THE SCOTTISH PARLIAMENT

Mr. Michael Ancram (Devizes)

I beg to move amendment No. 2, in page 1, line 8, at end insert— '(1A) Notwithstanding the establishment of the Parliament, or anything contained in this Act, the supreme authority of the Parliament of the United Kingdom shall remain unaffected and undiminished over all persons, matters and things in Scotland.'.

The Chairman of Ways and Means (Sir Alan Haselhurst)

With this, it will be convenient to discuss the following: Amendment No. 79, in clause 27, page 13, leave out lines 30 and 31.

Amendment No. 169, in clause 27, page 13, line 30, leave out 'section' and insert 'Act'.

Amendment No. 23, in clause 27, page 13, line 31, at end add

'in relation to reserved matters'.

Amendment No. 198, in clause 27, page 13, line 31, at end add

'which may not be amended or repealed by the Scottish Parliament'. Amendment No. 189, in clause 35, page 16, line 44, leave out

'have effect subject to this Act' and insert

'shall be construed together with this Act, and those sections of the Union with Scotland Act 1706 and the Union with England Act 1707 which relate to Scotland shall together with this Act be known as the "Government of Scotland Act"'. The question, That clause 35 stand part of the Bill.

Amendment No. 3, in clause 116, page 52, line 19, after 'the', insert 'Government of.

Mr. Ancram

I welcome the fact that we are considering such a constitutional measure in a Committee of the whole House. As happens on these occasions, groups of amendments tend to be fairly widespread. It always fascinates me to see which amendments are grouped together and how far through the Bill we go on each group.

Amendment No. 3 relates to almost the very end of the Bill. It seeks to change its title to the "Government of Scotland Bill." The reason is consistency. The constitutional Bill relating to Wales is called the Government of Wales Bill. Indeed, the last time that there was devolution in the United Kingdom—in Northern Ireland—it was under the Government of Ireland Act 1920.

As part of the devolutionary package, there would be some merit in such consistency. The Secretary of State might like to take the suggestion seriously and give it some consideration. There is not a great deal of party 358 political force behind it, but it would make the statute book rather tidier. I know that, as a Scottish lawyer—as I am myself—the Secretary of State likes tidiness.

The Parliamentary Under-Secretary of State for Scotland (Mr. Sam Galbraith)

An Edinburgh lawyer.

Mr. Ancram

As the Minister says, I was an Edinburgh lawyer. The Secretary of State will remember that I practised most of the time in the Glasgow High Court, sometimes under his beneficent instruction.

Amendments Nos. 2, 169 and 198 all relate to what has become known in popular jargon as the supremacy question. Although they refer to different parts of the Bill, they should be looked at together. Throughout the referendum campaign, and on Second Reading, the Secretary of State claimed that the proposals would strengthen the United Kingdom. The amendments are addressed to that important assertion.

We accept that the democratic case for a Scottish Parliament has been made in the referendum. We must now ensure that it fulfils the claims made for it, and avoids the pitfalls with which it could be surrounded and against which we have warned in recent months.

The Bill is a major constitutional measure. That is why the entire Committee stage is being taken on the Floor of the House. Like all constitutional reforms, it could go one way or the other. It could create turmoil, as Sir Malcolm Rifkind predicted at the end of the referendum. He saw the danger not of the break-up of the United Kingdom, but of a generation of constitutional turmoil. On the other hand, it could be used to create stability. As there will be devolution and a Scottish Parliament, it is our common task on both sides of the House to try to ensure the latter.

To achieve stability and to fulfil the claim that the measure will strengthen the United Kingdom, the reform must be subject to clear constitutional anchors. The first is the sovereignty of Parliament.

Mr. Alex Salmond (Banff and Buchan)

At what stage did the right hon. Gentleman stop believing that devolution would inevitably lead to independence, as the Conservative party claimed during the referendum campaign, and start believing that it could go one way or the other, as he has said this afternoon? Can he put his finger on a precise date?

Mr. Ancram

The hon. Gentleman will have difficulty in finding any occasion on which I said that the process would be inevitable. I said—and I repeat—that the proposals contain flaws that could lead to that break-up which I wish to avoid. Since the referendum, I have made it clear that our responsibility is to try to cure those flaws, and to create stability and balance where there is currently instability and imbalance.

As I was saying, to establish stability constitutional measures have to meet four constitutional anchors. The first is the sovereignty of Parliament, which is of great importance in this country because we do not have a written constitution. The sovereignty of this House and its ability to decide on the constitutional position are essential parts of the stability of the constitution.

Mr. James Wallace (Orkney and Shetland)

As a distinguished Scots Queen's Counsel, how does the right 359 hon. Gentleman square what he has just said with what Lord President Cooper said in the case of MacCormick v. the Lord Advocate? He said: The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. We are dealing with the Scotland Bill.

Mr. Ancram

At the moment, all I have said is that I believe that one of the anchors is the sovereignty of Parliament. I will deal with that point, because we must look at the distinction between legal and political sovereignty, which is recognised and is of importance.

I would merely say that, in the case mentioned by the hon. and learned Gentleman—MacCormick v. the Lord Advocate—that remark was not in the main judgment, but was part of the obiter dicta. If I remember my constitutional law correctly, there are many other remarks which can be drawn upon from that case—not only from Lord Cooper, but from other judges—which, while interesting, have no legal implication. I will come on to that.

The second anchor is the integrity of the United Kingdom, even if constitutional changes are made within it. I hope that that will be common ground across the Dispatch Boxes, and that we are looking to maintain the integrity of the UK in what is being done. The third anchor is the importance of the constitutional monarchy, and the fourth is the balance of the interests of an individual with the powers of the state. Those are the four anchors against which all constitutional measures should be tested. In this instance, there are two specific anchors to which I wish to return.

Mr. George Galloway (Glasgow, Kelvin)

Unlike the hon. Member for Banff and Buchan (Mr. Salmond), I am not so much interested in when the sinner repented as in that he has repented. I welcome it, and we should not be churlish about welcoming the transformation in the views of the right hon. Member for Devizes (Mr. Ancram) on the subject.

In that context, I make a sincere plea to the right hon. Gentleman. One of the best contributions that he could make to making a success of the project is to drop the dog-in-the-manger churlishness which characterised his performance and those of some of his hon. Friends on the previous occasion we debated the Bill. I honestly cannot see how that is even in the interests of his own party. Devolution is now the settled will of the people, and the Bill will pass through this House. Let us make a success of it, and approach it constructively and with good will. I appeal to the right hon. Gentleman at this early stage to do so in today's debate.

Mr. Ancram

I will always take lessons in constructiveness and good will from the hon. Gentleman, given his past record. I hear what he has to say; I merely say this. I have said that I believe that devolution contains great dangers to the United Kingdom—I would be less than honest if I did not continue to say that. I believe also that this Bill has substantial flaws, which I believe enhance that danger. I wish to see those flaws cured.

I also take the view that it is dangerous ever to suggest—as the hon. Gentleman appears to be doing—that the Bill is somehow perfect and incapable of 360 amendment, and that anyone criticising it is somehow criticising the future existence of a Scottish Parliament. I have said that I accept that there will be a Scottish Parliament, but I would be doing less than my job and my duty if I failed to scrutinise the Bill carefully, and, when I saw gaps in it, to say so. If that is churlishness or being a dog in the manger, I am afraid that that is the job not only of the Opposition, but of Back Benchers from all parties; that is the duty and responsibility of the House of Commons.

I hope that the hon. Gentleman will look seriously at the flaws which exist, and will desist from the suggestion that it is somehow heresy to criticise in any form any of the proposals that are made. His case might have been stronger had the referendum been held after the publication of the Bill, so that the people of Scotland could have said, "Yes, we agree with every single word; every dot, tittle and comma"—or whatever the phrase is. That was not the case, and we have a responsibility to look closely at the Bill.

