastrophe in Kosovo.
The report of the UN Secretary General on compliance clearly shows that they have so far failed to comply fully with the requirements of the resolution. No one wants to use military force. The international community is united to ensure that President Milosevic does comply fully. President Milosevic should be in no doubt that if that is what is required to make him comply with Resolution 1199 military force will be used.
The Earl of Lauderdale: My Lords, in view of the many reports that British troops are to be sent to Kosovo, can the Minister say what they can do there that they have not been able to do in Northern Ireland?
Baroness Ramsay of Cartvale: My Lords, at this time I would not wish to go into details as to what British troops might do in Kosovo.
Lord Kennet: My Lords, can the Minister confirm that before NATO, acting as such, bombs the territory
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of the Federal Republic of Yugoslavia, or takes any military action there, a further United Nations resolution will be necessary? Resolution 1199, which was passed only two weeks ago, promises nothing worse than further consideration if Belgrade does not comply with its terms. Moreover, it is addressed with complete impartiality to both the Federal Yugoslav Government and to the Kosovo/Albanian leadership.
Baroness Ramsay of Cartvale: My Lords, the British Government have made clear right from the beginning that they disapprove of military force being used for political ends from whatever direction it comes. That applies to the Kosovo Liberation Army as well as to the forces of the Federal Republic of Yugoslavia.
The Foreign Secretary will be chairing a Contact Group meeting at Heathrow tonight to hear the results of the Holbrooke mission. We would hope that the united pressure of the international community means that the mission will have borne fruit. In any event, we are clear that pressure, including the credible threat of military action, must be maintained if there is to be full compliance by Belgrade with Security Council Resolution 1199.
Lord Moynihan: My Lords, pursuing the question asked by the noble Lord, Lord Kennet, which is critical, will the Minister give the House a clear indication as to whether the Government believe that the American and British Governments, for instance, could take military action in Kosovo without recourse to a further UN Security Council Resolution? Furthermore, without going into details, does she seriously believe that airstrikes without the deployment of ground troops can ever be effective and conclusive in Kosovo?
Baroness Ramsay of Cartvale: My Lords, I shall deal first with the second part of the question. It is a wholly hypothetical question which I am not prepared to answer at this time. I would have thought that the House would understand that. It is hypothetical to discuss military actions in situations about which we are not in possession of all the facts. I am not prepared to reveal them in the House, and no one else would be either.
As regards the legal authority, the view of the UK is that if action through the Security Council were not possible, military intervention by NATO would be lawful on grounds of overwhelming humanitarian necessity. No one who has seen the details of the recent massacres at Gornje Obrinje and near Vucitrn, which appalled the whole world, could possibly doubt that we are in danger of a humanitarian catastrophe. Most of those killed were women and children. It was not an act of war or a military operation; it was plain, cold murder.
The UN Security Council Resolution 1199 affirmed the role of the international criminal tribunal for the former Yugoslavia and Kosovo. On news of the last outrage, the Foreign Secretary immediately contacted the prosecutor to urge her to investigate it. She has now

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confirmed her intention to do so. We would expect the authorities of the Federal Republic of Yugoslavia to co-operate fully in this matter.
Lord Judd: My Lords, would not my noble friend agree that, while it is very damaging to the cause of international order to threaten force when in the end not being prepared to use it, it is invariably true that to deploy force without a political strategy is disastrous? Would not my noble friend further agree that it is essential to remember that Kosovo joined a Yugoslav federation and not a Serbian state and that when Yugoslavia dissolved into its constituent parts there was high expectation, denied by the international community, that the people of Kosovo would be able to enjoy the rights of independence as they anticipated from the constitution of 1974 which accorded them the status of an autonomous province with all the prerogatives of a republic? Is it not this denial of what they see as their rights that is driving the Albanians of the whole region together and which threatens to deny us a stable and lasting solution?
Baroness Ramsay of Cartvale: My Lords, there is no doubt that the problem, in many ways, arose from the fact that the autonomy which Kosovo enjoyed during the time that Tito was leading Yugoslavia was taken away by President Milosevic. It has to be said that he was put into power in the Federal Republic of Yugoslavia, after the elections around 1987, in part because of a pledge to bring Kosovo more directly back into Serb control. Around 1990 that was done, by various measures of his parliament, and the rights under the autonomy were taken away. That is the seed-bed of a lot of what has happened since.
But nothing can get us away from the fact that we are now looking at a potential humanitarian catastrophe—not only because of the people who have been killed already but homes have been destroyed and approximately 50,000 people are out in hillsides with winter approaching. That is the urgency of the situation facing the international community at the moment.
Lord Bridges: My Lords, an intervention in Yugoslavia would bring assistance to the refugees in Kosovo to enable them to return home and live in peace. Does it not inevitably follow, as a number of other noble Lords and noble Baronesses have said, that there must be a substantial component of ground troops in an intervention force? I understand why the noble Baroness does not wish to embark on that sort of discussion this afternoon, but I hope that she will feel able to convey to her colleagues in the Government the belief of many of us this fact cannot be ignored.
Baroness Ramsay of Cartvale: My Lords, I will indeed convey that message.
Lord Avebury: My Lords, is it not apparent that Mr. Holbrooke came away from Belgrade empty-handed? How many more last warnings are we going to give to Milosevic before we decide—as we should have done some time ago—that he has been a
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war criminal, he is continuing to be a war criminal and that, according to a statement made by the noble Baroness, he should be charged before the International Criminal Court for crimes against humanity?
Baroness Ramsay of Cartvale: My Lords, as I have indicated, the Foreign Secretary immediately contacted the prosecutor. The whole question of what is happening in Kosovo is being looked at now by the court.
As to the result of the Holbrooke mission, I have no knowledge of what that is. I do not think that anyone has at the moment, other than the people involved. There will be a meeting at Heathrow this evening of the contact group to hear from Mr. Holbrooke, who will be there, and he will report on the results of his mission.

Business
Baroness Trumpington: My Lords, may I ask the Chairman of Committees why the House was not informed of the extra step that has been put in in all the gangways? I am told that various noble Lords have been going down like ninepins. I have witnessed several near-misses. Could a white line be put on the bottom step until the House gets used to it?
Lord Carter: My Lords, this is not really a question for me except in so far as all Chief Whips are anxious that all your Lordships should be fit and well and not suffer any injury. I understand that this matter has been drawn to the attention of the House authorities and that they intend to deal with it.

Scotland Bill
3.44 p.m.
The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Sewel.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Schedule 6 [Devolution issues]:
Lord Sewel Lord Sewel moved Amendment No. 291GB:
Page 84, line 10, leave out from ("means") to ("whether") in line 11 and insert—
("() a question").
The noble Lord said: I beg to move Amendment No. 291GB. At the same time I shall speak to Amendments Nos. 291GC, 291GD, 291GE and 291GFA.
These amendments amend the definition of devolution issues in Schedule 6. They are important amendments but are essentially technical. First, I shall explain the general purpose of this schedule.
It is recognised that, from time to time, certain questions will arise for determination in judicial proceedings which are relevant to mapping out the boundaries of the devolution settlement. These issues are referred to as devolution issues.
Apart from enabling the Law Officers to institute judicial proceedings for the determination of devolution issues, including referring any such issue directly to the Judicial Committee of the Privy Council, the Bill does not make provision for the determination of these issues. However, where these issues arise in proceedings before any court or tribunal and between any parties, it is considered that there should be certain common procedures which apply, such as provisions giving the Law Officers an opportunity to intervene, provisions for the reference of the devolution issue to a higher court, including the Judicial Committee of the Privy Council and for appeal, ultimately, to that Judicial Committee. This is intended to minimise the risk of contradictory decisions and provide an ultimate common court of appeal upon devolution issues.
Paragraph 1 of Schedule 6 defines the devolution issues which are subject to these special procedures. As far as possible, they are confined to issues which raise vires questions which arise from the devolution settlement. Amendments Nos. 291GB to 291GFA amend the definition of those devolution issues, partly in consequence of the changes made at earlier stages in Committee to the description of legislative competence.
Lord Mackay of Drumadoon: I am grateful to the Minister for explaining the purposes of these amendments. I will read with care what he has said.
I wish to raise a few small points on the amendments which he may care to answer this afternoon or on which he may write to me before Report stage. In Amendment No. 291GC, in the third line, perhaps after the word "function" there may be value in including the words "within the competence" of the Scottish Ministers, the First Minister or the Lord Advocate. It may be said that that is implied, but it might be helpful to have that clarified.
I say that because, in addition to the functions set out in the Bill that are to be transferred to the members of the Scottish executive—who include all the Scottish ministers, the First Minister and the Lord Advocate—it will be competent, by way of a Clause 59 order, to add to these executive functions.
I should be grateful if the Minister could explicitly clarify that if any issue arose in relation to the competency of the exercise of the reserved functions of the Lord Advocate, that would be a devolution issue rather than a vires issue, which would be dealt with by the existing law under the judicial review procedure.
When one looks at the amended clause—which it will become once these amendments are agreed—it is important to be clear whether such questions of competence under Clause 59 functions or reserved functions fall within the definition now before us. As I am sure the noble Lord will appreciate, I am not asking these questions for academic reasons. Indeed, I am
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asking them for the very reasons he himself identified; namely, to seek to minimise the risks of an individual having to raise more than one action or indeed an individual raising one action with a number of issues in it, with some of them going down one judicial route to one Court of Appeal and others going down another judicial route to another Court of Appeal. They are complicated matters. I do not necessarily expect an answer this afternoon but I would welcome one before Report.
Lord Steel of Aikwood: Perhaps I may take this opportunity to say that, in my view, Schedule 6 was not properly examined in the other place. No doubt there will be a desire to examine it properly here. I do not propose to take up the time of the Committee, but I think it would be convenient if I gave notice that at Report stage, having consulted my- noble friends Lord Lester and Lord Goodhart, we intend to table an amendment to define properly the composition of the Judicial Committee of the Privy Council under the heading of a constitutional court. It is entirely unsatisfactory that the whole of this part of the Bill should be put on appeal to something that is amorphous and ill-defined. I believe that its composition ought to be made clear and there will be a later opportunity to do that.
Lord Wilberforce: I very much support what has just been said by the noble Lord, Lord Steel. I had very much the same point in mind. It is deplorable that when we came to Clause 32 there was no discussion whatever on the procedure of reference to the Privy Council. On this part, again no amendment has been put down. Unfortunately, my noble and learned friends from Scotland are not here today and it is hardly for me, with very tenuous though precious connections with Scotland, to raise this point. I shall look forward very much to what the noble Lord has to say at the Report stage, particularly as regards the composition of this body, which at the moment is totally amorphous and totally undefined and yet is to be put in the position of giving decisions which are binding on the supreme constitutional court of the United Kingdom; namely, the House of Lords. The point does not quite arise on the amendment of the noble and learned Lord, Lord Mackay, but, the noble Lord having raised it, I hope I may be forgiven for having added my voice to his.
Lord Hope of Craighead: Without taking up time, on behalf of the Scottish judges who are absent, perhaps I may endorse what the noble and learned Lord has just said. I share much of these concerns. A particular point of concern is that the Scottish judiciary should be properly represented on the judicial committee. The position is quite simple at the present time, but this measure is intended to last well into the next century. We cannot be sure that the composition of the judicial committee as it is today will be the same in 30 years' time.
Lord Sewel: I thank the noble and learned Lord, Lord Mackay, for raising these questions. I shall take

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the opportunity to consider them and will certainly be writing to the noble and learned Lord with full and, I hope, appropriate and adequate answers.
On the points raised by the noble Lord, Lord Steel, and the noble and learned Lords, Lord Wilberforce and Lord Hope, I look forward to seeing the resolution that they propose. I am happy to enter into correspondence with them if they wish to write. On that basis, I hope that we can agree the amendments.
On Question, amendment agreed to.
Lord Sewel Lord Sewel moved Amendments Nos. 291GC to 291GE:
Page 84, line 14, leave out from beginning to ("whether") in line 21 and insert ("a question whether any function (being a function which any person has purported, or is proposing, to exercise) is a function of the Scottish Ministers, the First Minister or the Lord Advocate,
() a question whether the purported or proposed exercise of a function by a member of the Scottish Executive is, or would be, within devolved competence,
() a question").
Page 84, line 21, leave out from ("function") to ("by") in line 22.
Page 84, line 25, at beginning insert ("a question").
On Question, amendments agreed to.
[Amendment No. 291GF had been withdrawn from the Marshalled List.]
Lord Sewel Lord Sewel moved Amendment No. 291GFA:
Page 84, leave out lines 27 to 29 and insert—
("() any other question about whether a function is exercisable within devolved competence or in or as regards Scotland and any other question arising by virtue of this Act about reserved matters.").
On Question, amendment agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 291GG:
Page 84, line 29, at end insert (", or
() whether the standing orders of the Parliament comply with the provisions of this Act").
The noble and learned Lord said: Before I deal with this amendment, perhaps I may make one observation in response to the point raised by the noble Lord, Lord Steel, and others. Ministers have been very helpful in making available to your Lordships copies of draft orders dealing with various aspects of the devolution settlement. A Section 59 order is an example of that. If there is in existence a draft order or a draft Order in Council of the procedures which are intended to apply to supplement the provisions in Schedule 6 for the references of devolution issues from the courts up to the judicial committee, it would certainly be of assistance if that could be available when we return to discuss these matters at a later stage.
In this series of amendments I seek to identify a number of issues which I believe should be devolution issues. Some of them are matters which I have raised on more than one occasion during the debates in Committee so far. I refer in particular to what was said on the second day of Committee on 14th July (at cols. 248 and 249 òf the Official Report), on the third day of
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Committee on 16th July (at cols. 247 to 251 of the Official Report) and on the seventh day of Committee on 28th July (at col. 1391 of the Official Report). I do not offer any major criticism as I appreciate that the matters are very complicated, but on some of the issues that were raised promises were made of an answer or a letter. Such promises remain unfulfilled.
I should be grateful if the Minister who is to reply could make clear the Government's policy on a number of the issues that I have set out in this series of amendments as devolution issues. First, is it intended that the courts should be able to deal with a challenge to the competency of the standing orders of the Scottish parliament based on the argument that, as approved by the Scottish parliament, they fail to comply properly with the provisions of the Bill, and in particular with Clauses 21 and 22 and Schedule 3? Secondly, if such a challenge is to be competent, who would have the right to raise such a challenge—the title of interest, as we refer to it in the courts? Thirdly, is it intended that the vires of an Act of the Scottish parliament can be challenged on the basis that it has not been passed in accordance with standing orders that comply with the provisions of the Bill as it is finally enacted by Parliament? That matter is focused on in Amendment No. 291GH.
Is it intended that the vires of an Act of the Scottish parliament can be challenged on the basis that it has not been enacted in accordance with the standing orders of the parliament, as they have been adopted by the parliament, or that the particular standing order in question is one required for the parliament by the Scotland Act or one which it has chosen of its own volition to incorporate in its standing orders? That is focused on in Amendment No. 291GKB. Similar issues are focused on in Amendments Nos. 291 GJ and 291GK in relation to the vires of subordinate legislation made by members of the Scottish executive and, if appropriate, approved by a resolution of the Scottish parliament.
It seems to me that if the answer to any of these questions is yes—and I believe that in many instances, if not in all of them, that will be the answer—the next issue which arises is whether the Minister is satisfied that the terms of paragraph 1 of Schedule 6, as currently drafted in the light of the amendment which the noble and learned Lord, Lord Sewel, has just moved, covers each of the issues I have identified.
For the reasons I mentioned in speaking to the last group of amendments, I am extremely anxious to restrict the number of court actions that may have to be raised and also any confusion as to whether a particular legal issue is a devolution issue which falls to be dealt with according to the procedure set out in Schedule 6 or a vires issue which is a not a devolution issue, in which case different procedures might apply. Once again, I appreciate that these are technical matters in regard to which it may be inappropriate to expect a full answer this afternoon, but I hope that it will be possible to address them, by letter if necessary, in sufficient time to enable me to consider whether any further amendments will be required before we reach Report stage. I beg to move.
4 p.m.
Lord Renton: I wonder whether my noble and learned friend will make it clear—I may not have understood well enough what was said—that this group of amendments does not deal with vires at all. The group deals simply with the question of whether the various matters listed in these six amendments have been dealt with in accordance with the standing orders of the parliament which themselves have nothing to do with vires but only with procedure.
Lord Mackay of Drumadoon: I am grateful to my noble friend for his intervention. He is entirely correct as a matter of strict law. The problem is that in attacking the vires of the legislation various legal arguments will be deployed. It will fall to be assessed by the courts as to whether or not they give rise to devolution issues. The issue in itself may not be a question of vires but the issue that is being deployed as a legal argument may be part of a series of legal arguments attacking the vires of the legislation or attacking the vires of the subordinate legislation. That, as I understand it, is the approach set out in Schedule 6. One may take as an example paragraph 1(a), just amended, which states that "devolution issue" means a question,
"whether an Act of the Scottish Parliament … is within the legal competence of the Parliament".
Strictly speaking, deciding whether a legal argument along those lines is a devolution issue or not is not necessarily a question of vires. The legal argument is deployed as part of an attack on the vires of the legislation. That is, I understand, the approach which the Bill takes. No doubt the noble and learned Lord the Lord Advocate will be able to confirm whether or not I am correct.
The Lord Advocate (Lord Hardie): To deal with the point made by the noble and learned Lord at the outset, there are working drafts of the subordinate legislation and regulating procedure and these have been put in the Library and the Printed Paper Office. So they are available. However, I emphasise that they are still working drafts and work on them is continuing. The decision was taken to put them in the Library and the Printed Paper Office to enable noble Lords to consider them at this stage if they so wished.
The Government cannot accept these amendments, which seek to extend the range of matters which fall to be determined as devolution issues under the special provisions of Schedule 6. I take the point made by the noble Lord, Lord Renton, that these truly are not legal issues. I hope that the Committee will forgive me if I repeat what the purpose of Schedule 6 is. It is to define devolution issues which are to be subject to special judicial procedures. Devolution issues are essentially issues about the legislative competence of the parliament and the devolved executive competence of the Scottish executive.
The amendments would bring challenges to the procedures of the parliament within the scope of Schedule 6. It is our view that that cannot be right. Of course it is important that parliament does pass its legislation properly in accordance with properly drafted
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standing orders. However, that is not a matter for Schedule 6 or the Judicial Committee of the Privy Council but for the parliament itself. Indeed, I would venture to suggest that it would not be a productive use of the valuable time of the Judicial Committee of the Privy Council to deal with these issues. But nothing in Schedule 6 would prevent what I would describe as a normal challenge in terms of judicial review. For example, if one considered that a member of the Scottish executive had made subordinate legislation without following the proper procedures, that would be a matter for the ordinary judicial review, if I may put it that way, under the ordinary law. It is not a matter for the Schedule 6 procedure involving directly the Judicial Committee of the Privy Council.
If I may briefly refer to two of the examples raised by the noble and learned Lord, the first is this: could an Act of the Scottish parliament be challenged on the basis of the failure of the parliament to comply with the standing orders? The answer is no, and the reason is contained in Clause 27(5) which excludes a challenge. That is the purpose of the clause. The second question, which gives a different answer, is: could the courts deal with the competency of a standing order? The answer to that is yes, in terms of the judicial review procedure. As to title and interest, it is left to the courts to decide as to who properly has title and interest in any given case.
I hope those explanations will enable the noble and learned Lord to withdraw the amendment. If there are any particular issues that he wishes me to deal with further in writing, I shall be happy to do so.
Lord Renton: I thank the noble and learned Lord the Lord Advocate for his lucid explanation. However, may I make a suggestion? I think it would enable the sixth schedule and this part of it to be better understood if Clause 91, which is not at all explanatory, were to be amplified so as to set out the principle, in broad terms and fairly briefly, and to underline the way in which the sixth schedule is to be applied. Can that suggestion be considered between now and Report stage?
Lord Hope of Craighead: In my experience some of the challenges which are liable to be made will be made by people acting without legal advice. In the courts we often encounter the litigant in person, the party litigant, who will have to try to understand the schedule and appreciate the point which the noble and learned Lord has made.
It occurs to me that the litigant's target is going to be either the Act or the subordinate legislation. It may be quite difficult for him to appreciate that he may have to go to a different court in order to obtain an answer depending upon the way in which he develops his argument. As the noble and learned Lord, Lord Mackay of Drumadoon, pointed out, these arguments tend all to be gathered together as a means of securing the desired remedy, which is to get rid of the Act or the subordinate legislation.

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The point which is troublesome but inevitable, I imagine, is that the route will be different according to the nature of the attack. It is really in order to minimise the risk of confusion that I think there is great force in the point which has just been made.
Lord Steel of Aikwood: Before the noble and learned Lord replies, perhaps I may intervene. I may have misunderstood what he was saying. However, at one point I thought he was not keen to extend the list of those matters in which the courts might intervene, but it seems to me that that is precisely what his amendments would achieve if they were carried. In particular, if one looks at Amendment No. 291 GKA, to suggest that there could be some court involvement in establishing whether subordinate legislation which a member of the Scottish executive has purported to make has been made in accordance with the standing orders of the parliament seems to me to be going far too far.
I should have thought that if any member of the Scottish parliament attempted to make subordinate legislation outwith the standing orders of the parliament, the parliament itself would have something fairly severe to say on the matter. That is where the matter should rest.
It seems to me to be a continuation of what I said on Tuesday about the "twins Mackay" appearing to be very keen to find out always what the Scottish parliament might be doing and telling it to stop it. We should have greater trust in the procedures of the parliament.
Lord Mackay of Drumadoon: Yet again, I take the gentle chastisement of the noble Lord, Lord Steel. However, there are cases in the law reports where subordinate legislation made by Ministers of the United Kingdom Government has been successfully challenged because the correct procedure has not been followed, despite the wealth of experience of those Ministers, their officials and the very experienced and helpful Clerks of the two Houses of this Parliament.
Therefore, these amendments seek to establish answers, and I wish to be quite clear that I have the correct answers. If I have not, I should be extremely grateful to the noble and learned Lord the Lord Advocate if he will write to me about the matter.
As I understand the approach which is advanced, it will be for the Parliament to decide what are its standing orders. No challenge in the courts would be competent. Certainly if such a challenge were made, it would not be a devolution issue as to whether standing orders comply with the Act of Parliament, as it will become.
Secondly, I understand that the effect of Clause 27(5) is that the courts would not entertain a challenge to the vires of an Act of the Scottish parliament based upon a failure to follow standing orders because that would be acting in breach of the cryptic way in which it is put, which is of course the correct way; namely, that every Act of the Scottish parliament shall be judicially noticed.
Thirdly, I understand that it would be competent for somebody to challenge subordinate legislation but if he chose to do so and raised the legal issues which are
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identified in the three amendments—Amendments Nos. 291GJ, 291GK and 291GKA—those would not fall to be considered to be devolution issues. Therefore, those matters would be raised in judicial proceedings which could ultimately end in a hearing before the Appellate Committee of your Lordships' House.
I shall obviously reflect extremely carefully as to whether that is a sensible approach. But my initial reaction is that it is not, because it is perfectly possible to imagine a situation in which somebody adversely affected by subordinate legislation—for example, the Scottish equivalent to the beef on the bone regulations—seeks to challenge the vires of the regulations on a variety of grounds. Some of them may well be devolution issues and some may not be. That is a matter of some practical concern which reinforces the value of examining the issues mentioned by the noble and learned Lords, Lord Wilberforce and Hope, earlier this afternoon.
I hope that I have followed the matter correctly. I am grateful to the noble and learned Lord for explaining the matter to the Committee. My very helpful friend Lord Mackay of Ardbrecknish has been to the PPO and has now furnished me—
4.15 p.m.
Lord Hardie: Before the noble and learned Lord withdraws his amendment, perhaps I should just deal with the points raised by the noble Lord, Lord Renton, and the noble and learned Lord, Lord Hope. I shall consider between now and Report any way in which to make the position clearer and I take on board the concerns of the noble Lord, Lord Renton.
As regards the point raised by the noble and learned Lord, Lord Hope, I understand that the ultimate destination of cases may alter according to the nature of the issue. But initially, a party litigant would raise his proceedings in a Scottish court, either in Scottish proceedings or separately in a Scottish court. The court would then decide whether it was a devolution issue. The ultimate destination of that case, if it were a devolution issue, would be the Judicial Committee of the Privy Council whereas, if it were not, it would be a matter for the Appellate Committee of your Lordships' House.
Lord Mackay of Drumadoon: As I was saying, I am now furnished with the copies of the drafts of a variety of rules and Acts of sederunt which may helpfully inform not only myself but others at later stages of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments No. 291GH to 291GKB not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 291GL:
Page 84, line 42, at end insert—
("() The Lord Advocate may defend on behalf of the Scottish Executive any such proceedings instituted against a member of the Scottish Executive.").
The noble and learned Lord said: This amendment and the other amendments grouped with it are merely drafting amendments which seek to expand on the provisions of paragraph 4(2) of Schedule 6. That provides that the Lord Advocate may defend any proceedings for the determination of a devolution issue instituted by the Advocate General. But, curiously, there is no corresponding provision dealing with the Advocate General's position at that stage. They may be purely technical drafting points but it seems to me to be curious that a provision is made for defending some proceedings but not for others. That is the sole purpose of these small drafting amendments. I beg to move.
Lord Renton: I find some difficulty about this because on page 84 the Bill states that:
"The Lord Advocate may defend any such proceedings instituted by the Advocate General".
My noble friend's Amendment No. 291GL makes it clear that the Advocate General may be acting on behalf of a Minister of the Crown. The Lord Advocate is a Minister of the Crown, is he not? He is at the moment. Is he to have a dual personality?
Lord Mackay of Drumadoon: I am happy to say that any future Lord Advocate must confine himself to having one personality. At some date between now and the Scottish parliament becoming operational, the Lord Advocate will cease to be a Minister of the Crown and will become a member of the Scottish executive even though he is exactly the same person one day as he is the next. Although he will be the public prosecutor in Scotland and will have full membership of the Scottish executive, he will cease to be a Minister of the Crown and, as such, will cease to be answerable to this Parliament in respect of any of his functions, even though he remains a member of the parliament.
Lord Renton: I am grateful to my noble and learned friend for that explanation. I must apologise to the Committee for not refreshing my memory, which has been tarnished since we first considered this matter in the summer.
Lord Hardie: These amendments are thought to be unnecessary. Paragraphs 4, 15 and 25 of Schedule 6 are primarily intended to ensure that the relevant Law Officers have title and interest to institute proceedings for the determination of a devolution issue. Without such a provision, there could be considerable doubt whether the Lord Advocate would have sufficient title and interest to bring proceedings.
There is no similar doubt in the case of those against whom the proceedings may be brought. The persons against whom proceedings are brought will depend on the facts and circumstances of each case. Where, for example, the Advocate General raises proceedings against Scottish ministers, it will be possible for such proceedings to be raised against them in their own name or for the Lord Advocate to represent them in accordance with the Crown Suits (Scotland) Act 1856
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as amended by Paragraph 2 in Schedule 7. The position is exactly the same as with the Secretary of State for Scotland at present.
How Ministers of the Crown or government departments in the United Kingdom are sued is a matter which is determined primarily by Section 17 of the Crown Proceedings Act 1947.
As can be seen, it is unnecessary to have any special provision as to how a member of the Scottish executive or a Minister of the Crown may be sued. That is why it is stated in Paragraphs 4, 15 and 25. Each of those paragraphs is without prejudice to any power to institute or defend proceedings exercisable by any other person. The provisions do not therefore cut across any other arrangements for initiating or defending actions on behalf of the Scottish executive or UK Government.
Lord Mackay of Drumadoon: I am sure that the explanation of the noble and learned Lord the Lord Advocate will be more than sufficient clarification if any doubt arises in the future. On that basis I withdraw Amendment No. 291GL and I shall not be moving the subsequent amendments in the group.
Amendment, by leave, withdrawn.
[Amendment No. 219GM not moved.]
Lord Hardie Lord Hardie moved Amendment No. 291GMA:
Page 85, line 2, leave out from beginning to ("intimation").
The noble and learned Lord said: In moving Amendment No. 291GMA, I shall speak also to Amendment No. 291GMB. These amendments are technical amendments to provide flexibility. They simply require intimation of a devolution issue to be given to the Advocate General and to the Lord Advocate without the restriction that this should be done in pursuance of a court order; for example, the relevant intimation could be given by a party under the rules of court. I beg to move.
Lord Mackay of Drumadoon: Perhaps I may ask the noble and learned Lord to clarify one matter. Would this amendment, which I did not initially understand, although I now see the force of it, still have in mind the policy that the intimation should be given by a party and not by the court or tribunal itself?
Lord Hardie: Yes, that would be the position. It may be under an order of the court.
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendment No. 291GMB:
Page 85, line 3, leave out ("it to") and insert ("a court or tribunal shall").
On Question, amendment agreed to.
[Amendments Nos. 291GN to 291GR not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 291H:
Page 88, line 3, leave out ("require") and insert ("request").
The noble and learned Lord said: This short amendment raises the issue of whether any party to legal proceedings should be entitled as a matter of right to require a court or tribunal to do a particular thing and to follow a particular course of action. This arises in paragraph 33 of the schedule which provides that one of the four law officers mentioned,
"may require any court or tribunal to refer to the Judicial Committee any devolution issue which has arisen in proceedings before it to which he is a party".
It seems to me that two issues arise: first, whether any party, even as important a party as a Lord Advocate, should have the right to require a court to act in such a manner; and, secondly, if the law officer is a party to the proceedings with other parties, whether it complies with convention rights to give him a right to require the court to act in a particular manner which the other party or parties to the litigation would not have? There would seem to be an element of discrimination which would be eliminated if the Bill was amended in the way I propose. That presumably would give every party the right to request the court or tribunal to refer to the Judicial Committee. In practical terms that may be quite important. matter. If devolution issues are raised in comparatively small proceedings—and by that I mean proceedings of small monetary value in the lower courts—the last thing on earth the lay parties may want is to become involved in proceedings in front of the Judicial Committee where the costs involved might be out of proportion to the specific sum of money at stake. I beg to move.
Lord Hardie: The noble and learned Lord has properly pointed out the effect of substituting a request for a requirement in the sense that the appropriate law officer—not just the Lord Advocate but the Advocate General or the Attorney General for Northern Ireland—could only request a court to refer a matter where a devolution issue had arisen.
We feel that there should be the power to require an inferior court to refer such an issue to the Judicial Committee. No doubt a court or tribunal would pay careful heed to a request by any law officer, whether it was the Lord Advocate or one of the others. But the provision in the Bill puts beyond doubt that a devolution issue must be referred to the Judicial Committee of the Privy Council if a law officer requires it. This is to provide a fast-track procedure to ensure that a devolution issue will be referred to the Judicial Committee where a law officer considers that it is important to do so. The present position is clearly desirable to ensure, among other things, consistency of decisions. It is possible that in different courts throughout Scotland, and perhaps even in England, a similar issue will be considered by different inferior courts. If that were known to the law officer, it would be inappropriate to end up with the possibility of having umpteen different decisions.
In that situation it is clearly important to obtain an authoritative ruling. The law officers would wish to refer the matter to the Judicial Committee. If the option
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was left to the inferior court of saying no, there would be undue delay in resolving what might be an important issue. With that explanation I hope that the noble and learned Lord will withdraw the amendment.
Lord Mackay of Drumadoon: I shall reflect on what the noble and learned Lord said. In particular it would be helpful to consider his reply in the light of the documents which have now come to hand. The expense involved is a matter to which we shall return shortly. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 291J:
Page 88, line 5, at end insert—
("33A. Where a court or tribunal refers a devolution issue for determination in terms of paragraph 33 above, the person making the request for such a reference shall pay all legal expenses of any parties that subsequently take part in any proceedings before the Judicial Committee for the determination of the judicial issue referred.").
The noble and learned Lord said: I do not intend to move or speak to Amendment No. 291K. I shall confine my remarks to this one amendment. It concerns the additional legal expenses which will be incurred by other parties if one of the Law Officers mentioned in paragraph 33, which we have just been discussing, exercises his right to require a court to refer a devolution issue directly to the Judicial Committee.
As I indicated, the other parties to the proceedings may be perfectly content to have the dispute resolved by the lower courts even if a devolution issue is involved. They may agree that there are two sides to the argument and they want an independent adjudication upon it. Whether that comes from the sheriff court or the Lord Ordinary in the Court of Session, they would be quite content with that and would not wish to become involved in a paragraph 33 reference. In so far as such a reference would take place during the course of the proceedings which might then go back to the sheriff court or the Court of Session, they would really have little alternative but to remain involved and the question of additional expense would undoubtedly occur.
Paragraph 36 of Schedule 6 deals with the question of expenses. I am not entirely clear that it would have application in a situation where, against their will, the lay parties to proceedings were taken to the Judicial Committee under paragraph 33. In such circumstances if, for the reasons fully explained by the noble and learned Lord the Lord Advocate, in the public interest or a specific law officer felt that it was important that the devolution issue be resolved at Judicial Committee level because of its ramifications, whether throughout Scotland or the United Kingdom, in order to avoid any dangers arising from conflicting decisions by lower courts—possibly in different legal jurisdictions altogether—it is equitable that the other party should be entitled to cover any additional expense, taxed of course by the taxing master or the auditor of the court. I beg to move.
4.30 p.m.
Lord Hardie: I fully understand and sympathise with the thinking behind Amendment No. 291J. Despite that, I am not able to accept it, for this reason. Traditionally expenses are left to the discretion of the court, including the Judicial Committee of the Privy Council. The court will take into account the question of whether or not it is a test case. In your Lordships' House it is not unusual for such situations to arise when, even in cases where the Government are successful, the Government bear the expenses of the case or certainly the unsuccessful party does not have to pay.
We can trust the courts on this matter and I invite the noble and learned Lord to withdraw the amendment, leaving the issue of expenses to the discretion of the court. Clearly, if the court was of the view that a party had become embroiled in an issue of this sort which was not of their own making, that would be another factor as to who paid the costs. If it was a spurious matter as to whether the party was to blame for the devolution issue being raised in the first place, the Judicial Committee may wish to provide a sanction on expenses.
Baroness Carnegy of Lour: While the noble and learned Lord the Lord Advocate was speaking, I was thinking of the parties who might get trapped in this situation and was trying to follow the argument. Can he say whether the parties would know in advance whether or not their expenses would be paid? If not, it would not fulfil its purpose. People may be put off going to court if there is any doubt. Perhaps the noble and learned Lord should look at the previous amendment and consider whether or not there is virtue in looking at the system to make sure that that does not happen.
Lord Hardie: It is not the intention of the Government or the Bill to put anyone off raising issues which are clearly devolution issues. The short answer to the question raised by the noble Baroness, Lady Carnegy, is that one can never be certain in advance that the expenses will be met, unless an undertaking is given.
It may be, if the Lord Advocate or Advocate General of the day feels that it is an issue which should be aired and he accepts that it is not appropriate for the party to bear the cost, at that point the law officer may well say, "I am anxious to have this matter tested and we will of course meet the whole expenses of the case". However, there will be other cases where a devolution issue arises because of an action which has been raised by a party and which, even in the course of the litigation, may be raised by the party himself or herself as a side issue which then comes into focus. In that situation it may well be that the party has taken on the cost of the litigation and the risk associated with all litigation. This is therefore a matter which ought to be left, as it has been for centuries, to the discretion of the tribunal court hearing the case.
Lord Mackay of Drumadoon: While sitting listening to the noble and learned Lord's explanation of the Government's position which, I am sure he will appreciate, comes as no surprise—he would not wish to burden his successors in office and the other law officers with a huge volume of expense—it struck me that there
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may be scope for amending paragraph 36. That might give encouragement to the Judicial Committee to look favourably at a party who ended up being brought to that committee under a paragraph 33 reference. It may be helpful therefore if I give notice that I anticipate tabling an amendment to that effect at Report stage. However, in the light of what the noble and learned Lord said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 291K not moved.]
Schedule 6, as amended, agreed to.
Clause 92 [Legislative powers to remedy ultra vires acts]:
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 291KA:
Page 43, leave out lines 35 and 36 and insert—
("(a) an Act of the Scottish Parliament or any provision of an Act of the Scottish Parliament which is not, or may not he. within the legislative competence of the Parliament, or").
The noble Baroness said: Before turning to the detail of government Amendment No. 291 KA, perhaps it would be helpful if I explained why the Government consider the provisions in clause 92 are necessary.
Clause 92 enables provision to be made by subordinate legislation consequential upon any ultra vires provision of an Act of the Scottish parliament or an ultra vires exercise of a function by a member of the Scottish executive. The power to make subordinate legislation is exercisable by Her Majesty by an Order in Council or by a Minister in the UK Government.
Clause 92 provides a means by which problems resulting from ultra vires provision of Acts of the Scottish parliament or actions of a member of the Scottish executive may be quickly remedied. It allows subordinate legislation to make such provision as is considered necessary or expedient to correct the problem. The subordinate legislation which does this may be retrospective in effect and it may amend any enactment including an Act of the Scottish parliament or secondary legislation under the parliament's authority. However, a determination by the courts that a provision or action is ultra vires is not a prerequisite for the use of this power. It could be used to remedy a defect or a suspected defect before judicial proceedings were commenced thereby avoiding the necessity for them.
This clause envisages that there may be a need to sort out the consequences of ultra vires legislation quickly. Usually the Act or subordinate legislation would be referred back to the Scottish parliament to reconsider. However, there will be circumstances where it would be outwith the legislative competence of the Scottish parliament to legislate to pass any necessary consequential provision. That would have to be done by the UK Parliament and in some cases it may be very desirable that it can be done quickly. Clause 92 makes express provision for that.
I turn now to the detail of government Amendment No. 291 KA. This makes it clear that the UK Government can make subordinate legislation under Clause 92 in consequence of an Act or any provision of an Act not being within the legislative competence of the parliament.

