HL Deb 19 April 1978 vol 390 cc1249-323

House again in Committee on Clause 20.

Lord DRUMALBYN moved Amendment No. 317:

Page 9, line 10, leave out ("If the Assembly has nominated") and insert ("The Assembly shall nominate").
The noble Lord said

With the permission of your Lordships and at the request of my noble friend Lord Gray, who regrets very much that he is unable to be here today, I beg to move Amendment No. 317, proposing to replace on Page 9, line 10, the words: If the Assembly has nominated With the words: The Assembly shall nominate". With this Amendment goes Amendment No. 318, which is to insert the word "and" after the word "Secretary" so that the sentence shall read: The Assembly shall nominate one of its members for appointment as First Secretary and that Member shall be so appointed…". The immediate reaction to the terms of subsection (5), as drafted, is: "Well, what if the Assembly does not nominate anyone as First Secretary?" If it does not—and I think the noble Lord has made this point already—the Secretary of State is to appoint the First Secretary. This is bound to give rise to certain difficulties. How much time will the Secretary of State give the Assembly to decide on a First Secretary? Sometimes the choice may be quite simple: if there is a majority for one Party, the man who has been elected as Leader of the Party will no doubt be proposed to the Assembly and duly nominated on the votes of the majority, with the more or less willing concurrence of the rest.

But what if there is no Party with a clear majority? First, there would have to be meetings between the Parties. There would be the usual squabbles, I have no doubt, not only about policies but also about the distribution of portfolios. It is not unknown for this process, certainly in Continental countries, to continue not merely for days but for weeks. We should like to hear what the Secretary of State would do, or indeed what the Assembly would do, in the meantime.

I hope the noble and learned Lord will be able to clarify the constitutional position of the Secretary of State as well. Presumably he will be able to send for the Member of the new Assembly who, in his opinion, is the most likely to be able to form a Government and to entrust him with that task, if he agrees—and that will happen, as my noble friend Lord Colville of Culross has indicated, where there is no one Party with an absolute majority.

But the person sent for must be a Member of the Assembly: there can be none of the nonsense that sometimes happens of calling in a national figure and inviting him to become the First Secretary. He must he a Member of the Assembly. I am sorry the noble Lord, Lord Shinwell, is not in his place, because he will recall that a Prime Minister was defeated in a General Election, at which the Coalition over which he presided obtained a substantial majority—and of course the person who defeated that Prime Minister was the noble Lord, Lord Shinwell. The Prime Minister continued in Office, not being a Member, and in due course he was elected to Parliament in a by-election; but quite a considerable time elapsed. That could not happen under the rules we have before us: it could not happen to a First Secretary.

Surely the best solution would be to provide firmly for the Assembly to nominate the First Secretary, with no hypothesis about it. That would place the responsibility firmly on the Assembly. It would be most unsatisfactory if the Secretary of State had to decide whom to send for, not only if the person he considered best able to form a Government was of a different political persuasion, but also if he were the Leader of the Secretary of State's own Party in the Assembly at the time, when that Party did not command an absolute majority there. It would be a most embarrassing situation for him and, almost whatever he did, he would be accused of doing the wrong thing.

Finally, is each new Assembly to be required to nominate a First Secretary after each election? These are the questions which have to be explored. But I would suggest that the main point is to put firmly on the Assembly the duty of nominating a First Secretary for appointment by the Secretary of State. I beg to move.

8.6 p.m.


I certainly agree that we should consider Amendments Nos. 317 and 318 together, as the noble Lord suggested in moving the Amendment standing in the name of the noble Lord, Lord Gray. As we have already seen from the clause itself during our earlier consideration of it, the Secretary of State is the one whose duty it is formally to appoint the First Secretary. Furthermore, he must appoint any Member of the Assembly nominated by the Assembly for this office: that is under the provision in the clause as it stands. The means of nomination are to be left to the Assembly itself to determine. One would suppose that these would be established very early on in the Assembly's standing orders. In so far as they were not, perhaps at the very beginning, then one would expect that a direction or directions would be given under Clause 7 of the Bill, if necessary.

The reasonable expectation, as I think the noble Lord, Lord Drumalbyn, recognised in moving the Amendment, is that the Assembly will make a nomination; but Clause 20(5) is drafted to guard against the unlikely situation that the Assembly cannot sufficiently agree on a nomination in whatever procedures may be established. Unless there were a provision for a First Secretary to be appointed in such a situation, it would not be possible for a Scottish Executive to be formed because, as your Lordships will appreciate, the First Secretary is appointed and thereafter, upon his advice, the other Members are duly appointed. The resulting situation would be intolerable and the government of Scotland, in so far as it is concerned with devolved matters, would inevitably suffer. In the Government's view, there must be the possibility for the Secretary of State to act in order to resolve the deadlock.

It is accepted—and I do not dispute for one second what the noble Lord has said—that such a situation would be difficult and indeed fraught with the possibility of accusations of one kind or another. One would envisage that the Secretary of State would no doubt need to enter into discussions with all the Parties represented in the Assembly and with any independent Members who happened to be there. He might initially be expected to urge them to reach agreement and to resolve the deadlock themselves. Indeed, I would go further and say he would have to do that, because the Secretary of State, whatever the circumstances, would not himself want to nominate unless he did so in the sure confidence that the Assembly would endorse his nomination.


It would be useful to know whether it is envisaged that the Secretary of State would act rather like Her Majesty, in that he would be sending for the leaders of the various Parties, having talks with them and, in a sense, acting almost as an arbiter, if not as a conciliator.


I think that my answer to that must be in the affirmative, because he cannot, as it were, act upon his own judgment of a general situation, and upon his own initiative. What he must do is to select to be First Secretary a person who will command the confidence of the Assembly, because if he does not the Assembly is bound to turn around and nominate someone else, which would be a highly unfortunate situation and one in which the Secretary of State would not want to get himself involved. Therefore, one would expect that if the Assembly itself were not to nominate and agree upon a person, he would go to the utmost in consultation in order to ensure that the person he nominated could command the confidence of the Assembly, if it came to a vote.

If, however, he could not get agreement, it would be necessary, in the interests of the continuing government of Scotland, that he should make the appointment without that. Of course, the Bill as drafted envisages that, if that unlikely situation were to arise, then he could do that. The Amendment would deprive us of that possibility. The First Secretary appointed would, of course, have to be a person who was ready and able to form an Executive, and there would certainly have to be a reasonable likelihood that the Executive would win sufficient support in the Assembly.

The noble Lord who spoke in support of the Amendment said that this kind of thing sometimes takes weeks—and one acknowledges that that is so—and if there were a PR system, with a fairly even distribution of seats among several Parties, one could foresee that one might have in Scotland some echo of situations with which we are familiar on the Continent and elsewhere. But to allow the government to continue, the First Secretary would have to be able to be appointed. No doubt, while the Parties were considering whom they really wanted to support, they would allow that to happen in order to allow the government to continue. But at the end of the day, the judgment of the Secretary of State would be tested within the Assembly itself and against Scottish opinion.

Also, may I point out that if it were thought and suggested that the Secretary of State was acting to his own Party's advantage—I do not suppose that that is likely—then he would be accountable to Parliament itself. That point could be raised against him there, and he would have to answer for it in that forum. If one really goes to the extreme and supposes that a Secretary of State, in defiance of a consensus among the Assembly and against its wishes, were to insist upon appointing and re-appointing as First Secretary a person whom the Assembly did not want, then the Assembly has the remedy which we looked at earlier in Clause 3, of dissolving itself by a two-thirds majority, in order to try to resolve the deadlock by once again seeking the views of the electorate.

In a sense, I am sorry to be driven into this territory, because I do not really believe that this is a very true forecast of what will happen. A number of the debates in the course of the Committee have proceeded upon the assumption that we are dealing here with the dark side of the moon. We are not dealing with the dark side of the moon. We are dealing with a politically mature and responsible society in Scotland, and one surely has the confidence to say, and to assert, that these unlikely and fantastic scenarios will not, in fact, develop in Scotland.


If the noble and learned Lord will allow me to intervene, surely that remark makes a negation of all that this and the other House attempt to do. We are seeking to work out what possibilities there might be, in order to try to guard against the ones which might be adverse. It is all very well to say that the Scots are a mature community—of course, they are—but even in the most mature of communities, such as the English, the oddest things happen. We even get Socialist Governments! Who would ever have thought that that was a reasonable thing to happen in this country?

So I suggest to the noble and learned Lord that it would be worth examining this matter, not from the point of view of trying to argue against my noble friend but to see whether the Bill as a whole copes adequately with situations of the kind which he presented. I should have thought that that was wiser, if I may put it in that way to the noble and learned Lord, than to try to recast a picture. His guess may he a very good one, but it is really no better than my noble friend's guess. That is the way to tackle this problem.

8.15 p.m.


I am obliged to the noble Lord, because I believe that if he studies the Bill he will see that it provides for all situations. There are two situations. One is that the Assembly agrees to nominate, and the Bill provides for that as does the Amendment. The other one is that the Assembly doesnot agree to nominate, and the Bill provides for that but the Amendment does not. If I may come to the technicality of the two Amendments, they do not ensure that the situation which the noble Lord is afraid of will always be avoided. These Amendments would put the Assembly under a duty, as I think he recognises and indeed expresses, to make a nomination. But they could not ensure that a nomination was, in fact, made.

I have to ask a question of the noble Lord who has spoken in support of the Amendment. How is the duty, which he puts into his Amendment No. 317, to be enforced against the Assembly? No doubt he will give me an answer to that, but as I read the Amendment, if it were put into the Bill, the Assembly would be under a duty but there would be no sanction to enable that duty to he enforced. The Amendment would make impossible any resolution of the kind of deadlock that we are talking about. The Bill makes that resolution possible. For that reason, I support the Bill and ask your Lordships not to support the Amendment.


The noble and learned Lord, Lord McCluskey, has now spelled out, from the point of view of the appointment of the First Secretary, the converse of what we were talking about before we adjourned, in relation to the dismissal of the First Secretary. As it is at present drawn, the Bill must, in order to be internally consistent, provide for the Secretary of State to do what in the ultimate the noble and learned Lord has said; that is, to take a decision which the Assembly has been unable to take. Presumably, by the same token, at the other end of the conundrum, it will be able to dismiss a First Secretary, if the Assembly has got itself into a position where it is not happy with the one that it has, but is equally unable to nominate another one.

Does the noble and learned Lord tie this to the electoral system that was originally in the Bill, or is it relevant to the system of election which this Committee has put into the Bill, or does it not matter? I wonder how the Government's mind is working on this matter. We have reached this stage of the Committee on the Bill, and we are talking about an Assembly which at the moment, as a result of my noble friend's Amendment, is to be elected by proportional representation, and one might envisage that the result would be that the Party strengths were nothing like as clear-cut, and the possibilities of majorities were not so clear, as they might otherwise have been.

But do the Government stand by the same provision for the nomination, even if, for the sake of argument, another place reverses that decision? Did they put it in because they thought the electoral system which the Government introduced, which was first-past-the-post, would still lead to a situation where it might be impossible to get a nomination for the First Secretary? We must try to be consistent in this Committee. Do the Government think that there is any distinction to be drawn between the two electoral systems in this respect? I can envisage, if the proportional representation system were to apply, that the Secretary of State might have to take on this invidious duty, perhaps at both the appointment stage and the dismissal stage. It may be right for the Bill to contain it, but I do not know. Does the noble and learned Lord say that the prospects are so precarious that the same thing ought to be provided even if we went back to first-past-the-post? And does he think that that would be better than the system which my noble friend has proposed in this Amendment, which is to leave the Assembly to resolve its own impasse?

The question which the noble and learned Lord asked—how do you enforce this?—is, I think, fairly simply answered. I do not know what my noble friend would say, but may I suggest that if the Assembly cannot carry out the statutory duty which this subsection would lay upon it, then it would have to dissolve itself. It then is no longer an Assembly and it no longer has a statutory duty. So there would be no difficulty about that.

We really must be sure that the Government are speaking specifically either about their system, and the various complications that would result from it, or about the proportional representation system, or about both, regardless, because our deliberations upon this clause of the Bill may well or could well stand, regardless of what another place did about the voting system. Therefore the noble and learned Lord would, I think, do all of us a great service if he could be a little more explicit than perhaps he has been already about that part of the problem.


Perhaps it would be for the convenience of the Committee if I were to endeavour to reply at once to the second point in order to give the noble Viscount an opportunity to think about my answer before I turn to the other matter. I was suggesting that the Amendment lays a duty upon the Assembly to nominate. I asked: how does any outside agency enforce that duty? The answer offered to me a moment ago by the noble Viscount is that the answer is quite simple—the Assembly dissolves itself. But the Assembly cannot be forced to dissolve itself, so I believe that in a sense my question remains unanswered. If one says, as the Amendment proposes, that the Assembly shall appoint, there is no outside agency that can compel the performance of that duty. The Assembly can discipline itself either by appointing, in which case it performs its duty, or by dissolving and thus resolving the deadlock. However, I do not believe that the Secretary of State can somehow go to a court or elsewhere and compel the Assembly to appoint.


No, I am sure that the Secretary of State cannot go to a court and obtain an interdict to tell the Assembly to appoint. However, a moment or so ago we were discussing the possibility that if we had the Amendment in the form which my noble friend has suggested we might reach the situation where there was no Government in Scotland. That would be the pressure. If the Assembly, with the Amendment in its present form, were unable to nominate a First Secretary, the blame would fall upon it if it did not dissolve itself. And that surely would be sufficient, would it not? This is not the kind of "shall" that goes to the courts but the "shall" that goes to the electorate.


I share that sanction or stick with the movers of the Amendment. The sanction of public opinion and the fact that public opinion would compel the Assembly to behave in a responsible fashion is available to us both. But I do not believe that the movers of the Amendment have any other sanction, whereas we do. We have the sanction in the Bill, that at the end of the day the Secretary of State can say, "This is your First Secretary This is a sanction which the movers of the Amendment do not have.