For a start, we know that devolving power inevitably creates a momentum of what has been called unbundling, and creates the appearance of a slippery slope towards separation and the break-up of the UK. At best, it creates the prospect of turmoil. This is compounded by the dangerous flaws in the Bill, which will create imbalance, instability and the threat of Anglo-Scottish confrontation if we do not deal with them now. To counteract that, there is a necessity to ensure the application of two of the anchors I mentioned—the integrity of the United Kingdom and the sovereignty of Parliament.

As it stands, the underlying dynamic of the legislation has the effect of undermining the integrity of the United Kingdom. It is consistent with the view that devolution is not so much an event as a process; that this is a start, not an end; and that there is all for nationalists to play for in trying to achieve their goal of independence.

This is a test of the Secretary of State's undertaking about whether the Bill will strengthen the United Kingdom. I believe that, as it stands, it cannot deliver that. To create credibility and stability, we need to establish that the concept of the Bill is not federalism, which by definition divides powers, but devolution, which delegates them, and that it is also not quasi-federalism; if it were, the clause would not be a part of it.

The Bill is drafted to suggest that we are to have devolution, with delegated powers, not federalism, with divided powers. The clause helps to establish that, but it begs several questions. We know that it is replicated from section 4(4) of the Northern Ireland Constitution Act 1973, and presumably it is there to fulfil the same function of reassurance.

We must accept that, legally, the clause adds nothing to existing sovereignty, but the absence of such a reassurance in the Northern Ireland context, at least, could have been regarded as significant. I suspect that the same could have been said in this context, and that is why the clause is there; but it is not satisfactory as it stands. It does not state, for instance, whether, if the United Kingdom Parliament were to make laws for Scotland, they would take precedence and prevent further amendment or repeal by Scottish Parliament legislation, or whether they could be the beginning of a shuttlecock game between the two Parliaments.

361 On Second Reading, I asked whether private Members' legislation could be included, and I think that the Minister said no. I hope that he has reconsidered, because a power for this Parliament to legislate in Scotland must inevitably include the power for a private Member's Bill to be part of such legislation.

As it stands, the clause could be a cockpit for a struggle between the two legislatures. The power to legislate could be within the vires of this Parliament, because it is sovereign, while the power to repeal legislation, because it was not a reserved matter, would be open to the Scottish Parliament, and legislation could be batted back and forth, with the Judicial Committee of the Privy Council unable to make a decision, because both Parliaments would effectively be acting within their vires. If I am wrong about that, I shall be pleased to be corrected; but that is my concern about the clause.

That is why we want to amend the clause through amendments Nos. 169 and 198. We want to ensure that, if an Act of Parliament is passed relating to Scottish matters, that Act will be incapable of repeal or amendment by the Scottish Parliament. It is a power that would, I believe, be very rarely used, but it is relevant in making the clause credible.

Mr. Tam Dalyell (Linlithgow)

The right hon. Gentleman says that the power would be very rarely used. Can he give an example of circumstances in which it could be used?

Mr. Ancram

Only a hypothetical example: the House might decide to pass a private Member's Bill that included Scotland and affected a matter that was not reserved to the House—there is nothing in the clause to prevent it from doing so—and the danger is that the Scottish Parliament could decide that, as the matter was not reserved, it wanted to repeal or amend it; then, in my reading of the clause, this Parliament would have the power to establish that law if it wanted to.

Mr. Galloway

Will the right hon. Gentleman give way?

Mr. Ancram

No.

I said that it would happen rarely. In constitutional experience, the way in which responsible parliaments work means that such occasions would very rarely occur. The experience of Northern Ireland in the Stormont period underlines that. Once again, I make the point that, where there is such a danger, we should pre-empt it by legislating in the way that makes it least likely to happen.

Mr. Salmond

The right hon. Gentleman is not pre-empting conflict but trying to consolidate the sovereignty of the Westminster Parliament. Does he think that it would be constructive—let us put it that way—for a Back-Bench Member of this Parliament or the Government to legislate on devolved matters? If not, why is he trying to enshrine that right in the legislation?

Mr. Ancram

For the reason that I have already given, and one that the hon. Gentleman obviously has not yet taken on board. If one accepts—I know that he does not, but the Secretary of State does—that this Parliament remains sovereign, it is important that no legislation 362 allows for that sovereignty to be constantly undermined, as I have said could hypothetically be the case under clause 27.

I have tabled the amendment because I believe that, if clause 27 is to last, we need to make it as effective as it can be. I believe that we need a further clause, and that is what I want to deal with next.

Mr. Galloway

I invited the right hon. Gentleman, and he seemed to respond, to approach these matters constructively. What could be more destructive or certain to lead to turmoil—to borrow his words—than such an occasion as he postulates? A Member of this House could exploit the amendment to create conflict on constitutional grounds between the two Parliaments. Is that the constructive law-making to which we can look forward from the right hon. Gentleman for the rest of the day?

Mr. Ancram

The hon. Gentleman makes my point for me. I am saying that we must try to prevent conflict arising. I do not want to see conflict, but where a clause, by its definition and nature, allows conflicts to arise—as clause 1 does—it is right to amend it to prevent confrontation and to avoid making the shuttlecock legislation that I fear.

Clause 1 was put in the Bill not by me but by the Secretary of State and the Government. All I am saying is that, if this is to be the clause that underlines the sovereignty of Parliament, it should be drafted in such a way as to achieve that.

Our responsibility is to pre-empt confrontation. The hon. Member for Glasgow, Kelvin (Mr. Galloway) asks me to hope that all will be perfect in a perfect world, and that conflict will never arise. That is not the right way to deal with constitutional legislation.

Mr. Wallace

I am trying to follow the right hon. Gentleman's argument. Is he saying that, when this Parliament passed the Church of Scotland Act 1921, which gave the Church of Scotland, its general assembly and its courts sovereignty over all matters within the spiritual domain of the Church, Westminster retained the sovereign right to remove those powers at a later stage? If that is his position, is he not provoking a constitutional difficulty with the Church of Scotland?

Mr. Ancram

I am always keen to avoid confrontation with any Church. I understand that this is a matter of debate in another place. I shall be interested in the outcome of that debate. The hon. and learned Gentleman's argument is being made against the Government's proposal in another place. I shall read carefully the outcome of that dispute.

We propose a broader amendment that avoids this rather intricate argument. I am looking for a clearer statement of the supremacy of this Parliament of the United Kingdom, which fulfils in terms the requirements of the two anchors I mentioned, and which has respectable precedents in section 75 of the Government of Ireland Act 1920. The amendment can hold no fears for those who proclaim, as does the Secretary of State and as did the Prime Minister in a felicitous phrase that I need not repeat to the House, that sovereignty and consequently the supremacy of the Westminster Parliament resides in this House and this Parliament.

363 The purpose of my amendment, as was the purpose of section 75 of the Government of Ireland Act, is to make the position clear in language that is comprehensive, unambiguous and reassuring. I readily concede that it can have no added legal effect to the legal sovereignty that already adheres, but neither can clause 27. There is, however—this is the point that was raised with me earlier—the legal concept of sovereignty, which is understood, and the political concept. In a dynamic situation, such as that which the Bill creates, the legal concept is not of itself sufficient. Had it been so, it would not have been possible for the Scottish convention in its claim of rights to assert that sovereignty rested with the Scottish people. That was an assertion of political sovereignty which, left unchallenged, would seriously undermine the United Kingdom's integrity.

I do not question the reality stated some years ago by my right hon. Friend the Member for Huntingdon (Mr. Major) that one could not hold a component part of the UK within the Union against the wishes of the majority of the people of that part, but that is the ultimate definition of political sovereignty, not what we are dealing with here.