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It also, however, removes from the scope of Clause 92 power to remedy ultra vires provision made by persons other than the members of the Scottish executive under an Act of the Scottish parliament. The power is intended to deal with the consequences of the parliament or the executive acting outwith their powers. Remedying the consequences of ultra vires actions by other persons acting under an ASP will be a matter for the parliament itself. I beg to move.
Lord Fraser of Carmyllie: I am grateful to the noble Baroness for her explanation. She may recall from an earlier stage that one of the issues in this Bill that interests me is how, when the Scottish parliament passes an Act, it achieves any legislative effect in England, Wales or Northern Ireland.
At the present time, if a Scottish Bill is passed within this Parliament, it is almost invariably the case that at least one or two clauses within that Bill will allow certain provisions of it, although primarily for application in Scotland, to extend into England. It has always seemed to me to be a problem that we ought to confront and try to resolve. It would be absurd if in some key social or criminal activities the Scottish parliament, with a proper, clear purpose, sought to resolve that issue in Scotland but found that it had no prospect of applying such provisions somewhere as close as Carlisle or Newcastle and found that much of the efficacy of what it sought to achieve was thereby limited.
As I understand this provision, it is intended for the circumstance in which the Scottish parliament, unintentionally or erroneously, goes further than it should in terms of its legislative competence and acts, accordingly, ultra vires. I wondered whether the provision might conveniently be used as a device, so that, when the Scottish parliament wanted part of an Act to be extended to England, a simpler route than taking primary legislation through the Westminster Parliament, could be achieved by secondary legislation. It strikes me as an intriguing possibility. Although I do not expect the noble Baroness to provide a complete answer now, I hope that before we come to the next stage the Government may reflect on that.
Baroness Ramsay of Cartvale: I can give a partial answer. An Act of the Scottish parliament can make provisions only in Scots law. Clause 95 could be used by the UK Government to apply a provision to English law. As regards the rest of the question, I shall accept the noble and learned Lord's request to write to him.
Lord Mackay of Drumadoon: I am grateful to the noble Baroness for explaining the approach that the colonial governor might seek to take if, for whatever reason, he or she is of the view that an Act of the Scottish parliament is ultra vires or might be ultra vires or if a purported exercise by a member of the Scottish executive is (or may not be) a proper exercise of a function.
I have great difficulty with that order-making power being one which does not require the affirmative resolution procedure. A subsequent amendment was designed to address that issue but has been pre-empted by the rewriting of the provisions dealing with subordinate
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legislation. We shall have to address that again on Report. I fully understand the reasoning, but I remain somewhat apprehensive about how that will work in practice.
Unlike my noble and learned friend Lord Fraser of Carmyllie, who may be of the opinion that the provision would be used only when the Scottish parliament or Scottish executive unintentionally traversed the borders of competence, I am concerned that that will be done intentionally at some stage in the future to test the legislation and the will of the United Kingdom Government, for whatever reason. That is where I am at one with the noble Lord, Lord Steel of Aikwood, who I am sorry to see is not in his place. These matters are political issues which should be resolved by politicians and not by orders which may have to be construed and ultimately enforced by courts of law. At this stage, I do not oppose Amendment No. 291KA.
On Question, amendment agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 291L:
Page 43, line 39, at end insert—
("(2) No person shall he guilty of an offence solely as a result of the retrospective effect of subordinate legislation made under subsection (1) above.").
The noble and learned Lord said: This amendment seeks to achieve the simple purpose that if, for whatever reason, the order-making power provided for in Clause 92 is used, under no circumstance can it be used to create a criminal offence with retrospective effect. It would be inequitable to leave open that possibility and this amendment is designed to stop that. I beg to move.
4.45 p.m.
Lord Hardie: Again, I agree entirely with the sentiment behind the amendment. In our submission, it is not necessary. Any order under this Bill will have to comply with the Human Rights Bill, which by then will be enacted. Article 7(1) of the convention, which will be incorporated into domestic law by then, prohibits that precise situation. No one can be held guilty of a criminal offence on account of an act or omission which did not constitute a criminal offence under national or international law when it was committed. That is the simple answer. With that explanation, I invite the noble and learned Lord to withdraw the amendment.
Lord Mackay of Drumadoon: I am grateful for that explanation, which I assume would, on the basis of an undertaking by the noble and learned Lord, cover the situation which may arise in the period between the coming into force of this Bill and the Human Rights Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 291M not moved.]
Clause 92, as amended, agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 291MA:
After Clause 92, insert the following new clause—
COURTS TO TAKE ACCOUNT OF DECISIONS THAT ACTS ULTRA VIRES: CRIMINAL CASES
(" .(1) This section applies where in criminal proceedings a court decides that—

(a) an Act of the Scottish Parliament or any provision of such an Act is not within the legislative competence of the Parliament, or

(b) a member of the Scottish Executive does not have the power to make, confirm or approve a provision of subordinate legislation that he has purported to make, confirm or approve.

(2) When a court reaches any decision to which this section applies, it, and any inferior court bound by its decision, shall take account of and act upon any such decision in the conduct of the criminal proceedings in which the decision was made.").
The noble and learned Lord said: This amendment and Amendment No. 291MB raise important issues about what will happen in criminal proceedings throughout the United Kingdom, but primarily in Scotland, if it is argued before a court, and the court reaches the view, that an Act of the Scottish parliament or any provision of such an Act was outwith the legislative competence of the parliament, or that a member of the Scottish executive did not have the power to make, confirm or approve a provision of subordinate legislation that he had purported to make, confirm or approve.
As drafted, Clause 93 seeks to specify certain powers that a court or tribunal would have if it reached such a view. At this juncture, we are dealing with criminal courts. In criminal cases, that might arise in one of two situations. I refer first to cases where the alleged illegality of the primary legislation and of the subordinate legislation—the alleged lack of competence—justified the mounting of a challenge to the competency of the charge which the particular accused was required to face in criminal proceedings. He might be charged with contravening a section of an Act of the Scottish parliament. His initial line of defence, which in all probability would be raised at the preliminary stage of any proceedings before any trial commenced, would be that the Scottish parliament did not have the competence to make such legislation and to create such an offence, and for that reason he could not be prosecuted for it and convicted.
The second general area where such an issue might arise relates to the admissibility of evidence. That might arise in one of two ways. An accused may be able to argue that the statutory procedures under which the evidence had been recovered, whether by way of some search or seizure, was outwith the competence of the parliament or the executive because the procedure constituted a breach of convention rights and was therefore outwith the competence. Alternatively, he may be able to argue that the new rules of evidence that the Scottish parliament required the courts to follow again amounted to breaches of convention rights and therefore the charge should not have been laid or the evidence admitted. Technically speaking, that could arise in
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proceedings in other parts of the UK but, in all probability, this particular matter is one which we can confine to Scotland.
As presently drafted, Clause 93 would provide that if a criminal court reached such a view that the charge was incompetent for the reason that the legislation should not have been enacted or that the evidence had been recovered or was about to be admitted by rules of evidence, which were equally in breach of convention rights and, for that reason, ultra vires, it would, nevertheless, have options open to it within its discretion. The first of those options is contained in subsection (2)(a); namely, that it could remove or limit,
"any retrospective effect of the decision"
on competency. In other words, the court will say, "I am perfectly satisfied that, on the date you committed the offence, the parliament did not have power to create such an offence or in some way limit any retrospective effect of the decision". It is inconceivable that a court would ever make such an order but, ex facie of the legislation, that appears to be possible. Similarly, under subsection (2)(b), the court could in some way suspend the effect of its decision on the legal question involved for a period,
"to allow the defect to be corrected",
presumably by the Scottish parliament or the Scottish executive remaking the offending subordinate legislation.
It seems to me to be unsatisfactory to admit the possibility of that occurring. I suggest that the approach should be as follows. If the court in criminal proceedings is satisfied that some provision of the legislation coming out of the Scottish parliament or made by the Scottish executive was indeed ultra vires at the date it was made, it should apply that decision there and then. To do otherwise would run the risk of an almost inevitable breach of convention rights as set out in the European Convention on Human Rights.
I very much hope the Government will be prepared to look again at how this particular clause will apply in criminal proceedings. Of course, it would apply not only to subordinate legislation made by the Scottish executive in terms of the executive powers devolved to it in the Bill; it could also apply theoretically to the executive competence to be devolved by way of a Section 59 order. Again, it would be helpful if that matter could also be considered. We wish to minimise as far as possible any unnecessary concerns or litigation arising from the provisions of the Bill or the role that the courts will have to play after devolution. As a first step, it seems to me that looking at criminal proceedings separately would be a valuable way to proceed. I beg to move.
Lord Hardie: Again, I can understand the reasoning behind the amendment and, indeed, have sympathy for the noble and learned Lord's views. However, as the amendment stands, it would require the court to give effect to its decision on the competence of an Act of the Scottish parliament or the making of subordinate legislation and bind the inferior court to that decision in the particular case in which the decision was made. As

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the noble and learned Lord pointed out, the court could not suspend the effect of its decision, or take any other steps which are available, in terms of the clause as drafted.
Therefore, the amendment would limit the court's discretion in exercising the power conferred by the Bill in relation to a particular criminal case and would leave the court with a restricted power as to what it could do. I understand that the noble and learned Lord's point is that different considerations ought to apply in criminal cases. However, the Government believe that it is important that courts should have the power to suspend the effect of the decision to give a chance for the defect to be remedied.
I entirely agree with the point raised by the noble and learned Lord towards the end of his argument; namely, that it is almost inevitable in the situation he was considering for there to be a breach of human rights. If that is the case, the court would not take any steps to suspend the legislation or to delay it. Indeed, in the almost inevitable case, it would be a clear breach of human rights legislation. That would be a good reason for the Court of Appeal to quash any ultimate conviction.
Of course, there may be an exceptional case but it is difficult to imagine what it might be. Nevertheless, there may well be exceptional cases where it is appropriate for the court to say, "Well, there is a defect here but it is a fairly technical matter. It is in the interests of justice that the opportunity be given to remedy it". It is that very exceptional situation that the clause is intended to address. Clearly the clause is mainly directed toward civil cases where people have acted upon certain legislation to their prejudice, and so on.
Lord Mackay of Drumadoon: I am looking hopefully in the direction of the noble and learned Lord, Lord Hope, to see whether he has anything to say. Indeed, I am happy to see him rise to speak.
Lord Hope of Craighead: With the greatest respect, I gained the impression that the noble and learned Lord the Lord Advocate was perhaps addressing two amendments and not one, although I may have misunderstood him. There are two issues involved. The first is a criminal point which has been addressed. For my part, I can see that there would be some value in the court having a discretion. One cannot foresee the niceties that may arise in some of these issues. I would rather rely on the discretion of the court, informed of course by human rights case law, rather than tie the court down as proposed in the amendment.
As regards the other matter, which has not perhaps been addressed—namely, the matter of deferring the effect of an order for a period of time—that is something which I thought the court in civil proceedings would be able to do within its existing jurisdiction. I know that the German constitutional court adopts that approach when such issues come before it. I have no doubt that the courts in this country would wish to follow that
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example. However, that is anticipating an amendment which I believe the noble and learned Lord will move shortly.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord, Lord Hope, for his contribution, and indeed to the noble and learned Lord the Lord Advocate for his response. I have to say that I remain slightly concerned because, after consideration of what I said, as well as hearing in mind the remarks of the noble and learned Lord, Lord Hope, and the response of the Minister, it seems to me that none of us can find an example in which it would be appropriate in the context of a criminal case for a judge to make either an order suspending "retrospective effect" or in some way to stay or interrupt the proceedings to allow new legislation to be made or enacted.
While the noble and learned Lord, Lord Hope, is quite correct to say that one can never anticipate what will happen in the future, that argument can, to some extent, be deployed both ways. Nevertheless, I shall certainly reflect on what the Minister said. Having reconsidered the matter, I suspect that I will raise it again on Report. However, at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5 p.m.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 291P:
Page 44, line 1, leave out subsection (2) and insert—
("(2) The court or tribunal may, if it has decided that an Act of the Scottish Parliament or any provision of such an Act is not within the legislative competence of the Parliament, suspend acting upon or giving effect to any such decision for such period not exceeding six months, and on such conditions, as to allow the Scottish Executive and the Secretary of State to take such action as they deem appropriate.").
The noble and learned Lord said: In moving Amendment No. 291P I wish to speak also to Amendments Nos. 291Q, 291R and 291S. These amendments address the application of the provisions of Clause 93 in civil proceedings. They seek to limit the scope of the discretionary powers the courts are to be given when they reach the view that either the Scottish parliament or the Scottish executive has legislated beyond their competence.
As I have already indicated, for the first time the courts are to be given power to quash legislation which in the eyes of the general public is primary legislation in the sense that the layman in Scotland who is bound by the law, and bound by the law as it applies in civil proceedings, will treat legislation which has come out of this Parliament in exactly the same way as legislation which has been passed by the politicians elected to the Scottish parliament. It is important to bear in mind that this power which has been given to the courts will cover subordinate legislation made under powers which may arise under a Section 59 order.
It is quite clear to those of us who have from time to time had to consider this matter, whether as lawyers in practice or judges, that this is an extremely complex area of the law which at the present time has to he applied

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only when considering the vires of subordinate legislation made by the United Kingdom Parliament. As recently as April of this year, in an appeal which came to the Appellate Committee of this Chamber in the case of Boddington v. British Transport Police, the noble and learned Lords who constituted the committee which heard that appeal and delivered their opinions on 2nd April, had slightly differing views as to the state of the law. I shall not trouble the Committee with a detailed exposition of those views, but the noble and learned Lord the Lord Chancellor said,
"Subordinate legislation … is sometimes said to be presumed lawful until it has been pronounced to be unlawful. This does not, however, entail that such legislation or act is valid until quashed prospectively. That would be a conclusion inconsistent with the authorities to which I have referred".
His clear view on the issue was—as sometimes happens in cases before the Appellate Committee of your Lordships' House—disagreed with by other noble and learned Lords, in particular the noble and learned Lords, Lord Browne-Wilkinson, and Lord Slynn of Hadley. I think it is fair to say that the law is in a state of some complexity and—if I may use this word as quietly as possible—there is dispute between Members of this Chamber who sit as Lords of Appeal in Ordinary and the noble and learned Lord the Lord Chancellor as to what is the state of the law.
As the noble and learned Lord, Lord Hope, has just observed, irrespective of what is set out in this Bill, the courts will have their existing powers to deal with issues that come before them. The existing law, whatever it is, will apply to Acts of the Scottish parliament unless it is explicitly amended by this Bill, and will apply equally to subordinate legislation unless the existing law is amended by the Bill. As I stressed earlier, it is important to bear in mind that in reviewing such subordinate legislation issues of vires will not be confined to the devolution issues as they are set out in Schedule 6.
I have a number of practical difficulties with the approach favoured by Clause 93, as regards deciding whether or not to make an order removing or limiting any retrospective effect, or an order suspending the effect of the decision to allow corrective action to be taken. How is the court to have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected? Is it intended that the courts should allow such persons to become parties to the proceedings, because if they did they and indeed the Lord Advocate or any other Minister or Law Officer who became convened to the proceedings at that stage would not, as I understand it, be entitled to go back to the beginning and re-argue the decision which had already been reached that the particular provision was ultra vires? That would be taken as read and one would move on to the next stage, the discretionary stage of whether or not to make such an order. There is the practical issue of what role the Law Officers will play. Will they represent the public interest or the interests of the executive body concerned, whether it be the Scottish executive or the British Government?
Most importantly of all, is it not an inevitable consequence of giving such discretionary powers to the courts that they will be drawn into possibly highly
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political decisions which will inevitably bring them much more into the public eye and into the mind of the media than many of them would wish, and indeed many politicians or members of the public would wish? The issue of whether in this situation a decision should have retrospective effect could be a highly political one in which the economic interests of one body may have to be balanced against the economic or possibly environmental interests of another. I firmly believe that these are decisions for politicians and not for the courts.
That is the practical concern I have. One approach, of course, is just to get rid of the clause altogether. In 1978 a similar amendment was moved in a Committee stage on 10th May 1978. I now refer to a name which will be familiar to the Committee from our discussions earlier this week. No less a person than the noble and learned Lord, Lord McCluskey, replied for the government on that occasion. He made it quite clear that the government's view then was that it would be highly dangerous to put anything on the face of the Bill to deal with the practical situation with which this clause is concerned. The noble and learned Lord said,
"So far as civil cases are concerned, we believe it would be highly dangerous to depart from the well-known and well settled rules which I have outlined above. It would really be quite impossible to work out all the permutations that might result if one attempted to deal with all the various inequities which would be thrown up by an attempt to restore to his previous position everyone who had acted on the faith of a valid Scottish Assembly Act. Noble Lords may well consider that the present law achieves a broadly equitable result and that it would be dangerous to meddle with it".—[Official Report, 10/5/78; col. 1124.]
That is one approach which could be achieved by opposing that the clause stand part of the Bill.
The other approach, which is the approach taken in this series of amendments, is to seek to restrict the scope of the discretionary powers to be given to the court. That is what Amendment No. 291P seeks to achieve. It restricts the options to the one option of deferring for a period of six months. That deletes the provisions of the existing subsection (3) and sets out an alternative form in Amendments Nos. 291R and 29IS as to what interests the courts should have regard to. It excludes in particular the interests of sections of the general public who could clearly argue a case, whether or not they entered into legal proceedings, that their interests would be adversely affected if the court proceeded to make an order one way or another. Again I seek to restrict to the bare necessity the extent to which the courts have a role to play. I believe that that is sensible for the future of Scotland. I fully accept that they have to have a role but suggest that it ought to be limited as far as possible.
To return to my comments in reference to the Boddington case, clearly the law is in a state of some uncertainty in this situation. It would be wrong to try to sort that out by means of legislative provisions which address only part of the problem—which may be what has been happening inadvertently in the existing Clause 93. Not for the first time, and I hope not for the last, there is force in the comments made by the noble and learned Lord, Lord McCluskey; namely, that it

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might be positively dangerous to meddle with or alter the law in this restrictive manner. At this stage, therefore, I beg to move Amendment No. 291 P.
Baroness Carnegy of Lour: This is clearly one of the complicated mechanisms by which the Government have been obliged to try to develop a workable relationship between the Scots parliament and the Westminster Parliament and the citizens of Scotland and their law.
The effect that this and some other mechanisms will have on people in Scotland as a whole worries me greatly. I was very sorry indeed that I could not stay late enough last night to hear and possibly take part in the debate introduced by the noble and learned Lord, Lord McCluskey. That also concerned the effect on the Scottish public of what may happen as a result of the legal provisions.
The Government must take very seriously the question of how we envisage these provisions working out; how the public will see the kind of situation that will arise; what will be said in the newspapers as a result, and in the parliament, when such matters go wrong. There may be a period of doubt and so on.
In their anxiety to find legal mechanisms, the Government are perhaps forgetting what may happen politically as a result. If people in Scotland begin to lose confidence in the law, particularly the new law that is being established around their parliament, we shall be in very great political trouble, and even civil trouble. People will dislike it very much. They believe that the law operates smoothly and in their interest, and they may begin to suspect that it does not. I hope the Government will examine this matter carefully. One cannot expect an answer now from the noble and learned Lord the Lord Advocate to all the points raised by my noble and learned friend. But will the Government examine the matter before Report, and envisage slightly more the politics that they are proposing?
Lord Hope of Craighead: The problem addressed by this amendment is not entirely new in Europe. This kind of issue arises in Germany. The German constitutional court has to deal with problems of this kind arising in regard to legislation of the Länder. The issue may also arise in Spain, given the systems of devolution that operate there.
I make no comment on the detail of the proposed amendment. However, it would be of some comfort to know whether, in framing the clause as they have, the Government have had regard to the way in which similar problems are dealt with in other countries within Europe. I am certain that we have a lot to learn from the constitutional courts in other countries as to what solutions can be adopted to enable the problem of the retrospective effect of a decision to be addressed. Will the noble and learned Lord the Lord Advocate inform the Committee, either now or by letter, as to whether that research has been done?
5.15 p.m.
Lord Hardie: To deal first with Amendment No. 291P, the Government cannot accept this amendment, or the other amendments in the group. As the noble and learned Lord said, the amendment restricts the power of a court to make an order removing or limiting the retrospective effect of a decision that an Act of the Scottish parliament or an action of the Scottish executive is outwith the competence of those bodies.
The Government do not believe that it is appropriate to specify in the legislation a limitation on the period during which a court may suspend the effect of its decision that a provision is ultra vires. The courts need to have flexibility to tailor their response to the particular circumstance of each case. That is not saying anything very different from what my noble and learned friend Lord McCluskey said many years ago: it is not possible to legislate for every eventuality. But that is not what we are doing. We are not looking at particular cases and saying that the court must take into account A, B, C or D and in other situations must act in a different way. We have provided flexibility. The court will obviously take into account such matters as the fact that someone has acted on the faith of legislation which is ultimately shown to be ultra vires. That would be an important consideration. There may be other considerations which would balance that exercise.
These amendments would leave the court with a restricted power as to what it could do if it decided that legislation was outwith the competence of the parliament or the executive. I invite noble Lords to place their faith in the Scottish courts and courts of the Scottish jurisdiction. They have a very good reputation. I have confidence in them and I hope that your Lordships will also express that confidence by entrusting them with this general power to exercise in accordance with their discretion and taking into account principles to which they will no doubt have regard.
In answer to the point raised by the noble and learned Lord, Lord Hope, I am advised that the drafters of the legislation and the policy makers certainly examined other jurisdictions in coming to this formulation. I am unable to say whether they followed those jurisdictions precisely. If the noble and learned Lord wishes to have further information I am happy to write to him on that matter.
The Government believe it is important for the courts and tribunals to have this power. As I have indicated, the court or tribunal will be declaring invalid legislation which, up to that point, has been considered to be valid, and some people will have acted on the faith of that apparently valid legislation. The power will ensure that the courts can protect those who have acted in good faith on that basis. To seek to limit the courts' discretion in the manner proposed would not be appropriate. It is important that the courts are left to decide how to act on the merits of each particular case.
Turning to Amendments Nos. 291Q, 291R and 291S, as I have indicated, we cannot accept these amendments either. One point I would make in that regard is that they appear to make varying and contradictory provision as to whose interests a court or tribunal should take into

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account when considering whether or not to make an order under Clause 93. That contradiction confirms me in my belief that the Bill strikes the right balance. It directs the court to take into account the interests of those parties who would be adversely affected by the decision, but does not limit them to that consideration alone. I think this represents an appropriate balance, and nothing would be gained by making the changes proposed in the amendments. Clearly circumstances will differ from case to case. In some instances it may be only the parties to the proceedings whose interests are substantially affected, but that would be a little surprising. Overall, I think the courts need the flexibility which the Bill provides.
In that regard, I anticipate that counsel appearing in the case, whether they are law officers or not, would specifically address the interests of other groups of people who may be affected by this legislation, apart from their own clients, so that the court is fully apprised of the issues in order to enable it to decide the matter properly.
With that explanation, I invite the noble and learned Lord to withdraw the amendment.
Lord Mackay of Drumadoon: Before the noble and leárned Lord sits down, I wonder whether he would address one point. I specifically raised the issue as to whether persons who would be adversely affected might in some way have the right to become involved in the proceedings as parties. I should have pointed out that Amendments Nos. 291R and 291S are clearly alternatives. I have no doubt that, if Amendment No. 219R were agreed to. the noble Baroness the Deputy Chairman would say that she could not call Amendment No. 291S. They are alternatives which illustrate two approaches that might be taken and there was never any intention that they should both go on the face of the Bill.
A more practical issue is what the court is to do if a body of opinion—maybe a very vocal body of opinion in Scotland, such as the CBI or the TUC—says that the interests of their members, who are not parties to the proceedings, will be adversely affected, and their argument runs along certain economic or environmental grounds, contrary to the policy of the Scottish executive, represented in the proceedings by the Lord Advocate. I have some difficulty as to how a Lord Advocate, arguing the case for the Scottish executive, of which he is a full member, and no doubt seeking to do that very effectively and fully, could at the same time perform some kind of amicus curiae role of drawing to the attention of the court the economic, environmental or other interests of third parties when he disagreed with their assessment of their own interests and with the argument that they wished to place before the court.
What troubles me about this provision is whether or not it will allow the possibility of the court's admitting these individuals as parties to the proceedings. If they come into the proceedings at the stage where the court has already decided that the Act of the Scottish parliament is ultra vires, effectively all they are engaged on is a political debate in which they seek to have a discretionary power
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exercised in a way which will serve their political interests, whether they be economic, environmental or whatever.
It is for that reason that I return to this theme, which I have mentioned once or twice in Committee, as to precisely what interests the Lord Advocate—or the Advocate General in the case of my other amendment—would be representing were he to go into the proceedings not to argue the initial legal issue but, taking that as read, to argue whether or not discretionary powers should be exercised.
Lord Fraser of Carmyllie: My noble and learned friend Lord Mackay, obviously lighter on his feet than I am, got up rather quicker than I did. I wish to raise more or less the same point. What troubles me about the matter is this. In deciding whether to make an order under subsection (3), the court shall,
"have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected".
I think I understand who that group of people are. The next subsection provides the opportunity for intimation to be given to the Lord Advocate. If the matter is so intimated to him, he has, as I understand it, the right to join the proceedings, because it is provided in subsection (5) that,
"he may take part as a party in the proceedings so far as they relate to the making of the order".
I assume that in the traditional way, if intimation were made to the Lord Advocate, he would, when he appeared, have regard to what is the public interest. That may be a rather broad but perfectly proper responsibility, but we would have the curious position of having three classes of people: those who are parties and are affected; a group of people who are not parties but who would be adversely affected, who seem to have no right to intervene; and the Lord Advocate, who has a broader public interest, who has the right to intervene. One group is excluded, and I do not follow the logic of that.
I wonder whether it might be more appropriate to follow the line offered by my noble and learned friend Lord Mackay of Drumadoon in his Amendment No. 291R, to remove the provision under which the court shall,
"have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected",
and insert instead the broader proposition of the public interest. In those circumstances, only the Lord Advocate would intervene and the difficulty to which my noble and learned friend Lord Mackay adverted would be removed.
Lord Hardie: I understand the concerns that have been addressed. We have to some extent also touched upon a later amendment, Amendment No. 292YEA, and when we come to that amendment perhaps some of what I say now will be taken as dealing with that.
I think there may be a fundamental misunderstanding here as to the purpose of Clause 93 or the stage at which we get to that provision. A Clause 93 order arises only where the court has already decided that something is ultra vires, as one sees in Clause 93(1)(a), and the orders under Clause 93(2) and following go on from there. The question