If I may turn to the other point which was raised by the noble Viscount, he asked me whether the Government's view of this matter and the answer that I offered related only to one system or the other. I think it is quite clear that it relates to both. I believe that it will work for both. The only difference is that in one situation the likelihood is that we shall get a much more even distribution of Parties—a one-third, one-third, one-third type of distribution under proportional representation —than under first-past-the-post. But that is only a guess as to the likelihood because, as we saw in February 1974, on a firstpast-the-post system one can have no Party commanding a majority of the seats. Indeed, we are very much in that situation at present.

If, therefore, one had a first-past-the-post system in Scotland for the Assembly elections, one would not necessarily end up with one Party commanding a majority of the seats, although it is probably more likely to be that way than it is under proportional representation. What I believe and what I assert to the Committee is that the difference between these two systems lies in the likelihood of producing a division of the kind I have been speaking about. However, the system works for both, and whatever decision may ultimately be taken about proportional representation, either here or in another place, and whatever goes into the Bill about the system of election, I believe that at the end of the day this system will work. Accordingly, I commend it to the Committee on that basis.

8.26 p.m.


Before the noble and learned Lord rises to reply, may I say that it appears that under proportional representation one does not get the very big shifts in opinion and seats which one may find under the first-past the-post system. The Assembly would understand this very quickly and would be much more likely to resolve their difficulties under proportional representation than they would be under the first-past the-post system. They would realise that they are likely to come back to the same situation. I think it would be of help to them to know that the Secretary of State, who would stand more or less in the position of Her Majesty in this case, could come in to resolve the problem. Nothing helps to make up the minds of politicians more quickly than the knowledge that somebody else may come in and make up their minds for them.


I agree with what the noble Lord, Lord Mackie of Benshie, has just said. To a certain extent all of us are guessing, but if this Assembly is set up in Scotland and is to work in the way in which most of us hope that it will, I think it must be by means of a great deal of consensus. It will not form a Government in the sense of the Government of the country. It will not be a sovereign Assembly. It will form an Executive. Under the system which has now been put into the Bill, I agree that if there is a fairly even result it will probably be easier to find somebody who can command a majority without doubt than it will by the first-past-the-post system. As my noble friends have pointed out, in that kind of situation there will be a period of doubt as to who is the person most likely to be able to command a majority. However, the situation which I hope that the noble and learned Lord will deal with, which was raised by my noble friend Lord Drumalbyn but to which he has not yet given his attention, is where a First Secretary has lost his seat in the Assembly—the Ramsay Macdonald situation that was described. As the Bill is drafted, it looks at the moment as if such a person would be completely excluded, even though, from the point of view of continuity of administration and other reasons, it would be generally desirable that he should continue and there was little doubt that he would be able to find another seat. At the moment it looks as though the Bill makes no provision for that situation. I hope that the noble and learned Lord will be able to say something about it.


Yes, I can answer that point directly. The noble Lord is quite right. if the person who was the First Secretary when the Assembly was dissolved was not re-elected, he would no longer be a member of the Assembly and he could not be appointed First Secretary. The Assembly would then have to find a new First Secretary from within its own ranks. It is not for me to speculate, but one has in the past seen instances of a person who has been selected for high office by the Prime Minister of the day failing to be elected to Parliament after a General Election, although the Prime Minister and his Party have been returned, and it has been possible fairly soon to find a means of getting him into Parliament at a by-election.


I hesitate to interrupt the noble and learned Lord. I may not have read aright this clause. The person who is nominated certainly must be a Member of the Assembly, but does the person who is appointed by the Secretary of State in default of nomination have to be a Member of the Assembly? I do not think that the Bill says so.


I am trying to put my finger upon the provision where it does say so, although I must confess that I am not instantly succeeding. If I look at Clause 20(4), sub-paragraph (c) says: any person appointed under this subsection shall be appointed from among the Members of the Assembly". That appears to be the answer and perhaps the noble Viscount can tell me whether he is satisfied with it.


I will think about it.


The noble and learned Lord referred also to the situation where Ministers had lost their seats in another place but were then returned in a by-election. My point is that they were able to continue in their offices as Ministers; they did not have to resign. It was only if they lost the subsequent by-election that they felt it was right to resign. They could stay in office and in those circumstances it was clearly right that they should do so. There seems to be no provision for this unless the point just raised by my noble friend about that particular situation proves to be right. The noble and learned Lord has made it clear that the Government are making no allowance at all for such a situation.


Let me make it quite clear: the point raised by the noble Viscount is a had one and the Bill makes no provision for the situation which has been described.


I think the trouble we are in over this point is that what has been done, as the saying is, is that we have constructed a model and that model will never fit all the eventualities that will occur. What we must do is to go as far as possible in meeting every possibility that may occur. There is great difficulty in the concept of the Secretary of State appointing a First Secretary, just as I think there would be great difficulty in these modern days if there were an impasse which looked like lasting for some time (and which could happen in this Parliament) in the appointing of a Prime Minister by the Monarch. If that is so, I should have thought a much greater difficulty would result if the First Secretary were appointed, so to speak out of the air by the Secretary of State.

The further difficulty is of course that the person appointed as First Secretary might not be able to come back with a list of Secretaries willing to serve under him in a Government that would command a majority, so the process would begin all over again. I am not quite certain how one "de-appoints" a First Secretary in those circumstances, if he cannot form a Government. The thing is by no means free from difficulty. I was almost hoping that the noble and learned Lord would be able to offer some constructive suggestion —which one is always invited to do by the Opposition—and in circumstances like these it is of course not unknown for an interim Commission to be appointed. I believe it can be done in other countries where it is not possible to form a Government. This is probably the lesser of two evils if it looks as though it is going to take a long time for the Assembly to make up its mind as to who to nominate. I put that to the noble and learned Lord for consideration but I do not think we need pursue this point further at the present time.


I have thought about it and I seriously suggest to the noble and learned Lord that he might like to look at this again. Perhaps I may just deal with my train of reasoning about the First Secretary not necessarily having any longer to be a Member if he has lost his seat in an election after a dissolution. He would have been appointed in the previous Assembly and, at that stage, under subsection (4)(c), he would have been a Member of that Assembly. Under the second limb of subsection (8), he is not to be treated as ceasing to be a Member on the dissolution if he is again elected at an election following the dissolution. Some people might draw the inference that if he was not re-elected he would then be treated as being no longer a Member of the Assembly, but that does not work if there is no necessity again to appoint him, because, if he was previously appointed, he may remain First Secretary without the requirement to be re-appointed.

I am not sure how this works and I do not know that we can work it out in the Committee at this stage, but I think there may be something to be looked at here. Perhaps the noble and learned Lord, without giving any commitment, would do so.


I merely want to draw the noble Viscount's attention to the wording of subsection (8): a person appointed (otherwise than in pursuance of subsection (7) of this Section) to be a Scottish Secretary"— and that includes the First Secretary— shall relinquish his appointment on ceasing to be a Member of the Assembly". I should have thought that that was the clear answer to the question that the noble Viscount has just asked.


I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 308, 318, 99 and 100 not moved.]

8.37 p.m.

Lord DRUMALBYN moved Amendment No. 101:

Page 9, line 16, at end insert— (" ( ) If the Assembly resolves that the First Secretary shall cease to hold that office, he shall forthwith tender his resignation, and if it is accepted, the Assembly shall as soon as may be,proceed to nominate one of its members in his place".)

The noble Lord said: The point of the Amendment, if it is accepted, is purely to meet the position regarding Her Majesty's pleasure; in other words, it is a courtesy. There does not seem to be any provision for a change of First Secretary during the four-year term of the Assembly. Should the First Secretary die then presumably the Assembly would nominate a successor under subsection (5). The same would no doubt apply if the First Secretary resigned. It is not unknown for a Prime Minister to resign but Parliament does not nominate his successor. Normally Her Majesty appoints him on the recommendation of the retiring Prime Minister.

But suppose the Party of the First Secretary appointed by the Assembly did not command a majority in the Assembly, and suppose he lost the confidence of the Assembly or of another Party on whose votes he relied for his support, the Assembly might well resolve that he ceased to hold office, but there might not be a two-thirds majority in favour of dissolution, so that the Government would not fall in the way that the Government falls in Parliament. Therefore there could be a change of Government without a dissolution. There would he talks between the Parties and it might be that the same or a different combination of Parties put forward the name of a successor for nomination by the Assembly.

If it was the same combination the Government would probably continue in office under a different First Secretary ho could, if he wished, make changes in his Executive; that is to say, he could propose changes in his Executive which the Secretary of State would be obliged to accept. If it is a different combination of Parties the new First Secretary who was nominated by the Assembly and appointed by the Secretary of State might advise the Secretary of State to dismiss the entire Executive and to accept his nominees for reconstitution. I take it that this is all accepted. It is even possible that the Assembly might decline to nominate or be unable to agree on a successor. Remember, this is mid-term. In that case it would be—would it not?—for the Secretary of State to appoint one. Subsection (4) reads: Scottish Secretaries shall be appointed by the Secretary of State". Subsection (2) says: Any reference in this Act or in any Act amended by or under this Act to a Scottish Secretary is a reference to the First Secretary or any of the Secretaries of the Scottish Executive". Then, again, it follows from that that the Secretary of State can and must appoint a First Secretary if the Assembly does not nominate one.

But what if the Secretary of State belongs to a different Party from the Party or Parties able to command a majority in the Assembly? All this seems very difficult, but at least this is clear: the Assembly might well resolve that the First Secretary should cease to hold Office, and if the Assembly does that he could tender his resignation. It is inconceivable that it would be Her Majesty's pleasure that he should nevertheless continue in office. The Amendment requires the Assembly to agree on a successor in order to avoid the grave embarrassment for the Secretary of State of having to appoint one. This Amendment would place the onus of avoiding a breakdown on the Assembly and not on the Secretary of State.

I hope that the noble and learned Lord has seized the point here. This is a midterm situation where for one reason or another the Party balance or something of that kind has been upset, or the First Secretary's own Party has lost confidence in him, or the Party that is in alliance with his own Party has ceased to be in alliance. All these things can happen, and the right situation should be for the Assembly, by a simple majority, to pass a resolution in order not to have to go to the length of a two-thirds majority of all people in order to obtain a dissolution. I think I have phrased that incorrectly—by a simple majority should carry a vote for the resignation of the First Secretary and not have to go to the length of a two-thirds majority for a dissolution.


I am not quite clear if I heard the noble Lord correctly when he said he wondered if the noble and learned Lord had seen the point or had seized the point. In fact, I think I see the point and I shall now endeavour to seize it. First, I think if the noble Lord looks more closely at the clause he will find, as I am beginning to find, that the answer lies there. It is a much richer scam than he imagines it to be. This is the new subsection within Clause 20, so I am saying that within Clause 20 the answer is already there. Clause 20(5) provides that If the Assembly has nominated one of its members for appointment as First Secretary…", the Secretary of State must make the appointment. It does not matter when that happens. If it happens mid-term the Assembly, although they have got a First Secretary, Bloggs, can resolve, "We shall now have Smith as the First Secretary".

As we see from subsection (1) the clause makes it plain that there can be only one First Secretary, and if the Assembly resolves, "We shall now have Smith as our First Secretary", he shall be appointed, and of course the Secretary of State has no option but to sack Bloggs. The solution lies within the clause as it stands.

It may be that the standing orders will provide a gentle preliminary to the rather brutal dismissal of the first named First Secretary by nominating a second one, and it may be that they will do it by having within the standing orders some provision for a vote of no confidence in the existing First Secretary. It is for the Assembly to decide how it wants to put the matter, but within the clause it is perfectly possible, in mid-term or at any time, to dismiss the existing First Secretary by simply resolving that someone else shall be the First Secretary. The Secretary of State has no choice; it is mandatory upon him then and there to appoint that person so nominated to be First Secretary. He would have to precede that by removing the other First Secretary from office, which, under the provisions of the Bill, he is entitled to do.

The Earl of SELKIRK

Is it in the Bill as it now stands that the Assembly can dismiss the First Secretary at any time? I may be wrong but I have not noticed it.


It does not say that the Assembly can dismiss the First Secretary, but it does say that if the Assembly has nominated one of its members for appointment as First Secretary that Member shall be so appointed. So on Tuesday we have Mr. A who is First Secretary and on Wednesday the Assembly, being dissatisfied with his performance, says, "We shall have Mr. B." So they nominate him and the Secretary of State has no option under subsection (5) but to say that it shall be Mr. B. As we see from subsection (1), There shall be a Scottish Executive one of whose members shall be known as the First Secretary…". There is only one stool on which the First Secretary may sit. He is nominated by the Secretary of State in pursuance of such a resolution and accordingly the Secretary of State must first sack the original incumbent. That is the scheme; it works, and I am satisfied with it.


This is certainly not the way anyone would read it. Inevitably if the Assembly has nominated one of its Members as First Secretary and wants to nominate another or a different Member we are going to have two First Secretaries at the same time. If this is what the noble and learned Lord intends this to mean it is a most extraordinary way of drafting it. I do not think anyone would have interpreted it that way. It is a fairyland way.


Let me make it quite plain. We are not trying to spoon-feed the Assembly as to how it is going to run its everyday affairs. We are providing here a scheme that will work. I have already explained it twice. It may be that because of the lateness of the hour I am not making myself clear, but I hope that on consideration of the clause as it stands, and not coming to it with any fixed notion that it will not work, noble Lords in the Committee will see that it does work. The other provision to which I should have drawn attention—although we have already looked at it several times—is subsection (6): A Scottish Secretary shall hold office at Her Majesty's pleasure …". That, of course, includes the First Secretary. If the resolution of the Assembly is that Mr. B is to be appointed First Secretary and if, as I say under subsection (5) the Secretary of State has no option but so to appoint him, plainly as a necessary preliminary he must employ his power under subsection (6) and remove from office the present incumbent. It may come as a surprise to the noble Lord but it is there, and I ask him to consider it and in the light of that consideration not to pursue his Amendment, which is unnecessary.

The Earl of SELKIRK

It is one thing to turn out a Prime Minister but it is another thing to choose another Prime Minister. Those are two separate resolutions. The point I am really making on this—and I think we are all making the point—is whether you will get a deadlocked Parliament. There is a curious position—you cannot dissolve Parliament unless two-thirds of the people want it to be dissolved. That means they are locked in. Neither the Secretary of State nor anybody else can do it. They can turn out their First Secretary and there they are stuck in the Parliament. They have no Government and they cannot have a dissolution; they cannot do anything. I do not want to pursue the point but it is one that worries me just a little. They cannot have the solution and nobody can impose a solution on them. I only put this one point because it worries me whether the Government might be brought to a complete standstill.


