HL Deb 27 July 1998 vol 592 cc1277-338

8.24 p.m.

The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Sewel.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Lockwood) in the Chair.]

Schedule 5 [Reserved matters]:

Lord Mackay of Ardbrecknish moved Amendment No. 210:

Page 80, line 19, at end insert ("and the subject matter of the National Minimum Wage Act 1998").

The noble Lord said: This amendment examines Head 8 of Schedule 5 to the Scotland Bill dealing with employment. It relates to Section 1 dealing with employment and industrial relations.

The Bill as drafted reserves a number of Acts regarding employment. One is the "National Minimum Wage Act". I do not believe that it is yet an Act, since it was the Third Reading of that legislation which delayed us this afternoon. I suspect that the Government are rather looking forward when they include the National Minimum Wage Act 1998. Why should the National Minimum Wage Act be reserved? My Amendment No. 210 would devolve that legislation; it would be exempt from reservation.

It seems that we are looking at yet another example where the Government do not trust the Scottish parliament or the Scottish people. Why should the Scottish parliament not set the minimum wage level in Scotland, or even decide whether there is to be a minimum wage level at all?

In the Bill to which we gave a Third Reading earlier, the Government leave the door open for differential minimum wage rates, with the Armed Forces being treated differently and the strong prospect of a different rate for the under-25s. So the Government have clearly admitted the possibility that the minimum wage may not be uniform.

Under the Bill there is greater devolution of training matters. One wonders about the logic behind devolution being allowed for training matters and yet not allowed for the minimum wage. One wonders why the Government have decided to exclude it. I shall not leave the Committee wondering long before I suggest one or two clues. I wonder, for example, whether the real problem is that the Scottish Trades Union Congress will have a different view of the minimum wage from that of the their colleagues south of the Border. They may wish for a higher level of minimum wage than that with which the Government are content. I wonder whether the STUC has been consulted.

Lord Sewel

I am grateful to the noble Lord for giving way. He will be aware that much of the criticism made of a national minimum wage from the Opposition Benches both in this Chamber and in another place has been concerned with the impact of a national minimum wage on macro-economic policy. Will the noble Lord clarify whether it is the policy of his Benches to argue for macro-economic policy to be devolved?

Lord Mackay of Ardbrecknish

This is not my Bill. This is the Government's Bill. That question is not relevant to the question that I am posing as to why the matter should not be devolved. Macro-economic policy in Scotland is just as important as in the rest of the United Kingdom. I should have thought that the Scottish parliament would have a role to play—although that role has been greatly diminished by the Government's refusal to accept my view that someone nominated by the Scottish parliament should sit on the Monetary Policy Committee of the Bank of England. But perhaps that is something of an aside. I thought the Minister was about to tell me that the STUC had been consulted and that it approved of the matter not being devolved. But presumably, it has not, and does not.

We know that the Convention of Scottish Local Authorities has done a deal for its employees with a minimum wage of £4 an hour. I suspect that that is a little more generous than the Government would like to see. That has already happened in Scotland. Certainly, the employees of local government, for example in North Lanarkshire and East Ayrshire, will be very interested—although I suppose the plumber earning £54,000 a year is not too concerned about a minimum wage of £4 an hour. It is amazing that in that regard employment seems to be a matter for the Secretary of State for Scotland. I refer to employment and direct labour organisations, where he appears to have sacked some 2,000 workers, and yet the chiefs, the councillors and chief officials, go totally unscathed, including Councillor McGuigan, who sits on the Scottish Executive of the Labour Party. If we are to have a national minimum wage, is not Scotland a nation? Should we not look at the national minimum wage inside Scotland? Or is it a matter, like some others to which we shall come, such that if it might be difficult for the Labour Party branch in Scotland it must be kept here at Westminster rather than cause difficulties?

Perhaps the most interesting question is this. If noble Lords glance through the National Minimum Wage Bill 1998 to "Exception from reservation", we come across the subject matter of the Agricultural Wages (Scotland) Act 1949. It so happens that I have that Act in front of me, from Statutes in Force. It states that: There shall be a Board to be called the Scottish Agricultural Wages Board … which shall have … such functions with respect to the fixing of minimum rates of wages for workers employed in agriculture". Section 3 states: (1) Subject to and in accordance with the provisions of this section, the Board shall have power to make an order in accordance with the provisions of Schedule 3 to this Act—

  1. (a) fixing minimum rates of wages;
  2. (b) directing holidays to be allowed;
  3. (c) fixing any other terms and conditions of employment for workers employed in agriculture".
Subsection (2) states that: The power of the Board to make an order under subsection (1)(a) of this section fixing minimum rates of wages is a power to make an order—
  1. (a) fixing minimum rates for time work;
  2. (b) fixing minimum rates for piece work;
  3. (c) fixing minimum rates for time work …;
  4. (d) fixing separate minimum rates by way of pay in respect of holidays".
Clearly, as regards agricultural workers, it seems to be perfectly reasonable that their wages ought to be devolved and the minimum wage legislation contained in the 1949 Act should be devolved.

My question is: why can we not have some logic? Surely, the Agricultural Wages (Scotland) Act 1949 should not be devolved, it should be among the reservations. If it should not be there, then surely it should be in the "Exception from reservation" in the National Minimum Wage Act 1998. I beg to move.

8.30 p.m.

Lord Thomas of Gresford

The noble Lord, Lord Mackay of Ardbrecknish, has seen deep plots in the Government's failure to refer to the national minimum wage in this Bill. He seems to think that the political difficulties of the Labour Party in Scotland have caused them to exempt the National Minimum Wage Act from this legislation.

I believe that the answer is much simpler. It is that the Government have not given any thought to it. The answer that was given in another place, as I see it, is that a national minimum wage is what it says. It is legislation that must be employed all over the country, which means the United Kingdom. It says that the national minimum wage will ensure that there is a level playing field across the country—and I use a slightly worn cliché which is no doubt in the brief of the noble Lord, Lord Sewel. However, there is no level playing field at the moment. Consider Scotland and Wales; those two areas are significantly poorer in their wage levels than England. We as a party have long supported the case for regional variations and regional differences in the minimum wage that is to be employed.

The noble Lord, Lord Sewel, interrupted the noble Lord, Lord Mackay, and said that it is macroeconomic policy. That wonderful phrase can mean anything to anyone. Macroeconomic policy is the reason for this. But the Government have devolved significant economic levers to Scotland in the Bill. There are variables between Scotland, and England and Wales with differential rates of tax and possibilities for differential council tax. So there is already a position in Scotland where there can be quite significant differences in take-home pay.

We would like to know—and that is why we support the amendment in a probing way—whether the Government, in addition to considering differential minimum wages in the Armed Forces and for those under 25, will take into account the poorer areas of the country. Wage levels in those areas have been consistently low over many years. When I say that, I do not mean just Scotland and Wales. There are areas such as the North East where the same case can be made. I look forward to hearing the Minister's reply.

Baroness Carnegy of Lour

I support the amendment. It seems to me, as I said on the last day of Committee, that the Scottish parliament can make a difference to Scotland if it gets the economy going well in a dynamic way which brings firms into Scotland, keeps them there, and brings in people who want to work for good companies in Scotland. It means that the market operates as freely as possible. It is good to hear the Liberal Democrats supporting that and saying that pay should be different in different parts of the country according to what employers feel is right for their firm. That implies that the minimum wage should be capable of being different in Scotland.

I wonder what the Scottish Trades Union Congress thinks of the Government's policy. Surely it wants to play a strong role in working together with the Scots parliament in getting a dynamic economy going so that there are more jobs in Scotland, even perhaps a lower rate of unemployment in Scotland than south of the Border. That is part of what the Scots parliament must be about. Yet the Government are trying to put the economy of Scotland in a straitjacket to that extent. I am sure that it is a mistake. I support the amendment.

Lord Mackie of Benshie

The Agricultural Wages (Scotland) Act, 1949 is accepted and the farmers' union pleaded with the previous government to keep it. It is significantly different from the Act in England in that for a long time there have been special rates for special jobs; in Scotland, for example, for hill shepherds and similar jobs. If that can be done, I do not see why we cannot do it with the national minimum wage as well.

Baroness Ramsay of Cartvale

As the noble Lord, Lord Mackay of Ardbrecknish, made very clear, the purpose of the amendment would be to devolve the subject-matter of the National Minimum Wage Bill currently progressing through Parliament. The amendment would not achieve that on its own: we would also have to delete paragraph (h) of the reservation which reserves the subject-matter of the National Minimum Wage Act 1998.

The Government have already made clear that they strongly believe that a national minimum wage should be just that—national. This is essential to maintain the level playing field for business, and the single market for jobs within the UK. These are of course among our key objectives in framing the Scotland Bill. The national minimum wage is also in many ways, as my noble friend Lord Sewel said, an instrument of macroeconomic policy, another matter which it clearly makes sense to reserve. It is for these reasons that the Scotland Bill reserves the subject-matter of the proposed National Minimum Wage Act as well as other aspects of employment rights and duties and industrial relations. A single national minimum wage applying throughout the United Kingdom will ensure clarity, simplicity and ease of enforcement. Given that the Opposition wish to protect business interests in Scotland, I hope that they will recognise that that is best achieved by the subject-matter of the National Minimum Wage Bill being a reserved matter.

It makes no difference where you live and work in the UK, low pay is low pay. Putting a floor under pay to avoid unacceptably low levels is what the national minimum wage is about. The argument of some noble Lords, like the noble Lords, Lord Mackay and Lord Thomas of Gresford, might be valid if we were debating the level of wages. That would depend upon peoples skills and abilities and the need for those in different parts of the United Kingdom. But we are not talking about a wages policy; we are talking about a national minimum wage. This is a minimum level above which fairness starts and below which exploitation begins. And this should certainly be no different in Scotland than in the rest of the United Kingdom.

The Government's proposal is for a simple practical system involving a single national minimum wage which can be established quickly in the public perception. Both sides of industry, both in Scotland and in the UK as a whole, accepted this proposal, which will achieve a level playing field for business and minimise bureaucracy.

In the Government's view, the economic case for regional rates does not stand up. How would it accommodate pockets of low or high pay within regions? The fact is that low pay is found in all regions. A system of unequal rates would also be confusing and impose an unnecessary burden upon business. We do not want to create low pay ghettos. The aim of the national minimum wage is to encourage firms to compete in terms of the quality of goods and services, not to focus on low prices based on rock-bottom rates of pay.

The recent Opposition amendment to the National Minimum Wage Bill will not deter the Government from their manifesto commitment to introduce a single national minimum wage. That amendment introduced a power for the Secretary of State to undermine the national minimum wage through exemptions. I should make clear that this Government would have no intention of using the power, if it still remains after the National Minimum Wage Bill has completed its parliamentary consideration.

Some Members of the Committee raised the fact that the Agricultural Wages (Scotland) Act 1949 will be one of the exceptions. Obviously, it is not the purpose of the exception to enable the Scottish parliament to legislate to exclude agricultural workers from the national minimum wage. The 1949 Act covers the setting of minimum rates of wages and other terms and conditions of employment for agricultural workers. That is a different purpose from those of the National Minimum Wage Bill and we do not consider that the exception would enable the Scottish parliament to remove the under-pinning which the national minimum wage would provide for agricultural wages.

Lord Mackie of Benshie

The wages under the Agricultural Wages Board are far higher than the minimum wage that I have seen.

Baroness Ramsay of Cartvale

That is the point. The exception would not mean that the Scottish parliament was in any way stopping the wages being higher. The National Minimum Wage Bill means that they cannot be below the national minimum wage. It does not put a ceiling on wages; it puts a baseline below which they should not sink.

In view of my explanation, I hope that the noble Lord will withdraw his amendment, though I do not say that with great hope.

Lord Thomas of Gresford

The playing field to which the noble Baroness referred reminds me of some of the playing fields in Wales on which I referee rugby matches—they are on the sides of mountains.

The Minister said nothing tonight which suggests how the differences that exist between Scotland, England and Wales are to be levelled. The fallacy of what she says is that she presented the national minimum wage as a social policy dressed up as macro-economic policy. When she suggests that the national minimum wage is intended to create the point between a fair return and exploitation, that is social policy; it has nothing to do with economic policy. I do not have at my fingertips the statistics for Scotland, but I know that in Wales the average wage is around 83 per cent. of the wages that are prevalent in England. I want to see, through devolution, those levels equalised. A national minimum wage is not the way to do it.

Baroness Ramsay of Cartvale

I cannot resist coming back to remind the Committee that the national minimum wage is about drawing a baseline below which nobody should fall. It has nothing to do with wages policy and whatever else the noble Lord, Lord Thomas of Gresford, would like to do to even out distribution across the country. That is not what we are talking about here. We are talking about a national "minimum" wage Bill.

Lord Mackay of Ardbrecknish

We do not seem to have made too much progress from where we left off on Thursday night, when the answers to questions merely repeat what the Bill says; do it often enough and hope that we might vanish from the field of battle through exhaustion.

If I heard the noble Baroness right, she said that the Government do not want to create low pay ghettos. Does that mean that she thinks the Scottish parliament would deliberately create low pay ghettos in Scotland? Has she that little confidence in the Scottish parliament she is busy setting up that she believes it would deliberately create low pay ghettos? If so, why is she allowing the poor agricultural workers to be left at the mercy of the Scottish parliament? That is an amazing contradiction. It is sauce for the goose and sauce for the gander and it is the problem we had at the tail end of Thursday night's Committee stage. The Government could not give a logical explanation as to why some matters fell in "reserved" and others fell in "not reserved". They fumbled about and hoped we would tire from exhaustion.

The noble Lord, Lord Thomas of Gresford, is right that there is a difference in Scotland. Under this Bill Scottish wage earners might be paying 3p in the pound more in taxes. As I have told Members of the Committee before, a Scottish wage earner who unfortunately lives in Glasgow is paying hugely more council taxes because of the disgraceful way in which the Labour Party runs the City of Glasgow. It hammers people who live there, except the lucky few who escaped from the City of Glasgow in order to live in the leafy suburbs where their council tax bill is so much less.

Those factors are important. The noble Lord, Lord Thomas of Gresford, suggested that Scotland overall might be a lower wage economy than England. In fact, I suspect that in oil-led Grampian, that will not be the position. In fact, a minimum wage in Grampian, if one looks at the average wage, may look a great deal higher than in the rest of Scotland.

The real point is this. I would not be arguing so much about this matter if both the Agricultural Wages (Scotland) Act and the National Minimum Wage Bill were reserved or if both were exempt. It is the way in which one is reserved and the other is exempt without any good reason that worries me. Of course, we are not talking about a wages policy, though I am not entirely sure whether the National Minimum Wage Bill is not a form of policy. We are not arguing about whether or not we should have one; that is an argument for others in the Chamber. The Chamber decided about that and the Government decided that the National Minimum Wage Bill will become an Act. I am simply saying, if it is going to the Scottish parliament, that the Agricultural Wages (Scotland) Act ought not to be exempted. It is that exemption that puzzles me most of all and for that reason I shall seek the opinion of the House.

8.48 p.m.

On Question, Whether the said amendment (No. 210) shall be agreed to?

Their Lordships divided: Contents, 43; Not-Contents, 81.

