§ 3 p.m.
§ The Lord CHANCELLOR (Lord Elwyn-Jones)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, that the House do now again resolve itself into Committee.—(The Lord Chancellor).
§ On Question, Motion agreed to.312
§ House in Committee accordingly.
§ [Lord Greenwood of Rossendale in the Chair.]
§ Clause 77 [Interpretation]:
The Earl of SELKIRK moved Amendment No. 230:
Page 36, leave out line 21.
The noble Earl said: We are now dealing with the interpretation clause of the Bill. The line which I have in mind reads:
'financial year' means a year ending with 31st March".
May I ask whether it is desirable to settle by Statute the financial year of the Scottish Assembly? Indeed, I wonder whether any organisation has its financial year established by Statute. We have had one or two lectures from the Government Front Bench upon the subject of apron strings. This is very much of an apron string. The Government are telling the Assembly by Statute that they cannot even decide what their financial year is to be, and this seems to me to be going further than is strictly necessary. May I ask the noble Lord whether or not this is essentially a matter which should be dealt with by consultation in order to reach a common sense agreement between the Secretary of State and the Assembly? This seems to me to be the obvious way to deal with it.
§ There is, I suggest, a wider consideration. We had a debate on an Amendment as to whether we in the United Kingdom could change our financial year. Surprisingly interesting arguments were adduced for settling the calendar year as the financial year instead of the 31st March or the 5th April. However, this is not likely to happen. The weight of conservative determination to continue in the same way renders unlikely that possibility. What is much more important, however, is this. We have based the block grant for Scotland on expenditure. It might well happen—although I do not know whether it will—that we want the financial year in Scotland to be completed before bringing these considerations into this country's Budget. Therefore, it might be as well for the Scottish Assembly's financial year to end on 1st January. Alternatively, it might be more advantageous to Scotland to know what their 313 block grant will be before they begin their financial year. In other words, it might be to their advantage that their financial year should start on 1st September.
§ I am not saying that this will happen, nor am I saying that the proposal in the Bill is wrong. I am asking whether it is wise to lay this down by Statute rather than to arrange it by consultation. If we cannot arrange it by consultation, then there are many other matters which will prove to be very difficult indeed to decide by the normal methods of consideration and consultation. It seems to me to be quite reasonable that this matter should not be laid down by Statute but should be settled by discussion and agreement between the Scottish Executive and the Secretary of State. I think that we should allow the Scottish Assembly a reasonable measure of freedom to make alterations which they believe to be wise in the circumstances. I beg to move.
§ The MINISTER of STATE, SCOTTISH OFFICE (Lord Kirkhill)
The term "financial year" is defined in the Bill so that the Scottish Assembly and Executive operate on the same financial year as do Government; namely, the year ended 31st March, as the noble Earl has just been telling us. If the noble Earl's Amendment were to be carried, the Scottish Administration could adopt a different financial year from that of the Government, or it could legislate to enable local authority financial years to vary from the Government's and the Assembly's and, indeed, one another's. I should not have thought that that would be a desirable outcome. It would obviously be a source of much confusion.
If the Assembly were to adopt a financial year different from that of the Government, difficulty could arise on various counts. First, after devolution it will still be necessary to embrace the expenditure plans for devolved services in the public expenditure survey conducted annually by the Government on a rolling, five-year basis. Accordingly, it will be essential, for the purpose of the public expenditure survey, that the Scottish Administration's spending proposals are expressed at that stage in terms of financial years ending on 31st March—indeed, exactly the opposite point to that which the noble Earl has 314 just been making. May I point out to the noble Earl that no matter how the Scottish Administration may subsequently choose to set out its accounts, these cannot be in terms of a different period.
There is one other point that I should make in order to help your Lordships' Committee. It is necessary for the financial year of local authorities to be the same as that of the Scottish Administration and, indeed, of the Government. That argument was settled at the time of the last Government reorganisation, and I would refer noble Lords to Section 18 of the Local Government (Scotland) Act 1975 which amends Section 96(5) of the Local Government (Scotland) Act 1973. It is fair to say to your Lordships' Committee that all Scottish local authorities now work to the financial year ending 31st March. This seems to me to be consistent. We shall have an Assembly whose financial year ends on 31st March and a Government whose financial year ends on 31st March, and the local authorities will also end their financial year on that date. I should have thought that that was a perfectly reasonable point to write into the Bill.
§ Lord TANLAW
Could the noble Lord, Lord Kirkhill, clarify one point? It is most unlikely in reality that figures will be available when the financial year ends on 31st March; they will be available only six or nine months later. May I ask the noble Lord to enlighten me as to whether or not Assemblymen will be able to have a form of running cash flow balance to make sure that their running expenditure is in keeping with a form of budget, which presumably they will have to forecast year by year? Otherwise they will not be able to see how clever they have been at keeping within that budget until possibly nine or even twelve months after the accounts have been closed.
§ Lord KIRKHILL
If I may give a very quick résumé of the current situation, the Secretary of State for Scotland meets at present on a thrice-yearly basis with the Convention of Scottish Local Authorities to discuss on-going programmes—usually the five-year public expenditure on-going programme and the year-to-year budget out-turn of the local authorities concerned. When the devolved Administration gets under way, it will immediately have to 315 engage in that kind of consultation with the Convention of Scottish Local Authorities. Indeed, that point is made in the Bill. On the question as to whether there will be an immediate financial submission, my answer is, Yes. I cannot recall the section of the Bill which indicates it, but I will check the point and let the noble Lord know.
The Earl of SELKIRK
This means that the Assembly will be treated in the same way as local authorities. I should have thought that that was a pity. I am not arguing about whether the date 31st March is desirable. I am saying that the Assembly should be free to make up its own mind about what date is desirable. This is why I believe that a statutory statement is not the best way to handle this. If, however, the noble Lord wants to put in the 31st March, I am not going to press my Amendment. Nevertheless, I cannot believe that this is a matter which needs to be dealt with by Statute; it is one which ought properly be left to the Assembly to decide, after consultation with the Secretary of State. However, I shall not press the matter any further. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 3.9 p.m.
The Earl of SELKIRK moved Amendment No. 359:
Page 36, line 28, leave out ("includes the Treasury;") and insert ("means a Minister in charge of a public Department of Her Majesty's Government in the United Kingdom;")
§ The noble Earl said: I raised this matter before, and I should like to ask the Government to look at it again. The words I have put down here I take from the Ministerial and Other Salaries Act 1975, Schedule 1, Part II, paragraph 2. One notices in the Bill that all kinds of things can be notified, specified and done by Ministers of the Crown. If noble Lords want to know, I believe that there is authority to create no fewer than 171 Ministers of the Crown. The Prime Minister, with proper modesty, has created only 108.
§ On the Bill as it stands, any one of those 108 Ministers of the Crown can do certain things and, so far as I can see in the Bill, 316 when they have given—whatever the action is—notification to the Assembly, that is complete in itself. When they get a notification signed by the Minister of the Crown that is authority for the Assembly to take action. I do not think that is what the Government mean. Frankly, the Minister who can do that is the Minister who has powers to do so, but there is nothing to say that in the Bill itself. The Scottish Assembly would be perfectly entitled to take any document signed by a Minister of the Crown as authority for taking action, but I do not think that is what is intended. I think it is intended to be an authoritative document only on behalf of the Departments which are authorised.
§ Is it the intention that the Scottish Assembly should have to look at the authority of any Minister who makes a notification or uses his powers, or are they content to look at the statement in this Bill itself? This may be quite satisfactory when dealing with one Government Department in London because there the boundaries of departmental authority are very closely guarded and are known and if anyone steps over them there will be an immediate row; jealousy will be aroused.
§ This is an entirely separate organisation; this is not part of the Whitehall set-up and where they have authority there is a great deal of authority delegated and very woolly language used without any specific statement as to what authoriy they need. I think it would enhance the Bill to make it fairly clear that it is only on the authority of the Departments that this can be carried out; it is only by the authority of the official statement from the Department itself, possibly with a department seal, that authority is gained. This does not in any way detract from the Bill; it makes it just a little clearer.
§ What I wish to ask is this: is it necessary in each case for the Scottish Executive to look up and examine the authority—generally by Orders in Council—which any Minister has for making an order of any kind in this Bill before they accept it? I think that is unnecessary but if it is necessary the Bill should say so. It would be easier for the Scottish Assembly to see where they have their duties and where they do not. The Bill as it stands is much too vague on this point. I beg to move.317
§ Lord SHINWELL
It appears to me that there is something to be said for this proposition because the preceding clause contains a number of definitions—what this means and what that means; but when it comes to "Minister of the Crown" there is no definition but an inclusion. I cannot understand the reason for this. Is it a matter of drafting? If it is, it should be corrected. It seems to me that the proposition to define what is meant by a "Minister of the Crown" is quite appropriate. After all, if no other reference is made to definitions I could understand it. To make a special case of the Treasury, that the Treasury should be included among "Ministers of the Crown" I can understand; but there are so many definitions in the preceding clause that it seems to me to be quite appropriate to define what is meant by a "Minister of the Crown", and that is what the noble Earl is proposing. I support him in that.
§ 3.14 p.m.
§ Baroness STEDMAN
On the earlier occasion we were indeed given to understand that the noble Earl, Lord Selkirk, would attempt to improve the Bill by pressing for a definition of the kind that he has put before us this afternoon. During the last 13 days we have been criticised for what we have put in the Bill, we have been criticised for what we have left out of the Bill and, on balance, the indications seem to be that we have got it about right. The present point is a limited one: when should one, as a matter of drafting, offer a definition? There seem to be two main cases: first, when nobody will be sure what the expression means unless it is defined, or where an expression is to be given an artificial or an extended meaning within the Bill.
If the Bill is silent, what meaning could be attached to the expression "Minister of the Crown", which is what the noble Earl is asking us this afternoon? Wade and Phillips' Constitutional and Administrative Law—and perhaps it would be appropriate here to pay tribute to the work of the late Professor Wade, whose death occurred earlier this month; he was one of the most eminent constitutional lawyers of our time, and in the ninth edition of the Constitutional and Administrative Law he refers to one particular 318 statutory definition and then goes on to say:In a less technical sense Ministers are those Members or supporters of the Party in power who hold political office in the Government. They are all appointed by the Crown on the advice of the Prime Minister and their offices are at the disposal of an incoming Prime Minister. They do not include members of the Civil Service",or certain others that I need not specify.
I do not think there is any difficulty about attaching a meaning to the words "Minister of the Crown"; but of course we have to look at the context in which the words are used. The Bill uses them principally in Clause 20, which deals with powers that are exercisable on behalf of Her Majesty by a Minister of the Crown, and refers later to any executive power conferred on a Minister of the Crown by any enactment. That, I would suggest, indicates with complete clarity that the clause is directed to powers, and principally to statutory powers, vested in a Minister of the Crown. That automatically limits the range of Ministers to whom the clause will refer. The statutory powers vest in the main in the Secretary of State and in a very limited number of other Ministers. So really we can see no reason why the expression "Minister of the Crown" should not run as widely as its ordinary interpretation would let it.
If we may now look more closely at the Amendment that is before us, we see that it relies on the concept of the Minister in charge of a public department. So far as Clause 20 is concerned, we think that probably all ministerial functions affected are in fact vested in Ministers in charge of public departments. But there are other places in the Bill where "Minister of the Crown" could require a wider definition. So the definition offered does not meet the needs of the Bill.
As the noble Earl has said, his definition comes from the Ministerial and Other Salaries Act 1975, which contains a schedule of ministerial salaries. It lists the salaries payable to the holders of the various offices, and one salary level is linked to membership of the Cabinet. Then in paragraph 2 of Part II we have the entry which says:Minister in charge of a public department of Her Majesty's Government in the United Kingdom who is not a member of the Cabinet, and who is not eligible for a salary under any other provision of this Act".319 There, the definition fits the context. It relates the Minister's salary to his responsibilities.
Also with that Act in the Statute Book is the Ministers of the Crown Act 1975. This deals with the redistribution of functions between Ministers of the Crown and related matters. It is so essentially about Ministers that a definition is desirable. Here, "Minister of the Crown" means:the holder of an office in Her Majesty's Government in the United Kingdom, and includes the Treasury, the Board of Trade and the Defence Council".Now what about the Treasury? The noble Earl, Lord Selkirk, referred to the Treasury on the previous occasion and gave me the task of holding up the 26 members of the Treasury above me! Let us understand the position of the Treasury. Section 2(2) of the Interpretation Act 1889 provides that "The Treasury" means the Lord High Treasurer for the time being or the Commissioners for the time being of Her Majesty's Treasury. The Lords Commissioners in their collective capacity are not Ministers—although Ministers are among the commissioners and so can sign Treasury instruments. They sign those as commissioners pursuant to the Treasury Instruments Signature Act of 1849 and not as Ministers.
This perhaps paradoxical constitutional situation means that a reference to a Minister of the Crown does not include the Treasury and so the intention is to devolve Treasury powers, except as particular provisions in the Bill provide otherwise, and we need a definition which draws in the Treasury. I am sure it all sounds very complicated. There are certain other Departments which have powers not technically vested in any Minister and none of their powers are being devolved so we can ignore them for the present purpose.
On 19th April, the noble Earl raised this point with us. He raised it again on 3rd May and has now come back to his original theme—he is nothing if not persistent. The point, in essence, is that a Scottish Secretary might receive a communication which was ostensibly from a Minister of the Crown and not know who the Minister was or what was his 320 authority and that therefore the term ought to be defined. The real-life answer is that people do not often find themselves receiving communications from strangers styling themselves as Ministers but whose identity and functions are a complete mystery. If a recipient for any reason should find himself in such a situation then I suggest that he would dispel his ignorance by using a reference book or making a telephone call.
The political answer is that the Ministers are appointed by the Prime Minister on behalf of the Crown and they will exercise the duties allocated accordingly. To the holders of some offices statutory duties will automatically attach. If a particular office-holder were to stray outside his allocated sphere it might or might not make any difference in law (bearing in mind the unity of the office of the Secretary of State) but it would certainly be a matter of concern to Ministers collectively because it would surely imply that there was a flaw in administration.
Legally, I am advised that most Ministers—and certainly those holding the major offices—are backed up by statutory provisions (usually on the lines of Schedule 1 to the Ministers of the Crown Act 1975) validating any document purporting to be issued by them unless it is proved to the contrary. What is more, in what is perhaps the only case where the wrong Department has acted, the court proceeded on the basis that it should protect the individual. It was held that the subject was entitled to rely on the Department having the authority it claimed to have. I refer to the case of Robertson v. Minister of Pensions.
The devolutionary answer is that Ministers will do Scottish Secretaries the credit of assuming that each is doing his own job and will hope to be accorded parallel treatment in return. Scottish Secretaries certainly should not expect suddenly to find themselves receiving communications from Ministers with whom they have had no previous dealings. We think there is nothing in all of this which weakens the argument for leaving the breadth of the term "Minister of the Crown" undisturbed in the Bill. I am sorry to have to give such a long and technical explanation, but, as I said, the noble Earl has already ventilated the issue several times and it seemed desirable 321 to try to put our case as completely as possible.
We are regularly being pressed to make changes of an essentially drafting character, and on many occasions we have undertaken to look at them sympathetically and come back at a later stage. But, as all occupants of both Front Benches know, it is a very perilous enterprise when one starts to alter the drafting or the considered work of the draftsman. If we set out to alter the drafting in one place then we risk disturbing the meaning somewhere else. Here we are being asked to leave out words which we think are necessary and to introduce words which in our view are not necessary. Certainly the Act may, in dealing very specifically with Ministerial office-holders, need a definition tailor-made for its own purposes, but the great majority of Acts find this to be unnecessary and if we embark on defining terms which in our view do not need definition then we shall raise a host of doubts not only on this but on other Bills about this term and possibly other terms which are less susceptible of a plain meaning. I hope this will have satisfied the noble Earl and assuaged some of his doubts and that he will admit that the Amendment may be wrong in the letter and perhaps misconceived in spirit.
§ 3.25 p.m.
§ Lord HARMAR-NICHOLLS
I do not know whether this satisfies my noble friend but it does not satisfy me. It was a very interesting historical résumé but what came out of it? On this wretched Bill and on this very narrow point, the noble Baroness had to say that there were three answers. She said that there was a political answer—and she gave the political answer—and then she said that there was something a little bit different, in that there was a legal answer. Then, having done that and confused us with those two different answers to the same little point, she said that there was in addition a devolved answer. If we have a Bill where on a point as narrow as this there are three kinds of answer under the three headings of politics, legality and what devolution brings that ought to make us very concerned about the Bill as a whole.
On this narrow point, the noble Baroness said that by leaving out the words "includes the Treasury" we should create 322 some sort of doubt. The basis of that argument, from what I have just heard from the noble Baroness, was that in one of the other Bills the words "Minister of the Crown" were deemed not to include the Treasury. On the basis of that one case we have got to have the words "includes the Treasury". But the words which my noble friend wants to put in—means a Minister in charge of a public department of Her Majesty's Government of the United Kingdom"—must include the Treasury, so there is no question of doubt. Removing the Treasury, as now presented, cannot mean that we are creating any sort of doubt on the basis of the argument that she puts forth.
The whole of Clause 77 on page 36 is devoted to defining what the Bill is supposed to mean. What my noble friend has pointed out and the historical and very interesting answer which the noble Baroness has given have shown that there is further doubt. She is suggesting that you have to look at innumerable Bills to see which definition applies before you can be certain where you stand. If they do nothing else, the words which my noble friend wants to put in at any rate minimise the possible doubt that may arise and obviate people having to go to that sort of trouble. If I followed her argument correctly, the only reason which the noble Baroness seemed to put forward for not wanting to remove the words "includes the Treasury" was that in a previous case the phrase "Minister of the Crown" was deemed not to include it.