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as to whether the Act is ultra vires is a matter where the interests would lie with the Lord Advocate or the Advocate General or the parties to the proceedings. The interests in relation to the vires issue would not lie with third parties who may be affected by the order. In that situation, the Lord Advocate and the Advocate General would both be acting for their respective executives but would also be acting and putting forward arguments—at least, as far as the Lord Advocate is concerned—as to where the public interest lay in Scotland. It would not be appropriate to have third parties in the proceedings until that point.
In deciding whether to make an order under Clause 93(2), the court will have to consider the interests of the parties to the proceedings, and, if the Lord Advocate has not thus far been a party to the proceedings, which is difficult to imagine, he will be given intimation to make representations.
What I would imagine would happen at that stage is that the Lord Advocate, and indeed counsel, in the best tradition of the Faculty of Advocates, would advise the court that not only were there interests that were being specifically addressed in the case but that there was a body of interests, such as the CBI—if that body had been vociferous and quite properly drawn the matter to the attention of the executive—which was claiming to be interested in the outcome of any order that the court may ultimately make. In that situation, if the court wished to have further information about that particular interest, it could afford a third party the opportunity of being heard on the question of whether the order ought to be suspended, although it would not have a title of interest to come into the litigation. I believe that under the rules of court that would be possible. I am pleased to see that the noble and learned Lord, Lord Hope of Craighead, nods his head.
I fully understand the fears of noble and learned Lords, but they may arise because of a misunderstanding about how the procedure under this provision works. With that explanation, I invite the noble and learned Lord to withdraw his amendment.
5.30 p.m.
Lord Hope of Craighead: Before the noble and learned Lord sits down, perhaps I may pick up the point that he has just made. The provision makes no reference to the rule-making power of the court under the Court of Session Act, but I hope I am right in saying that the power of the court under that Act to make rules for all of the procedures before the court, in particular rules about intimation to parties, is not removed in any way by this Bill and the Bill assumes that the court, once the Act has been passed, will undertake its responsibility with the assistance of the Rules Council to make appropriate rules to enable the procedures to work.
Lord Hardie: I can give the noble and learned Lord that assurance. The Bill does not interfere with the administration of the courts as it is currently; nor does it remove any rule-making power available to the court. I anticipate that there are bound to be additional rules following this legislation.
Lord Mackay of Drumadoon: One can never be sure whether one is under a misunderstanding. That is the very
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nature of the beast. I believe that I now understand the approach. For once I may have got it right. I fully accept that it is a two-stage process. The Lord Advocate may be involved in the first stage because he will be given intimation of a devolution issue. If for any reason he fails to become involved then at the second stage his role will be confined to that described by the noble and learned Lord the Lord Advocate.
As I understand the reply to my supplementary request for information, the underlying policy of the Bill is that it is for the court to decide whether any person's interest has been adversely affected in terms of Clause 93(3) on a case-by-case basis or in accordance with rules of court, which the court can make, as to whether or not such a person can enter into the proceedings. The Government admit the possibility of that happening. Notwithstanding the considerable confidence that I have in both the High Court and shrieval benches in Scotland, if it is competent for such parties to come in, I am concerned that the court will become very much involved in political arguments.
The purpose of these amendments is to clarify the Government's policy on this and one or two other matters. That has been helpfully done in the responses that I have received. This is a matter that I wish to reflect upon. Like the previous group of amendments, I believe that this is a matter to which I shall return in due course. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 291Q to 291S not moved.]
The Earl of Balfour The Earl of Balfour moved Amendment No. 292:
Page 44, line 8, at end insert ("by the decision").
The noble Earl said: Looking at the 19 amendments to Clause 93 (powers of courts or tribunals to vary retrospective decisions), it is clear to me that the original drafting has not been satisfactory and that the Government have had second thoughts. I can take some comfort from the fact that as a hereditary Peer my amendments were tabled before anybody else's, yet the Government wish to get rid of us. Whilst I am happy to bow to the amendments tabled by the noble Lord, Lord Sewel, I ask him to consider Amendment No. 292 which seeks to add to the end of subsection (3) the words "by the decision". As drafted the provision reads:
"persons who are not parties to the proceedings would otherwise be adversely affected".
By what?
I read subsection (4) as if Amendment No. 292BB tabled by the noble Lord, Lord Sewel, had been inserted. I hope I am correct. It reads:
"Where a court or tribunal is considering whether to make an order under this section,

(a) it shall order intimation of that fact to be given to the Lord Advocate, and

(b) the appropriate law officer, where the decision mentioned in subsection (1) relates to a devolution issue (within the meaning of Schedule 6),

unless the person to whom the intimation would he given is a party to the proceedings".
Surely, in subsection (4) the person in this case can be only either the Lord Advocate or the appropriate law officer. I thought that in England and Wales there were, or are, two law officers: the Attorney-General and the Solicitor-General. In future is there to be only one to deal with Scotland: the Attorney-General?
The noble and learned Lord, Lord Hope of Craighead, pointed out at an earlier stage of this Bill that there was no time limit in Clause 93; nor did there appear to be any compensation provisions for any person adversely affected by the retrospective decision of a court or a tribunal. I consider that to be unfair. I support Amendment No. 292A tabled by my noble friend Lord Selkirk, although I do not believe that it goes far enough in dealing with retrospective decisions. I beg to move.
Lord Selkirk of Douglas: I rise to speak to Amendment No. 292A. I put this forward on behalf of the Law Society of Scotland. When the Government make such an order the Lord Advocate will receive notification, but it is also important that anybody who is likely to be adversely affected by any possible decision is informed. For example, Parliament deals with a wide variety of laws and plans. Plans to be made by citizens are based very much on the present law as it is declared by Parliament. If the Scottish parliament wishes to effect something within the United Kingdom's jurisdiction the court may find that such a provision is outwith the parliament's vires and make an order which removes or limits the effect of the decision of the Scottish parliament. Here there is surely a case for the court to intimate an interest not only to the Lord Advocate but to any other party who is likely to be adversely affected.
Amendment No. 292YEA in the name of my noble and learned friend Lord Mackay of Drumadoon would limit the effect of the amendment to persons who have a right to take part in the proceedings. I should be content with that limitation.
The purpose of tabling the amendment is not to concentrate on specific drafting but to deal with the principle: that groups of people are likely to be adversely affected. What rights, safeguards and protections are they to have? I invite the noble and learned Lord the Lord Advocate to address that point rather than the details of my amendment.
My noble and learned friend Lord Fraser of Carmyllie raised a valid and legitimate matter when he said that public interest is of great importance. How is it to be safeguarded when groups of people are likely to be adversely affected? I recognise the reality that rules of court could cover the issue. However, there is no requirement in the Bill, and I invite the Lord Advocate to discuss this matter between now and Report stage with the Lord President of the Court of Session. The Bill is far too vague when it deals with people and groups who are likely to be adversely affected. There is a gap. It is an issue that requires to be resolved. I hope
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that the noble and learned Lord the Lord Advocate will feel able to consider the issue further before Report stage.
Lord Mackay of Drumadoon: It may be of assistance if I speak briefly to the amendments in the grouping. I shall refer to my own amendments and one or two others.
I understand the reasoning underlying the amendment in the name of the noble Lord, Lord Selkirk, although I have some practical difficulties with it which the noble and learned Lord the Lord Advocate and I have just discussed. The practical problem of giving intimation to anyone who might be adversely affected by a specific issue would be mind boggling. For example, the idea of intimating some action relating to sheep farming or beef on the bone to every hill farmer in Scotland would be out of the question. While I sympathise with the concept underlying the amendment, there is a practical problem.
Amendment No. 292BA touches on an issue which I raised earlier. I have nothing further to say on that. I believe that the Government are sympathetic to the second part of the amendment relating to "the relevant law officer", since Amendment No. 292BB appears in the name of the noble Lord, Lord Sewel. While I have no objection in principle to the amendment, I have some difficulty in following the qualification set out at paragraph (b) which states:
"the appropriate law officer, where the decision mentioned in subsection (1) relates to a devolution issue (within the meaning of Schedule 6)".
The fault may be entirely mine but I find it difficult to imagine any decision covered by the provisions of subsection (1) of Clause 93 which would not be a devolution issue within the meaning of paragraph 1 of Schedule 6. Even if there could be such a situation—at present I have some difficulty in understanding it—should not the United Kingdom Government in any event receive intimation of what is going on and have the right to enter the proceedings? If the court is duty bound to have regard to the interests of other parties which might be adversely affected, it seems to me that there should be some force whereby the United Kingdom Government—whether through the Advocate General or by other means—should receive intimation of what may be pronounced by way of an order.
The other amendments in my name are consequential. I speak to them formally.
5.45 p.m.
Lord Hardie: Perhaps I may deal with Amendment No. 292 in the name of the noble Earl, Lord Balfour.
I thank the noble Earl for the amendment, which he intends would clarify the meaning of Clause 93(3). The noble Earl wishes to make it clear that the courts or tribunals must have regard to the extent to which persons who are not parties to the proceedings would otherwise be affected by the court's decision. This is essentially a drafting amendment. We have given it careful consideration but we believe that the intention behind the clause as drafted is clear and we do not consider the amendment necessary although we understand the reasoning behind it.

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In Amendment No. 292A, the noble Lord, Lord Selkirk of Douglas, raises the question of requiring courts to order intimation of intention of an order under Clause 93. To some extent that has been prefaced by the discussion we had on the previous amendment where I confirmed to the noble and learned Lord, Lord Hope of Craighead, that the Bill does not affect the general power of the Court of Session to make rules of procedure with the assistance of the Rules Council. I anticipate, as I have already said, that the Court of Session would make rules to cover, among other things, orders under Clause 93; and would deal with the question of intimation.
The noble Lord's amendment goes too wide for the reasons explained by the noble and learned Lord, Lord Mackay of Drumadoon. It would be impossible to intimate to everyone. But it would be for the court to consider what class or category of people should receive intimation in given situations. It would be equally for counsel involved in the case to draw to the attention of the court that they were aware of a body of interest which was not represented in the proceedings. The court could then consider whether that group of people should be represented. Those are all matters ultimately for the Lord President and the Rules Council.
On Amendments Nos. 292B, 292C, 292D, 292E, 292BA, 292CA, 292DA and 292ZEA, it will be apparent that the Government have sympathy with the amendments and for that reason have brought forward amendments which achieve a similar aim which the Committee has accepted. I hope that it will be helpful if I explain why the Government do not think that the amendments of the noble Earl, Lord Balfour, or the noble and learned Lord, Lord Mackay, are quite right. We do not think it would be appropriate to give intimation to the parliament as the noble Earl provides. We appreciate that intimation will be given to the Welsh assembly. I suspect that that may have provoked the amendment. However, this reflects the different legal entity of the assembly and the parliament.
The amendments tabled by the noble and learned Lord, Lord Mackay, provide for intimation to be given to the Lord Advocate and to the First Minister. It is important that intimation is given to the executive's Law Officer in every case, no matter where the proceedings take place. However, I do not see what is to be gained from extending that requirement to the First Minister. I am sure that the Lord Advocate will advise the First Minister if a relevant case arises and can make such representations to the courts on behalf of the Scottish executive as required.
I turn to government amendments, Amendments Nos. 292BB, 292BC, and 292DB. As I have already indicated this group of government amendments covers much the same ground and ensures that the appropriate Law Officer is given intimation of the fact that a court or tribunal intends to make an order under Clause 93.
In most cases, we would expect that the appropriate Law Officer would have been given sufficient notice under Schedule 6, which requires intimation to be given to the Law Officers.
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However, to answer the point raised by the noble and learned Lord, Lord Mackay of Drumadoon, I anticipate that there may well be cases under Clause 93(1)(b) which do not raise a devolution issue. What is concerned there is the vires of the action of the Scottish executive confirming or approving a provision of subordinate legislation. It may be that a Scottish Minister may have done something under subordinate legislation which would not involve the English Law Officers. That is one example which I can put forward at present. There may be others.
The amendments ensure that the appropriate Law Officers are given intimation where a court is considering making an order under Clause 93. The Lord Advocate, the Law Officer of the Scottish executive, will receive intimation regardless of where proceedings occur, along with the appropriate UK Law Officer. For proceedings in Scotland, the intimation would be given to the Advocate General; but for proceedings in England and Wales, the Attorney-General, and in Northern Ireland, the Attorney-General for Northern Ireland. would be appropriate Ministers.
In answer to the point made by the noble Earl, there are currently four law officers; the Attorney-General and Solicitor-General affect England, Wales and Northern Ireland and the Lord Advocate and Solicitor-General for Scotland affect Scotland. After devolution, in Scotland there will be the Lord Advocate and Solicitor-General for Scotland while in UK Westminster terms there will still be the Attorney-General and the Solicitor-General. However, there will also be the Advocate General who will have responsibilities for Scottish matters in the UK context.
The Earl of Balfour: I beg leave to withdraw Amendment No. 292.
Amendment, by leave, withdrawn.
Lord Selkirk of Douglas Lord Selkirk of Douglas had given notice of his intention to move Amendment No. 292A:
Page 44, line 10, after second ("to") insert ("any person adversely affected in terms of subsection (3) above and to").
The noble Lord said: I am grateful to the noble and learned Lord the Lord Advocate for his reply. I shall be pleased if he can follow up with the Lord President the matter regarding the rules of court.
[Amendment No. 292A not moved.]
[Amendment No. 292B not moved.]
The Deputy Chairman of Committees (The Viscount of Oxfuird): I must advise the Committee that should Amendment No. 292BA be agreed to I cannot call Amendment No. 292BB due to pre-emption.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon had given notice of his intention to move Amendment No. 292BA:
Page 44, line 11, leave out ("Lord Advocate unless he") and insert ("First Minister and the relevant law officer unless either of them").
The noble and learned Lord said: I do not intend to insist on the amendment. However, I should be grateful if the noble and learned Lord the Lord Advocate could write to me about the point I raised in connection with

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Amendment No. 292BB. I have some difficulty in following the position, but the fault may be entirely mine.
If the noble and learned Lord's example is correct it would seem to follow that the effect of Clause 93 is changing the law of Scotland even when a member of the Scottish executive is not concerned with an Act which falls within his devolved competence but is involved with an issue which may be in a wider form of competence. That is a difficult and tricky issue. I did not follow precisely what was said and if, following further reflection, more can be said before Report I should be grateful.
[Amendment No. 292BA not moved.]
Lord Hardie Lord Hardie moved Amendments Nos. 292BB and 292BC:
Page 44, line 11, leave out from ("Advocate") to ("the") in line 12 and insert ("and
(b) the appropriate law officer, where the decision mentioned in subsection (1) relates to a devolution issue (within the meaning of Schedule 6),
unless the person to whom the intimation would be given is a party to").
Page 44, leave out line 14 and insert ("A person to whom intimation is given under subsection (4)").
On Question, amendments agreed to.
[Amendments Nos. 292C to 292DA not moved.]
Lord Hardie Lord Hardie moved Amendment No. 292DB:
Page 44, line 20, at end insert ("and "the appropriate law officer" means—

(a) in relation to proceedings in Scotland, the Advocate General,

(b) in relation to proceedings in England and Wales, the Attorney General,

(c) in relation to proceedings in Northern Ireland, the Attorney General for Northern Ireland.").

On Question, amendment agreed to.
[Amendments Nos. 292E and 292ZEA not moved.]
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 292YEA:
Page 44, line 20, at end insert—
("() Apart from the provisions of subsections (4) and (5), this section shall not be construed as giving to any person a right to take part as a party in any proceedings to which this section applies, if that person would not otherwise be entitled or permitted to do so.").
The noble and learned Lord said: The amendment touches on an issue we have already discussed. My purpose in bringing it forward is that it seeks to establish that the provisions of subsections (4) and (5) do not give a right to any party to enter proceedings and that that is accepted by the Government against the background that it leaves the Court of Session whether by rule of court or otherwise to admit such an individual as a party. If that could be clearly stated at the Dispatch Box it would
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certainly satisfy me. However, for the purpose of assisting party litigants and others, there may be some force in putting it on the face of the Bill. I beg to move.
Lord Hardie: As already explained, I confirm that the provision does not give parties a right to appear. As regards putting it in the Bill, it is a drafting matter to which we can give thought and come back if necessary.
Lord Mackay of Drumadoon: On the basis that my drafting might be improved upon, I am happy to leave the noble and learned Lord to reflect on the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 93, as amended, agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 292XEA:
After Clause 93, insert the following new clause—
SUPERVISORY JURISDICTION OF COURT OF SESSION
(" . The provisions of this Act shall have no effect on the existence or extent of the supervisory jurisdiction of the Court of Session as it exists on the day when sections 91 and 93 of this Act come into force.").
The noble and learned Lord said: We have touched on this issue and it has been indicated that nothing in the Bill is intended to interfere in any way with the existence or extent of the supervisory jurisdiction of the Court of Session. If that can be unequivocally stated I shall withdraw the amendment. I beg to move.
Lord Hardie: The Bill enables references of devolution issues to be made by the law officers directly to the Judicial Committee of the Privy Council. It enables the Judicial Committee to deal with other references of appeals to it. Subject to that exception, the Bill does not affect or extend the jurisdiction of the Court of Session.
The Court of Session will retain its supervisory jurisdiction to review decisions and administrative actions. The devolved administration will be subject to the jurisdiction. If, however, devolution issues arise in the exercise of the jurisdiction, the court will need to comply with the special procedures in Schedule 6.
If one is talking about the supervisory jurisdiction in the context of judicial review and administrative acts the short answer is that the Bill does not affect the exclusive jurisdiction of the Court of Session in that regard. However, if one goes wider and goes into devolution issues it will be apparent that other courts can deal with devolution issues at first instance.
Lord Renton: I would have thought that the very explanation that the noble and learned Lord has given indicates the desirability of the removal of any possible doubt. He used the word "if' rather a lot in the course of his explanation. Whether or not we use the exact words in the amendment, I believe that the removal of doubt as regards the jurisdiction of the Court of Session is essential in the complex provisions of the Bill.
Lord Hardie: I am sorry. I was trying to shorten the position. Perhaps I may explain it more fully. The

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amendment seeks to reserve the supervisory jurisdiction of the Court of Session to deal with judicial review matters. The Government consider that that would go too far. It is intended that the Scottish parliament shall be able, if it wishes, to legislate to alter the scope of judicial review. But nothing in the Bill has that effect. It will be for the parliament to decide whether the supervisory jurisdiction of the Court of Session should be interfered with in any way. In the Scottish parliament that would be in the context of considering a Court of Session Act or whatever. It may be that the parliament could consider that certain types of review might be taken in the sheriff court. But all those issues would be for the Scottish parliament. This amendment would prevent the parliament from exercising that power.
Subject to the parliament's power to legislate, the Bill is not intended to affect either the existence or the extent of the Court of Session's supervisory jurisdiction. The Court of Session will retain its jurisdiction to review decisions and administrative actions, and the devolved administration will be subject to that jurisdiction. If devolution issues arise in the exercise of the court's jurisdiction, as opposed to a review of administrative actions of the executive, it will have to comply with the provisions and procedures of this Bill.
Schedule 6 and Clauses 91 and 93 explain how such issues should be dealt with and confer a new power on the court to vary or limit any retrospective effect. We have discussed that earlier today. The Bill enables references of devolution issues to be made by the Law Officers directly to the Judicial Committee, and to deal with other references and appeals. Subject to that exception, the Bill does not affect or extend the jurisdiction of the court in relation to particular types of proceedings.
I hope that that is a fuller explanation which will satisfy the noble Lord. I apologise for trying to cut matters short.
6 p.m.
Lord Renton: Dare I suggest that it would be a useful precaution if we started off an amendment on these lines with the words,
"Subject to the provisions of this Act"?
That would ensure that any residuary jurisdiction of the Court of Session remained.
Lord Hardie: I am very reluctant to draft legislation in the Chamber. I appreciate and recognise the expertise of the noble Lord over a considerable number of years in dealing with such matters. With respect, it would not be appropriate for me to seek to draft legislation here and now.
Lord Hope of Craighead: Before the noble and learned Lord sits down—I do not want to indulge in drafting either—one point that he might like to bear in mind when he considers the point is that there may be some areas in respect of which the Scottish parliament might wish to examine the extent of the supervisory jurisdiction. One example is awards by arbitrators, which at present are subject to the
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supervisory jurisdiction. There are some people who think that that is undesirable, given the need for finality in arbitration awards. That would fall within the scope of the Scottish parliament unless otherwise excluded by the Bill. I would prefer that the Bill would leave the matter open for consideration by the Scottish parliament.
Lord Mackay of Drumadoon: Perhaps I may indicate for the purpose of making speed that, as the noble and learned Lord will recall from the debate on Tuesday night or Wednesday morning, this issue was one which was raised by me and a number of members of faculty in Edinburgh because of a genuine uncertainty on their part as to what the position will be. I understand that the noble and learned Lord has explained to us that, subject to the provisions which would require devolution issues to be referred or appealed to the Judicial Committee—which are procedural aspects of dealing with devolution issues—the terms of this Bill do not in any way affect either the existence or the extent of the supervisory jurisdiction.
Beyond that, among the matters being devolved to the Scottish parliament is a legal or legislative competence, if so advised, to enact legislation—presumably primary legislation, but not necessarily—which might amend the extent of the supervisory jurisdiction or, indeed, the courts in which the issues could be raised if it were taken away in part from the Court of Session. On both the substantive and procedural matters the Scottish parliament would have the competence. Whether it acted in accordance with the suggestion of the noble and learned Lord, Lord Hope, and restricted the extent might be a matter for discussion. Equally there might be other areas where it would be sensible to broaden, modify or amend it in some way.
In the light of the discussion this afternoon, I will do two things. First, with the assistance of my noble friend Lord Renton, I will reflect whether a more happily framed amendment could be tabled on Report. Secondly, I would intend to discuss the matter with those who raised this concern with me in anticipation of the Committee Stage debate. I have little doubt that the noble and learned Lord the Lord Advocate and his officials—and, more importantly, his draftsmen—will consider whether there might be some scope for an amendment which could remove any doubt. On that basis, I beg leave to withdraw Amendment No. 292XEA.
Amendment, by leave, withdrawn.
Clause 94 [The Judicial Committee]:
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 292EA:
Page 44, line 23, at end insert ("or the House of Lords)").
The noble and learned Lord said: In moving this amendment, I will speak also to Amendments Nos. 292EB and 292EC. I do not intend to speak to Amendment No. 292ED.
The first of these amendments raises a very important constitutional principle of whether the Appellate Committee of your Lordships' House should be bound

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by a decision of the Judicial Committee of the Privy Council on devolution issues. In the light of the observations made earlier in our debate this afternoon that the whole issue of the procedures set out in Schedule 6 is to be discussed further on Report, and in the light of the observations of the two noble and learned Lords who intervened, I raise this as an important issue. Whether or not the Government wish to give an answer today, I would certainly wish to have an answer or a comment from them before the Bill becomes law.
The second amendment raises a more practical issue. I am happy to see in the Committee noble and learned Lords who have sat on the Judicial Committee and who may have a contribution to make to this. As I understand it, the procedure which the Judicial Committee follows in the judicial business it has to deal with, is regulated to some extent by Orders in Council and, in other respects, by informal practice notes. The normal practice and convention, as I understand it, is that, if the members of the committee who hear a case are unanimous in the view as to how the case should be disposed of, the advice of the board which is tendered to Her Majesty is drafted by one of its number, and there is only one opinion for any lawyer interested in why the decision was reached to have regard to.
My understanding is that since 1966 it has been competent for members of the committee who disagree with the majority to issue their own opinion, setting out—whether in short or longer form—why they so disagree. I also understand that since some date in the 1970s—unfortunately I have been unable to obtain a copy of the relevant practice note—there is a procedure by which a member of the committee who agrees with the majority in the result of the case but disagrees with some legal decision which may have arisen in the course of the argument can in those exceptional circumstances set forth his own opinion. I note a measure of surprise on the face of the noble and learned Lord, Lord Hope, who has obviously not seen this practice note either.
I raise this for the very practical purpose that, if we are to move into the field of having important devolution issues considered by, presumably, five members of the Judicial Committee, it is very important that they should be free to issue their individual opinions on a case so that the law can develop. Undoubtedly the development of both civil and criminal law in the United Kingdom has been helped by the fact that in important cases which come before the Appellate Committee of your Lordships' House—even if the members of the Appellate Committee are united in their view as to how the case should be decided—the members write their individual speeches. The law is enriched because it enables lawyers to pick up ideas, float them out and develop them further in subsequent cases. It would be very unfortunate indeed if a similar practice was not followed by the Judicial Committee. That is what lies behind Amendment No. 292EB.
I fully accept that it would not be for this House in any way to dictate how the Judicial Committee should go about its business but I would hope that in raising
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this issue we might at least have an undertaking from the Government that in the framing of the Order in Council some consideration would be given to this issue before the matter was placed before Her Majesty in Council. A quick glance through the draft that is available suggests that it has not yet been addressed.
Finally, Amendment No. 292EC raises a practical issue which arises from time to time. Sometimes, in the course of legal argument, counsel rightly or wrongly make concessions, whether voluntarily or in response to questioning from one or more members of the Bench. The court's decision thereafter proceeds on the basis that such a concession has been made. If the matter has gone up to the Judicial Committee and the case has been decided, among other things, on the basis of a legal concession having been made, there may be scope for an argument that it would be wrong to bind every other court in a subsequent case where a similar legal concession had not been made, because it would inevitably mean that, even if all the parties concerned were agreed that the matter ought to be looked at afresh in the lower courts, that could not happen and the matter would have to go to the Judicial Committee, possibly with unnecessary expense for all concerned. That is a further practical issue which I raise in the third amendment. I beg to move.
Lord Hope of Craighead: As a serving member of the Judicial Committee, perhaps I may make two observations. The first is in regard to Amendment No. 292ED. This is a matter on which I would suggest that members of the Judicial Committee would wish to express views in the framing of appropriate rules or orders. For my part, I would prefer that the matter was not addressed directly in legislation but was dealt with by means of orders. Another advantage is that it would give some room for flexibility as experience develops in the course of the working out of the new jurisdiction. As for decisions which proceed upon a concession, I should have thought that there was ample jurisprudence to show that, when any court is aware that a previous decision has proceeded on a concession, it removes its effect as a binding authority and is regarded as subject to review in the light of that known fact.
6.15 p.m.
Lord Wilberforce: The noble and learned Lord has raised three quite separate points. To my mind, by far the most important is the first amendment, Amendment No. 292EA, which inserts the words, "or the House of Lords". That brings us into a difficult area arising from the fact that it has been decided to have two separate courts in this country—the House of Lords, which is still to remain the supreme court for the United Kingdom, and this separate ad hoc or fluctuating court, the Judicial Committee of the Privy Council, to decide devolution issues. Therefore, one has to face the difficult question: which is to have priority, one over the other?
If the devolution court, if I may call it that, were to be a fully accepted constitutional court in the style of the German constitutional court or the Italian constitutional court, or, for that matter, the Supreme Court of the United States, I should have no hesitation in accepting

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a proposition that decisions of that court should have priority over and be binding on all other courts. But I find a much greater difficulty with the present rather untidy set-up of the two courts, with no great definition of the dividing line between them.
There are difficulties either way. In favour of the amendment to insert the words "or the House of Lords" is the undoubted proposition, which is a strong one, that, so long as the United Kingdom is entire and not divided, the supreme court is and should remain the House of Lords in this country. For my part I should be very unhappy in departing from that in favour of allowing priority to another court, even in such important matters as devolution and even though, in practice, that other court—the Judicial Committee—will no doubt be equipped with high grade judges, possibly the same persons in practice as will sit in the House of Lords. Nevertheless, in my mind, I am greatly impressed by the constitutional importance of retaining the ultimate superiority of the House of Lords.
On the other hand, one gets into great difficulties when one looks at the set-up by which decisions or issues are referred to the Judicial Committee on the way up. In Schedule 6 there are elaborate provisions providing for references to the Judicial Committee by lower courts—for example, by the Inner House in Scotland or by the Court of Appeal in this country—during the course of the proceedings. One may have this situation. A case comes up with, assuming it is a civil case, no limitation on the right of appeal. It comes to the Court of Appeal in England. It decides to refer the matter—a devolution issue—to the Judicial Committee, which gives a ruling. There is then an appeal, as of course there can be as of right, to the House of Lords. The same may happen in Scotland in a civil matter. The House of Lords is clearly entitled to over-rule a decision of the lower court. But is it bound by the decision of the Judicial Committee given at an intermediate stage? That is very difficult. On the other hand, if the Judicial Committee has given a ruling, is it acceptable that the House of Lords should then be entitled to take a different view? There are difficulties both ways.
One has also to bear in mind Schedule 6(32) which states that the House of Lords, in a case before it, may decide a devolution issue if it thinks it appropriate in the circumstances but otherwise shall refer it to the Judicial Committee. There is a flexible and rather fuzzy compromise between the superiority of the two courts. I am very unhappy about this. I am impressed by the argument of the noble and learned Lord, Lord Mackay of Drumadoon, and by the constitutional position. I am reluctant to see anything inserted into an Act of Parliament which provides that our supreme court in this country is bound by decisions of another court. On the other hand, I see the practical objections in relation to the set-up which we at present have under Schedule 6.
One has to consider a minor point. What is meant by the words in Clause 94,
"shall he binding in all legal proceedings"?
Does it mean that it is binding inter-parties—between the parties—or is it binding as a matter of jurisprudence? Therefore, is it to be a binding authority
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in future cases? The House of Lords has never accepted that decisions of the Judicial Committee of the Privy Council, however eminent and important, are binding on it. It no doubt defers to them; it gives them respect; it follows them when necessary; but it has always reserved the position that decisions of the Judicial Committee are not binding on the House of Lords.
That is a minor point, possibly of drafting. I prefer to rest on the main constitutional question, which I believe this House has to face, although possibly not today, of whether it is acceptable that decisions of the Judicial Committee shall be binding even inter-parties on the House of Lords.
As the noble and learned Lord raised three questions together, perhaps I may speak also to Amendment No. 292EB, which concerns separate opinions. As the noble and learned Lord stated, under the existing practice, as laid down by Order in Council in 1966, dissenting opinions are allowed.
This provision was inserted, changing the practice of very many years at the instance of Commonwealth judges—mainly, I think, Sir Garfield Barwick from Australia, a very strong-minded and important judge. It was necessary to give Commonwealth judges a chance to expound their point of view. That was inserted in the practice and it is the practice at the present time, so that from that point of view the amendment might be said to be unnecessary. However, one still has to face the question: is it right or is it not? I find that a question of great difficulty. Again of course, it can be said that it is very nice to have a rich division of opinion. It is helpful in future cases and also helpful in jurisprudence and it helps to develop the law.
That I would accept entirely in cases of ordinary civil litigation, or even perhaps in criminal litigation. It is desirous very often to have the other point of view put forward so that legislators may have an opportunity of seeing what the arguments are. But now we are faced with a very different situation. We are faced with intensely political issues, and they may get more political as we go on. Is it desirable—I just ask this question rhetorically—that we should allow members of the Judicial Committee of the Privy Council to express dissenting views? You may then have a division on party lines. You may have a tendency for judges who are known to be intense devolutionists to be appointed to sit on the court or, conversely, judges who are known to be in favour of the unity of the United Kingdom to sit on the court. You may at any rate have disputes and recriminations and more politicisation of what ought to be a purely judicial process.
I do not know what the answer is. I shall be very glad to hear what the noble and learned Lord says about it, but I just wanted to make the point that it is by no means easy to decide, as the amendment suggests to us, that it is a good thing to have dissenting opinions. From one point of view it is and from another point of view it is not. If you want to stir up and allow controversy and have more transparency, more argument in the open, then by all means let us have it. If you want to keep the peace and have a rational and gentle progress towards devolution in a peaceful way, then I suggest that not