Division No. 3
Alton of Liverpool, L. Carnegy of Lour, B.
Ashbourne, L. Courtown, E. [Teller.]
Astor, V. Cross, V.
Attlee, E. De L'Isle, V.
Blatch, B. Dean of Harptree, L.
Dixon-Smith, L. Pilkington of Oxenford, L.
Dundonald, E. Rawlings, B.
Hylton, L. Renton, L.
Kingsland, L. Renwick, L.
Kintore, E. Rowallan, L.
Knight of Collingtree, B. St. John of Fawsley, L.
Lyell, L. Saltoun of Abernethy, Ly.
McConnell, L. Sanderson of Bowden, L.
Mackay of Ardbrecknish, L. Selkirk of Douglas, L. [Teller.]
Sempill, L.
Mackay of Drumadoon, L. Shrewsbury, E.
Mancroft, L. Skelmersdale, L.
Marlesford, L. Soulsby of Swaffham Prior, L.
Molyneaux of Killead, L. Stair, E.
Montrose, D. Strange, B.
Mountevans, L. Torphichen, L.
Northesk, E. Wilcox, B.
Alli, L. Irvine of Lairg, L. [Lord Chancellor.]
Amos, B.
Archer of Sandwell, L. Islwyn, L.
Barnett, L. Janner of Braunstone, L.
Bassam of Brighton, L. Jay of Paddington, B.
Berkeley, L. Judd, L.
Blackstone, B. Kennedy of The Shaws, B.
Borrie, L. Kilbracken, L.
Burlison, L. Lockwood, B.
Carmichael of Kelvingrove, L. Lofthouse of Pontefract, L.
Carter, L. [Teller.] McCarthy, L.
Clinton-Davis, L. McIntosh of Haringey, L. [Teller.]
Cocks of Hartcliffe, L.
Currie of Marylebone, L. Mackenzie of Framwellgate, L.
Davies of Oldham, L. Merlyn-Rees, L.
Dean of Thornton-le-Fylde, B. Milner of Leeds, L.
Desai, L. Monkswell, L.
Dixon, L. Murray of Epping Forest, L.
Donoughue, L. Peston, L.
Ewing of Kirkford, L. Pitkeathley, B.
Falconer of Thoroton, L. Ponsonby of Shulbrede, L.
Prys-Davies, L.
Farrington of Ribbleton, B. Ramsay of Cartvale, B.
Fitt, L. Randall of St. Budeaux, L.
Gallacher, L. Rendell of Babergh, B.
Gilbert, L. Sefton of Garston, L.
Gordon of Strathblane, L. Sewel, L.
Goudie, B. Simon, V.
Gould of Potternewton, B. Smith of Gilmorehill, B.
Graham of Edmonton, L. Stoddart of Swindon, L.
Grenfell, L. Stone of Blackheath, L
Hacking, L. Symons of Vernham Dean, B.
Hanworth, V. Taylor of Blackburn, L.
Hardie, L. Thomas of Macclesfield, L.
Hardy of Wath, L. Thornton, B.
Haskel, L. Turner of Camden, B.
Hayman, B. Uddin, B.
Hollis of Heigham, B. Walker of Doncaster, L.
Hoyle, L. Watson of Invergowrie, L.
Hughes, L. Whitty, L.
Hughes of Woodside, L. Williams of Mostyn, L.
Hunt of Kings Heath, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

8.56 p.m.

[Amendment No. 211 not moved.]

Lord Steel of Aikwood moved Amendment No. 212:

Page 81, leave out lines 2 to 4.

The noble Lord said: I beg to move Amendment No. 212 standing in my name on the Marshalled List.

The Bill quite clearly devolves the whole of the criminal law of Scotland to the Scottish parliament; it also devolves all health matters in Scotland to the Scottish parliament. It is my first contention that the law of abortion as a subject falls entirely within these two categories and therefore the burden of proof lies on those who wish to remove it from those two categories and make it a reserved issue, as is suggested in the current text of the Bill. It is illogical. The proper place for future discussion on the law of abortion is in the Scottish parliament.

I listened to much of the Commons debate on the Bill. This issue was debated briefly in the other place. At the end of the debate there was some confusion. There was a free vote among the members of my party, a free vote among the members of the Conservative Party and for all I know among the members of the SNP. There was not a free vote on the government side, except that at the last minute the Whips were told that they could have a free vote. Therefore we had the unusual constitutional doctrine of a free vote for the Whips and a whipped vote for everybody else. There was some irritation the next day when everybody else discovered that that is what had happened. That is one reason why we should have another look at this issue.

The Secretary of State for Scotland, who replied to the debate in the other place, said that I, as then Member for Roxburgh, Selkirk and Peebles, when I was piloting the 1967 Bill through the House of Commons, had included Scotland in the Bill and that the arguments put in 1967 had some force. I hold the Secretary of State in high regard but, with great respect to him, he really did not know what arguments had gone on behind the scenes on this issue. It is only right that I should inform your Lordships' House of what exactly happened.

First, the Bill which I introduced in 1967 in the other place had already gone through all its stages in this House. It was this House which pioneered the reform of the law on abortion. The Bill was waiting to be picked up by whichever Member had a high place in the ballot for Private Members' Bills. Indeed, the campaign for the reform of the antiquated laws had had six Bills before mine in the House of Commons, but here, in the House of Lords, Members from the Bishops' Benches, and the noble Lord, Lord Soper—I am glad to see that he is still with us on occasions—took a leading part in the campaign for reform, which was supported both by my own church, the Church of Scotland, and strongly backed by a committee of the Church of England. So, when that Bill had its Second Reading, its provisions covered the whole of Great Britain.

There was a long gap between the Second Reading of that Bill and its Committee stage, during which many arguments raged about what amendments should be made to the Bill. A strong campaign was started to try to exclude Scotland from the provisions on the ground that the Infant Life (Preservation) Act did not apply in Scotland and that the Bourne case—the celebrated case in which Sir Alec Bourne had been prosecuted for carrying out a medical termination of pregnancy—showed that case law in England did not apply in Scotland. It was therefore argued that we should rely on the common law of Scotland, under which it was possible for some practitioners to pursue a policy of medical termination of pregnancy.

I was therefore invited to go to Aberdeen. It is significant that we have a distinguished alumnus of that university in a ministerial post and promoting this Bill in your Lordships' House. I went to Aberdeen University to meet Sir Dugald Baird, professor of gynaecology, and his colleague, Professor Miller, who held the Chair of psychiatry. One of our discussions related to the question of whether Scotland should be included in the provisions of that Bill. Sir Dugald was emphatic on the subject. He said, "On no account must you agree to any amendment removing Scotland from the Bill". I said, "But the argument is that people like yourself have been able to carry out a policy which would not be possible in England, so why should you not go on doing so?" He said, "I'll tell you why. Some time ago I had a telephone call from the Lord Advocate, who was concerned at the number of terminations of pregnancy in Aberdeen, which were out of line with the figures for the rest of Scotland. He gave me a warning that I was running subject to prosecution". I asked "What did you do?" He said, "I'll tell you. The next time I had a case in the operating theatre, I put a call through to the Crown Office in Edinburgh and asked to speak to the Lord Advocate. I said, 'Lord Advocate, I have a woman here waiting for an operation. May I proceed?' and the Lord Advocate said, 'How do you expect me to make a decision like that, a couple of hundred miles away and on the end of the telephone?". Sir Dugald said that he had replied, "Precisely, it is a matter for my clinical judgment". He said to me, "Young man"—that is what I was then—"on no account must you leave the law in Scotland and its application to the whim of passing Lords Advocate". I say that in the presence of the noble and learned Lord, Lord Mackay of Drumadoon, and facing the benign personage of the present Lord Advocate. I think, however, that he was right. He had made his point—and Scotland was included in the legislation.

The administration of the law on abortion in Scotland has been a good deal more satisfactory than has been the case in England and Wales. Perhaps I may give the Committee the figures. In 1996 in Scotland, 99 per cent. of all abortions were carried out under the National Health Service. In England and Wales, the figure was only 72 per cent. In 1995 in Scotland, 63 per cent. of all abortions were carried out below the tenth week of pregnancy. In England and Wales—it is not a precise analogy—only 40 per cent. were carried out below the ninth week of pregnancy. So, Scotland has already demonstrated that it can cope with the administration of the law on abortion in a rather more satisfactory way all round than is the case south of the Border, where there are still great fluctuations in practice from one health authority to another.

An important point to note is that the 1967 Bill did not apply to Northern Ireland. That is because Northern Ireland had its own devolved parliament. Stormont was in existence and it was never in question but that the issue of the law on abortion in Northern Ireland should be left to the parliament in Northern Ireland. Presumably, that is the case again, now that we have the new Northern Ireland Assembly.

In recent years there has been a growing campaign in Northern Ireland to change the law on abortion and to bring it more into line with that in Great Britain. The campaign has had rather an uphill struggle since this is the one issue on which Dr. Ian Paisley stands foursquare behind His Holiness the Pope. In 1995—this is the significance of not having Northern Ireland in the legislation—1,548 women came from Northern Ireland to mainland Britain to have a termination of pregnancy and from the Republic of Ireland—one of the few European countries which has not adopted a positive state of law on abortion—4,500 women came to Britain, and so the argument runs—

Lord Gordon of Strathblane

I thank the noble Lord for giving way. In the light of those figures, does he have any plans to restrict freedom of movement north to south of the Border or visa versa, assuming, first, that the amendment were to be passed and, secondly, that there were to be any difference in the legislation north or south of the Border?

Lord Steel of Aikwood

The noble Lord anticipates my next point. It is argued by those who want to keep the Bill as it stands that any change in the law in Scotland might involve a traffic of patients one way or the other across the Border. Cardinal Winning—with whom on other issues I have frequently stood shoulder to shoulder, whether on overseas development or urban poverty and housing—takes a notably different view from the one that I hold as to what the law in Scotland should be. He would like to see an effective repeal, more or less, of the 1967 legislation. I have argued with him in the past that he seems inclined to the view that abortion was invented in 1967, whereas what actually happened was that safe and legal abortion was introduced in place of illegal and dangerous abortion, which cost the lives of so many women and cluttered up the wards of so many of our hospitals.

Cardinal Winning and his colleagues are not the only people who want to change the law in Scotland. The Woman's Right to Choose Campaign asked MORI to conduct a poll in Scotland. It claims the support of 65 per cent. of the population to change the law and to do away with the 1967 restriction involving two doctors, registration and all the rest, in favour of simply allowing a woman to choose to terminate her pregnancy if she wishes. Many European countries now do that.

The noble Lord, Lord Gordon, is right. If the law is changed in Scotland and it becomes more restrictive or more liberal there may be a flow of patients one way or the other across the Border. Surely, a Scottish parliament in considering this matter will take that into account. Those who argue for removing abortion from the criminal law and responsibility for health matters in Scotland are simply saying that the Scottish parliament cannot be trusted. That is not a proposition I can possibly support, and for that reason I beg to move this amendment.

Baroness Gould of Potternewton

I oppose Amendment No. 212 but with some reluctance because I am conscious of how grateful UK women are to the noble Lord, Lord Steel, for the introduction of the Abortion Act 1967. I was fascinated by the history of that Act as outlined by the noble Lord. That Act, which dealt with the timescales, circumstances and conditions to be met before a termination could be carried out, did not and does not differentiate between different parts of the country. I shall turn to Northern Ireland in one moment. The arguments put then are just as valid today.

In any Bill that deals with devolved and reserved powers there will be arguments about inconsistency. However, it is absolutely clear that on abortion there should be a common approach throughout the country and it should be a reserved matter. Wherever abortion is discussed many people hold very strong and differing views, all of which are sincerely held. But this debate is not about abortion policy but about who should have legislative responsibility. This debate is not about the content of the law; nor is it a question of whether the law in Scotland would be more rigid or relaxed. I do not imply, as appears to be suggested, that the Scottish parliament would act in an irresponsible or extreme way. The reverse may be the reality.

I appreciate that the medical profession in Scotland has a strong tradition of support for abortion. The MORI poll conducted in 1997 showed that 63 per cent. of the sample questioned in Scotland agreed with the statement that abortion should be made legally available for all who wanted it. That was a lower figure than in England but still a significant level of support. I also appreciate that in 1996 in Scotland the NHS provided 99 per cent. of abortions free of cost to women. In contrast, the proportion paid for by NHS health authorities in England and Wales varied between 97 per cent. and 34 per cent.

These figures illustrate that even now there are variations in social approach and medical practice in different parts of the country. That does not provide a justification for having different criteria and tests within the legislative framework. I believe that these figures support my concerns about cross-Border traffic. It is the cross-Border traffic of patients that justifies abortion being a reserved matter. We do not know in which direction the traffic will flow. There is cross-border traffic in this country and in other parts of Europe, but that is no reason to introduce such bad practice as a result of a difference between England and Scotland. Such cross-Border traffic would cause stress, hardship and suffering. The heartache of many women who come from Northern Ireland and the Irish Republic to the United Kingdom in order to have abortions clearly illustrates the problem. In 1995, 1,548 women came from Northern Ireland and 4,531 from the Irish Republic.

Another factor is illustrated by those figures. I believe that the number would have been greater had it not been for the costs involved. If women can afford to travel and pay for abortions, that is fine; if they cannot, that fundamental right is denied to them.

Any differences in future legislation may not be dramatic but we do not know their effects. Differences may emerge in medical and social tests and the statutory framework. I do not believe that we have the authority to take that risk. The position of Northern Ireland is often cited as the reason for this devolved power. There is absolutely no case for arguing that because Northern Ireland is different one should countenance differences in the law on abortion between England and Scotland.

For me, abortion is primarily a health issue but also an ethical one. That causes confusion and inequality of access. Because of its complexity and sensitivity it should be dealt with by the Westminster Parliament. Women throughout the UK should have equal access to abortion, but this amendment would prevent that from happening.

9.15 p.m.

Lord Alton of Liverpool

Two distinct issues are raised by the amendments before the Committee. The amendment of the noble Lord, Lord Steel, raises the issue of abortion and the amendments of the noble Lord, Lord Mackay, raise the issue of euthanasia. Once again, they highlight a contradiction. They highlight a contradiction because, on the one hand, on the abortion issue the Committee is being invited to reserve this power to Westminster, whereas in the case of euthanasia it is being said that the Scottish parliament is competent to decide on the matter.

As we discovered during the debate on the previous group of amendments, there are already too many inconsistencies in the legislation. Surely it would be far more sensible to recognise that the Scottish parliament will be a grown-up parliament and will be quite capable of deciding these matters for itself. Either the Committee is in favour of devolving powers to the Scottish parliament or it is not.

I have diametrically opposed views to those of the noble Lord, Lord Steel, on this question. However, I would say in fairness to him that over the years we served together—I was his Chief Whip for many years—he always accepted that this was a conscience question. One of the most undesirable things that has occurred on the issue of abortion in the past 20 years has been the way that it has become an increasingly polarised party political issue. That has been the tragedy because it has driven people into positions where they have had to choose between their party and their conscience. It would have been better if this matter had been retained entirely as a matter of conscience. Therefore, I hope that when the Minister comes to reply to the debate he will answer the point made by the noble Lord, Lord Steel, about whether this vote is being whipped tonight on the government Benches. The noble Lord, Lord Steel, was right to say that in the other place there was great confusion. It cannot be right that Whips managed to exempt themselves from the vote because, in conscience, they felt unable to vote on this question whereas ordinary Members of the House of Commons went into the Lobbies believing that they were being whipped.

Perhaps I may say to the noble Baroness, Lady Gould, that part of this process of the politicisation of the abortion issue has been due to Emily's List, of which I know she is a great supporter. For those Members of the Committee who do not know about this phenomenon, it is another one of those things that has swept up from the United States. It is an acronym. Emily stands for Early Money Is Like Yeast. This money was made available before the last election to candidates specifically on the basis that they were women candidates who supported abortion. That was the one condition that had to be satisfied before funding was made available. That, I believe, was an undue pressure—

Baroness Turner of Camden

As far as I am aware, the Emily's List project was concerned solely with getting women into Parliament and into positions of authority in public bodies. It had nothing to do with the abortion issue.

Lord Alton of Liverpool

If the noble Baroness were to look into the background of Emily's List—I assure her that I have done so—she would find that the question was raised with candidates. She has only to look at the women who were supported by Emily's List and she will discover that there are among them no Orthodox Jews, no Moslems, no evangelical Christians or Catholics—or anyone who would be unable to answer the question that they would support the maintenance of the 1967 Act.

Baroness Gould of Potternewton

I thank the noble Lord for giving way. As a founder member of Emily's List, I really do believe that he has read the wrong piece of history. As my noble friend said, the aim of Emily's List was to get more women into Parliament. In fact, if he looked at the names of the women that it helped to get into Parliament he would find that people did get in who were actually anti-abortion.

Lord Alton of Liverpool

I am grateful to the noble Baroness for saying that. I hope that in due course she will be able to enlighten me as to who those Members were and whether they were asked to give the kind of assurances that I have described. It has been put to me categorically by members of the Labour Party's Life Group, who have expressed this view publicly, that Emily's List provides that kind of funding.

Anyone who observes this issue and observes the political scene will know that political correctness has been a contagion in the past 20 years and that on certain issues you are required to say yea or nay before candidate selection committees will accept you as being fit to be a candidate. Abortion has increasingly become one of those issues.