Naturally. I accept the noble Lord's explanation that how the Assembly is to dismiss the First Secretary is simply by appointing another one in his place. The trouble about the drafting of this whole clause is that the draftsman has been so nice that he dare not mention the word "dismissal". It would be so easy if we simply said "appoint or dismiss". My noble friend is quite right; it would have made the thing crystal clear, instead of this very neat sleight of hand.


Before the noble Lord withdraws his Amendment, as I am sure he is going to, if we were to put in what he proposes we should find that the Assembly would resolve that the First Secretary should cease to hold that office. I presume that the Secretary of State would follow that instruction from the Assembly and sack him. Then what? We end up with no First Secretary. So the logic of the Bill is compelling. When the Assembly is tired of its existing First Secretary let it produce another one before it is foolish enough to pull the rug out from under him. That is the answer, and, as I say, it works.


I still think that my own subsection would work better. Nevertheless, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.51 p.m.

Lord DRUMALBYN moved Amendment No. 319:

Page 9, leave out line 17 and insert ("A person").

The noble Lord said: This is an Amendment over which I need not take much time. This is one of those Amendments which my noble friend Lord Gray is so ingenious in devising. I do not know that I can do justice to it, because it is an ingenious one. As I understand it, as the subsection is drafted a person would have to be a Scottish Secretary, that is a Member of the Assembly, before he could be appointed to perform the functions of a Law Officer. The exact words are: to perform functions corresponding to functions performed by a Law Officer of the Crown".


I am sorry to interrupt the noble Lord so soon. Did I understand him to say that a person would have to be a Member of the Assembly before he could be so appointed? —because that is plainly not so. The whole point of subsection (7) is that he does not have to be a Member of the Assembly in order to be appointed a Law Officer. That appears from subsection (4), which begins with the words "subject to subsection (7)". Then subsection (7) says he may be so appointed notwithstanding that he is not a Member of the Assembly.


I quite agree with that. I think my noble friend is trying to draft it more intelligently. As the noble and learned Lord says, quite rightly, subject to subsection (4) this is so. It starts with the words "A Scottish Secretary or assistant to a Scottish Secretary". It reads: A Scottish Secretary or assistant to a Scottish Secretary who is appointed to perform functions corresponding to functions performed by a Law Officer of the Crown may … be so appointed notwithstanding that he is not a member of the Assembly, …". My noble friend is inserting "A person" to make it a very much simpler and a much more straightforward sentence: A person who is appointed to perform functions corresponding to functions performed by a Law Officer of the Crown may … be appointed a Scottish Secretary or assistant to a Scottish Secretary … and so forth, and then can take part in the proceedings of the Assembly but shall not vote". This is a very much more elegant way of drafting the subsection. I beg to move.

8.55 p.m.


It may be more elegant; it is not for me to judge. What I am satisfied about is, first of all, that the proposed Amendment does not change anything, apart from the elegance. Secondly, the elegance of this particular language does not really matter at the end of the day. What matters is, first of all, that it should work, and, secondly, that it should be publicly understood. I should have thought it would be very well publicly understood that the Law Officer is not necessarily a Member of the Assembly, albeit that he is entitled to take part in the proceedings.


If the noble Lord will allow me, I would make this point. I am sure he would agree that it is much better that a clause should be self-contained and should not be read by reference to such-and-such, if that can possibly be avoided.


Let me suppose that I am in agreement about that; I do not want to argue about that at this time of night. Does the noble Lord really suggest that we should amend the Bill in this sense? What I would say to the Committee is that there are Amendments that have been made and there are more Amendments that are bound to be made. It is a greaty pity if we send back an unnecessary Amendment, albeit elegant beyond belief, and thus give ill-disposed persons an opportunity to discuss unnecessary Amendments and so to prolong the proceedings in the other place. I see the noble Lord, Lord Campbell of Croy, frowning. We must make Amendments to this Bill; some have been made and others will be made. It is surely not worth while moving into the Bill Amendments which are only for the purpose of achieving a supposed improvement in the language.

8.58 p.m.


If I may come in on that, the noble and learned Lord referred,I think, to the probability of ill-disposed persons in another place pouncing on what is purely a drafting Amendment, and I suppose he meant wasting time. In another place they have had a guillotine placed upon the Bill. They have been able, under the guillotine, to discuss only certain portions of this Bill. I am sure that the Amendments which we do send to another place—some have already been made to this Bill—can be divided into those which are purely drafting (which this one would be, though a great improvement to the wording) and those which are Amendments of substance. To say that an improvement in drafting, which on examination is agreed to be an improvement, should not be sent to another place because ill-disposed persons would seize upon it and waste time, is a misjudgment of the proceedings that we expect to take place in another place when our Amendments go there.

I sincerely hope that they will have time in another place to consider our Amendments of substance, and that they will welcome changes that have been made to improve the drafting. Certainly this Bill has every evidence of ambiguity in its drafting. They will welcome the opportunity which we have had to make such changes, as with much of the Bill they have not had the opportunity to suggest changes in drafting. So I take issue with what the noble and learned Lord has said about that.

I should also like to record the success which my noble friend Lord Gray has had; indeed Lord Drumalbyn has had many successes of his own. Lord Gray has had a number of successes in pointing out drafting improvements, and indeed pointing out where there have been drafting lapses. He did that in regard to a Bill the other day. I would ask the Government to take very seriously the suggestion that he has made, particularly as the noble Lord has not found any fault in it; he has simply said it is not necessary. If it is going to help in the clarity of the Bill and, as I think has been said, the general understanding of it, I do not think the noble and learned Lord should cast this aside quite in the way that he has.


Surely it is a distinct advantage if the drafting of one small subsection of this complex Bill is improved so that the numerous laymen who have to read it and try to understand it may be somewhat eased and facilitated in their task? I am surprised that the Government should make such heavy weather over a drafting Amendment.


I hate to take issue with my noble friends because normally I do so only when we are discussing wild creatures, such as otters, deer and so on. However, it seems to me that this is not a drafting Amendment. As I see it, if the Amendment of my noble friend is made a person can be performing functions corresponding to those of a Law Officer of the Crown without necessarily being a Scottish Secretary. However, the Bill, albeit it is written in a complicated way, ensures that the person who is performing that function is a Scottish Secretary. The Amendment would change the sense of the Bill. I do not argue about whether the sense is right, but I do not think that this is just a drafting Amendment.


I should like to intervene at this stage. I answered the point that was raised by the noble Lord, Lord Drumalbyn, in supporting his Amendment. However, the noble Lord, Lord Mottistone, is absolutely right: this is not just a drafting Amendment. It has the effect that the person need not, if the Amendment were moved into the Bill, be a Scottish Secretary or an assistant. As a result he would not, if he were not such a Scottish Secretary, be able effectively to carry out his duties, because he would not be clothed with the powers which are given to Scottish Secretaries under Clause 20(3). Accordingly, there are functions which one would expect the Law Officer to exercise and he would not have them unless he were a Scottish Secretary. So this would be much more than a drafting Amendment.

I am sorry to appear to be stubborn in relation to the drafting. I was not conceding that the drafting of the Amendment was better than the drafting in the Bill. In fact, I am satisfied, and I am so advised by the draftsman, that it is not. The logic of the thing is that, first of all, we deal in subsection (4) with Scottish Secretaries, having dealt in Clause 20(3) with the powers conferred upon them. Then, subsection (7) speaks about Scottish Secretaries and not about persons. Therefore, I should defend the drafting if I had to do so.

I should point out, with the concurrence of the noble Lord, Lord Mottistone, that this is not simply a drafting Amendment. I hope that the noble Lord, Lord Campbell of Croy, is right in his optimistic view about the responsible treatment that all these Amendments will receive when they go to another place.


Would not the next Amendment, which inserts the words: appointed a Scottish Secretary or assistant to a Scottish Secretary", make plain the omission which the noble Lord, Lord Mottistone, thinks is removed by the Amendment?


Not entirely. It would not oblige the person appointed to perform the functions corresponding to those of a Law Officer to be a Scottish Secretary. Under the clause as it stands he cannot be made a Law Officer until he is a Scottish Secretary. Under the Amendment a person can be appointed a Law Officer and he is permitted to be made a Scottish Secretary or an assistant, but he does not have to be.


In the event of the First Secretary losing his seat at an election it would be possible, would it not, either for him personally to appoint someone, or for others to appoint him, to perform the functions corresponding to the functions performed by a Law Officer of the Crown? If that was so, he would be entitled to be present at the Assembly, to lead the Assembly, but not to vote.


I am appalled at what the noble and learned Lord has said. It seems to me that it is absolutely illogical. He has made out of this matter something that is now intolerable. He is saying that a man must first be appointed as Scottish Secretary before he is appointed to carry out these legal functions. That seems a total nonsense. We want somebody who is capable of carrying out the legal functions to be appointed as Scottish Secretary.

I assure the noble and learned Lord that I know how Governments become so accustomed to seeing texts and know what they mean. That is all right, but the Government have really got this wrong. It is mainly a drafting Amendment, but my noble friend Lord Gray said that he saw in it a point of substance. I took it to be a drafting Amendment, because I thought that it infinitely improved the clause. However, my noble friend saw that point of substance that I have now mentioned. Somebody has talked about putting the cart before the horse. In this case it is certainly putting the cart before the horse. A man becomes a Secretary because he is appointed to carry out these functions and he ranks as a Secretary. That is the truth of the matter. He is not appointed as a Scottish Secretary and then appointed to carry out the legal functions.


I should like to get the Government's view on what they are aiming at here because I think that we had all assumed, until this point had arisen, that what the Government were trying to achieve was what happens in relation to Law Officers for Scotland—that is to say, that someone who is completely suitable to carry out the task can be appointed even though he is not a Member of either House of Parliament. That is something which has worked well.

I remember the days whets both the Scottish Law Officers were Members of the other place and it was always possible for that to be achieved. Then there came a time when it was not possible. However, the situation is covered, and I think that the noble and learned Lord himself carried out the tasks of Solicitor-General for Scotland without being a Member of either House. We had understood that the same principle was being applied in the case of the Assembly. However, that would mean, as my noble friend has said, that the person could be appointed although he was not a Member of the Assembly and although he was not a Scottish Secretary.

Therefore, at this stage I would ask the Government to go back to the first principle and tell us whether we are right in assuming that the aim of this subsection is to try to reproduce for the Scottish Assembly the same situation where a person who is legally and otherwise qualified to carry out this task can be appointed even though he is not a Scottish Secretary or not even a Member of the Assembly.

Viscount THURSO

Perhaps I may put it to the noble and learned Lord, Lord McCluskey, that, by his own test of readily understanding what the subsection means, it has been shown tonight to have failed in the sense that various interpretations have been put upon it, although probably not all of them were correct. However, we are, in fact, apparently groping for the real meaning within the subsection. I would invite the noble and learned Lord to have another look at the drafting because, as we have gone along, it has seemed to me that the meaning has changed from time to time as different nuances have been put upon the subsection.

I take it from our discussions tonight that what has really happened is that we have shown up a weakness in drafting. I am sure that, if the noble and learned Lord were to look at it, he could probably pull the drafting together for another stage.


I should like to add one point because the noble and learned Lord rather astonished me earlier by saying that an earlier part of the Bill, which referred to "a Scottish Secretary", meant "Any Scottish Secretary" and that the jobs were interchangeable. Surely the job of the Scottish Secretary dealing with legal matters is not interchangeable with that of other Scottish Secretaries.

I am not at all certain that we have not fallen on something much more fundamental and that the person performing functions corresponding to those of the Lord Advocate should be called by a different name, and not be a Scottish Secretary at all. That would make the matter clear. If the jobs really are interchangeable, then it is quite wrong for the person performing these legal functions to be called a Scottish Secretary.


Perhaps I may briefly answer the points raised by the noble Lord, Lord Campbell of Croy. The intention was not to reproduce the situation at Westminster because, as we see from subsection (7), the Law Officer of the Crown may, notwithstanding that he is not a Member of the Assembly, take part in the proceedings of the Assembly, though he cannot vote. That, of course, is not a reflection of anything that happens in the Westminster Parliament. Indeed, when a Scottish Law Officer is not a Member of either House, he has no voice in either House. Accordingly, this is not a reproduction of the Westminster situation.

In considering this matter I had taken the Amendment at its face value because the Amendment itself envisages that the Law Officer, or the person performing Law Officer functions, will or may be a Scottish Secretary. I did not envisage the last point which the noble Lord, Lord Drumalbyn, raised that perhaps there is a much deeper matter and that he should not be a Scottish Secretary at all.

I shall certainly take steps to ensure that tonight's debate on this matter is drawn to the attention of the draftsman; it is only right that I should do so. All the points that have been made will be put before him. In the light of that, he will be asked to consider the wording that he has proposed.


This has been a very valuable debate because it has raised these matters, which certainly need to be examined. The noble and learned Lord has indicated a difference between what is proposed here and the way in which Scottish Law Officers operate in the Westminster Parliament. None the less, as the clause is drafted, it looks as though it is being modelled as closely as possible on what does happen at Westminster. This particular provision about not voting, in fact, follows a procedure in another place of which noble Lords may not be aware; a convention operates there that when one of the Law Officers for Scotland is a Member of another place he can attend any Scottish Committee there, even though he is not a Member, and take part in the proceedings but not vote. Therefore, this looked as though it was trying to follow as closely as possible a procedure which exists in another place. That is what led me to think that the Government were trying, so far as possible, to produce the same kind of person.

I would quickly add that I think the system has worked well and, therefore, I am not against trying to copy it as closely as possible. But it is quite clear that the drafting has fallen down and that this must be looked at again. I am sure that the Committee will be grateful to my noble friend Lord Gray and to Lord Drumalbyn, who has raised this matter in his absence.


I am very grateful to the noble and learned Lord, Lord McCluskey, for the assurance that he has given. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 320 not moved.]

9.13 p.m.

Lord DRUMALBYN moved Amendment No. 321:

Page 9, leave out from beginning of line 28 to ("a") in line 29 and insert ("such a person shall not be treated as having ceased to be").