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only should the amendment not be allowed but that something should be inserted positively to say that dissenting opinions are not to be permitted, as they would be if nothing were done.
Perhaps the suggestion of the noble and learned Lord, Lord Hope of Craighead, is the best solution in the end: leave it to the Judicial Committee itself to decide and to frame its own rules. It is perhaps rather ducking the issue, but from a practical point of view at this stage it may be the best solution and I would not be opposed to it. I just wanted to give some arguments which might indicate that the noble and learned Lord's amendment is not all that easy.
Lord Sewel: I think there is one thing that we are all agreed on, and that is that things are not always easy. That is certainly true of this part of the Bill. The Government do not accept Amendment No. 292EA, which would alter the binding nature of decisions of the JCPC in relation to the House of Lords. The Government believe that it is important that the decisions of the JCPC are binding in all legal proceedings other than proceedings before the JCPC itself. Amendment No. 292EA would mean that they were not binding upon this House, and we do not accept that position.
Devolution issues will seldom be decided by this House. In normal circumstances, under Schedule 6 of the Bill any devolution issue which arises in judicial proceedings in this House will be referred to the Judicial Committee unless this House considers it more appropriate that it should determine the issue itself. We think it is appropriate that this House should not be able to depart from the earlier decisions made by the JCPC. We believe that the JCPC is ideally placed to resolve disputes about vires. It has a vast experience of dealing with constitutional issues from the Commonwealth, making the provision that the JCPC's decisions of the highest status will ensure that clear decisions with a clear status are produced and that devolution issues are treated consistently. That is the advantage behind the line that we are advocating.
Regarding Amendment No. 292EB, I find myself in very close agreement with the noble and learned Lord, Lord Hope of Craighead. The factual position has been outlined by the noble and learned Lord, Lord Mackay of Drumadoon, and I think from there on that it is really a matter for the court itself to decide matters on its own basis, and let practice and convention develop within the court.
Regarding Amendment No. 292EC, again I fall back on the point which was expressed by the noble and learned Lord, Lord Hope of Craighead. We have his explanation of what the effect of a case being decided on a concession would be, and I am prepared to rest on that.
Lord Mackay of Drumadoon: The noble and learned Lord has dealt briefly with the three amendments, and I anticipate that at Report stage we may have more to say about the issue which lies behind
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the first of the amendments. I am grateful to the noble and learned Lord, Lord Wilberforce, for giving a quite fascinating contribution to our debate.
As far as the second amendment is concerned, I fully accept, as I indicated at the outset, that this is a matter which would fall to be done by Order in Council. I do not think at the present time it is left entirely to members of the Judicial Committee themselves, and indeed the draft of the order that we have indicates that it will be Her Majesty's Council that decides on procedure, as apparently Her Majesty's Council has decided in the past about the issue of dissenting opinions.
I listened with fascination to what the noble and learned Lord said about the possible undesirability of allowing dissenting opinions and, if I may say so, his concern that this might prevent judges being drawn into political controversy. It certainly struck a chord with one or two of the matters I have been arguing earlier.
As regards Amendment No. 292EC, obviously I understand and accept the views that have been expressed and I will draw this to the attention of the High Court judge in Scotland. I thought it was very necessary that this issue should be addressed, and we clearly have done that. I beg leave to withdraw Amendment No. 292EA.
Amendment, by leave, withdrawn.
[Amendments Nos. 292EB, 292EC and 292ED not moved.]
The Earl of Mar and Kellie The Earl of Mar and Kellie moved Amendment No. 292F:
Page 44, line 37, at end insert—
("(d) provide such resources to the Judicial Committee as Her Majesty considers necessary or expedient.").
The noble Earl said: We have already heard about the possible need for alteration of the structure of the Judicial Committee of the Privy Council. Now I should like to move Amendment No. 292F, which has the purpose of ensuring that the Judicial Committee, or whatever it is to become, is adequately funded and resourced for its new devolutionary responsibilities. Although we hope that this function will not be exercised very often, it may be. We do not know how much work will come from this new source, but I believe that we should make sure that a suitable resources package is developed to meet the needs of the Judicial Committee. It will be important that devolution issues are dealt with speedily and are not caught up in a logjam, which itself might be the result of inadequate resources. I beg to move.
Lord Sewel: I understand why the noble Earl has tabled this amendment, but I can assure him that it is totally and utterly unnecessary. The government of the day would always make sure that sufficient resources were available for the Judicial Committee to do its job. On that basis, I hope that the noble Earl will feel able to withdraw his amendment.
Lord Mackay of Drumadoon: Before the noble and learned Lord sits down, am I right in thinking that when

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members of the Judicial Committee of the Privy Council sit in that committee they are not actually paid for doing so?
Lord Sewel: There may still be costs incurred in their deliberations.
6.30 p.m.
The Earl of Mar and Kellie: I am almost content with what the Minister said. I believe that in the event of hostility between the two parliaments, there may be a rash of devolution issues to be decided. However, having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 94 agreed to.
Lord Mackay of Drumadoon Lord Mackay of Drumadoon moved Amendment No. 292ZFA:
After Clause 94, insert the following new clause—
PROTECTION OF THE PARLIAMENT FROM INTERDICT OR INJUNCTION
(" . No court shall pronounce any interdict or injunction against the Scottish Parliament or any of its committees restraining the Parliament or any of its committees from holding any proceedings or considering or deciding any item of business at such proceedings.").
The noble and learned Lord said: In moving this amendment I shall speak also to Amendments Nos. 292YFA, 292XFA and 292WFA. The first of these amendments raises the issue of interdicting the parliament and its committees from holding any proceedings or considering or deciding any item of business at such proceedings. That occurs from time to time in relation to the proceedings of local authorities. It is certainly not unknown where, in anticipation of a meeting taking place, one or more parties, whether or not they be members of the authority, seek to obtain a court order preventing the meeting taking place. Frequently that has been done at the eleventh hour with media in attendance to ensure maximum publicity for what is going on.
I raised the matter in the course of the proceedings on the Government of Wales Bill. I understood it to be accepted that in that regard it would be competent. It strikes me that that may be part of the whole issue of parliamentary privilege which I know the Minister undertook to look at before Report. It is an issue on which I am awaiting a statement in the light of what was said on 28th July.
Lord Sewel: I thank the noble and learned Lord for giving way. Perhaps I may indicate that the Government have considerable sympathy with the arguments advanced in this area. It is a matter of some difficulty and complexity. We recognise the possibility of amending the Bill and are considering actively what amendments we can bring forward at a later stage.
Lord Mackay of Drumadoon: Perhaps I may invite the Minister to indicate whether that will cover also Amendment No. 292WFA, an issue raised by the noble and learned Lord, Lord Rodger of Earlsferry, as to whether the court could pronounce orders for the
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Scottish executive to introduce a Bill to parliament or make subordinate legislation and an order requiring parliament to pass legislation. It seems to me that that is in the same area. Perhaps the Minister can indicate, on an entirely without prejudice basis, that he will consider also Amendment No. 292WFA. I beg to move.
Lord Sewel: I have indicated clearly that it is highly likely that we shall be bringing forward amendments in relation to the earlier points raised by the noble and learned Lord. I cannot make that commitment as strongly with regard to Amendment No. 292WFA but I am prepared to look at the matter.
Lord Mackay of Drumadoon: I have a concern in relation to Clauses 6(6) and 8 of the Human Rights Bill. It would be competent for the Scottish executive to be ordered by a court to present a Bill to parliament and competent for the Scottish parliament to be made the subject of an order requiring it to pass such a Bill. Similar orders could be pronounced in relation to subordinate legislation.
As I indicated, that issue was raised by the noble and learned Lord, Lord Rodger of Earlsferry, on 28th July at col. 1368 of the Official Report when he drew attention to the need to make sure that the provisions of the two Bills—the Human Rights Bill and the Scotland Bill—were compatible. The point he made at that stage was not responded to by the Minister. I understand from checking with the Library that no letter has been written in relation to the matter. I am concerned that it should be addressed further. It may arise also under Clause 54 concerning the powers of the Secretary of State which we have discussed on a number of occasions.
In view of the anxiety to move on to other business in due course, I shall not say anything further at this stage. However, it is clearly a matter to which we must return on Report. We may also return to the other points I have raised.
Lord Fraser of Carmyllie: Before my noble and learned friend withdraws the amendment, I regard the Minister's intervention as the most important he has made during the course of this Committee stage. It is extremely valuable. In view of his remarks, I shall not press him further. However, before we reach this matter on Report I hope that we shall have an opportunity in advance to reflect for as long as possible on what changes the Government may be introducing.
Lord Sewel: Perhaps I may make an offer of consultations and discussions on this point because I recognise its importance.
Lord Mackay of Drumadoon: I greatly welcome that further intervention. I join with what my noble and learned friend Lord Fraser said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 292YFA to 292WFA not moved.]
The Earl of Balfour The Earl of Balfour moved Amendment No. 292FA:
Before Clause 95, insert the following new clause—
INQUIRIES
(" .—(1) The Parliament may cause an inquiry to be held into any matter relevant to the exercise of any of its functions.
(2) Section 210 of the Local Government (Scotland) Act 1973 (power to direct inquiries) shall apply in relation to an inquiry held under subsection (1) as if it were a local inquiry held under that section and the Parliament was the Minister causing it to be held.").
The noble Earl said: It seems a long time since we started dealing with the business on this Bill. I am not at all sure whether there are any facilities for the parliament of Scotland to enable inquiries to be held. This is one effort on my part to suggest how that may be done. I believe that the parliament should have that power. With those few words, I beg to move.
Lord Hardie: I accept the point made by the noble Earl that the Bill already enables the parliament to conduct its own inquiries under Clause 23 but, on the other hand, does not contain any explicit provision which would allow the establishment of separate inquiry bodies. It may be helpful if I remind the Committee that Ministers and Parliament rely on the Tribunals of Inquiry (Evidence) Act 1921 to set up inquiries such as the Cullen Inquiry. Those powers are tied closely to Westminster procedures and will not transfer to Scottish ministers. As a result, the noble Earl is correct to say that neither the Scottish executive nor the Scottish parliament will enjoy, from the beginning, the general powers to set up such inquiries whereas a different situation arises in Wales. The key difference between Wales and Scotland is that the Scottish parliament will be able to legislate, if it wishes, to give itself or the executive the power to establish inquiries either in general terms or in relation to a particular issue in respect of matters within the devolved competence.
While this amendment would give the parliament—but not the executive—immediate powers to establish inquiries, it would also tie such inquiries to the local government inquiries rules and procedures. By contrast the 1921 Act applies the rules of the Court of Session. We think on balance it is preferable to leave the parliament to make its own provision and to allow it a free hand to decide what rules of procedure it would wish any inquiry to follow. With that, I would invite the noble Earl to withdraw his amendment.
The Earl of Balfour: Perhaps I may ask just one more question. Can the Scottish parliament, assuming it is functioning, hold or arrange to hold through its procedures an inquiry into any specific matter it wishes or will it be limited in any way on a devolved issue?
Lord Hardie: The parliament could legislate to hold an inquiry for any particular issue within its devolved competence.
The Earl of Balfour: The noble and learned Lord, Lord Hardie, just said "legislate". That, I fear, will take some time. If something rather urgent came up and it was felt it would be of benefit to the parliament to have
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an inquiry, does it need to go to the extent of introducing a Bill to be able to do so? That seems to be rather restricting its powers, if I may say so.
Lord Hardie: What I am saying is that it could legislate generally to make provision for the holding of inquiries in appropriate cases. Thereafter there would be an administrative or executive decision, which may, of course, involve advising parliament.
The Earl of Balfour: That is now clear in my mind. I am relieved by those words and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 95 [Power to make provision consequential on Acts of the Scottish parliament]:
[Amendments Nos. 292FB and 292FBA not moved.]
Clause 95 agreed to.
Clause 96 [Power to make provision consequential on this Act]:
Lord Hardie Lord Hardie moved Amendment No. 292FBB:
Page 45, line 6, leave out ("prerogative instrument or other") and insert ("or prerogative instrument or any other instrument or").
The noble and learned Lord said: This is a substantial set of government amendments relating to the powers in the Bill to make subordinate legislation.
In moving Amendment No. 292FBB, I shall speak also to Amendment No. 292YGA, 292GBAA, 292GBAB, 292GBAC, 292GBAD, 292GBAE, 292GBT, 292XNA and 292YNA.
I have already placed in the Library a copy of a letter to the Chairman of the Delegated Powers and Deregulation Committee which sets out in detail the purpose and effect of these amendments. I understand that some noble Lords may have concerns that that committee has not yet had the opportunity to consider the amendments. I am happy to give an undertaking that if any Member of the Committee has any comments or concerns, we will give them full consideration and bring forward any further amendments at Report if that is required.
The Delegated Powers and Deregulation Committee reported on the Bill in its 24th report and made a recommendation in respect of powers which modify primary legislation. The Government are happy to take this recommendation on board and our amendments provide that where subordinate legislation under the Bill contains provisions that textually amend an Act it must be subject to affirmative procedure.
The powers contained in the Bill are, as the committee recognised, necessarily complex, not least because they deal with not one but two Parliaments. However, we are conscious that the operation of Clauses 101 to 103 of the Bill has not been easy to understand. We have therefore looked to simplify the provisions where possible. In particular we have provided a table which lists which of the various types of procedure applies to a particular power.
There have also been a number of changes to the subordinate legislation provisions in earlier parts of the Bill, and the amendments take account of these. There will be a few related amendments to earlier parts of the Bill, which we will bring forward at Report.
The net effect of all the amendments will be to replace the whole of Clauses 101 to 103 except for Clause 101(1) which is retained but which will then be followed by four new subsections. We are conscious that the replacement provisions are still, of necessity, somewhat complex, but we hope that they will prove easier to understand and follow.
I do not propose to describe the amendments at length, but would be happy to deal with any specific points which noble Lords may raise. I beg to move.
6.45 p.m.
Lord Mackay of Ardbrecknish: The noble and learned Lord the Lord Advocate has explained that these amendments in the Government's name significantly change that part of the Bill which deals with secondary legislation. There are a number of amendments in this group in my name but they all become nonsense because they relate to a part of the Bill which is now to be excised. Obviously I shall have to study the changes made as well as the change in the format.
I welcome the Lord Advocate's acceptance of the points made by the Delegated Powers and Deregulation Committee. I suspect that will cover some of the amendments that I have down in my name. I mentioned on Tuesday that I was not best pleased with the way this matter had been dealt with by the Government. The Government apologised for the misunderstanding. The letter to my noble friend Lord Alexander of Weedon suggested that these amendments would be tabled at Report stage. I was minded to make an enormous fuss but I have decided to be generous and allow the Government to proceed to table the amendments. We will see the result when we see the rewrite of the Bill. We can then study it perhaps with greater ease than we can at the moment and come back at Report stage with any issues that we still think need further consideration as regards secondary legislation. So I am prepared to accept these amendments at the moment. We will study them between now and Report.
Lord Renton: I am not sure whether I should make my point on the first amendment on this clause that the noble and learned Lord has moved or in the discussion on whether the clause shall stand part. We seem to be ducking discussions on clause stand part, so it might be convenient if I make the point now.
In lines five and six on page 45 we see the expression, "any pre-commencement enactment". That could have a wide meaning. It could go back to the Act of Union or possibly even earlier. I cannot believe that that is what the Government really intend. In applying their minds to the wording of Clause 96, I think that is a matter which should be thought out again. It just does not make sense at the moment.
Lord Hardie: If the Bill is passed there will be consequential amendments in respect of earlier
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legislation. That is what is the intention with regard to "pre-enactments". We have already indicated that all of these matters will be considered again before Report. I am sure that we can take that matter on board. Although, having said that, I do not want to hold out any false hope to the noble Lord.
Lord Renton: Perhaps the noble Lord will also bear in mind that a provision to amend existing legislation by subordinate legislation is, of course, notoriously a Henry VIII clause.
On Question, amendment agreed to.
[Amendments Nos. 292FC and 292FCA not moved]
Clause 96, as amended, agreed to.
Clause 97 [Power to adapt certain functions exercisable by a Minister of the Crown]:
[Amendment No. 292FCB had been withdrawn from the Marshalled List.]
Lord Hardie Lord Hardie moved Amendment No. 292FCC:
Page 45, line 9, after ("provision") insert ("(including, in particular, provision modifying a function exercisable by a Minister of the Crown)").
The noble and learned Lord said: In moving Amendment No. 292FCC, I shall speak also to Amendments Nos. 292FDA, 292FDB, 292FEA, 292FF and 292FFA. Clause 97 confers the power for an Order in Council or an order made by a Minister of the Crown to make provision for enabling or facilitating the transfer of ministerial functions to the Scottish ministers, in particular by providing that certain functions can be exercised separately in or as regards Scotland or within devolved competence.
This group of amendments is intended to clarify the scope of provision that could be made under this power, in particular by making clear that existing ministerial functions can be modified for the purpose of enabling or facilitating a transfer of a function to the Scottish ministers under the Bill. The function to be transferred may not be the whole ministerial function as it exists but a part or aspect of it which is relevant to Scotland and it may need to be modified to identify and make clear the part that is to be transferred to the Scottish ministers to be separately exercisable by them as regards Scotland. Amendment No. 292FCC, which is the main amendment in the group, makes clear that such provision can be made. Amendments Nos. 292FDA, 292FDB and 292FEA make consequential drafting changes.
Amendment No. 292 FFA amends Clause 97 in two ways. First, in the new subsections (4) and (5) it provides that where the Clause 97 power is used to split a European Community or international obligation which is expressed in quantitative terms so that part of it can be transferred to the Scottish ministers, the order will not be made unless they have been consulted. Secondly, new subsection (6) will ensure that the Secretary of State's powers of intervention in Clause 54 can be used to ensure that the Scottish ministers' share of a quantitative international obligation is met.
Examples of international obligations and obligations under European Community law which will fall within the scope of these amendments are likely to include EC quotas for livestock subsidies and the United Kingdom's obligations under the Kyoto Protocol on climate change and related Community law to achieve certain targets for the reduction of greenhouse gas emissions. All parts of the UK should be required to meet a fair proportion of such obligations, not least to ensure that unfair burdens are not placed upon business in one area compared to another. Where it is possible for the Scottish ministers to contribute to the achievement of the obligation through the exercise of their powers it is obviously right that they should be apportioned a share of the obligation. An order under Clause 97 will enable that to be done. The order will be made by a Minister of the United Kingdom Government or by Her Majesty in Council on the advice of such a Minister and will be subject to procedure at Westminster only.
As Members of the Committee may be aware, the Government of Wales Bill was amended to enable the UK Government to provide by order for the achievement by the National Assembly for Wales of a share of a quantitative international or EC obligation. Clause 97, coupled with the provisions in Clauses 49 and 59 for transferring ministerial functions to the Scottish ministers, enables the same result to be delivered for Scotland. Equivalent arrangements will be made for Northern Ireland.
The UK Government will in effect have the ultimate power to determine the Scottish ministers' share of the obligation. However, the extent of the share should be a matter for consultation between the United Kingdom Government and the Scottish ministers, and the present Government regard the aim of reaching agreement as a matter of great importance. We therefore believe that it is right that there should be a statutory requirement for the Scottish ministers to be consulted and, indeed, we would expect that any government would use their best endeavours to reach agreement with them about the size of their share of an international or Community obligation.
As with international and EC obligations more generally, the Government must be in a position to ensure that the United Kingdom's commitments are met. New subsection (6), which would be introduced into Clause 97 by the amendment, has the effect that, in relation to quantitative international obligations which are split using Clause 97, the Secretary of State's powers of intervention under Clause 54 will be available, as a last resort, in relation to the Scottish share of the obligation. This means that the Secretary of State will be able to intervene to ensure that the Scottish share of a quantitative international obligation is achieved.
As Members of the Committee will recall, the Bill defines an "international obligation" as excluding an obligation under European Community law. As far as EC obligations are concerned, we believe that the procedures for their enforcement should be as effective as those arising from other international obligations. We are examining whether anything more is required to enable the UK Government to be able to ensure that
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the Scottish ministers implement the Scottish share of a quantitative EC obligation and we will, if it proves necessary, bring forward further amendments at Report. I beg to move.
Lord Fraser of Carmyllie: I am not surprised that the noble and learned Lord took that passage not so much at a gentle trot, but at an accelerating gallop. It is an extremely complicated set of observations with regard to these amendments and will need to be examined carefully.
From an earlier intervention, the noble and learned Lord will be aware of my concerns that, at a point of tension or hostility between the United Kingdom Government and the Scottish parliament, the UK Government may seek to use their rights to determine international obligations in a way that deprives the Scottish parliament of the opportunities to exercise its power in what would otherwise be seen as an area of devolved power.
Clearly, it is important that such a set of powers should rest in the hands of the United Kingdom Government and the Kyoto example is an obvious and a valid one. However, the only question to which I should like an answer now is this. If there is to be quota or ratio determined, as I understood the noble and learned Lord, it will be the Secretary of State who determines what the Scottish quota or ratio is to be. If that is the case and it is not the First Minister who will be involved in that decision, other than the rather loose requirement of consultation, it seems to me yet again that there is an opportunity for conflict and tension.
Lord Renton: I want to draw attention to subsection (6) set out at the end of Amendment No. 292FFA. It is unprecedented; I have never seen its like before. It is an extraordinary piece of legislation. One will need a convincing, practical explanation of the need for it before enacting the words,
""so that the function to be transferred to the Scottish Ministers relates only to achieving so much of the result to be achieved under the obligation as is specified in the legislation".
I have never come across anything like that in my long parliamentary experience and the matter must be reconsidered. To enact something with so much uncertainty in its meaning is asking a bit much of us. I hope therefore that the noble and learned Lord will decide not to move Amendment No. 292FFA when it arises but will give an undertaking to consider it further and to give us a necessary and practical explanation of its effect.
Baroness Carnegy of Lour: Following what my noble and learned friend Lord Fraser of Carmyllie said, can the noble and learned Lord tell us whether he actually said that, if the two parliaments disagree about the share of the cost of whatever is undertaken, the Secretary of State for Scotland will arbitrate on the amount of the share? If he did say that, can he tell us why he thinks that that is the right way to proceed and why he thinks that it will work? This is important.
7 p.m.
Lord Hardie: Perhaps I may deal first with the point raised by the noble and learned Lord, Lord Fraser of Carmyllie, which was taken up by the noble Baroness, Lady Carnegy of Lour. As the noble and learned Lord appreciated, we are dealing with international obligations. We are talking about a United Kingdom function. The noble and learned Lord accepted the validity of the Kyoto example. Scotland would be required to contribute to the quota under the terms of Kyoto. In that example, the question that then arises is: what is the size of the Scottish quota? That will be a matter for negotiation between the Scottish executive and the United Kingdom Government. We regard the aim of reaching agreement about such matters as very important. The consultation requirement, which will be introduced by these amendments, will underpin that. There is a requirement to consult.
It is difficult to envisage circumstances, even if the Government in the United Kingdom were of a different political complexion from the executive in Scotland, where it would be in the interests of the United Kingdom Government to be seen to be imposing an unfair burden on Scotland. The Government of the United Kingdom obviously have responsibility for the entire United Kingdom.
The order under Clause 97 will be subject to Westminster procedures. As I have explained on government Amendment No. 292YNA, an order amending primary legislation will require affirmative resolution in both Houses of Parliament; otherwise it would be subject to the negative resolution.
We feel that there will be strong incentives for agreement on the size of the Scottish share. As I said, we expect the United Kingdom Government to use their best endeavours to achieve agreement. Ultimately, however, in the absence of such an agreement, the United Kingdom Minister would allocate the responsibilities between the different parts of the kingdom. I hope that that answers the point raised by the noble Baroness. We are referring to an international obligation which is the preserve of the United Kingdom Parliament, so it is appropriate that it should be handled by a United Kingdom Minister.
To take up the point raised by the noble Lord, Lord Renton, I appreciate that these amendments are complex. As the noble and learned Lord, Lord Fraser of Carmyllie, said, I cantered or galloped through the explanation. It is important that noble Lords should have the time to reflect on that explanation. I hope that, having done so, noble Lords will understand more clearly the thinking behind our amendments. I propose to move Amendment No. 292FFA at the appropriate time in the knowledge that once noble Lords have had the opportunity to read my remarks and to reflect upon them, they may on Report table such amendments as they think appropriate. We would give such amendments proper and full consideration, as we do with all amendments.
Lord Renton: Before the noble and learned Lord leaves that point, can he tell us whether there is a
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precedent for enabling subordinate legislation to modify an international obligation, as proposed here? It is not only most unusual, but unprecedented. Indeed, I should have thought that it was against our constitutional principles. If a government have entered into an international obligation, it is true that sometimes, by primary legislation and with the agreement of both Houses, we may vary it, but not by subordinate legislation.
Lord Hardie: I cannot think at present of any example. Perhaps I may reflect on that matter and write to the noble Lord about it.
On Question, amendment agreed to.
[Amendment No. 292FCD had been withdrawn from the Marshalled List.]
[Amendment No. 292FD not moved.]
Lord Hardie Lord Hardie moved Amendments Nos. 292FDA and 292FDB:
Page 45, line 11, after ("transfer") insert ("of a function").
Page 45, line 12, leave out ("of a function exercisable by a Minister of the Crown").
On Question, amendments agreed to.
[Amendment No. 292FE had been withdrawn from the Marshalled List.]
Lord Hardie Lord Hardie moved Amendment No. 292FEA:
Page 45, line 14, leave out ("of a Minister of the Crown").
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendment No. 292FF:
Page 45, line 21, at end insert ("or its other adaptation").
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendment No. 292FFA:
Page 45, line 21, at end insert—
("(4) No recommendation shall be made to Her Majesty in Council to make, and no Minister of the Crown shall make, subordinate legislation under this section which modifies a function of observing or implementing an obligation mentioned in subsection (5) unless the Scottish Ministers have been consulted about the modification.
(5) The obligation is an international obligation, or an obligation under Community law, to achieve a result defined by reference to a quantity (whether expressed as an amount, proportion or ratio or otherwise), where the quantity relates to the United Kingdom (or to an area including the United Kingdom or to an area consisting of a part of the United Kingdom which includes the whole or part of Scotland).
(6) If subordinate legislation under this section modifies a function of observing or implementing such an international obligation so that the function to be transferred to the Scottish Ministers relates only to achieving so much of the result to be

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achieved under the obligation as is specified in the legislation, references in section 54 to the international obligation are to be read as references to the requirement to achieve that much of the result.").
The Deputy Chairman of Committees (Lord Skelmersdale): The Question is, That Amendment No. 292FFA be agreed to?
Lord Renton: Not-Content.
The Deputy Chairman of Committees: The Question is, That this amendment be agreed to? As many as are of that opinion will say, "Content"; to the contrary, "Not-Content".
Noble Lords: Content.
The Deputy Chairman of Committees: The "Contents" have it.
On Question, amendment agreed to.
Clause 97, as amended, agreed to.
Clause 98 [Agreed redistribution of functions exercisable by the Scottish Ministers etc.]:
Lord Hardie Lord Hardie moved Amendment No. 292FG:
Page 45, line 28, leave out ("a Minister of the Crown") and insert ("the member of the Scottish Executive").
The noble and learned Lord said: In moving this amendment, I should like to speak also to Amendment No. 292FH. The amendments correct an error in the wording of Clause 98(1)(c). As drafted, subsection (1)(c) merely repeats subsection (1)(c) of Clause 59. It is intended that this should be a mirror image of that provision. The words "Minister of the Crown" and "member of the Scottish Executive" in Clause 98(1)(c) should be transposed if Clause 98 is to have its proper effect. That is what the amendments seek to achieve. I beg to move.
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendments Nos. 292FH and 292FJ:
Page 45, line 29, leave out ("member of the Scottish Executive") and insert ("Minister of the Crown").
Page 45, line 33, leave out ("another person") and insert ("any other of those persons").
On Question, amendments agreed to.
Lord Mackay of Ardbrecknish Lord Mackay of Ardbrecknish moved Amendment No. 292FK:
Page 45, line 39, at end insert—
("() This section shall not apply to the functions exercisable by the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland.").
The noble Lord said: These two small amendments, Amendments Nos. 292FK and 292FL, which stand in my name and that of my noble and learned friend, are intended to bolster the independence of the Lord Advocate in his discharge of his role of public prosecutor. That independence is already protected by Clause 27(5).
Some time ago my noble and learned friend moved an amendment to Clause 26, seeking to exclude from judicial review any decision by the Lord Advocate or the Solicitor-General to decline to answer questions. When the noble and learned Lord responds to the latter, perhaps he could also respond to these other issues if he cannot do so this evening. I look forward to hearing the noble and learned Lord's reply to these two small issues about the independence of his office. I beg to move.
Lord Fraser of Carmyllie: The noble and learned Lord the Lord Advocate will not be surprised that, as far as is possible in this legislation, I seek to entrench that independence of the position of the Lord Advocate to which my noble friend referred. Again, we want to probe here whether that will indeed be possible. While the provision to which my noble friend referred would seem to set the Lord Advocate properly apart from the Scottish executive, it seems, unless I have misunderstood the existing provision, that it would be possible for those functions presently exercisable by the Lord Advocate to be moved to any one of a number of other Ministers within the Scottish executive. As regards the system of criminal prosecution, I consider that to be wholly unacceptable.
I raised this matter at an earlier stage in relation to Clause 54. I was concerned that the Secretary of State might be able to intervene in the activities of the Lord Advocate where, in some manner, an international obligation was involved. When I consider the most important criminal prosecution that the noble and learned Lord has on his books at present, it seems to me that issues regarding international obligations may well arise. I shall not get involved in that aspect at this stage but, if possible, I should like to have some reassurance from the noble and learned Lord that by resort to this provision in the Bill the position of Lord Advocate could to all intents and purposes be abolished and a completely different approach to criminal prosecution in Scotland be adopted.
What I am about to say may not be as supportive as the noble and learned Lord would like, but I am not as concerned about the power that he currently enjoys to investigate deaths in Scotland. That would be unnecessarily restrictive if, for example, we were taking this forward in such a way that it appeared we were effectively trying to entrench his position in relation to the 1976 Act regarding fatal accidents and sudden deaths (with which the noble and learned Lord is very familiar) and, therefore, not allowing for any changes. To my mind, that is not nearly as important as the vital role that the Lord Advocate fulfils as head of the system of criminal investigation and prosecution in Scotland.
I firmly believe that that is the linchpin of the distinctive character of the Scottish criminal legal system. If that could be played with at some time in the future, I would regard that as being wholly undesirable. I hope that the noble and learned Lord will give me the same kind of assurance that my noble friend

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Lord Mackay seeks; namely, that the distinct position in the system of the Lord Advocate could not be played around with in the future by resort to this provision.
Lord Hardie: The position of the Lord Advocate in relation to other Scottish Ministers on the Scottish executive is of course protected. Clause 98 raises a different issue as to whether the functions can be transferred from the Lord Advocate back to Westminster. The answer to the question posed is that it does appear on the face of the Bill as drafted that that would be possible. However, in our view it is unlikely that that would be done because the role and functions of the Lord Advocate are a key part of the overall devolution settlement.
Nevertheless, in view of the points raised by Members of the Committee, I should like to reconsider the matter and decide whether any clarification is necessary. With that explanation and undertaking to give further consideration to the matter, I invite the noble Lord to withdraw the amendment.
Lord Mackay of Ardbrecknish: I am grateful to the noble and learned Lord for the assurance that he will reflect on the matter and reconsider it. These are waters in which I do not normally swim. Therefore, I am sure that the club of Lord Advocates and former Lord Advocates will be studying his words with care.
Lord Fraser of Carmyllie: I am very grateful for the noble and learned Lord's explanation. However, if he is going to reflect on the matter, perhaps he could ensure that the opportunity is allowed in the provision for the role of the Lord Advocate to return to the United Kingdom Parliament. That is a provision which I would warmly endorse.
Lord Mackay of Ardbrecknish: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 292FL not moved.]
Clause 98, as amended, agreed to.
7.15 p.m.
Lord Hardie Lord Hardie moved Amendment No. 292G:
After Clause 98, insert the following new clause—
AGREED REDISTRIBUTION OF PROPERTY AND LIABILITIES
(".—(1) Her Majesty may by Order in Council provide—

(a) for the transfer to a Minister of the Crown or government department of any property belonging to the Scottish Ministers or the Lord Advocate, or

(b) for a Minister of the Crown or government department to have such rights or interests in relation to any property belonging to the Scottish Ministers or the Lord Advocate as Her Majesty considers appropriate (whether in connection with a transfer or otherwise).