The noble Baroness, Lady Gould, and the noble Lord, Lord Steel, referred to the figures for Northern Ireland and for the Republic of Ireland. They said that 1,548 women had come from Northern Ireland and 4,500 from the Republic of Ireland to have abortions in this country. There is no disputing those figures. But nor is there any disputing the figures from the rest of the United Kingdom. In the past 30 years, legislation which was said at the time to be legislation to be used only in exceptional cases has led to one in every five pregnancies ending in an abortion. In the United Kingdom 180,000 legal abortions took place last year alone. Since 1990 there has even been a law in Britain to allow for abortion up to and even during birth—on a baby that is handicapped or disabled.

I do not believe that it was in the mind of the noble Lord, Lord Steel, in 1967, when he first introduced his Bill that there should be abortion on demand. In fact he specifically and categorically stated during debates that his Bill would not lead to that. He was able to call in aid, for instance, the Church of England Board of Social Responsibility. At that time the Bill did not include the social clause which was incorporated into it during its Committee stage and is now responsible for 98 per cent. of all the abortions that take place. Of all the abortions undertaken under the 1967 Act, 98 per cent. are undertaken entirely under the social clause.

The noble Lord, Lord Steel, also referred to Cardinal Winning. He somewhat oversimplified Cardinal Winning's views. So far as I know, Cardinal Winning has never said that the legislation in its present form should be entirely repealed. He said that it should be fundamentally reformed. For instance, he has contributed to the process of care for a woman and her child by making available money for women who would otherwise believe that they had no choice—that is surely the issue which should concern us all—and who are pressurised into having abortions often by irresponsible men.

I am sure that no one in this House would be in favour of abortion per se. The issue comes down to a debate about whether one believes in the sanctity of human life or whether choice is more important. That surely is the question that divides many Members in this House and in another place. But the issue this evening does not revolve around that question. It revolves around whether Scotland or this place should decide on whether the law should be framed in that manner.

As has been clear from the preceding speeches, and I hope from mine, these are questions on which there are many profoundly deeply held views. Often they are diametrically opposed. They are issues better decided closer to the people they affect. If the noble Baroness, Lady Gould, is right, and Scottish opinion is in the direction she suggests, let that be tested in Scotland among the Scottish electorate. Let Scottish parliamentarians decide those questions. Let people be free to put dissenting views, whether those views are in this place or in their political parties.

Baroness Kennedy of The Shaws

I support my noble friend Lady Gould in paying tribute to the noble Lord, Lord Steel. The noble Lord holds a special place in the hearts of women because of the way he piloted the Abortion Act 1967 through Parliament. For many women who had been confronted with the agony of backstreet abortion, that legislation brought about the possibility of having abortions legitimately in the circumstances prescribed by law.

In the years between, I qualified as a lawyer. But I still saw on occasions many women who had suffered the consequences of the law before 1967. They told me stories of misery, shame and degradation. It was terrible that women had often to seek the help of other women rather than medical professionals to have abortions which left them unable to function well as women, never mind with the possibility of having other children in better circumstances. That Abortion Act meant much to women in Britain.

In the years that I practised as a lawyer, I also had the opportunity to give advice to organisations which had to deal with the assaults upon that law brought by people such as the noble Lord, Lord Alton. Those assaults were to withdraw from women the right to have abortions. Never made easily, the decision was often a painful one made in the interests of their other children and in extremis.

I say this to the House and to the noble Lord, Lord Steel. I regard him as a friend although we sit on opposite Benches. My fear is that further assaults will be made on the legislation he brought through. Far from there being further liberalisation so that women can make a choice in the very early weeks of their pregnancy, a further assault will be made and Scotland may be the starting ground for that. To have the issue devolved may mean that women will not be able to stand shoulder to shoulder north and south of the Border, able to galvanise women in serious numbers to make their argument and case against what people like the noble Lord, Lord Alton, seek to do.

Many women who share the noble Lord's religious conviction believe that this is an issue of right. They may not choose abortion for themselves, but still believe that women individually should make that choice and would not withdraw it from them. That is where Catholic women would differ from the noble Lord, Lord Alton.

I say to this Committee, please consider with care the question of devolving the issue to Scotland. It may mean the beginning of a war of attrition to remove the right from women. Many women north and south of the Border may wish to be able to argue together, and with men who support them, in favour of the provision being important to women.

The noble Lord, Lord Alton, said that political correctness has entered into the subject of the debate. It is not about political correctness; there is no correctness in it at all. Before and since 1967, women have had to make painful decisions and none makes it easily. Often women make the decision in difficult circumstances and in doing so they bring and draw upon their morals and ethics. They do not leave them behind.

However, the issue is one of right, which is why it matters to women. They should at least have the right to make the choice for themselves and not have it dictated to them by men who have never had children or experienced pregnancies.

I say to the Committee, please, please let women north and south of the Border argue in favour of the provision as something important to them, to their ultimate fulfilment and to the betterment of us all, men and women, in the bringing up of children who are wanted and desired and can be given a good life.

The reason why I oppose the amendment tabled by the noble Lord, Lord Steel, having stood with him on so much of what he has fought for, is that I am concerned that it will be used to divide us rather than to join us in our efforts to make the provision available to women as a matter of right.

Lord Sanderson of Bowden

I wish to intervene on two points. I strongly support the noble Lord, Lord Steel. I have not always supported him politically, but on this issue I do so as, among other things, a member of the Church of Scotland.

Two major points must be made, and he made them most succinctly. First, it must be clearly said that if we are to have a parliament in Scotland it must be responsible. The Government are devolving health to Scotland and it is a major issue for the Scottish parliament to consider. Abortion falls into that category. If we are to have a responsible parliament in Scotland, I cannot for the life of me think why this important subject, which raises so many passions on all sides of this Committee and elsewhere, should not be considered by it. The noble Lord's second point, which I support entirely, is that on such an issue Members on all sides of this Committee should have a free vote.

Lord Thomas of Gresford

I have the most enormous respect for the views expressed by the noble Baroness, Lady Kennedy, and for the way in which she so eloquently and forcefully expressed them. In the context of devolution, we are considering a basic principle; what is the Scottish parliament to be about? Such ethical issues—"conscience questions", as the noble Lord, Lord Alton, termed them—depend upon personal belief rather than party politics. I believe that a Scottish parliament would be best able to resolve them because it will have time to do so. Here we are, debating this issue within the space of perhaps half an hour or an hour in your Lordships' unelected Chamber. In the Scottish parliament such an issue will have time devoted to it by elected representatives who will be able to reflect upon the feelings of their constituents—the people who put them there. They will be able to express the views of Scottish people today rather than their own views.

It is not as though the Scottish criminal law has been particularly illiberal in the past. Before 1967 under Scottish criminal law it was a crime to carry out an improper act calculated to destroy the foetus, but the need to terminate pregnancy in the interests of maternal health was not considered to be a criminal act. Therefore therapeutic abortion was acceptable to Scottish public opinion. Nor did the 1967 Act change that in any material respect because the common law continued and there were differences between the law in Scotland and England and Wales.

Hence, in 1963, before my noble friend's Act was passed by Parliament, it was possible in Aberdeen, under Sir Dugald Baird, for 2 per cent. of the women to have abortions on the National Health Service. There were never any Crown prosecutions in Scotland where there were genuine medical issues involving the maternal health of the woman.

That is a position that I think all liberal-minded people would always have adopted. It seems to me therefore that when one considers this issue, my noble friend is absolutely right; it is a question to be determined with full debate by elected representatives.

I recall, perhaps over a year ago, before the last election, debating in this House at two or three o'clock in the morning—which no doubt we shall be doing as regards this legislation—a Scottish criminal law Bill with perhaps seven or eight people present, of whom I recall three were Scots. What we were doing was legislating on Scottish criminal law. It seemed to me at the time that the case for devolution was fully made out. This is the kind of issue that a Scottish parliament should deal with.

9.30 p.m.

Baroness Young of Old Scone

I think that tonight we are not talking of the rights and wrongs of abortion, though I must confess that I pin my colours to the mast in being concerned about 180,000 unwanted children being born if the noble Lord, Lord Alton has his way. I would voice the sentiment that it is distressing to speak against the noble Lord, Lord Steel. He was something of an icon for us when I was a child in that we all took part in his campaign and were delighted with the outcome.

For me this is not about whether abortion is right or wrong, nor is it about the competence of the Scottish parliament to make decisions on these issues. I have the feeling that a substantial number of women in the new Scottish parliament could give Cardinal Winning quite a fright. I do not think that any of those matters are the issue. The issue is the difference between the north and the south. I believe we might well see more liberal and effective laws in Scotland if that were to be recognised.

The Northern Ireland issue is one, I think, that is a lesson to us all. I should like to dwell tonight on some of the things that happen as a result of women in Northern Ireland having to come to the mainland for their abortion service. Whether you agree with them or not, they have gone through the process of counselling. As my noble friend Lady Gould pointed out, they have gone through the process of scraping together the money to get this service. They have made their decision, whether you approve of it or not. They have decided to come here for an abortion. They come, often unable to bring with them supporters, friends or even partners who have been involved in an unwanted pregnancy. They come to the company of strangers to have this important moral, as well as physical, procedure, carried out.

I do not think that is something that we should live with. If we see a difference in the law between the north and south, irrespective of where it is more liberal, we will find that happening more and more. It used to be called "abortion tourism". I think that is a blasphemy as far as the word is concerned. This is not tourism; it is a distressing procedure for women. It raises all sorts of moral as well as physical and emotional questions for them.

Any future change in the law on abortion in the United Kingdom would inevitably be hotly contested and widely debated. It would pull upon the widest range of opinion, including views from Scotland and Scotland's new MPs. We should take great heart from the fact that we can produce a system across the United Kingdom which is common, consistent and in the best interests of women. With great regret, I have reached the conclusion this evening that in spite of being a great fan in my youth of the noble Lord, Lord Steel, and all that he achieved, this amendment would not be in the interests of the women of the United Kingdom.

Lord Sempill

I strongly support this amendment, although I do that with some trepidation in the face of three noble Baronesses who obviously feel very strongly that the Government should not accept the amendment. I take on board their points of view.

However, I should like to bring us back to the whole issue of devolution and the Scotland Bill. Those points have obviously been raised by other Members of the Committee this evening. There are three clear issues in this debate: the first pertains to the legal aspects of abortion; the second to the health aspects; and the final one to the morals/ethics of abortion. I am sure that all Members of the Committee will agree that this Bill has stated clearly that both legal and health issues pertaining to Scotland will be devolved to Scotland.

That leaves us with only the third issue, which is the contentious issue; namely, the moral or ethical situation with regard to devolving this issue to Scotland. We should cast our minds back to this hour on Tuesday of last week, when we discussed another amendment. Unfortunately, many Members of the Committee were not present at that time. On that amendment the noble Lord, Lord Sewel, said: The whole point about devolution is that this Parliament is entrusting the Scottish parliament to make laws for Scotland in respect of the devolved matters".—[Official Report, 21/7/98; col. 789.] Therefore, two of the issues are devolved matters.

I conclude by supporting the noble Lords, Lord Steel and Lord Alton. The ethical and moral issues must be put to this House on a free vote. I do not believe that the other two issues are up for discussion. The Bill states clearly that those matters are to be devolved to the Scottish parliament. Having said that, I repeat my support for the noble Lord, Lord Steel.

Lord Mackie of Benshie

I have grave doubts about the position of my noble friend Lord Steel. Those doubts are occasioned by one thing only; that is, the fact that the noble Lord, Lord Alton, supports the amendment. I have a strong feeling that he is adopting the Napoleonic approach of striking at the weakest link. He believes that if he can get a small unit, he can concentrate the forces of reaction in Scotland and have an effect on a small unit.

I assure the noble Baronesses opposite that the noble Lord does not have a chance. The Scottish people will resist his blandishments and they will vote with good sense as they believe. I support my noble friend Lord Steel.

The Earl of Balfour

There is one subject which we should seriously take into consideration; that is, that a person's circumstances in life, whether relatively well-off or poor, must never make a distinction in law.

I am satisfied in my own mind, after many years of research, that the abortion laws which we have at present in this country are correct and should stay that way. My concern is that if for argument's sake—let us say for the moment—Scotland decided to make it much more difficult to obtain an abortion, and changed the law to that effect, then wealthy people will cross the border to another country and have their abortions, but the poor people could not do that. That is one of the things that scares me. It is on that ground—namely, that there must never be a distinction—that I would rather stick with the Government of the United Kingdom.

Perhaps I may give the Committee one other example where I have felt for many years that the law can be extremely unfair. I have in mind planning laws. The Town and Country Planning Acts seem to allow one owner of a site to get away with putting up a building which any other person would not be allowed to do. Indeed. I have a good Scottish example for the Committee—the St. James's centre in Edinburgh. It is totally out of keeping with Princes Street, George Street or Queen Street. That is where the law has gone wrong. Therefore, as regards abortion in this Bill, I believe that it should remain a UK function. I shall support the Government tonight on that point.

Baroness Linklater of Butterstone

I rise to express my support for my noble friend Lord Steel on this most passionately, although in many respects I share the attitudes and beliefs of noble Baronesses opposite. It seems to me that the Government are being extraordinarily inconsistent in two particular respects. First, they are being inconsistent in what they choose to devolve and what they choose to reserve. They are apparently happy to devolve euthanasia while wishing to reserve abortion. There is a whole range of medical and health matters which the Government are happy to devolve, while they wish to retain a matter like abortion. That is totally illogical.

Secondly, the Government have said consistently throughout—and this was reiterated by the noble Lord, Lord Semphill—that on as many matters as possible the Scottish parliament, which is represented as a mature parliament, should be allowed to make decisions for itself. My noble friend Lord Steel has already shown how first class the health record and the standards of medical practice are in Scotland. I am a member of the Church of Scotland. I believe passionately in the sanctity of life, but I also believe in a woman's right to choose. That is what women believe in. However, I notice that there are not so many women on this side of the Committee rising to make the case. Indeed, the decisions which are made concerning abortion are invariably agonising, painful, difficult and never taken casually or lightly.

I trust the Scottish medical establishment in the way that it carries out its practices. What I hear from the other side of the Committee is a fear of what might happen; in other words, the fear that perhaps everything will become a little more reactionary. Like my noble friend Lord Mackie, I do not share those fears. Moreover, I believe that we are more likely to be a beacon of good practice to which the rest of the country can turn for examples. For that reason, I urge the Committee to support my noble friend Lord Steel in his amendment.

Baroness Carnegy of Lour

I should like to follow the noble Baroness on a slightly different tack. I do not know whether noble Lords or noble Baronesses have had anything to do with the local medical research ethics committees which exist all over the country. Indeed, we have them locally in Scotland, and I was chairman of one of them for a spell. It was a very interesting experience. We did not actually deal with embryology and assisted pregnancy issues, but we dealt with all other medical research ethic issues, many of which were closely related to the safety of women who were pregnant or who might be pregnant, and with research of different kinds. This matter is closely related to such issues. It is absolutely crucial that those decisions are taken locally. They are, of course, decisions of universities and health boards. That is a demonstration of the way these things are best done locally.

There is no question in my mind that if Scots women want to stand shoulder to shoulder with women in the rest of the United Kingdom, they will jolly well do so. They are not so chicken hearted that they will give into pressure if these great issues arise. The more local the decision-making, the better. There is a good deal to be said for what the noble Lord, Lord Steel, has recommended.

9.45 p.m.

Lord Desai

We are creating a devolved Scottish parliament; we are not creating separate citizenships across the United Kingdom. After a great struggle, and thanks to the noble Lord, Lord Steel, women in the United Kingdom have won their right as citizens of the United Kingdom to choose as regards abortion. I think this right cannot be compromised by single citizenship. Whether the Scottish parliament is more liberal or less liberal is not the point; any difference will lead to imbalance and misery. That is why I think we should oppose the amendment that is proposed.

Lord Monson

Before the noble Lord, Lord Desai, sits down, is he aware that not all citizens of the United Kingdom have a right to abortion? Those in Northern Ireland do not.

Lord Desai

Perhaps things will change soon.

Lord Mackay of Ardbrecknish

We have had an interesting debate. A number of amendments are grouped with the amendment of the noble Lord, Lord Steel of Aikwood, which stand in my name. Amendment No. 215 is rather different from the others. I am not entirely sure how I allowed it to be grouped with the others. It is a simple amendment and is typical of the kind of probing we have been engaged in on this Bill, which is about devolution. I shall return to that in a minute. Some of the newcomers to the Committee stage ought to have attended the earlier debates to understand the principles behind devolution and the referendum which the Government won fairly resoundingly in Scotland last September.