At issue here is the ability of a Scottish Parliament to use its legislative and devolved constitutional muscle to challenge the Westminster Parliament's political sovereignty and to create the slippery slope so beloved of nationalists, but apparently eschewed by the Secretary of State and certainly rejected by us as inimical to the integrity of the United Kingdom.

The amendment, by definition, is declamatory, but it proclaims the political sovereignty and the supremacy of this Parliament. It contradicts the slippery slope and it redirects the Bill's dynamic in a way which is consistent with the claims made by the Secretary of State that the Scottish Parliament will strengthen the United Kingdom. It will give reassurance to those in Scotland who voted for the Parliament but would recoil from any further move towards separation. It will anger those nationalists who proclaim Westminster sovereign to be a fiction, but it does lay down the anchor. It is a beacon of intent that the phrase "devolution within the United Kingdom" means what it says and that any future moves to use this legislation or the Parliament that it creates to undermine the Union would be contrary to the spirit and intention of the Bill and the House.

Mr. Donald Gorrie (Edinburgh, West)

As I am not a lawyer and am new to this kind of thing, will the right hon. Gentleman explain what exactly he means? As I understand it, clause 27, as amended, will say that the Westminster Parliament could make Acts relating to matters that are under the control of the Scottish Parliament and that the Scottish Parliament could not reverse that. If that is so, could the Westminster Parliament introduce a completely new education or health system in Scotland against the wishes of the Scottish Parliament? That is what I understand to be the effect of the amendment.

Mr. Ancram

No, that is the effect of the clause, unamended. Clause 27 states: This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland. 364 It does not say "only over reserved matters"; it says to make laws for Scotland. That includes matters which are not reserved. It must, by definition.

The Minister for Home Affairs and Devolution, Scottish Office (Mr. Henry McLeish)

indicated dissent.

Mr. Ancram

If it does not include matters which are not reserved, where does it say so in the Bill? I have looked closely. The whole point about the clause, as was the case in the Government of Ireland Act from which it was drawn, is that it reasserts the supremacy of this House over all areas of legislation.

The hon. Member for Edinburgh, West (Mr. Gorrie) makes the point that I was making about clause 27. My concern was that that could have a knock-on effect between the two Parliaments, something which amendment No. 198 seeks to avoid by adding the words which may not be amended or repealed by the Scottish Parliament. That makes it clear that this Parliament's sovereignty exists and is established by clause 27.

I left clause 27 for the very reason that I find it an unsatisfactory vehicle. It is made better by my amendment, but if that is not successful I hope that I can persuade the Secretary of State that amendment No. 2 is a more secure way of achieving his and my purpose.

Amendment No. 2 is, in many ways, a test of the Secretary of State's good faith. Nothing in it is inconsistent with any claim that he has made in promoting devolution and the Bill. It encapsulates the undertakings that he gave so fervently and persistently during the referendum about the Bill's effects on the United Kingdom, and for him to accept the amendment would be a sign of good faith to the Scottish people to whom he gave those assurances. If he turns it down—

The Secretary of State for Scotland (Mr. Donald Dewar)

Which amendment?

Mr. Ancram

Amendment No. 2—my main amendment. If the right hon. Gentleman turns it down, his words will turn to dust in his mouth, and many who put their trust in him, as he asked them to do, will feel that that trust has been betrayed.

I know from previous debates that we shall be challenged yet again as to why we argue this case. We shall be told that it is somehow contrary to the spirit of devolution—indeed, the hon. Member for Kelvin has already made that point. We shall be warned in menacing tones that we are committing heresy against the settled will of the Scottish people. We shall not be intimidated by such rhetoric, nor will we accept such accusations.

Mr. Dewar

I am a little bit puzzled. I do not want words to turn to dust in my mouth, as that sounds like a rather uncomfortable experience, so perhaps the right hon. Gentleman can explain this to me.

As I understand it, the words he wishes to insert in the Bill are largely based on section 75 of the Government of Ireland Act 1920; but the words we are using are based on the Northern Ireland Constitution Act 1973. 1 do not want to make this a competition between the two Acts, 365 but presumably the logic of the right hon. Gentleman's words is that the 1973 Act was a betrayal of people in Ireland, because it was so much weaker than 1920 Act. Does he not think it a more likely explanation that in 1973 it was seen that plain, straightforward and rather more modern language was preferable?

Mr. Ancram

If that had been the case, section 75 of the Government of Ireland Act would have been repealed, as were many other parts of that Act, but it was not. Section 75, from which my amendment is drawn, could have been repealed at that stage, but it was not, and it is still extant. Both provisions are in place in relation to Northern Ireland, and all I am suggesting in my amendment is that both provisions should also be available in the Scotland Bill.

Mr. John McAllion (Dundee, East)

I have just returned from a visit to Northern Ireland. I spoke to groups in Belfast and Derry, and none of them want to see a return of the Stormont Parliament, so why are right hon. and hon. Members on both sides of the House trying to write into the new Scotland Bill a situation like that of the Stormont Parliament in Northern Ireland? If the Irish people do not want it, the Scottish people certainly do not want it imposed on them, either.

Mr. Ancram

The hon. Gentleman makes my case for me. The power by which the Stormont Parliament was prorogued and direct rule established at the time of the civil rights marches was exercised under the supremacy of the Westminster Parliament, as stated and asserted in section 75 of the Government of Ireland Act. I am trying to introduce a similar provision into the Bill. If the hon. Gentleman feels that protection is needed against that sort of thing, the amendment offers precisely that protection.

The reason why we have tabled the amendment and why we press it now is that we believe not only in the United Kingdom, but—more important—in the central and vital role that Scotland can play within the United Kingdom. I am prepared to confess that I am unashamedly a unionist. I believe that the Union is an enormous benefit to the people within these islands, and a great force for good beyond them.

I believe, too, that Scotland has benefited from the Union and has contributed disproportionately, but magnificently, to its history. The partnership continues to hold out great promise and prospects to Scotland, even with a devolved Parliament; and to undermine those prospects would be a disservice to the people of Scotland and their interests.

I want the Union to prevail, with Scotland continuing to play her historic role within it. The amendment proclaims that Union; it asserts the supremacy of the Parliament of that Union; and it establishes devolution within that Union. I call on all those who believe in and value the United Kingdom, and who, above all, believe in and value the role of a devolved Scotland within it, to support this historic amendment.

Mr. Dalyell

I fear that beacons of intent do not always make good and stable law. The right hon. Member for Devizes (Mr. Ancram) made a rather "have your cake and eat it" speech in favour of his "have your cake and eat it" amendments. 366 Because of the guillotine time problem, I shall concentrate on clause 27(7), which states: This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland. Subsection (7) may conceivably be true in an arcane legal sense, but in the political reality of 1998 it is palpably misleading and about as true as it would be to say that the Queen can veto any legislation.

Let us pretend no longer that when the Bill becomes law, Westminster will remain sovereign; it will not. Westminster is—it is better to be very candid about this—effectively stripped of sovereignty. There is no glass ceiling and we should not imagine that the Bill does or can put a tight cap on Holyrood's powers.

I thought that the right hon. Member for Devizes was whistling in the wind when he talked about the integrity of the United Kingdom; the integrity of the United Kingdom may not be possible, given this Bill. How can the House of Commons bestow legislative responsibility on another institution without diminishing its own powers?

If the House of Commons is ceding to another elected authority the right to rule in education, housing, health and other gut issues of politics, how can our hitherto monopoly of sovereignty remain intact and undiminished? Frankly, of course, it cannot. As soon as Members of the Scottish Parliament are elected in 1999, they will behave as a separate constitutional entity when dealing with domestic affairs.

Furthermore, heaven help the Members of the Scottish Parliament if they are not perceived to do things differently. In the eyes of those who wanted Holyrood, that is what they are for. If they do not sort out tuition fees for students quickly, electors will ask, "Why go to all the trouble, and why have all the hoo-hah and expense of setting up Holyrood?"