(2) Her Majesty may by Order in Council provide for the transfer to a Minister of the Crown or government department of any liabilities to which the Scottish Ministers or the Lord Advocate are subject.
(3) An Order in Council under this section may only be made in connection with any transfer or sharing of functions of a member of the Scottish Executive by virtue of section 98 or in any other circumstances in which Her Majesty considers it appropriate to do so for the purposes of this Act.").
Lord Renton: I hope that I am not wasting time, but I have a drafting point to raise which I believe should not be ignored. The amendment refers to,
"property belonging to the Scottish Ministers or the Lord Advocate".
Strictly speaking, that would include their private property. Moreover in subsection (2) we have reference to the,
"liabilities to which the Scottish Ministers or the Lord Advocate are subject".
That would also include any obligation awarded by a court against them to pay damages. Surely we really must make it clear that this is a reference to public property and public liabilities. Therefore, I hope that between now and the Report stage, the noble and learned Lord will bear that in mind and get this clause tidied up in that way.
Lord Hardie: I shall certainly give consideration to that drafting matter.
On Question, amendment agreed to.
Clause 99 [Scottish taxpayers for social security purposes]:
Lord Hardie Lord Hardie moved Amendment No. 292YGA:
Page 45, line 40, after ("individuals") insert ("of any description specified in the order").
On Question, amendment agreed to.
Clause 99, as amended, agreed to.
Clause 100 [Regulations of Tweed and Esk fisheries]:
The Deputy Chairman of Committees: Before I call Amendment No. 292ZGA, I should point out to Members of the Committee that, if it is agreed to, I shall be unable to call Amendment No. 292GA.
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 292ZGA:
Page 46, leave out lines 12 and 13 and insert ("or in connection with the conservation, management and exploitation of salmon, trout, eels and freshwater fish in the Border rivers.
(1A) An Order under subsection (1) may—

(a) exclude the application of section 49 in relation to any Border rivers function,

(b) confer power to make subordinate legislation.

(1B) In particular, provision may be made by such an Order—

(a) conferring any function on a Minister of the Crown, the Scottish Ministers or a public body in relation to the Border rivers,

(b) for any Border rivers function exercisable by any person to be exercisable instead by a person (or another person) mentioned in paragraph (a),

(c) for any Border rivers function exercisable by any person to be exercisable concurrently or jointly with, or with the agreement of or after consultation with, a person (or another person) mentioned in paragraph (a).").

The noble Baroness said: With the leave of the Committee, I should like to speak to Amendments Nos. 292GAA, 292GAB, 292GAC and 292GBA while

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moving this amendment. In providing for the matter of fisheries to be devolved, the Government have always recognised that special arrangements would be required in respect of the two border river systems which straddle the boundary between England and Scotland. It is universally accepted that the task of fisheries management needs to be approached on a whole-river basis. However, in doing so, anyone responsible for fisheries management for such a river system which lies both in England and Scotland would have to operate under the law of both England and Scotland. It is necessary, therefore, that the laws for regulating fisheries should be the same on both sides of the border. Our task in this Bill, therefore, is to enable both Parliaments to approve such laws, but in a way that ensures that any laws have to be agreed by both Parliaments.
If this problem were to arise between two sovereign countries, it would be customary for the legal framework for the shared river system to be agreed by treaty, which might then be given effect in the law of each country through their Parliaments. Such a legislative approach would be entirely flexible, and could deal with all aspects of fisheries, such as the setting up of cross-Border management bodies with powers to act under each legal system and by giving Ministers on each side any necessary reserve powers.
The set of amendments that the Government have proposed to Clause 100 are intended to allow much the same approach to be taken for the two border rivers between Scotland and England. In effect, we are providing for the legal framework for each of these rivers to be established by Orders in Council which would be prepared by the fisheries departments in both countries in co-operation: and for such orders to be capable of addressing the wide range of tasks of fisheries management. Such Orders in Council should also be flexible enough to offer a wide range of legal mechanisms for fisheries management—much as would be open for each Parliament if acting independently.
Amendment No. 292ZAB therefore sets out the purpose of any Order in Council in broad terms—the conservation, management or exploitation of any freshwater fish species. It provides for disapplying the normal arrangements for transferring functions under Clause 49 of the Scotland Bill, so that special arrangements can be made for the complex set of cross-Border functions that currently exist. It provides for Orders in Council to make provision for subordinate legislation, so that, for example, Ministers would have reserve powers to act by order. This amendment also clarifies that such orders may confer functions on Ministers or public bodies on either side of the Border and that such functions may be exercised in future either concurrently, jointly, or with the agreement of, or after consultation with, another Minister or public body. This should ensure that Ministers or public bodies, whether English or Scottish, are able to act with the same flexibilities as they do now in the interests of managing these fisheries.
Amendment No. 292GAA introduces certain new terms that are needed to clarify the scope of any Order in Council in amending existing fisheries enactments, and confirms that the purpose of conservation of fish can include protection of their environment.
Amendment No. 292GAB confirms that an Order in Council may amend a previous Order in Council made under the Scotland Act. Amendment No. 292GAC is a drafting amendment which is consequential on the third amendment. Finally, Amendment No. 292GBA deals with the definition of the Border river systems. It clarifies that the River Sark, which for a part of its length acts as the Border between Scotland and England, will be considered to be a tributary of the Esk for the purposes of this clause. It also enables Orders in Council to amend definitions of the Tweed and Esk, including in particular the definitions of the estuarial limit of both rivers.
Before I conclude I would like to add a brief remark following on the final point about the definitions of estuarial limits in relation to freshwater fisheries management in the Solway Firth. Under the present legal definition of the Esk, the estuarial limit is drawn so as to include all of the inner Solway Firth. There are significant salmon fisheries in that part of the Firth. And there are distinctive practices and regulations governing those salmon fisheries in England and Scotland. The relevant management bodies have drawn to our attention that significant difficulties arise for enforcement of salmon fisheries regulations as a result of the fluid nature of the boundary between England and Scotland in the Solway Firth. The boundary in the Solway Firth has, for many purposes, been taken to be the medium filum of the Esk—I am advised that is the legal phrase I have to use; it means the middle of the river—and then the combined Esk and Eden rivers at low tide. The topography of the inner Solway Firth is such that this channel can move considerably, and it is very difficult to demonstrate to the satisfaction of a court where the channel may be at any given point in time. This has been a frustration for enforcement agencies in that area, not just for many years, but for many generations.
That is why last year it was announced that the Government would investigate the option of establishing a fixed boundary in the Solway Firth. We have taken provision to establish such a boundary in Clause 112(2) of this Bill. By establishing a fixed boundary for the purposes of defining "Scotland" as that term is used in this Bill, we shall not directly alter the boundary as it may be understood in common law. We shall, however, provide a basis for establishing the jurisdiction of any future laws that may be made for England or Scotland, including any powers or duties that may be necessary to enforce regulations established by Order in Council under Clause 100. I believe this measure is therefore welcomed by all responsible bodies in that area. Taken together with the provisions in Clause 100 that allow a clear legal framework to be established for freshwater fisheries management in that area, I believe in time we

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shall see a satisfactory resolution of the outstanding issues on salmon fisheries management in the Solway Firth. I beg to move.
The Earl of Balfour: I apologise to the noble Baroness, Lady Ramsay of Cartvale, as I have not had time to study those amendments which were only laid when we resumed in October. However, I wish to raise one or two points that concern me. Section 141 of the Water Act 1989 extended the powers of the National Rivers Authority into Scotland up to the source of the River Esk in Scotland. Had that Act not extended the National Rivers Authority's functions north of the Border right into Scotland I would have complained in 1989 that the National Rivers Authority called itself "national" when it applied then only to England and Wales. That was obviously done with an eye to the catchment area for domestic water, the water we drink. There is also, of course, the matter of sewerage. While I have no objection to the Government's amendments, I am somewhat doubtful as to the actual boundary of the south-west Scotland water and sewerage authority in respect of Scotland and whether the English authority's boundary does not cross the Border in certain cases. I ask the Government to consider that.
While I admit that our wonderful river purification boards in Scotland have disappeared, we still have our Scottish environmental protection agency. I ask the Government to consider between now and Report whether there is an overlap here in respect of some of its boundaries. On the other side of Scotland almost the whole of the River Tweed is covered in particular by Chapter LXX of the 1859 River Tweed Amendment Act. I do not wish to waste the time of the Committee but I think that in addition to the fisheries aspect we need to consider the sewerage and water catchment aspects at this stage. That is rather a technical point. I shall leave it at that.
7.30 p.m.
Lord Fraser of Carmyllie: Perhaps I may say to the noble Baroness that this seems quite the most unromantic, but possibly practical, provision in the Bill. I do not want to delay matters now and I shall take the opportunity to read her remarks. However, it has long been a fascinating part of the relationship between England and Scotland that the River Esk, as it winds its way through the Solway sands, from time to time changes its course. Consequently, the question arises as to whether the particular machines used for fishing are lawful according to the law of Scotland or the law of England. There are fascinating complications in regard to whether charters were granted by James I of England or James VI of Scotland. If I understand the noble Baroness's remarks, there is to be a boring resolution of this matter, and money going to penniless advocates in Edinburgh might be reduced. As I understand it, what might follow is a set of arrangements whereby there would be a fixed line through the Solway sands that would determine who had jurisdiction in such circumstances. The noble Baroness nods so I take that to be her meaning. I still wonder whether that is an entirely practical solution. Since the River Esk shifts its course
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through such sands and winds from England to Scotland, perhaps I need not be too pessimistic. Perhaps there will be ample opportunity for future litigation in Edinburgh.
Lord Renton: Following my noble and learned friend's point, I ought first to confess that the only place where I foul-hooked a trout was the lower reaches of the River Solway. It was on the Scottish side of the river. I am surprised that the expression "Border rivers" should be confined to the Rivers Tweed and Esk, because the Solway is a Border river for a few miles.
The Earl of Balfour: Perhaps I may intervene with one more point. I believe that, strictly speaking, the Esk should be referred to as the South Esk, because there is the River Esk at Musselburgh.
Lord Mackay of Ardbrecknish: After 10 days, we now come to a matter of real importance. After many hours of what I would call high-level law we come to a matter that I understand—fishing. Like my noble and learned friend Lord Fraser of Carmyllie I have to say that understanding the law of fishing on the Solway boundaries is not easy. I shall turn to that presently.
When the Bill first appeared, I tabled a probing amendment. It is fair to say that the amendments moved today by the noble Baroness go a long way to satisfy the people who are interested and involved in matters concerning the Esk and the Solway in general.
Salmon and sea trout legislation north and south of the Border is very different. The organisations governing the river systems in both countries are different. As my noble friend Lord Balfour mentioned, the Tweed is catered for by special legislation. It covers the whole of the Tweed. Tweed fishing is not governed by Scottish legislation or English legislation; it is governed by its own legislation. However, that is not true of the rivers on the other side of the country which flow into the Solway. Sometimes they are in England; sometimes they are in Scotland; and sometimes one bank is in one country and the other bank is in the other. The Esk is the classic example.
That causes problems. For example, in Scotland fishing for salmon and sea trout on a Sunday is illegal, but that is not so in England. Looking at the river as a whole, the question therefore arises: can I fish it on a Sunday or not? Personally, I should never consider fishing a river on a Sunday for salmon or sea trout. But the question is: would someone be able to? Equally, in Scotland there are no rod licences, whereas there are in England. What would be the position in regard to rod licences on the Esk? Would it be considered to be English so far as rod licences are concerned and would one need a rod licence? These are difficult matters and I do not intend to probe too much. So far as I understand matters from my contacts, those who are involved in that part of the world, the amendments that are now proposed by the Government very much meet their approval. Indeed, I received a letter from my noble

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friend Lord De Ramsey, who is chairman of the Environment Agency, which is involved in the management of fisheries. The letter makes it clear that,
"the Agency's view is that the Government's amendments would make it possible via secondary legislation to manage the Esk fishery on a catchment basis … [and] solve the lack of a regulatory body for most of the River Sark which joins the Esk at Gretna and also provide more effective regulation of the Solway".
So I am reasonably satisfied.
My noble friend Lord Monro of Langholm has unfortunately had to travel north for an appointment tomorrow morning. He has long had an interest in this matter since his previous constituency bordered, and included in some places, the River Esk. He, too, wonders about the question of rod licences. My noble friend fought off various attempts to impose rod licences on the whole of the River Esk. Having left the field of battle in the other place, I think he hopes that rod licences will not be imposed on the River Esk. Perhaps the noble Baroness can help me on this point, either now or by letter.
There is a problem with the Solway itself. As the noble Baroness said—and my noble and learned friend Lord Fraser of Carmyllie amplified the point—the problem in the Solway is that the boundary can change as the river changes between the sandbanks. Ownership may not change. Therefore, an owner living in England may well find himself owning land, or rather sandbanks, which has moved into Scotland. Fishery legislation being different on either side of the Border, there is a huge problem in relation to the half-net fishery on one side and the ordinary fishery on the other. If you are caught on the wrong side, you just say, "Please, guv, I was fishing on the other side of the boundary. I wasn't fishing on the Scottish (or English) side", depending on which side you are fishing legally and where you are trying to fish illegally. It is a well-known fact that, so long as you have a permit somewhere to fish for salmon or sea trout you can move freely around and then plead that that is where you caught the salmon or sea trout if you are challenged when you come ashore. I assure your Lordships that the Solway is open to that.
If I heard the noble Baroness aright and she believes that all these matters can be resolved easily, I agree with my noble and learned friend Lord Fraser of Carmyllie. I am prepared to take bets on the fact that it will not be resolved easily. Indeed, it may never be resolved, because there are some people who think it is quite a good thing to have that rather moveable feast in the middle of the Solway.
Those who are interested in this matter will study the noble Baroness's words carefully. I assure her that, on the face of the amendments, those who are involved in the Esk fishery feel that the amendments meet their original concerns. I thank the noble Baroness for that.
Viscount Thurso: We on these Benches welcome the amendments. The noble Lord, Lord Mackay of Ardbrecknish, made the case for them. I recall that at Second Reading the noble Lord, Lord Nickson, who was chairman of the Scottish Salmon Strategy Task Force, thanked the noble Lord, Lord Sewel, for having included
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them, as that was one of the task force's recommendations. We very much welcome the amendments.
Baroness Ramsay of Cartvale: I thank the noble Viscount for welcoming the amendments. The noble Earl, Lord Balfour, and I have discussed the Tweed and the Esk previously during the Bill's passage. I undertake to write to the noble Earl about the important issues he raised in relation to sewerage and other matters.
I am sorry that the noble and learned Lord, Lord Fraser of Carmyllie, found my presentation of the subject unromantic. I should certainly not like to be thought of as stealing business from the legal fraternity. I am sure, as the noble Lord, Lord Mackay, said, that will not be the case. There is probably still a great deal of material to provide the wherewithal for their livelihood.
I will write to the noble Lord, Lord Renton, about his point regarding the south Solway. I do not have an answer now but I will clarify the point.
I will write also to the noble Lord, Lord Mackay of Ardbrecknish—whose knowledge of fishing is indubitably much greater than mine, and indeed many Members of this place—about rod licences, and also on the question of the Solway. I am grateful to the noble Lord for his positive remarks about the amendments.
On Question, amendment agreed to.
[Amendment No. 292GA not moved.]
Lord Sewel Lord Sewel moved Amendments Nos. 292GAA to 292GAC:
Page 46, line 14, at end insert—
(""the Border rivers" means the Rivers Tweed and Esk,
"Border rivers function" means a function conferred by any enactment, so far as exercisable in relation to the Border rivers,
"conservation", in relation to salmon, trout, eels and freshwater fish, includes the protection of their environment,").
Page 46, line 16, at end insert—
(""enactment" includes one made under this Act,").
Page 46, line 17, leave out ("that Act") and insert ("the Salmon and Freshwater Fisheries Act 1975").
On Question, amendments agreed to.
[Amendment No. 292GB not moved.]
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 292GBA:
Page 46, line 19, leave out from ("Scotland") to end of line 20 and insert ("including—

(a) its tributary streams (which for this purpose include the River Sark and its tributary streams), and

(b) such waters on the landward side of its estuary limits as are determined by an Order under subsection (1),

together with its banks;
and references to the Border rivers include any part of the Border rivers.
() An Order under subsection (1) may modify the definitions in subsection (2) of the River Tweed and the River Esk.").
On Question, amendment agreed to.
Clause 100, as amended, agreed to.
Clause 101 [Subordinate legislation: general]:
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendments Nos. 292GBAA to 292GBAC:
Page 46, line 24, at beginning insert—
("(A1) Any power to make subordinate legislation conferred by this Act shall, if no other provision is made as to the person by whom the power is exercisable, be exercisable by Her Majesty by Order in Council or by a Minister of the Crown by order.
(B1) But the power to make subordinate legislation under section 115(3) providing—

(a) for the appropriation of sums forming part of the Scottish Consolidated Fund, or

(b) for sums received by any person to be appropriated in aid of sums appropriated as mentioned in paragraph (a),

shall be exercisable only by Her Majesty by Order in Council.
(C1) References in this Act to an open power are to a power to which subsection (A 1) applies (and include a power to make subordinate legislation under section 115(3) whether or not the legislation makes provision as mentioned in subsection (B1)).
(D1) An Order in Council under an open power may revoke, amend or re-enact an order, as well as an Order in Council, under the power; and an order under an open power may revoke, amend or re-enact an Order in Council, as well as an order, under the power.").
Page 46. line 27, leave out subsections (2) to (4).
Page 47, line 1, leave out subsections (6) to (12).
On Question, amendments agreed to.
Clause 101, as amended, agreed to.
Lord Hardie Lord Hardie moved Amendment No. 292GBAD:
After Clause 101, insert the following new clause—
SUBORDINATE LEGISLATION: SCOPE OF POWERS
(".—(1) References in this section to a power are to an open power and to any other power to make subordinate legislation conferred by this Act which is exercisable by Her Majesty in Council or by a Minister of the Crown, and include a power as extended by this section.
(2) A power may be exercised so as to make different provision for different purposes.
(3) A power (as well as being exercisable in relation to all cases to which it extends) may be exercised in relation to—

(a) those cases subject to specified exceptions, or

(b) any particular case or class of case.

(4) A power includes power to make—

(a) any supplementary, incidental or consequential provision, and

(b) any transitory, transitional or saving provision,

which the person making the legislation considers necessary or expedient.
(5) A power may be exercised by modifying—

(a) any enactment or prerogative instrument,

(b) any other instrument or document,

if the subordinate legislation (or a statutory instrument containing it) would be subject to any of the types of procedure referred to in Schedule (Procedure for subordinate legislation).
(6) A power may be exercised so as to make provision for the delegation of functions.
(7) A power includes power to make provision for sums to be payable out of the Scottish Consolidated Fund or charged on the Fund.
(8) A power includes power to make provision for the payment of sums out of money provided by Parliament or for sums to be charged on and paid out of the Consolidated Fund.
(9) A power may not be exercised so as to create any criminal offence punishable—

(a) on summary conviction, with imprisonment for a period exceeding three months or with a fine exceeding the amount specified as level 5 on the standard scale,

(b) on conviction on indictment, with a period of imprisonment exceeding two years.

(10) The fact that a power is conferred does not prejudice the extent of any other power.").
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendment No. 292GBAE:
After Clause 101, insert the following new clause—
SUBORDINATE LEGISLATION: PARTICULAR PROVISIONS
(".—(1) A power to make subordinate legislation conferred by any of the following provisions of this Act may be exercised by modifying any enactment comprised in or made under this Act (except Schedules 4 and 5): sections 84, 92, 95, 98, and 115(3).
(2) The reference in subsection (1) to a power to make subordinate legislation includes a power as extended by section (Subordinate legislation: scope of powers).
(3) A power to make subordinate legislation conferred by any of the following provisions of this Act may be exercised so as to make provision having retrospective effect: sections 29, 54(4), 92 and 95.").
On Question, amendment agreed to.
Clause 102 [Subordinate legislation: procedure]:
[Amendments Nos. 292GBAF to 292GBS not moved.]
Lord Hardie Lord Hardie moved Amendment No. 292GBT:
Leave out Clause 102 and insert the following new clause—
SUBORDINATE LEGISLATION: PROCEDURE
(".—(1) Schedule (Procedure for subordinate legislation) (which determines the procedure which is to apply to subordinate legislation under this Act in relation to each House of Parliament and the Scottish Parliament) shall have effect.
(2) In spite of the fact that that Schedule provides for subordinate legislation under a particular provision of this Act (or the statutory instrument containing it) to be subject to any type of procedure in relation to the Parliament, the provision conferring the power to make that legislation may be brought into force at any time after the passing of this Act.
(3) Accordingly, any subordinate legislation (or the statutory instrument containing it) made in the exercise of the power in the period beginning with that time and ending immediately before the principal appointed day is to be subject to such other type of procedure (if any) as may be specified in subordinate legislation made under section 115(3).").
On Question, amendment agreed to.
Clause 103 [Subordinate legislation: supplementary]:
On Question, Whether Clause 103 shall stand part of the Bill?
Lord Hardie: As I explained, this clause has been replaced as a result of amendments.
Clause 103 negatived.
Lord Selkirk of Douglas Lord Selkirk of Douglas moved Amendment No. 292GC
After Clause 103, insert the following new clause—
SUBORDINATE LEGISLATION: FIRE SAFETY
(" . In making subordinate legislation in relation to fire safety, the Parliament shall have regard to fire safety legislation in England and Wales.").
The noble Lord said: I can speak very briefly to this amendment which concerns harmonisation in relation to fire safety. Building in Scotland is not identical to that in England, and in the north far more buildings are constructed with timber frames. There has been a substantial debate about the making safe of windows because, sadly, in the past some young children have fallen to their deaths. If windows are not capable of being opened, fatalities can arise if there is a serious fire. It is a question of getting the right balance to make sure that windows are secure so that children cannot fall and that occupants can escape in the event of a serious fire.
I believe that in this area there is a strong case for safety legislation on fire to be in harmony north and south of the Border. Apart from anything else, there can be an emergency near to one side of the Border which might require fire engines from both sides to participate. This does not mean that the safety legislation needs to be identical, but it should be in harmony on a subject of such importance.
When the noble Lord, Lord Sewel, answered the debate initiated by the noble Lord, Lord Howie of Troon, on 15th June this year, he said:
"The process of harmonisation of the building standards of England. Wales and Northern Ireland is a joint process. In a way it is intended to the extent that harmonisation is attractive. It is intended that the best aspects of each set of regulations are retained … harmonisation is very much a two-way process … there may well be a case here for harmonisation to be towards the Scottish practice rather than in the other direction".—[Official Report, 15/6/98; col. 1393.]
Whether or not the Minister was correct in that connection, it seems that, as a matter of principle, harmonisation is necessary in the interests of saving lives. I beg to move.
7.45 p.m.
Baroness Ramsay of Cartvale: I understand the concerns behind the amendment, but we are confident that the amendment is unnecessary. We made clear in the White Paper our intention to devolve general fire safety, and that remains our intent. At present, such legislation is essentially the same across Britain, but it differs to a degree where there is a need to relate general fire safety provisions to separate Scottish legislation on, for example, building control or houses in multiple occupation. Because of this similarity, it is only reasonable to expect that the Scottish parliament will have regard to what is happening south of the Border if and when it considers making changes to legislation relating to general fire safety.
For the most part, with regard to general fire safety, there can be no specifically and specially Scottish circumstances or considerations, and that is why both the legislation and the consultation documents on possible changes to it have hitherto been on a Great Britain basis. There is also an existing structure of Great Britain committees and working groups which covers all fire service matters, including general fire safety. We have every reason to suppose that those will continue after devolution.
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Even after devolution any new legislative proposals are likely to be on a common basis, north and south of the Border. We should not forget that for some aspects of general fire safety the Scottish parliament will have to adhere to the terms of European Union directives in the same way as Westminster does. Similarly, if the noble Lord has concerns about fire safety references in building control legislation, he may wish to note that the Government envisage that the existing network of contacts and working groups across the Border will continue in this field.
Taking all these considerations together, we feel that there is no need formally to require the parliament to have regard to legislation in England and Wales. However, as I hope I have explained, the Government envisage that the new parliament will do that and that it is most unlikely to diverge from the position in England and Wales unless there are very sound reasons to do so. In the light of all that, I hope that the noble Lord will be able to withdraw his amendment.
Lord Selkirk of Douglas: I am grateful to the Minister for her assurances. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 104 [Transfer of property: supplementary]:
Lord Hardie Lord Hardie moved Amendments Nos. 292H to 292N:
Page 49, line 9, leave out (", 60").
Page 49, line 9, leave out ("or 85") and insert (", 85 or (Agreed redistribution of property and liabilities)").
Page 49, line 13, leave out ("under the") and insert ("by virtue of such").
Page 49, line 15, leave out ("the") and insert ("such").
Page 49, line 17, leave out ("by or under the") and insert ("by virtue of such").
Page 49, line 47, at end insert—
("() A certificate issued by the Secretary of State that any property or liability has, or has not, been transferred by virtue of subordinate legislation under section 56 or 58 or paragraph 2 of Schedule 2 shall be conclusive evidence of the transfer or (as the case may be) the fact that there has not been a transfer.
() A certificate issued by the Secretary of State and the Scottish Ministers that any property or liability has, or has not, been transferred by virtue of an Order in Council under section 85 or (Agreed redistribution of property and liabilities) shall be conclusive evidence of the transfer or (as the case may be) the fact that there has not been a transfer.").
On Question, amendments agreed to.
Clause 104, as amended, agreed to.
Clause 105 [Ministers of the Crown]:
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 292HNA.
Page 50, line 5, after ("exercise") insert ("of a function").
The noble Baroness said: In moving Amendment No. 292HNA, I shall speak also to Amendments Nos. 292JNA, 292KNA and 292LNA. This is a set of technical amendments designed to clarify the operation of Clauses 105, 106 and 107, which deal with general modifications of enactments.
Clause 105 provides for references to a Minister of the Crown in various forms of legislation to be read in appropriate cases as being or including a reference to the Scottish ministers. At present this will apply where functions are exercisable by a member of the Scottish executive by virtue of Clause 49. Amendments Nos. 292HNA and 292JNA adapt this so that the clause applies where a member of the Scottish executive exercises functions within devolved competence, aligning it with the wording now used elsewhere in the Bill. Amendment No. 292KNA alters the description of the legislation to which the clause applies to make it clear that it applies to documents which may, in terms of particular legislation, be termed "instruments". Amendment No. 292LNA ensures that references to Ministers of the Crown are caught however they may be described in particular legislation.
I turn to Amendments Nos. 292MNA and 292SNA. Clause 106 translates provisions in pre-commencement enactments so that subordinate legislation is laid before the Scottish parliament instead of this Parliament in appropriate cases. Amendments Nos. 292MNA and 292NNA in Clause 106 similarly link the operation of that clause to the concept of devolved competence rather than depend on the transfer of the functions through Clause 49.
Amendment No. 292PNA clarifies the application of the clause where the function of making the subordinate legislation is exercisable by a person other than a Minister of the Crown, such as Her Majesty, the Registrar General or the courts.
Amendments Nos. 292UNA to 292WNA divide Clause 107 into two clauses by separating subsection (8) which deals with accounts and audits from the remainder of the clause which deals with payments into and out of the Consolidated Fund. A consequential amendment is made to Clause 108. The amendments are purely presentational and have no substantial effect. I beg to move.
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendments Nos. 292JNA to 292LNA:
Page 50, line 5, leave out from ("Executive") to ("any") in line 6 and insert ("within devolved competence").
Page 50, line 6, leave out from ("enactment") to ("document") in line 7 and insert ("or prerogative instrument, and any other instrument or").
Page 50, line 8, after ("Crown") insert ("(however described)").
On Question, amendments agreed to.
Clause 105, as amended, agreed to.
Clause 106 [Subordinate instruments]:
Lord Hardie Lord Hardie moved Amendments Nos. 292MNA to 292SNA:
Page 50, line 10, leave out ("by virtue of section 49") and insert ("within devolved competence").
Page 50, line 20, leave out ("virtue of section 49") and insert ("a member of the Scottish Executive within devolved competence").
Page 50, line 22, leave out subsection (3) and insert—("(3) Where—

(a) a function of making, confirming or approving subordinate legislation conferred by a pre-commencement enactment is exercisable by a Scottish public authority to which paragraph 1 or 2 of Part III of Schedule 5 applies, and

(b) a pre-commencement enactment makes such provision in relation to the exercise of the function as is mentioned in subsection (2),

the provision shall have effect, so far as it relates to the exercise of the function by that authority, as if any reference in it to Parliament or either House of Parliament were a reference to the Scottish Parliament.
(3A) Where—

(a) a function of making, confirming or approving subordinate legislation conferred by a pre-commencement enactment is exercisable within devolved competence by a person other than a Minister of the Crown, a member of the Scottish Executive or a Scottish public authority to which paragraph 1 or 2 of Part III of Schedule 5 applies, and

(b) a pre-commencement enactment makes such provision in relation to the exercise of the function as is mentioned in subsection (2),

the provision shall have effect, so far as it relates to the exercise of the function by that person within devolved competence, as if any reference in it to Parliament or either House of Parliament were a reference to the Scottish Parliament.").
Page 50, line 27, after ("(3)") insert ("or (3A)").
Page 50, line 28, leave out from ("as") to ("as") in line 29 and insert ("the function is exercisable as mentioned in paragraph (a) of subsection (3) or, as the case may be, (3A)").
Page 50, line 31, leave out subsection (5).
On Question, amendments agreed to.
Clause 106, as amended, agreed to.
Clause 107 [Consolidated Fund, etc.]:
Lord Hardie Lord Hardie moved Amendments Nos. 292TNA and 292UNA:
Page 50, line 33, leave out subsection (1) and insert—
("(1) In this section "Scottish functions" means—

(a) functions of the Scottish Ministers, the First Minister or the Lord Advocate which are exercisable within devolved competence,

(b) functions of any Scottish public authority to which paragraph 1 or 2 of Part III of Schedule 5 applies.").

Page 51, line 37, after ("functions") insert ("(within the meaning of subsections (1) to (7))").
On Question, amendments agreed to.
Clause 107, as amended, agreed to.
Lord Hardie Lord Hardie moved Amendment No. 292VNA:
Divide Clause 107 into two Clauses, the first (Consolidated Fund, etc.) to consist of subsections (1) to (7) and the second (Accounts and audit) to consist of subsection (8).
On Question, amendment agreed to.
Clause 108 [Requirements to lay reports etc. before Parliament]:
Lord Hardie Lord Hardie moved Amendment No. 292WNA:
Page 52, line 5, leave out ("107") and insert ("(Consolidated Fund. etc.)").
On Question, amendment agreed to.
Clause 108, as amended, agreed to.
Clause 109 agreed to.
Clause 110 [Stamp duty]:
On Question, Whether Clause 110 shall stand part of the Bill?
Lord Fraser of Carmyllie: The Committee has formally agreed that a large number of amendments should be made to the Bill without any intervention. The Government will appreciate that some of them are, or potentially may be, extremely complicated. Without something like a Keeling schedule it is extremely difficult to work out exactly what they amount to. Without suggesting that we will make difficulties about them, I simply place on record that we want an opportunity to see them in their context and may return to some of them at Report stage.
Lord Renton: Earlier I suggested that the Lord Advocate was a Minster of the Crown. Clause 110 makes it clear that he is a Minister of the Crown although I was told at the time that he would no longer be.
Lord Hardie: The very fact that the Lord Advocate has ceased to be a Minister of the Crown requires Clause 110 to give him exemption from stamp duty. Therefore, I am added back in for the purpose of exemption from stamp duty. I am sure that the noble Lord would not wish me to pay stamp duty unnecessarily.
Clause 110 agreed to.
Lord Hardie Lord Hardie moved Amendment No. 292XNA:
After Clause 110, insert the following new clause—
MODIFICATION OF SECTIONS 105 TO 109
(".—(1) Subordinate legislation may provide for any provision of sections 105 to 109 not to apply, or to apply with modifications, in such cases as the person making the legislation considers appropriate.
(2) Subordinate legislation made by Her Majesty in Council or a Minister of the Crown under this Act may, in connection with any other provision made by the legislation, also provide for any provision of sections 105 to 109 not to apply, or to apply with modifications.").
On Question, amendment agreed to.
Clause 111 agreed to.
Lord Hardie Lord Hardie moved Amendment No. 292YNA:
Before Schedule 7 insert the following new schedule—
("SCHEDULE
PROCEDURE FOR SUBORDINATE LEGISLATION
General provision
1.—(1) Subordinate legislation (or a statutory instrument containing it) under a provision listed in the left-hand column is subject to the type of procedure in the right-hand column.
(2) This paragraph is subject to paragraphs 3 and 4.