The noble Lord said: This is another Amendment standing in the name of my noble friend Lord Gray. I am not sure that I am as grateful to him as is my noble friend, Lord Campbell of Croy. One is never quite certain that one has understood the points in question. However, we seem to have gone a bit further in the last Amendment than even my noble friend Lord Gray thought.

This Amendment reads: Page 9, leave out from beginning of line 28 to ("a") in line 29 and insert ("such a person shall not be treated as having ceased to be")". That is rather misleading as it stands so I shall read the whole of the proposed subsection. It would read: A person appointed (otherwise than in pursuance of subsection (7) of this section)"— with which we have just dealt— to be a Scottish Secretary or an assistant to a Scottish Secretary shall relinquish his appointment on ceasing to he a member of the Assembly; but for this purpose such a person shall not be treated as having ceased to be a member on the dissolution of the Assembly if he is again elected at the election following the dissolution or he is removed from office. That is how it would read if I may take Amendment No. 321 together with Amendment No. 322.

The points my noble friend had in mind were, first, is the subsection as drafted concerned only with Scottish Secretaries and their pay and pensions, or does the second part of it refer—and I do not think it does—to members in general? If it does not refer to members in general, would it not be better to refer to "such a person" rather than "a member of the Assembly"? It would make it more intelligible. There seems to be a confusion between the two here. Secondly, if the Government have only pay and pensions in mind, ought not "ceasing to be" be amended to "having ceased" because, after all, the matters can only be considered retrospectively if and when the Secretary, or assistant, has been re-elected.

There is a further question. In the practice of the United Kingdom Administration, is it not the case that all Members of the Government are considered to have placed their offices at the disposal of the Prime Minister even though, if I remember rightly, a Minister continues to receive his pay in the office he is holding until relieved of his office, or transferred to another office, whether more highly or more lowly paid? Is it the intention that the Scottish Secretaries and assistants should be treated in the same way as Ministers in the United Kingdom Parliament in this respect? If so, the words in the second Amendment, "or he is removed from office", should be added.

Is there any other purpose in the subsection that my noble friend and I have not detected? For example, is it intended that the Scottish Secretaries and assistants should continue in office until replaced? The Party or Parties providing the Government before the election might not be the same as those providing the Government after the election and, as I have said, it might take some time to form a new Administration. This might mean an awkward time while the previous Administration continued in office until a new one was appointed. On the other hand, is it intended merely that in that case the Secretaries and assistants should continue to exercise their functions until the First Secretary tenders his resignation and that of his colleagues? I beg to move.

9.17 p.m.


In looking at Amendment No. 321 along with Amendment No. 322, I had regarded them as being a couple of Amendments designed to improve the drafting. It was my intention to say in this regard, and I shall say it, that I shall seek the draftsman's advice as to whether or not this is an improvement. I know the noble Lord, Lord Gray, well enough to recognise that he is assiduous and skilful in detecting flaws and being able to suggest improvements. I propose to ask the draftsman's advice in the light of these proposals and of what has been said.

To answer the questions that I have been asked, this subsection is not just concerned with pay and pensions, but is concerned with continuity. The noble Lord will recall that we had a debate about continuity when discussing Clause 3. I think that we dealt with these points at that time. The noble Lord said that it would be awkward if there were Secretaries who were not re-elected to the Assembly. Of course, if any Secretaries were reelected to the Assembly, then any one Secretary could perform any of the duties incumbent upon any of them, so there would be no insuperable difficulty unless one got the extraordinary situation that all the persons who were Secretaries at the date of dissolution ceased to be members of the Assembly on the dissolution and none was returned to the Assembly. Then one might get a difficulty. It was with that in mind that I felt it might be advisable to suggest that the draftsman should look at this again. I shall do that.


I am much obliged to the noble and learned Lord and if, when we return to this matter, he by chance still wants to adhere to the present words, perhaps he will say whether the words "a member of the Assembly" really refer to a Member of the Assembly who is a Scottish Secretary or an assistant. I leave that with the noble and learned Lord as I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 322 not moved.]

9.21 p.m.

Lord CAMPBELL of CROY moved Amendment No. 309:

Page 9, line 31, leave out subsection (9).

The noble Lord said: The Amendment also bears the name of my noble friend Lord Harmar-Nicholls. It so happened that we both independently tabled this Amendment; we found we had done so but had not consulted each other beforehand, and we have discussed it since we saw that we had both made the same point. My noble friend cannot be here tonight and I hope to speak for him as well. We certainly need an explanation from the Government of this subsection, which reads: A Scottish Secretary may appoint such officers and servants as he may think appropriate for the exercise of such of the powers mentioned in sub section (3) of this section as are for the time being exercised by him". It is not clear what this exercise is. Is this the way in which departments will be formed? Is this the way in which a section or department dealing with housing or roads or some devolved function will come into existence?

We must also bear in mind that the number of Scottish Secretaries is unknown. We debated this on an earlier Amendment and, as a result of what Government spokesmen have said, we do not know whether we are dealing with five or 15 Scottish Secretaries. In theory, it could be 30, but it will probably be in the area of between five and 15. It seems that the first ones to he appointed could themselves then appoint officers and servants as they think appropriate, apparently without any limit to numbers. We must be told whether the Government have set any limit. I have not seen one elsewhere in the Bill but it may exist, it being a very complex measure.

Secondly, what is to be the status of these people? Will they be civil servants? Are they included in the manpower memorandum at the beginning of the Bill, which says that a net increase of 750 civil servants in Scotland is forecast? Could some or perhaps all of them be political advisers? That is a fairly recent innovation in this country in Whitehall. Even though I gather there were 40 of them at one stage, a Minister usually has one, perhaps two, and I do not think that, perhaps except for the Prime Minister, there are more than three political advisers working for a Minister. Again, we need to be told whether that category of person is included here.

The intention might be that it could be a mixture of all the categories I have mentioned and perhaps of others as well. We must have some explanation of what is in the Government's mind and whether there are any limiting factors upon what a Scottish Secretary could do in setting up an empire for himself in this way. Once we have been told something of what the clause is supposed to mean, and what the Government have in mind, we can consider whether these officers and servants are to be persons who have sworn some allegiance to the Crown, or have some obligation to Parliament here at Westminster, on what kind of conditions of service they are to be employed, and a whole host of other matters which are simply not touched on here.

I would remind your Lordships that this is quite separate from the staff of the Assembly itself; that is to say, the equivalents of the servants of this House and another place. They are provided for, together with the equivalent of Black Rod, the Serjeant at Arms, and so on, in another part of the Bill. So it is not the servants of the Assembly we are considering. It is either the formation of new Departments, or the formation of some private office, or cabinet, as it is called in the EEC, for a Scottish Secretary. So I would ask for an explanation of what the subsection is supposed to mean, because until we get that we cannot ask the other questions to which we need to know the answers. I beg to move.


May I place some emphasis particularly on the aspect of control here? It so happens that when I was looking up the Ministers of the Crown Act 1975, for other purposes, I found in Schedule 1, paragraph 2, the following: The Minister may appoint such secretaries, officers and servants as he may with the consent of the Minister for the Civil Service… There seems to be no such qualification in this subsection to which my noble friend is referring.

Baroness STEDMAN

I have the suspicion that we shall come back to this matter again when we reach Clause 62. This Amendment removes the power of a Scottish Secretary to appoint officers and servants to assist him in the exercise of the devolved powers. The Bill itself is creating two new groups of staff: the staff serving the Scottish Secretaries and the Scottish Comptroller and Auditor General; and the staff serving the Scottish Assembly, as the noble Lord, Lord Campbell of Croy, has pointed out.

It is Clause 62 that provides that the officers and the servants appointed by a Scottish Secretary will be members of the Home Civil Service, and that the expenses of maintaining them will be paid out of the Scottish Consolidated Fund. As it stands, the Amendment would remove one of the most essential powers which the Scottish Executive will require when it assumes the general powers and duties for the business devolved upon it; that is, the power to appoint the staff to assist in the exercise of those devolved functions. Without further provision, the provisions in the Bill would be unworkable. I will not go so far as to say that we look upon it as a wrecking Amendment, but we certainly look upon it as a very serious Amendment.

Perhaps noble Lords have in mind that the United Kingdom Government ought to be responsible for providing the staff for the Assembly, but we think that that kind of approach would be quite unwarrantable, and would probably be resented very much by the Scottish Assembly. It is also completely unnecessary.

The noble Lord, Lord Campbell of Croy, raised the question of the political advisers, and asked whether they were included in this. This Bill does not prevent the Scottish Secretaries from appointing special advisers, if they wish to do so. The subsection which this Amendment seeks to delete provides the necessary power of appointment. But since the expenses of these advisers will have to be met from the block fund, a Scottish Secretary will have to convince the administration as a whole that the expense is justifiable, and that these advisers are necessary. Such advisers will be in exactly the same position as the special advisers to the United Kingdom Government.

Clause 62 provides that the staff will be members of the Home Civil Service, but the costs of maintaining them will be met from the Scottish Consolidated Fund. The Scottish Executive will then have the discretion to determine its own priorities for expenditure within that block fund. So it is not a carte blanche to appoint as many staff as they want, either as straightforward civil servants, or for their private office, or as political advisers. It seems entirely appropriate that the Scottish Administration should control the numbers and deployment of the staff it considers necessary to carry out all the devolved functions. Surely this is the correct approach. We have the safeguard, so far as the payment is concerned, that they are paid within the block fund, and they have to sort out their priorities within that amount of money.

9.30 p.m.

The Earl of SELKIRK

May I ask the noble Baroness a question? She says that they will be in the Home Civil Service; she does not say that they will be members of the Home Civil Service. As I read Clause 62(1), it says: Service as an officer or servant of a Scottish Secretary or of the Scottish Comptroller and Auditor General shall be service in the home civil service … That means that they will be seconded to the Home Civil Service; they will not be members of the Home Civil Service. As I understood what the noble Baroness said, it meant that every single one of the 750 people who will be required may be selected by the Chief Secretary and seconded to the Home Civil Service. Is that really what is meant? I thought the intention was that the existing Civil Service would be used to fill the appointments, of which I gather there are 750, or whatever it is, in the Scottish Office. Are we going to get a completely new body of men put in, the only point being that they will be graded and paid by the Home Civil Service, although in the ordinary sense they will not be subjected to the tests or to the competition to which the home civil servant is subjected at the present time? Is that what the noble Baroness is saying?

Baroness STEDMAN

No. They will be members of the Home Civil Service. The expenses for maintaining them will be paid out of the Scottish Consolidated Fund. What we do not want is a separate Civil Service for Scotland; but the members of the Home Civil Service who are working on the devolved services in Scotland will have to have exactly the same qualifications as the members of the Home Civil Service working in the other parts of the United Kingdom.

The Earl of SELKIRK

May I say that I am delighted to hear that. But why on earth does the Bill not say so?


There are no lawyers here at the moment, which is a very good thing, but I should like to say something which I repeat time and time again. Many of these civil servants could be produced if we got away from two-tier local government. The time of many of these people is being wasted, and many of them are being overpaid for what they are doing. If we could get to a single tier local government, except in certain circumstances, as I have tried to explain before, we would have a lot of very satisfactory people available to act as civil servants for the Assembly.

Baroness STEDMAN

I yield to no one in my admiration of the staff employed by the local authorities, both in Scotland and in the rest of Britain; but, quite frankly, that is rather outside this Bill. The question of what should happen to local government staff was decided when we had local government reorganisation, and local government reorganisation is not part of this Scottish Bill.

The Earl of PERTH

I am a little puzzled about subsection (9). Is this the way in which all the people who are to carry out the wishes of the Assembly are to be appointed? Is this a way of saying that, in the case of the whole of what is today St. Andrew's House up in Edinburgh, the troops will be taken over by the Assembly? Because if it is that, then it seems to me that it deserves bettter than being merely subsection (9) of a clause. Perhaps I have misunderstood what it is all about.

Baroness STEDMAN

The civil servants now in St. Andrew's House are members of the Home Civil Service, and if it is agreed that they shall continue working on the devolved functions of the new Scottish Assembly they will remain as members of the Home Civil Service. They will have the right to be appointed to the new Scottish Office, Scottish Assembly or whatever it may be, or they will have the right to apply for other jobs in other parts of the country if they want to. But they are members of the Civil Service, and they will still be members of the Civil Service after the Assembly has been formed.


May I ask the noble Baroness a question to elucidate what she has been kind enough to say—and she is always so agreeable and friendly when she explains things, especially when they are things which she does not really want to explain very much and does not like anyway. Are we to understand that, in the future, St. Andrew's House will have two kinds of civil servant, all belonging to the Home Civil Service: one lot who are seconded to serve for the functions which are devolved to the Scottish Assembly and the other lot who are serving, as now, the functions which are not devolved; that they will work side by side, possibly even in the same offices; that they will belong to the same Home Civil Service but there will be two categories of them, some serving the devolved functions and some the non-devolved? Is that right?

Baroness STEDMAN

As we have in Government here, in the United Kingdom. We have some civil servants serving as advisers to Ministers, some in the private offices, some on unspecified duties attached to the responsibilities of the Departments. The same sort of thing will happen in the Assembly. There will be the private offices for the Secretaries of State, presumably, as our Ministers have here. There will be separate departments within the Departments looking after the different functions devolved to them. We are not trying to create two classes of civil servants.


I did not make myself absolutely clear. St. Andrew's House, of course, a large nothing will destroy that building. I once tried to blow it up but the fuse did not work. St. Andrew's House will continue to be as large as life and will grow larger still probably: but it will house two lots of civil servants in it, pari passit in terms of rank, pay, status, but some will be serving devolved functions and therefore be responsible to the Scottish Executive, with others serving non-devolved functions and therefore responsible directly to the Secretary of State. Is that right?

Baroness STEDMAN

My impression is that the noble Earl has got it right. Everything is not being devolved to the Scottish Assembly and, therefore, there will have to be civil servants looking after things which are the responsibility of Ministers here.