There is no glass ceiling. I know one reason why—it is that any glass ceiling, or explicit limit on Holyrood's freedom to evolve into independence, would create enormous party problems for, for example, the hon. Member for Banff and Buchan (Mr. Salmond). Substituting flimsy cellophane for glass was part of the price of his support at the referendum.

Another deeper reason why there can be no glass ceiling relates to political imperatives. What happens when the expectations of Holyrood are unfulfilled? What happens about lone parents? I bet every candidate who goes before a constituency selection conference for the Labour party or any other party, including the Conservative party, will be asked his or her views on lone parents.

Scotland will be strewn with commitments that lone parent benefit will be restored to the full. The leadership of Holyrood Members of Parliament, fresh from the hustings, will then come to the Treasury in Great George street, London, and say, "We need more money to restore lone parent benefit." Doubtless they will say the same about a host of other perceived ills.

Are we sure that English Government Members of Parliament will acquiesce in giving more money per capita to the Scots to sort out lone parent benefit and many matters that are, purportedly, outwith Holyrood's powers—for that matter, tuition fees are within Holyrood's powers—than to their own constituents, 367 faced with diminishing lone parent benefit and tuition fees? The notion that all will be sweetness and light defies human nature and all political experience.

Mr. Wallace

I am grateful to the hon. Gentleman for giving way and, knowing the care with which he approaches such matters, I hesitate to contradict him, but will he not accept that lone parent benefit is not a devolved subject? It is a reserved subject; there is therefore no question of anyone going to the Treasury to ask for more money to pay more lone parent benefit in Scotland. The hon. Gentleman may make the point that expectations may be raised that cannot be delivered, but candidates should be on notice of which powers are held by the Parliament for which they are standing.

Mr. Dalyell

Of course; the hon. and learned Gentleman is right—I said that it was outwith the powers, but whether it will be perceived as being outwith the powers is a totally different matter. There will be enormous pressure, will there not, to get reserved powers—

Mr. Gorrie

indicated dissent.

Mr. Dalyell

The hon. Gentleman shakes his head. This is a difference of judgment, but it is a judgment about human nature. The expectations that have been aroused in Scotland on welfare and other subjects are enormous, and I do not think that it is within human or political nature—although, doubtless in good faith, Ministers have proposed it—to respect the division of powers on gut political issues when there is the whole panoply of a Scottish Parliament.

The difficulty lies in the assumption that there will be an eternally amiable relationship. I wish I thought that that could happen, but it is very difficult. As was said in a previous debate on the Government of Wales Bill—the fascinating debate on Welsh devolution, at which I have been a constant attender—a Czech and Slovak problem will gradually develop. It will be relatively amiable to start with, but, once there is strife on delicate welfare reform subjects, one will get into a variety of difficulties.

What is the Secretary of State's attitude to the Scottish National party and others—I do not mean this pejoratively—using Holyrood as a forum in which to promote independence? Is it not true that, as he is reported as telling the hon. Member for Banff and Buchan on 24 July 1997, it would be "futile" to oppose the will of the Scottish people? He is quoted as saying: The boundary between reserved and devolved powers may be adjusted as the need arises. Therefore, we should not pretend that this is a lasting settlement; it is really a process. Power devolved is not power retained. The idea that Westminster is the ultimate authority will be little more than a formality.

I conclude by asking a question, as I hope to do, keeping any interventions short. Under subsection (7) of clause 27, will the status of the United Kingdom Parliament in relation to the Scottish Parliament be rather like that of the Queen as titular head of state? Does not what the subsection says about the powers of the United 368 Kingdom Parliament sound like the Queen's ability to veto parliamentary legislation, which we know, in reality, to be impossible?

Mr. Wallace

The hon. Member for Linlithgow (Mr. Dalyell) painted a gloomy picture. I am under no illusions that there will not, from time to time, be tensions between the Scottish Parliament and the Westminster Parliament. Such tensions are present in any system. Canadians have told me that tensions often exist between their federal Government and provincial Governments.

We are kidding ourselves if we suppose that we are embarking on something novel in the experience of countries worldwide. In fact, we are probably in the minority in having such a centralised system; it is commonplace to have divisions of responsibilities between different layers of government. Although, undoubtedly, there will be tensions, we will be obliged to find a means of resolving what will then be a political reality. We hope that we are grown-up adults and can resolve those tensions maturely, without always resorting to haranguing.

Unfortunately, the political system that we have grown used to over the years, breeds in us a view that any political dispute or debate can be resolved only by conflict and confrontation. However, the Bill is a product of the constitutional convention, where we defied the critics who said that it would be impossible for the parties that joined the constitutional convention, working by consensus, to produce a set of proposals. The fact that we achieved it gives hope that there can be a new style of politics. We will have to learn new tricks and new ways of resolving conflicts, because it will not always be sweetness and light.

I do not accept that, because there will be tensions and friction, that will inevitably lead to the break-up of the United Kingdom—far from it. I have always strongly believed that the swiftest road to breaking up the United Kingdom would have been to deny the people of Scotland the legitimate aspirations that they have expressed time and again for more say over our domestic agenda.

Mr. Ancram

The hon. and learned Gentleman raises authorities from the past. I raise an authority from the present and refer him to the debate on the White Paper, when the Secretary of State for Scotland said: We accept that sovereignty within a devolved system lies with the United Kingdom Parliament."—[Official Report, 31 July 1997; Vol. 299, c. 457.] 369 Does the hon. and learned Gentleman disclaim that authority, which is a Scottish authority?

Mr. Wallace

The Secretary of State will no doubt reply to the debate and answer for himself. I am advancing my view and that of my party. I do not accept the sovereignty of Westminster, and I am on the record—the right hon. Gentleman could have cited me—as saying on several occasions that I do not accept it. That is an English concept.

I am prepared to concede that many people think that Westminster is sovereign, but we must deal with that reality—we cannot wish it away. It is obvious from comments such as those of the right hon. Gentleman that the notion of Westminster's sovereignty is so ingrained that it is a political reality, which we must face. I do not believe that, as he claims, it has any legal substance, and I think that its political substance will diminish.

The right hon. Gentleman need not rely solely on the quote that I offered him earlier from Lord President Cooper in MacCormick v. Lord Advocate. If he goes through the court cases, he will find many older authorities, particularly in relation to cases involving the Church and the protection given to the Church of Scotland and the Presbyterian form of government under the treaty and Acts of Union, which gave rise to legal cases in the 19th century.

In the case, Minister of Prestonkirk v. Earl of Wemyss in 1808, the Lord President stated: The people of Scotland, at the period of the Union, were most careful to preserve unalterably all the rights of their presbyterian church as by law established". It is interesting that clause 35 almost restates the treaty of Union and the various Acts of Union which, as the Secretary of State well knows, entrench the rights of the Presbyterian form of Church government in Scotland.

Mr. Dominic Grieve (Beaconsfield)

I do not want to get involved in a pedantic review of 18th or 19th-century law. The Act of Union entrenched certain rights in Scotland. That was its virtue. One of the consequences that has been discussed in the Committee is that if the Bill is enacted, the Scottish Parliament will be able to undo some of that. The point is that parliamentary sovereignty was accepted.

Mr. Wallace

No, I do not believe that for one moment. The concept of parliamentary sovereignty was alien to the history of Scotland. Hon. Members must accept that what was established in 1707 and augmented in 1801 when Ireland came into the Union was a Parliament of the United Kingdom. It was not a Parliament of England, of Scotland or of Ireland. It was a Parliament of the United Kingdom. There is no earthly reason why the constitutional theories of a Parliament of England should take precedence over the constitutional theories of any other part of what was an equal Union.