I do not know whether my noble friend will be satisfied with the explanation. All that the noble Baroness did in giving us the very interesting historical reference was to confirm once again that this Bill is truly a monstrosity. Even when we get down to something as detailed as this there is a legal answer, a political answer and a devolved answer, which means that, at the end of the day, there is no answer.
§ Lord LEATHERLAND
May I assure my noble friend on the Front Bench that I understood very clearly every word that she said. Now I think it is time for a little brevity, and I shall put my point in one question. Does the term "Minister of the Crown" as specified in the text of the Bill include a Parliamentary Secretary 323 or a Parliamentary Under-Secretary or is it merely the head Minister of the Department?
Lord CAMPBELL of CROY
Before my noble friend ends this brief debate I should like to ask the noble Baroness whether my noble friend's Amendment would cover the Chancellor of the Exchequer. I had assumed that the Treasury would be covered because he is Head of a Department, but perhaps for technical reasons that is not so. I was very interested in her historical account of how the Treasury has come to consist of Lords Commissioners, because for a period in another place I was the Lord Commissioner of the Treasury. There may be other members in your Lordships' Committee who had the same experience. Of course it did include signing certain documents on behalf of the Treasury. I should have thought that if the Amendment which my noble friend proposes included the Chancellor of the Exchequer then it would be much easier to understand for those coming to this Bill when it is enacted. What the noble Baroness said—and she certainly gave us a full account of the history of this—does, I think, indicate that perhaps some simplification is required of the "Minister of the Crown" definition.
§ Baroness STEDMAN
The title "Minister of the Crown" applies to everyone who holds a Government appointment, down to the most junior Whip like myself, who is technically a Minister of the Crown. What the noble Earl's Amendment would do is to remove the Treasury.
The Earl of SELKIRK
With great respect, I am going to differ from the noble Baroness. May I ask her to look at the Ministers of the Crown Act 1975, Section 8(1); that specifically includes the Treasury. I am afraid I have not got it with me.
§ Baroness STEDMAN
My advice is that the noble Earl's Amendment would remove the Treasury because that is not "a Minister"; that is not the office holder, the Minister; the Treasury is a Department. There are masses of Bills which come before this House and another place over the years which leave the 324 term "Minister" quite happily undefined, and yet we are being rather more difficult about this one.
§ Lord SKELMERSDALE
Is the noble Baroness really saying that there is no Minister directly responsible for the administration and overseeing of the Treasury?
§ Baroness STEDMAN
The Prime Minister himself, of course, is the first Lord of the Treasury, and so presumably we have a very competent Minister in charge of the Treasury. We have a Chancellor of the Exchequer as well. But "Treasury" as a Government term is not a Minister.
§ The Earl of PERTH
I have tried to understand the noble Baroness's explanation, which has been very full. When we hear what the noble Earl has said in relation to an Act in which the Treasury is included, I wonder whether it would not be a good idea for all of us to go back and have another look. I am sure it is desirable that it should be clear and defined. Perhaps the right course would be for all of us to read the noble Baroness's explanation and look again at what the noble Earl has said, and then take the matter up, if appropriate, at Report stage, knowing that a definition is apparently needed and it should be clear.
Can the noble Baroness say whether the Chancellor of the Exchequer is a Minister of the Crown?
§ Baroness STEDMAN
Yes. All those who hold office as Ministers, as Ministers of State, as Parliamentary Under-Secretaries or even as junior Whips are all Ministers of the Crown as such. I am happy to take up the suggestion of the noble Earl, Lord Perth. We seem to have got ourselves into some difference of opinion on rather defined lines. I shall be happy to have another look at it and write to the noble Earl, and if he is not satisfied he can come back to the matter at Report stage.
§ Lord CLITHEROE
Is the noble Baroness really telling us that the expression here "includes" the Treasury, means Treasury Ministers; that is to 325 say, the Prime Minister who is the First Lord, the Chancellor of the Exchequer, the Financial Secretary to the Treasury, the Minister of State and so on? Is the noble Baroness saying she wants all those put in? Supposing the words put in instead of the Treasury were the Lord High Treasurer or the Lords Commissioners of the Treasury, would that be sufficient, or does she also want to put in the Chancellor of the Exchequer and the First Lord of the Treasury? I cannot see that the words "includes the Treasury" are satisfactory.
§ Baroness STEDMAN
No, I do not think the noble Lord's suggestion would help us in any way. I think perhaps it might be better if we take it back and have another look at it, as the noble Earl, Lord Perth, suggested. I am not promising that we shall come back with any altered opinion, but we will certainly have another look at it.
The Earl of SELKIRK
I thought this was difficult, but I had no idea how difficult it was until I heard the noble Baroness's speech. I must admit I thought it was what I regard as a perfect draftsman's answer. It really is not comprehensible to the ordinary person. I think the Government will agree I have tried to simplify this Bill, to give the Assembly in Scotland a chance to understand what on earth we are asking them to do. The noble Baroness's answer is really incomprehensible. She tells us we have to look at books on constitutional law, reference books, look up all kinds of things; and eventually we go to the court in order to decide whether it is the right Minister. It goes on to assume something which one likes to think—that Ministers of the Crown can do no wrong. It is unlikely, but it is perfectly possible for them to do wrong. But, in any event, it must be clear to the Assembly who has the authority, and the noble Baroness has made no attempt to answer that. You cannot expect Ministers to look up reference books to find out the situation.
The noble Lord asked who is a Minister of the Crown. All Ministers are Ministers of the Crown. There are 108 of them existing at the present time, as I find in the book. Some further degree of definition is required. The noble Baroness 326 referred to Clause 20. We know Clause 20 is wrong for reasons which were made quite clear, and that will have to be amended quite considerably at Report stage. I am quite happy to take this back. The noble Baroness says she is obstinately reluctant to play any part in this and does not think that any alteration can be made. I must ask the Government to try very hard to make it a little simpler for the Assembly to understand what this is all about.
I think they are entitled to a more precise definition of "Ministers of the Crown", who are constantly going to give them authority and variations of one kind and another under provisions throughout this Bill. It is not only Clause 20; it happens all through the Bill. If the noble Baroness will look at this and try to give an answer which all of us can understand, I shall be very happy. Will she undertake to try to do that?
§ Baroness STEDMAN
I hope I did not sound reluctant. I implied that we have given a lot of thought to this question, and I could not guarantee that we will come up with any different answer or any better interpretation of it. But we will certainly take it back and have a look at it, and I will communicate with the noble Earl and see whether between us we can sort out something that is more acceptable.
The Earl of SELKIRK
I am always very willing to accept proposals the noble Baroness makes. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 3.37 p.m.
§ On Question, Whether Clause 77 shall stand part of the Bill?
§ Lord DRUMALBYN
May I ask a question on this definition clause? It relates to page 36, line 34, which says'reserved functions' means functions relating to matters listed in Schedule 15 to this Act".We have had reserved matters in Clause 36; we have had devolved matters. Now we have reserved functions. Are the matters to which the functions relate reserved matters or are they not? This is important, as we shall see when we come to Schedule 15 to which it relates—which 327 will be very soon—and on which I should like to ask one or two questions. Can the noble and learned Lord answer that comparatively simple question?
§ Lord McCLUSKEY
The trouble with all comparatively simple questions is that they are not as simple as they may appear to be. We are already in the position, as no doubt the noble Lord has understood from previous debates, that we are looking again at Schedule 15. In fact it was only last night that I repeated what I had said on an earlier occasion. "Reserved functions" in this context relate to the fact that some functions exercised by local authorities relate to non-devolved matters and therefore will not be within the legislative competence of the Scottish Assembly and not within the executive competence of the Executive. Schedule 15 relates to them. But the difficulty which the noble Lord, Lord Campbell of Croy, brought to our attention on an Amendment some days ago, and on another Amendment last night, is one which affects this matter of reserved functions as well. I am as anxious as anyone to avoid the confusion which might arise from the use of a term like "reserved functions", which might be misleading. May I say this before I tempt the noble Lord, Lord Harmar-Nicholls, to his feet. We are looking at this at the same time as we are looking at Schedule 15.
Lord CAMPBELL of CROY
I have raised the question of Schedule 15 on earlier Amendments to the Bill. I put down an Amendment earlier in the Bill which said, "subject to Schedule 15", because it looked as though the Schedule might have applied to that part of the Bill, and I was then told that it did not. Of course, the Amendment served the purpose of giving the Government notice that we wanted to know why Schedule 15 was in the Bill and it also raised the point that my noble friend Lord Drumalbyn has raised, about ambiguity concerning the term "reserved functions". If that is a special term to be used in the Bill relating only to local authorities and certain public bodies in Schedule 15, it could be misunderstood when it is considered in terms of the opposite of devolved functions.
328 Therefore, as the Committee was some-what thin last night at the moment when my second Amendment was raised, I can tell my noble friend Lord Drumalbyn and other noble Lords that the noble and learned Lord said that the Government had found the matter so complex that even though it was some days since I had raised it on the first Amendment they were still looking at the whole question of whether Schedule 15 was needed in the Bill; what rôle it played and where it fitted in. I then said that provided they were doing that and continuing their study, I was quite prepared to wait until a later stage of the Bill before receiving a full explanation as to why Schedule 15 was included and how it fitted in. I say that in order to save the time of the Committee having raised this point on two earlier occasions.
§ Lord HARMAR-NICHOLLS
The only point that I want to make is that in terms of strict purity ought we to pass Clause 77 until we have seen what alterations will be made to Schedule 15? I suppose that we could do so at the Report stage, as my noble friend has just intimated, but I should have thought that it was a little unusual for it to be admitted that an important Schedule, which is referred to specifically in line 34, is to be either altered or removed completely and yet still to ask the Committee to pass the clause which says that'reserved functions' means functions relating to matters listed in Schedule 15 …which may not be as it is now or may not be included at all. In terms of strict purity, it ought to be on record that we hope that in future any change of mind will be made and recorded before the Government ask for approval for it to be put into operation.
§ Lord McCLUSKEY
The noble Lord, Lord Harmar-Nicholls, has not only asked a question, but answered it. Therefore, I need not say anything more.
§ Clause 77 agreed to.
§ Schedule 15 [Reserved functions of local authorities and other bodies]:
§ On Question, Whether Schedule 15 shall be the fifteenth Schedule to the Bill.329
§ Lord DRUMALBYN
I should like to raise a question on this matter because it relates to what will obviously be a reserved function, by whatever name it will be called. First, I should like to comment on the police. I remind your Lordships that the 1974 White Paper (Cmnd. 5732), placed police among the devolved matters. I wondered whether the noble and learned Lord could explain the considerations which led the Government to place the police among the reserved subjects. Of course, I am aware of what is said in Our Changing Democracy, paragraph 148. That states:The enforcement of the criminal law through the police and the prosecution system—which in Scotland is not in any way under the control of the police—is part of the responsibility of the Government for the maintenance of law and order and the security of the state, and will extend to offences within both devolved and other fields. It would not be right that responsibility for law enforcement should rest with members of an administration not directly answerable to Parliament".I am bound to say that one must recognise that that being so, the Assembly will be very greatly diminished in the public eye. It may be inevitable that there is no other solution to the matter than to place the police firmly under the control of one or the other. However, to set up a Scottish Assembly which has no power whatsoever over the police cannot fail to diminish the Assembly in the eyes of the Scottish public.
The second matter is more difficult and concernsconsumer protection (including weights and measures)".I am referring to the last line but one on the page. Given that there is a Secretary of State for Prices and Consumer Protection, it is sensible that this should be a reserved matter. Consumer protection covers a wide and growing list of functions which are discharged at local level by what used to be known as the Weights and Measures Inspectorate. The functions are discharged at regional level. Would it be within the competence of the Scottish Assembly, under its responsibility for local government matters, to change this situation by entrusting consumer protection to districts instead of regions? Alternatively, if there were a local government re-organisation we might have an entirely different single tier. However, in those circumstances would it be competent; can this local government re- 330 organisation be done by the Assembly? Of course, that will affect the administration of consumer protection.
The consumer is protected not only by the criminal law but by the civil law—for example, Part III of the Fair Trading Act. The White Paper Our Changing Democracy (Cmnd. 6348) on page 68 under the heading "Scottish Law Functions" states:The main devolved matters will be:—i. as much of private law as proves, on further study, to be compatible with consistency in matters of wider United Kingdom interest, including the maintenance of a common framework for trade".Are the results of that "further study" wholly incorporated in the Bill, or is there to be a further "further study"? Both the Trade Descriptions Act 1968 and the Fair Trading Act 1973 are listed as not included in the powers of the Assembly and the Scottish Executive in Part II of Schedule 10. However, there are aspects of services which are included in Part I—for example, housing services are already covered by the Trade Descriptions Act and are likely to be covered further by any future amendment of the Trade Descriptions Act.
Orders can be made by a restrictive practices court or the sheriff court appealable to the Court of Session in civil actions brought by the Director General of Fair Trading under the Fair Trading Act. That shows the type of confusion that there may be over jurisdiction as between criminal and civil actions. Therefore, I wonder whether there could not be a definition of consumer protection, showing where it begins and ends. It is all very well to call it a "matter", but it is such a variegated matter that it is difficult to know where it begins and ends. It can mean anything from matters covered by the criminal law to aspects of civil redress or a wide ranging combination of both. It can cover commercial practices, commercial standards, safety, licensing as well as civil redress and consumer assistance. Some of those matters, but not all, are already specified in Schedule 15. How are they all to be clarified and specified? The noble and learned Lord will be well aware that there are bodies and institutions which will be anxious to have the answer to that question. Finally on this point, what 331 are the "other bodies" referred to in the title of the Schedule which is:Reserved functions of local authorities and other bodies".This may be a matter with which the noble and learned Lord, Lord McCluskey, has already dealt, but perhaps he could refresh my memory if he has done so.
In conclusion, may I point out that some of the matters in the Schedule could, I imagine, be the subject of private legislation and local by-laws. I do not think that this point has yet been raised at all. However, what happens to private legislation which covers both devolved and reserved matters? Perhaps that is not possible at all. Would it be necessary for the local authority to divide those matters into two separate Bills?—and so have one Bill for the devolved matters and one Bill for the reserved matters in a case where otherwise they would have put all these matters into one private Bill?
§ Lord SHINWELL
I have no knowledge about many of the items listed in Schedule 15, though many years ago I was a member of a local authority in Scotland. However, there is one item of which I have some knowledge and it is, "Ports (other than marine works)". I cannot understand the distinction between ports, which are reserved and to be administered by a local authority or some other body, and marine works. I should have thought that marine works, whatever they may be in the Government's mind, could not be distinguished from the administration of a port. Perhaps my noble and learned friend would explain the matter to me, because I fail to understand it.
§ Baroness ELLIOT of HARWOOD
I should like to say a few words about consumer protection. I am in close touch with the Scottish Committee for Consumer Protection, which is very concerned with what its position will be when this Bill becomes an Act of Parliament. The noble Lord, Lord Drumalbyn, is perfectly right in what he said about the very wide range of subjects covered by consumer protection As I understand it, the Scottish Consumer Protection Committee is part of the United Kingdom Committee and is anxious so to remain. It is also anxious that there should be good liaison by the United Kingdom Consumer Protection Committee regarding 332 what will happen under the devolved matters. I very much hope that when the noble and learned Lord replies and considers this, he will give some indication as to how wide the reserved function of local authorities will be in many of these matters—"Consumer protection (including weights and measures"), being the one in which I am particularly interested.
§ 3.54 p.m.
§ Lord McCLUSKEY
I have been asked a number of questions in relation to Schedule 15 and I apprehend that certainly some of the questions would more properly arise in relation to agreement to Schedule 10. However, I shall endeavour to deal with them as best I can. First, may I remind the Committee of something that I said on a previous occasion; indeed, I think it is quite clear. The definition of "reserved functions" is principally put into Clause 77 in relation to this Schedule and in relation to Clause 63 of the Bill. The purpose that it serves—this is the principal purpose and it is because it serves this purpose and not many others that I now think that the word "reserved" is not adequate and might be misleading—in Clause 63 is to require a Scottish Secretary to have regard to certain considerations affecting these functions, being considerations which:the Secretary of State may bring to his notice after consulting with such associations of local authorities as appear to him to be concerned".In other words, for the purposes of rate support grant he must direct his mind to certain functions because local authorities have—as, indeed, certain other bodies have—functions in relation to matters of a kind which are specified in Schedule 15 which are not devolved matters. The purpose of defining "reserved functions" in Clause 77 and the purpose of Schedule 15 is to relate to Clause 63(2). That is the context.
The purpose of putting the word "Police" into Schedule 15 is not therefore to say that "Police" is a reserved function. The police are reserved by silence; in other words, by their absence from any of the groups contained in Part I of Schedule 10. There was, of course, a considerable debate within the Government as to whether or not control of the police should be devolved. I think that we analysed that in relation to the police there 333 were two Ministers in Scotland who had authority. First there was the Secretary of State, whose authority I do not want to describe in terms that might seem to denigrate that authority, but his is a pay and rations authority. I do not know whether the noble Lord, Lord Campbell of Croy, would agree that that is a general description. The Secretary of State is also responsible, of course, for disciplinary matters, but basically discipline, pay and rations was the general shorthand used.
The other Minister is the Lord Advocate. He has no responsibility for hiring and firing policemen, for discipline, or for anything of the kind, but he can give directions to the police in relation to the detection of crime. Those are the two Ministers who are responsible. As a result of the debates that went on inside the Government, it was concluded that control over the administration of crime detection was a matter that should properly be attached to the State itself, and was not properly a matter to be devolved. In those circumstances, control over the police—whether exercised by direction of the Lord Advocate or by the Secretary of State—should remain where it is at the present time and not be devolved. That was the end result of the discussions that took place, and I do not think that I could elaborate upon them. Of course, contrary views were urged, but that view prevailed and that is the view that is now shown in the Bill.