I hope that I did not understand the noble Earl to be advocating terrorism, even if only to get rid of St. Andrew's House. May I ask the noble Baroness whether it is not the case that in order to give the civil servants confidence it is necessary that they should continue in the Home Civil Service? It might be at some time —I say that it might be—desirable to form a Scottish Civil Service if people wish to serve only in Scotland but, at present, because the Assembly has just been formed, until it has gained experience and confidence has been built up, it is obviously the right thing to have members of the Civil Service serving with the devolved functions at St. Andrew's House in the Home Civil Service, with the same prospects and the same security.

Baroness STEDMAN

Yes. We want to keep one Civil Service at the moment to cover both Scotland and the United Kingdom.


I am sure that that is an admirable aim. It may be difficult to achieve. In putting down this probing Amendment, I have no intention of taking this subsection out of the Bill: something is needed. This is incredibly vague and without an explanation it was not at all clear what it was intended to do. As a result of this debate, the noble Baroness has made it clear that this means the formation of the Depart- ments from the beginning and that the people who are to be the officers and servants under subsection (9) are to be the civil servants whose conditions of service we shall be considering under Clause 62 later.

It is not a question of the Scottish Secretaries recruiting, advertising or going out into the highways and by-ways and themselves collecting staffs who they think will serve them loyally and well. They may encourage people to join; but they have got to be members of the Home Civil Service. They must pass the necessary examinations, tests and qualifications in order to become members of the Home Civil Service. They can be on contract or come in under arrangements for periods; but they must fulfil the normal rules governing entry and membership of the Home Civil Service. So it has been made clear, that there could be some special advisers as well if the Assembly so agreed. This is what the noble Baroness has told us.

The only limit appears to be a financial one; that is, there will have to be an allocation from the block grant for the payment of salaries and other expenses of staff—accommodation, et cetera. But we still do not know the number of Scottish Secretaries and, therefore, the number of Departments that are to be formed in this way. The first decision to be taken, apparently, by the Secretary of State following exactly the advice he has been given by the First Secretary about the numbers of Scottish Secretaries is going to be very important because it could lead to the number of departments to be set up and the general structure and shape of the new Executive. So we are dealing with an important subsection. I still criticise it as being exceedingly vague as drafted. We will certainly be having to ask a great many more questions about recruitment and conditions of service.

The question of pay rates and other conditions arises. What the noble Baroness has said—rightly, I think—is that the intention must be that those who are employed as civil servants working for the Executive of the Scottish Assembly should be on the same conditions and pay rates as other members of the Home Civil Service. But there is another point which I should like to raise. This is a new form of service within the Civil Service. If a system like this is to work properly, my own feeling is that there should be transferability. I have expressed this opinion before: I hope that when the new system is set up some of those who have worked in St. Andrew's House will go and help the new Executive to get started. They will not all be new.

However—and this is the important point—is that going to be voluntary? There could be persons who say, "When we signed on to be members of the Home Civil Service we were signed on to work for the Westminster Government. Now something quite different has been set up which is not a sovereign Parliament and here we are being asked to go and serve something quite new which we do not want to do". I personally would favour transferability and that there should be a number of experienced civil servants serving in the new Executive. But I should not like to think that they were sent there against their wishes, because it could not have been in their original conditions of service.

Let me take a simple example. The main difference between those who join what used to be called the Foreign Service and is now called the Diplomatic Service again and those who joined the Home Civil Service is that when they start they have to sign completely different conditions of service. Those who joined the Diplomatic Service know that they can be sent at short notice to all kinds of different parts of the world, however inconvenient, even if they have young children and are sent to terrible climates. They can be moved round with perhaps only six months in one place and then a year in another. When they sign on for that they know that that is what they are committed to do.

Those who join the Home Civil Service know that they may be transferred to Newcastle or Glasgow but they are going to stay within the United Kingdom and, on the whole, they can settle down, buy a house and decide where the children are going to school. They can work out a pattern for their lives for a certain number of years ahead.

If I may digress for a moment, this is one of the problems there have been about carrying out one of the recommendations of the "Think Tank" report—that is to say, not enough of those in the Home Civil Service who have signed on for those terms are prepared to exchange them and go abroad and have their lives upset with the general upheaval as a result. Clearly, the difference is not as great here. Those who have signed on to be home civil servants and serve the Ministers in the Westminster Government may well decide that service for this new Executive is a different kind of service, and they may not wish to serve the Executive. I hope that they will not be compelled against their will to do so. That is the sort of question I can see coming up.

I am not sure that the noble Baroness fully understood the question put by my noble friend Lord Lauderdale and I should like clarification. He spoke about St. Andrew's House. The position is that the Scottish Office, consisting of five departments, is spread in a number of buildings in Edinburgh, and has been for some time. Also, of course, a new building was opened about three years ago, which is New St. Andrew's House. That is in addition to the old St. Andrew's House. I agree that if I had had anything to do with that building I should not have allowed the skyline to be spoilt, as it has been, by the new St. Andrew's House. There are other parts of Edinburgh which contain sections of the Department of Agriculture and sections of the Scottish Office. But when some of these functions are devolved to the new Executive, I would imagine that there would be a geographical separation; that is to say, those civil servants who were working for the new Executive because the subjects they were on were devolved subjects, would all be in the one building and would be separated from those who are still working for the Secretary of State for Scotland—either working for him as a Minister in his personal capacity, or working for him because they were working on a subject which was reserved and not devolved.

I think that the noble Baroness, in her answer to my noble friend, rather gave the impression that they might still be working in the same corridor in St. Andrew's House. Personally, I think that would cause confusion, and I would hope that they would be separated so that in Edinburgh people would know perfectly well that they would be coming to see somebody who was working for the Scottish Executive rather than a section which was working for the Secretary of State for Scotland: they would not be just muddled up in the same corridor in the same building.

I have touched only on some of the matters that arise from this subsection. The subsection is the part of the Bill which enables the departments, if that is the right word for them, of the new Executive to be set up—the civil servants who are to work for the Scottish Secretaries. We have no idea how many there are going to be because we do not know how many Scottish Secretaries there are going to be. We do not know whether there will he one for roads, one for housing, one for local government and so on. There might he 20; there could be six. So that is highly unsatisfactory, and it is explained by the Government by the need for flexibility. I hope that the noble Baroness can say a little more in answer to the points I have raised, particularly the one about geographical separation, before we pass on to another Amendment.

9.48 p.m.

Baroness STEDMAN

I am sure it is the intention that the devolved services, so far as possible, will operate within the one building or the one set of buildings and that they will not be mixed up together; but no firm decision can be taken about that until we have dealt with Schedule 10 and know exactly what functions are to be devolved. So for further clarification it might be better to wait until we have dealt with Schedule 10, and then when we reach Clause 62. There will be transferability, as there is now. People can apply to transfer from department to department and from some department of the present Scottish Office to some of the departments of the new Scottish Secretaries.

So far as voluntary or compulsory transfer is concerned, I think we might leave that until we get to Clause 62 and are looking in more detail at the whole question of the Civil Service. We would certainly hope that many of our experienced Scottish civil servants will be willing, and indeed anxious, to transfer to similar or even better jobs within the Scottish Assembly departments, rather than in those services which are not yet devolved to Scotland. We need a good leavening of experience among the more inexperienced ones; but I am sure there will he scope within the new Scottish set-up for those people who have had experience already of running these services now and will help to take over services when they are devolved to the Scottish Assembly.

I am quite sure that it is the intention of the Government, and it will he the intention of all Members of this House, that there should be absolute fairness in the treatment of our civil servants who are at present in Scotland and will remain there, and of any additional ones who will go there. I am sure that we want them to be treated just as fairly as United Kingdom civil servants. There will be an opportunity for transferability. When, after we have finished with Schedule 10, we know what services are being devolved, we shall be able to say a little more about the question of their housing and which buildings they will be in. But I am sure that it is the intention that the two should be separate, so far as they can.


I think that the noble Baroness must have made a slip of the tongue and, if so, this will give her an opportunity to correct it. She mentioned just now those functions not yet devolved to Scotland. Are we to conclude from that that, outside the scope of this Bill, it is in the Government's mind to devolve others as well?

Baroness STEDMAN



I felt sure that it was a slip of the tongue, but that sets the record straight.

Baroness STEDMAN

I am grateful to the noble Earl. What I was implying was that we have not gone through Schedule 10, which details which services are being devolved.

The Earl of PERTH

I wonder whether I can be helped a little more. I understand that we are setting up a devolved Scottish Civil Service. But what happens when a Scottish Secretary relinquishes his appointment?

Baroness STEDMAN

I should have thought that, as happens in the present set-up here in London, the civil servants who have been appointed would remain in post, and only political advisers who have been appointed would go out with their Minister.

The Earl of PERTH

The noble Baroness thinks that that is so, but is it so? This is not entirely clear to me. We are told that a Scottish Secretary may appoint. Subsection (8) of Clause 20 states that: a Scottish Secretary shall relinquish his appointment". What happens when there is no Scottish Secretary, or rather when the Scottish Secretary who has appointed these people has gone? If the noble Baroness is right that there should be continuity, ought we not to have something to that effect in the Bill?

Baroness STEDMAN

I should like to take advice on that and come back to the noble Earl, if I may. But I am reasonably certain in my own mind that the same procedure will apply in Scotland as applies here, and that the civil servants will stay on in their jobs.

The Earl of PERTH

I am very grateful. I am sure that that is what should happen, but I am not certain that it is in the Bill as drafted.


May I have it confirmed that there is great advantage in having one Civil Service, and a very quiet transfer of persons without, as it were, offices? That seems to me likely to avoid the dreadful expenditure of money that arose with our recent local government reorganisation, when the new regions had a free-for-all and advertised vacant posts. In some cases, local government officers were re-employed at salaries fully 50 per cent. above what they were getting previously. A state of affairs like that is most unlikely to be repeated if we maintain one Civil Service.

Baroness STEDMAN

That is right.

The Earl of SELKIRK

This clause is not satisfactory as it stands. If the noble Baroness really means that the bulk of the staff in Scotland under the Secretariat is to be composed of home and foreign civil servants, then there ought to be something saying that, and this should be conducted in consultation with the Minister for the Civil Service. There is no word on that at all. I see advertisements going up in the Home Office, the Foreign Office and the Ministry of Defence, saying "Come to Scotland and you will have a good job". Is this intended or not? I cannot believe that it is, but something should be inserted here. The subsection is written in a most casual way.

Baroness STEDMAN

I assure the noble Earl that it is not intended to be casual. The procedure will be the same as at present. The whole of the Civil Service will be trawled—I think that that is the correct expression—by advertising the jobs that are going, and anyone who has the appropriate qualifications will be able to apply for them. There will be transferability between Departments. If some? one is in Defence and wants to apply for a job in another Department, he will be able to do so, provided that he has the right qualifications to fill the new job. I am sorry the noble Lord does not think that we are clear about it.

The Earl of SELKIRK

The Bill says nothing about that at all. I must make this point. The imagination and experience of the noble Baroness are absolutely first class, but they have nothing whatever to do with the Bill. We really do want something. May I ask the noble Baroness to take this home with her?

Baroness STEDMAN

Yes, I will.

9.55 p.m.


The one thing that we are agreed about is that these innocent looking four lines in the Bill have an immense amount in them, because if the Bill is enacted in its present form they will cause the departments of the new Executive to be set up. We suspected that that might be the case, but only by putting down this Amendment and giving the Government notice that we needed an explanation did we discover that this was so.

I believe that my noble friend Lord Drumalbyn hit one nail on the head by drawing attention to the fact that there is no mention of a Civil Service Department or a Minister for the Civil Service. Earlier today we had with us the noble Lord, Lord Croham, but he has not yet made his maiden speech so I know that he cannot intervene on this point. However, he has just joined your Lordships' House after having been the head of the Civil Service.

My impression is that anybody who has served in a high position in the Civil Service and been responsible for staff there would expect this kind of operation to be carried out, as my noble friend Lord Selkirk has said, by a department—perhaps by the Civil Service Department working with the Treasury. But the way in which this subsection is worded makes it look as if the first appointed Scottish Secretaries, although there is no reason why they should have had any experience at all of such matters, can just go forth to recruit and appoint people, provided, as we are told by the noble Baroness, that they are members of the Home Civil Service or can qualify to become members of that Service, even if only on a contract or temporary basis.

I must draw attention to this, because it is a major operation. "Trawling" is a term with which I am familiar, but trawling usually means looking for one or two persons. For example, it may be necessary to have a principal press and information officer in a certain department. A trawl is then carried out in Whitehall to find out whether somebody can be spared or is eligible for promotion to that job. However, the word "trawl" cannot be used in this case, because this is establishing a new Executive—not headhunting which is equivalent to trawling. As the members of the new Scottish Secretaries' departments must all be members of the Home Civil Service, considerable restrictions are placed upon who they can be.

My noble friend Lord Cromartie pointed out, as I did the other day, that it could well be that there will have to be a reduction of local government in Scotland. I am one of those who think that if a new Assembly comes into existence there must be a change in the two-tier system. Although local government officers are at present on a completely different basis, none the less I am sure that in their ranks there are persons who could qualify to become civil servants if they wanted to do so in order to work for the new Assembly. Therefore, in a rationalisation of that kind there would probably be available personnel who, if they wanted to do so, could be new recruits to the Home Civil Service for this purpose.

My noble friend Lord Balerno referred to something which the noble Lord, Lord Mackie of Benshie, and I were discussing earlier today: that after the reform of local government had been agreed and it was actually carried out, and after I had made arrangements to try to restrict the recruitment, somehow, behind the scenes, when Ministers of a Government which had just come into Office were concentrating on other matters they managed to build some empires which some of us thought were too big —and certainly some new pay scales, too.

The noble Earl, Lord Perth, has voiced expressions of surprise which certainly represented what many of us felt on looking at this clause for the first time. It was not at all clear what was intended, and now that we have been given some explanation it simply raises a huge range of further questions. The noble Baroness said that to take this in a sensible sequence we ought to discuss Schedule 10, which cannot fail to be a long discussion because it is about 20 pages long and it tries to divide the subjects to be devolved from those which are not to be devolved; and we ought to go through that before we consider again the membership of the Civil Service.