I do not accept that the English concept became a concept of the Parliament of the United Kingdom. As I said earlier, the Church of Scotland Act 1921 makes it clear that this Parliament recognised that there are limitations on its sovereignty, and the Church of Scotland, under its declaratory articles, which were approved by Parliament, recognised that there were areas in which Westminster was no longer sovereign, and that there would be no question of Westminster intervening again.

370 The right hon. Member for Devizes (Mr. Ancram) referred to the concept of popular sovereignty in the Claim of Right, which so many hon. Members signed in 1989, when we acknowledged the sovereign right of the Scottish people to determine the form of Government best suited to their needs. It has an historic resonance, from the declaration of Arbroath, the 1689 Claim of Right, through to today. It is a practical form of considering how sovereignty should operate.

I think that it was Lord Howe who said that it is not like virginity—it is not something that one does or does not have; it is quite capable of being pooled. [Laughter.] Not pulled—pooled.

The fact that rules and regulations emanate from Brussels causes much unhappiness, particularly to Conservative Members, but if the people want and accept that some of their sovereignty should be exercised by the European Union, the Westminster Parliament or an Edinburgh Parliament, it is a perfectly legitimate exercise of popular sovereignty. It is a useful concept in an age when there are different layers of government.

If popular sovereignty was such that the people of Scotland wanted independence, we would have to accept that, but I do not believe that they want it. In general election after general election, when they have been given the opportunity to vote for candidates standing for independence, only 20 to 25 per cent. have ever done so. There is no popular demand for independence. As we saw on 11 September, the people of Scotland exercised their popular sovereignty by voting for the proposals that are substantially contained in the Bill, and that is what will be delivered to them.

Mr. Bernard Jenkin (North Essex)

I think that the hon. and learned Gentleman is confusing the concept of sovereignty with the concept of powers, when he mentions the passing of powers to the European Union. Is he saying that the Scottish Churches would not be subject to rulings that might be made by the European Court of Justice? If Parliament were to pass powers to that court, the court's rulings would be binding on everything in the United Kingdom and would affect matters concerning the Scottish Churches. The sovereignty of the Scottish Churches would have been passed, by a sovereign act of this Parliament, to the European Court of Justice. To that extent, this Parliament can legislate on any matter. It is not bound by its predecessor. That is the meaning of the sovereignty of Parliament.

Mr. Wallace

I do not accept the hon. Gentleman's proposition. I was making the point that, under the Church of Scotland Act 1921, sovereignty over matters that were specifically laid out in the Act was passed to the Church of Scotland and to the courts of the Church of Scotland. Therefore, this Parliament did not have the sovereignty to pass to Brussels under the European Communities Act 1972. As the hon. Gentleman knows, one cannot pass what one does not have; there is a strong argument that what we are discussing does not affect the areas over which the Westminster Parliament did not have sovereignty.

Mr. Grieve

I have heard of the acquis communautaire, but this is the acquis Wallace. Is it not a doctrine that, 371 once laws have gone, they can never be taken back? That is completely contrary to the principles on which this Parliament operates, and it will be completely contrary to the principles on which the Parliament in Edinburgh will operate.

Mr. Wallace

The hon. Gentleman is highlighting the fundamental difference between us. I do not accept that that is the principle on which this Parliament operates. He may think that it is.

Mr. Jenkin

The hon. Member is a nationalist.

Mr. Wallace

I am not. It is not a particularly nationalist proposition. As I clearly said, the people can have their sovereignty exercised by the Westminster Parliament over a range of subjects, including social security, defence, monetary policy and taxation. The people chose, as they showed in their votes on 11 September, to allow sovereignty to be exercised by the Westminster Parliament.

Mr. Salmond

Lady Thatcher said on a number of occasions that, if the people of Scotland voted for independence, independence was what they should have, exercising their right to sovereignty. Does that and the Conservative party's logic make Lady Thatcher a supporter of independence?

Mr. Wallace

No, it simply highlights the obsessive way in which the Conservative party is wedded to a concept that we do not accept. That does not make us nationalists; there is simply a gulf. The amendment has given us a nice opportunity for academic consideration, but ultimately it is wrong. If accepted, it would incorporate into law an entirely alien concept.

Mr. Nick Hawkins (Surrey Heath)

What is the hon. and learned Gentleman's view of the important point made by the hon. Member for Linlithgow (Mr. Dalyell)— that the Bill appears to operate as a one-way ratchet? The hon. and learned Gentleman says that the Scottish people did not vote for complete independence; do not the Government's proposals play into the hands of the nationalists? If there were a nationalist majority in the Scottish Parliament, it would inevitably lead to complete independence, whatever he wishes.

Mr. Wallace

I do not believe that for one moment. On the contrary, the Bill satisfies the Scottish people's aspirations because it gives them what they want. Even without devolution, Scottish National party members standing as candidates for Westminster elections could get 50 per cent. or more of the vote, which could be regarded as the road to independence. The fact that that has never happened confirms my belief that it is not what the Scottish people want; nor will their appetite be whetted for it.

As the Bill will satisfy the aspirations of the overwhelming majority of Scottish people, it is more likely to secure the integrity of the United Kingdom, which the right hon. Member for Devizes said was one of his objectives. That would be better done under a federalist system. The right hon. Member for Devizes 372 once espoused federalism and suggested that a federal framework of government be adopted. Those words appeared in a pamphlet published by Mr. Michael Ancram of 6 Ainslie place, Edinburgh 3. It is not dated, but membership of the Thistle group at that time was 10 shillings per annum. It is a well-written pamphlet analysing what is wrong with the Westminster system of government—problems that have been exacerbated in the past 30 years.

Dr. Liam Fox (Woodspring)

As one of the few post-decimalisation Members, I was tempted to ask what a shilling was.

Am I correct to assume that the hon. and learned Gentleman's interpretation of clause 27(7) is the same as that of my right hon. Friend the Member for Devizes (Mr. Ancram)—that the Bill would give this Parliament the power to make laws for Scotland on all issues, including reserved powers?

Mr. Wallace

I am extremely grateful to the hon. Gentleman for bringing me neatly on to the point that I was about to deal with anyway. Incidentally, a shilling was worth 5p, unless one was not quite the full shilling.

Amendment No. 23, which was tabled by me, the hon. Member for Banff and Buchan (Mr. Salmond) and others, seeks to clarify precisely what clause 27(7) means. I interpret it in a similar way to the right hon. Member for Devizes—that it could allow the Westminster Parliament to make laws in respect of non-reserved matters. It would not necessarily be exercised in a way deliberately designed to cause confrontation, but could arise in the context of a private Member's Bill, perhaps one introduced in another place, with a provision that appeared to apply to the whole of the United Kingdom but which trespassed on a non-reserved power. That would be unfortunate and could lead to confusion, which is why we have made it clear that it should happen only in regard to reserved powers.

The amendment tabled by the right hon. Member for Devizes would consolidate the friction. If Westminster had the power to legislate on a devolved subject and the Scottish Parliament could not repeal or amend that legislation, it would lead to damaging confrontation and friction, which the right hon. Gentleman vows he wants to avoid. The Secretary of State may give us an assurance that that is not the intention of clause 27(7), but clarification is necessary, and amendment No. 23 is a useful way of achieving that.

Although the Bill provides for references to the judicial committee of the Privy Council if it is thought that the Scottish Parliament has acted ultra vires, I am not so clear about what would happen if Westminster passed legislation that it could be argued was related to a non-reserved matter. Someone in Scotland could challenge legislation on the basis that it did not apply in Scotland. I do not know whether provision could be made for judicial determination if an action was, as it were, ultra vires in the opposite direction. I hope that that situation can be clarified, because, as it stands, it could lead to unnecessary conflict and confrontation.