Provision of the Act

Type of procedure

Section 2(1)

Type C

Section 11(1)

Type C

Section 14

Type D

Section 17(5)

Type J

648

Section 29

Type A

Section 33

Type I

Section 36

Type J

Section 54

Type I

Section 56

Type G

Section 58

Type G

Section 59

Type A

Section 61(5)

Type K

Section 64(3)

Type E

Section 75

Type E

Section 83

Type I

Section 84

Type F

Section 85

Type F

Section 92

Type G

Section 94(3)(a) and (b)

Type I

Section 95

Type G

Section 96

Type G

Section 97

Type G

Section 98

Type A

Section (Agreed redistribution of property and liabilities)

Type H

Section 99(1)

Type C

Section 99(2)

Type I

Section 100

Type A

Section 104(9)

Type G

Section (Modification of sections 105 to 109)(1)

Type G

Section 112(2)

Type B

Section 112(7)

Type H

Section 115(3)

Type G

Schedule 2, paragraph 2

Type G

Schedule 2, paragraph 7

Type H

Notes
The entry for section 54 does not apply to an instrument containing an order merely revoking an order under subsection (1) of that section.
The entry for section 75, in relation to an instrument containing an order which makes only such provision as is mentioned in section 75(3), is to be read as referring to type K instead of type E.
Types of procedure
2. The types of procedure referred to in this Schedule are—
Type A: No recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument—

(a) has been laid before, and approved by resolution of, each House of Parliament, and

(b) has been laid before, and approved by resolution of, the Parliament.

Type B: No recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.
Type C: No Minister of the Crown is to make the legislation unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament.
Type D: No recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument has been laid before, and approved by resolution of, the Parliament.
Type E: No Minister of the Crown is to make the legislation unless a draft of the instrument has been laid before, and approved by resolution of, the House of Commons.
Type F: The instrument containing the legislation, if made without a draft having been approved by resolution of each House of Parliament and of the Parliament, shall be subject to annulment in pursuance of—

(a) a resolution of either House, or

(b) a resolution of the Parliament.

Type G: The instrument containing the legislation, if made without a draft having been approved by resolution of each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House.
Type H: The instrument containing the legislation shall be subject to annulment in pursuance of—

(a) a resolution of either House of Parliament, or

(h) a resolution of the Parliament.

Type I: The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Type J: The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of the Parliament.
Type K: The instrument containing the legislation shall be subject to annulment in pursuance of a resolution of the House of Commons.
Special cases
3.—(l) This paragraph applies if—

(a) the instrument containing the legislation would, apart from this paragraph, be subject to the type F, G, H, I or K procedure, and

(b) the legislation contains provisions which add to, replace or omit any part of the text of an Act (including this Act).

(2) Where this paragraph applies—

(a) instead of the type F procedure, the type A procedure shall apply,

(b) instead of the type G procedure, the type B or (as the case may be) C procedure shall apply,

(c) instead of the type H procedure, the type A procedure shall apply,

(d) instead of the type I procedure, the type B or (as the case may be) C procedure shall apply,

(e) instead of the type K procedure, the type E procedure shall apply.

4. If legislation under section 115(3) makes provision as mentioned in section 101(B1) then, instead of the type G procedure, the type D procedure shall apply.
5.—(1) An instrument containing an Order in Council or order under an open power which revokes, amends or re-enacts subordinate legislation under an open power may (in spite of section 14 of the Interpretation Act 1978) be subject to a different procedure under this Schedule from the procedure to which the instrument containing the original legislation was subject.
(2) An instrument containing an Order in Council under section 84 or 85 which revokes, amends or re-enacts an Order under either section may (in spite of section 14 of the Interpretation Act 1978) be subject to a different procedure under this Schedule from the procedure to which the instrument containing the original Order was subject.").
On Question, amendment agreed to.
Schedule 7 [Modifications of enactments]:
Lord Hardie Lord Hardie moved Amendment No. 292ZNA:
Page 90, line 12, at end insert—
("() In section 38(2) (interpretation)—

(a) in the definition of "His Majesty's aircraft", after "Kingdom" there is inserted "or the Scottish Administration",

(b) in the definition of "His Majesty's ships", after "Kingdom" there is inserted "or the Scottish Administration" and after "said Government" there is inserted "or Administration". and

(c) in the definition of "officer", after "Minister of the Crown" there is inserted "and a member of the Scottish Executive".

() In section 40 (savings)—

(a) in subsection (2), after "in the United Kingdom", in each place where those words occur, there is inserted "or the Scottish Administration", and

(b) after subsection (3) there is inserted—"

"(3A) A certificate of the Scottish Ministers to the effect that—

(a) any alleged liability of the Crown arises otherwise than in respect of the Scottish Administration,

(b) any proceedings by the Crown are proceedings otherwise than in right of the Scottish Administration,

shall, for the purposes of this Act, he conclusive as to that matter."").
The noble and learned Lord said: In moving Amendment No. 292ZNA I should like to speak also to Amendment No. 292NB. Amendment No. 292ZNA makes certain amendments to the Crown Proceedings Act 1947 which are consequential on the creation of the Scottish administration. The first part of the amendment deals with the interpretation provisions in Section 38(2). It ensures that the definition of Her Majesty's ships and aircraft covers those ships and aircraft which may belong to Her Majesty in right of the Scottish administration as well as in right of the UK Government. It also provides that a member of the Scottish executive is an officer in relation to the Crown for the purposes of the Act which puts him in the same position as a Minister of the Crown in the UK Government.
The second part of the amendment deals with Section 40 and ensures that it applies Crown liabilities and proceedings in respect of the Scottish administration in the same way that it applies to such liabilities and proceedings in respect of the UK Government. The final part of the amendment ensures that Scottish ministers can certify that liabilities of the Crown or proceedings against the Crown are otherwise in the right of the Scottish administration. This ensures that they can make similar provision to the Secretary of State who can certify in respect of Her Majesty's Government.
Amendment No. 292NB amends Section 46 of the Civil Jurisdiction and Judgments Act 1982 which makes provisions about the domicile and seat of the Crown for civil jurisdiction purposes. Amendment No. 292NB provides that the Crown in right of the Scottish administration has its seat in, and in every place in, Scotland and makes a consequential amendment to subsection (7) adding a reference to the Scottish administration.
The Government consider it necessary that these amendments should be made on the face of the Bill rather than under clause 96 because they make clear the status which we intend the Scottish administration should have: a part of the Crown separate and distinct from the UK Government, in effect Her Majesty's Government in Scotland in relation to devolved matters. I ask noble Lords to support these amendments. I beg to move.
Lord Mackay of Ardbrecknish: While I am somewhat reluctant to halt this headlong dash for the tape as far as concerns the Committee stage of the Bill,

651
I am intrigued by the idea that some of Her Majesty's ships and aircrafts may be in the ownership of the Scottish administration. I was under the impression that defence was not a delegated power but was reserved. Perhaps the noble and learned Lord will tell me which ships and aircraft will be in the ownership of the Scottish administration, and who will be the admiral of the fleet.
8 p.m.
Lord Hardie: In answer to the noble Lord's second question, perhaps he would be interested in applying. In answer to his first question, the provision relates to the defence not of the realm but of fish—a subject close to the noble Lord's heart. The fishery protection fleet is in part owned by the Scottish administration.
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendments Nos. 292NA and 292NB:
Page 91, line 26, leave out ("38A") and insert ("38AB").
Page 92, line 19, at end insert—
("Civil Jurisdiction and Judgments Act 1982 (c.27)
.—(1) Section 46 of the Civil Jurisdiction and Judgments Act 1982 (domicile and seat of the Crown) is amended as follows.
(2) In subsection (3), after paragraph (a) there is inserted—
"(aa) the Crown in right of the Scottish Administration has its seat in, and in every place in, Scotland,".
(3) In subsection (7), after "Kingdom" there is inserted ", the Scottish Administration".").
On Question, amendments agreed to.
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 292NBA:
Page 92, line 34, at end insert—
("Tourism (Overseas Promotion) (Scotland) Act 1984 (c.4)
. In section 1 of the Tourism (Overseas Promotion) (Scotland) Act 1984 (power of Scottish Tourist Board to promote tourism in Scotland outside UK), subsection (2) is omitted.").
The noble Baroness said: Amendments Nos. 292NBA and 292QC are consequential on the devolution of the subject of tourism. They remove the requirement for the Scottish Tourist Board to obtain the approval of Ministers, following consultation with the British Tourist Authority, for its overseas marketing activities.
Both the Scottish Tourist Board and the British Tourist Authority have the power to market Scotland overseas. This will continue. Following devolution, however, the STB overseas marketing activity will no longer be, as it is now, secondary to that of the BTA. Overseas marketing will simply be one of a number of activities which STB undertake and for which they will be accountable to the Scottish Ministers and through them to the Scottish Parliament. In these circumstances, the Government believe that a requirement to consult with the BTA would be inappropriate. We also believe that it is unnecessary to require the board to obtain the
652
consent of Scottish Ministers. They will not be required by statute to obtain such consent for any other activity. I beg to move.
Viscount Thurso: Perhaps I may seek clarification from the noble Baroness. Am I right to assume that tourism is a wholly devolved matter and that there is no requirement for the Scottish tourist minister (if such a person will exist in the executive) to have any connection with the BTA if Scotland chooses not to have that connection?
Baroness Ramsay of Cartvale: I think that the answer to that question is yes. If it is not, I shall write to the noble Viscount.
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendment No. 292NC:
Page 94, line 3, at end insert—
("Official Secrets Act 1989 (c.6)
.—(1) Section 12 of the Official Secrets Act 1989 (meaning of "Crown servant" and "government contractor" for the purposes of that Act) is amended as follows.
(2) In subsection (1), after paragraph (a) there is inserted—
"(aa) a member of the Scottish Executive or a junior Scottish Minister;".
(3) In subsection (2)(a), after "above," there is inserted "of any office-holder in the Scottish Administration,".
(4) After subsection (3), there is inserted—
"(3A) In this section "office-holder in the Scottish Administration" has the same meaning as in section 112(6)(a) of the Scotland Act 1998.".").
The noble and learned Lord said: This government amendment provides that members of the Scottish executive and junior Scottish Ministers are Crown servants for the purposes of the Official Secrets Act 1989. It ensures that they are subject to the offences created by the Act and that they are able to receive and, if necessary, disclose information covered by the 1989 Act. It will put them in the same position as Ministers in the UK Government. It will also put them in the same position as their staff, who will of course be civil servants and, as such, Crown servants without the need for any amendment.
The 1989 Act also makes provision about disclosures by government contractors—that is, essentially, those people who are not civil servants but who provide goods or services for the purposes of ministers, the civil service, the police and the military. Amendment No. 291NC provides that people providing goods and services for the purpose of any office-holder in the Scottish administration will also be government contractors for these purposes.
The amendment makes the correct provision. It is necessary for the Scottish Ministers to be able to carry out their duties to the full and for there to be no anomalies in the position of Ministers as against their civil servants in respect of access to information and I would urge the Committee to support it. We consider that the amendment tabled by the noble Lord,

653
Lord Mackay, about the Official Secrets Act is flawed in a number of ways, and I invite him to withdraw it. I beg to move.
Lord Mackay of Ardbrecknish: I am grateful to the noble and learned Lord for his explanation. I do not know whether or not Amendment No. 292ND is defective. It addresses the same problem. We are glad to see that the Government have taken the matter on board and have put forward their own amendment. I accept that it is properly drafted, but one never knows.
On Question, amendment agreed to.
[Amendment No. 292ND not moved.]
Lord Hardie Lord Hardie moved Amendment No. 292NE:
Page 94. line 39, leave out from beginning to ("there") and insert—
(".() The Criminal Procedure (Scotland) Act 1995 is amended as follows.
() After section 288").
The noble and learned Lord said: In moving the amendment, I speak also to Amendment No. 292QA. These amendments are intended to ensure that the High Court of Justiciary has appropriate powers to give effect to a decision by the Judicial Committee on an appeal from the High Court on a devolution issue.
The role of the Judicial Committee will be to make a determination on the issue. Having done so, it will inform the High Court of its decision. It will then be for the High Court to implement the determination in the circumstances of the particular case and for this purpose it will have all the powers it has when sitting as an appeal court.
While the High Court will have to give effect to the Judicial Committee's decision, it will have to consider what the implications of this are for the case, and whether a conviction should be affirmed, quashed or amended, or authority for a new prosecution granted. In some cases, it may be necessary to quash the conviction. In others, a number of charges may be involved. In these cases the sentence may also require to be reviewed as well. The point is that it will be for the High Court to decide what is appropriate.
The amendments also make it clear, however, that any earlier acquittal or quashing of a conviction in the proceedings will not be affected by any determination of an appeal by the Judicial Committee.
Further amendments to the Criminal Procedure (Scotland) Act 1995 will be made by an order under Clause 96, a working draft of which has already been placed in the Library. I beg to move.
On Question, amendment agreed to.
Viscount Thurso Viscount Thurso moved Amendment No. 292P:
Page 95, line 18, after ("counsel") insert ("or by a solicitor").
The noble Viscount said: With the leave of the Committee, I should like to move the amendment in the name of my noble friend Lord Mar and Kellie. My speech will necessarily be brief because until my noble friend had to catch a flight I did not have the slightest knowledge or understanding of the amendment.
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I therefore ask the Committee's indulgence. The amendment also concerns lawyers, so I am out of my depth in a major way.
The amendment seeks to insert the words "or by a solicitor" after the words "counsel" at line 18 on page 95. It is an entirely probing amendment and boils down to a simple question. I understand that it comes from the Law Society of Scotland. The simple question is to discover whether in the Bill, and in the Act when it is enacted, the word "counsel" will include or exclude solicitor advocates.
I understand that, in the Criminal Procedure (Scotland) Act 1995, the Criminal Legal Aid (Scotland) Regulations 1996 and the Criminal Legal Aid (Scotland) (Fees) Regulations 1989, it states specifically under "Interpretation" that counsel includes a solicitor advocate. However, the Code of Conduct (Scotland) Rules 1992 for solicitors appears to separate the two. Therefore there may be some misunderstanding. Effectively the Law Society of Scotland would like to know whether solicitor advocates are included in Schedule 7 and will have the right to plead in court. My instructions are that if I receive any confirmation, I can withdraw the amendment with grace. I beg to move.
Lord Selkirk of Douglas: I support the noble Lord's recommendations. The Law Reform (Miscellaneous Provisions) Act makes allowance for solicitor advocates to appear. Why then should they be excluded from the right of appeal?
As regards Amendment No. 292Q, the provision in the Bill simply allows the court to appoint counsel as amicus curiae. Solicitors with extended rights of audience should also be capable of being appointed.
Lord Hardie: I am sorry to interrupt the noble Lord. Perhaps I may short circuit proceedings by saying to the noble Viscount that the answer is yes, and invite him to withdraw the amendment.
Viscount Thurso: As instructed, and with humility and grace, I thank the noble and learned Lord for his answer and and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 292Q not moved.]
Lord Hardie Lord Hardie moved Amendments Nos. 292QA and 292QB:
Page 95, leave out lines 33 and 34 and insert—
("Appeals to Judicial Committee of the Privy Council.)
288B.—(1) This section applies where the Judicial Committee of the Privy Council determines an appeal under paragraph 13(a) of Schedule 6 to the Scotland Act 1998 against a determination of a devolution issue by the High Court in the ordinary course of proceedings.
(2) The determination of the appeal shall not affect any earlier acquittal or earlier quashing of any conviction in the proceedings.
(3) Subject to subsection (2) above, the High Court shall have the same powers in relation to the proceedings when remitted to it by the Judicial Committee as it would have if it were considering the proceedings otherwise than as a trial court."
() In section 307(1) (interpretation), after the definition of "crime" there is inserted—
"devolution issue" has the same meaning as in Schedule 6 to the Scotland Act 1998;".").
Page 95, line 42, at end insert—
("Damages Act 1996 (c.48)
In section 6 of the Damages Act 1996 (guarantees for public sector settlements), after subsection (8) there is inserted—
"(8A) In the application of subsection (3) above to Scotland, for the words from "guidelines" to the end there shall be substituted "the Minister.").
On Question, amendments agreed to.
Schedule 7, as amended, agreed to.
Schedule 8 [Repeals]:
Lord Hardie Lord Hardie moved Amendment No. 292QC:
Page 96, line 34, at end insert—

("1984 c. 4.

The Tourism (Overseas Section 1(2).") Promotion) (Scotland) Act 1984.

On Question, amendment agreed to.
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 292R:
Page 96, leave out lines 35 and 36.
The noble Baroness said: In another place, the Government amended the provisions in the Bill which deal with the disqualification of MSPs if they are declared bankrupt. This was to ensure that the provisions apply in the same way and with the same effect as they do to MPs. Amendment No. 292R is a consequential amendment necessary as a result of the earlier amendments. I beg to move.
On Question, amendment agreed to.
Schedule 8, as amended, agreed to.
Clause 112 [Interpretation]:
[Amendment No. 293 not moved.]
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 293XZA:
Page 52, line 37, leave out from ("Parliament,") to ("and") in line 41 and insert ("Northern Ireland legislation (within the meaning of the Northern Ireland Act 1998)").
The noble Baroness said: This is a minor and technical amendment to update the definition of "enactment" provided in Clause 112 to take account of the creation of the new Northern Ireland Assembly. The Northern Ireland Bill currently before this House provides for the establishment of the assembly, which will be able to pass Acts. At present, Clause 112 lists various forms of legislation connected with Northern Ireland. In the interests of simplicity, that is replaced here with a reference to the definition provided in the Northern Ireland Bill, thereby bringing Acts of the Northern Ireland assembly within the definition of "enactment" in the Scotland Bill. I beg to move.
On Question, amendment agreed to.
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 293YZA:
Page 53, line 3, at end insert—
(""government department" means any department of the Government of the United Kingdom").
The noble Baroness said: These are technical amendments. Amendment No. 293YZA provides the definition of "government department" for the purpose of the Bill, making it clear that the expression does not include the Scottish administration. Amendment No. 294ZZB adds this definition to the index of defined expressions in Clause 113. Amendment No. 294ZZC is also a technical amendment. It simply adds the definition of "Member of the Scottish Executive" provided in Clause 41(1), to the index of defined expressions in Clause 113. I beg to move.
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendment No. 293ZZA:
Page 53, line 6, leave out ("as it has") and insert ("and
(b) the Protocols to the Convention, as they have").
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendments Nos. 293ZA and 293YA:
Page 53, line 9, at end insert—
(""occupational pension scheme", "personal pension scheme" and "public service pension scheme" have the meanings given by section 1 of the Pension Schemes Act 1993, but as if the reference to employed earners in the definition of personal pension scheme were to any earners,").
Page 53, line 14, leave out ("115") and insert ("(Commencement)").
On Question, amendments agreed to.
Lord Selkirk of Douglas Lord Selkirk of Douglas moved Amendment No. 293A:
Page 53, line 23, leave out ("adjacent to") and insert ("surrounding").
The noble Lord said: Although in shipping legislation the phrase "adjacent to" is sometimes used, the Scotland Bill is certainly not maritime legislation. The territorial extent of Scotland is a matter of custom and this amendment is designed to ensure that there is no doubt whatever about the issue. I should be grateful if the Minister could look at the matter between now and Report with a view to bringing back an amendment if necessary. I beg to move.
Lord Hardie: As was explained on an earlier occasion, the term "adjacent to" is used consistently across existing fisheries legislation to describe what is a water for the specific purposes of each piece of legislation. We have considered the matter and we are not persuaded that any useful purpose would be served by using the word "surrounding" instead. Indeed, to use the term "surrounding" would require any Order in Council under Clause 112(2) to specify not just a boundary between Scottish waters and other UK waters

657
but would require an outer limited to be defined as relevant to the waters surrounding Scotland. I invite the noble Lord to withdraw the amendment.
Lord Selkirk of Douglas: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hardie Lord Hardie moved Amendment No. 293ZAA:
Page 53, line 24, after ("body") insert ("(except the Parliamentary corporation)").
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendments Nos. 293AA and 293AB:
Page 53, line 26, at end insert—
(""the Scottish zone" means the sea within British fishery limits (that is, the limits set by or under section 1 of the Fishery Limits Act 1976) which is adjacent to Scotland,").
Page 53, line 33, after ("Kingdom") insert (", or sea within British fishery limits,").
On Question, amendments agreed to.
[Amendment No. 293B not moved.]
Lord Hardie Lord Hardie moved Amendments Nos. 293C and 294:
Page 53, line 33, at end insert—
("() For the purposes of this Act—

(a) the question whether any function of a body, government department, office or office-holder relates to reserved matters is to be determined by reference to the purpose for which the function is exercisable, having regard (among other things) to the likely effects in all the circumstances of any exercise of the function, but

(b) bodies to which paragraph 2A of Part III of Schedule 5 applies are to be treated as if all their functions were functions which relate to reserved matters.").

Page 53, line 48, leave out ("in section 28").
On Question, amendments agreed to.
[Amendment No. 294YZA had been withdrawn from the Marshalled List.]
Baroness Ramsay of Cartvale Baroness Ramsay of Cartvale moved Amendment No. 294YZB:
Page 54, line 20, leave out from ("office") to end of line 24 and insert ("of a description specified in an Order in Council made by Her Majesty under this subsection").
The noble Baroness said: The Scottish administration will be made up of certain office holders and their staff. These are the members of the Scottish executive, junior Scottish ministers and their staff and certain non-ministerial office holders and their staff. These non-ministerial office holders are civil servants who currently form part of government and should, after devolution, form part of the Scottish administration which will effectively be the government in Scotland in relation to devolved matters.
For the avoidance of doubt, we have to specify what these officers are. The three most significant such officers—the registrar general and the keepers of the registers and the records who head their own departments—are mentioned expressly, but there are
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quite a number of others such as the accountant in bankruptcy, the chief social work inspector and sheriff clerks. We believe that the most appropriate way of achieving that is to list them in an Order in Council which we propose will be subject to negative resolution in both the UK Parliament and the Scottish parliament. Amendment No. 294YZB amends the existing Clause 112(7)(b) to allow this. I beg to move.
Lord Mackay of Ardbrecknish: I cannot let this amendment go before noting that it is the last which is to be moved, other than formally. I am glad to see that we have reached the tapes, although a little later than I had promised. Perhaps I may give the Government a little piece of advice from an old hand at legislation. "Technical and correcting amendments" is often sufficient few words to get through many of the amendments we have dealt with recently and Members of the Opposition just smile and let them pass—as I do with this one!
On Question, amendment agreed to.
Lord Hardie Lord Hardie moved Amendment No. 294XZA:
Page 54, leave out lines 34 and 35 and insert ("to observe and implement Community law or the Convention rights").
On Question, amendment agreed to.
Clause 112, as amended, agreed to.
Clause 113 [Index of defined expressions]:
Lord Hardie Lord Hardie moved Amendments Nos. 294ZZA to 294A:

Page 55, line 1, at end insert—

("Auditor General for Scotland

Section (Auditor General for Scotland)")

Page 55, line 18, at end insert—

("Government department

Section 112(1)")

Page 55, line 22, at end insert—

("Member of the Scottish Executive

Section 41(1)")

Page 55, line 26, at end insert—

("Occupational pension scheme, personal pension scheme and public service pension
scheme

Section 112(1)")

Page 55, line 30, at end insert—

("Open power

Section 101(C1)")

Page 56, line 4, at end insert—

("The Scottish zone

Section 112(1)")

On Question, amendments agreed to.
Clause 113, as amended, agreed to.
Clause 114 agreed to.
Clause 115 [Commencement]:
[Amendments Nos. 295 and 296 not moved.]
[Amendment No. 297 had been withdrawn from the Marshalled List.]
Lord Hardie Lord Hardie moved Amendment No. 297A:
Page 56, line 23, at end insert—
("(4) If any of the following provisions come into force before the Human Rights Act 1998 has come into force (or come fully into force), the provision shall have effect until the time when that Act is fully in force as it will have effect after that time: sections 28(2)(d), 53(2), (Human Rights) and 112(1) and Schedule 6.").
On Question, amendment agreed to.
[Amendment No. 298 had been withdrawn from the Marshalled List.]
Clause 115, as amended, agreed to.
Lord Hardie Lord Hardie moved Amendment No. 299:
Divide Clause 115 into two Clauses, the first (Transitional provisions etc.) to consist of subsections (3) and (4) and the second (Commencement) to consist of subsections (1) and (2).
On Question, amendment agreed to.
Clauses 116 and 117 agreed to.
House resumed: Bill reported with amendments.

Registration of Political Parties Bill
8.20 p.m.
The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, I beg to move that this Bill be now read a second time. We have the pleasure of looking forward to two maiden speeches, even if it is a little late in the evening, with, I am afraid, rather a sparse House.
This is a technical, but nevertheless important, measure. For the first time the provisions of the Bill allow party names to be registered and party emblems to be shown on ballot papers. It also deals with the problem, which is significant, of misleading candidates' descriptions.
The Bill seeks to establish a voluntary system of registration for political parties. We would expect any serious party intending to put forward candidates at an election to register, for the following reasons among others: first, a registered party will be able to protect its name from use by unauthorised candidates on the ballot paper at elections. Secondly, only a registered party will be able to put forward lists of candidates for the new system of election to the Scottish parliament, the assembly for Wales and, in Great Britain, the new regional list system of election to the European Parliament. Thirdly, only a registered party will be able to have the party's emblem printed alongside the candidate's name on the ballot papers. Fourthly, only a registered party will be eligible to be offered an election broadcast. Unregistered parties will not be allowed to have the benefit of party political broadcasts.
I emphasise that the way a party is to be organised, how it selects candidates and what its aims and objectives are to be, all remain for each party to determine individually in accordance with its own rules or constitution. Any organisation, large or small, will be able to register provided that it intends to contest an election.
The key condition for inclusion upon the register is that a party plans to put forward one or more candidates at a relevant election. This includes parliamentary and local government elections, as well as elections to the Scottish parliament, national assembly for Wales, the new Northern Ireland assembly and the European Parliament. This is an important part of our programme of constitutional reform. We need to have a register of political parties so that lists of candidates all
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representing the same party can be put forward for election to the additional member seats in the Scottish parliament and national assembly for Wales and the regional list seats for the European Parliament. Those, as your Lordships' know are to be allocated on the basis of each party's share of the vote in the region concerned. We want the system to work fairly. We therefore need a simple, effective system to ensure that the voters and the returning officers are both clear which list of candidates is put forward by each party.
I know from our earlier discussions that your Lordships were keen to see the details of the registration scheme which will be needed for the new systems. We discussed them on numerous earlier occasions. This Bill will enable the register to be established in good time for the elections in May 1999 for the Scottish parliament and the national assembly for Wales, and in June of next year for the European Parliament.
The Bill provides for a register of political parties to be maintained by the existing Registrar of Companies for England and Wales. It makes sense to base the register on an existing organisation which has been tried and tested. I think all will agree that it gives a highly efficient service, both to companies wanting to register and to members of the public seeking information from the register. The register, which will apply to political parties throughout the United Kingdom, I am sure your Lordships will agree, should be maintained at Companies House, which, happily, is located in Wales.
Before a party can be registered, the registrar will have to satisfy himself that its name is not likely to be confused with a name already registered. Therefore the Bill protects not only the registered name of the political party but also any other name which might be confused with a registered party. If the "Conservative Party" is registered, the registrar could refuse to allow another party to register the name "Tory Party" in case it was confused with the present Conservative Party.
The name of a registered party will have to be six words or less in order to meet the existing rules governing the candidate's description on nomination and ballot papers. The Bill provides that the party's name should not be obscene or offensive and must not include words which would be otherwise unlawful, for instance an incitement to racial hatred.
Your Lordships will have seen the order-making power at Clause 3(1)(f) to allow any word or expression to be prohibited. There is no conspiracy lurking here. It simply enables the power to be taken to prevent certain words—for instance "Royal"—from being used in the title of a party. That is the point of that. It will also help to ensure that certain words, such as "Independent" or "Residents Association", are not registered by a single party to prevent them being widely used by individual candidates. One would be able to have the "Brighton and Hove Residents Association" as well as, for instance, the "West Sussex Residents Association".
Each party is required to provide the names of two responsible officers as registered leader and registered nominating officer. They will be responsible for authorising any changes to the registered details of the party. The nominating officer is to be responsible for

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authorising the use of the party's name by candidates at elections. He can do so personally or by authorising someone to act on his behalf.
The parties will need to confirm their registration annually in order that the register is kept up to date. There will be a fee set by order for both initial registration and annual confirmation. We anticipate that should be of the order of £150 for initial registration because we do not wish to disable small parties by setting the charge too high.
Parties will be able to register an emblem which, for the first time, may be shown on the ballot paper next to the candidate's name. If one looks at Schedule 2 one sees an illustration of the sort of emblem that might be wanted. If one looks at ballot papers in other countries, certainly in some countries in Africa, one can see that—doubtless initiated by the noble Earl, Lord Russell—we can have a good deal of philosophical and historical fun in deciding what emblems might or might not be appropriate for certain parties of various esoteric origin. I leave that for another day. I should not have stirred the noble Earl into life. I stress that those are simply illustrations.
There will be two transitional stages for registration, each to last six weeks. The first transitional stage applies to all parties which have at least one Member in the House of Commons. The second to apply to any other party but will require the registrar to defer registration until the end of the period so that if there are competing claims the registrar can come to his conclusion in respect of the same or similar party names or emblems. In making a decision at the end of the first or second stage, the registrar will be able to take account of the history of parties with competing claims.
He will be able to register parties with similar names where there is a precedent for such names. The obvious example, which we have discussed at some length, is the various parties in Northern Ireland. Understandably—one might say legitimately—although they all have different structures and different views, they all wish to include the word "unionist" in their names. We think that is reasonable.
The Bill is not intended to prevent existing bona fide parties from registering. If the Labour Party is registered in the first stage, it would seem reasonable to allow the Socialist Labour Party to register as such in the second stage. If the Liberal Democrat Party is registered in the first stage the Liberal Party—which I am told is separate and distinct—could register in the second stage.
If there is doubt, Clause 10 allows the registrar, before deciding an application, to seek advice from a committee of Members of the House of Commons appointed for that purpose by the Speaker. This is important because the committee will ensure that the registrar has the benefit of expert advice on difficult or contentious cases. Once the two transitional phases are complete, then any application to register a new party will be considered simply on its own merits.
Party political broadcasts are dealt with in Clause 14. As I indicated a moment ago, any party which is not registered will not be able to benefit from the
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opportunity of having a party political broadcast. This does not affect the existing arrangements. In particular, it will not entitle registered parties to broadcasts.
Schedule 2 to the Bill amends the parliamentary election rules to prevent nomination papers including a candidate describing himself with the name of a registered party or any description which is likely to lead voters to associate the candidate with that party unless the nominating officer of that party has authorised the use of the party's name. Returning officers will be provided with a full copy of the register so that they know which party names and emblems are registered. Guidance will be circulated in good time—most likely in February or March 1999.
There has been a problem from which parties have suffered and about which they have had reasonable cause to complain. I refer to the problem of misleading candidates' descriptions, which have no serious part to play in any election. As long ago as 1994 a candidate used the description "Literal Democrat" and apparently misled several thousand voters into voting for him in the European parliamentary election, in the mistaken belief that he was a Liberal Democrat. More recently, candidates with no formal connection with any of the parties concerned have used the label "New Labour", "Conversative" or "Conservatory Party". This Bill will return some sense and fairness to our system, which is intended to be a truly democratic system and not one open to abuse. It is anomalous that candidates have in the past used clearly misleading labels.
The Bill is about improving the fairness and transparency of our democratic process. For the first time it will enable a registered party's emblem to be printed on the ballot paper. That ought to help voters to distinguish as clearly as possible between the candidates. It will protect the names of genuine political parties and therefore reaffirm and underpin the integrity of the political process. I hope your Lordships will see that the Bill is a positive step forward in improving our processes. I commend the Bill to the House. I beg to move.
Moved, That the Bill be now read a second time.—(Lord Williams of Mostyn.)
8.32 p.m.
Lord Henley: My Lords, I join the noble Lord in saying how much I look forward to hearing the maiden speeches of the noble Lord, Lord Clement-Jones, and my noble friend Lord Freeman. I thank the noble Lord, Lord Williams, for his clear and, dare I say it, very brief introduction of this important Bill and in doing so offer my rather belated congratulations to him on his well-deserved promotion both within his own department, the Home Office, and within the House last July. I was what they call spending time with my family—I was literally spending time with my family at the time—and therefore I was not able to offer my congratulations to the noble Lord. I do so now.
This is the ninth government Bill with which the noble Lord has been involved this Session, the eighth government Bill that he has introduced and the seventh government Bill that has emanated from the Home