I would simply register at this point that I am very concerned that in the Bill this is not prescribed as the major operation which it ought to be. It looks as though it is left to very newly-appointed Scottish Secretaries. We do not know how many they are to be, because the numbers are not indicated and the Government have given no indication of what they think are the right numbers. Therefore, when the first Executive is being established it will be very important that the First Secretary and the Secretary of State of the day are really in agreement about how many Scottish Secretaries there should be, and how many departments should be set up. Changes can be made later but that will establish the pattern for the manning of the Executive and the number of departments and whether it will be a top heavy bureaucracy or whether it will be streamlined and, we hope, efficient.

So what this Amendment has done is to enable the Government to give a preliminary explanation and has enabled us to point out to the Government the other questions which arise from this matter, in the hope that they may be armed and ready to deal with these points as they arise later in the Bill. At this moment I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

10.3 p.m.

The Earl of SELKIRK moved Amendment No. 102: Page 9, line 41, leave out ("a Minister of the Crown") and insert (" the Secretary of State").

The noble Earl said: Throughout this Bill there have been various references to "a Minister of the Crown" and he is a quite important chap, he has a great variety of powers. I will not go into them all but he can give notice, he can specify, he can override the Scots Secretary and he can even amend Acts of Parliament, subject to certain specifications. I wanted to know what a Minister of the Crown is and, quite naturally, I turned to the Act of 1975, which was called the Ministers of the Crown Act, hut it is totally unhelpful. All it says is that a Minister of the Crown is a holder of office in Her Majesty's Government in the United Kingdom. I do not know how many people there are holding office in Her Majesty's Government, but I suggest it is not much short of 100. I am not sure what the latest figures are, but it is of that order.

I then turned to the interpretation clause in this Bill, to see whether I could get any help there. Perhaps I may make this point: These Ministers of State can do a lot of things. It is very important that the Scottish Executive should know who they are, and when they receive a letter they know that the person is authorised to give the necessary instructions or specification, or whatever it may be. In the interpretation clause of the Bill it says only this—and it is a very limited statement— Minister of the Crown includes the Treasury". I thought for a minute that that was a misstatement for a "member of the Treasury". Your Lordships may or may not know that the number of people attached to the Treasury is 27 in number. It starts with the Lord High Treasurer, Mr. Callaghan, and ends with the Baroness Stedman. In between there are 25 other people. But I do not think that is what is intended by "a Minister of the Crown", with great respect to the noble Baroness.

I then turned to the Interpretation Act 1889 and there found that the Treasury includes the Lord High Treasurer and the Commissioners of Her Majesty's Treasury. I think it is common knowledge that the Commissioners of Her Majesty's Treasury are now the Whips in the other place, and I do not think they are the people intended to be covered. I must be quite clear here. I do not really mind what the noble and learned Lord puts in, so long as it is clear to the Executive what he means.

I suggested the Secretary of State. Secretaries of State are odd people: they are rather like the Holy Trinity. Three in One, but actually they are 15 in one—15 Secretaries of State. That covers almost everything that is likely to be required of a Minister of State. I think it is true that you might require to add the Minister of Agriculture. the Chancellor of the Exchequer and perhaps the Lord Privy Seal, but all I am asking the noble and learned Lord —or whoever is going to reply—is, can we please have in the interpretation clause a perfectly clear statement as to who is and who is not a Minister of the Crown? Any of these people, for example the noble Baroness, Lady Stedman, could get up in the morning and say, "I wish to notify to the Scottish Executive so and so. Signed, Minister of the Crown". That is a legal document which the Scottish Executive would have to carry out. That is as the Bill is printed. I am asking the very simple question: Will the noble and learned Lord please specify precisely what is meant by a "Minister of the Crown?" That is all I am asking, and I really think this is essential for the ordinary operation of this Act. I beg to move.

10.7 p.m.

Baroness STEDMAN

I am delighted to be informed that I am holding up 26 other people in the Treasury. I certainly did not realise that I had quite that strength. The term "Minister of the Crown" is much wider than the term "Secretary of State". Most ministerial functions today are vested in a holder of the office of Secretary of State—an office which, as the Committee will know, is one and indivisible. But there is still a residue of functions which are left with office holders who are styled Ministers. We have a Minister for Agriculture, Fisheries and Food, we have a Minister for the Civil Service. We also have Departments which technically lack a ministerial head. The only one of relevance for present purposes is the Treasury, which Clause 77(1), when we come to it, will bring within the definition of "Minister of the Crown".

In the context of any transfer of ministerial functions, the invariable practice is to refer to the functions of Ministers. The terms of the Ministers of the Crown Act 1975, under which ordinary transfers are effected, will confirm this. It would be wrong if this present Bill, with its vast sweep of functions, proceeded any differently from that Act. Indeed, Clause 20(3), to which Clause 20 (11) is subordinate, itself refers to the powers of a Minister of the Crown.

But it is really much more than a drafting point. If the Bill transferred only functions vested in a Secretary of State it would not transfer any functions vested in other Ministers or in the Treasury. Certainly the bulk of the functions affected by Clause 20 are vested in a Secretary of State, and most importantly (though not exclusively) in the Secretary of State for Scotland. There are other ministerial functions involved as well. It is the Government's considered intention to transfer these, but the whole of the Bill assumes that the other ministerial functions are to be transferred, so this Amendment would put the rest of the Bill from Clause 20(3) onwards completely out of joint. We think it is misconceived but, if the noble Earl would like me to take it back to the officials and have another look at it to see if we can get something in the interpretation part, then we shall do that.

The Earl of SELKIRK

I must say I think the reply of the noble Baroness is totally misconceived, partly because I mentioned all the points which she mentioned herself. I knew that the Secretary of State did not cover everything; I mentioned the Minister of Agriculture, I mentioned the Chancellor of the Exchequer, I mentioned the Lord Privy Seal, meaning the Minister for the Civil Service. I mentioned all those points. What I am asking for—and she made no attempt to answer—was specification of what was wanted. She told me that a Minister of the Crown was wider than a Secretary of State. Did the noble Baroness think I did not know that? Does she really think that everyone in this House does not know that? Of course they know that, but I am suggesting that we should specify who is meant.

The noble Baroness is not just being obstinate, surely. This is really a sensible proposition. There is no political point here. This is really something to improve the Bill. Can the Government really not think again on any known subject? I do not want to be too forceful, but really this is a simple improvement which everyone in this Committee really wants. Can I ask the noble Baroness to think again?

Baroness STEDMAN

I did say that I would take it back and consult with my officials to see whether we could include something in the interpretative part of it.

The Earl of SELKIRK

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 20 shall stand part of the Bill?

10.11 p.m.


I should like to speak briefly on this because we must register at this point the fact that we believe that one of the grave defects in the Bill is that it does result in two Executives, in a way which brings them into conflict, we believe unnecessarily. As drafted, the Bill is hound to create inevitable clashes. It could be likened to the promotion of a boxing match; the Bill provides the ring, the ropes, the gloves and the seconds. And if there were to be a Conservative Government at Westminster and a Labour majority in Edinburgh it could indeed he said: "In the red corner" and "In the blue corner". The difficulties do not arise simply from different Parties in power at Westminster and Edinburgh, or different policies. It is the way in which the Executive is being created that means that it and the Secretary of State are being placed in an arena, and the rules are being drawn in such a way that they are almost being put in as gladiators to fight each other. There is bound to be continuous friction.

The main reason for this is that the second Executive, the one which we are discussing in the Bill, is to be formed from an Assembly with legislative powers. We are used to an executive in local government, and of course there are differences of opinion and arguments between central Government and local government, but these are nothing to the clashes that can occur under the terms of this Bill where the second Executive comes from an Assembly with legislative powers. It can initiate and pass laws as well as the Parliament at Westminster.

We believe that it would have been better to have one Executive, perhaps based on the Secretary of State for Scotland, in a new form, and that Executive being answerable to the Assembly and carrying out various duties in relation to the Assembly. There would then have been differences of opinion, no doubt, in the Assembly, the kind of differences of opinion between that Front Bench and Members in the Chamber, but there would not have been clashes between two Executives and a great amount of time spent on how they may be settled.

There is less being devolved to the Assembly than is already devolved administratively to the Secretary of State for Scotland. He and his Ministers and Departments in Edinburgh are now covering a considerably wider field than is to be devolved, under Schedule 10, to the new Assembly and its Executive. So the Secretary of State for Scotland is being left with some of his present functions, and he also is being given supervisory and veto functions over the Scottish Executive, though the situations in which those can be used, and how his powers are to be used, are still not clear. Some of them are still to be discussed in later clauses.

An Assembly does not need to have an Executive within it, and I give the example of the United States Congress. No one can say that the United States Congress lacks muscle, but it has no Executive within it. It has an inquisitorial role besides its legislative function. Therefore, it certainly is not necessary to have a second Executive within an Assembly. So I must register at this point that we think that by deciding to have two Executives the Government have made the problem much more difficult.

The other point that I should like to raise on the question, Whether the clause shall stand part?, because it has not come up yet, is the role and nature of the assistants. We have talked about the Scottish Secretaries. Assistants are to be appointed under subsection (4)(b). Those assistants must be Members of the Assembly, but otherwise we know very little about them. Again, we do not know how many of them there are to be, and we should be grateful if the Government could tell us what kind of animal they will be. Are they to be the equivalent of junior Ministers? Are they to be, therefore, part of the Executive themselves or are they to be more in the nature of Parliamentary Private Secretaries—PPSs as we know them—that is to say, not part of the Executive but working personally and individually for Scottish Secretaries? At present, there is absolutely no clue in the Bill about the role of the assistants.

10.17 p.m.


I should just like to say a general word, having listened to a few general words from the noble Lord, Lord Campbell of Croy. First of all, he has chosen, in a series of mixed metaphors, to use what I must characterise as quite extravagant language about the possibilities of conflict. He has spoken about rings, gloves, gladiators and conflicts. I can only say that I regard that as extravagant. If one looks at the debates on matters of detail I do not think that that is the kind of situation which one can reasonably expect to obtain in Scotland post-devolution or, indeed, between the Assembly, on the one hand, and this Executive and the Administration at Westminster, on the other.

I am grateful to the noble Lord for giving us a tantalising glimpse of Conservative thinking upon how these matters might work, but the kind of scheme that he is talking about, however commendable on its merits, has nothing whatever to do with the scheme of devolution envisaged in this Bill. Therefore, it may be a pity, as he suggests, but the scheme of devolution in this Bill is entirely different from the kind of scheme that the noble Lord was talking about. I do not think that he seriously suggests that we could take out this clause, as it stands, and write in an entirely different scheme that would not wreck the scheme of devolution contained in the Bill.

As regards assistants, once again I come back to the point that I made earlier. The Assembly surely will decide for itself what role the assistants ought to have. It holds the purse strings under Clause 31. It may be that assistants will not be needed in any great numbers. It may be that one will suffice. It may be that two will suffice. It may be that only the First Secretary will require an assistant—one just does not know. We cannot judge at present. Apart from anything else, as noble Lords will concede, we do not really know the final shape of Schedule 10 and Schedule 11 because they are matters yet for debate. It may well be that there will be Amendments to add parts to these Schedules, and it may well be that there will be successful Amendments to remove parts of the Schedules.

It is only when one has the final scheme and when the Assembly meets for the first time and when the Executive meets for the first time to consider what its remit truly is and what its responsibilities really are, that it will be possible to decide how many assistants there will be; whether they will be paid more than ordinary Assembly Members, and if so how much; and what their functions will be. We are merely trying to provide them with the opportunities and sufficient flexibility to decide what they can best do in the light of the task that faces them.


The noble and learned Lord is saying in effect that this is an enabling Bill, and no doubt it is. However, what has been worrying us, and what causes me to respond unsympathetically to his jibes at my noble friend for extravagant language, is that he seems to dismiss altogether the possibility, let alone the likelihood, of serious tension between the Executive in Edinburgh and the Executive here in London.

With very great respect to the noble and learned Lord—and as the Committee stage continues, I am sure that he will become more and more attuned to the mood of the Committee—if the rather rough way of dismissing interventions because they use picturesque language (the noble and learned Lord called it "exaggerated") is repeated, it will tend to alienate the sympathy which we all feel for the unfortunate Ministers who have to pilot this very difficult and muddled Bill through. That happened last night when the noble Lord from the Highlands raised a perfectly legitimate, though wide, point on the Amendment, although it was no wider than the noble and learned Lord had been earlier. I should not have thought that my noble friend Lord Campbell of Croy was one who gives way to exaggerated language. If noble Lords have ever heard him on a public platform, they will know that he is so dull that he sends everyone to sleep. But to jibe in that sort of way at serious, well-intentioned interventions from this side will not hasten the passage of the Bill or encourage sympathy and constructive contributions to it.

I am trying to say in the nicest possible way that we have had one or two instances of exaggerated reaction from the noble and learned Lord opposite. I am sure that as time goes on he will find that this is a friendly place; that we are happy to forget the past; that we look forward to the future; and that as time goes on we look forward to more of his interventions with the greatest good humour.


In the course of Clause 20 we have discussed at some length the future of the Civil Service in Scotland. Are the Government able to say to what extent those civil servants who will be administering or dealing with devolved subjects in future will be bound by the Official Secrets Act? There is a considerable body of feeling, both in Parliament and outside, which holds that far too many of the operations of Government are cloaked in secrecy. As has been pointed out, there will be a very considerable reorganisation, so will there be an opportunity for diminishing the number of non-secret areas that are covered by the Act? I apologise for not having given prior notice of this question. If either the noble and learned Lord, Lord McCluskey, or the noble Baroness, Lady Stedman, would prefer to write to me on this matter, I shall be entirely satisfied.


That is most kind of the noble Lord, and at this hour of the night I shall gladly accept that invitation.

Clause 20 agreed to.

The DEPUTY CHAIRMAN of COMMITTEES (Viscount Hood): The next Amendment is No. 249 standing in the name of the Lord Chancellor.

10.23 p.m.

Baroness STEDMAN moved Amendment No. 249:

Divide Clause 20 into two clauses, the first consisting of subsections (1) and (2) and (4) to (10) and the second consisting of subsections (3) and (11).
The noble Baroness said

That was a rapid promotion from the bottom of the Treasury list up to the Lord Chancellor. This Amendment is merely a drafting Amendment to split the present clause into two. The first clause will consist of subsections (1) and (2) and (4) to (10), all of which relate to the constitution of the Scottish Executive. The second clause will consist of subsections (3) and (11), which relate to the powers of the Scottish Executive. We commend this to the Committee as a more orderly and logical presentation of the material in the clause. We think that the importance of that material justifies the care taken, and the result ought to help the reader. I hope that this is non-contentious.