Mr. Galloway

I am not lawyer, an historian or, for that matter, a member of the Church of Scotland, so I shall not pursue hon. Members down ecclesiastical, historical or legal avenues. I speak as a mere jobbing politician: a humble agitator.

Mr. Fox

Humble?

Mr. Galloway

Well, an agitator then.

From my perspective, both the right hon. Member for Devizes (Mr. Ancram) and the hon. and learned Member for Orkney and Shetland (Mr. Wallace) are correct. The legal position is undoubtedly that the Westminster Parliament is sovereign, but the political reality is that the people are sovereign. That seems to me so obvious that perhaps only a non-lawyer can see it. The point was no doubt conceded in the hon. and learned Member's reference to Lord Cooper's judgment. Much more contemporary and more important is the fact that it was conceded by the stance taken by Lady Thatcher and the former Prime Minister, the right hon. Member for Huntingdon (Mr. Major).

Notwithstanding the Westminster Parliament's legal sovereignty, if the popular will in any constituent national part of the United Kingdom were to leave the Union, it would have to be allowed to do so. That is what the Claim of Right meant, and it is why, with the exception of my dear hon. Friend the Member for Linlithgow (Mr. Dalyell), we all signed it, why none of us resile from it now, and why we are not contradicting ourselves in this debate.

We were clearly addressing the political right of the Scottish people ultimately to choose whether to remain in the Union as it was, to leave it altogether, or to amend our participation in it. That is why we had a Scottish Constitutional Convention, and why I was proud to be a member of it: indeed, I was one of the first people to call for it. In an article in the now sadly lamented Radical Scotland magazine more than 15 years ago, I called for a convention of the Scottish people to find a political path towards the exercise of popular sovereignty.

I am disappointed in the right hon. Member for Devizes. Perhaps unwisely, he mentioned my record. I may have some fun with his, as the hon. and learned Member for Orkney and Shetland did. There is a lack of credibility in someone who was absolutely seized and persuaded of the need to reform the United Kingdom's structures—he was a devolutionist, even a federalist—who then metamorphosed into an absolute defender of the status quo, and who now comes among us saying that he wants to make the legislation work. He approaches his work in a churlish, dog-in-the-manger way, which makes the launch of the legislation far less harmonious that it could have been. It damages the political position of his party, which would do better to turn the page on its previous opposition to devolved government. The Conservatives should pick up the ball and run with it, as other Conservative parties in other parts of the world have done very successfully.

Catalonia has a Conservative Government. There is no contradiction between being a believer in the free-enterprise system—the market economy—and supporting devolved government. It is about time that Conservative Members' prehistoric attitudes changed.

374 The right hon. Member for Devizes told us that he was concerned about these matters because he wished to preserve the integrity of the United Kingdom. He said that he was a Unionist. But the Conservative party has been the main recruiting sergeant for the break-up of the United Kingdom, as we have spent 18 years—the best part of the past two decades—pointing out to its members. Every time they rode roughshod over the clear will of the Scottish people—every time they appeared oblivious to the fact that only a small minority of Scottish electors supported their programme—and rammed Thatcherite policies down our throats, they added to the column of the hon. Member for Banff and Buchan (Mr. Salmond).

The right hon. Member for Devizes supported the poll tax. Perhaps he still does; I do not know whether that is a part of his record that he now wishes to rewrite. In any event, the introduction of the poll tax, which was visited on the Scottish people—who did not vote for it—a full year before it was introduced in the rest of the United Kingdom, was the single biggest act that risked ruining the unity of these islands. It drove more people into the column of the Scottish National party than any other political act in history. Those are the facts, and it is about time that Opposition Members showed some humility.

The Bill is intended to preserve a measure of unity in these islands—a measure of unity which was gravely imperilled by nearly 20 years of Thatcherite government.

Sir Robert Smith (West Aberdeenshire and Kincardine)

Another key element damaged the credibility of the current constitutional arrangements. Some Conservative Members happily voted for the poll tax in Scotland, and then, when it was introduced and affected their constituents, campaigned vociferously to get it abolished and removed. The fact that they failed to scrutinise the legislation when it did not apply to their constituents, and recognised the damage that it was doing only when it did apply to them, demonstrates the need for the Scottish Parliament.

The Chairman

Order. Wide though the grouping of the amendments may be, hon. Members should come back within their compass.

Mr. Galloway

My point is that the carelessness of Opposition Members when their party was in government for all that time led to the imperilling of the stability of the Union. This is an honest attempt to stabilise the position, and to create a new settlement that can lead to a more stable and harmonious existence for the people of these islands.

Mr. Ancram

May I ask the hon. Gentleman two short questions? First, he referred to my record on devolution before 1970. Will he remind the Committee of the Labour party's position on devolution in the years before 1970? Secondly, in the light of what he is saying, will he tell us whether he agrees with clause 27(7)?

Mr. Galloway

Keir Hardie, the founder of the Labour party, was the first campaigner for Scottish government. For the vast majority of the time during which the party has existed—nearly a century—we have supported home rule in this country.

By its defence of the Union—its nothing less, no change, no surrender attitude—the Conservative party has consistently imperilled, in the last century and in this, 375 the prospects of unity in these islands. If there had been a speedy and constructive passage of home rule legislation for Ireland when it was only home rule that the Irish wanted, we might not have to re-create a council of the isles as a means of trying to end the blood and thunder within these islands. We and the Irish people might have had a more harmonious century if we had recognised the need, which was expressed by elected politicians in Ireland at that time, for a new settlement for home rule rather than breaking up the island. A new settlement is what we are trying to achieve.

My hon. Friend the Member for Linlithgow—I mean that sincerely: there is occasionally a "but", as such a phrase is usually the precursor to a criticism, but there is not in this case—is right to say that there can be no perspex or glass ceilings. There can be no manacles, shackles or ties imposed by this place, whatever is said in the White Paper that the right hon. Member for Devizes is holding. If I am right—and I think that I have a measure of agreement in the Committee—in the end it is popular sovereignty which counts, and no attempt to place a cap on the Holyrood Parliament is worth a hill of beans.

The United Kingdom can survive only if its people want it to survive: it can persist only if there is consent. There is nothing that we can do legally to force people to want to stay in the United Kingdom, but we can strike attitudes that will help to make it more likely that they will want to remain. That is why I appealed for an end to the dog-in-the-manger approach by Conservatives.

Mr. Laurence Robertson (Tewkesbury)

The hon. Gentleman speaks about devolution bringing harmony to the people of these islands. Surely it will create uncertainty among some people, depending on where they live. The devolution Bills will mean that we will no longer be equal citizens.

Mr. Galloway

The hon. Gentleman seems oblivious to the fact that the status quo had ceased to be an option. More and more people were deciding that they wanted to opt out of the Union. The political party of which the hon. Gentleman is a member supported no change, no surrender Unionism, and was completely annihilated in the May general election. The party came back for more in the September referendum when it again hoisted its banner of no change, no surrender Unionism. Again, Conservatives were routed from the field.

There is some nobility in continually stepping up to the mark, being smacked on the nose and falling down, but there must come a point when even Conservative Members realise that the game is up, that there will be home rule for Scotland and that we might as well try to make it the best possible kind of home rule. We might as well launch the ship with a bottle of champagne and good will rather than be dragged screaming and kicking into the operation.

Mr. Dalyell

I thank my hon. Friend, with whom I am united in the unpopular cause of opposing military action against Iraq, for giving way. Does he agree that Westminster will effectively be stripped of sovereignty?

Mr. Galloway

There is no doubt that, in legal terms, it will not be—not in the sense that, as Enoch Powell said, 376 power devolved is power retained. Effectively, it will be, because we are giving a whole tranche of Scottish life to the Scottish Parliament to administer and legislate for. That is what the Bill says that we will do. Moreover, the message sent by the referendum victory and by the Labour Government's general election victory in May was that we should do that. So why cannot we do it with good grace?