Amendment No. 215 concerns welfare food. Section 5 on welfare food refers to, Schemes made by regulations under section 13 of the Social Security Act 1988 (schemes for distribution of welfare foods)". That matter is to be reserved. I find it hard to understand how something which clearly must be delivered at local level is not to be devolved. I hope that the Minister will explain why this issue has to be reserved and cannot be a responsibility of the Scottish parliament.

I now turn to the amendment in the name of the noble Lord, Lord Steel, my rather wider amendment which seeks to remove the whole of the head on health and medicines, Sections 1 to 4, and my amendment which specifically seeks to prevent xenotransplantation from being a reserved matter. My other amendment is concerned with euthanasia and related matters which it appears will be devolved to the Scottish parliament.

My noble friend Lord Sempill tried quite successfully to explain to the noble Baronesses who are new to our debate the key arguments on devolution. We welcome the noble Baronesses to the debate, although it would have been interesting to hear their views on other issues. This is not just a question of whether one is for or against abortion. This is a discussion about a serious, grown-up Scottish parliament which will be asked to take serious decisions.

The noble Lord, Lord Sewel, has tried on a number of occasions to explain why the Government have decided that some detailed matters have to be reserved and some have to be devolved. He has done it on the basis of what might be termed the wider field. He has taken as his starting point: if the wider field is a devolved field, and if other matters which may be reserved but are minor fall into the wider devolved field, then that is a reason for devolving them, and vice versa.

In this particular case there is no such argument. Both the main heads that lead to the law on this matter are devolved. Health matters are devolved, and there is a clear argument that if we are to have devolved government they should be devolved. Nobody disagrees with that proposition. The criminal law in Scotland is being devolved; the Scottish parliament is to pass primary legislation. Those are the two fields within which abortion legislation falls: it is a health matter, and it is a legal matter. Both of those wider fields are devolved. I cannot therefore for the life of me understand why abortion is not also a devolved matter.

It is harder to understand when one examines the new section that I have tabled on euthanasia. It is not just a question of euthanasia, which is somebody deliberately and in full possession of his or her faculties saying that at a certain stage he or she would like a doctor to hasten their death, but also the difficult issues of the withholding or refusal of medical treatment and healthcare to people who can no longer make those judgments for themselves; for example, in the case of a youngster possibly caught in a motorbike accident and totally comatose, whether or not it is right to switch off the life support systems, whether the parents are capable of making such decisions. I cannot think of any more life or death matters than these, and they are to be devolved to the Scottish parliament. If they are to be devolved, why not abortion? Conversely, if not abortion, then why not the matters that I have included in my new Section 6 on euthanasia. The three noble Baronesses who spoke so eloquently on this subject will have to do some defending to explain the illogicality in their position.

We have been told that we cannot have different laws north and south of the Border, and I shall turn to that issue. It has already been pointed out that we have different laws between the north of Ireland and the rest of the UK. I look forward to seeing the noble Baronesses, Lady Gould, Lady Kennedy and Lady Young—two of whom seem to have departed the scene—table an amendment to the Northern Ireland Bill when it reaches this place stating that abortion should be reserved to the United Kingdom Parliament. We need some logic and consistency in this matter.

Scotland is a different country. It has different laws, which it has vigorously defended for over 300 years. It has a different moral background. The Church of Scotland is a nationwide church and is part and parcel of the fabric of Scottish society. In addition, it has the Roman Catholic Church. It is different from England, where, in addition to the Roman Catholic denomination, the Christian religion is represented by the Church of England and the Methodists. Scotland has a different moral tradition, which I believe is every bit as good as that in England and Wales. I say to the three noble Baronesses, who I gather do not currently live in Scotland, although two come from Scotland, that we are perfectly capable of arriving at proper moral judgments on these issues. Frankly, if it helps the noble Baronesses, if I have to decide between the former Leader of the Liberal Party and his former Chief Whip, I shall decide more readily with the former Leader of the Liberal Party on this issue. These are matters which we in Scotland ought to be able to decide for ourselves.

The last time this matter was debated in this Chamber was on 4th May 1978. The position then was that the government wanted abortion devolved. It was quite straightforward. The noble Lord, Lord Kirkhill, who was the government Minister at the time, made a speech defending the position that it should be devolved. I wish to quote a few of his remarks. They are as pertinent today as they were when he spoke. The noble Lord turned to the arguments against devolving, first to the undesirability of having different legal provisions on either side of the Border, and, secondly to the prospect of an undesirable cross-Border traffic of those seeking easier abortions". He went on to say: In the Government's view, this is what legislative devolution is all about. It would surely be a nonsense to exclude from devolution a field of law just because it raises a number of difficult issues. It would, in my view, be insulting to suggest that the elected representatives of Scotland would not be responsible enough to deal with these issues and that they would fail to give proper weight to the feelings of the people of Scotland".—[Official Report, 4/5/78; col. 481.] I have to say, in response to one of my noble friends who wanted the opposite done, that I think the noble Lord, Lord Kirkhill, was right on that day. The Scottish parliament will be well aware of the problems of cross-border traffic, if it has significantly different laws. Why should it not be allowed—I use the word "allowed" intentionally—to make those decisions? I have been accused on a number of occasions from the Government Benches of wanting to tie the Scottish parliament to Westminster. I am turning the tables on the Government now. On this issue, they do want to. The reason they want to is because it is a difficult issue. I shall come to good proof of the fact that it is difficult in a moment.

I do not believe necessarily that Scotland would—as the noble Baronesses seemed to fear—go headlong down a road led by the noble Lord, Lord Alton. I believe that the opposite is the case because the Church of Scotland is firmly on the side portrayed by the noble Lord, Lord Steel, on the abortion issue. I find that I am in unusual company. I received a letter from Cardinal Winning. Some noble Lords will be interested to hear that it ended, "with every good wish". The cardinal does not normally give me every good wish after I have crossed swords with him on a certain issue. However, on this matter I believe that if he wants to lobby the Scottish parliament in favour of stricter abortion, he ought to be able to do so. Conversely, I believe that the majority of the people of Scotland who would want to lobby the other way have every right to do so.

There is another argument for returning this provision to the Commons, if that is what we do. I refer to the amazing performance in the House of Commons when the matter was discussed there. I know, having been a Member of the other place, that some Members there feel strongly about the issue and would not agree with their colleagues. In some ways, I cannot agree with the noble Lord, Lord Alton, about the way the Labour Party approaches the matter.

Many Members of the Labour Party from Scotland have consistently voted against the position held by the noble Lord, Lord Steel of Aikwood. I have little doubt that many of those would have preferred to vote to send the issue to the Scottish parliament, but they were whipped into the Government Lobbies. After they had emerged from the Government Lobbies and studied the Division list, they noticed that the honourable Member, Dennis Canavan, was not in the Government Lobby. That is a normal position for Dennis at the moment; he is carrying the torch of true old Labour in Scotland on a number of issues. In the case of students, for example, he happens to be right. What intrigued him more than anything else was that two Government Whips were in the anti-Government Lobby. When people said: "It was a whipped vote. Why were two Government Whips in the anti-Government Lobby?", the reply was: "Well, it was not a whipped vote, it was a free vote, but we did not bother to tell you, we only told the Whips". That is deviousness of a high order. If it is not true, I would be interested to know what is the truth. There are a few Labour MPs from Scotland who think it is true and believe that they were whipped into the Government Lobby and were not given a free vote. I suspect that they ought to be given a free vote.

The important point on the issue is what we want a Scottish parliament to do, and how much trust—that is the point—we should put in it. Those who have parachuted into our debate for a few minutes do not know what the flavour of the debates has been, the flavour of the Government's case, especially when it comes to attacking the Conservative Party, which has historically been in favour of one United Kingdom. The noble Baronesses, Lady Gould, Lady Kennedy and Lady Young, are taking up the traditional position of the Conservative Party on the issue that we do far better to have things decided on a UK basis. However, I must tell them that even the Conservative Party has left that ground because the election results determined that and then the referendum clearly spoke for the people of Scotland. They wanted a devolved parliament with responsibilities. Those responsibilities cannot be picked and chosen depending on whether one believes they will go one way or the other when it comes to the issue.

I leave the Committee with the words of none other than the noble Lord, Lord Sewel, on 21st July last. He was responding to my noble and learned friend Lord Mackay of Drumadoon and said: The noble and learned Lord expressed fears about legislation being enacted in Scotland which would not be passed at Westminster"— shades of this evening— But that is one reason why we are establishing a Scottish parliament, so that it can actually develop Scottish solutions to Scottish problems, not following Westminster all the time and not being hound by how Westminster wishes to legislate. Again, that is the underlying philosophy and basis of the devolved settlement".—[Official Report, 21/7/98; col. 789.] I repeat to the Minister, the underlying philosophy and basis of the devolved settlement". I beg to move.

10 p.m.

Lord Sewel

I join the noble Lord, Lord Mackay of Ardbrecknish, in recognising not only the interest and value, but also the quality of this debate.

I fully recognise that there are strongly held views on the matter of whether or not abortion should be devolved. I realise also that there are strongly and sincerely held views on the issue of which way legislation on abortion should go. But as many Members of the Committee observed—some at the end of their speeches which dealt with the merits of abortion but nevertheless got there in the end—tonight we are not debating the rights or wrongs of abortion. We are not even debating whether, if it was devolved to a Scottish parliament, legislation would move in the direction of tightening up the grounds for abortion or making abortion more liberal. We are debating the perhaps narrower but crucially important point of whether it shall be devolved. In other words, we are debating the issue of the competence—the vires—of the Scottish parliament.

I have been asked on a number of occasions by the noble Lords, Lord Alton of Liverpool, Lord Sanderson of Bowden, and others to clarify whether or not those of us on the government side have a free vote. I make it absolutely clear that, for the Government, this vote is whipped for the basic and simple reason that we are not dealing with the merits of abortion; we are dealing with the competence and vires of the Scottish parliament. On that issue it is not appropriate to have a free vote. It would be appropriate to have a free vote if we were dealing with the merits of abortion.

Lord Hogg of Cumbernauld

Can my noble friend explain to us what happened in the House of Commons?

Lord Sewel

My understanding of what happened in the House of Commons is quite simple. It was a whipped vote. I understand that a couple of individual Members of the House of Commons made use of the opportunity to speak to the Chief Whip in terms of conscience. But there is all the difference in the world between an individual decision based on conscience and a general free vote. There was not a general free vote in the House of Commons. Let me make that clear.

Lord Hogg of Cumbernauld

Can my noble friend say whether those individuals were office holders, Ministers of the Crown, Whips or what?

Lord Sewel

I am not aware of the full identity of those who voted. However, my noble friend—my very special noble friend—Lord Hogg of Cumbernauld is aware, as am I, by a reading of the public prints that two Whips made use of that facility. I recognise that straight away.

Lord Mackay of Ardbrecknish

I thank the Minister for giving way. Can he confirm that at col. 1110 of Commons Hansard on 31st March 1998 in the Division list on this subject in another place Mr. Dennis Canavan voted against the Government, as did Mr. Thomas McAvoy and Mr. John McFall, all of whom are Whips? Can the Minister give me any indication of the last time Whips voted against a whipped vote?

Lord Sewel

I have tried to explain the position in the House of Commons as far as I understand it. Unlike the noble Lord, Lord Mackay of Ardbrecknish, and others, I have never been a Member of the other place. I can only say it was the position, as I understand it, that it was a whipped vote. A number of individuals indicated to the Chief Whip that they thought this was a matter of conscience and therefore acted on that basis. That did not erode the Whip. It was an individual decision by those Members.

Lord Howie of Troon

Like my noble friend Lord Hogg of Cumbernauld, I was a Whip, although in the somewhat distant past. In those days it was quite unknown for a Whip to have a conscience, let alone to vote and be recorded with one. My noble friend is on the hook. I hope he can get off it somehow.

Lord Sewel

I shall try to get off the hook in the way those in the Whips' Office at the other end of the building have got off the hook. Salvation must be just round the corner.

Lord Mackay of Ardbrecknish

Perhaps I can be the Minister's saviour in this regard. Will he make it clear that any of his Back Benchers who has a conscience in this matter is free to vote against the Whip?

Lord Sewel

As I have indicated before, those Members in the House of Commons who believed that this impinged upon their conscience saw the Chief Whip before the vote was taken and explained the matter to him. It is open to any Member of this House, to any of my colleagues, to do likewise with the Chief Whip and the Chief Whip will then make a decision. I would have thought that nobody would have expected any other procedure to obtain.

Noble Lords


Lord Sewel

I appreciate that there is a degree of humour and hilarity in our proceedings, particularly as we deal with this specific issue. I come back to the point that Members of the Committee have addressed these issues in a profound and serious way. I hope your Lordships will allow me to reply on the substantive issues in a similar mode.

The argument has been advanced by those in support of the amendment that the two broad topics of health and criminal justice have been devolved; as abortion fits both of those topic heads, then abortion should be devolved. I perfectly well accept that in general we have adopted the approach that health and criminal justice should be devolved matters. However, they have not been devolved totally. This is not the single example of an exception. There are other examples where the advantages of the UK approach have been thought to outweigh the benefit of devolution. For example, in the criminal field we have reserved the matter of the misuse of drugs and legislation covering firearms. Both of those topics are reserved.

Lord Thomas of Gresford

Have the Government reserved the question of capital punishment?

Lord Sewel

No. I am pointing out that there is not an absolute application of the general approach. There are specific areas in which it is believed that the benefits of the UK approach outweigh the benefits of devolution. I referred in the criminal field to the misuse of drugs and firearms provisions. In the medical field, we have reserved the regulation of the health professions, medicines, embryology, surrogacy and genetics. We recognise that in some areas a case for going against the general approach can be argued and that powers should not be devolved in those areas.

I believe that it was the noble Lord, Lord Steel of Aikwood, who said that in such circumstances the onus is on the Government to make the case. That is perfectly fair. We have a general approach and if we cannot find that there is a strong argument for the exception, the general approach must hold. That is the philosophy that we have tried to maintain and to argue throughout our debates on this Bill, and particularly with regard to Schedule 5.

What are we faced with in the particular? We are faced with the situation which my noble friend Lady Gould of Potternewton identified. The application of the general principle would create an unacceptable disparity in its implementation. The practice would be such as to undermine the benefits to be gained by the application of the general rule. Indeed, if there were the opportunity for different legislative provisions to apply either side of the Border—I agree with a number of noble Lords in that I am by no means confident in speculating about whether Scotland would then become more or less liberal than England—the problem of cross-Border trade would then become inevitable. I believe that the public and Members of this Committee would find such an outcome unacceptable, deeply distasteful and deeply distressing. It is to avoid that—to avoid the practical outcome of the application of the sound general principle—that in this case the Government believe that we should depart from the principle and treat this as an excepted matter.

Lord Alton of Liverpool

I am grateful to the Minister for giving way, but does he accept that within the European Community there are many varying laws in many countries? We need consider only the upper time limits as an example. On average, the EC upper time limits are between 12 and 14 weeks, compared with 24 weeks in the United Kingdom. That leads to a trade. Indeed, women from over 100 countries come to the United Kingdom because of our open-ended abortion laws which have led to 5 million abortions in the past, 30 years. Does not the Minister accept that there is already such a trade and that it comes to England because of the way in which our laws are framed?

Lord Sewel

I am concerned to ensure that we do not increase a practice that I find distasteful and unacceptable. It is as simple as that.

Lord Rowallan

I am sorry to interrupt the Minister because I know that he is trying to get into the flow of his answer. I should be grateful, however, if he could explain to me why he thinks that we should reserve abortion as a topic whereas the questions of euthanasia and of taking away the right to medicines, which are different ways of killing or destroying, are to be treated differently. I do not understand the Minister's thinking on that difference. Surely what is right for one must be right for all the other such questions.

10.15 p.m.

Lord Sewel

There is no separate body of law on euthanasia. That matter is covered by the general criminal law. As the criminal law generally is devolved so this matter is appropriately devolved. There is not a Scottish or English euthanasia Act and that difference does not obtain.