I believe that I was asked whether local authority reorganisation could competently alter the level of authority responsible for certain consumer protection matters. If the Assembly chose to reorganise local government it could competently alter the level of authority that was responsible for any non-devolved matter. If the arrangements proposed—and only if the arrangements proposed—seemed likely to prejudice the administration of the matter, the Government could use their intervention powers under the clauses which we have already been through.
In relation to consumer protection generally, the noble Lord, Lord Drumalbyn, asked whether it was possible to give a definition of "consumer protection". The short answer to that is: No, it is not possible. The reason, of course, is that gradually as consumer 334 protection and consumerism wins ground, it extends into more and more fields; it may affect motor vehicles, and, as the noble Lord said, it may affect goods and services. It may affect the criminal law; for example, the law of fraud. It may affect the Trade Descriptions Act, and so on. Therefore, in our view it is not possible to give a definition of "consumer protection".
In Schedule 10, Parts I, II and III, we have endeavoured to make clear what derogations there are from the devolution of legislative competence over the ordinary criminal and civil law which are intended to save those parts of consumer protection which it is thought desirable to save because of the unity of the United Kingdom as a commercial and trading area. No doubt, the noble Lord, Lord Drumalbyn, and the noble Baroness, Lady Elliot, in going through Schedule 10 and its various parts, have seen what is the division that is attempted. In essence, what is done in Schedule 10, Part I, Groups 25 and 26, is that the law in general is devolved, and then in various other parts of Schedule 10 there are derogations from that which might relate to consumer protection. Again, I give the example of paragraph 1 of Part II of Schedule 10, "Control of drugs, medicinal products, biological substances and food". That obviously relates to consumer protection. There are other matters of a similar kind.
Of course there are various matters referred to in Schedule 10, Part II paragraph 20. The noble Lord will see on line 31 that one of the items which is not devolved is safety standards for goods. To take an example which I think he mentioned in passing, in Part III, line 35, page 59, the Trade Descriptions Act 1968 is not included. I think that it is perfectly possible, although not easy, to go through Schedule 10 in its various parts and find where the lines have been drawn.
The noble Lord asked me a more general question about whether the study that was presaged in the November 1975 White Paper had been concluded. The answer is that it has been concluded, and the results of the study are enshrined in Schedule 10. We believe that that Schedule will stand up to examination, and the legislative competence of the Assembly will be reasonably clear to those who have 335 to advise it and to the Assembly Members themselves.
I was asked about private legislation. Indeed, we had debates on previous occasions about private legislation. I think I am right in saying there were two occasions when we discussed private legislation in relation to an Amendment moved by the noble Earl, Lord Selkirk. The position is that in relation to devolved matters the Assembly can, if it wishes, create its own system of private legislation, which it may model upon the Westminster system if it wishes. The Assembly can, if it wants—and we said this before—distinguish between public and private matters within devolved matters for the purposes of a private legislation system.
The system of private legislation that exists at the present time, which is contained in the 1936 Act and which is referred to in this Bill, is not to be devolved. It remains as it is at the present time, except that the panel of commissioners may include someone from the Assembly. We have discussed that on more than one occasion. If, in fact, a Bill relates to matters which are devolved and matters which are not devolved, then I fear there is no alternative, under the Bill as it stands at the present time, but to use the 1936 procedure and to come to the Westminster Parliament just as if devolution had not taken place.
I was also asked about other bodies. If one looks elsewhere in the Bill—and it is difficult for me on the spur of the moment to put my finger on the provisions—there are various places in which the term "reserved functions" has relevance, and I referred to one of them on a previous occasion. There are other bodies which are, for example, joint boards of local authorities, and other bodies representing several local authorities, which might have, and exercise, some of the functions listed in Schedule 15 as it stands.
My noble friend Lord Shinwell expressed a doubt about the meaning of marine works. I think that if he looks at Group 12 of Schedule 10, which is to be found on page 48, he will find there that one of the matters which is devolved is Group 12, marine works. There is a general description there of subjects which include devolved matters. If he 336 goes to page 82 he will find near the foot of the page, line 33, Schedule 16—which we have not yet reached—that there is a new definition of marine work in the Harbours Act 1964. That relates to the question he asked. I think it is possible within the confines of this Bill to find the meaning of marine works and to distinguish it from ports. I hope that I have covered all the points. If not, noble Lords will no doubt tell me and, if I cannot deal with them now, I will endeavour to write.
§ 4.6 p.m.
Lord CAMPBELL of CROY
The noble and learned Lord has at short notice answered a number of points relating to the Schedule, and I congratulate him on the way he has dealt with some of these matters in considerable detail. We are again grateful to him. I think that we are still due to receive a further reply after the full examination of the whole rôle of Schedule 15 to the Bill, because last night he said that this was continuing. Therefore, we shall expect that later. It will probably have to be at Report stage now.
The noble and learned Lord asked whether I would agree with the Secretary of State for Scotland's position vis-à-vis the police as one of discipline, pay and rations. I would only agree to that as the very shortest of shorthand, because I must rise to say that while the Lord Advocate of course has a special rôle in Scotland vis-à-vis the police and crime, certainly the Secretary of State in his rôle as Home Secretary for Scotland—of course he does not deal with immigration and matters affecting foreigners—is very much involved in the prevention of crime and in law and order. Therefore, I would not accept entirely the noble and learned Lord's description except as the very briefest of shorthand.
One of the things which has become clear from the discussion of the term "reserved functions" is that we need another word. I think that the noble and learned Lord hinted at this. Even if it were simply "restricted functions" when used in relation to Schedule 15, as an example, I think we must have a different word, if possible, for special use vis-à-vis Schedule 15 so as to avoid ambiguity in other parts of the Bill, when 337 people will simply think that the words "reserved functions" are being used in contrast to "devolved functions". I think that this is part of the further consideration that I hope is going on, and that during Report stage we shall get a full reply from the Government which will indicate the rôle which Schedule 15 is to play, and the way in which the Government intend to do some redrafting to avoid all ambiguity.
§ Lord DRUMALBYN
May I mention one thing to which the noble and learned Lord did not refer. I am not at all surprised at that, and I should like to join my noble friend Lord Campbell in congratulating him on a most admirable performance. He has made this a very useful discussion. The noble and learned Lord did not deal with restrictive practices; the fair trading point. This arises very largely because the trading standards authorities are the fons et origo for a lot of the information on which the Director General of Fair Trading acts, and then of course it may end in a civil action. The only other suggestion I was going to make was that if we are going to have Schedule 15 in some form or another, and it is going to have much the same kind of heading, would it not be a good idea to set out the other bodies referred to in the Title?
§ Lord McCLUSKEY
That would cover existing other bodies; but it is conceivable that, post-devolution, other bodies might be set up and have these functions, and then that would be a restrictive definition and might lead to inflexibility. I will write to the noble Lord in regard to fair trading. I accept entirely what the noble Lord, Lord Campbell of Croy, said about the rôle of the Secretary of State in relation to the police. The broad distinction I was trying to draw was that the Secretary of State does not give directions to the police in relation to the investigation of particular crimes. I accept what he said about other matters, but perhaps I might give the noble Lord one other example of reserved functions—on page 64 at line 35—but there are a number of other examples in that Schedule. I merely mention that as being another instance of it being used.
§ On Question, Schedule 15 agreed to.
§ Clause 78 [Construction and amendment of existing enactments, etc.]:338
§ 4.11 p.m.
§ Lord CAMPBELL of CROY moved Amendment No. 214:
Page 37, line 35, leave out subsection (5) and insert—
(" (5) No order shall be made under subsection (3) of this section unless a draft of it has been laid before and approved by resolution of each House of Parliament.").
§ The noble Lord said: I move this Amendment on behalf of my noble friends Lord Colville and Lord Mansfield. Its purpose is to make a change to the Affirmative Resolution Procedure when a Minister of the Crown is making Amendments to Acts by order. Under the Bill as drafted, the Negative Resolution Procedure appears in this clause. The point about the Affirmative Resolution Procedure is that the Minister who is making an Amendment must obtain the assent of Parliament, and this has special relevance in the context of this clause, which enables Ministers to amend enactments of the past if that is necessary as a consequence of this Bill, when enacted.
§ If the Negative Resolution procedure remains in the Bill, it is then left to Parliamentarians to discover that some Amendment is being made and to discover that it is important enough to be discussed and perhaps objected to in the Westminster Parliament. In another place it would mean a private Member having to take the initiative in tabling a Prayer to annul that order. We think that the making of Amendments as proposed in subsection (3) of this clause is a function which might include important or controversial matters. Certainly, during the next two or three years, subjects which may not have been foreseen may come up and they may require Amendments to previous enactments resulting from the establishment of the Assembly.
§ We think the Affirmative Resolution Procedure would be appropriate; and there is a precedent—there may be several but one immediately comes to my mind—in Section 252 of the Local Government Act 1972. That section also deals with the making of Amendments of a similar kind, and it provides for the Affirmative Resolution Procedure to cover the orders to be laid with those Amendments. I hope the Government will follow that precedent. I acknowledge that they have 339 accepted occasions during the passage of the Bill when we have proposed that the Affirmative Resolution Procedure is more suitable than the negative, and I hope they will think so again on this occasion.
§ I beg to move.
§ Lord KIRKHILL
The noble Lord, Lord Campbell of Croy, as always, put eloquently the case for the Amendment. I wish to emphasise, however, that Clause 78(3) enables Ministers of the Crown to amend existing enactments so as to tidy up behind this measure, and such Amendments must be:… necessary or expedient in consequence of this Act".As a consequence, the order-making power is very restrictive. It could not in particular be used to enable a Minister to devolve any further function which is not already devolved by the Bill. This is a restricted power within the Bill and it does not seem likely to the Government that orders made under this power will at any time raise an issue of principle. The Amendments will be concerned exclusively with matters of detail and tidying up points in existing legislation where other provisions in the Bill do not produce a completely clear and satisfactory result.
While the noble Lord, Lord Campbell, asked whether I might follow his carefully ennunciated precedent, I must tell him that the Government are following a number of other precedents, and I would direct his attention to Section 61 of the National Health Service (Scotland) Act 1972; Section 254 of the Local Government Act 1972; Section 54(2) of the National Health Services (Reorganisation) Act 1973; and Section 215 of the Local Government (Scotland) Act 1973. I readily admit that those precedents do not follow quite the same form as Clause 78(3); the precedents I have mentioned empower:… provision necessary or proper for the purposes of the Act or in consequence of its provisions or for giving full effect to the Act".In reality, therefore, the formula went rather further than the formula in subsection (3), by actually allowing Ministers to make provisions for giving full effect to the Act, so that if the Act had gone wrong anywhere an order could put it right, and such orders were to be subject only to the Negative Resolution procedure. 340 We have not gone so far on this occasion, and I make no Party political point in saying that, although of course I am doing that by pointing out that it was during a Conservative Administration that that particular part of reorganisation took place.
Lord CAMPBELL of CROY
I am grateful to the noble Lord, Lord Kirkhill, for his explanation, but I must point out that what a Minister may consider necessary or expedient is not always what Parliament thinks is necessary or expedient. That is the real point; namely, that a Minister may think that what he is doing is a bit of tidying up consequential on the passing of the measure, but Parliament might have different views. Certain MPs, perhaps those whose constituencies were affected, might have very strong views. For that reason I am sure that in the precedent I gave the Affirmative Resolution procedure was included.
The noble Lord was good enough to indicate that the precedents he cited were not precisely similar. I do not think we need continue to compare them, but I must reserve the position for my noble friends, both of whom are experts in this field, with legal qualications which I do not have. They will read what the noble Lord has said and will examine his argument. I must therefore reserve the position for the possibility of one of my noble friends returning to this matter at a later stage of the Bill. The noble Lord indicated the Government's intention, which is that this should be a tidying up matter, dealing with details, but what we are concerned about is that in fact it could be used for making Amendments with considerable significance beyond what the Minister now contemplates.
§ The Earl of PERTH
Before the noble Lord intervenes, I should like to ask whether there is a legal definition of the word "expedient". I find the word "expedient" very different from the word "necessary". I should think that a matter of judgment is involved here which is not very easy, and which could be almost political. If this point is looked at again, I hope that the word "expedient" will be considered at the same time.
§ Lord SHINWELL
Surely, the only distinction between what the noble Lord, 341 Lord Campbell of Croy, is asking on behalf of his noble friend, and what the Government propose here, is merely a matter of procedure. The Government propose that if a Minister seeks to effect an amendment it is subject to a Statutory Instrument, or an Order in Council, which can be annulled by a Resolution in either House of Parliament. All that a Member has to do is to object to what is done. There must be an Affirmative Resolution which annuls what is proposed by the Minister. I cannot see any distinction between the two propositions, except that that proposed by the noble Lord, Lord Campbell of Croy, is a positive one, in that a draft has to be presented, whereas the Government's proposition involves the ordinary normal procedure, which has been adopted in another place ever since I can remember.
Lord CAMPBELL of CROY
I should like to deal with what the noble Lord, Lord Shinwell, has said, if it is convenient to the Committee. Of course, he has great experience of this matter, and I am sure that during the many years that he was in another place he was vigilant both in seeing what Ministers were doing and in tabling a Prayer against an order, which is the Negative Resolution Procedure, with all that that entails. However, I suggest that Parliament now covers so many more subjects, and has so much more to do, that it is considerably more difficult for the Private Member of another place to be able to keep abreast of all the orders that are going through, unless the Government have to table a Resolution under the Affirmative Resolution Procedure, so that everybody can see what is at stake.
That is the difference here, but I agree with the noble Lord, Lord Shinwell, that we are considering only the difference in procedure, and I should not wish to spend a lot of time on this. Nevertheless, it makes a difference to parliamentarians whether one procedure or another is used, because there is no doubt that orders have slipped through without parliamentarians in either House knowing that the Government were doing something until it had happened, because the time for "praying" (as it is called) had expired.
§ Lord SHINWELL
Is it not a matter of vigilance on the part of Members in another place? If they were to follow 342 what is going on in the House, instead of spending so much time in the television room, the tea room, or perhaps the bar—I do not want to make heavy weather of that—they would know what was happening in the House. I have done this often myself when in Opposition. Of course if one is in Government that is another matter; one has to watch one's step. If I saw anything here which was worth fighting for I would say so, but it is a case of either one method of proceeding or another, and on the whole I would not bother about it.
§ Lord BALFOUR of INCHRYE
I should like to say a few words about this. I believe that this Amendment is most vital because it concerns the basis of the Executive against the Legislature. I am surprised that a Parliamentarian with such long experience as the noble Lord, Lord Shinwell, seems to see so little difference between the Negative and the Affirmative procedure. Those who have served in another place know full well that the Negative procedure is almost a farce as regards objection. Whatever Government may be in power, the Whips never seem to find time for a Prayer to be taken, and when Parliament is not sitting the number of statutory days which have to lapse before the Negative procedure order comes into force may well mean that Parliament never has an opportunity of debating the order.
I believe that in terms of the general principle of the Executive being checked by the Legislature, this is a highly important Amendment, and I sincerely hope that the Government will appreciate that point and reconsider whether the Affirmative procedure should be followed. There need be no great delay in dealing with an order under the Affirmative procedure. This procedure means that it can be debated. Unlike the position of the Negative procedure under which an order cannot be amended, under the Affirmative procedure it can be debated, taken back, and amended. Therefore, I repeat my hope that the Government will think very seriously about the basic importance of the Amendment, for the protection of Parliament.
§ Lord KIRKHILL
I should like to respond to the question put to me by the noble Earl, Lord Perth. I hasten to tell 343 him that there is not a legal definition for the word "expedient" but it is precedented in many Bills; one example in particular which I can quickly recall is the Northern Ireland Constitution Act 1973. Therefore, in this respect, I do not think that the Government are doing other than moving in a very traditional manner.
I have to say to the noble Lord, Lord Balfour of Inchrye, that the purpose of the amendments, as and when they occur, will be merely to tidy up minor points of detail, and because that is the case the Government do not believe that useful Parliamentary time should be taken up; hence the Negative procedure. The only point I want to make to the noble Lord, Lord Campbell of Croy, is that the Government think that Section 254 of the Local Government (Scotland) Act is the better precedent—and that is my advice.
§ Lord DRUMALBYN
If this matter is to remain as it is, I wonder whether the noble Lord can help by ensuring that, when orders of this kind are made, they are accompanied by an adequate explanatory memorandum. So often when orders are made there are only a couple of lines of explanation. An adequate explanatory memorandum would save everyone much time, and it would avoid the possibility of a Prayer having to be tabled in order to obtain an explanation, if for no other reason. I should be grateful if what I suggest could be done, given the special circumstances of this case.
§ Lord KIRKHILL
I shall certainly ensure that the remarks of the noble Lord, Lord Drumalbyn, are directed to the appropriate quarter.
Lord CAMPBELL of CROY
I have been looking up the Local Government (Scotland) Act 1973, and I see that its last section is 238; so I think that we are looking at different Statutes.
Lord CAMPBELL of CROY
I was about to withdraw the Amendment, but the ensuing interventions enabled other noble Lords to make their points, and so I should like to add to what the Minister 344 has said just now. If these matters are simply matters of detail, then an order will go through without debate. No one will want to have unnecessary debates on matters of detail, but there could be among these amendments matters which are of importance, and that is the reason why we are suggesting this procedure. As I said earlier, I should like to reserve the position of my two noble friends to raise this matter again at the Report stage, but now I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 78 agreed to.