Dr. Fox

With the greatest respect, that is not what the Bill says. Section 27(7) states: This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland. Regardless of what the hon. Gentleman wants the Bill to say, that is not what it says.

Mr. Galloway

We are again dealing with the dichotomy that I tried to identify in the first few moments of my speech between the legal position and the real-life position. Any hon. Member who wanted to legislate in the House on non-reserved Scottish matters after the Scottish Parliament was up, running and effectively dealing with Scottish life would be a wrecker, a saboteur and a recruiting sergeant for the hon. Member for Banff and Buchan. Anyone who tried to throw such a spanner in the works could not possibly have at heart the Union of our islands or the unity of the people of our islands. He or she would be guilty of political provocation.

As I am not a lawyer, I am not all that concerned with the small print of the issue. I should like hon. Members on both sides of the Committee to launch this ship with good will and fairness.

Mr. Jenkin

The hon. Gentleman started his speech by saying that he believed in the sovereignty of this Parliament. It seems that there is disagreement in the Committee over whether this Parliament is sovereign and will remain so. The purpose of amendment No. 2 is to bolster the Government's position by stating explicitly that hon. Members, in passing the Bill, do not believe that we are detracting from the sovereignty of the House. Just as the hon. Gentleman does not want this Parliament to provoke a crisis with the Scottish Parliament, it is equally incumbent on the Scottish Parliament not to provoke a crisis with the rest of the United Kingdom by asserting sovereignty over matters which it claims for itself but which this Parliament does not feel that it has devolved to it. Accepting our amendment would explicitly state that belief, so that everyone understands the ground rules at the outset.

Mr. Galloway

Surely the amendment would do the precise opposite. We are dealing with the ability of this Parliament and even of Back Benchers, in private Members' Bills—to table legislation on non-reserved matters and to describe that legislation as sovereign. That would be a provocation to the Scottish Parliament.

Why are we going to all the trouble of creating a Scottish Parliament and of devolving certain matters to it if we are leaving open the possibility of hon. Members mischievously wrecking or sabotaging the settlement by tabling legislation in the House on matters that have properly been devolved to the Scottish Parliament?

377 Either I have expressed myself poorly or the hon. Member for North Essex (Mr. Jenkin) has misheard me. I did not begin my speech by saying that I accept the House's sovereignty. I do not believe that the House is sovereign over even the English people, never mind the Scottish people. I believe in popular sovereignty. All sovereignty rests not with us and not with this building—with these bricks, mortar and timber—as admirable it is, and as much as I love it—I do love it, and I hope to stay here—[Laughter.] I am serious about that. This is a very precious place, and many great freedoms have been fought for and won here. I love this place very much, and I hope to stay here until they carry me out in a box. However, I do not think that it is sovereign. The people who sent us here are sovereign. They are the ones who ultimately make the decision.

There is no contradiction. The House's sovereignty over England and, arguably, over the new Scottish Parliament has undoubtedly been written down in law. In real terms, however, if the people decide that they want to change the arrangements in our islands, they have the sovereign right to do so. Long ago, even the right hon. Member for Huntingdon accepted that. In real life, we should not be hung up on such a legalistic argument. Opposition Members should seize the opportunity, which is fading fast, to accept their defeat with good grace and take a constructive stance on these matters, rather than be seen by the Scots, whom they will soon be asking for votes, to be dragged kicking and screaming down every last inch of this tortuous path.

Mr. Salmond

Following the comments of the hon. Member for Glasgow, Kelvin (Mr. Galloway), I wonder whether a role is emerging for Scottish National party, Liberal Democrat and Labour Members to protect the Scottish Conservative party from the English Conservative party and the undoubted effects of its rhetoric on the already diminished prospects of colleagues north of the border.

The right hon. Member for Devizes (Mr. Ancram) moved the lead amendment in such a mild way that it sounds almost reasonable—until one looks at the language in it. Amendment No. 2 says: Notwithstanding the establishment of the Parliament, or anything contained in this Act, the supreme authority of the Parliament of the United Kingdom shall remain unaffected and undiminished over all persons, matters and things in Scotland. It does not even refer to property in Scotland. It refers to all things in Scotland, bright and beautiful and otherwise. I am sure that a gentleman called Kipling would have been an enthusiastic backer of such an amendment.

One could phrase a clause on parliamentary sovereignty differently. I remember that, when I was a small child, I used to believe that if I shut my eyes nobody could see me. I am starting to think that the Conservative party has assumed that mentality. It believes that, if it asserts something strongly and powerfully enough, the world will tilt on its axis and reality will change to suit its prejudices.

The right hon. Member for Devizes said that he wanted the language of the amendment to contradict the slippery slope. Either the slope is slippery or it is not. Contradicting it will not alter its angle or slipperiness. There is more to politics and life than asserting things in a rather offensive way and believing that, the more one does so, the stronger that makes one's position. Often, 378 such behaviour makes one's position rather weaker. It is certainly making the position of the right hon. Gentleman's beleaguered Scottish colleagues very weak. They must sigh every time a Conservative Member gets to his or her feet to make a speech in such a manner, and tries to look upon Scotland as property, a thing, a possession of the unblemished sovereignty of Parliament.

I want particularly to speak to amendment Nos. 79 and 23, which were tabled by the Scottish National party and the Liberal Democrats. The amendments could offer a middle way out of the difficulty. [Interruption.] I am always a reasonable man at heart, as my friends well know.

I join the hon. Member for Kelvin in his argument about popular sovereignty. That is my anchor as I regard constitutional questions. I believe in the popular mandate and popular sovereignty of the Scottish people.

Mr. John Home Robertson (East Lothian)

They have never given it.

Mr. Salmond

That remains to be determined. It will be decided by the people at subsequent elections. It is their choice. Believing in the popular sovereignty of the people does not mean that one believes in the inevitability of one's victory. It just means that one believes that people have the right to choose and decide. Believing it does not make one a nationalist; it just makes one a democrat.

I should like to protect the Secretary of State from his hon. Friend the Member for Linlithgow (Mr. Dalyell) for a second. I looked up the reference that the hon. Member for Linlithgow quoted with such a flourish when he talked about the futility of glass ceilings. In response to a question that I asked about the sovereign right of the Scottish people to determine their own constitutional future, the Secretary of State rightly said:

If I did try to build such barriers, they would be futile and without effect. At the end of the day, in practical politics, what matters is what people want. If the hon. Gentleman is able to carry the people of Scotland, no doubt he will be able to advance his cause."—[Official Report, 24 July 1997; Vol. 298, c. 1049.] The Secretary of State was not signing up to the Scottish National party in that statement. In fact, he has never been a member of the SNP, unlike some in his ministerial team. I am referring to the Minister of State, the hon. Member for Cunninghame, North (Mr. Wilson)—I would not want the accusation to be left drifting in the wind. The Secretary of State was making a democratic point that has been accepted by every responsible politician for many years, including the past two leaders of the Conservative party. The right of the people of Scotland to choose their constitutional future is a basic point of democracy. They can choose no change—which has been rejected—devolution, federalism or independence as a state in the European Union.

Mr. Grieve

Is not the problem with the notion of popular sovereignty the fact that it means the rule of the person or group of people who are on top in a given place at a given time? Even Scotland is a legal concept, just as England is. The fact that devolution is going through is a recognition of the legal entity of Scotland and the majority vote in the devolution referendum. We want to add to the Bill a restatement of the legal position. Once we start on the road of popular sovereignty, there is no stopping. 379 Orkney and Shetland may one day assert their popular sovereignty to remove themselves from Scotland. That argument can carry on ad infinitum.

Mr. Salmond

I do not claim that the right of national self-determination is an easy concept to define, but the United Nations was confident enough about it to put it in its founding charter. If the United Nations coped with the concept, the Committee—even the Conservatives—should manage to grapple with it.