Lord Mackay of Drumadoon

When the Minister responded to my noble friend's intervention did he take into account the Lord Chancellor's consultation paper Who Decides? That document raises very succinctly the question of whether or not there should be legislation in this field. If the Lord Chancellor is thinking along these lines—the Minister will be aware that there is a report outstanding by the Scottish Law Commission in this general area—is the response a full answer to this question? Whatever the law is at the moment, it is possible that there will be statute law in the future. Therefore, the clear issue that is raised is whether it is competent for the Scottish parliament to legislate in this area as well as the very difficult area of abortion.

Lord Sewel

If at some future stage there is a separate body of law on euthanasia whether or not that should be devolved will be decided by the parliaments. As the noble and learned Lord is aware, we have already had the debate on the mechanism by which reserved and devolved matters move backwards and forwards. But the Bill is silent on euthanasia because there is no separate body of law relating to it.

Lord Rowallan

Surely, we cannot have a situation in which we decide on specific Acts. A view must be taken on the whole moral principle. One cannot make up one's mind whether or not in relation to a particular Act a matter is to be reserved.

Lord Sewel

The general principle is one of criminal justice. The general approach is that criminal justice should be devolved. There is a specific body of legislation that deals with abortion. Quite rightly, that raises a debate about whether that specific body of legislation should be devolved or reserved. There is no separate body of legislation on euthanasia. I believe that the argument comes down to that rather simple distinction. I take the point that has been raised by the noble and learned Lord. If there were a separate established body of law on euthanasia that could be revisited and decisions could be made as to whether that matter should be devolved or reserved. We have anticipated that by the way in which the list of reserved matters can be reviewed by agreement between the two parliaments.

Lord Mackay of Drumadoon

I am grateful to the Minister for allowing me to intervene again. This issue was discussed last week. The noble Lord will recall that he introduced very complicated amendments that dealt with the definition of reserved matters. In the amendment to paragraph 3(a) to Schedule 4, which is helpfully included in the document that the Minister has made available in the Printed Paper Office today, the term "the law on reserved matters" is defined as meaning, first, any enactment the subject matter of which is a reserved matter which is comprised in an Act of Parliament or subordinate legislation; and, secondly, any rule of law which is not contained in an enactment the subject matter of which is a reserved matter. Therefore, the law on reserved matters includes both statute law and the common law. The problem for members of the Committee on this side of the Chamber is why certain ethical issues which may have been touched upon by statute law, such as the Abortion Act, are not to be devolved while other equally complicated and difficult ethical matters that are dealt with by the common law and possibly touched upon by statute law are to be devolved.

Lord Sewel

I have tried to explain as best I can the Government's thinking in relation to this distinction. Clearly, I have not been able to persuade some members of the Committee on the opposite side of the Chamber. I must accept that that is the case.

Most of the debate has been about abortion and about whether the parliament should control abortion. Many of the other issues have been brought in perhaps to try to indicate a difference of approach from area to area. I believe that the general principle that we have adopted in the Bill is right. It is the general approach that health and criminal justice should be devolved, but that there are exceptions in the legislation where the benefits of maintaining a united UK or GB approach seem to outweigh the benefits that would be brought from applying the principle of devolution. Abortion is one of those.

This is not a matter of trusting the parliament. It is simply a matter of the value that we put on the benefits of maintaining a united approach on this area of policy within the framework of Great Britain. We should reflect on that. As I said at the outset, it is not a matter of the pros and cons of abortion. That is a totally separate matter. It has to do wholly and completely with the vires of the parliament and what happens if there is a different degree of liberalisation or illiberalism north and south of the Border. As I see it, the inevitable consequence would be a cross-Border trade, which I should have thought everyone would seek to avoid. On that matter, I very much take the point made by the noble Earl, Lord Balfour. I hope that the noble Lord, Lord Steel, will feel able to withdraw his amendment.

Lord Steel of Aikwood

I agree with the two Front Bench spokesmen that we have had an exceptionally high quality and intense debate on this subject. I hope that the noble Lord, Lord Mackay of Ardbrecknish, will not mind me saying that when he began these debates so many days or weeks ago and announced that he was a convert to devolution, I doubted it. But tonight, for the first time, he actually sounded like a convert to devolution. We on these Benches thoroughly enjoyed the passion that he brought to his speech.

We have had a serious debate. The Minister has accepted that the burden of proof lay on the side of those who want to exempt abortion from the normal scope of the criminal law in Scotland and health matters in Scotland and leave responsibility at Westminster. He has asserted that problems would arise if the issue were devolved to Scotland. An assertion is not proof. I believe that the parliament of Scotland is quite capable of taking into account the undesirability of creating cross-Border traffic in one direction or the other. That is the only difference between us.

Lord Hughes of Woodside

It is not simply an issue of whether or not the Scottish parliament can be trusted to take into account the problem of cross-Border traffic. The fact is that the Westminster Parliament might decide to have a different law as compared with the Scottish parliament. There would therefore be a cross-Border trade one way or the other. That is why it is essential that both are in unison and why the matter should be reserved.

Lord Steel of Aikwood

I like to think that my faith and confidence in the Scottish parliament applies equally to the Westminster Parliament. I do not think that the parliaments in these islands will be so stupid as to mess about with the abortion law so as to create cross-Border traffic. That is my basic proposition.

I shall put my cards on the table. I am a supporter of the Bill. I want to see it proceed. We are well behind time. I do not believe that we would gain anything by having a revisitation of this issue at Report stage. For that reason, having had a good debate and having had Members opposite not only exercising their consciences but exercising their common sense and their individual judgment, I wish to test the opinion of the Committee and deal with the matter in a well attended Chamber.

10.24 p.m.

On Question, Whether the said amendment (No. 212) shall be agreed to?

Their Lordships divided: Contents, 45; Not-Contents, 88.

Division No. 4
Addington, L. [Teller.] Maddock, B.
Alton of Liverpool, L. Mancroft, L.
Astor, V. Mar and Kellie, E.
Blatch, B. Molyneaux of Killead, L.
Carlisle, E. Monson, L.
Carnegy of Lour, B. Montgomery of Alamein, V.
Clement-Jones, L. Northesk, E.
Courtown, E. Norton, L.
Cross, V. Russell, E.
Dixon-Smith, L. Saltoun of Abernethy, Ly.
Hamwee, B. Sanderson of Bowden, L.
HolmPatrick, L. Selkirk of Douglas, L.
Howie of Troon, L. Sempill, L.
Hylton, L. Skelmersdale, L.
Kinnoull, E. Stair, E.
Kintore, E. Steel of Aikwood, L.
Linklater of Butterstone, B.
Ludford, B. Thomas of Gresford, L. [Teller.]
Lyell, L. Thomas of Walliswood, B.
Mackay of Ardbrecknish, L. Thomson of Monifieth, L.
Mackay of Drumadoon, L. Tordoff, L.
Mackie of Benshie, L. Wilcox, B.
McNally, L. Williams of Crosby, B.
Alli, L. Irvine of Lairg, L. [Lord Chancellor.]
Amos, B.
Archer of Sandwell, L. Islwyn, L.
Balfour, E. Janner of Braunstone, L.
Bassam of Brighton, L. Jay of Paddington, B.
Berkeley, L. Judd, L.
Blackstone, B. Kennedy of The Shaws, B.
Borrie, L. Kilbracken, L.
Brooks of Tremorfa, L. Lawrence, L.
Burlison, L. Lockwood, B.
Carter, L. [Teller.] Lofthouse of Pontefract, L.
Clinton-Davis, L. McIntosh of Haringey, L. [Teller.]
Cocks of Hartcliffe, L.
Craigavon, V. Merlyn-Rees, L.
Currie of Marylebone, L. Milner of Leeds, L.
Darcy de Knayth, B. Monkswell, L.
Davies of Coity, L. Montrose, D.
Davies of Oldham, L. Murray of Epping Forest, L.
Dean of Beswick, L. Orme, L.
Dean of Thornton-le-Fylde, B. Peston, L.
Desai, L. Pitkeathley, B.
Dixon, L. Ponsonby of Shulbrede, L.
Donoughue, L. Prys-Davies, L.
Dormand of Easington, L. Puttnam, L.
Ewing of Kirkford, L. Ramsay of Cartvale, B.
Falconer of Thoroton, L. Randall of St. Budeaux, L.
Farrington of Ribbleton, B. Rendell of Babergh, B.
Gallacher, L. Renton, L.
Gilbert, L. Sefton of Garston, L.
Gordon of Strathblane, L. Sewel, L.
Goudie, B. Simon, V.
Gould of Potternewton, B. Smith of Gilmorehill, B.
Graham of Edmonton, L. Stone of Blackheath, L.
Grenfell, L. Strange, B.
Hacking, L. Symons of Vernham Dean, B.
Hanworth, V. Taylor of Blackburn, L.
Hardie, L. Thomas of Macclesfield, L.
Hardy of Wath, L. Thornton, B.
Haskel, L. Torphichen, L.
Hayman, B. Turner of Camden, B.
Hollis of Heigham, B. Uddin, B.
Hoyle, L. Watson of Invergowrie, L.
Hughes, L. Whitty, L.
Hughes of Woodside, L. Williams of Mostyn, L.
Hunt of Kings Heath, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

10.33 p.m.

[Amendments Nos. 213 to 217 not moved.]

Lord Thomson of Monifieth moved Amendment No. 218:

Page 82, line 5, at end insert—

("Exception from reservation

The Parliament may require the annual reports of the British Broadcasting Corporation and the Independent Television Commission to be laid before it.").

The noble Lord said: In moving the amendment, I shall speak also to Amendments Nos. 219 and 220. They are simple amendments which do not arouse the moral dilemmas with which we wrestled on the previous issue. I hope that the purpose and language of the amendments are clear, even though they may well need revision by the experts if they are welcomed by the Government.

The Bill has a blanket reservation about the existing broadcasting Acts, as though nothing has changed or will change in broadcasting with the setting up of the Scottish parliament or the Welsh assembly. Unless we write something like the provisions of these amendments into the Bill, the Scottish parliament and executive will, in my view, be in a worse situation than the Scottish Secretary and the Scottish Office are at present.

My starting point is that broadcasting is an important part of what might be called the "cultural cement" that makes the three nations of mainland Britain a United Kingdom. But even the present situation is far from satisfactory. We are all intensely irritated, from time to time, in Scotland by the fact that if there is a breakdown in the London Underground which inconveniences the journalists that produce our so-called "national newspapers", that is main news. However, if the main east coast line in Scotland is blocked at Fife, that does not merit any coverage in the national news bulletins. So there is a problem there to be faced.

With a Scottish parliament and a Welsh assembly, it will be more difficult to get the balance of broadcasting arrangements right. It is vitally important that we should seek to do so. These modest amendments should help to bring that about. It is hardly a revolutionary proposal in Amendment No. 218 that the annual reports of the BBC and the ITC should be formally laid in the Scottish parliament so that Scottish broadcasting issues can be properly debated there. Then it would, I think, simply be daft if the funding of Gaelic broadcasting was to be determined in London—even in Dover House in London—and not in Holyrood.

Finally, on the issue of the Scottish Governor of the BBC and the Scottish member of the ITC, I am bound to confess that in my day, when I was chairman of the IBA, the way all appointments were made to the IBA and, indeed, to the BBC, remained a great mystery, though sometimes I was generously allowed a private comment on proposed membership. Certainly it was the case that the Secretary of State of the day was always consulted about the respective Scottish members of either the IBA or the BBC.

Now, thanks to the Nolan Committee, on which I had the honour to serve, we made recommendations about these matters and there is now a Public Commissioner for Appointments. There are mandatory advertisements for appointments and now there are rows about leakages of the appointment of the new Deputy Governor of the BBC whose speech we have just listened to on the previous amendment. The noble Baroness is no longer in the Chamber but we congratulate her on her post.

In the new situation it seems to us only common sense that the new Scottish executive and parliament should be consulted about these particular appointments to both the BBC Board of Governors and the Independent Television Commission. I beg to move.

Viscount Astor

I support the general tenor of the amendments moved by the noble Lord, Lord Thomson of Monifieth. We had a debate on broadcasting earlier on during this Committee. I feel, however, that the Government failed to answer the point of why broadcasting should be kept a reserved power. The noble and learned Lord, Lord Hardie, replied for the Government. I think that he did not consider what the difference is between the regulatory body that is the ITC, the Radio Authority and the BBC. They are different beasts doing different things.

The noble and learned Lord based his argument (at col. 492) on the fact that there would be a serious disincentive to companies investing in production in Scotland, and that the confidence of the industry is an important factor. Indeed, it is, but I believe that unless we establish a proper identity for Scottish broadcasting there will be very little investment in Scotland. I think that even the noble Lord, Lord Thomson of Monifieth would agree with me on that.

The noble and learned Lord, Lord Hardie, also said that the ITC is concerned with national broadcasting and, therefore, the same considerations apply to the ITC as the BBC. They are very different beasts. The BBC is a national broadcasting institution. It has local programmes—BBC Scotland—which cater for a local audience. The ITC is not a broadcaster. It is a regulatory body which licences ITV companies throughout Great Britain. There are separate ITV companies dealing with Scotland and, except for Border, they are all in Scotland.

The Radio Authority deals with local radio in Scotland. As the noble Lord, Lord Thomson, said, it really cannot make any sense that under the Government's proposals there will be less Scottish input into a radio station in Scotland than there was in the days of the IBA. This is a retrograde step. Local radio is for a local audience.

The noble Lord, Lord Gordon of Strathblane, spoke earlier in the Committee. He represents a radio station to which I was listening this morning, on the Clyde—and jolly good it was too. No broadcaster likes to think that there may be a body which will tinker with the licence conditions, which will make life more difficult. I accept that. The noble Lord supported the Government in a previous debate. But local radio is different. It is a very individual process.

I should not like to go further and devolve broadcasting totally to Scotland. I recognise that the ITC and the Radio Authority must have some rules which are national. Indeed, the BBC is a national institution. It binds this country together, although of course the Government want devolution. But those are important arguments.

Within that, there is a strong local input and we want that voice to be heard. My Amendment No. 217 took broadcasting out of reserved powers. The noble Lord, Lord Thomson, has been more modest in his proposal. He is trying to chip away at the Government's position by saying that the parliament will require annual reports of the BBC and the ITC. That must be good. The Scottish parliament must have a role in broadcasting. Independent production is extremely important in this country. We have quotas which we try to achieve as regards local content. That must be encouraged and the Scottish parliament should have a voice in that.

Also, the noble Lord's amendment deals with the funding of Gaelic broadcasting in Scotland and the appointment of the national governor of the BBC and a Scottish member of the ITC. Those are eminently sensible amendments. The Government were not able to accept my earlier amendment which provided that broadcasting should be devolved. I should prefer the establishment, as part of the ITC and the Radio Authority, of a separate office existing under national rules but dealing with local issues. That seems to me to be a sensible proposal. But the very least that the Government should do is to accept the extremely sensible amendments of the noble Lord, Lord Thomson, who has many more years' involvement in broadcasting than I have. I have sat on both sides of this Chamber when we have been dealing with broadcasting matters on different legislation and he has always made extremely sensible suggestions. I hope that the Government will accept these amendments.

Lord Gordon of Strathblane

I declared my interest when we discussed this matter last Thursday and some of the issues arose on that occasion, so I shall be brief.

I always hesitate to disagree with the noble Lord, Lord Thomson of Monifieth, particularly as he was chairman of the Independent Broadcasting Authority and re-awarded our licence on one occasion, which was a very wise decision on his part. I hesitate also, to a slightly lesser extent, to disagree with the noble Viscount, Lord Astor, who was a Minister at the Department of National Heritage. Incidentally, in the press announcement from Downing Street today about the Cabinet changes, that department seems to have been renamed again, at least in the press release, the Department of National Heritage, which I would welcome. I prefer that to the Department for Culture, Media and Sport. However, that may be a misprint. At all events, I recognise that the noble Viscount dealt with broadcasting and therefore knows the rules.

It seems to me that both the noble Lord and the noble Viscount have overlooked the fundamental point about broadcasting; namely, that governments do not regulate the content of broadcasting in this country. Unlike many third world countries and many eastern-European countries under a previous regime, we leave it to the broadcasters under the overall regulation of buffer regimes—whether it is the BBC's board of governors, the IBA or its successors, the ITC and the Radio Authority.

If we look at broadcasting legislation, it will be seen that we cannot devolve any of that; in other words, we cannot have a different code of advertising standards and practice in Scotland as regards programmes from that south of the Border. Similarly, we cannot decide to have a different pace of development of digital radio.