§ Clause 79 [Commencement]:
§ 4.29 p.m.
Earl FERRERS moved Amendment No. 215:
Page 38, line 10, leave out from ("Parliament") to end of line 12.
§ The noble Earl said: This Amendment is consequential upon a decision taken during an earlier part of the Committee stage in relation to your Lordships' House voting on subordinate legislation. I beg to move.
§ On Question, Amendment agreed to.
§ Clause 79, as amended, agreed to.
§ Clause 80 [Referendum]:
The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey) moved Amendment No. 391:
Page 38, line 20, after ("Act") insert ("or that a majority of the answers given in the referendum have been 'No'").
§ The noble and learned Lord said: The purpose of this Amendment is to bring the Scotland Bill into line with the Wales Bill in its current state in so far as the important subsection (2) of Clause 80 is concerned. As your Lordships will recognise, this notorious subsection contains the provision about the 40 per cent. threshold of "Yes" votes which was carried into the Bill in another place against the advice of the Government. When the Scotland Bill was being considered by the other place, the 40 per cent. 345 provision was inserted simpliciter (although it is not the most straightforward of provisions) and it was inserted in substitution for a general provision for repeal of the Act by order if the result of the referendum and all surrounding circumstances suggested to the Government that that was the proper course to pursue. This left the result that the only circumstances in which the Act could be repealed by order were if the referendum resulted in less than a 40 per cent. "Yes" vote from those entitled to vote.
§ The sponsors of the threshold provision were alive to this by the time the Wales Bill came round to this matter in another place, and in considering the corresponding provision in that Bill the other place decided to insert an additional provision requiring the Secretary of State to lay an order for repeal of the Act if the referendum resulted in a simple majority of "No" votes whether or not the 40 per cent. threshold of "Yes" votes was achieved. The Government Amendment which I am recommending to your Lordships will bring the provision in the Scotland Bill into line. I hope it goes without saying that the Government would not wish to go ahead with devolution if there were a majority of "No" votes in the referendum, and it is therefore sensible to have a provision empowering repeal by order rather than requiring primary legislation. This does not of course mean that the Government expect a majority of "No" votes. Indeed, quite the contrary is the case. It is just a sensible piece of machinery which was catered for in the Bill as introduced but lost when the 40 per cent. provision was carried against the Government.
§ I apologise for giving a somewhat lengthy explanation of a really quite simple provision, but I thought it might be of assistance if I made the position clear. I should like in conclusion to make two other brief points as shortly as I can. The first is that in practice the provision in this Amendment comes into play only if, despite 40 per cent. of those entitled to vote saying "Yes", more than 40 per cent. say "No". This can of course happen only on a turnout of over 80 per cent., because if we do not get 40 per cent. saying "Yes" then Clause 80(2) operates as it stands.
§ The second point is that the noble Lord, Lord Drumalbyn—and I give him, if I 346 may, full credit for this—has spotted the defect that this Amendment is intended to cure and has put down on the Marshalled List his own Amendment, No. 216. The first leg of that Amendment is really to the same effect as the Government Amendment which I am now commending to your Lordships, while the second leg of the noble Lord's Amendment seeks to restore the general power of repeal by order in terms similar to those in the Bill as originally drafted. May I suggest to the noble Lord that having both the provisions suggested in the two legs of his Amendment could be rather confusing and liable to give rise to misunderstanding, because it cannot seriously be supposed that there could be any circumstances in which 40 per cent. of those entitled to vote said "Yes", and there was a majority of "Yes" votes, yet the Government of the day saw fit to bring in an order for repeal rather than lay a first commencement order before the House. That, I think, would hardly be understood. So, as regards this Amendment, the Government recommend the most convenient course as being to bring this provision into line with the similar provision now in the Wales Bill. I beg to move.
§ Lord DRUMALBYN
I am grateful to the noble and learned Lord for what he has said. I am not at all certain that I did not get my Amendment down before this was actually considered by the Committee on the Wales Bill, but that is by the way. As the noble and learned Lord says, the Lord Chancellor's Amendment does very much the same as the first part of my Amendment; and, of course, it does it very much more briefly. The reason why I had to do mine that way, of course, was because I did not want to touch subsection (2) as it stands in the Bill, so I had to devise another means of doing it.
I am not sure that I entirely agree with the noble and learned Lord that there would be no point in restoring the subsection which subsection (2) replaces as well as having subsection (2) as it now stands. It could well be an absolutely neck and neck show, rather like a cricket match being won by one run with a simultaneous appeal for lbw. In that kind of case, if there was almost nothing in it at all, I think a lot of us would feel that you cannot really treat a constitutional matter 347 of this kind as if it were a cricket match and say, "Those voting 'Yes' have just won, and therefore it is all right". Surely, in a matter of this importance, the mere fact that there had been such a huge turnout as there would have had to be in a case like this would show how keenly people felt. It would mean, let us say, a 40.3 per cent. vote in favour and a 40.1 or 40.2 per cent. vote against, or something like that. It is not inconceivable, because there was an 85 per cent. turnout in the French election. You could very easily have that; but it would mean something of that kind. My own personal philosophy is that you simply cannot legitimately make constitutional changes with a majority of that kind in a referendum; you need a very much higher majority to do so.
Therefore, while I do not propose to move my Amendment at the present time (because obviously it would be wrong to do so, as effect has already been given to the first part of it, and it would therefore be redundant) I think we may have to come back on the second part at the next stage and establish this matter of principle. To my mind, it is not enough to insist on a large turnout. If there were a large turnout on both sides it would show how very keenly this was felt, and if it were a very narrow majority then I think all the circumstances would have to be considered and there should still be the possibility, given the uncertainty and the chance of a tiny majority in a case like this, of the Secretary of State bringing in an Order in Council to repeal the Act. I think this is a feasible proposition, and if anybody else would like to confirm my view of it I should be grateful. If nobody confirms it, and if somebody talks very hotly against it, then I might not act at the next stage; but I really feel strongly about this, and I strongly suspect that would feel strongly whether or not I was in favour of the Bill. I do not think it should be treated like a cricket match.
§ Lord MOTTISTONE
I should very much like to support my noble friend in principle, and I would hope that when we come to the next stage of the Bill he may perhaps find another way of putting this which would solve the problem if the Government do not like it as it is. Perhaps I may add a question: Would it not have 348 been more appropriate to have had a golfing metaphor rather than a cricket one in a Scottish Bill?
§ Lord McCLUSKEY
Eschewing metaphors and, indeed, even heat, may I remind the noble Lord and the Committee that the situation which he envisages is one in which not less than 80 per cent. of those entitled to vote have cast their votes, where there is a majority in favour and where the Bill has passed through the normal legislative process in both Houses of Parliament. These are all circumstances which are surely relevant to his consideration, but no doubt he will bear that comment in mind as well as his own thoughts on the matter when he comes to consider what his position may be at a later stage.
§ On Question, Amendment agreed to.
§ [Amendment No. 216 not moved.]
Earl FERRERS moved Amendment No. 218:
Page 38, line 34, leave out from ("House") to ("Her") in line 36.
§ The noble Earl said: This Amendment, too, is consequential upon the removal of Clause 72. I beg to move.
§ On Question, Amendment agreed to.
§ 4.40 p.m.
§ Earl FERRERS moved Amendment No. 219:
Page 38, line 37, at end insert—
("(5) If a resolution under section 79(4) of this Act has been moved in each House of Parliament, but has not been passed, the Secretary of State shall lay before Parliament the draft of an Order in Council providing for the repeal of this Act.").
§ The noble Earl said: Now that the Government have seen fit to tidy up that part of the clause to which we have been referring, I wonder whether they will see fit to accept this Amendment which is a further tidying up of the clause. When the referendum has been held (and assuming that more than 40 per cent. of those who can vote have voted, "Yes"), then the Act, in theory, comes into force. The way it comes into force is that the Secretary of State lays the first order under Clause 79(4). That order is subject to the approval of Parliament. My 349 question to the Government is this. What happens if that order is not approved?— because this may well be the first occasion on which Parliament can give its verdict after the referendum has been held and the people of Scotland will have had their say in the referendum. But the situation is—and it has always been said to be—that the referendum is only advisory.
§ If less than 40 per cent. say "Yes", the Secretary of State is obliged to introduce an order repealing the Act and Parliament can, rightly, be the final arbiter and not agree to that order. But what if, say, 41 per cent. of the people say, "Yes" and 39 per cent. say "No"? It may be a very close thing. Parliament may wish to consider the advice which the Scottish people by their referendum will have given to Parliament. In these circumstances there will be no order to repeal the Act because over 40 per cent. of the people will have said, "Yes". The first opportunity for Parliament to consider this is when the order is placed before the other place bringing in the commencement of the Act.
§ If the other place, in its wisdom, for whatever reason, declines to give that order approval—and it is entitled to do so—one then has the situation where there is an Act of Parliament on the Statute Book but it has not been brought into effect. I know that there are occasions when Acts of Parliament have not been brought into effect. One obvious case which comes to mind is the Act of Parliament which permits a fixed date for Easter, which has been passed and yet the order bringing it into effect has not been produced for the last 40 years. But I am sure the Committee will agree that that kind of Act is in a very different category from this Bill.
§ It may be that if the Bill remains as it is the Government, having not had the order passed for the bringing in of the first stage of the Act, having not succeeded in getting that passed, could lay an order again and try to get it passed on a second occasion. It does not require a very vivid imagination to think of the various means, methods and pressures that might be applied to various people to try to get them to vote differently on the second occasion from the way in which they voted on the first. If Parliament declines to pass an order bringing the Bill into opera- 350 tion, then in my judgment it is fair to say that we cannot have a Bill of this substance floating around on the Statute Book waiting for somebody to bring it in. In these circumstances, if Parliament has declined to approve an order to bring the Act into operation after receiving the advice of the people of Scotland, the Secretary of State should be obliged to bring in an order repealing the Act in the same way as he would have done so if the referendum had not approved the Act. That is the purpose of this Amendment, and I hope that it commends itself to the Committee. I beg to move.
§ Lord McCLUSKEY
This was presented as a mere tidying-up Amendment by the noble Earl, but I do not regard it as such. I think it is important to recognise that one must read together Clauses 79 and 80. If we do that, I would invite your Lordships to consider the conditions which have to be met before the Secretary of State can lay his first commencement order. They are the conditions that I was speaking about a moment ago in relation to an Amendment which was not moved by the noble Lord, Lord Drumalbyn. The conditions are, in the first place, that at least 40 per cent. of those entitled to vote in the referendum have to say "Yes". In the second place, there must be a majority of "Yes" votes; otherwise a repeal order has to be laid. If one gets over these hurdles and these particular stringent tests are met, is it to be supposed that Parliament will somehow decline to implement the Act and decline to let devolution proceed? That is the effect of the decision on the first commencement order as provided for in Clauses 79 and 80. That, in my submission, is unthinkable and we are liable to be misunderstood in Scotland and elsewhere if we accept an Amendment based on the proposition that Parliament would wish to fly in the face of the kind of support which would be expressed in the referendum if these tests were passed.
The noble Earl has suggested that it is conceivable—and, of course, it is conceivable—that there might be 41 per cent. voting "Yes" and 39 per cent. voting "No". But is the official Opposition in this House saying that if there is an 80 per cent. turn-out, or better, and if there is a majority in that turn-out in favour of devolution, the House should not pass 351 the first commencement order? Surely that is a dramatic departure from any concept of a referendum that we might have. Was any such suggestion contained in the Referendum Act 1975, or is this the first time that it has emerged? If it is the first time, why has it emerged? Why are the Conservatives running away from democracy?
In elaborating his point, the noble Earl referred to the possibility that the Secretary of State might not get his first commencement order and the Act might somehow be left (like the Easter Act 1928, I think) to fester on the shelf for many years. I would suggest that this is a red herring. Surely Parliament would be taking a key decision on the first commencement order following the referendum. The conditions precedent to the laying of such an order are sufficiently stringent for it to be quite unreal, and indeed impossible, to conceive that Parliment would refuse to pass the order. I seriously suggest to your Lordships that this Committee would be unwise to accept an Amendment founded on the scenario painted by the noble Earl.
The proposed Amendment is unnecessary and, more than that, it very easily could be misunderstood and misrepresented as a proposal to stifle devolution, albeit there was a majority in favour of devolution and the stringent tests laid down were passed. May I remind the noble Earl that if we got ourselves into a situation where there was a better than 80 per cent. turn-out and a majority, albeit a narrow one, in favour of devolution and if the Government of the day wanted to stop the devolution Statute, the Scotland Bill, from coming into effect, surely the proper course then would be to introduce legislation to repeal the Act and to allow the matter to be debated in the proper form in both Houses in that context. I submit that this Amendment should not be accepted.
§ Lord MOTTISTONE
On a point of clarification, if 41 per cent. vote "Yes" and 45 per cent. vote "No", does the order have to be laid?
§ Lord McCLUSKEY
No. I think the noble Lord will see from the Amendment that I moved a few moments ago that, if there is a majority of "No" votes, the 352 effect of reading the clause as amended and the two clauses together is that the Secretary of State does not lay the first commencement order and the Act is repealed.
May I with respect submit to the noble and learned Lord that the Conservative Party do not wish to run away from democracy. What we are attempting to do is to run away from the elected dictatorship of what might be a very small majority indeed.
§ Lord DRUMALBYN
May I make the point, as the noble Lord has stressed it already, that the referendum is consultative, so there is no question of "running away from democracy". I hope the noble and learned Lord will reconsider that phrase. May I further point out to him that there are democracies that have constitutional legislation providing for two-thirds majorities in order to achieve a change.
§ Lord McCLUSKEY
What occasioned my using that phrase was that if one looks at the terms of this Amendment, it reads:If a resolution under Section 79(4) of this Act has been moved in each House of Parliament, but has not been passed …".Therefore, the situation envisaged is that the turnout is 80 per cent. or better; that there is a majority in favour of devolution, but that one or other House then does not pass the resolution to bring the Act into force. That is the scenario which I suggest would be a departure from democracy. If there is a referendum and the result is that the majority are in favour of devolution and they have also passed the substantial 40 per cent. hurdle, surely the Houses are not going to say, "No, you still cannot have devolution". What do we have to do to get devolution?
All I know is that if ever I get into a legal muddle, I shall turn to the noble and learned Lord, Lord McCluskey, to get me out of it, because he is extraordinarily persuasive. He tries to make out that anyone else's case is quite pathetic. I am prepared to believe that my cases very often are pathetic; but on this occasion I do not think that that is so. With the greatest respect, I think that the noble and learned Lord has read far too much into this Amend- 353 ment. He told me yesterday that I was talking nonsense. I could pass the "pleasantry" back to him when he said that the Conservative Party were running away from democracy. Everyone knows —and the Government have always said —that a referendum is only advisory. What the noble and learned Lord said this afternoon is far more frightening: that the referendum is apparently going to be binding on Members of another place, and that if the referendum says one thing —and the noble Lord said it a few minutes ago—it would be unthinkable that Members of another place would vote against it or vote in a different way.
The whole point of this procedure is that the referendum is advisory and then Members of Parliament choose to vote in the light of that advice. The way they vote, bringing this Act into operation, is by voting upon an order laid by the Secretary of State. Even if there is a "Yes" vote in the referendum, there still has to be a commencing order. Even if there is a "Yes" vote, that is still an advisory vote on behalf of the referendum.
Parliament is sovereign upon bringing the Act into operation. If the noble and learned Lord says: "It is unthinkable that the House of Commons would disagree," then I agree; I think it would be very surprising if they did. But they can disagree, under this Bill and they can say: "We have taken the advice of the referendum but we do not think, for a variety of reasons, that it is right that this Act should go forward. This has always been part of the Government's philosophy", and that is quite right. If they vote against the order, the Act is left suspended without being brought into operation. That would be an intolerable situation. If another place says, "We will not accept this Order" there should be an obligation on the Secretary of State to repeal the Act. I do not know whether the noble and learned Lord has any views that he would like to express in the light of that argument. This is an important point, and I should like to have the opinion of your Lordships upon it.
§ Lord McCLUSKEY
Before we divide on the matter—if we are being driven to that in pursuit of the Conservative notion of democracy—may I say this. The key decision will certainly be taken in 354 relation to the first commencement order. Of course the referendum is consultative only. What I am saying is that it is inconceivable that if all the other tests have been passed either House of Parliament will say, "No, you still have something else to do". I cannot believe that that is a realistic scenario. To amend the Bill upon the basis of some fantastic possibility is, in my submission, unwise and liable to be misleading.
The noble and learned Lord says that it is inconceivable and is unlikely to happen. I agree; but if that were the case, this Amendment would not bite. It would not operate if this unlikely event never happened. It is only in the unlikely event that it might happen that the Amendment would operate.
§ Lord MACKIE of BENSHIE
It appears that what the noble Earl is proposing is simply that if Parliament flies in the face of the enormous amount of work and thought and a referendum which has surmounted a very stiff hurdle of 40 per cent. of the vote and decides to go against the referendum—which everyone admits they have every right to do whether it be wise, right or proper—what the noble Earl is suggesting is that they should be under an obligation to repeal the Act. This would be unwise. If Parliament were unwise enough to do this probably there would be a change. Can the noble Earl imagine us going through all this process again? Does he not realise that this is the 13th day of this Committee? Surely, if the Act passes through Parliament, and passes the stiff hurdle of the referendum and then, at the end of the day, the House of Commons are foolish enough not to follow the wishes of the people, it would be far better to let the Act sit and await a more sensible House of Commons.