It is no secret that parties in the Committee and in Scotland have argued for national self-determination. A quotation from 1992 put the issue neatly:

The central issue at stake is that of sovereignty. The unwritten British constitution, founded on the notion of absolute sovereignty of the Westminster Parliament gives Scotland no constitutional right of democratic control of its own affairs, let alone provides the right of national self-determination or fundamental individual rights for its citizens. This concept of sovereignty has always been unacceptable to the Scottish constitutional tradition of limited government or popular sovereignty. Today, in the modern world, it is no longer acceptable in practice to us. That was the democracy declaration, signed—uniquely in recent Scottish politics—by the Scottish National party, by the hon. Member for Central Fife (Mr. McLeish) on behalf of the Labour party and by the hon. and learned Member for Orkney and Shetland (Mr. Wallace) on behalf of the Liberal Democrats. That definition has been publicly embraced by three of the political parties in Scotland in front of 25,000 people. There were quite a few witnesses. It was not done in a secret cabal. We embraced a concept that we believed represented the way forward. We did so despite our different constitutional aims, because we agreed that the people had the right to decide. If we keep that as our constitutional anchor, we shall not go too far wrong.

The Conservatives' position is strange. They are arguing, in a flourish of rhetoric, that the Bill needs to be strengthened with more constitutional guarantees to maintain the essential integrity of the United Kingdom, but they also point, rightly, to clause 27(7), saying that the issue is already in the Bill. If it is already dealt with in the Bill, what is the point of the Conservative amendments, other than to give the right hon. Member for Devizes a chance to make a speech? They are probably right. Clause 27(7) unwisely gives the Westminster Parliament the right to legislate on all matters in Scotland, unaffected by the devolution legislation.

There is some dubiety and dispute about that. On Second Reading, the right hon. Member for Devizes asked the Minister for Education and Industry, Scottish Office whether a private Member's Bill on a devolved matter for Scotland would be binding on Scotland. The Minister said no. The Clerks in the House of Commons say yes, under the terms of clause 27(7). The Secretary of State should tell us whether the answer is yes or no—as we hope and as the Minister, like many of us, thought.

The hon. Member for Rochford and Southend, East (Sir T. Taylor) asked the same Minister whether the Scottish Parliament legislation could be cancelled by the Westminster Parliament. He replied: Within the areas of devolved responsibility, laws passed by the Scottish Parliament are not open to cancellation."—[Official Report, 13 January 1998; Vol. 304, c. 155.] 380 15.15 pm

The Minister, whose impeccable devolution credentials are well known to all in the House, was apparently under the impression on Second Reading that the Bill did not provide for the Westminster rules okay override, which says that any matter can still be determined by the Westminster Parliament. I do not accuse him of misleading the House. It was reasonable for him to believe that. Before we looked at the Bill in detail, most of us believed that the power of the United Kingdom Parliament to make laws for Scotland on reserved matters was not affected by the Bill, but devolved matters would be the preserve of Edinburgh. Amendment No. 23 would make that change, offering the Secretary of State the clarification necessary to bring the Bill into line with what the Minister said two weeks ago.

There is general agreement in the House about popular self-determination—the right of the Scottish people to decide. The Scottish people will determine the constitutional direction of Scotland at the ballot box. No sensible person would gainsay that process. The Conservatives are clumsily suggesting putting in manacles, shackles and safeguards in language carried with a flourish. That will cause them great difficulty in Scotland. However, we should not stick with the Bill as it stands. Clause 27(7) gives an opening for the wrecking behaviour that the hon. Member for Kelvin mentioned. We need clarification, so that we can agree that the provision refers to reserved powers.

It is no secret that I believe in independence for Scotland. I have not kept that from the Scottish people. I also believe that it will happen through the ballot box when the Scottish people so determine. At the referendum, the people of Scotland exercised a sovereign decision to vote for the Bill. The Secretary of State and I said that, if the Bill passes, Westminster will not again be allowed to impose a poll tax on the Scottish people. Scottish parliamentarians will decide that form of local government taxation. The manifest injustice of the poll tax will never again be visited on the people of Scotland. Clause 27(7) opens the door to that. It is not just the "Westminster rules, okay" clause; it is the poll tax clause. It is not okay with the people of Scotland and it is not faithful to the arguments that the Secretary of State, the hon. and learned Member for Orkney and Shetland and I, along with many others, deployed in the referendum campaign.

We asked the Scottish people to exercise their sovereignty on powers that would remain at Westminster and powers that could go to Scotland in the knowledge that, at any time in the future, that settlement could be changed. It could be changed back if the Scottish people did not want the Parliament and decided to go back into a unitary state. We could change to federalism or to independence on the vote of the Scottish people. Given what the people voted for on 11 September, it is not sensible for the Bill to open the door to legislation being passed unilaterally in this Parliament, on devolved matters that the Scottish people decided should go to the Scottish Parliament.

Mr. Dalyell

Through the hon. Gentleman, may I ask my Front-Bench colleagues whether the reincarnation of 381 Lady Thatcher, using clause 27(7), could impose a poll tax? That is a factual question to which I do not know the answer.

Mr. Salmond

I am happy to act as a messenger for the hon. Gentleman, and I relay that question to the Secretary of State.

The clause does open the door, and I think it unnecessary. The settlement that the people voted for on 11 September would be satisfied by amendment No. 23, which would make it specific that the legislation that we expect to be carried by Westminster would be on reserved matters and not on matters devolved to the Scottish Parliament. That would bring the Bill into line with the rhetoric of the Minister of State two weeks ago.

Mr. McAllion

I was delighted by the previous intervention by my hon. Friend the Member for Linlithgow (Mr. Dalyell). I had not realised that Lady Thatcher required reincarnation—I had not heard the good news. If it is true, I say, "Rejoice, rejoice."

I do not often agree with the hon. Member for Banff and Buchan (Mr. Salmond), but I do agree that the biggest problem facing the Tory party in Scotland is the Tory party in Westminster. As I listened to the speeches from Tory Members, it occurred to me that perhaps Bill Walker and Phil Gallie were not all that bad. They were transformed in the mind's eye into significant political figures; not because absence makes the heart grow fonder, but because of the pathetic performance of the Anglo-Tory establishment here in Westminster.

To this day, the Tories have not got it into their heads that the situation has changed dramatically in Scotland following the referendum on 11 September. It is time that the Tory party changed to reflect the differences in Scotland. Unless it does so, it will not recover in any sense in Scotland, but will remain a party of England—a party dominated by England. In complete contradiction to the Tory party claim, it will be the party not of the Union, but of only one part of the Union, which has nothing to say to Scotland, Wales or, increasingly, Northern Ireland.

My hon. Friend the Member for Glasgow, Kelvin (Mr. Galloway) said that perhaps only a non-lawyer could see that the legal claim to sovereignty does not matter because, in practical terms, what matters in the real world is popular sovereignty. He was being hard on lawyers in saying that. My right hon. Friend the Prime Minister is a distinguished lawyer and, in a recent exchange with me, he said that the people were sovereign. So even lawyers understand that the people are sovereign, which makes it all the more bizarre that they require to take part in this debate.

The reality is that the people are sovereign—there is nothing that this House, this Parliament or any hon. Member can do to change that. The people will decide whether the Union survives. The people will decide whether Scotland becomes separate and independent. No politician can stop the people making that decision.

Dr. Fox

Will the hon. Gentleman give way?

Mr. Desmond Swayne (New Forest, West)

Will the hon. Gentleman give way?

Mr. McAllion

I will give way to—[Interruption.] I was going to say that I would give way to the more intelligent hon. Gentleman, but there is no choice. I shall give way to the Front-Bench Member.

Dr. Fox