If we take the more modest approach of the noble Lord, Lord Thomson, there is really a difference of whether such matters are volunteered by the broadcasting authorities—I am quite sure that that will be the case; in fact, I know that it will be—or whether the Scottish parliament has the right uniquely to demand of a body that it lays documents before it, or has the right to summon witnesses. That would be the only case in which it would have the right to do so, as distinct from a simple request, when dealing with reserved matters.

I believe that broadcasting should be a reserved matter. The people in broadcasting will willingly co-operate with the Scottish parliament whose main concern will be the content of Scottish broadcasting, not the regulation of it nor the legislation governing it. Indeed, there could be many more programmes on BBC Scotland which are produced in Scotland without any change in legislation. Moreover, no change in legislation could require the BBC to produce more programmes in Scotland. Likewise, the nature of independent broadcasting is determined by the people who win those licences. Therefore, there is no need for the amendment. I give way to the noble Viscount.

10.45 p.m.

Viscount Astor

I thank the noble Lord for giving way. I believe that the noble Lord is right to say that we do not want to have separate Scottish rules for the 1990 and 1996 broadcasting Acts. The noble Lord is also quite right to say that governments do not regulate broadcasting and that it is regulated by the ITC, the Radio Authority and the BBC under its Royal Charter. However, having said that, should not the noble Lord be supporting the suggestion that we put in the Bill an indication somewhere that the ITC and the Radio Authority should establish an independent body in an office in Scotland to deal with Scottish issues? That would mean that people who have such concerns in Scotland would be able to go to a Scottish office of the ITC to have their views listened to and not have to come all the way to London.

Lord Gordon of Strathblane

I should point out to the noble Viscount that no one has to come to London; indeed, the ITC has a Scottish office in Blythswood Street, Glasgow. There is no separate office for the Radio Authority. With the light touch regulation, which was introduced by the government of which the noble Viscount was a distinguished member, the idea was to avoid duplicating costs by setting up exactly the same organisation in Scotland as we had in England.

I should stress that there is very little difference in principle between my position and that of the noble Lord, Lord Thomson. I believe that broadcasters in Scotland would be off their heads not to volunteer to put their annual reports before the Scottish parliament and to allow discussion on content. However, there is a difference between doing so voluntarily and being required to do so. If they are required to do it, that presumes that the Scottish parliament actually has legislative power over broadcasting which I do not believe it has or should have. Moreover, in addition to the content of broadcasting, people in Scotland and the Scottish parliament will be concerned about the quality and content of the Scottish press. Indeed, there is no mention of that anywhere.

Lord Thomas of Gresford

With the greatest of respect to the noble Lord, and if he will forgive me, I should point out that I believe he has missed the point. My noble friend's amendments do not attempt to remove to the Scottish parliament control over the broadcasting Acts of 1990 and 1996, nor do they suggest that there should be anything other than reservation in relation to the BBC. They are indeed modest. Amendment No. 218 requires the annual reports to be laid before the parliament. That is something the noble Lord himself said would be good to encourage discussion. It would be a poor parliament that was in any way inhibited from debating issues of broadcasting that were current in Scotland.

Amendment No. 220 concerns the appointment of the national governor for Scotland of the BBC, and the appointment of a Scottish member of the Independent Television Commission". That, again, does not involve interfering with the Broadcasting Acts. As regards Amendment No. 219 which concerns, The promotion and funding of Gaelic broadcasting in Scotland", I should have thought the noble Lord would be supportive of that. I declare an interest as chairman of an independent radio company, Marches Sound, which broadcasts half in Welsh and half in English, and which was also granted its licence by the IBA under the chairmanship of my noble friend Lord Thomson. I have seen the necessity for the support and promotion of Welsh language broadcasting in Wales not simply by local radio stations but also by television through S4C, BBC Cymru and similar organisations. It is important that there should be support from the Scottish parliament for the language and for Gaelic broadcasting in Scotland.

The Duke of Montrose

I offer my support to the noble Lord, Lord Thomson of Monifieth, on Amendment No. 219. At the age of four I was made a life member of An Comunn Gaidhealach. This reflected more the enthusiasm of my elders than any enthusiasm I had at that time. But it has been one life membership from which I have gained good value over the years. If I have understood correctly the findings of the researches of my noble friend Lord Mackay of Ardbrecknish, Gaelic broadcasting is possibly the one subject on which a Minister of the Scottish parliament will be able to represent the UK in Europe. It might be useful for the Scottish parliament to discuss this subject beforehand.

Baroness Linklater of Butterstone

I add my voice to the chorus of support for my noble friend's amendment. It follows from the previous discussion we had. It seems to me that for an activity that is so absolutely central to Scottish life it is entirely illogical that the Scottish parliament should not have sight of the annual reports of the BBC and the ITC as a matter of course. The noble Lord, Lord Gordon, is quite right; this amendment does not seek simply that these documents should be made available as a matter of courtesy, but that they should be required to be laid before the Scottish parliament. That would give the process a kind of formality and would lock the parliament, the BBC and the ITC into a dialogue. I am not speaking of control but of making the parliament's voice heard and its influence felt. As I think the noble Lord, Lord Gordon, implied, and I know full well, both these bodies are well prepared and ready to take such a step. Therefore I cannot for the life of me understand why the Government should resist this measure.

As regards the promotion and funding of Gaelic broadcasting, the Fraser Report was recently completed. It, too, would welcome such an amendment as this. It recommends that there should be, A single Gaelic Broadcasting Authority". At the moment the scheduling is sporadic and there is little co-ordination. There is often confusion and overlap. A far greater degree of coherence is needed. For such a specialist, small area of broadcasting, it is absolutely crazy or, as my noble friend said, daft, that this matter should not be dealt with by the Scottish parliament. It is a source of considerable amazement among broadcasters that it is proposed to reserve it. I hope that the Government will listen hard to the voice of the people on the ground who give us this service.

As for the appointment of the national governor for Scotland, that is only logical. There are many BBC executives who would find it much more comfortable and would be much happier to have their national governor for Scotland being appointed by the Scottish parliament. To many people in Scotland the national governor is like the chairman of the BBC. People have indicated to me in conversation that to have a national governor appointed in the way that we propose would make it easier for them to be more proactive, rather than reactive as they are at present. It might make it possible to enter the proceedings earlier. There have been disputes and difficulties. The "Panorama" programme is a case in point, where perhaps it would have been easier, and could be made easier in future, to enter the proceedings earlier. The provisions should be there for when difficulties occur. I repeat: I very much hope that the Government will listen hard to these arguments.

Baroness Young of Old Scone

I should perhaps declare an interest. I had not intended to speak; however, I feel that I must following the interjection by the noble Baroness, Lady Linklater. I hope that with this amendment we do not face any misapprehension about what the input to the process of governance of broadcasting should be from the Scottish parliament or indeed any political process. I was worried by the reference to the "Panorama" programme and am loath to hear any suggestion that programme content might be influenced by the political process. We have to respect the independence of broadcasting in this country and promote it wherever possible.

There are issues on which reassurance can be given. For example, the annual report of the BBC has already been willingly offered to the Scottish parliament. Although I am premature in saying so, because it is at least four days before I arrive at the BBC, I hope that we shall see an openness and accountability in regard to all aspects of governance in the UK from that institution.

In regard to the appointment of governors, again I should declare an interest, having recently been appointed. Politicising such appointments should be avoided at all cost. Indeed, the new practice of advertising vacancies and appointing in terms of known procedures is absolutely vital.

Lord Thomson of Monifieth

The noble Baroness was not in her place when I ventured to congratulate her on her new appointment. Perhaps I may remind her, since she has not yet arrived at the BBC, that while broadcasting of course has to be kept at arm's length from politics in terms of interfering with programmes, it is governments who appoint governors. That is a political act. The Scottish executive and Scottish parliament are entitled to take a political interest in that, just as we do in this House and in the other place.

Baroness Strange

I merely wish to point out that Gaelic is not, and never has been, the national language of Scotland, although it has always been spoken by the people in the Highlands and Islands and in the north of Scotland. I believe that people in the Orkneys and Shetlands spoke Norse. The main part of Scotland has always spoken Scots, or Lallans. Perhaps we should make a plea for broadcasting in that language.

11 p.m.

Lord Mackay of Ardbrecknish

We have returned on a rather narrower set of amendments to the subject of broadcasting, which we discussed very late on what was the only full day we have had in Committee on this Bill. I shall be puzzled if the Government refuse to accept these three amendments—but I shall probably be puzzled.

As my noble friend Lord Astor said, the Independent Television Commission is the regulatory body. As such, it undertakes any regulation that is necessary, and not the Government. That is right and proper. The last thing I should want is for the Government to regulate television, radio or any other of the information media.

Independent television is quite different from the BBC. Under the ITC umbrella, the major companies in Scotland—Grampian and Scottish—are Scottish companies, part of the Scottish Media Group. In the parallel medium of radio, Scottish Radio Holdings is in a similar position of being an independent Scottish company. It broadcasts from that Scottish base. I therefore do not see any reason the parliament should not be allowed to have the Independent Television Commission's report laid before it. Nor do I see why it should not be allowed to take part in the appointment of a Scottish member of the Independent Television Commission. However, perhaps I should say to the noble Lord, Lord Thomson of Monifieth, that I suspect this will meet the same fate as a member of the Monetary Policy Committee of the Bank of England. In other words, Big Brother at Westminster will continue to think he or she knows best. In this case he knows best, as I imagine this will be a "FOTAC" appointment, a friend of Tony and Cherie.

The BBC is different. My noble friend Lord Astor thinks the BBC binds us together. He clearly listens to Radio Clyde and not BBC Scotland, because over the past 20 years, as I said on Thursday evening, it has done its best to advocate devolution. Some broadcasters bring up the United Kingdom, but that is a different matter.

I do not see why we cannot have a separate public broadcasting authority in Scotland. It seems to me that the BBC in Scotland sails a narrow line between trying to be independent and trying to keep—I was going to say the "apron strings"—the purse strings that bind it to London. I see no reason why the BBC should not lay its annual report before the parliament. I have to say to the noble Lord, Lord Thomson, that I suspect that whether or not it lays the report before parliament, if the parliament wants to discuss it, nothing will prevent it from doing so. Perhaps it would be better to say that parliament should require it.

On the appointment of a national governor for Scotland, my position is as it was for a Scottish member of an ITC. If the role of the Secretary of State for Scotland is to be as diminished as it will be after devolution, it should be a matter for the Scottish parliament and Scottish executive.

I am puzzled by Amendment No. 219. Currently it is the budget of the Secretary of State which promotes and funds Gaelic broadcasting in Scotland. Indeed, my right honourable friend Mr Michael Forsyth, when he was Secretary of State, and my noble friend Lord Lang both increased the amount of funding going from the Scottish Office budget to Gaelic broadcasting. There will not be a Scottish Office budget held by the Secretary of State for Scotland after devolution, it will all be devolved. So I would have thought that if the new parliament is to be able to fund Gaelic broadcasting as the Secretary of State has done to date, it will have to be devolved. Therefore, perhaps the Minister will accept Amendment No. 219.

Lord Sewel

It is nearly good news time. Although I start by making the statement that the Government believe that broadcasting and all matters relating to broadcasting should be reserved so that only the UK Parliament can legislate about these matters, I can make clear at this stage that we are going, via slightly different routes, to the same destination. At the end of the day I do not think much will separate us on this.

Of course we realise that the Scottish parliament and Scottish executive should have a role in relation to broadcasting matters. The broadcasting bodies themselves have a vital role to play in the political, social and cultural life of Scotland after devolution. We intend that they should communicate with the Scottish parliament, even though formal accountability will remain at Westminster.

Perhaps I may deal with Amendments Nos. 218 and 220 first. They deal with the reports of the appointments to the BBC and ITC. I start by making a statement of our intentions in respect of the BBC.

The BBC is governed by its Royal Charter which was renewed in 1996. The Government intend for some changes in procedures to be made in relation to appointments and annual reports reflecting the establishment of the Scottish parliament and of the Scottish executive.

The Royal Charter provides that the board of governors of the BBC shall include a national governor for Scotland, as was remarked upon, selected on the basis of his or her knowledge of the culture, characteristics and affairs of the people of Scotland—perhaps an unfortunate choice of words. It has been custom and practice for the Secretary of State for Scotland to be consulted in advance of this appointment. When the Scottish executive is in place, the appointment of the national governor for Scotland of the BBC will be made after consultation with Scottish Ministers. I hope that that goes most of the way to meeting the intentions of the noble Lord. It virtually replicates the system that exists at the moment.

The Royal Charter provides that the annual report of the BBC shall be laid before both Houses of Parliament. In future, the report will also be presented to the Scottish parliament. This will therefore achieve the same outcome as the noble Lord seeks to achieve through Amendment No. 218, but without fragmenting the legislative competence in relation to broadcasting.

For the Independent Television Commission we intend to make provision through the Executive Devolution Order under Clause 59 to secure that the annual report will be laid before the Scottish parliament. We will similarly provide that the Scottish member of the ITC is appointed only after consultation with Scottish Ministers. The exact details of achieving those proposals in respect of the BBC and ITC are still being worked on, but that is the clear commitment of the Government in terms of policy direction and objectives. Again, I hope that that meets the concerns behind Amendments Nos. 218 and 220.

I turn now to Amendment No. 219 in relation to Gaelic broadcasting. The promotion and funding of Gaelic broadcasting in Scotland is clearly a matter primarily of Scottish interest. As the noble Lord, Lord Mackay of Ardbrecknish, observed, in practice, funding is a matter for the Secretary of State for Scotland, but in line with the usual arm's length approach to broadcasting, the funding of the Gaelic Broadcasting Committee is made through the Independent Television Commission. The function of funding Gaelic broadcasting will be transferred by the Executive Devolution Order under Clause 59 to Scottish Ministers. It will be open to them, subject to the agreement of the Scottish parliament, to vary the annual allocation of funds to the Gaelic Broadcasting Committee.

To take up one of the concerns mentioned earlier, that will not be a matter decided in London; it will be a Scottish decision. I hope on those issues I have been able to satisfy the noble Lord that, in terms of where we want to get to, we are agreed; it is just a slightly different route. I hope that he now feels able to withdraw his amendment.

Viscount Astor

Before the noble Lord, Lord Thomson, replies, perhaps the Minister could answer one point. In terms of the Radio Authority and the ITC, when it comes to handing out licences for the local services, can the Government say what plans they have for ITC and the Radio Authority to take account of local interests in Scotland when handing out those licences? Now we have devolution, should not those bodies have a local representation? The ITC has an office in Scotland but the Radio Authority does not. Would not that be a sensible route for the Government to encourage those bodies to take?

Lord Sewel

I believe we dealt with the general matter on another day on the basis of whether broadcasting itself should be reserved or devolved. On the specific point raised by the noble Viscount, the ITC regional offices are not set up because of any statutory requirement. The location activities of those offices are a matter for the internal management of the ITC and will remain so.

Lord Thomson of Monifieth

Perhaps I can help the noble Viscount. I do not know what the Radio Authority presently does, but in my time the hearings of those who were applying for licences took place in the locality where the licence was to operate. That only makes common sense. I am sympathetic to what the noble Viscount said, but these matters can be taken account of by the authorities themselves.

In relation to Amendment No. 218, I am grateful to the Minister for the way he responded. I am reassured by what he says that the purposes of the amendments will be fulfilled in various ways within the Bill. Therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 219 and 220 not moved.]

Lord Selkirk of Douglas moved Amendment No. 221:

Page 82, line 23, leave out ("and sheriffs") and insert (", sheriffs and stipendiary magistrates").

The noble Lord said: This amendment adds stipendiary magistrates to the list of judges whose remuneration is reserved to the United Kingdom Parliament. The remuneration of the Court of Session judges and sheriffs is reserved to the United Kingdom under the Bill. Stipendiary magistrates are omitted from the list.

There is no good reason for omitting them. They frequently operate in the district courts and they have many of the powers of a sheriff sitting in a summary court. For example, they have the same sentencing powers in a summary capacity as a sheriff. They are appointed under the District Courts (Scotland) Act 1975 by the Secretary of State. They could conceivably deal with devolution issues. Their remuneration should be subject to the same parliamentary procedures as other judges.

Let me give a very good example. The Glasgow District Council wished to make a stipendiary magistrate redundant. He took the district council to the Court of Session and it was decided that this was a judicial office and therefore he could not be made redundant by the district council. By that same token stipendiary magistrates should come under the United Kingdom, as do other judges. I beg to move.