Lord CAMPBELL of CROY
Before the noble and learned Lord answers that point and any others, may I say that my noble friend is trying to help the Government to make the machinery in the Bill complete. Both my noble friend and the noble Lord, Lord Mackie, have spoken about having taken the hurdle of the referendum. But there is a scenario in which there could be argument about the result of the referendum. If it were to come out as 39.9 per cent. or 40.1 per cent. 355 or something close to 40 per cent., as it is only advisory in its effect there could be a lot of argument—particularly with the SNP talking about the number of dead men on the register being equivalent to 1 per cent. or 2 per cent., and so on—as to whether it had taken the hurdle or whether it had taken some of the brushwood off the top of the hurdle and not passed that hurdle. In that situation, there could be a difference of opinion as to whether the referendum had really reflected the opinion and passed the hurdle as shown in the Bill.
In that situation, I think that the Secretary of State for Scotland would be in an exceedingly difficult position. There is no doubt about that. If the figure was around 40 per cent., he might think: "I must lay an order because I must get the opinion of Parliament as to what they think in the light of this situation". In that situation it would be questionable what the answer would be from Parliament. We in Parliament at Westminster have to consider and provide for the possibilities that can arise. This is definitely one of the possibilities that could arise. The Secretary of State for Scotland will be in a difficult position if there is that result. But we do not want to find that there is nothing in the Bill to look after the situation where the House of Commons has disagreed that an order is necessary, does not think that the hurdle has been taken but that the Bill is still left in limbo.
§ Lord MACKIE of BENSHIE
I merely wanted to point out that the "dead men" argument is not important, because they would vote "No", and so it is unlikely to be used. But even if it barely passes at 40 per cent. it is still an enormous vote in favour. If we get General Election figures, it is still somewhere over 60 per cent., which is substantial.
Lord CAMPBELL of CROY
That is my point, because if it came out at, say, 39.9 per cent., people would also say: "That is a very big figure and a very good percentage. It has not quite passed the hurdle but we think it is good enough". That is the just the kind of situation where the final decision would lie with another place and the real decision would be on the order. What happens if that order is not then passed needs some provision making in the Bill.
§ 5.1 p.m.
§ Lord HUGHES
I think there is no doubt that the intention in inserting the 40 per cent. was to erect hurdles which the opponents of the Bill thought it would not succeed in getting over; but I think perhaps one of the things they have overlooked—and by that I mean those people who were hoping the Bill would fail—is that in fixing the 40 per cent. which, as the noble Lord, Lord Mackie of Benshie, has said, represents a very substantial vote in favour, they have really created a situation where, if it does get more than 40 per cent. the House of Commons has placed itself in a position where it may have the legal right to do anything it pleases but it will have no moral right to do anything other than implement the Act. Where Parliament's discretion will arise, and where it will have to exercise judgment, is in the other situation indicated by the noble Lord, Lord Campbell of Croy. If it fails to get past 40 per cent. but gets reasonably near to it, Parliament then must decide whether or not to let it go through, even though the 40 per cent. has not been reached. Presumably, if it reached only 25 per cent., opponents in another place or here would say: "Of course, the people of Scotland do not want it and this is the end of it".
But with a provision made for the repeal of the Bill in the unlikely situation, I would think, of a percentage being reached of 35, 36 or 37, there might very well be strong pressure for it not to be implemented. However, I suggest that the course of action proposed from the Liberal Benches is the obvious thing: to let it sit until a more reasonable view can be brought to bear—when I say "a more reasonable view", I mean what the people of Scotland would regard as a more reasonable view—rather than rushing through the repeal of the measure. Certainly the demand would not go away, and Parliament would find itself being asked after another Election to do the whole thing all over again.
§ Lord DRUMALBYN
I wonder whether inadvertently the noble and learned Lord, Lord McCluskey, misled my noble friend Lord Mottistone. I understood that he agreed with my noble friend that the Secretary of State would not have to lay an order before Parliament if the vote was "No". My impression was 357 that he said that. Would the noble and learned Lord agree? Perhaps I misheard him, or perhaps he did not quite say what he meant to say; I do not know. But I think that what he said earlier made the matter quite clear; that is to say, if there is not a 40 per cent. "Yes" vote, or if there is a "No" vote, then the Secretary of State has no option but to lay before Parliament an order. That is so is it not?
§ Lord McCLUSKEY
May I put the matter clearly by reading short Clause 80(2), as amended:If it appears to the Secretary of State that less than 40 per cent. of the persons entitled to vote … have voted 'Yes' … or that a majority of the answers given in the referendum have been 'No', he shall lay before Parliament the draft of an order … for … repeal …".That is what I intended to say. If I used other words, and if they were liable to misconstruction, I apologise.
§ Lord DRUMALBYN
I think that is quite clear. Then, if I understood my noble friend correctly, he was saying that another place might not accept that order. After that, I am afraid that I got lost in the argument; but it is clear that either House might not accept the order. Whether either House would be entitled to act in that way, I am not sure. I should have thought they would be under a very strong moral obligation to support the Secretary of State's order, given what is in the Bill. But what I understand my noble friend to be saying is that one House or the other might not take that view, for one reason or another. Then what is happening is that the Bill remains on the shelf entirely, so to speak, and the Secretary of State would not then be obliged in any way to appoint a day—would he, or would he not?—in such circumstances.
What my noble friend is saying is that if either House has rejected the order repealing the Act, then the Act simply stays in being until the Secretary of State makes the first appointed day. I take it that my noble friend has in mind that there is no other way of disposing of the matter if the Secretary of State declines to make an order for the first appointed day. Can the noble and learned Lord help us with this? The means which my noble friend has suggested of getting over this is by bringing in a second order saying: "You have rejected the first order for repeal but, 358 given the circumstances and the fact that I am not going to appoint a day, will you now support me by repealing the Act?" That is what I understand to be the intention and that would be one way of resolving the matter. Can the noble and learned Lord say whether there would be any other means of resolving it?
§ 5.8 p.m.
§ Lord SHINWELL
The implication contained in the speech to which we have just listened and in so many other speeches that have been made seems to indicate that we cannot trust the other place. The scenario we have to consider is that of a Bill having passed through all its stages in both Houses of Parliament, and having been endorsed by a decision of the people of Scotland—that is to say, that a certain number (stipulated in the Bill) will agree with the words that are contained here: "Do you want the provisions of the Scotland Act, 1978, to be put into effect?" This is the Bill we are, and have been, discussing. It is suggested that in another place some recalcitrants will say: "We do not care two hoots about a democratic decision derived from a referendum which has taken place in Scotland. We do not want this Bill".
What about this Chamber? What do the noble Lords, Lord Drumalbyn and Lord Campbell of Croy, suggest? We have gone through all these stages and listened to all the legal, forensic, judicial and ancillary arguments, night and day —though some of us have the common sense to remain outside occasionally, otherwise we would have gone off to sleep, if indeed we did not do so occasionally. When we were almost reaching the end of the day what would we do then, as democrats? It is a very interesting question. Are we not democrats? Of course, we would say, "We went through all these stages, all these procedures et cetera. We accept the decision of the people of Scotland and this Act must go through."
I went to the other place in 1922, which is a long time ago, and perhaps I know it better than anybody else here. But I cannot believe that, having gone through all the stages there—and I know that there has been considerable and justifiable controversy; perhaps they ought not to have agreed to the referendum, but there 359 was a majority in favour of it—they would refuse to accept the decision and not allow the Scottish Assembly to be established.
I want to make just one other observation, and then the noble Lord, Lord Drumalbyn, can have the Floor with the full consent of your Lordships, and certainly with my consent. I recall what happened in connection with the EEC. There was a referendum, and a majority of people in the country decided on association with the European Community. Of course, there were some objections raised by the anti-Common Marketeers, people like myself who believe in Britain; the super-patriots. That is not what they called us; they used other names, but we endured and tolerated that. But once the decision was taken there was no question of refusing accession, when it came to the point. There was a debate on it and the decision was accepted. So far as I know, nobody seeks to repeal it. Certainly, nobody in this House wants to repeal it. It was a decision of the people of this country which we accepted, and the same will apply here.
I must say I am amazed that there is any suggestion by implication, if not directly, that in another place, after having gone through all the processes and procedures, they will say "We are not democrats at all. We do not care two hoots for the people of Scotland. We shall decide." My noble friend Lord Hughes, who knows much more about these matters than I do, has suggested that there is no legal obligation upon the other place, although there is a moral obligation. But there is both a legal obligation and a moral obligation. There is a legal obligation, because they have decided to promote and proceed with this Bill, and they have also decided on a referendum. Therefore, if there is a legal and a moral obligation, that should be quite sufficient for us.
§ Lord DRUMALBYN
I am very grateful to the noble Lord, Lord Shinwell. I find myself in substantial agreement with him, but it is not quite the point that I was putting to the noble and learned Lord, Lord McCluskey. Before he replies, may I simply say this. Subsection (2), which we now have, is not as originally drafted. The original subsection (2) gave the 360 Secretary of State discretion to draft an order. Even though there was a majority in favour, he could have drafted an order for the repeal of the Act, after considering all the circumstances. I am wondering whether we have completely eradicated that from our minds, in considering the present case. Most certainly in that case, my noble friend's Amendment would have been entirely appropriate, because the House might not have accepted that view. I am inclined to think, as the noble Lord said, that given the Bill in its present form both Houses are bound to accept that view, if the conditions in the clause have been fulfilled. But I was really asking the noble and learned Lord whether he could help us on this.
§ Lord McCLUSKEY
It is important to recognise that we are talking about an order under subsection (2) of Clause 80, and an order under Clause 79. Let us suppose that the voting was 39 per cent. in favour of bringing the Act into operation and 15 per cent., or something of that kind, against; there was an overwhelming majority, but a failure to get over the 40 per cent. hurdle. Of course, the referendum is only advisory and, although this subsection would require the Secretary of State to come before Parliament with a draft Order in Council, Parliament might well say "There was a substantial majority in favour on a sufficient turnout. Therefore we refuse to repeal this Act". But the logic of that is that the Secretary of State, having been told by Parliament that the Act is not to be repealed, and Parliament having been advised by the referendum that they ought to go ahead—or having so construed the advice—he will come forward with a commencement order under Clause 79 of this Bill. I think that that is the point which the noble Lord, Lord Drumalbyn, raised. I hope that it was, and I trust that I have dealt with it.
I should add in general terms that of course I confirm that the referendum is still advisory. Unfortunately, what has happened is that, because of the introduction of the 40 per cent. provision, it has seemed to lose some of its advisory character. One of the reasons why the Government argued against the introduction of the 40 per cent. hurdle was that it enables people to say "If the 361 40 per cent. hurdle is passed, then Parliament has no option", whereas Parliament is not surrendering to the electorate its power to decide. It is the referendum which will advise Parliament, although what I say is that it is inconceivable that, if all the tests are passed, Parliament will reject that decision of the electorate. I do not want to add anything more to this debate, which has gone on long enough for my purposes. The hour grows late, and I believe that the noble Earl wants to come to a conclusion.
Lord CAMPBELL of CROY
I do not waste the time of the Committee, but may I raise this point? The noble Lord has described a situation where 39 per cent. might have voted in the referendum but because the "Noes" were a small percentage the Secretary of State decided to lay an order. Therefore, the Act would not have passed the 40 per cent. hurdle of the referendum, but the Secretary of State would none the less lay an order because the referendum is advisory.
§ Lord McCLUSKEY
I beg the Committee's pardon. What I was saying was that he would have no option but to lay an order for repeal of the Act under Clause 80(2), even if 39 per cent. voted in favour, 15 per cent. voted against and the rest abstained.
Lord CAMPBELL of CROY
But could there not be a situation where the Secretary of State decided that, because the referendum was only advisory and it was a very close thing—perhaps 39.9 per cent.—he could lay an order in the other direction, which would enable the question of bringing the Act into effect to be settled by the House of Commons?
§ Lord McCLUSKEY
With respect, I think that that is a wrong interpretation. Under Clause 80(2), even if there is a massive majority in favour, although it does not amount to 40 per cent. of those entitled to vote, the Secretary of State has no option but to come forward with an order for the repeal of the Act. Of course, the attitude taken by Ministers and by Parliament is not determined by anything in the Bill, but he has to follow that procedure.
Lord CAMPBELL of CROY
I am grateful for that interpretation. As the noble and learned Lord has said himself, the insertion in the referendum of the 40 per cent. figure has therefore altered to some extent the advisory situation of that referendum. I agree with what the noble and learned Lord has said. None the less, an order would be laid in another place. We refer to another place because we recognise that, as the democratically elected body, it would have to take the decision; but it could then take a decision which was contrary to the Secretary of State's intention. That situation has still to be dealt with.
§ Lord HUGHES
Assuming that the situation arises that there is a 39 per cent. vote, the Secretary of State, in accordance with the terms of the Act, must, as my noble and learned friend has said, lay the order before Parliament. He may say, "I don't want to approve the order", but he must lay it before Parliament.
§ Lord HUGHES
However, in these circumstances, the composition of Parliament being as it is at present, it is possible that the order might be passed. If it were to be passed, there is at leapt a chance that it would be passed by a very small majority. This is the case for not repealing the Act on the passing of the order. At least by October of next year there will he a new Parliament and an altogether different majority. It might well be that another order placed before Parliament at that time would be carried by a substantial majority. However, if the Act were to be repealed, the next Parliament would have no opportunity to implement devolution unless again it went through the whole process of a Scotland Bill.
It has been said that it would be dreadful for the Bill to be put into limbo in that way. I recollect that periodically we are asked a Question in this House as to whether the Government intend to implement the Easter Act which has been on the Statute Book for a very long time. I do not expect that the Scotland Bill would remain unimplemented for anything like that length of time. However, it might be reasonable to make sure that the 363 opportunity to implement it remained for a year or two at least after it has been passed. If this Amendment is passed and is allowed to remain in the Bill, that opportunity will be lost. I do not believe that the Amendment would serve a useful purpose so far as this Parliament or the people of Scotland are concerned.
§ The Earl of PERTH
May I follow up the point which has been made by the noble Lord, Lord Hughes. As I read the Amendment, we are worrying not about a possible scenario of one kind or another but about what happens if a Resolution under Section 79(4) of this Act has been moved in each House of Parliament but has not been passed. That is the only point which is at issue at the moment—not all kinds of scenarios.
The Amendment proposes that in those circumstances the Act should be repealed. When I recall the pain and the trouble involved in the working out and passing of this Act—for I suspect that it will be passed during the remainder of the lifetime of this Parliament—it seems to me that under certain conditions it would be a great pity if there were to be a mandatory demand that because such a Resolution had not been passed in either House we had to repeal the Act.
If I may follow up the point which has been made by the noble Lord, Lord Hughes, I am wondering whether or not we could say that after period X the Act should be repealed rather than it should hang in the air for ever. It seems to me that it would be a great pity if, for some reason or another (which does not, in a sense, matter), it were mandatory to repeal the Act now and then in a year or two again we had to face a situation which we did not know where everybody said, "Oh, I wish that we had it". Noble Lords should think about what that would involve. May I ask the noble Earl, Lord Ferrers, to consider withdrawing the Amendment and looking at it again to see whether or not he could say that after a certain period of time it should be obligatory upon the Secretary of State, or whoever it may be, to repeal the Act?
§ Lord WILSON of LANGSIDE
Before the noble Earl replies, from what the noble Lord, Lord Hughes, and the noble Earl, Lord Perth, have said and in the light of the 364 debate that we have had on this Amendment, I hope that it will not have escaped the notice of your Lordships' Committee that this measure is admirably designed to bring a state of stability into the constitutional arrangements of the United Kingdom.
§ 5.25 p.m.
I am bound to say that at one time I thought we had gone slightly off the rails. If I may say so, the noble Lord, Lord Hughes, put his finger completely on the point. It is simply this: if the referendum is to be advisory, it means that in the end the last word is up to the House of Commons. And that is correct. If the result of the referendum is that less than 40 per cent. of the electorate say, Yes, then the House of Commons will have the opportunity to vote.
I assure the noble and learned Lord, Lord McCluskey, that this is supposed to be a helpful Amendment. It is not of the nature which he described, for the reason that it refers to the commencement of the Act in Clause 79(1), which says:The preceding provisions of this Act (and the Schedules relating to them) shall not come into operation until such day as the Secretary of State may by order appoint".Subsection (4) reads:The first order under this section shall not be made unless a draft of it has been laid before Parliament …".That is the first occasion upon which, if this Act is to be brought into operation, another place will have the opportunity to say, for whatever reason, "No, we do not want it". If the referendum is to be advisory, that permission must be allowed to another place.
If, for whatever reason, another place say, "No, we do not want the first commencing order to come into operation", then we are left in the situation that this Bill, rather like a hot air balloon, will be going to the top of the ceiling and waiting for somebody to pull it down by a string—by another order. I do not believe that that is suitable. Both the noble Lord, Lord Hughes, and the noble Earl, Lord Perth, have said that we should leave the matter for a while because of all the trouble that we have gone through. That is a thoroughly sympathetic argument which I understand. But the fact I is that, at the end, the referendum—and 365 the House of Commons—are determining this Bill. If they say that they do not want this Bill to be passed, it seems to be absurd to say that we should leave it in limbo and see whether or not we can get more people to vote for it on another occasion.
My answer to both the noble Lord, Lord Hughes, and the noble Earl, Lord Perth, is that under my Amendment the Secretary of State will have to bring forward another order repealing the Act. If the Members of another place do not want that Act to be repealed but want it to be left in limbo, then they will have the opportunity to say so when the Secretary of State brings in the amending order or the repealing order which my Amendment suggests.