The Earl of SELKIRK

I should like to make the observation that it is non-contentious, but we shall need an Amendment to subsection (9).


On a point of pure information, may I ask whether the necessary Amendments are automatically made before the next stage?

Baroness STEDMAN

Yes, they are.

On Question, Amendment agreed to.

Clause 21 [Subordinate instruments]:

10.25 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 103: Page 10, line 8, after ("is") insert ("exclusively").

The noble Viscount said: Before I embark on this Amendment, may I say that it is now clear that the noble Baroness is a Minister of the Crown, she having moved that last Amendment. I have not made any secret of the fact that I consider there to he too much subordinate legislation. The purpose of this Amendment is to find out from the noble and learned Lord, Lord McCluskey, whether, as a result of the way in which we have the Bill drafted at the moment, we are likely to have subordinate legislation affecting subjects who live in England and Wales, emanating both from English and Welsh Ministers and from the Scottish Secretaries, both on the same subject and not necessarily compatible with each other. As the clause is drafted I think that this is possible.

If I can take the noble and learned Lord through my reasoning, he will be able to tell me whether I am right or not. I am sorry it is so difficult, but this is the complexity of the Bill. The picture is that the Scottish Secretary is going to be able to pick up the powers to make subordinate legislation which already exist under United Kingdom legislation on the Statute Book. I expect that he will continue to be able to do so if United Kingdom legislation is so passed in the future. Of course there are limitations on what he can do, because under the two subsections first of all the power under which he will act has to be exercisable as regards Scotland, but not solely as regards Scotland because it does not say so, and secondly it has to be exercisable exclusively in regard to a devolved matter. What is a devolved matter? One looks at Clause 59(3). In relation to the powers and duties of a Scottish Secretary, a devolved matter is"? among other things, and do not let us be too complicated, any matter included in the Groups in Part of Schedule 10 to this Act". One looks at Schedule 10. to Schedule 10 is: Matters within legislative Assembly, and within powers of Scottish Executive. That is the main cross-heading then it says: The groups of devolved matters". If it has to he within the legislative competence of the Assembly, that means that one has to look at Schedule 2, because that is the definition of what is within the legislative competence of the Assembly.

When one looks at Schedule 2 an old friend immediately springs out to greet one, which is paragraph 8. Paragraph 8 of Schedule 2 makes it plain that although in the case of anything that is within the legislative competence it must primarily concern Scotland, it does not have exclusively to do so, because if there is some consequential cross-Border implication—and in my mind I always think of this in terms of enforcement of court orders, or something of that sort, which could easily be a proper provision dealt with under paragraph 8—you can have, under that chain of reasoning, a power exercisable as regards Scotland in terms of Clause 21(1)(a), and exercisable exclusively with regard to a devolved matter, which still, lo and behold!, affects the citizens of England and Wales by means not of primary but, Heaven forfend, of secondary legislation.

The fact that the Scottish Secretary is able to use the powers under United Kingdom legislation to make subordinate Instruments which affect not only Scottish citizens but also those who live in England, does not prevent the requisite Minister south of the Border from also making Statutory Instruments affecting the same people who live in England and Wales. If they both of them exercise these powers, and do so in a way which is incompatible the one with the other, there is nothing that the Secretary of State for Scotland can do to curb the exercise of these powers by the Scottish Secretary. If one looks at Clause 37, which is the only power I can find in the Bill which enables the Secretary of State to deal with subordinate Instruments made by the Scottish Secretary, he can only interfere and revoke the Instrument if it affects a reserved matter, whether directly or indirectly.

If one then looks at the definition of a reserved matter—nothing is ever straightforward in this Bill; it is not in Clause 37 but in Clause 36—one finds that it concerns Scotland but it is something in respect of which a Scottish Secretary has no power to act. We have already discovered that he did have power to act because it is given to him by paragraph 8 of Schedule 2 via Schedule 10 via Clause 59 and hack again to Clause 21(1)(b). So the Secretary of State cannot veto the matter under Clause 37; and therefore we have two separate Legislatures which do not agree with each other passing subordinate legislation affecting the citizens of England and Wales (incidentally in the case of Scotland but intentionally in the case of the English and Welsh Minister).

That cannot be a very satisfactory situation, and I shall explain why. First, I defy anybody who lives in England or Wales to find out what Statutory Instruments affecting him are made in the course of a year; they comprise about five volumes and they occupy about 1 ft. 6 in. of a shelf, and that happens every year. In addition, he is supposed to know or know where to find, and then find his way about, the subordinate Instruments made by the Scottish Assembly, and they will probably not be available in England and Wales anyway because no library will buy them. Before we pass the clause in this form, if I have it right, we should think again. "Exclusively" would stop all that because the Scottish Secretary would not be able to do anything by way of subordinate Instrument south of the Border.

10.31 p.m.


I acknowledge the accuracy of the noble Viscount's analysis of the matter and the only words to which I should perhaps additionally draw attention are "to the extent that", and accordingly, reading the matter short: Where … under any Act passed before this Act, any power to make … regulations … is conferred on a Minister of the Crown, then, to the extent that … the power is exercisable as regards Scotland … it shall be exercisable by a Scottish Secretary", I would found on those words as really achieving what I think the noble Viscount had in mind to achieve by inserting the word "exclusively", and I would like him to consider that answer.

I also acknowledge that, following the matter as he rightly did, we come to paragraph 2 of Schedule 8 and on that, as I acknowledged the other day in his absence, the Amendments which he and the noble Earl, Lord Mansfield, tabled drew our attention to the need for a reconsideration of the terms of Clause 35.

This of course relates to override in respect of primary legislation but does not, as does Clause 37 along with Clause 36, in so far as is necessary, deal with override in respect of Executive acts.

At the conclusion of that debate I informed the Committee that we would look at the wording of paragraph 2 of Schedule 2 and I informed the Committee also that the Government would move an Amendment to Clause 35. Plainly, I will give consideration to the matters that have been mentioned tonight and, if the noble Viscount does not feel that his point is met by the words "to the extent that", then that will intensify my probing into this matter to make quite sure that it is not possible to produce the kind of situation which horrifies him and would horrify us.


The noble and learned Lord is very generous and helpful. I do not think that I would be satisfied with the reliance which he has placed on the words "to the extent that", because the Bill then goes on to set out the extent, and the extent plainly comprises paragraph 8 of Schedule 2, as that must be spelt into the general scheme of the devolved matter which is within the extent of the jurisdiction of the Scottish Secretary to make subordinate Instruments. Therefore, however much he may try to cut it down by reliance on those words, I think that he makes it perfectly plain, in saying "to the extent that", that, after a long chain of reasoning, one is to be allowed, if one is a Scottish Secretary, to rely upon Schedule 8. One can affect, by way of a subordinate Instrument, the rights and duties of people south of the Border.

I do not want to say any more than that. I know that this matter has been discussed before; I have read what was said. I do not think that the Amendment to Clause 35 will cover anything to do with subordinate Instruments, and that is why I did not want to deal with it by Amendments relating to Clause 35. I thought it better to attack it in Schedule 2 itself. Nevertheless, we shall look forward to what the Government produce on this question. I hope that they may take this point in.

From what the noble and learned Lord said, I believe that it would be better, on the whole, if the subordinate Instruments did not stray across the Border. If that is what the Government wish to achieve, then we are absolutely on all fours with each other, and I shall be happy indeed to await what the Government produce. Can the noble and learned Lord tell me whether that is what the Government want? Do they want to prevent clashing subordinate Instruments affecting people in England and Wales being made by two different legislative Assemblies?


The answer is, Yes—with a qualification. For example, if a Scottish Secretary wanted to make a subordinate Instrument under which a person could apply for a post, and he had to fulfil certain qualifications, of course these qualifications would be qualifications which had to be fulfilled by a person whatever his geographical situation. Accordingly, in that situation, the subordinate Instrument would be one which would have an effect outside Scotland. It would have an effect almost anyv, here, in fact. There is that kind of example.

Certainly, it is not the Government's intention that the Scottish Secretary should have power to make provisions by subordinate Instrument which would enable him to reach across the Border and impose punishments or enforce matters across the Border in the manner that the noble Viscount envisaged. I think that we are at one on the substance of this. I shall be happy to look at the matter in that light. Again, I am not promising to make any alteration, and I hope that the noble Viscount will also look at what has been said.


I am grateful to the noble and learned Lord. There is no difficulty about the first example, because the person applying for the post, whether he comes from Aberystwyth, Aberdeen, or some place in England beginning with A, or from anywhere overseas, will only be accepting a post within Scotland, and therefore there will be no difficulty. It was the second point that I wanted to establish. I ant very happy if that is what the Goverment want, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Baroness STEDMAN moved Amendment No. 250: Page 10, line 17, after ("by") insert ("or in pursuance of a resolution of").

The noble Baroness said: Again, this is a minor technical Amendment to correct the reference in Clause 21(2)(b) to Parliamentary procedure for the annulment or approval of a subordinate Instrument. The clause refers to annulment by either or both Houses of Parliament. That is too compressed to be accurate. What happens, under Section 5 of the Statutory Instruments Act 1946, is that either House can resolve that an Address be presented to Her Majesty praying that the Instrument he annulled, and Her Májesty may then, by Order in Council, revoke the Instrument. The clause should therefore refer to annulment in pursuance of a Resolution. This is what we hope the Amendment does. I beg to move.

On question, Amendment agreed to.

[Amendments Nos. 310 and 311 not moved.]

Clause 21, as amended, agreed to.

Schedule 3 agreed to.

Clause 22 [Powers exercisable with consent or concurrently]:

[Amendments Nos. 312 and 313 not moved.]

10.41 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 104: Page 11, line 41, leave out ("both") and insert ("only").

The noble Viscount said: I think that in discussing these Amendments—that is to say, Nos. 104 and 105—I am beginning to get on to the territory of my noble friend Lord Drumalbyn in Amendment No. 106; and since, for technical reasons, we have, as a result of this, got on to the provisions of Schedule 5 before the provisions of Schedule 4, it would probably be convenient if I also mentioned Amendment No. 109. I hasten to allay any fears which may arise among those on the Benches opposite when I bring up their beloved Community Land Act should any of the noble Lords opposite by any chance not fully have comprehended the niceties of their own legislation. I am using this only by way of illustration, and nobody need take the individual implications of Amendment No. 109 particularly seriously.

What I should like to know is how this is supposed to work. We shall come back in a moment to Schedule 4, because I should quite like to know how that is going to work as well; but Schedule 5 has a collection of provisions in it whereby the powers can be exercised, both by the Secretary of State and by a Scottish Secretary. I do not think I wish to insist particularly on the terms of Amendment No. 104 or Amendment No. 105 as they stand: it is simply that I want to know how the thing is supposed to work in practice.

Let us take, for the sake of argument—and solely for the sake of argument—Section 18 of the Community Land Act. This is one of the matters on which the Schedule says that powers are exercisable concurrently; but, unless the Amendment to be moved by my noble friend Lord Drumalbyn is accepted, the subsection which brings in Schedule 12 does not speak of anything being exercised concurrently but simply says that the power is exercisable both by the Secretary of State and by a Scottish Secretary.

We have been discussing conflict, and it seems to me that the Bill as it is at present arranged—and subsection (3) of Clause 22 is a good example—has a built-in possibility of conflict. The United Kingdom Secretary of State could choose to exercise his powers in one direction, whereas the Scottish Secretary of State could choose to exercise his powers in the opposite direction; and both of them could purport to do so in relation to Scotland.

Let us take the Community Land Act for a moment. Section 18 provides that the Secretary of State can, among many other things, designate the descriptions of relevant development in respect of which the order he is making is to apply. In other words, he can say that all industrial development falls within the Community Land Act. When he has designated that, one of the things that will happen is this: it is the duty of all authorities whose areas include land to which the order applies to arrange between themselves for all outstanding material interests in land (which means to say everybody's ownership of the land) which is needed for the purposes of the designated development to be acquired by one of those local authorities. So, once an order is made—this is only illustrative, I hasten to say—all the land brought forward for development for industrial purposes has to go through public ownership thereafter.

I do not think that it is any enormous secret that those of us who sit on this side of the Committee consider the Community Land Act to be a collection of unmitigated rubbish which is doing a great deal of harm, whereas it is the golden calf for those who sit opposite. I can envisage a situation whereby, if one has powers exercisable both by the Secretary of State in London in relation to Scotland among other places and, at the same time, by the Scottish Secretary in Edinburgh, the two could, if they did not belong to the same political Party, easily have different views about whether to designate or not. I believe, though I am not sure, that, if you designate under the Community Land Act, you may possibly be able also to de-designate. That is a possibility.

How is this supposed to work? Are they going to have powers so that they can act in conflict with each other, particularly on political grounds; or are they, in relation to Scotland, only to act concurrently, as the heading to the Schedule states, although the subsection does not? If they act only concurrently, is there not a conflict the other way round, in that the Scottish Secretary, as a Socialist, would like to bring in under Section 18 of the Community Land Act all land brought forward for industrial development, whereas the Secretary of State in London will have none of it—in which case the Scottish Secretary can do nothing at all? There is the veto power in London. How will it work? I do not understand it all at the moment. Whichever way it is done, whether it is to be done concurrently so that each has to agree, or is to be done by each of them individually so that they may do things which conflict with each other, we are bound to have the worst of both worlds. I shall await with enormous interest the explanation of this provision from the noble and learned Lord. I beg to move.

10.47 p.m.


I will confess to being a little confused because the noble Viscount, with an agility which I can only admire, in speaking to Amendment No. 104 has come to Amendment No. 109 and to the Community Land Act—words which I am sure will be found written on his heart. May I perhaps deal with the point he raised, which really relates to the possibility of conflict arising as a result of the provisions of this clause and Schedule 5 in relation to what he said with regard to the Community Land Act.

Let me explain what the Government thinking was for putting the provision in as it was, and then try to deal with the particular point of conflict that he envisaged. The Government believe that it is essential that the Community Land Act should apply uniformly as between England and Scotland and Wales since divergencies could lead to damaging economic and fiscal distortions. For that reason, the Bill confers no legislative competence in relation to the matters dealt with by that Act. The noble Viscount will accept that. This is secured, in any event, by the entry for the Act in Part III of Schedule 10Ȕin the second column on page 67.