The Earl of Balfour

I rise to support my noble friend Lord Selkirk of Douglas. I understand that Glasgow is quite different from the rest of the country.

I shall also speak to my own Amendment No. 222. At page 80, Head 8, Section 1(f) there appears "the Industrial Tribunals Act 1996". We should consider including the chairman of industrial tribunals at the end of Head 11, Section 1 of the Bill.

Lord Mackay of Drumadoon

I can be brief on these two amendments. As to the amendment moved by my noble friend Lord Selkirk of Douglas, I can see that there might be a difficulty in the Government accepting it. Stipendiary magistrates are employees of the local authority and, in that respect, fall into a different category from sheriffs and the other judges mentioned under the section.

Lord Selkirk of Douglas

Does not my noble friend accept from the case I mentioned that stipendiary magistrates cannot be sacked by the local authority and are therefore in a different position from other local authority employees?

Lord Mackay of Drumadoon

I am happy to agree with my noble friend on that matter after reading the opinion of Lord Eassie, as he no doubt has done.

When the Minister replies will he say whether the provision that makes such stipendiary magistrates local authority employees might merit some reconsideration in the light of the comments made by my noble friend?

As to the amendment of my noble friend Lord Balfour, it will be interesting to hear from the noble and learned Lord the Lord Advocate whether such an amendment is necessary.

Lord Thomas of Gresford

Before the noble and learned Lord replies, may I, in a spirit of inquiry, ask why the remuneration of judges is reserved in this way? I note that the appointment and removal of judges is on the basis of recommendations and nominations from the first minister of the Scottish parliament. I understand that the Scottish parliament will pay for those judges. I understand also that they will be administering Scottish law in Scottish courts, so why should the determination of their remuneration be a matter of interest to the Westminster Parliament and not to the Scottish parliament?

11.15 p.m.

The Lord Advocate (Lord Hardie)

I appreciate the thinking behind the noble Lord's attempt, through this amendment, to protect the salary level of the stipendiary magistrate. However, I do not agree that the amendment is appropriate.

I accept that stipendiary magistrates in Scotland perform a valuable role in our criminal justice system and it is right that they should be appropriately remunerated for the responsible job which they do. But I fear that this amendment misses the point of the reservation in Schedule 5 in relation to the determination of certain judicial salaries. This may answer the point raised by the noble Lord, Lord Thomas of Gresford. As presently drafted, the Bill ensures that the Scottish parliament cannot apply differential salary rates to the Scottish judiciary by comparison with judges occupying similar posts in England.

At present, Scottish judicial salaries are related to English judicial salaries and if it were permitted to interfere with that, that would be an unwarranted interference in judicial independence or might be construed as such. If the parliament decided to reduce the salaries or to remove the differential such that Scottish judges were unfairly treated compared with their English counterparts, that might be construed by some as an attempt by the parliament to interfere with the independence of the judiciary. I suspect that the judiciary in Scotland might not have the same concerns if the parliament took a different view and paid the judiciary in Scotland more handsomely than in England! However, it is appropriate that people occupying equivalent posts in Scotland and in England should have equivalent salaries, which are, in any event, determined by the Top Salaries Review Body, which will still continue to apply to Scotland as well as to England. That is essentially the nub of the matter.

As the noble Lord, Lord Selkirk of Douglas, observed, stipendiary magistrates are created by virtue of purely Scottish legislation—the District Courts (Scotland) Act 1975—and they serve in the uniquely Scottish district court. They should not be confused with the English judicial office of the same name—stipendiary magistrate—whose jurisdiction, powers and terms of appointment are completely different and who therefore, quite appropriately, have their salaries determined in a different way.

As I have said, stipendiary magistrates are appointed directly by the local authority to serve in the district courts. Although the local authority cannot dismiss them, when they are appointed the local authority can determine the appropriate level of salary.

To take up the point raised by the noble and learned Lord, Lord Mackay of Drumadoon, that appointment fits in with the logic of the stipendiary magistrates working in the district court because the local authority has the responsibility in terms of the same Act for the provision and maintenance of arrangements such as premises and facilities for the district court. All of that ought to be governed by the local authority. This means that the provision of local justice is subsumed neatly into one piece of legislation which, given its nature, will quite appropriately be devolved in full to the Scottish parliament. In these circumstances, it would not be appropriate or necessary to seek to reserve determination of the salary of a stipendiary magistrate to the UK Parliament when responsibility for local authority matters generally is devolved to the Scottish parliament.

I turn to Amendment No. 222. As the noble and learned Lord, Lord Mackay of Drumadoon, hinted this amendment is unnecessary. The amendment seeks to reserve to the Westminster Parliament legislative competence in relation to determination of the salary of the Chairman of Industrial Tribunals as for other members of the Scottish judiciary. I understand the sentiment behind the noble Earl's amendment, but it is unnecessary because employment matters are reserved under the relevant part of Schedule 5. The noble Earl has already referred to page 80 where under Head 8 employment rights and duties and industrial relations are reserved, in particular the Industrial Tribunals Act 1996 in paragraph (f). The remuneration of chairmen of industrial tribunals is fixed under that Act, so employment is specifically reserved. Accordingly, it is unnecessary to duplicate that under Head 11 as the noble Earl suggests. With that explanation, I hope that the noble Lord will withdraw his amendment.

Lord Thomas of Gresford

I am most grateful to the noble and learned Lord for his explanation of the reasons for the reservation of these matters. The excellence and integrity of judges in Scotland is not only beyond reproach but is of the highest repute in the common law world. But the noble and learned Lord misses my point. He looks at it from the point of view of the Scottish parliament reducing or increasing remuneration. I am concerned about what the public may think of a judiciary appointed on the nomination of the first minister in Scotland. Those judges will be administering Scottish law in Scottish courts but they will be paid for from Westminster. It would appear that some vestigial control over the judiciary remained with Westminster. What if Westminster with a different style of government decides to reduce or increase the salaries of judicial officers in this way?

Lord Rodger of Earlsferry

I should indicate that the provisions in the Bill relating to judicial salaries have the full support of the judges in Scotland. They were particularly concerned because this Bill conferred upon them the duty of judging a whole lot of matters in relation to vires and so on and a constitutional role which had not hitherto been theirs in the full sense in which it would be conferred in future. In that situation it was felt by the judges to be important, in line with what occurred in other situations, that the position relating to their salaries, appointment and removal should be dealt with as carefully as possible. We had particular regard to the question of appointment and removal, to which we shall turn when we reach Clause 89 and the matters to be dealt with in that regard. Not all of those matters are entirely devolved because in certain instances there is a role for the Prime Minister.

As to remuneration of judges in Scotland, that has been determined for many years by reference to the same independent reports of the Top Salaries Review Body. We felt confident that that body would be the appropriate one to deal with our salaries in the foreseeable future. It is for that reason that the judges in Scotland ask that arrangements of the kind that the Government have put in place should continue.

Lord Hardie

Perhaps I may say in reply to the noble Lord, Lord Thomas of Gresford, that although the determination of remuneration will be in accordance with the findings of the Top Salaries Review Body, when it comes to payment of salaries that is not reserved and will come out of the Scottish Consolidated Fund. The Scottish people will see judges being appointed on the recommendation of the first minister, perhaps removed by the Scottish parliament—hopefully, never—but being paid out of the Scottish Consolidated Fund. All that will be determined outwith Scotland is the level of salary in accordance with the English rate and the recommendations of the Top Salaries Review Body.

Lord Selkirk of Douglas

I am grateful to the Lord Advocate for his reply. I certainly would not wish to press the matter at this time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 222 not moved.]

The Deputy Chairman of Committees (Lord Cocks of Hartcliffe)

Before I call Amendment No. 222ZA, I should inform the Committee that, if it is agreed to, I cannot call Amendments Nos. 222A to 222E inclusive because of pre-emption.

[Amendment No. 222Z4 not moved.]

Lord Selkirk of Douglas moved Amendment No. 222A:

Page 82. line 36, at end insert— ("The prohibition of discrimination in higher education.").

The noble Lord said: I shall speak to this amendment very briefly. I note that an announcement was made today or very recently that Sir William Quigley is to chair the independent commission.

The amendment applies not only to the charging of fees. It could relate to the provision of accommodation or other forms of provision. But, obviously, the amendment stems from the injustice of making students at Scots universities from other parts of the United Kingdom pay more than Scots students and more than students from Europe. I think that students from other parts of Britain studying for a fourth year at Scots universities would be much more likely to be treated equitably and generously by a Scots parliament than by the United Kingdom Parliament under this Government. Blatant discrimination is contrary to the Scottish educational tradition; and in any case discrimination will be outlawed by the Human Rights Act. So I shall be very interested to hear what the Minister has to say in reply to the amendment. I beg to move.

Lord Mackay of Ardbrecknish

Perhaps I may say a few words to my noble friend's amendment. I suspect that my noble friend is trying to rub salt into the Government's wounds on the climb-down decision that they were forced to make on the whole subject of student fees for students from other parts of the United Kingdom. I know that that is an unworthy thought and that my noble friend would never think such a thing; but, if he did not, I congratulate him on his amendment because it certainly indicates to us that the Scottish parliament will have a role—indeed, a very considerable role—in higher education.

Perhaps this would be a good opportunity for the Minister to confirm that the Scottish parliament would be entirely within its vires if it were to decide that students coming to Scottish universities should not be discriminated against on the basis of their country of origin. I should have thought that that was well within the Race Relations Act 1976, which I notice is a reserved matter. But it seems to me that discrimination against English, Welsh and Northern Irish students is just as naughty as discrimination against students of any other nationality or origin.

I know I shall be told that it is not a question of nationality but of place of residence. However, I suspect that if the Government were in opposition they would not be too willing to make that distinction. If we had come forward with a policy as ridiculous as the one they have come forward with, Mr. Brian Wilson would have had a field day—a field day much better than the one he had in trying to defend the policy.

I should like confirmation from the Minister that the Scottish parliament will be able to say to the Scottish universities that, wherever the students come from, they should not be asked to pay a fourth year tuition fee in an honours degree course and that therefore all the students in the queue, so to speak, for matriculation will be there on the same basis, which is what they will be on elsewhere in the United Kingdom. If the Minister says that that will happen, perhaps I may add that, unless his party changes its view on this issue, I suspect that it will be alone in entering the elections for the Scottish parliament pledged not to give this help to students attending Scottish universities and thus to discourage students further from attending these same Scottish universities.

I understand that the Scottish National Party has pledged to find the money and to right this clear wrong. I made it perfectly clear in the debate on the matter that we would find the money to right this clear wrong. I suspect that the Liberal Democrats would happily do the same. It would be interesting to hear the Minister telling us whether it will be in the Labour Party's campaign guide for the elections to the Scottish parliament to remove this anomaly, which its colleagues at Westminster have inflicted on the Scottish university scene.

11.30 p.m.

Lord Mackie of Benshie

I assume that the noble Lord, Lord Selkirk of Douglas, would never dream of rubbing salt into the wounds and that there are other forms of discrimination as well as the one over which the Government got into trouble on the charging of extra fees to students from England.

Lord Sewel

I had thought I might receive a speech in support from the noble Lord, Lord Howie of Troon.

Lord Howie of Troon

All I have to say is thank you.

Lord Mackay of Ardbrecknish

Is the Minister indicating that he is feeling uncomfortable at the fact that all the supporters he had on a previous debate have suddenly vanished from the scene of the Scotland Bill as quickly as they appeared?

Lord Sewel

No, I am confident that I shall be able to persuade Members opposite of the goodness and rightness of my cause. I am perfectly confident in responding to the amendment. It gives me the opportunity to use one of those phrases of your Lordships' House that I have always wanted to use. Heaven forfend that the noble Lord, Lord Selkirk of Douglas, would wish to rub salt into anyone's wounds. He is too gracious an opponent to do that.

There is a problem about banning discrimination in higher education. Discrimination is an essential part of higher education. We discriminate in higher education usually on the ground of ability. I do not suggest that the noble Lord is arguing that all students should receive the same degrees on the basis of the amendment.

I understand the sentiments underlying the noble Lord's proposal. However, I believe that equal opportunities legislation can be most effectively handled on a GB basis. I am therefore rather surprised that the noble Lord has singled out the prohibition of discrimination in higher education in this way. His amendment would mean that the Scottish parliament could legislate about prohibiting discrimination on any ground in higher education while the competence to legislate to prohibit discrimination in all other walks of life would remain with the UK Parliament. I do not believe that it would be desirable to fragment equal opportunities legislation in this way by focusing out and removing the prohibition in terms of higher education.

Perhaps I may respond to the question of the noble Lord, Lord Mackay of Ardbrecknish. I understand that it would be perfectly competent for a Scottish parliament to decide to act on student fees in the way that the noble Lord wishes to bring about. Without being invited to get into the details of the issue that the House resolved some little time ago, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Selkirk of Douglas

It has been useful to elicit the views of the Minister on this subject, which raises an important principle. When the independent commission has reported on the matter, no doubt the issue can be considered again in a different context. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Ramsay of Cartvale moved Amendments Nos. 222B to 222E:

Page 82, line 37. leave out from ("on") to second ("to") and insert— ("(a) any office-holder in the Scottish Administration, or any Scottish public authority to which paragraph 1 or 2 of Part III of Schedule 5 applies,").

Page 82, line 38, leave out ("their functions") and insert ("the functions of the office-holder or authority").

Page 82, line 39, at end insert (",or (b) any cross-border public authority to make arrangements with a view to securing that its Scottish functions are carried out with due regard to the need to meet the equal opportunity requirements.").

Page 83, line 8, at end insert— (""Scottish functions" means functions which are exercisable in or as regards Scotland and which do not relate to reserved matters.").

The noble Baroness said: Although the Government believe that it is right for equal opportunities matters to be generally reserved, the Government also believe that it is important for the Scottish parliament and the Scottish executive to have the necessary powers to promote and encourage equal opportunities. We have provided two important exceptions from the reservation which will enable the Scottish parliament and executive, first, to encourage equal opportunities generally and, secondly, to impose duties on public bodies with functions relating to devolved matters in order to secure that their functions are carried out with due regard to the requirements of equal opportunities law.

All bodies in Scotland will, of course, be obliged by law to adhere to the existing requirements of Great Britain equal opportunities legislation. But this is an area in which there could be scope for further encouragement. For example, the exceptions make it clear that the Scottish parliament and executive will be able to give guidance on equal opportunities, support the spread of best practice and require public bodies to adopt equal opportunities policies and monitor the effectiveness of those policies.

Against that background, Amendments Nos. 222B to 222E are technical amendments to clarify the bodies to which the second exception to the equal opportunities reservation applies in Section 2, Head 11. The exception is to enable the parliament to impose duties on certain public bodies to make arrangements to secure that their functions are carried out with due regard to meet the equal opportunities requirements. At present, this exception applies to public bodies with functions relating to devolved matters. These amendments would replace that reference with a more precise listing of the office-holders and authorities in relation to which this competence should be exercisable. Those are, first, any office-holder in the Scottish administration. We have, for example, the Scottish Ministers, the Registrar General of Births, Deaths and Marriages, the Keeper of the Records and the Keeper of Registers.

Secondly, any Scottish public authority which has no functions which relate to reserved matters. An example of that is the Deer Commission for Scotland or the Crofters Commission. Thirdly, any Scottish public authority which has functions relating to reserved matters as well as matters which are not reserved but which are to be devolved by Part III of Schedule 5. Authorities in this category include, for example, Scottish local authorities and NHS bodies which, although largely concerned with devolved matters, have certain functions in relation to reserved matters. Fourthly, cross-border public authorities in relation to those of their functions which are exercisable in or as regards Scotland and which do not relate to reserved matters. That would apply, for instance, to such functions of the Forestry Commission, the British Waterways Board or the Intervention Board for Agricultural Produce.

I hope that, with those explanations, your Lordships will agree that these amendments provide useful clarification. I beg to move.

On Question, amendments agreed to.

The Deputy Chairman of Committees

I should point out that if Amendment No. 223 is agreed to I cannot call Amendment No. 224 through pre-emption.

Lord Mackay of Ardbrecknish moved Amendment No. 223:

Page 83, leave out line 18.