§ Lord HUGHES
My point is that, if Parliament has declined to pass the order, it is most unlikely that, hard on the heels of it, they would take a contrary decision—in other words, that the Act would be repealed. May I remind your Lordships' Committee that in the case of many of the Amendments which go from this House to another place the argument is put forward that the reason for those Amendments is to give the other place the opportunity again to consider the matter. My suggestion—a time limit was suggested to be added to it by the noble Earl, Lord Perth—is that the other place should have the opportunity again to consider the matter. But that is an opportunity which they must give to themselves. If they rejected it in 1978 or early in 1979, they might take a contrary view at the end of 1979 or in 1980.
If this Amendment is passed, the other place will not have the opportunity to have second thoughts after a little while. There is very little chance of a view being changed in a matter of weeks. If, however, they rejected the order and then there was mounting pressure throughout Scotland for the Act to be implemented, it might be found, in the matter of a year or so, that there would be sufficient people who had changed their minds, thus enabling the Act still to be brought into operation.
The very least that I would urge the noble Earl, Lord Ferrers, to consider is the point put by the noble Earl, Lord Perth, not to press this Amendment today but to consider whether or not his purpose 366 would be met by putting a timetable on it, because on my own argument if the Government had not done anything about it in three, four or five years, it would mean that there had not been a lot of pressure on them, they did not feel it was necessary, and from that point of view they could probably repeal the Act with impunity.
§ 5.30 p.m.
§ Lord WIGG
I honestly do not think that the noble Lord, Lord Hughes, can be allowed to get away with that. The point that has been made time and time again during the Committee stage, that the other place should be given a second chance to think, is the same point as has been made by the noble Earl, Lord Ferrers. What is being argued by the noble Lord, Lord Hughes, in relation to this is not giving the other place a chance to think twice in relation to this House but to think again in the light of the decision of the people of Scotland after the referendum. Written into the Bill is 40 per cent. If the figure of 40 per cent. is reached, then I presume he will be playing the bagpipes; they will be home and dry and they will take the prize. If they lose, if they are beaten by a short head, what he wants to do is to say: "Do not give the prize to anyone else. Just leave it on the stand so that we can have another race when it suits me".
My position is quite clear: I regard this Bill as near treason. It aims at the very basis of the unity of the United Kingdom and that is why I oppose it. If this Bill goes on the Statute Book, it will be "goodbye" sooner or later to the United Kingdom of Great Britain. Therefore I want its throat cut, and the sooner its throat is cut, the sooner I want it buried. I shall have great pleasure in voting with the Opposition if they put it to a Division, as I hope they will.
§ Lord HARMAR-NICHOLLS
I think the noble Lord, Lord Hughes, is on a weak point from the Parliamentary point of view. In my view, this is a bad Bill, and the one danger that can flow is that, irrespective of its merits, there is uncertainty about the Bill. It is bound to affect possible investments in Scotland, and unfortunate things may flow from that now while there is uncertainty as to whether or not they are to have this 367 devolved Bill. We must tolerate that; uncertainty that operates before a Bill becomes an Act applies to all legislation.
If it becomes an Act, if we have the referendum, and if the referendum says that it is wanted, and that is supported by the Government of the day, then the sooner we attempt to work this awful Bill, the better; at any rate the uncertainty will have been settled. But if the referendum says that it is not wanted, and if the Government of the day are going to be influenced by the advice they get from the referendum, then the sooner it is dropped, the better. I am not speaking about the Bill but about the speech made by the noble Lord, Lord Hughes. I think the noble Lord, Lord Wigg, is absolutely right in saying, in effect, "Give us the chance to have second thoughts when the atmosphere may be different". As the noble Lord, Lord Wigg, put it, run the race again. To retain uncertainty as to whether or not we are going to have it can be dangerous. I would rather that we had it and tried to work it than have it left in a state of limbo, with all the damage that would do, both to the United Kingdom as a whole and to Scotland itself. So I should have thought that the advice being given by the noble Lord, Lord Hughes, ought not to be taken.
It seems to me that my noble friend's argument is very sound. If this Amendment is passed we shall still be leaving it to the other place to decide whether or not they will accept our advice, and they will have second thoughts there. I would not go beyond that. I think it is a little unfair of those who are enthusiastic about
§ the Bill to feel that they can lose the race and still have the riband as though they had won it.
§ Lord HUGHES
I thought for one horrible moment that the noble Lord, Lord Harmar-Nicholls, was coming down on my side. That would have appalled me.
The one thing that I am quite sure would be wrong is if in fact the order being brought into another place to bring this Act into operation were to be rejected and the Act nevertheless to hang about. As my noble friend has said, this would cause intense consternation. Nobody would know where they were and there would be frantic pressures put on all sorts of people and on the Government to try to get a firm decision.
I hope your Lordships will support me in this because if this Amendment is accepted, and if the Secretary of State under the Amendment, were to bring in an order to repeal the Act, then the House of Commons would have the opportunity to say whether it wanted the Act to remain in limbo. In my judgment either this Act ought to be brought into effect or it ought not, but to leave it somewhere up in the sky, with the Act passed and the order to bring it into operation not made, would be most unsatisfactory.
§ 5.36 p.m.
§ On Question, Whether the said Amendment (No. 219) shall be agreed to?
§ Their Lordships divided: Contents, 101; Not-Contents, 94.369
|Alexander of Tunis, E.||Coleraine, L.||Falkland, V.|
|Amory, V.||Cork and Orrery, E.||Ferrers, E.|
|Auckland, L.||Craigavon, V.||Fortescue, E.|
|Avon, E.||Croft, L.||Gainford, L.|
|Balfour of Inchrye, L.||Cullen of Ashbourne, L.||Glendevon, L.|
|Belstead, L.||de Clifford, L.||Gowrie, E.|
|Berkeley, B.||De Freyne, L.||Gray, L.|
|Birdwood, L.||Denham, L.||Gridley, L.|
|Boyd of Merton, V.||Drumalbyn, L.||Halsbury, E.|
|Bradford, E.||Dundee, E.||Harcourt, V.|
|Caccia, L.||Ebbisham, L.||Harmar-Nicholls, L.|
|Campbell of Croy, L.||Eccles, V.||Hawke, L.|
|Carr of Hadley, L.||Ellenborough, L.||Hemphill, L.|
|Cathcart, E.||Elles, B.||Henley, L.|
|Chelwood, L.||Elliot of Harwood, L.||Hereford, V.|
|Clancarty, E.||Elton, L.||Hylton, L.|
|Clwyd, L.||Emmet of Amberley, B.||Kimberley, E.|
|Cockfield, L.||Faithfull, B.||Kinnaird, L.|
|Kinross, L.||Newall, L.||Sempill, Ly.|
|Lauderdale, E.||Northchurch, B.||Sharples, B.|
|Linlithgow, M.||Orr-Ewing, L.||Skelmersdale, L.|
|Long, V.||Pender, L.||Spens, L.|
|Lyell, L. [Teller]||Penrhyn, L.||Strathclyde, L.|
|McFadzean, L.||Platt, L.||Strathcona and Mount Royal, L.|
|Mancroft, L.||Rankeillour, L.||Strathspey, L.|
|Margadale, L.||Rawlinson of Ewell, L.||Teynham, L.|
|Marley, L.||Reigate, L.||Tweeddale, M.|
|Massereene and Ferrard, V.||Rochdale, V.||Tweedsmuir, L.|
|Minto, E.||Ruthven of Freeland, Ly.||Vernon, L.|
|Monson, L.||St. Aldwyn, E.||Ward of North Tyneside, B.|
|Montgomery of Alamein, V.||St. Davids, V.||Wigg, L.|
|Morris, L.||Sandford, L.||Wilson of Langside, L.|
|Mowbray and Stourton, L.||Sandys, L. [Teller]||Younger of Leckie, V.|
|Moyne, L.||Selkirk, E.|
|Aberdeen and Temair, M.||Greenwood of Rossendale, L.||Paget of Northampton, L.|
|Amherst, E.||Hale, L.||Pannell, L.|
|Ampthill, L.||Hamnett, L.||Parry, L.|
|Aylestone, L.||Hampton, L.||Perth, E.|
|Baker, L.||Harris of Greenwich, L.||Ponsonby of Shulbrede, L.|
|Banks, L.||Hatch of Lusby, L.||Rhodes, L.|
|Beaumont of Whitley, L.||Hughes, L.||Ritchie-Calder, L.|
|Bernstein, L.||Hylton-Foster, B.||Sainsbury, L.|
|Birk, B.||Jacobson, L.||Samuel, V.|
|Blyton, L.||Jacques, L.||Seear, B.|
|Boston of Faversham, L.||Janner, L.||Segal, L.|
|Brimelow, L.||Kaldor, L.||Shinwell, L.|
|Byers, L.||Kilbracken, L.||Simon, V.|
|Champion, L.||Kilmarnock, L.||Somers, L.|
|Chitnis, L.||Kinloss, Ly.||Stamp, L.|
|Collison, L.||Kirkhill, L.||Stedman, B.|
|Cooper of Stockton Heath, L.||Leatherland, L.||Stewart of Alvechurch, B.|
|Crook, L.||Lee of Newton, L.||Stone, L.|
|Cudlipp, L.||Listowel, E.||Strabolgi, L. [Teller]|
|David, B.||Llewelyn-Davies of Hastoe, B.||Tanlaw, L.|
|Diamond, L.||Lloyd of Hampstead, L.||Taylor of Mansfield, L.|
|Donaldson of Kingsbridge, L.||Longford, E.||Wall, L.|
|Douglas of Barloch, L.||Lovell-Davis, L.||Wallace of Coslany, L.|
|Dowding, L.||McCluskey, L.||Wedderburn of Charlton, L.|
|Elwyn-Jones, L. (L. Chancellor)||Mackie of Benshie, L.||Wells-Pestell, L. [Teller]|
|Evans of Claughton, L.||McNair, L.||Willis, L.|
|Evans of Hungershall, L.||Maelor, L.||Winstanley, L.|
|Feversham, L.||Milner of Leeds, L.||Winterbottom, L.|
|Gardiner, L.||Morris of Grasmere, L.||Wootton of Abinger, B.|
|Garner, L.||Murray of Gravesend, L.||Young of Dartington, L.|
|Gordon-Walker, L.||Northfield, L.|
|Goronwy-Roberts, L.||Oram, L.|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ 5.46 p.m.
§ On Question, Whether Clause 80, as amended, shall stand part of the Bill?
Before we leave this clause, I wonder whether we could reflect for a few minutes on what we, as Parliament, are doing by the referendum. The word "referendum" has a delightfully democratic flavour about it, and one might say at the outset, "Who can object to asking the people their opinion?" It sounds fine, but it has become the new maypole around which we all seem to be dancing. I believe this to be a dangerous 370 innovation in our national life, and I fear that in British politics the referendum is becoming the 20th century escape route by Parliament over our national affairs. In my judgment it reflects the distance which has grown between the activities of Parliament and the will of the people. It reflects the recognition of the power of Governments, however they are composed, who do not necessarily reflect the majority of voters, to inflict controversial and unacceptable legislation on to an unwilling electorate.
As a nation we have had one referendum—that on the Common Market. That was held for a bad reason; that is, to get the Prime Minister of the day off a hook. 371 We were members of the Common Market and it would have created acute embarrassment had we been obliged to unscramble that which we had legally and constitutionally entered into. The possible conflict of who wins, the authority of Parliament or the authority of the people, was mercifully never reached. But we had it again this afternoon. What happens if by this referendum the authority of the people says one thing and the authority of Parliament says another? Fortunately, in the case of the Common Market the referendum went the right way and these problems did not arise. But in some ways we seem to flock like bees around a honeypot to this new-found system as if it is the answer to many of our problems. We have it again in this Bill. The other day, the noble Baroness, Lady Stedman, said that the Assembly can call a referendum on anything it likes. Although I recognise the virtue of consulting the people, I believe this to be a dangerous innovation. It reduces the authority of Parliament and it invites conflict between Parliament and the people.
In the olden days, as one used to say as a child, the two things used to be the same, Parliament and the people; but the voice of Parliament reflected the voice of the people. That is what Parliament is here for and if Parliament does not do that now, then it is Parliament which is at fault. If Parliament gets out of touch with the people, I believe it is a very dangerous state to which we should find ourselves coming, and all the warning bells ought to be ringing. The corrective action is for Parliament to get back into touch with the people. It is not right to pass the buck of responsibility back to the people. The duty of Parliament, by the diversity of its two Chambers, is to legislate. That is what Members of Parliament present themselves to their constituents for and that is why their constituents send them to Westminster. In effect, the electorate is saying: "Legislation is your job; you do that, you look after our interests however complicated they may be, and if you make a muck of it we will send somebody else to do it next time".
Here we have the most complicated Bill which, whatever our views may be on it, we all recognise was generated by the indigenous and almost ethnic diversity 372 of interests and requirements as between the Scots and the English. It is going through Parliament throwing up in its wake a whole host of intricacies, complexities, unknowns and innovations. We who are privileged to sit in this Chamber, and who have the quite unique distinction of listening to the dissertations, of, for instance, the highest legal minds in the country on the impact of this Bill on our national and international law and how should or should not be amended, have come to realise just a little of what the Bill means. To those of us who have not yet arrived at the dizzy heights of my noble friend Lord Lauderdale's fourth form it has been rather like listening, as I ventured to suggest the other day, to the crack of rifle fire over our heads, and many of us have found that the best contribution we can make is to adopt a low profile.
What do we do? We then chuck the Bill back to the people of Scotland in a referendum and say, "What do you think about it?" How on earth are they going to answer that question with any degree of fairness or objectivity or knowledge? The question is not, "Do you want an Assembly?" Everyone understands that. The question is not, "Do you want to remain part of the United Kingdom?" Everyone understands that. The question is "Do you want the provisions of the Scotland Act 1978 to be put into effect?"—all Clauses 1 to 82 of it, Schedule 10 and all, and even the interpretation, as my noble friend Lord Selkirk has said this afternoon, of the Ministers of the Crown. How can the Scots, who have not had the privilege which Members of Parliament of both Houses have had of being close to the problem and hearing the arguments, answer that question reasonably?
I even venture to ask whether it is really right that Parliament should ask them to do so. I do not believe it is, because Parliament is negating its duty; it is giving back to the people the responsibility which the people have given to Parliament and which is rightly that of Parliament. Members of another place have, and have openly admitted that they have, voted in certain ways over some matters because there is to be a referendum, and by inference they might have voted in a different way had there not been a referendum. So Parliament passes over to the 373 people something which Parliament knows to be unsatisfactory in the hope that it will be the people who will put the knife into it.
I register my mild and humble protest that I do not believe this to be right. Nor do I believe it is what Parliament is for. Nor do I believe that people will be voting on the detail of the Scotland Act 1978, but in many cases the problems will be distilled, as my noble friend Lord Lauderdale said yesterday, down to, "Are you for Scotland or not?" If the cause of this Bill on which we seek the advice of the Scots is the inherently different indigenous requirements of the Scots and the English, why do we deliberately exclude from such a massive and far-reaching national determination the Scots who are temporarily working abroad and the Scots who are living in England? The noble and learned Lord, Lord Wilson, seeks to alter that later. But yet we include the English who are living in Scotland and those of a totally different ethnic culture who may come from many other countries who at present happen to be residing in Scotland.
Of course, we know the reason—the simplicity of operation. If you are going to run a referendum that is the only way you can do it. But is it not really misleading, and is it not an inadequate method of determining what the Scots want? What we are doing is not finding out what the Scots want, with all their national characteristics and idiosyncrasies, but what the inhabitants of a part of the United Kingdom which starts some 300 miles distant from Whitehall want. If distance from Whitehall and the centre of decision-making is the determining factor, then one might argue that Cornwall should even be asked. But if it is the Scots who as a nation are so inherently different—and I accept that there are many arguments for this—then the Scots ought to be asked and not those who merely happen to be living in Scotland and not those who are not Scots.
It is another example of our modern inadequate computerised approach to problems. Judgment is not adequate unless it is backed by facts and figures with which you can prove your case, even if the original data from which the facts and figures resulted was itself inadequate. Facts are factual; figures are factual. 374 They are uncompromising and they are soulless. Judgment and nous is abstract, ethereal and intangible and therefore, goes the argument, less valuable and less trustworthy. But politics is surely about judgment, more about judgment than about figures, and because politics is about people, and people consist of personalities, politicians should frame their proposals for the future in a way in which the personalities of the future will best be able to react, and not on a neat figure that happens to result from a simple question which was posed on one day, and the answer to which would have been different had the question been posed on another day, or had the weather been different when it was asked, or had the question been phrased in a different way.
I lament the use of the referendum in this instance, which, in my judgment, lowers the value of Parliament and reflects and admits the inadequacy of Parliament and Parliamentarians. The fact of the referendum being used in this Bill should make politicians snap their eyes open and say, "Where are we going wrong?" I would ask the noble and learned Lord, Lord McCluskey, one question. How is it intended that the result of the referendum will be disseminated to the United Kingdom? Will it be one result for the whole of Scotland or will it be broken up into regions, or will there be a diversity of results? Because one can well see the problem that might arise where certain parts of Scotland may vote one way and certain parts of Scotland may vote another way. In my modest judgment, this principle of using the referendum on this Act, which is the responsibility of Parliament, is wrong.
§ 5.58 p.m.
§ Lord SHINWELL
This is a remarkable phenomenon, I must say. Why did not the noble Earl think of a speech of that kind before we decided accession to the EEC? Can he recall the debates we had before accession? Can he recall the telegrams that were sent out by the Conservative Party to Members of your Lordships' House, who rarely attended but were asked to attend in order to defeat those who were very doubtful about accession? Or is this just a speech intended—and there can be no doubt in anybody's mind that this is what the intention is—to let the Scots understand 375 that, so far as the Conservative Party are concerned, they are not prepared to accept the opinion of the Scottish people? That ought to be said quite clearly out loud. It ought to be said by Mrs. Thatcher, and no nonsense about it.