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Office. I trust very much that it is the last government Bill that emanates from the Home Office this Session; perhaps we can have something of a reprieve next Session.
I believe this Bill, if it is not a contradiction in terms, to be both timely and also somewhat belated. Without the Bill it would be impossible for the Government to foist upon us the proportional representation systems which they are bringing in with the Scotland Bill, which we discussed earlier today, the Government of Wales Act, and the European Parliamentary Elections Bill, to which we return some time next week. The Bill should have come before the House considerably earlier. I still find it extraordinary that another place was put in the position of having to discuss all three of the Bills I mentioned without any sight of this Bill. We even had the Second Reading of the European Parliamentary Elections Bill before we had sight of this Bill. It was only on the insistence of my noble friend Lord Mackay of Ardbrecknish and myself—I can assure the noble Lord that my noble friend Lord Mackay of Ardbrecknish hopes to be involved with this Bill at the Committee stage—that the Government agreed to delay the Committee stage of that Bill until after the publication of this Bill.
The Bill is timely in that I understand that we are shortly—perhaps the noble Lord can let us know when "shortly" will be—to see the results of the work of the noble Lord, Lord Jenkins of Hillhead, and his colleagues who looked into the possible alternatives to our current electoral system or systems, alternatives which I understand are to be proportional. All of us on this side of the House, and I dare say noble Lords in all parts of the House, very much look forward to seeing that report. I presume that its publication will scotch the rumours that it is to recommend a system known as the alternative vote plus.
We all know that the alternative vote system is not in any way proportional and can produce what some people would describe as quite bizarre results. The noble Lord would be the first to agree that the present Government's majority in another place at the last election would have been even greater with the alternative vote. I think the noble Lord will agree that that would have been scarcely proportional. What AV plus would have produced, I do not know. I doubt whether it would have produced something that anyone could describe as proportional.
At this stage all I can say is that we look forward to the report. We look forward to the ensuing debate and we very much look forward to the Government's response, about which, again, there have been some very interesting rumours. It is tempting to comment on those at this stage but perhaps I can save my remarks for the actual moment of publication. I also look forward to the comments of the Liberal Democrat Party on the Government's treatment of the report. I prefer to await the Government's response, my own party's response and the response of the Liberal Democrats.
As my right honourable friend Sir Norman Fowler made clear in another place, we will not oppose the Bill. We are prepared to give it at least one cheer in its aim
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of preventing confusion. We can all cite examples of confusion being caused deliberately by certain candidates—a problem that all parties have faced. The noble Lord, Lord Williams, cited the example of a candidate standing as a Literal Democrat. It is a matter that should to be addressed. But the problem is whether the Bill will succeed in so doing. We shall be exploring that in considerably greater detail at a later stage but I should like to give just one example.
The Bill does not deal directly with the problem of candidates who adopt misleading names intentionally, names that are likely to confuse voters. In another place the example of my former colleague, Rod Richards, of Clwyd West, was quoted. David Neal, who did not even change his name by deed poll, gave the returning officer a nomination form filled in under the name of Rod Richard. He dropped the letter "s" so that he would appear above the real Rod Richards on the ballot paper and called himself the Conservatory candidate, something to which the noble Lord referred. Upon judicial review, David Neal was told that he could not stand as Rod Richard, but he was able to stand as the Conservatory candidate and gained nearly 600 votes, which was something in the order of a third of the majority of the successful Labour candidate.
The problem of changing names without resorting to deed poll needs to be addressed. The problem is not covered by the Bill. In addition, the Bill would not prevent candidates using terms that might cause confusion with registered parties in their election literature. It regulates only the use of names on the ballot paper. That is something we wish to come back to at a later stage.
I do not accept that the Bill makes it more difficult for political parties to be confused. There is no similar provision for individuals. That will be left to the existing processes: either the returning officer or the courts. I think we should be aware of dangers arising out of that. In particular there is the danger that if legislation closes the door on political party deception, then all attempts will move to personal candidate deception.
The second point I should like to touch on—we shall no doubt come to many more during this debate and later—relates to returning officers. The Bill is intended to set general rules to prevent the public being deceived but history shows that different returning officers have made different interpretations of the law and have also shown a different level of readiness to take any action at all. We have heard of many occasions when they have been reluctant to make adjudications. A great deal of discretion remains in the hands of returning officers. Obviously I would not want to question in any way the ability of returning officers. In the main they display a very high standard of integrity and professionalism. Occasionally, however, some very controversial decisions have to be made. One can make the point that there is a very real danger of an increase in the use of judicial review. Again, that is something we need to consider to ensure that returning officers adopt a common policy throughout the country.
Clause 10 mentions a Speaker's committee, a very innovative process whereby a committee of MPs will be set up to advise a registrar on aspects of the registration

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process. The committee will obviously have a very important role. It is something which is both untried and untested; yet a huge responsibility will rest upon its members and upon the registrar. The outcome of whole elections may come to depend on it. We would welcome some further advice from the Government as to exactly what the role of such a committee will be and also what its relationship will be with the registrar. As I understand it, the registrar "may" seek advice. There is no need for him to do so or indeed to accept the advice of the committee.
It is a very serious matter of concern that there is an absence of an appeals process from the registrar's decision. It is an absence in both directions. For example, the registrar grants an application for inclusion in the register unless the proposed registered name would be likely to result in the party being confused by the voters with the party already registered. What recourse does an applicant have if a name or symbol is rejected by the registrar? There is at present no specific mechanism on the face of the Bill for appealing against the registrar's decision, so I presume that the only possible channel would be one of judicial review, an obviously costly and very time consuming process.
A matter of equal importance has to be addressed. There is no mechanism for those registered parties who wish to appeal against the inclusion of others by the registrar which they, the already-registered party, think might be confused with them. That is why it is important to get over the point that there should be some mechanism of appeal, as I put it, both ways.
The next area of concern arises out of the additional member system. What happens if political parties which are likely to receive a few additional members—for example, in Scotland or Wales where one particular party might do well under the first-past-the-post system and therefore would be unlikely to receive those additional members—decides to create or foster a surrogate party? What can be done to prevent such a situation arising? I am aware of undertakings given by the noble Lord, Lord Williams, to, I believe, my noble friend Lord Mackay of Ardbrecknish during the passage of the Government of Wales Bill where he made clear that the Labour Party would not indulge in such practices. I am very grateful to the noble Lord for having given that assurance which, however, he could only give on behalf of the Labour Party. Obviously, the Government cannot give an assurance for all parties. We need to know how the potential for that abuse can be prevented.
We are concerned by comments made at Second Reading in another place by the Home Office Minister, Mr. George Howarth, when he pointed out that the registrar will not be empowered to refuse a registration application merely because he or she believes a party to be a bogus one, set up purely for the purpose of manipulating the electoral system. At that stage the Minister tried to give some assurances that the media would save us all from such deceptions. He argued that any party set up as an alter ego party to try to win additional members would be exposed by the media. He felt sure that the voters would seek to punish such a party.
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The problem is that there could still be some members of the public who would not be aware of the deception and would be tricked into casting their votes for the alter ego party. That is something to which we must return in Committee. And, again, I have to say that assurances given by an individual Minister will not be enough. Obviously, a Minister can only give assurances on behalf of his party and not, for example, on behalf of my party should it wish to indulge in such activities, or on behalf of the Liberal Democrats.
We are also told by the Minister that the Bill is purely voluntary and no one needs to register. I believe that to say it is voluntary is largely academic. A party which decided not to register would not be able to benefit, as the noble Lord told us, from political broadcasts or assistance with the costs of security at party political conferences. I have just returned from Bournemouth and no doubt the noble Lord has just made his last visit for some considerable time to Blackpool if I understand the intentions of the noble Lord's party aright. The noble Lord will know just how expensive those operations are. I think that he will join me in paying tribute to the police in those respective constabularies for all that they do; but it is a very expensive job and obviously every party would like assistance in meeting the cost. Also that party would not be able to put forward candidates for election, for instance, to the Scottish parliament or the assembly of Wales, or even to the European Parliament, let alone anything that the Jenkins Commission might come up with and which the Government might or might not try to foist on us for elections to another place. From that point of view, to say that it is voluntary is to some extent somewhat misleading.
There are also fairly important implications based on the fact that fees will be charged not for registration, as I understand it, but for alteration—I refer to Clause 6(7)—and for annual re-registration, which is dealt with in Clause 7(3)(c). The noble Lord, in introducing the Bill, assured us that fees would be charged for registration in fact. I should be grateful to have clarification when he comes to respond. Perhaps he can tell me where that appears in the Bill.
I presume the fees will be relatively modest. The noble Lord gave the assurance that he was thinking of a figure in the region of £150. I accept that that is a very modest fee, particularly for the major parties; in fact, it is a relatively modest fee for any party. But the Secretary of State has the power in the Bill to set those fees and the power to vary them. That is subject only to the negative resolution procedure. I hope that the question of fees, their levels and whether the negative resolution procedure is appropriate in setting them can be looked at extremely carefully. In particular, I hope that it will be looked at by the Delegated Powers and Deregulation Committee when it examines that and the other delegated powers to which the noble Lord referred; namely, the powers which the Secretary of State gives himself to prohibit and allow certain words.
The last point I wish to touch upon—I apologise to the House for taking up considerably more time than the Minister did, but this is an important Bill—is the massive centralising power that the Bill gives to parties to nominate candidates. When one looks at paragraph 2

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of Schedule 2, one sees that a nomination paper may include only the name of the candidate's party if the returning officer receives a certificate from the particular registered nominating officer of that party. That clearly concentrates all power in the central hands of the party machinery. That may be desired by a great many in the central halls of the parties but I suggest that it is not desirable. No longer will it be possible for a local branch or association to choose a candidate who is not to the liking of their central party office. In effect, it forces all parties—my party and the Liberal Democrats—to follow the Labour Party down the path which it opened up so that it is possible to expel or ruthlessly and efficiently remove any dissident. The treatment of the Strasbourg Four in the European Parliament recently is a timely reminder of that. I make it clear that in the Conservative Party we do not welcome that power and I am sure that that applies also to the Liberal Democrats.
We have made clear that we shall not oppose the Bill. However, we do not consider it satisfactory. It is part of a jigsaw of changes to the constitution which are ill-thought-out and being introduced in a piecemeal manner. We shall subject the Bill, as we have all the others we have seen throughout the year, to proper and thorough scrutiny. I assure the noble Lord that we shall seek changes where necessary. As always, I look forward to an interesting and possibly prolonged Committee stage and beyond.
8.52 p.m.
Lord Goodhart: My Lords, this is a Bill which the Liberal Democrat Party warmly welcomes. It is a Bill of some constitutional significance. It is not the first Bill which refers in some way to political parties but, in all previous statutes where there has been a reference to political parties, that reference has been minor or incidental, such as, for example, the section in the Inheritance Tax Act 1984 which exempts gifts to political parties from inheritance tax.
This is the first Bill which is concerned with the role of parties in the political process. That makes it something of considerable importance. It is perhaps surprising that that is the case given that parties are clearly essential to all democratic systems. In the United Kingdom, I think it is correct to say—and if I am wrong my noble friend Lord Russell will correct me—that organised and structured national parties with permanent staff and headquarters go back as far as the third quarter of the 19th century. In saying that, I bear in mind the decision of the Court of Appeal in 1981 in the case of The Conservative and Unionist Central Office v. Burrell, where the Court of Appeal held that the Conservative Party did not in fact exist. The decision that the party did not exist seemed odd in 1981 but perhaps nowadays it is beginning to seem a little more credible.
The Government originally proposed that the registration of political parties should be part of a wider Bill which was giving effect to their manifesto
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commitments to require the disclosure of donations of more than £5,000 to political parties and the prohibition on foreign donations.
The Neill Committee, of which I am a member, asked for the postponement of legislation relating to donations until the conclusion of the study of party funding which the Government had asked it to undertake. Obviously, I cannot speak of the impact which the committee's report may have on the proposals in this Bill or vice versa. But it may well be that the report will be published before the next stage of this Bill is reached and can therefore be taken into account in the debate on this Bill in Committee.
I turn to the substance. The first and most important effect of the Bill is, as the Minister pointed out, that registration will be necessary for a party wishing to promote a party list in a list-based election. The European parliamentary elections will be completely list-based. Elections to the Scottish parliament, the Welsh assembly and the proposed London assembly will be partially list-based. From these Benches we have welcomed proportional representation for those elections. It is no secret that we should have preferred the single transferable vote to anything involving a list system but we welcome any system which, as the list system does, produces a result more proportional to the actual votes than does first-past-the-post. Therefore, as registration is a practical necessity where there is a list system, we are strongly in its favour.
We welcome also the fact that the registration will be an administrative act which requires no merits test for registration other than an intention to nominate at least one candidate. Indeed, it does not prevent an unregistered party from contesting an election. We accept that the registrar of companies is at present the best choice as the registrar of political parties. Indeed, the companies legislation contains comparable prohibitions on unsuitable names. In the longer term, however, it may be that some more appropriate body will appear to take over the responsibility for registering political parties, which in some ways does not sit very happily with the role of the registrar of companies.
We welcome the restriction of party political broadcasts to registered parties. We have some criticisms of detail which we shall take up in Committee, some of which have been mentioned by the noble Lord, Lord Henley, although we do not agree with all his comments on the Bill. First, there is no provision for anyone to object to the registration of a name. One party may wish to challenge the name which another party wishes to adopt. There could be two parties which wish to register with closely similar names. There should be a right for each of them to be heard on the other's application.
There is also the possibility of nuisance applications by people wanting to claim a prior right to a name which another group may wish reasonably to claim in the future. That is something which has happened on many occasions in connection with trademarks.
Secondly, the Bill contains no provision for appeal against a refusal to register a party with a particular name or for an appeal by an aggrieved party against the

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registration of the name of another. Under Clause 10, the registrar can consult the Speaker's Committee. But that is not an appeal nor, in any event, would the Speaker's Committee be an appropriate body to which to make an appeal. The registrar's decision is subject to judicial review but that is not in any sense a true appeal. The registrar's decision can be set aside only if it is irrational or made contrary to law. We want to see a proper appeals system in connection with the registration of parties.
Also, we seek clarification on the rights of regional parties which are component parts of a party operating throughout Great Britain to register with a regional name. The Liberal Democrats are a federal party. The Scottish Liberal Democrats and the Welsh Liberal Democrats are separate parties but they are also component parts of.the federal party. Can the Scottish Liberal Democrats register under that name while the federal party registers as the Liberal Democrat party?
A debate at Committee stage in another place suggested that parties could register with separate regional names but not, for some reason, with separate regional emblems. I have to say that I have found considerable difficulty in extracting this conclusion from a study of the Bill. I should like to hear confirmation of what the Government believe the position to be.
I should say in passing that we would not oppose the provision in Schedule 2 to which the noble Lord, Lord Henley, referred, to require a certificate from a nominating officer. The independence conferred by the right of selection by constituency parties or constituency associations is a matter which can and should be protected by the internal constitution of the party itself. That is indeed the case with my party.
The second purpose of the Bill is to prevent, as the Minister pointed out, the use of misleading party descriptions on the ballot paper. That, of course, is welcome, particularly as we are the party which has most clearly suffered from this abuse in the past. The activities of Mr. Richard Huggett plainly deprived us of victory in Devon in the 1994 European election, when Mr. Huggett, otherwise entirely unknown, stood as a "Literal Democrat" and won 10,000 votes in an election which the Liberal Democrat candidate lost by 700. That deprived not only him of his seat in the European Parliament but the voters of Devon of representation in the European Parliament by the candidate who should have been elected to represent them. Mr. Huggett, I may say, also nearly deprived us of Winchester in the 1997 general election, where he was allowed to stand under the name of "Top Choice Liberal Democrat". Indeed, he indirectly forced us into the subsequent by-election though the outcome of that by-election can, I am glad to say, be described as modestly satisfactory.
Between 1948 and 1969 descriptions on the ballot paper were not allowed. The end of that ban was due in part, I believe, as I recall to a Liberal candidate called Frank Davis who changed his middle name to "Liberal" and therefore appeared on the ballot paper as "Davis, Frank Liberal" thereby pointing out the absurdity of denying the right to give a description. Therefore, in
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1969, the right to put a description on the ballot paper was restored. Some candidates, I am sorry to say, have been confused by the use of the word "description", with the result that over the years some candidates have appeared from time to time on the ballot papers to be standing for the Retired Estate Agents party or the Housewives Party.
In recent years, there has been increasing use of confusing party labels, as instanced by Mr. Huggett. That is plainly an abuse of the democratic process and it is right that it should be stopped.
In this, as in the question of registration of political parties, we should look at some of the detail. Should there be some kind of right of appeal from a returning officer who allows or refuses to allow an allegedly confusing description? It plainly cannot be an ordinary court hearing because the election timetable means that any decision would have to be given within 24 hours or at most 48 hours of the challenge being made. But can some appeal process be provided? It should, if possible, because otherwise a potentially important issue will be left to the sole and final decision of the returning officer.
Should candidates be forbidden to use a confusing description on their election literature as well as on a ballot paper? As the noble Lord, Lord Henley, suggested, should there be restrictions on candidates who adopt confusing names? I remember that in the Hillhead by-election in 1982, which was won by my noble friend Lord Jenkins of Hillhead, another candidate adopted the name of Roy Jenkins. My wife had to stand outside the polling station on polling day wearing a sandwich board saying, "The real Roy Jenkins is No. 5 on the ballot". I am glad to say that that did not deter her from continuing her political career. She went on in the 1983 and 1987 elections to contest the Kettering constituency against the noble Lord, Lord Freeman, whose maiden speech I look forward to hearing shortly. I also look forward to hearing the maiden speech of my noble friend Lord Clement-Jones.
The Government have taken the view that it is not necessary to prevent the adoption of another candidate's name because the pretender will not be able to use a party description or emblem. I must say that I am not so sure about that. I think it is a matter that we should consider again at Committee stage.
However, these are points which, while of some importance, are also relatively minor. I strongly welcome the fundamentals of the Bill and look forward to its appearance on the statute book soon.
9.5 p.m.
Lord Freeman: My Lords, I am grateful to the Minister and my noble friend Lord Henley for their welcoming remarks. I support the principle of this Bill and welcome it. It is a pleasure to make a maiden speech in this House in a debate which is clearly non-partisan. This speech is no less daunting than my maiden speech in another place some 15 years ago, although I have to tell your Lordships that the attendance in your Lordships' House tonight is approximately five times what it was in another place. I am grateful for that but

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I suspect that rather more people—in other words, my former constituents—would have read my contributions in the other place than will read mine tonight.
It is a pleasure to follow the noble Lord, Lord Goodhart. It was indeed a pleasure to contest on the hustings against his lady wife. I enjoyed the experience greatly. I only regret the passing of the party for which she stood. I declare an interest tonight because I have some responsibility for encouraging and selecting for my own party parliamentary candidates to stand for the European Parliament and for the Westminster Parliament from England and Wales. Therefore I have a particular interest in this Bill and its implications in part for the success of candidates that we seek to enter public life. As Professor Crick, a distinguished member of the Labour Party, once wrote in the early 1950s—and I think he was right—politics is a noble profession and we should encourage more men and women to enter that profession and to remove impediments to it.
While serving in an elected capacity in the other House and as a Minister I had occasion a number of times to be literally "hauled over the coals" by your Lordships' House, both in terms of listening to debates on privatisation measures—particularly the Railways Act 1993—and also attending before committees of your Lordships' House. I always believed that that was a painful but necessary experience because, as a Member of the other place, I always had great respect for the proceedings of your Lordships' Chamber in terms of the care and attention to detail and, in general, the non-partisan approach to legislation. That is an essential part of the constitution and one which we should not forego.
This legislation, in all practical terms, will have only a relatively modest effect. As both Front Benches indicated, it does not affect the use of confusing names or name changes to contest elections; it relates only to parties. Not in all cases will difficult names of those standing be avoided. However, the prevention of candidates deliberately passing themselves off, unfairly, to the democratic process by using a party name that deliberately seeks to undermine other candidates should be prevented and I welcome that, albeit at the margin.
I welcome it for two simple reasons. First, it is plainly obvious to those who stand for elected office that, by and large, people vote for parties and not for people. I regret that, but if one studies the results of the general election of 1997 it will be noted that on a regional basis the swing against my party was amazingly uniform. There were one or two exceptions, but it proves the case that we should be concerned about protecting the good name of democratic parties. People often identify their loyalty with parties and not with individuals.
The second reason—I believe I share this view with my opposite number in the Labour Party, the Liberal Democrat Party and indeed other parties that contest elections in the United Kingdom—is that it is becoming more difficult to persuade experienced men and women, particularly those with experience of business and public life, to stand for elected office. Anything we can do to remove unfairness at the margin we must welcome, and I welcome it very much indeed.
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I have two concerns. One is triggered by this Bill and is not on the face of it; that is, that it is clearly necessary to introduce these provisions now in good time for the European elections. I did not support the introduction of proportional representation for the European elections, but that matters not tonight. Nor did I support the use of the closed list system rather than the open list system. I simply point out that with a closed list system, where the elector is only invited to vote for the party and not the individual, it will be difficult to motivate candidates who are placed low down on the party list to fight the good fight. They cannot achieve individual recognition in the same way that a candidate fighting a Westminster seat can by measuring his or her vote against their predecessor.
My specific anxiety in relation to this Bill—it may be idiosyncratic; it is certainly personal and I do not speak on behalf of the Conservative Party—is the wider use, if that happens to be the case, of logos. It is unnecessary and confusing. They will change over time. I believe in the good old-fashioned description.
I conclude by asking one question of the Minister and perhaps he will be kind enough to respond in writing if necessary. In studying the proceedings in the other place, I could not conclusively understand whether the use of the term "an Independent Labour", "an Independent Conservative", "an Independent Liberal Democrat", description would be permitted by the returning officer. In winding up the Second Reading debate in the other place Mr. Howarth, the Minister, did not address that point. And in studying the proceedings in Committee in the other place, I am not sure that I was able to obtain an answer. I shall be grateful for clarification.
All parties have suffered in the past in the same way by deliberately unfair passing off. If we believe in parliamentary democracy, we should support this Bill.
9.12 p.m.
Baroness Gould of Potternewton: My Lords, on behalf of the whole House it gives me great pleasure to congratulate the noble Lord, Lord Freeman, on his maiden speech, to which I listened with great interest. He may not be aware that I first heard his name many years ago when he stood for Don Valley in 1979. I was then working in the Yorkshire office of the Labour Party and obviously we were very interested in opposition candidates.
We also have another in common. I, too, am involved in the selection of candidates for my political party, and perhaps we could compare notes at some point as to how we do it. There is no doubt that the noble Lord's wide experience in the other place—for 11 out of his 14 years there he was a Minister or a Cabinet Minister—will be valuable to the debates in your Lordships' House. Not only shall we benefit from his expertise; he also brings with him a reputation for being approachable and willing to assist others if he can do so, a characteristic which fits well with the style and tone of your Lordships' House. I am sure that we all look forward to his future contributions to our debates. I welcome him.

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Perhaps I should first declare an interest as a member of the Jenkins Commission. I have no intention whatsoever of referring either to the commission or to anything to do with voting systems. I shall speak strictly to the Bill, as I see it, because I have long believed that the only way in which we could get rid of spoiler candidates would be to have registration of political parties. In the past there have been debates in your Lordships' House in which that point has been raised, but for all sorts of reasons it was not possible to achieve it at that time.
The Bill is long overdue. I believe that for far too long there has been the pretence that although political parties are the mainstay of our democratic process they do not need to be acknowledged in law. I firmly believe that they should be acknowledged in law and that that is the only way in which they can be monitored so that we can make sure that they follow the law absolutely.
The Bill is overdue also because it is 30 years since the first attempt to get the registration of political parties on the statute books. It was in November 1968 that my noble friend Lord Callaghan of Cardiff, then the Home Secretary, announced plans for a system of central registration of political descriptions and controlling their use in order to stop deception. Misleading electors is not a new practice but, as the noble Lord, Lord Goodhart, said, it has been increasing in recent years. That Bill failed and instead we ended up with a simple change to the RPA allowing a six-word description on the ballot paper. That was a positive development because it recognised the role of political parties in elections for the first time. I remember that it caused some consternation at the time lest that happen. However, it failed to answer the fundamental problem of spoiler candidates whose sole aim is to mislead the voters and possibly skew the result of an election.
Since that time there have been numerous discussions and many hours of consultation, and many ingenious schemes have been proposed for dealing with such individuals, but registration was not on the agenda. As I have said, it has always seemed obvious to me that registration is the only way to solve the problem. That is my main reason for supporting the Bill, although I have some reservations about detail. At last we have a Bill that to a substantial degree will eliminate the ability of such candidates to confuse.
Although the Bill has been introduced primarily to deal with the lists of candidates representing the same party in elections to the Scottish parliament, the Welsh assembly, the Northern Ireland Assembly and European elections, the Bill goes much wider in preserving the integrity of the electoral process by interrelating the two issues of the registration of political parties and the elimination of misleading descriptions. The Bill will cover all elections—that is most important—and not just those for which the Bill was primarily devised.
If one goes back into history, one can list at great length the names of spoiler candidates. There were many in the 1997 election. Their aim was, as I said, to upset the electoral process. Under the Bill, as my noble friend Lord Williams of Mostyn said, the registrar at
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Companies House will be responsible for making sure that the name being registered cannot be confused with a name already registered. That should eliminate descriptions such as the "Literal Democrats", the "Alternative Liberal Democrats", the "Anti-Sleaze Labour", the "Labour Change", the "Labour Conservatives", the "Conservatories", "New Labour" and so on. However, there may still be confusion when unregistered candidates seek to use names similar to those of registered candidates. As other speakers have said, the Bill does not deal directly with candidates using misleading names by impersonating real political figures—the noble Lord, Lord Jenkins, was quoted—or changing their name by deed poll to that of another candidate.
At the last election the courts granted a number of injunctions against such spoiler candidates. In Halifax my honourable friend, Alice Mahon, faced a male candidate who had changed his name to "Alice Mahon" and in that instance an injunction was obtained to prevent him standing under that name.
In another case, the appeal in the courts failed as the statement of persons nominated had already been published. There was no doubt that the legal representatives of all the political parties found great difficulty because of the little time that was available to take legal action. I therefore ask my noble friend whether there are any plans to extend the election timetable or make provision to allow time for such legal action to be taken.
I do not wish to sound defeatist, but, to use a cliché, we do know that as one loophole closes another one opens. As has been said, at the next election there could be more attempts at personal candidate deception. I hope that in any future legislation consideration will be given to eradicating this aspect of misleading descriptions, without the need for redress to the courts. That could be simply done by making registration compulsory.
In the meantime, the responsibility for determining the validity of a nomination paper lies with the individual returning officers. Having worked closely over the years with many returning officers, I have absolute faith in their judgment. But, as the noble Lord, Lord Henley, said, it is important that there is a uniform policy throughout the country. It would be most inappropriate for there to be any inconsistency in the use of names on ballot papers in different parts of the country. In line with the recently published report of the Home Affairs Select Committee, entitled Electoral Law and Administration, I believe that returning officers need stronger guidance than is provided for in the Bill as to whether particular descriptions should be allowed. I hope that such guidance will be available.
I turn now to the actual ballot paper, about which I have two points to make. The criteria for defining the six words on the ballot paper are welcome. Clause 3(1)(d) and (f) in particular make it clear that the description must not be obscene, offensive or unlawful. I would be grateful for an assurance that the latter includes incitement to racial hatred.
It has been suggested that the use of emblems on ballot papers is bizarre and patronising and might confuse electors. I have to say that I disagree with the

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noble Lord opposite. I believe that to make those comments is like standing a good idea on its head. Emblems will help to reduce confusion and they will certainly not appear bizarre to those electors for whom English is not their first language, nor will they appear bizarre to those people who have poor vision.
While I have indicated that, in principle, I am fully supportive of the Bill, there are some aspects which I hope will be developed in the future—perhaps, in time, in another Bill. In particular, I believe that there is a need to strengthen the criteria for registration, to define a political party and to allow a right of appeal. On the criteria for registration, rather than just using the name of two responsible officers, this could be tightened up by parties having to have a specified number of members and produce a constitution as evidence of existence. That would not prevent independent candidates standing.
However, my main concern is that there is no appeals structure. While the registrar, after examining all the evidence, can, when in doubt, seek guidance from the special Speaker's Committee—guidance which, I believe, he or she must accept—a third party has no right of involvement in the registration process either to make representations to or raise objections with the registrar, other than through a judicial review. I believe that that needs serious examination. I am sure that my noble friend the Minister will indicate in his reply that the procedure is sufficiently protective of the political parties. I hope that he is right and that I have unnecessary fears.
I have one last point of query which is allied to but not directly related to the Bill. I am a long-time advocate of the establishment of an electoral commission. I am sure that my noble friend is aware of the increasing pressure for such a body to be established. Although our elections in this country are free and fairly conducted, the rules governing their administration and conduct are dated, inefficient, complex and involve too many statutory bodies. This Bill adds to that list by Companies House taking on the responsibility for the registration process. It would be considerably simpler for this job to be transferred to an electoral commission, bringing it together with the conduct of elections and all that that entails—the financing of political parties, it is to be hoped. I trust that we can look forward to having an electoral commission in the future.
In conclusion, I find it difficult to believe that any democrat could object to the principles behind the Bill, or wish to delay its progress. I am pleased that there is unanimity across the political parties to support the principle of the Bill. For far too long spoiler candidates have been able to violate our democracy. This Bill is needed to protect not only political parties and candidates but the electors, who genuinely treasure their right to vote. It should not be possible for them to be deceived by candidates standing under fraudulent or rogue party names.
Having said that, I believe a distinction has to be made between the more eccentric candidates and others with more sinister intentions to deceive. I hope that we shall not be so rigid as to remove a tradition we have in
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this country of having not entirely serious candidates such as the late Bill Boakes, or the Monster Raving Loony Party and Screaming Lord Sutch. I hope that even under this Bill we shall retain an element of fun in our elections.
9.25 p.m.
Lord Clement-Jones: My Lords, I very much welcome the opportunity to make my maiden speech in the debate tonight. I take courage from seeing familiar faces on the Benches all around me and in front of me. I suppose it is probably presumptuous for one maiden speaker to congratulate another but I very much agree with many of the remarks of the noble Lord, Lord Freeman, particularly as regards the proceedings of this House. I have always admired the rational, expert and at times non-partisan quality of the debates in this House. Although I am very much in favour of reform, I hope that whatever shape that takes the new Chamber will replicate that quality of debate.
Since I arrived in the House I have taken particular pleasure in the warmth of the welcome I have received from friends and colleagues on all Benches of the House. Ahead of reform I also very much welcome the unusual experience of being introduced on the same day that my cousin, the noble Lord, Lord Lovat, took his seat.
As I shall speak mainly on health matters in future, perhaps I should explain why I have decided to make my maiden speech in today's debate. In July, at the time I was introduced, I had the great pleasure of being accosted in a very friendly fashion by the noble Earl, Lord Longford. Having reminded me at first that he was still only the third senior by age in this House he asked me extremely directly, "So what is your claim to fame"? I had to confess a long and disreputable history of working as a voluntary party officer, first as chairman of the Liberal Party taking it through to merger with the SDP, and then for the Liberal Democrats. In that time I have been involved in a number of election campaigns where our candidates frankly would have benefited greatly from the provisions of this Bill, had it been in existence.
Therefore, in general terms I very much welcome the provisions of the Bill which I am quite confident will do much to eliminate electoral confusion. I also very much welcome the underlying reason for the Bill, which is the introduction of proportional representation list systems for Scotland, Wales and the European elections. I commend the Government for fulfilling those aspects of the Cook MacLennan agreement with the Liberal Democrats. I hope that the Government will continue to honour the agreement with an early referendum on the Jenkins Commission's conclusions.
Perhaps my worst experience as a party campaigner was when I was the director of the Liberal Democrats' European election campaign in 1994. I dare say that we shall hear the same anecdotes throughout the evening in different versions. This involved the Devon and Plymouth East constituency which was a very winnable seat for us. A Mr. Richard Huggett intervened, calling himself a "Literal Democrat". We were unsuccessful in