However, the Bill equips the Scottish administration with what the 1975 White Paper describes as "substantial supervisory functions". These are set out in paragraph S of Group D in Schedule 11. The main object of the community land scheme is to restore to the community the increase in the value of land arising from its efforts. From the first appointed day under the 1975 Act, acquiring authorities have a general duty to have regard to the desirability of bringing land into public ownership and to buy land to make it available for development. Purchases will at that stage be made net of development land tax. Ministers will be able to make orders under Section 18, which is the section referred to, of the 1975 Act providing that land for specified forms of development or in specified areas must have passed through public ownership before development. When the coverage of such orders is complete, the second appointed day can be fixed. This will have the effect of changing the basis of compensation for land publicly acquired for new development from a market value basis to a current use value basis.

Because of the importance of ensuring that the scheme applies uniformly across Great Britain, devolution of ministerial powers under the 1975 Act has to be qualified in certain ways. It is envisaged that the making of Section 18 orders (to apply the scheme to specified areas or forms of development) will normally be the responsibility of the Scottish Administration. But until such orders are in force for the whole of Great Britain, the second appointed day cannot be fixed and the intended change in the statutory basis of compensation accomplished. It is for that reason that the Bill gives the Secretary of State concurrent power to make Section 18 orders; without such power (and the Amendment would deny it) the Scottish Adminstration could, if so minded, prevent the making of an order fixing the second appointed day by ensuring that the condition precedent—namely. full coverage of Section 18 orders —was not met.

The power to make the order fixing the second appointed day is not itself devolved: the Government must retain that power to ensure a common date for the whole of Great Britain for the change in the basis of compensation, which will, as I have indicated, have direct fiscal repercussions as well as wider economic implications. Because of the important part to be played by Section 18 orders in bringing the Community Land Act into complete operation the Government are not prepared to give up the right to exercise the Section 18 power on a concurrent basis.

I recognise that that explanation is not meeting the precise point that the noble Viscount has made, but it does afford the explanation as to the Government's attitude and why the provision is couched in the terms that it is. As I understand the noble Viscount, he is really envisaging the converse of that situation. He sees in Scotland a Scottish Secretary who is a member of the Labour Party, a member of a Labour Administration in Scotland, and he sees in London a Secretary of State of a Conservative persuasion. That seems to me to he a highly unlikely situation because, as I understand Conservative Party policy, what will be done on Day 2 of the next Conservative Government, should such a day ever arrive, will he that they will move the repeal of the Community Land Act. Accordingly, one would have thought it hardly likely that one would get a Scottish Administration going ahead with designations on the one hand, and a Conservative Secretary of State wanting to counter-designate on the other. The scenario which he has put before the Committee is not one I would consider very likely.

In that situation—the one in which the Scottish Executive are keen to have the second appointed day, and the Secretary of State is not keen to have the second appointed day arrive by completing all the designations—the Scottish Executive could use their powers to the full and no harm is done because of the terms of Section 18(1). The Secretary of State cannot fix a second appointed day until all the necessary orders have been made. By definition this has not been done, or he would not be all set for the second appointed day. I do not think that any question of overriding comes into the matter. I certainly cannot refer to it. I hope that the noble Viscount will consider that a sufficient answer to his concern. But if it is not, I have no doubt that, even at this late hour, he will let me know.


Before the noble and learned Lord sits down, he has not really answered my noble friend with that bit of smoke-screen about what might happen if a Conservative Government got into power. Surely the point at issue is not that, but this joint exercise of powers when you have different political persuasions: it does not matter which way round it is. My noble friend said he was choosing the Community Land Act purely as an example, but the point at issue is that if you have a Conservative Government either in Edinburgh or Westminster and a Labour Government at the other end, how can you have concurrent powers within the purposes of the Bill?

It seems to me it is going to lead to the most extraordinary clash of opinion and that really this whole section—one can see the point of it, because the noble and learned Lord spelt it out to us—seems a little unreal, as indeed do other things in the Bill. I really think the Government ought to give thought to this, with a very firm view in their minds: "How can this he applied when there is a difference of political persuasion between Edinburgh and Westminster?", and to read the entire situation from that point of view. If the noble and learned Lord would undertake to do that, I am sure it would satisfy us on this side; but without that I do not think it is reasonable.

10.57 p.m.


do not know whether the noble and learned Lord would wish to say more on this—it is getting a bit late—but the thing works the other way as well. Maybe he is right—pray Heaven he is!—and that the first thing the Conservatives would do is to repeal this legislation. But let us look at the possibility the other way round, of a Socialist Government in Westminster and a Party—it does not matter which Party—or a combination of Parties which do not approve of the Community Land Act, in Edinburgh. The United Kingdom Secretary of State has made my order under Section 18, designating industrial land in Scotland and in England, because of course they want to go hand in hand; and the Administration in Edinburgh uses its powers under Section 53(4) of the Community Land Act to revoke the order in relation to Scotland, because what that section says is this: An order made under any provision of this Act, other than an order under Section 7 appointing the first or second appointed day "— which is exactly what the noble and learned Lord has just been talking about? may be varied or revoked by a subsequent order so made". So when we have powers under Clause 18 written into this Bill, we have powers not only to make but to revoke orders, and there is a situation then which is exactly the other way round geographically and politically. There is hound to be a clash. I do not mind whether or not you choose this Act: I chose it only because I am familiar with it. But it illustrates all too plainly, as my noble friend Lord Mottistone has just said, that there is being built into the Bill as it stands—it does not matter which way round you put it—an inevitable clash on some political basis between two Legislatures.

I cannot avoid the suspicion that this is not something the Government wish to build in as an automatic consequence of their drafting, and that they must want to look at this again. I cannot help thinking that this is a constructive suggestion which has been made by my noble friend and that it is one which the noble and learned Lord will want to take up and look at again; and I am quite sure he will do so.


Might I ask whether it is not the case that what you are talking about really is the Parliament of Great Britain, because they are the superior power? If a Government come in, whether it be Labour or Tory, in the Westminster Parliament they either decide to work the legislation as it stands, or to repeal it. To that extent, it appears to me that the noble and learned Lord, Lord McCluskey, is right, that, whether it be Labour dealing with a Conservative Administration in Scotland or Conservatives dealing with a Labour Administration in Scotland, the superior body must either work it or repeal it. So it appears to a layman that the noble and learned Lord, Lord McCluskey, is right.


do not think so, while you have concurrent powers. Both Secretaries of State can operate this legislation. They are specifically given power to operate this legislation. As it stands at the moment, they can operate it at the same time and in the opposite direction, on both sides of the Border. I believe that that is the way that it works at the moment, and I cannot believe that that is right.

The Earl of SELKIRK

May I ask one question? The same kind of example is in Schedule 5, with the Historic Buildings and Ancient Monuments Act 1953. There is a concurrent operation, because this is a devolved subject. I do not know how these things are worked. What does it mean? If a subject is devolved, how can you operate concurrently on part of it?

11.2 p.m.


I should not have confined myself to the Community Land Act, because if there is one instance where one can make out a case for suggesting that there could, in conceivable circumstances, he real conflict and the possibility of a kind of designation and counter-designation ping-pong going on, I suppose that that is it. But may I make the general point, because the noble Lord, Lord Mottistone, drew attention to the general point, as did the noble Lord, Lord Mackie.

In the main, powers are to he wholly devolved or wholly reserved. But the enactments which appear in Schedule 5 contain special features which make it necessary that they should be available for use by both the Secretary of State and the Scottish Secretary, to enable them to carry out their respective functions. So by means of Clause 22 and Schedule 5, the powers contained in the listed enactments can be exercised by either a Minister of the Crown or a Scottish Secretary: and, indeed, there is nothing to prevent them, if they so desire, from using the powers in association as part of a joint exercise.

For example, a Scottish Secretary, to take a less contentious example, will need access to Sections 75(1)(b) and 75(3)(f) of the Criminal Justice (Scotland) Act 1949, so that he can authorise expenditure nn certain aspects of criminal research as part of his wide-ranging responsibilities for crime, being dealt with in Group 26 on page 50, in Schedule 10. But the Secretary of State, on the other hand, will remain responsible for the police and for some crimes—for example, in relation to drugs, and he may wish to carry out research pertaining to his responsibilities. Another example, which, again, is not as contentious as the Community Land Act, is Section 78 of the Agriculture Act 1947, which is concerned with obtaining agricultural statistics, which would be relevant to both devolved and reserved agricultural functions, and thus of interest to both the Secretary of State and a Scottish Secretary.

Technically, there is nothing in the terms of the Bill to prevent a Scottish Secretary from using his powers under the enactments concerned within reserved areas, or the Secretary of State from using his within devolved areas. That is what the noble Viscount hones on to as a source of possible trouble. This is so because of the difficulties of devising and drafting a scheme which would, in all circumstances, prohibit the one from acting within the other's area of responsibility. Accordingly, the noble Viscount claims that the two gentlemen—the Secretary of State on the one hand, and the Scottish Secretary on the other—could take conflicting decisions in relation to the powers in Schedule 5.

The Government do not share this view. In practice, they believe that concurrent powers will be operated by Scottish Secretaries in respect of devolved matters, and by the Secretary of State in respect of reserved matters, using the same powers but for different purposes. The Government believe that, in the normal situation, there will be reasonable co-operation between the Scottish Executive and the Government. Subject to leaving aside the Community Land Act, which I have sought to deal with, the powers concerned are not ones which are likely to lead to conflict. I do not know whether that view would be challenged in the light of the other enactments referred to in Schedule 5. Most of them are concerned with the provision of funds for certain activities, and T have given the example of research.

Unless the movers of the Amendment are suggesting that either the Government, on the one hand, or the Executive, on the other, will be prepared unnecessarily to spend both effort and money just to cause difficulties for each other, I think there is no real substance in the point—subject again to saying that the Community Land Act is a matter which I should certainly like to look at in the light of the observations which have been made.

The Earl of SELKIRK

The Bill says that any power may be exercised both by the Secretary of State and by a Scottish Secretary. Does that mean by either?


In this context—I think the noble Viscount will not disagree with me—it means "both" or either


I agree.

The Earl of SELKIRK

I did not get that. Do they act concurrently or separately?


In this context, the word "both" on page 11 means that power may be exercised by either of them or by both of them. So they may act together in the kind of instance which I mentioned a moment ago, or one of them may act, or the other of them may act. These are powers which they share. They can act together in harmony and exercise these powers together or either of them can exercise the powers independently of the other. It is the possibility of independent action upon which the noble Viscount has focused because that, he says, is the area where conflict might arise.


And what happens if one does the one thing and the other the other thing?


That is what I was saying.


What you are saying does not make any sense at all.


If I may address myself to the Committee, what I am saying to the Committee is that the Statutes which are named in the Schedule are concerned, as I have said, with the provision of funds and that kind of thing. One does not foresee the possibility of conflict there. That is always subject to the fact that if one saw the words "Community Land Act 1975" one would have to be insane to say that there is no possibility of conflict. I think it would be resolved, in the situation which the noble Viscount envisaged in opening, in the way that I contemplated, should the unhappy day arrive when his Part forms a Government at Westminster.


As it stands, the two Government Ministers in London and in Edinburgh can act together in unison. They can act individually, each in the same direction, or they can act individually in conflict with each other. That is the way in which this works.


Or the one or the other can act.


Yes. They can act individually but in conflict with each other. Those are the three possibilities. Although we are now looking at the provisions which are contained in Schedule 5, in future legislation there is nothing whatever to stop the draftsmen from adding to Schedule 5. And I bet they will. As legislation comes before the Westminster Parliament in future years, they will find reasons why that Schedule will have to be added to. It is not, therefore, safe to leave the scheme upon thebasis of the things contained in the Bill. I have illustrated this point well enough—it must be something which causes us concern, and I believe that we must all think about it. Therefore I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

[Amendment No. 105 not moved.]

11.9 p.m.

Lord DRUMALBYN had given Notice of his intention to move Amendment No. 106: Page 11, line 42, at end insert ("acting concurrently").

The noble Lord said

We have gone over the points concerned to a quite considerable extent today, so I have little to add in relation to this Amendment. The closing remarks of my noble friend Lord Colville of Culross have made clear the different ways in which this can work. My Amendment was designed to add the words "acting concurrently" in relation to the Secretary of State and a Scottish Secretary. However, concurrent action can, curiously enough, mean several things. It is used in this one clause in different senses. "Acting concurrently" can mean acting with the knowledge and consent of each other. It can mean actually sharing the work. But in a more constitutional sense it means that each has the power to do the same thing.

What attracted my attention particularly (I should like to go into this at greater length at a later time) was the effect of this on the Local Employment Act of 1972, which I had something to do with at an earlier date. It seems to me that this is a case where one would get into a lot of trouble in the making of grants and loans for services if you had two Ministers, one a Minister of the Crown and the other a Scottish Secretary, working in the same field at the same time without actually working in combination. The term "acting concurrently" clearly could be interpreted as meaning acting in combination, but from what has been said I do not think that that is what is meant by the clause. This was proposed to he purely explanatory and I rather think it would only work if the grants and loans were co-ordinated throughout, and I doubt whether that will be done.

It might be convenient if the noble and learned Lord will consider this matter between now and the time when we take Schedule 5, because I think we could get to the meat of it more easily by discussing it on Schedule 5. I wonder whether the noble and learned Lord would agree to that?


I certainly feel, in view of the lateness of the hour, that that offer would be most welcome. We can certainly discuss the matter and I hope I can satisfy the noble Lord when we come to the Question, Whether Schedule 5 shall be the fifth Schedule to the Bill? I shall be happy to agree to that course and perhaps we need not pursue the matter further tonight.

Clause 22 agreed to.


This may be a convenient moment to halt the Committee.


Is it just possible for me to ask for a quick explanation on Schedule 4—or Schedule 3?


We have not reached Schedule 4 yet. I was proposing to ask the House to resume after this Amendment because we have now reached the agreed time.


Then the noble Lord will excuse me from moving the Amendments because I cannot be here on Monday.


I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.