With regard to this question of a referendum, if we delegate our authority to the people of this country is there anything wrong with that in the democratic sphere? Are there not occasions when at a General Election we ask the opinion of our constituents, what they think about the policy we advocate? Or perhaps it is not the kind of question that a Member of the House of Lords should answer. But those who were associated with another place, an elected Assembly, a truly democratic Assembly, frequently requested our constituents, if not to advise us, at any rate to consult with us about the kind of policy to be decided by the Government with which we were associated or by the Party of which we were members.
Now, towards the conclusion of our debates we have had a speech of this kind from the noble Earl, Lord Ferrers, every word of which was probably prepared at the Central Office of the Conservative Party. The noble Earl shakes his head as if that sort of thing never happens. Some of us do not require to be advised by people of the back-room fraternity. We know what ought to be said and we are not afraid to say it.
I should like to say a word or two about the Bill. This is not a Second Reading debate, but I wish to make some comments because some noble Lords have taken advantage of the discussion of Amendments in order to make Second Reading speeches. I have not done that. I did not like the Bill from the start. I did not think that it was necessary. I advocated Home Rule long before some honourable Members and noble Lords were born; I advocated it way back in 1918 in my first election address. I advocated Scottish Home Rule, but it was nothing to do with separation or with independence. It was a protest against social injustice for which we blamed Westminster. It was a protest against lack of funds and indifference to the unemployment and impoverishment that existed throughout almost the whole of Scotland. It was a protest based on the 376 bitterness that had been built up over the years as far back as the Sutherland Clearances and the activities, marauding, pillaging, robbery and even murder, of the Scottish aristocracy. That was what it was all about. It was nothing to do with independence.
I am against independence for Scotland. I believe in the United Kingdom and I think that that is the general opinion of Members of your Lordships' House. What have we done about the Bill? When we started Second Reading many of us said: "Let's accept the principle of devolution and then consider its form and content". That is what we have been trying to do; we have been trying to improve the Bill because it requires improvement. It may not satisfy another place, but it is the best that we can do in the circumstances. It may be that the Bill will not pass. It may be that a Scottish Assembly will not be created. But inevitably whether we like it or not, and in spite of the speech of the noble Earl, and those who supported him this afternoon—many of whom never heard a word of the debate but just came in and voted in a partisan fashion, which is antidemocratic and makes no contribution to the consensus that this country needs more than perhaps anything else—if the Bill does not pass there may be more trouble in Scotland than we have ever suffered or known in the past, and we had better watch our step. I want the Bill to pass not because I like it, but because if it does not pass and we do not give to the people of Scotland something they need, some form of autonomy, then there is a likelihood, much as I dislike the prospect, of a break-up of the United Kingdom. That is what we should try to prevent.
Finally, let the Conservative Party be quite clear about what it wants. Does it want the Bill or not? If it does not want it, then do not let us have speeches of the kind that we have had from the noble Earl. It was a wrecking Amendment and there is no question about it. Let the Conservatives come clean and then the country will know where it stands. The sooner the country makes up its mind one way or the other what it wants for Scotland or what it refuses to give to Scotland, the better it will be for the wellbeing of the people of the United Kingdom. Even if the referendum concept is disliked, let the 377 people decide. Far better that the people should decide than that the leaders of any Party should determine the future of the people. That is what we want.
§ Lord SHINWELL
I do not want to be interrupted. I am coming to the end of my speech and if I feel a bit excited about this matter I hope that your Lordships will forgive me. After all, to have had the speeches to which we have listened, and then to have the kind of address that we have just had from the noble Earl on the Conservative Front Bench—from the Opposition, still the Opposition and an anti-democratic Opposition—is something which I dislike. I dislike it intensely and I hope that the people of Scotland will take note of that.
§ 6.6 p.m.
§ The Earl of LAUDERDALE
The Second Reading speeches of the noble Lord, Lord Shinwell, are always enjoyable. The first one went back to Moses but the second one only went back to the Clearances. However, to hear the noble Lord supporting referenda, which were the means by which Hitler came to power and stayed in power, is a surprise to us all, especially those of us who have recognised and admired the noble Lord's battle for democracy and freedom all these years.
I should like to say a word about the EEC. The noble Lord, Lord Shinwell, and I were on the same side during that debate except that he never once voted on any of the Amendments which I proposed. However, there is an important distinction to be drawn between the referendum now proposed and the referendum that we had on the European Community. The latter was a referendum on whether we accepted the status quo, because we were Members of the Community at that time. The question was whether we should renege on our membership.
Here the issue is the reverse. The issue is whether we are to have something completely new. I am sure that arguments will be put forward by whoever answers from the Government Front Bench. May I say that I am not here tonight to taunt the noble and learned Lord, Lord McCluskey. I hope that he 378 had a good dinner last night, and I am sorry for my impatience with him but these things happen. He lacks dinner and I have sciatica, so we become a little flustered. So when we have an answer from the Government Front Bench I hope that due attention will be paid to some of the real issues that are raised by the whole project.
First, the proposal is that the people shall vote "Yes" or "No" on a major constitutional change which has so many ramifications in terms of jobs, to take the most obvious example, and in terms of airing Scotland's grievances, to take another. It is a referendum on a whole complicated range of matters to which one must say "Yes" or "No". It may well be said that this is what happens in a General Election. However, that is not so. In a General Election we vote for a man, whether it be for his Party or not, whose approach we support, whose judgment we trust and into whose care and judgment over the next four years or so we place our destiny. In a General Election we condense into the standing of a particular Member all our anxieties on a whole range of matters from wheelchairs for the incapacitated to better drains for such-and-such a village. Therefore, in a General Election we do not attempt to decide all the complicated issues "Yes" or "No"; we choose a man, or it may be a Party, in whom we trust.
Here we have a proposal not exactly to by-pass Parliament, but in some way to influence Parliament on a particular issue which none the less has so many ramifications—so many issues about finance, government, the over manning of public services, but above all about jobs in Scotland—that they are difficult to disentangle and difficult for the public to discern. As my noble friend on the Front Bench said, here is a proposal which has the effect of coming between the people and Parliament. Why did Hitler resort to referenda? It was in order to manage the Reichstag of those days and get them under his thumb. Why have referenda been used by dictators everywhere? The answer is, for that very purpose, and this is the danger.
Having long believed that the best Socialists are merely misguided, but sometimes fearing that there may be 379 baddies as well, what surprises me is that in both cases the referenda have been proposed by a Socialist Government. I always thought that at any rate the Social Democrats of the Socialists were very much on a par with us in their respect for the democratic and Parliamentary procedures; but, no—it seems that the situation is different. When I hear the noble Lord, Lord Shinwell, of all men, clamouring for a referendum I must say that I feel like a drunken man who says, "Am I or does it?"
A whole range of matters will be raised. It will be said that referenda are familiar to democratic processes elsewhere. No doubt it will be said, for example, that in some parts of this country the licensing laws provide for a local referendum on issues such as whether a pub shall be opened or not. It may be said that referenda are used in Northern Ireland. They are, for particular cases. It will be said that the United States and the Australian Constitutions, to quote but two, make provision for referenda. Indeed, they do; but on narrow, particular issues—Do you, or do you not, want an amendment to the Constitution in a particular shape? However, this is a referendum on a whole range of matters; for example, on the one hand, the voicing of local grievances in Scotland, to which people may want to say, Yes. On the other hand, it could be on the extra expenditure and so on, and people may want to say, No. It may be that on the grounds of a third year of government people will want to say, No; on other matters they may want to say, Yes. Therefore, in the proposed referendum there is to be a vote on an enormous range—a kind of encyclopaedia Scotica, if I might use that expression—of matters which are interwoven, difficult to disentangle and, above all, exceedingly difficult to comprehend.
Because they are difficult to comprehend I think we are entitled to ask the Government what ideas they have in mind for conducting this referendum. For example, will there be any arrangements to control the financial expenditure of those who campaign for "Yes" and those who campaign for "No"? Will there be a Government grant to either side? Will there be some system of control to make sure that neither side spends beyond that amount? Will there be some rationing 380 of time on televison? Will some arrangements at least be proposed—they cannot be imposed—to the Press in order to ensure an absolutely equal balance between the two cases?
What about publication of the results? Will the results be taken as a whole? Everybody knows that the votes of Strathclyde are the votes of half of Scotland. Having followed the noble Lord, Lord Shinwell—and there is no better examplar—I think I can stray a little wide on this clause and go beyond its exact limitations. One of the worries that one has about the Bill is that inevitably the voting power of Strathclyde will outweigh the voting power of the under-populated Highlands and Borders. Together Strathclyde, Central Scotland and the Lothians are an urban sprawl—nobody can deny that—and in a referendum their voting power is bound to be stronger than that of the Highlands, the Borders and the South-West.
So when the result of the referendum comes to Parliament for eventual judgment and executive decision, the question must arise whether the results will be declared for Scotland overall or region by region. Possibly I was absent when the noble and learned Lord, Lord McCluskey, answered this question, but it will be good to have the answer again. I see from his eagerness to be on his feet that he obviously has some sort of answer to give. However, what arrangements will there be for free post for the two sides? In an election each candidate has the chance of sending round an election address for free. Will that happen in this case? Will the Government produce a document and will their opponents be able to produce and distribute a document, and be reimbursed the cost?
These issues are of great concern. Above all, on the declaration of results regionally, will the views of Orkney and Shetland be smothered by those of the North?—because they are not Highlanders. They are not Scottish and do not regard themselves as Scottish; they regard themselves as Norse. Will the results in Orkney and Shetland be declared separately and be available separately? As has been said, this is an advisory referendum upon which the Executive will decide its course of action. In order for the correct decision to be taken it is most important 381 that there should be a proper breakdown of the figures, at least region by region. I have taken up more time than I intended. I have tried very hard not to provoke anybody but the noble Lord, Lord Shinwell, who is always worthwhile listening to when on his feet. These are matters which should legitimately be raised on the clause stand part debate.
§ 6.7 p.m.
§ Lord KALDOR
I hesitate to criticise the noble Earls, Lord Ferrers and Lord Lauderdale, on a matter of constitutional doctrine. However, I regret to say that they both displayed singular ignorance on the issue of referenda in connection with the British Constitution. If they had read the greatest classic on the matter of constitutional law—Dicey's Law of the Constitution—they would have known that the only reason that Britain, unlike other countries, did not use the instrument of the referendum was because it had the instrument of the mandate, which was considered to be a superior kind of referendum throughout the 19th century.
The instrument of the mandate meant that if Parliament wanted to do something which your Lordships' House felt was not in accordance with the will of the people, by denying the other place the legislation your Lordships' House could bring about a dissolution. Moreover, it became a constitutional doctrine that anything for which no specific mandate was given at the last General Election could not be introduced in Parliament without a reference back to the electorate. The last occasion on which this was done was when Stanley Baldwin as Prime Minister dissolved Parliament in 1923—in spite of the fact that the Tories had an absolute majority over all Parties—in order to introduce protection, because protection did not form part of the Election Manifesto of the Conservative Party in the previous Election.
But long before that there were difficulties about the use of the specific mandate—difficulties which arose out of the simple issue that once you have an Election, that Election cannot be confined to a single issue. The people vote for or against a Party; for or against one or another kind of Government. So the 19th century doctrine of the specific mandate faced increasing difficulties. It was for that 382 reason that the Leader of the Conservative Party, Arthur Balfour, recommended the introduction of a referendum as an additional instrument of the British Constitution. I think that the noble Earls should certainly have been aware of this fact and not regarded the referendum as some new-fangled Socialist invention, or as an instrument of dictators like Hitler who, as far as I know, never held a referendum. He held elections. Switzerland has a referendum almost once a month on one issue or another, and Switzerland is certainly not a Nazi dictatorship.
§ The Earl of LAUDERDALE
I appreciate that. The noble Lord says that Switzerland has referenda once a month on a particular issue. This is what bothers us. This is not on a particular issue; it is on about 150 issues.
§ Lord KALDOR
This is on a particular issue as to whether Scotland should have a separate Assembly and powers which are exactly circumscribed and described in the Act. The Conservatives recommended a referendum on several occasions. I could quote many instances. In fact some instances are more recent than others. Certainly throughout this century it was a constitutional innovation that was more associated with the Party of noble Lords opposite than any other Party.
It is really connected with the fact that we live in a democracy, and ultimately it is the people who must decide how they should be governed. It is the people who must decide whether or not they are in favour of a particular measure. This cannot, as it was thought in the 19th century, always be decided by a special election, which used to precede the passing of various Reform Acts and gave a specific mandate to the succeeding Parliament to introduce the reform. As you know, the Parliament Act 1911 was the result of the fact that your Lordships' House, for the first time for more than a century, refused to abide by the results of an Election which gave a specific mandate to then Prime Minister, Mr. Asquith, for the reform of Parliament's powers. I do not wish to say any more. I wanted only to point out that this highly one-sided and biased view on referenda is something that is untraditional. This matter has been thoroughly 383 discussed by the highest authorities; it was strongly recommended by Dicey in the Introduction to the Fourth Edition of the Law of the Constitution, published in 1914. It was recommended by Arthur Balfour in 1910, and I believe by other Conservative leaders also.
§ 6.23 p.m.
§ Lord McCLUSKEY
I rise to my feet at this stage because I want to make it clear that the noble Earl, Lord Ferrers, who spoke on the Question, That the clause stand part, does not propose that we should not have a referendum. Indeed, that would be an astonishing proposition if he were to put it forward, because I am reminded of what the noble and learned Lord, Lord Hailsham, said at Second Reading on 15th March at column 1444:I believe that we should give it a Second Reading and that it should go forward in an amended form. My first reason is this: I do not blame the Government for this at all, but I think the country and Parliament have got themselves into a position in which a referendum has become the only way of resolving this problem, …".How can we reconcile that statement with the carefully prepared speech which has been made by the noble Earl, Lord Ferrers? Indeed, how does he reconcile that speech with the speech made by the right honourable lady the Leader of the Conservative Party, at the Conservative Party Conference, where she saw fit to recommend—and, as I understand, it was adopted as official Party policy—the use of the referendum as an instrument in some forthcoming battle with the trade unions, if that arose.
I find the speech of the noble Earl quite astonishing and unnecessary because he does not intend to ask this Committee to remove Clause 80 from the Bill. I have risen to my feet at this stage because I suspect, although it is for the Committee to judge, that the Committee have heard enough debate on this particular matter.
I was asked some particular questions. There will be a separate count of votes in each region and islands area. The Chief Counting Officer will also provide the count for Scotland as a whole. It is the Government's firm intention to publish all the results. This accounts for the appointment, as we can see from Schedule 17, of counting officers for each region and islands area, and for the certification of 384 the counts in their areas to the Chief Counting Officer. That can be seen in paragraph 8.
The noble Earl, Lord Lauderdale, asked me a number of questions, and the answers are these: it is not intended to provide any public funds to any campaigning organisations. Of course that would require legislative provision. There is no legislative provision for this, and indeed broad-based organisations representing both sides of the argument have not truly emerged. I do not want to tempt the noble and learned Lord, Lord Wilson of Langside, to rise to his feet; there are organisations, but not quite of the same character as emerged for the EEC referendum in 1975.
There will be no control of expenditure. It is just not possible to try to control expenditure at large. Accordingly, the Government have no proposal in relation to this. It is not intended that the free post facility referred to by the noble Earl will apply in relation to the referendum. That would be an expenditure of public funds and is covered by my answer on the first point. So far as broadcasting time is concerned, that is a matter for the broadcasting authorities. No doubt they will exercise their usual discretion and judgment in these matters, and I am sure that both sides of the argument will get a fair and reasonable airing in the broadcasting media.
With regard to Orkney and Shetland, as in the Bill as it stands—and we have had a number of general observations about this—there can be no question of the Orkney and Shetland voters being swamped by the rest of Scotland. I refer to Clause 80(3). I hope we can now pass on to other matters.
§ Lord HARMAR-NICHOLLS
The noble and learned Lord indicated that he wanted to get on, and we all do. But I happen to be a great believer in having the record straight and balanced, and there are one or two things that ought to be said in order to have the record right. The noble and learned Lord has answered specific questions, and, I should have thought, to some satisfaction, on the way the thing will be done.
But I do not think that one can ever let a speech by the noble Lord, Lord Shinwell, 385 go because he is one of some authority and is held in great respect, and what he said is on the record and can have some impression outside as well as in Committee. The noble Lord is delightful, and he has on occasion got a low boiling point, and he reached it today rather surprisingly on this. He said two things that I do not think ought to be allowed to stand alone.
He rather suggested that noble Lords on this side of the Committee had gone into the Lobby and registered a vote without having listened to the argument, and knowing nothing about it. I should think that any fair-minded observer would say that if there is one side of the Committee who have been able to whip people into their Lobbies without sitting in here and listening to the debate, and certainly not taking part in the debate, if one looks at the record, then the weakness is on the other, and not on this side of the Committee. I think that that ought to be said.
The noble Lord also said that he felt that noble Lords on this side of the Committee who had gone into the Lobby had done so slightly flippantly, without knowing or caring much. Of course we do not know what are the innermost thoughts of any of our colleagues, and we shall never know, and it is stupid to attempt to probe. But if one was to make a comment on instinct, I would say that there are more noble Lords who have gone into the Government Lobby doubting in their innermost thoughts whether they were doing the right thing when they were doing it, than has been the case with noble Lords on this side of the Committee when they have gone into the Lobby to support Amendments. That can never be proved, but I merely wanted to have that on record to balance the rather effective comments that the noble Lord, Lord Shinwell made, because if a balance had to be struck I would have felt that we were perhaps nearer purity than our opponents on this occasion.