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legal action to prevent his candidature and Mr. Huggett went on to take 10,000 votes, with our candidate—now Adrian Sanders who is the MP for Torbay—losing by some 700 votes. This was a manifestly unjust result and in consequence the Liberal Democrats gained two rather than three European Parliament seats at the 1994 elections.
Subsequently Richard Huggett re-emerged during the general election at Winchester. This time he stood as Top Choice For Parliament Liberal Democrat. Again we were completely powerless to stop him. At the general election last year he took 600 votes. As a result the Liberal Democrat candidate, Mark Oaten, won by only 2 votes and the result was challenged, leading to a subsequent by-election. I am glad to say that Mark Oaten won the by-election convincingly with a 21,000 majority, despite the fact that Mr. Huggett stood again as a Literal Democrat. With this Bill that could not have happened since the returning officer would have refused the use of the name Literal Democrat and Top Choice Liberal Democrat as being too similar to that of a registered party.
The Bill of course does have some flaws. They were mentioned by a number of speakers. The power of the central party machine is potentially increased. The registrar cannot look behind the party nominating officer to see whether a party has a constitution and whether it is being observed. There is no right of appeal, simply a possible reference by the registrar to a Speaker's Committee. There is no change in the electoral timetable for nominations. There is not enough time for challenge and due consideration by returning officers to representations about party titles used by unregistered candidates.
Considerable discretion is placed on returning officers. Provision for guidelines is needed to ensure consistency of decisions about when the rules are being broken by a candidate for an unregistered party. There will otherwise be a great many challenges to the decisions of returning officers. After all, in many cases the use of the word "independent" by itself will prove controversial.
Above all, there are no provisions to ban the adoption of misleading surnames. At the last general election Sir Nicholas Lyell in Bedfordshire North East, Rod Richards in Clwyd West and Alice Mahon in Halifax were able to obtain injunctions. But there is no guarantee that the courts will not revert to the harsher line taken when my noble friend Lord Jenkins of Hillhead was a candidate in the Hillhead by-election and was faced with a rival candidate who had changed his name to Roy Harold Jenkins. Needless to say, we made sure, not only by means of sandwich boards, that we reminded the electorate that our candidate was called Roy Harris Jenkins. That type of intervention by rogue candidates can be crucial when the margins of victory are small.
We should celebrate above all the fact that the Bill of itself will not disturb the great British tradition of weird and wonderful party names at elections. Screaming Lord Sutch may have temporarily hung up his top hat and leopard-skin tights at the last election. He was, as
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noble Lords will recall, famous for asking: "Why is there only one monopolies commission?" (That was specially for the noble Lord, Lord Borrie.)
The last general election had a larger than usual crop of outlandish party names. We had the General Election All Night Party; the Common Sense Sick of Politicians Party; the Green Referendum Lawless Naturally Street Party; the Happiness Stan's Freedom to Party Party; and the Mongolian Barbecue Great Place to Party Party. My favourite name in any election was that of a candidate at the Crosby by-election, fought by my noble friend Lady Williams of Crosby. There was a "Monty Python" candidate. He called himself Tarquin Fintimlinbin-whinbimlim-Bus Stop F'tang F'tang Olé Biscuit-Barrel!
I do not think that any of those names will be endangered under the new legislation although your Lordships may have mixed feelings on that. I thank noble Lords for their attention and patience. I look forward to playing a full part in the proceedings of this House in the future.
9.33 p.m.
Lord Borrie: My Lords, after that performance I have no difficulty at all in congratulating the noble Lord, Lord Clement-Jones, on his competent and confident maiden speech. I have had the good fortune to know the noble Lord from a time before either of us was in this House. I have known him as a solicitor, and as active in various parts of industry, retailing and television and voluntary organisations. He has chosen to make his maiden speech not on those sorts of matters, or indeed on questions of health, on which I gather we shall hear him speak in the future, but on the subject of party-political organisation. That, too, is appropriate. As he indicated during the course of his speech, he was chairman of the Liberal Party in the 1980s and played a major part in the difficult organisational matter of merging the Liberal Party and the Social Democratic Party some 10 years ago. It is therefore appropriate that the noble Lord should give us the benefit of his thoughts. It was a most felicitous speech, and we look forward to hearing the noble Lord speak on this and many other subjects—not only on health, I trust—in times to come.
The noble Lord, Lord Clement-Jones, mentioned a number of the more interesting names and descriptions given to candidates at the 1997 general election. He will no doubt know that The Times Guide to the House of Commons for the last general election named 13 major political parties and about 140 minor parties. In fact, I think The Times went slightly overboard because it is a little fanciful to describe as "parties" some of the more imaginative ego-trip descriptions adopted by various candidates. Their imagination within the confines of six words was quite outstanding in many cases, as the noble Lord, Lord Clement-Jones, indicated. But I, like the noble Baroness, Lady Gould, and others am happy that this country's democratic tolerance of one person parties and parties with minuscule membership, which is reinforced by the very modest deposit of £500 for elections to the House of Commons, is not removed by the Bill. The Bill introduces registration of political

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parties, for the reasons that the Minister gave, but registration of a party requires no minimum number of members and is not compulsory for a party putting forward candidates for election to the House of Commons, for local government or for the new Northern Ireland Assembly.
I hope I have not got it wrong, but, when the noble Lord, Lord Freeman, asked the question of the Minister, I felt like interrupting and saying that my understanding is that certainly the word "independent" tout court or the word "independent" attached to such words as "Liberal" or "Conservative" is, and will continue to be, permitted.
I welcome the purpose and approach of the Bill. In particular, I welcome the opportunity which is being taken to deal with the problem of deceiving the electorate by candidates using party labels closely similar to the names of existing parties. Several have mentioned the case of Mr. Huggett, the so-called "Literal Democrat".
If I read correctly the new election rules set out in Schedule 2 to the Bill, such a description as "Literal Democrat" on a nomination paper would be disallowed because it is likely to lead voters to associate candidates with a registered political party. I am sure I may assume that the Liberal Democrats will be a registered party.
I have one doubt, which I should be glad if the Minister could dispel, as to whether the provision in the election rules is open to abuse by the so-called registered nominating officer of the registered party. Suppose a candidate in a Scottish constituency wanted to describe himself not as an "Independent Conservative" but as a "Scottish Conservative" and stand in opposition to the official Conservative Party candidate. Conservative Party officials might want to stop him using that description. It could be argued that some voters might be misled into thinking that someone describing himself as a "Scottish Conservative" might in some ways be associated with the official Conservative Party. On the other hand, it might be argued that, far from being misled, many voters might think that a candidate described as a Scottish Conservative wanted to put clear blue water between himself and the party that had done so lamentably in the 1997 general election. I hope that, in trying to interpret the election rule in Schedule 2, the returning officer would say that the description was not "likely"—the objective test in Schedule 2—to associate the candidate with the official Conservative Party.
The Minister will know that Charter 88, the noble Lord, Lord Henley, and others, are concerned that the power given to returning officers may mean that the decision to accept or reject nomination papers may differ across the country. Can the Minister say whether the government advice, which I understand is to be given to returning officers, will be able to ensure the adequate consistency which the noble Baroness, Lady Gould, was concerned about?
There is an important related provision in Clause 3 whereby the registrar may refuse an application to register a political party if in his opinion—it is a
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subjective test—the party proposes to register a name that is likely to result in it being confused with a party that is already registered.
Clause 1 provides that the registrar is the same person as the registrar of companies under the Companies Act. I sensed a willingness of the part of the noble Lord, Lord Goodhart, to go along with that, but with some reluctance. It is a matter of convenience that an existing official, the registrar of companies, who is concerned to ensure the legitimacy of company names, should deal also with the registration of political parties. I have a suspicion, born of painful experience, that if an existing agency of government is given an additional statutory task rather than a new agency being created, the Treasury is likely to assume that little will be needed in the way of further resources.
I have other doubts. For example, the registrar of companies is accountable to the Department of Trade and Industry. Is he to be accountable also to the Home Office? Will the complaints adjudicator for Companies House—an old friend of mine, Mr. William Thomas, a solicitor, does the job very well—also have jurisdiction in the registrar's new field of activity with regard to the names of political parties? What is to be the relationship between the large numbers of returning officers up and down the country in individual constituencies and the registrar? All of them face similar problems of potentially confusing names of political parties.
The fundamental question is: why is the election rule test in Schedule 2 expressed in objective terms, whereas the test in Clause 3 is expressed in subjective terms? Under Clause 3 the registrar has to determine whether the name proposed is, in his opinion, likely to be confused in the minds of voters with a party that is already registered. That may not be an easy task. When the Minister opened the debate—I noted his remarks—he suggested that it was perhaps not too difficult to differentiate between the Liberal Democrat Party and the Liberal Party. The Liberal Democrat Party with at least one Member in the House of Commons has the advantage under Clause 16 of being able to make a first stage application. The Liberal Party, following the efforts of the noble Lord, Lord Clement-Jones, in the mid-1980s, was relaunched by those members of the old Liberal Party who rejected the merger with the SDP. That party has no representation in the House of Commons and will not be able to register until the second stage, under Clause 17.
Although I shall not quote the words of the Minister, for the benefit of Hansard I give the appropriate references. In Standing Committee A on 18th June at cols. 21 and 24 the Minister made a number of noises in which he suggested that in the view of the Government both the Liberal Party and the Liberal Democrat Party would be entitled to be registered. I am left in some doubt because of the reference in Clause 3 to the registrar's opinion. As yet he has not given any opinion. Perhaps the Liberal Party can rely on the Minister's words in the House of Commons on a Pepper v. Hart basis, to the effect that the registrar

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should refuse to register a name only if there is likely to be a substantial amount of confusion, as distinct from a small amount of confusion, in the minds of voters.
Lord Goodhart: My Lords, will the noble Lord accept what appears to me to be the case: that in determining the registrar's opinion, the statement by the Government cannot operate on a Pepper v. Hart basis. It must be merely a statement of what they regard as being likely to be a registrar's opinion.
Lord Borrie: My Lords, I suspect that the opinion of the noble Lord is correct. Shall we await what the Minister says on the subject?
The fact that the operation of Clause 3 depends on the opinion of the registrar is particularly important. As several Members of your Lordships' House have already indicated, there is no appeal from his decision, although under Clause 10 he may seek advice from a committee of the House of Commons appointed by the Speaker.
The possibilities of judicial review, to which the noble Lord, Lord Goodhart, referred in his speech, are narrow possibilities where the registrar's decision is unlawful or perverse. But apart from that, I think I may say, at least as a generalisation, that the registrar seems to be very much in this field a law unto himself.
In the House of Commons the Minister said that if the registrar sought the view of the Speaker's Committee he would be expected to follow the advice he was given. However, nothing in the Bill requires him to do that, or indeed requires him to give reasons for not doing that.
I have a number of queries, as I have indicated. By and large I agree with the purposes of the Bill. In contrast to one or two Members opposite, I wish the Bill a not too lengthy Committee stage and a speedy passage on to the statute book.
9.46 p.m.
Earl Russell: My Lords, it is my pleasure to offer my congratulations to two notable maiden speakers. Both of them are people to whom I have had the pleasure of listening on many previous occasions so it is no surprise to me to discover that they are both highly skilled and highly effective speakers. Perhaps I may say that I have never heard either of them speak as well as they did today. In both cases that is a tribute to the vital ability to rise to the big occasion; and I hope also perhaps a tribute to this House about which they both spoke with so much generosity. I look forward to hearing both of them on many future occasions.
I must declare a non-pecuniary interest as president of the Electoral Reform Society, by which I am in part advised. In welcoming the Bill I speak on behalf of the society, my party and myself; and between those three capacities I am happy to enjoy a complete Trinitarian unity.
I agree with what the noble Baroness, Lady Gould of Potternewton, said about the recognition of political parties. They are a vital part of the electoral process and that recognition was long overdue. The absence of that recognition in our previous law underlines the point which cannot too often be reiterated: that our existing
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system of representation in all its main outlines pre-dates the existence of political parties. It is therefore not surprising if it needs in some particulars to be brought up to date.
Clearly the Bill is necessary to any system of proportional representation. I support it for that reason. I support it for the reason of avoiding misleading candidatures. I have nothing to add to what has been said on that.
On the matter of emblems, I agree with what the noble Baroness, Lady Gould of Potternewton, said. We have possibly as many as 10 per cent. of illiterates in this country. Sad though it is to say it, one must recognise it. Those people have rights which they often have difficulty in recognising. Therefore I agree strongly with what she said.
I agree with what has been said in every quarter of the House about the necessity of appeal. I hope the Minister has heard that pretty well unanimous message. I also agree about the use of misleading names. I have two further examples of that. The example that first brought the matter to my attention was, I think, the general election of 1970. A candidate appeared in the constituency of Huyton having changed his name by deed poll to James Harold Wilson. That candidate was not elected. But there can have been no possible motive for that change save the motive of trying to mislead the electors.
The other case was in the European elections of 1994. A candidate for Surrey changed his name by deed poll to John Major. Had that candidate done just a little bit better, my noble friend Lady Thomas of Walliswood would have been elected to the European Parliament. Although it would have given me pleasure to have her elected to the European Parliament, it would have given neither me nor her any pleasure to see her elected as a result of such a misleading piece of activity. There is a real mischief here and I hope that the Government will address it.
I am most concerned about the family tribal names of the basic political groups; the point raised by the noble Lord, Lord Borrie, in the case of the Scottish Conservatives. A power is being created here. It is a necessary power, but wherever we have a power we have the possibility that it might be abused. That needs to be considered.
It is my understanding that it is not the intention of the Government that the basic tribal political names—Labour, Conservative and Liberal Democrat—should be monopolised. But, of course, a party system is a living thing. It is not set in tablets of stone and like other living things it occasionally tends to increase and multiply.
Political parties since 1679 have divided on many occasions. We have here what I believe we should regard as two contradictory obligations which should be balanced against each other in the manner made familiar by the European Convention on Human Rights. One is the need to avoid misleading and the other is the need to recognise the political animal that is being created. I take, for example, the case of the Liberal Unionists in

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times gone by. For the accurate identification of what those people were, it was essential to include both the name "Liberal" and the name "Unionist" in their title.
I know that the Minister will say that this is a matter for the registrar and I understand that perfectly well. But, for the avoidance of doubt and for the information of the registrar, I would find it very helpful if he would say that it is not the intention of Parliament that these names should be monopolised and that the need to understand the nature of the party will be balanced against the need to avoid misleading the electors. If he can say that now, he will save us a little time in Committee and I shall be most grateful to him.
9.52 p.m.
Lord Cocks of Hartcliffe: My Lords, when a Bill has all-party support, normally one does not scrutinise it too carefully. However, when a Bill is designed to protect the major parties from what is regarded as unfair competition, especially by people using the electoral process, is there not a duty on us to scrutinise it more carefully when it appears that the established parties are carving the system up between themselves?
It is important to distinguish between attempts to mislead and issues of public interest. One recalls how the late Guy Barnett won the South Dorset by-election because of the intervention of Sir Piers Debenham on an anti-Common Market platform; and how my noble friend Lord Mishcon was frustrated at Gravesend by the candidacy of Sir Richard Acland on an anti-nuclear platform.
While recognising that there is a problem, I remember with affection and amusement the candidatures of Buckethead and Tarquin Biscuit Barrel, mentioned by the noble Lord, Lord Clement-Jones, whose speech I much enjoyed, as I did that of the noble Lord, Lord Freeman. Perhaps I may tell the House that Biscuit Barrel was the cousin of a former Labour MP. I am very strongly tempted to blurt the name out to the House, but in deference to my former colleague I had better not do so!
It is noticeable that the Home Office has pushed in a piece about party political broadcasting. I firmly believe that this is not the way to tackle this subject. This kind of problem has always been conducted through agreement and negotiation with the broadcasters. If the subject is merely slipped into legislation, without fair comment, would this not be taken as a precedent for further legal moves in this field? The democratic process should be as free from constraints as possible.
There is an element of picking and choosing about this Bill which reflects on the problems which arise when the big parties collude with each other. In another place during the Second Reading, the Minister in charge of the Bill, in commending a register for political parties, said,
"that it was the means to combat deliberate attempts cynically to mislead electors".
When I hear the phrase "cynically to mislead electors", I think of this as the activity of the party spin doctors.
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On 7th March 1996, during the proceedings of the Broadcasting Bill (at cols. 515 and 516 of the Official Report), I explained to noble Lords from my experiences as both Chief Whip and Vice-Chairman of the BBC how various measures had had to be put in place to curb the activities of the spin doctors pushing to influence the positioning and content of news programmes. There is no sign in this Bill that the major parties even recognise that this problem exists.
During the proceedings in another place there was frequent discussion at all stages about the use and misuse of generic words, of which one of the most frequently quoted was "independent". The point was not pursued to any conclusion. I feel that this was a great pity because the misuse of this type of word is very easy and very misleading.
I would like to give a particular example in some detail because it is particularly relevant at the present time. I refer to the Independent Commission on the Voting System. I have undertaken a lot of work on this and I would like to pay tribute to the sixth form students of Bacon's College, Southwark. They have helped in sorting and collating the material.
This supposedly independent commission, anxious to be available to the general public and to consult as widely as possible, has its offices on the top floors of Clive House—the Home Office Passport Office—and its staff are paid by the taxpayer. One wonders about the rent arrangements. There is no sign at the entrance indicating the presence of the independent commission. When someone was sent round, she was told that she could not visit the office without an appointment. When I rang directory enquiries for the independent commission's telephone number, it was not listed. Only after I had asked a Parliamentary Question about this matter was the number supplied to directory enquiries. It is said that the telephone number is available on the website. This implies that the independent commission is indifferent to the large part of the population which does not have access to the Internet.
People asking for information about the electoral system are referred to the home page of the Electoral Reform Society. Surely this organisation has a massive vested interest in the whole subject.
How, may I ask, is the public being consulted? The independent commission has conducted a series of regional meetings. On 24th June this year, during the Committee stage of the European Parliamentary Elections Bill, the noble Earl, Lord Russell, said that there had been an "overwhelmingly favourable" reaction of these meetings. I drew attention to the average attendance of 80 and said this represented 0.0000625 per cent. of the electorate. Even this figure is doubtful.
At the recent Labour Party Conference I collected the annual review for 1997–1998 of the Electoral Reform Society. There I see that, apart from society members writing to the commission,
"a large number have also attended the Independent Commission's hearings to present their arguments for change and in particular STV".
In other words, the meetings have been packed.

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Imagine my surprise when I see that the president is the noble Earl, Lord Russell, as he has just told us. Perhaps the noble Earl will tell your Lordships whether these electoral reform zealots went to more than one meeting and whether we had a stage army moving around the country. I am sure that the noble Earl will be pleased to clarify these points.
Attending the Church House, London, meeting, I saw Electoral Reform Society leaflets being given out at the doors without any restraint by the organisers. Even more remarkably, the Electoral Reform Society's annual review goes on to say that the society's relationship with the independent commission was not confined to the preparation of papers but that it was pleased to assist the commission staff in their research.
The independent commission also used focus groups. This was done between 7th and 9th June 1998 with six groups, three in the Midlands and three in the South East, each comprising between seven and eight people. It is bewildering that large and important sections of the country were totally ignored. Presumably the independent commission, with middle England consulted and satisfied, felt that the views of the Labour heartlands could be ignored.
This evidently inappropriate relationship with the Electoral Reform Society has been compounded by the association of the members of the independent commission with the Constitution Unit. This was exposed in the Answer to my Question on 29th July 1998 (at col. WA74 of the Official Report).
May I point out that, on 13th March 1997, I asked this House whether the grant by the Pilgrim Trust to the Constitution Unit was compatible with the Pilgrim Trust's status as a registered charity. The noble Lord, Lord Jenkins of Hillhead, strongly defended the action and alleged that the implication that the Constitution Unit was politically motivated was a malign fantasy, which he claimed I was prone to. The facts are, I feel, that there has been a serious misuse of charitable money not only with the Constitution Unit but also by Demos and the IPPR.
Rather than go into elaborate details, I will rest my case on a quotation from a book recommended by the independent commission for background reading, called Making Votes Count by Martin Linton and Mary Southcott. Martin Linton is now the MP for Battersea, and a frequent speaker on electoral reform, but he completely blows the gaff on page 110 of Making Votes Count. He says that the Plant Commission was wound up in December 1993 even though its work was still not complete. Your Lordships may remember that the Plant Commission was set up as a Labour Party body to study electoral reform. He goes on to say that the work of the Plant Commission was taken up by the Institute of Public Policy Research, which is a registered charity, and then by the Constitution Unit when it was established in 1995, directed by Robert Hazell. It is interesting to note that in the IPPR annual report this year a commercial subsidiary has now been set up—the Public Policy Research Associates. It would not be surprising if the Charity Commission had been around suggesting that something should be done before the balloon went up.
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The Constitution Unit also compromised itself when it serviced the Labour-Liberal Democrat Joint Working Party which prepared the joint manifesto programme on constitutional reform for the 1997 general election. One wonders about the question of independence when the Charter 88 "parliamentary brier of September 1998 refers to,
"talks have taken place recently between Downing Street and Lord Jenkins".
I have spent some time on this example. But it is my firm belief that the British people are in danger of being made fools of through the sloppy use of words like "independent", particularly on an issue such as this. Is this not far more serious than any number of Biscuit Barrels? The Bill is not up to the job. I hope it can be improved.
10.2 p.m.
Lord Williams of Mostyn: My Lords, I thank the noble Lord, Lord Henley, for his usual grace and courtesy in his opening remarks and I add my own tribute to the two notable maiden speeches which we heard this evening. Both of the contributors will now have realised at least two things with perhaps a chilling heart: first, if one puts down one's name, one has to wait until the end; and, secondly, if one waits until the end, one realises that not every part of every speech is necessarily relevant to the topic under discussion.
The noble Earl, Lord Russell, asked specifically whether there would be a monopoly on certain names. The answer is no. As the noble Earl said, it is a matter eventually for the registrar, advised as necessary—this is an important constitutional innovation and quite a subtle one—by the Speaker's committee. We see no reason at all why the Liberal Party should not be allowed to register as well as the Liberal Democrat Party. There is no reason why the Labour Party should not register as well as Socialist Labour. I again give my example of our colleagues in Northern Ireland. There is the Democratic Unionist Party, the Official Unionist Party, the Progressive Unionist Party and, if I remember rightly, the UK Unionist Party. All those parties, particularly in an electorate which happens to be rather well-informed about topics of present political importance, were capable of being distinguished and did not attempt to mislead the electorate; nor, I think, did any of them want to.
Earl Russell: My Lords, I am most grateful to the Minister for that assurance, which gives me 90 per cent. of what I wanted. Will the Minister go just that little bit further and say that it is his understanding that this principle will be extended to parties gathered out of the body of the original political tribes in future? Take, for example, those who in local elections are now describing themselves as Real Labour: would they be allowed to register themselves under that name?
Lord Williams of Mostyn: My Lords, this is the third lesson that the noble Lords who have just made their maiden speeches need to bear in mind. When the noble Earl, Lord Russell, is at his most seductive you know perfectly well that he is about to lead you into a

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trap from which there is no escape in this world. I think it is fair to say that it is not for me to pre-judge the different functions that the registrar needs to perform and also the functions of the returning officer. The noble Lord, Lord Borrie, is quite right. The tests are different, but that is because the functions are different, and I will develop that in a moment or two. In principle, what is wanted here is that parties who want to register shall pass the tests alluded to and which I set out myself in Clause 3. That is a different operation and it is approached upon a different basis from the work of the returning officer, who has to decide in a particular instance whether or not representations made on a ballot paper are likely to mislead the electorate.
It is quite a different activity qualitatively, and that is why the test is different. One or two questions have been raised which have nothing to do with this particular matter but which are nevertheless of importance and I ought to deal with them. First, is this a cloak for further centralisation of bureaucracy within the existing parties? No. This has no bearing on that at all. There is the fact that two designated officers will be required by an established political party if they wish to have the benefits of registration—and that is voluntary. They must have two officers, in that case, to carry out their statutory functions. However, the choice of those officers is entirely a matter for the political party in question.
It may well be that Plaid Cymru or the SNP have different internal constitutional arrangements from, for instance, the Liberal Democrats, the Labour Party or the Conservative Party. One example is that the Conservative Party has recently been altering its internal arrangements and constitutional relationships, as has the Labour Party. However, those matters have nothing at all to do with this Bill and this is not a plot or a collusion to safeguard the larger political parties. I think it was suggested that this was some sort of conspiracy—I believe that was the general thrust of the earlier part of the observations of my noble friend Lord Cocks—and that it was to prevent unfair competition vis-à-vis the larger parties. Nothing could be further from the truth.
What we want are fair elections, and this has nothing to do with competition between the larger parties. It is to ensure that the electorate themselves are dealt with fairly and properly and are not being misled. I personally always welcomed the candidacy of people like Screaming Lord Sutch of the Monster Raving Loony Party. In fact, almost single-handedly he brought about the demise of the SDP, because your Lordships will not have overlooked the fact that it was just immediately after Screaming Lord Sutch beat the SDP in a by-election that the SDP thought it might be time to hang up their boots while they still had a pair capable of being worn.
I remember another marvellous example of someone who put himself forward as the leader of the Alternative Elvis Party and his manifesto only had one platform plank. It was—I commend it to your Lordships—that
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anyone giving the name Barry Manilow at Heathrow Airport ought to be arrested and detained for a period not longer than nine months.
We are all capable of enjoying these things—they are all fun—as long as they do not mislead, but it is very important—and I entirely take the point of the noble Lord, Lord Freeman—that, if one wants people to stand for office in public life by the route of public election, they should be satisfied that their efforts will be fairly treated. If one has the Literal Democrat, there is a strong argument for saying that the electorate will not be fairly treated: nor will the candidates.
A number of your Lordships have given examples, which I will not repeat, of attempts to mislead by means of bogus names which are either identical or very similar to the name of a more prominently known candidate like Sir Nicholas Lyell. The law dealt with all those things perfectly adequately. There was an injunction in the Lyell case and also in the Alice Mahon case. We do not need any provisions here, on the basis that if it is not broke it is not always necessary to fix it: in fact quite the opposite.
The question of appeals has been raised. We do not want a legalistic, over-formalistic regime. We are giving a discretion to the registrar in Clause 3 to reach his conclusion. In any difficult or contentious case or case of delicacy, particularly in the early stages, we would expect that he would feel it a sensible obligation upon him—not statutory but in his own discretion—to go to the Speaker's committee. I am certain that the registrar would welcome the assistance that such a committee can give.
It is extremely important—and this may echo a theme put forward by the noble Lord, Lord Freeman—that one should have a full and proper regard for the democratic chamber. Its members have a democratic validity which we do not have. It seems to me that the Speaker's committee is quite a thoughtful advance on something which might otherwise be too legalistic.
In answer to my noble friend Lady Gould, there are no present plans to extend the period of the election campaign.
The noble Lord, Lord Borrie, asked why there was a different test in Clause 3 and Schedule 2. I have answered that. He made the valid point, if I may say so without presumption, which was made also by other noble Lords, that one should take great care about the guidelines which I mentioned in introducing this matter, giving the indicative timetable of February/March of next year. I am extremely grateful for what your Lordships have said about the nature of the guidelines which may be published. I do not guarantee your Lordships even 90 per cent. satisfaction but I assure noble Lords that all those observations will be borne carefully in mind.
My noble friend Lady Gould also asked a question about race hatred. It seems to me to be undoubted that if there were a matter which was likely to engender race hatred or incitement to race hatred, it would not be proper for the registrar to grant an application, because Clause 3(1)(c) requires him to refuse an application by a party if any of the material is offensive or obscene.

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That does not seem to me to be capable of doubt in the context of our present society, and indeed our recent legislation, and so I hope I am able to satisfy her on that. I stress that those matters will eventually be for the registrar, subject of course to the discipline of judicial review. That is important. He has a discretion but it must be exercised sparingly in accordance with legal principles.
I was asked when the noble Lord, Lord Jenkins, is going to report; whether he is going to say anything about an electoral commission and, if the answer to either of those questions were "within a couple of weeks or so" and "yes" or "no" to an electoral commission, how I could support any of those propositions? I shall leave those questions for the appropriate day when we have sight, which I do not have now, of what are the recommendations of the noble Lord, Lord Jenkins of Hillhead, and whether or not they include an electoral commission. It is outside the ambit of what we are dealing with this evening.
The noble Lord, Lord Henley, raised a specific question about where one could find the legal basis for charging any fee of any sort. I indicated that the thinking was that there should be an initial registration fee of £150, a confirmation fee of £25—that is, the annual confirmation fee—and, if a change were sought again, that a charge would be made in the order of £25. One finds the fee-levying power in Schedule 1, which states:
"An application for inclusion in the register … must be accompanied by any fee prescribed by order made by the Secretary of State".
I quite take the point made by the noble Lord, Lord Henley, that, if one puts one's eye only to Clause 6(7), that refers to amendment. But the initial power is in the place to which I have invited your Lordships' attention.
Lord Henley: My Lords, I am grateful to the noble Lord for giving way. I am not an expert in drafting but, in terms of trying to produce something that is easy for people to understand, it seems to me most odd that the powers given to the Secretary of State for charging fees for alterations or the annual re-registration should be in the main part of the Bill and the power for the first and most important fee should be contained in the schedule. I do not know whether there is any explanation for that. If there is, perhaps the noble Lord will let me know.
Lord Williams of Mostyn: My Lords, the first question that the noble Lord put to me was that he could not find the power in the Bill at all. It is there and it is put there conveniently because there are many details and descriptions which are traditionally, and I think appropriately, found in schedules rather than in the body of the Bill. There is nothing in my experience that is novel about that.
There was a specific question raised about the line of responsibility between the registrar, because, of course, he acts as a Companies House registrar, and whether or not the Companies House complaints system would bite upon his work in that area. No, that is a separate
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capacity. His functions and responsibilities are as set out in the Bill. They do not relate to his functions and lines of accountability as registrar of companies and Companies House. He is dealing with different questions and therefore his responsibility is on the statutory basis in the Bill, not on any other basis.
There was a question raised by the noble Lord, Lord Goodhart, about regional parties. A party will only be able to register one name and one emblem but it seems to me that if there was a Liberal Democrat standing in Scotland, he would be able to apply to describe himself as the Scottish Liberal Democrat candidate. I see no difficulty about that.
Lord Goodhart: My Lords, what is the position where, as Liberal Democrats, we have Scottish and Welsh parties which are separate, unincorporated associations although they are also component parts of the Liberal Democrat party as a whole? Would the Scottish Liberal Democrat party, for example, be entitled to register under that name concurrently with the party in Britain as a whole being entitled to register itself as the Liberal Democrats?
Lord Williams of Mostyn: My Lords, obviously, I am not determining these issues and I have to be cautious. I think the answer to that question is no, for the purposes of registration, but for the purposes of description on the nomination and ballot paper it seems to me that there would be no prohibition against someone in Scotland who was a member of the Liberal Democratic Party—and, it may be, as the noble Lord says, the Scottish Liberal Democratic Party—so describing himself. In other words, registration and the content of the ballot paper are quite different. One of the reasons for that is that if parties were allowed to register as a regional variance we could run into the alter-ego party scenario mentioned by the noble Lord, Lord Henley. I shall spend a few moments on that because we have trod this particular ground quite vigorously, if not fruitfully, over the years.
Lord Goodhart: My Lords, I seem to remember that there was some years ago a separate party set up which called itself the Scottish Labour Party although it was not part of the Labour Party. If so, would it be possible for the Labour Party to object to registration, and, if not, would that not cause difficulty for, let us say, a Labour Party candidate in Scotland who wished to emphasise his Scottishness by describing himself as Scottish Labour?
Lord Williams of Mostyn: My Lords, I am grateful for that question and suggestion. It seems to me that those are exactly the points one is giving to the registrar to come to his determination upon. That is why we have the two-stage system. He has to take into account recent political history. It seems to me that if there were a completely independent organisation trying to call itself the Scottish Labour Party, it might well not succeed in being registered and when it came to a ballot paper the returning officer might well come to the conclusion that that was capable of misleading or, to use the phrase in

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the Bill, was likely to mislead. Those decisions obviously are within the discretion, first, of the registrar and, secondly, of the returning officer in the usual way.
I do not see why someone, subject to the safeguards of the statutory regimes which we provide, should not seek to call himself "Independent Labour", "Independent" or "Unofficial Conservative". He will not be able to have, without registration, the official logo. It is a matter then for the returning officer to scrutinise the particular form of ballot and description to see whether it is likely to mislead.
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One will have problems at the edges: there are no two ways about it. I do not know of any system that will be perfect. What I am respectfully suggesting is that this is a significant advance on what we presently have.
I am grateful for the general welcome that has been given to the Bill. If there are improvements that can be sensibly made consistent with the scheme of it, I would wish to give them every consideration. For present purposes I commend the Bill to the House.
On Question, Bill read a second time and committed to a Committee of the Whole House.
House adjourned at twenty minutes past ten o'clock.

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