As regards the referendum, it looks as though that has come to stay in some form or another. I think it is a bad thing that that is the fact, because it could undermine Parliamentary government. I have always believed that you should never give the Government of the day, of whatever complexion an alibi. Once the Government of the day have taken on the powers of the Executive they 386 are entitled to the credit when things go right and to the odium when they go wrong, without giving them an alibi to excuse their inefficiency. The risk of referenda is that we may have inefficient Governments excusing their failures by saying, "We would not have done that but for the referendum". That is what I mean when I speak about providing an alibi element which in my view will interfere in the long run with the true effectiveness of Parliamentary government.
That is really only a comment on the irrelevancies that have been brought into our debate. The Minister answered the points that mattered, about machinery, and I would like to feel, without sounding pompous, that the record is straighter now, following the speech of the noble Lord, Lord Shinwell, than it was before I dared to make these comments.
§ Lord DRUMALBYN
There are two points that I wish to make before we part with the clause. First, I regret that the noble Lord, Lord Kaldor, is no longer in his place. We accept from him that Arthur Balfour was in favour of establishing a system of referenda, but we on these Benches feel that it would be unfortunate if referenda were to pop up here and there in odd Bills, especially if they were only of a consultative nature. If we are really to have a system of referenda we should legislate for it properly and establish a system by which particular questions can be put to the people of the country or to only some of them if only some of them are primarily concerned.
My noble friend Lord Ferrers has done a service by raising this matter; it would have been quite wrong for the Committee to have let the clause go through without discussing the circumstances of a referendum which is solely consultative, which appears only in this Bill and which leaves us in a state of uncertainty as to what will happen as a result of it. As my noble and learned friend Lord Hailsham of Saint Marylebone said at an earlier stage and as the noble and learned Lord, Lord McCluskey, confirmed, we have the referendum here and of course we must accept it at this stage. But surely that is no reason why we should not discuss the matter, and I am therefore bound to support my noble friend when he expressed his views on the subject.
387 I thought Lord McCluskey touched very gingerly on the question of the Orkneys and Shetlands. He may have left the impression—did he intend to do so?—that subsection (3) as it stands is acceptable to the Government and will remain in the Bill. I think I noted his words correctly when he said that in the Bill as it stood there could be no question of swamping the two groups in the Islands area. Under the Bill as it stands, that is so; is he saying that the Bill will remain unchanged so far as the Government are concerned? I got a rather different impression from what he said at an earlier stage, but if the Government have now made up their mind about it, the Committee is entitled to know.
§ Lord LEATHERLAND
In case it was not heard earlier in the debate, it is a fact that Mrs. Thatcher has personally and publicly pronounced in favour of the referendum as a matter of political policy. It therefore grieves me to hear noble Lords in positions of authority on the Benches opposite proving themselves to be unfaithful to Mrs. Thatcher.
§ Lord McCLUSKEY
I am asked to comment on the phrase "the Bill as it stands". I was not intending to depart from anything I said on a previous occasion because the position is still very much the same and as soon as we can inform your Lordships' House we will do so.
§ Clause 80, as amended, agreed to.
§ Schedule 17 [Referendum]:
§ 6.35 p.m.
§ The noble Lord said: This is a simple little Amendment which I am sure will arouse little dispute and certainly no heat. It is designed to secure that if, unhappily, we must have a referendum under the Scotland Bill, it will be held on the same day as the referendum under the Wales Bill. The reasons are scarcely capable of elaboration and will be obvious to all. There is widespread acceptance of the 388 view that events of this kind tend to influence one another and that it is desirable that the two referenda should be held on the same day so sa to minimise so far as is humanly possible the influences which are not directly relevant to the issue posed in each of the questions under the two Bills.
§ Lord McCLUSKEY
It has always been the Government's intention that both referenda should be held on the same day and there has been no change of policy in this regard. This was made clear by my honourable friend the Minister of State, Mr. John Smith, in another place when he spoke on 21st November 1977 in reply to a Question from Mr. Dafydd Wigley, and that was subsequently underlined by my right honourable friend the Prime Minister in an interview with the political editor of the Western Mail in December 1977.
Indeed, the Government's intention to have both referenda on the same day was made absolutely clear in the Scotland and Wales Bill, where there was specific provision to that effect. Now that we have two separate Bills, in the Government's view it would be neither reasonable nor realistic to include such statutory provision because there can be no absolute assurance that both will reach the Statute Book at about the same time. In the event, perhaps the very unlikely event, of any substantial gap opening up between them, the Government would need flexibility to consider the situation as it then was.
It would in the Government's view be unreasonable to introduce a requirement the effect of which would be to defer action on the referendum on the Scotland Bill until such time as the Wales Bill was enacted. The Government's confident expectation is that both Bills will be enacted before the Summer Recess and we welcome this opportunity to confirm that the Government's policy is to hold both referenda on the same day as soon as reasonably practicable after that.
§ Lord WILSON of LANGSIDE
Do I understand that the noble and learned Lord commits the Government to doing everything reasonably practicable to ensure that the two referenda are held on the same day? Frankly, I am reluctant 389 to withdraw the Amendment—I have not heard any expression of view from other noble Lords—unless there is a fairly firm undertaking on the part of the Government, because this is an important matter. The alternative, of course, is for me to raise the issue again on Report.
§ Lord HARMAR-NICHOLLS
The Minister made it quite clear that it was the Government's intention to hold both referenda together, and he said that in the original joint Bill that was provided for. However, the noble and learned Lord then reserved the right, which one understands, that if for some reason this Bill has gone through and the other has not, the Government would want to look at the situation in the light of that event. There seems to be a slight danger here. May I ask the noble and learned Lord to go so far as to say that if the Scotland Bill became an Act before the Wales Bill and the Government intended to try to make the Wales Bill an effective Act, the Scotland Bill would be held up until the Wales Bill had gone through? If he has said that they may not proceed with the Wales Bill and there will be only one, that is all right. However, if one wanted to be entirely pernickety about this, one could foresee a situation where it would be justifiable to delay one Bill in order to give the freedom of action to have separate votes. Is there any way in which the noble and learned Lord can answer that point without charging me with being over-suspicious, as he has done in the past?
§ Lord McCLUSKEY
It is difficult for me not simply to repeat the substance of what I have said. The Government's expectation, their wish, their hope, is that both Bills will reach the Statute Book at the end of July, or certainly before the Summer Recess. It is the Government's policy and intention to have both referenda on the same day. However, we must envisage the possibility that there may be a substantial gap, or that some terrible disaster may overtake the Wales Bill. In those circumstances, it would be silly to have in this Bill—and on the Statute Book—a provision which tied the holding of the referendum in Scotland to the holding of a referendum in Wales, which might have to be postponed in the kind of circumstances I have mentioned. So I restate the Government's policy and 390 intention, and I should have thought that that would satisfy the Committee, as well as the noble Earl, who seems to be nodding his approval.
I was merely thinking that the noble and learned Lord, Lord McCluskey, had gone as far as anyone could to meet the point of the noble and learned Lord, Lord Wilson of Langside. If one was being pernickety, I suppose one could say that the Amendment was defective because it assumes that the Wales Bill would become an Act; but if it does not become an Act then this provision would not be right in this Bill. I accept the reasoning of the noble and learned Lord, Lord Wilson of Langside, in his proposal. What obviously lies behind it is that if the referenda are held on two different days, the result of the first referendum will very likely affect the result of the second. That is why it is desirable to have them on the same day. If the noble and learned Lord, Lord McCluskey, says that he thinks that this is what the Government intend, I should have thought that that would meet the point of view of the noble and learned Lord, Lord Wilson of Langside.
§ Lord WILSON of LANGSIDE
Perhaps I can best expedite the progress of your Lordships' Committee by withdrawing the Amendment at this stage. I shall look at what the noble and learned Lord has said, and consider the position later. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.43 p.m.
§ Lord WILSON of LANGSIDE moved Amendment No. 290:
Page 89, line 26, at end insert—
("(c) persons of voting age whose domicile is Scottish but who are resident in the United Kingdom outside of Scotland and who shall have registered their names in a manner to be determined by the Secretary of State.").
§ The noble and learned Lord said: I regard this as a more important Amendment than the previous one. I am conscious of the need for haste at this hour, and I shall come straight to the point as quickly as I can. If, unfortunately, we are to have a referendum under this unhappy Bill, let us secure that, as far as 391 possible, all true Scots, at least within the United Kingdom, shall have the right to express their voice in that referendum. The provisions of the Bill, as they stand, do not secure that right. As your Lordships appreciate, the provisions of the Bill are to the effect that those resident in a constituency on the qualifying date, and who are over 18 and not subject to any legal disability, and who are either British citizens, or citizens of the Republic of Ireland, will be entitled to vote in the referendum. A British citizen for these purposes is a citizen of the United Kingdom and Colonies, or of any Commonwealth country.
§ Inevitably, there will be large numbers of Englishmen and Irishmen resident in Scotland, as well as many citizens of other parts of the Commonwealth, who will be entitled to vote under this measure, which, as has been acknowledged on all sides, will have—and here I almost say incalculable consequences, but unfortunately on the view I take of the Bill the consequences are all too calculable. In this situation, to deny to the true Scot who happens temporarily to be outside his homeland, the right to vote is surely so palpable an injustice that I need not delay your Lordships on the point further.
§ I have chosen domicile as the criterion, and I appreciate that this is open to some comment and possibly criticism; perhaps we will hear of that from the noble and learned Lord when he replies. Domicile is held in the country which in fact is, or which by law is determined to be, an individual's permanent home. One's domicile, as I undertand it, indicates and defines an individual's personal law, the law by which his status, his succession, and his personal rights are regulated. It was with that in mind that in my Amendment I suggested that domicile should be the test.
§ My Amendment limits the effect to those resident within the United Kingdom. One appreciates that there are many true Scots all over the world. I have limited it to those resident within the United Kingdom to forestall the familiar argument from the Government Front Bench that the administrative difficulties would be insuperable. I do not think that they should be under the Amendment I propose. I beg to move.392
I have great sympathy with the Amendment proposed by the noble and learned Lord, Lord Wilson of Langside. I agree that it is sad that Scots resident in the United Kingdom outside of Scotland should be disfranchised when it comes to a referendum on a matter which is of such profound importance to all Scots, wherever they are resident. The Amendment extends to persons who are not only resident in the United Kingdom outwith Scotland, but whose domicile is in Scotland, and who have registered their names as described in the Amendment. A person's domicile is not readily ascertained, because it depends on a number of factors, such as the nationality of his parents; the country, or countries, in which he has lived since his birth; the reasons why he has lived furth of Scotland, if he has, and if Scotland is his domicile of origin acquired from his parents. There must also be considered the circumstances in which he lost his domicile of origin and acquired a domicile of choice; whether he lost that domicile of choice and reverted to his domicile of origin and acquired another domicile; and, lastly, whether he considers himself to be a Scot, or an Englishman, or of any other nationality.
Perhaps I have said enough to illustrate that each case has virtually to be treated on its own merits. I wonder who is to adjudicate upon the thousands of claims which will be submitted, and how long this will take. The possession of a Scottish domicile is of importance where children claim their legal rights peculiar to Scotland on a parents' estate, and in such cases the courts are often asked to decide the question of domicile. I was involved in what was, and I think still may be, a leading case on domicile. The case was raised by a daughter against her deceased father's trustees. It started in the Court of Session in 1938, and ended a few years later in this House, after vast expenditure on legal fees, although I shared in those. More commonly, domicile is of importance in divorce cases.
Since the 1st January 1974, one of the grounds upon which the Court of Session has had jurisdiction to entertain an action of divorce is if either party is domiciled in Scotland. Before that date it was the domicile of the husband which gave the jurisdiction, and the domicile of the wife followed that of her husband. The other ground upon which the Court of Session 393 has jurisdiction is if either party was habitually resident in Scotland throughout the period of one year ending on the date when the action was begun. That is the Divorce Act 1973. In either case, however, the court has before it sworn evidence given by the pursuer in court or by statutory declaration, under new rules which were recently introduced. If Scots who reside in England wishing to exercise their votes in terms of this Amendment have to establish their domicile by sworn evidence, presumably to the appropriate returning officer, who might well not be a lawyer qualified to adjudicate on matters of domicile, noble Lords will see that this Amendment could cause considerable confusion and great delay. For this reason, I cannot support the Amendment tabled by the noble and learned Lord.
§ 6.52 p.m.
§ Lord HOWIE of TROON
Browsing through Hansard the other day I noticed that it had become customary, or was about to become customary, for maiden speeches to be made during the Committee stage of this Bill; and one was made one evening last week. I propose to follow that new tradition and support the noble and learned Lord, Lord Wilson, in this Amendment. The referendum—and the idea of a referendum is one which I strongly support—is a matter for the people; and the problem here, I suppose, is to determine just who the people are. They are, I think, clearly those who live in Scotland; but, as Lord Wilson said while moving this Amendment, there are also true Scots living elsewhere, and true Scots cannot, I think, be left out of the decision which faces their country and their countrymen. True Scots must be included, whether they still live where they were born, in Scotland, 'or whether, like myself and, I think, 700,000 others, they live in England, in Wales or in Ireland—they have come to live out of Scotland but within the United Kingdom in the context of one united country.
The problem as I see it, and the peculiarity of the problem, faces me and my like in fairly domestic terms. I have lived in London for some reason; I am on the electoral roll here but not in Scotland. So as the Bill stands I would be excluded from this matter, which I regard as just as important to me as it is to any other Scot, no matter where he lives. 394 The problem becomes even more piquant when I reflect that my daughter, who now lives in Edinburgh but who was born in St. Pancras—admittedly as near to the end of platform 15 as we could arrange at the time—will have a vote in this referendum. It happens that my daughter is a very cool, reflective and intelligent lady, and I am quite sure that she will vote in a manner which is agreeable to her father, though I doubt whether that will be the reason for her vote. I go further. My niece also lives in Edinburgh. She is not quite so well qualified as my daughter, as she is merely half Scottish. Her mother, unfortunately, is English so no blame attaches to her for that since she was not at fault. So my niece, too, will have a vote in this referendum. That is merely because these girls live in Edinburgh, not because they have claims to Scottish nationhood, if that is the correct term.
They care about this matter—of course they do—but they care about it no more than do I or my brother, their respectve fathers. So why should they have a right to vote which their fathers are denied? At least these girls are Scottish, or at any rate part Scottish, whereas, as the noble and learned Lord, Lord Wilson of Lang-side, said in moving this Amendment, there are numerous people on the electoral roll in Scotland who are not Scots but are English, Welsh or Irish. I notice that a Scottish National candidate in the local elections a week or two ago was in fact a Pakistani. There is no harm in that, but it is a little odd that a Pakistani-Scot, so to speak, should have a vote because he lives in Scotland, whereas a true Scottish Scot should have no vote merely because he happens to live in a Hampstead Garden suburb.
So I say that natural justice should be our concern in this matter, and natural justice clearly points to an extension of the franchise along the lines suggested by the mover of this Amendment. It may be that, as the noble Lord who spoke last has said, there will be some problem over domicile. I am not myself a lawyer, nor have I any hopes of ever being one, but I do not think that the definition of "domicile" should stick us here. This is clearly a matter for the Government. They can view the principle embedded in this Amendment, and if they bow, as I 395 think they should, to natural justice they will accept that principle. They may well feel there is a problem over the word "domicile", and they may come up at the Report stage with a form of words which satisfies your Lordships as a whole, but let me say merely this. It is my hope, as a Member of your Lordships' Committee and House, to he loyal to the Party which put me here, but unless we get some undertaking from the Government that they will consider this matter with a view to proposing at Report stage something along the lines on which I have been speaking, I shall certainly follow Lord Wilson into the Lobby in support of his Amendment.
Lord CAMPBELL of CROY
I should like to congratulate the noble Lord, Lord Howie of Troon, upon his maiden speech in the Committee stage of this Bill; and, as he has indicated, he is very well qualified to speak on this subject. He has spoken with wit and fluency, and I certainly sympathise with the sense of the Amendment and with what he has said. I am sure I speak on behalf of all other Members of your Lordships' Committee in congratulating him upon a very fluent maiden speech and upon his confidence, brevity and clarity. I remember him, of course, from when he, as a Scot, represented an English constituency in another place, so of course he is fully aware of the problems here.
But at this stage may I just add to the debate on this Amendment that I am myself very conscious of the difficulty which my noble friend Lord Kinross has pointed out. He is a lawyer who has practised in Scotland for many years. He has given us one example of a case of domicile taking years to be proved. Although I am not a lawyer myself, I am aware that in some cases to determine it is a very difficult matter, and it certainly takes time. I would say that if this Amendment were adopted it would produce the most enormous number of cases which would be very difficult to decide. No doubt the noble and learned Lord may think of another way of trying to identify Scots who are working or are resident in other parts of the United Kingdom, and not in Scotland, who would wish to take part in this referendum, and who, under the terms of the Bill, do not have the opportunity.
396 I am fortunate in that for local government purposes I am on a register in Scotland, and my domicile is in Scotland. So I have no problem here; nor do many of my noble friends on this side of the Committee, who also have their homes in Scotland. But I am very much aware of the wishes of Scots who, for reasons which they cannot help, cannot be on a register in Scotland and who, therefore, cannot take part in a referendum when it comes. I must advise the Committee that I see enormous difficulties such as have been described by my noble friend Lord Kinross if the Amendment which the noble and learned Lord has put forward is adopted.
§ Baroness STEDMAN
It might be convenient if the House were now to resume. I know that there are several other speakers who wish to speak on this Amendment; but we have urgent business to deal with in the dinner break. I therefore beg to move that the House do now resume.
§ House resumed.