The noble Lord said: I suppose that we should introduce this debate by saying, "Here cometh the time lords". Section 5 of Schedule 5 relates to time. My amendment and that in the name of the noble Lady, Lady Saltoun of Abernethy, address the same issues. However, I wish to raise one or two interesting questions with the Minister about what is reserved and what is an exemption from reservation.

I am puzzled about what the Government mean by "timescales" in the reservation and what they mean by "the computation of periods of time" in the exemptions. "The computation of periods of time" could be interpreted to mean 60 seconds in a minute, 60 minutes in an hour and 24 hours in a day. I do not imagine for a minute or even a second that that is what it means because I do not believe that the Scottish parliament could decide to go to metric time or anything of that nature. Therefore, I should be grateful for an indication of exactly what is meant by "computation of periods of time".

I can understand the two subject matters in the exemption, which are clear. I do not believe that the Government would have created some of the problems they have created for themselves if, when they came to exemptions, they spelt out the Acts of Parliament and the sections of those Acts which were to be exempt. That would save asking questions such as "What do they mean by the computation of periods of time?"

But the most important aspect of this little debate will be the discussion on whether, Timescales, time zones and the subject-matter of the Summer Time Act 1972", should be reserved or whether they should be devolved.

I am a purist. I believe, simply because of the way it works, that we live in the Greenwich time zone. That is an inevitable part of geography; it just happens like that. No Acts of this Parliament or even the European Parliament can wish that terrible fact away. Quite close to us is the Greenwich Meridian and therefore we are in the Greenwich time zone.

As some of your Lordships will know, I have mentioned this before. The idea that we could be in a time zone that stretched from the west of Ireland to central Europe, and that that would be a logical time zone to be in, is absolutely crazy. In that, there is no concept of what time zones are about or why we have them. It also seems amazing to me that people think that Europeans are so stupid that they can exist only in one time zone, when the Americans manage four and the Australians three or four. The Russians manage a good deal more than that, and the Japanese seem to manage to sell their goods all round the world in all 24-hour time zones. It does not seem to bother them too much. It seems odd that it should bother the Europeans.

However, our problem is that in Scotland many people feel strongly about the issue of time zones and the Summer Time Act in particular. While we are content with the current way that the Summer Time Act works, we would not be content, and we were not the last time it was tried, with an attempt to have summer time all the year round and, I suppose, double summer time in the summer time.

Everyone knows that every time this is discussed Members of Parliament in the other place from Scotland make clear to their own parties, if they are the governing party, that they do not believe this is a wise and sensible thing to do. Not only does Scotland lie further north than England—an obvious fact—but the problem is that it lies slightly further to the west. The distortions of time, if I can call it that, are a factor both of west and north. The further north one is, the shorter the days in winter time and the more out of balance they are if one moves into the wrong time zone.

So these matters of time zones are important in Scotland. Given the natural reduction in influence which we believe Scottish Members will have in the other place after devolution is up, running and working, many of us feel that it would be best if the question of timescales, time zones and the subject matter of the Summer Time Act of 1972 were devolved to a Scottish parliament. Then this issue which concerns Scotland greatly would not be dealt with on the basis of southern England, where daylight in the winter-time is much longer. I can understand that there the temptations to be in the same time zone as their friends a few miles away across the Channel are considerable. But the people in southern England have to remember the people in the north of Scotland as far north as Shetland where the whole question of summer time all year round would be met with a considerable degree of horror and opposition.

Given the position of the Scottish parliament in looking after the Scots and the Scottish economy, I believe that it is important for this matter to become a devolved matter to protect us from any diminution in Scotland's influence down the corridor and from being precipitated into summer time all the year round. I beg to move.

11.45 p.m.

Lady Saltoun of Abernethy

As the noble Lord, Lord Mackay of Ardbrecknish, has said, between 1968 and 1971, we had what I call double summer time imposed upon us for a trial period of, I think it was, two years. It was desperately unpopular, especially in the north, where in mid-winter it does not get light until after eight o'clock in the morning and it gets dark again soon after three o'clock, even with what I call ordinary Greenwich Mean Time. I do not know if it is still called Greenwich Mean Time.

Double summer time meant that we were driving our children to school in the dark and it was getting dark again when we picked them up. For farmers, especially dairy farmers whose beasts do not recognise double summer time, it made life very difficult. It was misery for the building trade and others involved in work out of doors.

Various attempts have been made since then to reimpose this horror on Scotland from Westminster, mainly by Private Member's Bills, but Private Member's Bills, even though they do not succeed, very often eventually lead to government legislation.

The point of my amendment is to take this whole question of summer time, double summer time or what time we have in Scotland out of the hands of the Westminster Parliament and into the hands of the Scots.

Like the noble Lord, Lord Mackay of Ardbrecknish, I am not quite clear as to what "time scales" are. When I put down my amendments, I asked the Clerk and we thought they were probably the fine adjustments of something like one second per 100 years to iron out the discrepancy between Greenwich mean time and the time mother earth takes to circle the great round sun. Then I asked the noble Lord, Lord Mackay of Ardbrecknish, and he thought, as he said, that it was a question of the number of seconds per minute and so on, the kind of thing that the French altered at the time of the revolution, when they tried to impose the metrical system on God.

I then looked in the dictionary and I found scant help there, so I went to the Library. A kind librarian found me various scientific encyclopaedias and photocopied the most helpful looking for me. I shall read your Lordships a very short extract from it:

Numerous time scales have been formed … Universal Time (UT; the mean solar time of the meridian of Greenwich, England), Coordinated Universal Time (UTC; the basis of legal, civil time), and leap seconds are treated under the heading Rotational time. Ephemeris Time (ET; the first correct dynamical time scale) is treated in the section Dynamical time, as are Barycentric Dynamical Time (TDB) and Terrestrial Dynamical Time (TDT), which are more accurate than Ephemeris Time because they take relativity into account". I expect that most of your Lordships are now quite clear as to what time scales are but I am afraid I am not very much the wiser. In any event, I wonder whether there is really any point in devolving them. Nevertheless, I should very much like to know what they are. Perhaps the noble Lord, Lord Sewel, could enlighten me. I presume he knows since he is in charge of the Bill. If they are something quite different from what I think they are, I might prefer to support the amendments of the noble Lord, Lord Mackay of Ardbrecknish, instead of my own.

Lord Ewing of Kirkford

Having risen from my comfortable, warm bed at six o'clock this morning and now it is 18 hours later, there is no one more conscious of time and the need to catch up with time than I am at this present moment.

I was very closely involved with the experiment in the late 1960s and early 1970s in relation to double summer time, to which the noble Lady, Lady Saltoun, referred. I worked in the Post Office at that time and I can place on record that we had more postmen injured on those late, dark mornings than we had at any other time during the history of the Post Office.

The only point that I wish to make now is that it is my fervent hope that my noble and learned friend will give us an absolute assurance in his response that no leader of the Opposition, when speaking for the Opposition, will be able to rise to his feet at 15 minutes to midnight and keep the Scottish parliament at Holyrood occupied until that really uncivilised time of night.

Viscount Montgomery of Alamein

I rise to express my support for my noble friend Lord Mackay but for rather different reasons. I follow on from what the noble Lady, Lady Saltoun, said, as one of the horrible people who actually proposed that we should have our time more aligned to that in western Europe. Indeed, a year or so ago, I proposed the western European time Bill which was, needless to say, opposed vigorously by friends in Scotland. I suppose they did so for the reasons that have been given, but one of the curious things is that they always go on about what happens in winter when there are many hours of darkness, while never mentioning the fact that there is a huge number of extra hours of daylight in summer which we do not enjoy down here. I give way to the noble Lady.

Lady Saltoun of Abernethy

I thank the noble Viscount. I should point out to him that during a considerable number of those hours one is normally asleep. Therefore, one does not enjoy them.

Viscount Montgomery of Alamein

That may well be so. However, other people may be awake and, of course, the cows do not necessarily relate to that sort of activity because they work on a different clock.

However, if this power is devolved to Scotland, it seems to me that they will be able to go their own way and those of us in the rest of the United Kingdom will be able to join in with Europe in this respect. After all, that is where most of our trade takes place. It would be a very sad day if this were to happen, so I find myself in the rather bizarre position of agreeing with my noble friend Lord Mackay but, as I said, for completely different reasons.

Lord Monson

The noble Viscount's intervention helps to explain why I am pulled two ways by the amendment. On the one hand, time zones are surely a perfectly proper subject for devolution. I agree with the noble Lord, Lord Mackay. Those in this country and in the EU who maintain that there ought to be one uniform time zone right across Europe are, one fears, little Europeans and ignorant of the ways of the wider world, not least the United States, Canada, Australia, the Russian Federation and Indonesia.

As I must have pointed out at least a dozen times in this Chamber, Chicago is the same distance from Detroit as London is from Paris. When it is 10 a.m. in Chicago, it is 11 a.m. in Detroit. That does not worry the Americans, nor does it impede their economic performance. Therefore, those who worry about the fact that when it is 10 a.m. in London it is 11 a.m. in Paris are worrying quite unnecessarily. If the Scots want the time in Edinburgh to differ by one hour from that in Carlisle (exactly 75 miles due south) in exactly the same way as the time in Vigo, in Galicia, differs by one hour from that in Oporto (exactly 75 miles due south), why should that not be so?

On the other hand, I want England to stay on western European time rather than moving to central European time, as the noble Viscount wants. The English status quo is more likely to be jeopardised if the Scots are allowed a free hand. Therefore, I remain undecided on the matter.

Lord Mackie of Benshie

I believe that we do not quite understand the meaning of the summer time Act. Indeed, it is a simple Act designed to make people get up earlier. If people in the City of London want to enjoy community of time with offices in Paris, Berlin and elsewhere, there is no reason why they could not get up an hour earlier. There is no questioning the fact that people have accepted summer time in this country.

The noble Viscount, Lord Montgomery, may not have noticed that it is impossible to transfer the extra time in the summer to the winter. Therefore, his argument is not a very good one. We want the situation to remain as it is timewise; indeed, it works quite well and there is no reason that I can think of for moving it. Therefore, we need some device whereby the Scots have a veto on any move by the English to change it, or a simple transfer of the power to the Scottish parliament.

Lord Howie of Troon

This amendment is in the name not only of the noble Lord, Lord Mackay of Ardbrecknish, whose name I find hard to pronounce but with whose speech I agreed almost entirely, but also in the name of the noble and learned Lord, Lord Mackay of Drumadoon. It so happens that I was in Drumadoon last week. The sunlight was delightful, especially in the evening, as happens in that part of the Firth of Clyde and the Isle of Arran, and the rain was, as usual, refreshing, drenching and constant.

I suffer from an awful feeling of déjà vu. We have discussed this question in this Chamber—some of our more recent Members will not realise this, but older "hands" will—at least four or perhaps five times in the past three years. It has been awful because the usual suspects—they are all here—have stood up one after another to say the same things. I say to the noble Lord the Chief Whip that we will say them as briefly as possible. The noble Lord nods at me. He may be surprised that I am making these comments, unimportant as they may be.

The key to the whole matter is—as the noble Lord, Lord Mackay, said—we are in a time zone based on the Greenwich Meridian. There are certainly Euro enthusiasts who wish us to enter Central European Time for reasons that have nothing to do with time. The problem is really quite different from the one proposed by interesting people such as the noble Viscount, Lord Montgomery, whom I have heard on this subject so often and so inconclusively. It is not the United Kingdom which is out of step; it is actually France and Spain, as they lie to the south of us on the Greenwich Meridian and they should be in our time zone, like the people of central Portugal and of Eire, and not in the central European one. It is they who are out of step. The French and the Spanish should come into step with us. That is all I want to say, unless anyone provokes me into continuing.

The arguments about the Post Office and schoolchildren being mown down in the mornings in the dark and the dangers in the construction industry are well rehearsed and there is no reason to go over them yet again. I am going to say something which causes me a certain amount of pain. I hope that it will not cause my noble friend Lord Sewel any embarrassment. As I understand that he is quite likely to oppose these amendments, and I intend to support him, I hope that he can withstand my support and be firm in his opposition to these amendments.

Baroness Strange

I wonder whether timescales are not something for measuring time, like the scales of justice. I wonder whether the usual channels have any effect on them at this time of night.

Lord Sewel

I thank—or at least I think I do—my noble friend Lord Howie of Troon for his strong supportive speech. There is a first time for everything! I shall try to deal with the specific questions that were asked of me. As I understand it, timescales are a system of determining time, for example Greenwich Mean Time, Co-ordinated Universal Time, or whatever. The computation of periods of time refers to whether particular days are to be included when periods of time are calculated in determining when obligations expire or become unenforceable for purposes, for example, of the civil law. I hope that I have now informed and enlightened the Committee on those points.

The main issue is basically whether we should have a system to allow the possibility of the introduction of horizontal time zones in the United Kingdom. I ask noble Lords to think of the enormous disruption to day-to-day life if, say, there was an hour's difference in time between Berwick and North Berwick. That sort of issue becomes a greater point of inconvenience than the argument as to whether we should have summer time, double summer time or whatever.

I accept that strong views are held on these matters, as we have begun to see during this debate. The matter is properly decided on a United Kingdom basis. This is an area where it is appropriate for Scottish interests to be reflected and defended through Scottish Members of Parliament at Westminster. I hope that on that basis the noble Lord will withdraw his amendment.


Lady Saltoun of Abernethy

Why is it more difficult to have a difference in time across a north-south border than across an east-west border? I simply cannot understand that.

Lord Sewel

I should have thought that within a relatively small country like the United Kingdom, north-south or east-west is a silly basis upon which to divide up time zones within one country. We should all stick together and have the same time. I am not making a particular point about the added difficulty of north-south or east-west.

Lord Howie of Troon

I do not want to irritate my noble friend, but I am under the impression that the state of Arizona has a time zone which might be called eastern mountain time or some such, but the Navaho reservation, which consists of something like 20 per cent. of the top right-hand corner of Arizona has its own time zone. So it can be done. However, I mention this point only to confuse the issue! All I am saying is that it can be done—but it should not be done in this case.

Lord Sewel

I am glad that the noble Lord agrees with me that what is good for Arizona is not necessarily good for the United Kingdom of Great Britain and Northern Ireland.

Lord Ewing of Kirkford

Before the noble Lord, Lord Mackay, replies, I do not want to irritate my noble friend either, but according to the clock it is now Tuesday, 28th July; here in your Lordships' Chamber it is still Monday, 27th July. How does my noble friend explain that?

Lord Sewel

That is a time warp!

Lord Mackay of Ardbrecknish

The proper answer is that you do not notice time when you are enjoying yourself.

This has been an interesting debate. One would have confidence in accepting the answer given by the noble Lord, Lord Sewel, if one felt that his Government would not try at some stage in the future, in their love affair with Europe, to slip in a Bill that would move us into central European time.

My noble friend Lord Montgomery is a devotee of double summer time and he tells me that the evenings would be even longer. Without going into the matter too much, having grandchildren at home at the moment, it seems difficult enough to get them into bed and asleep on single summer time without making it double summer time. It is not often that I hear the noble Lord, Lord Monson, say that he cannot make up his mind about an issue—I know that he can make up his mind very firmly about time zones, but I refer to how we vote on this matter.

The noble Lord, Lord Mackie, wants a Scottish veto. Essentially that is what I want. The question is whether one achieves that veto more readily by continuing the matter as a United Kingdom duty, with Scottish Members of Parliament in the other place pulling their weight for Scotland, or whether it is achieved by devolving the matter to a Scottish parliament which will simply say to its colleagues south of the Border: "No, we're not going to move and that's an end of it". Therefore it is not just a matter of saying to the Scots: "You wouldn't want to have a different time zone from England". It is also a matter of saying to the English that they would not want a different time zone from the Scots. This is a matter on which the Scottish parliament ought to have a say, and I shall seek the opinion of the Committee.

12.4 a.m.

On Question, Whether the said amendment (No. 223) shall be agreed to?

Their Lordships divided: Contents, 15; Not-Contents, 37.

Division No. 5
Astor, V. Montrose, D.
Courtown, E. [Teller.] Saltoun of Abernethy, Ly.
Dixon-Smith, L. Selkirk of Douglas, L.
Sempill, L.
Kintore, E. Shrewsbury, E.
Mackay of Ardbrecknish, L. Skelmersdale, L.
Mackay of Drumadoon, L. Strange, B.
Monson, L. Strathclyde, L. [Teller.]
Balfour, E. Hoyle, L.
Bassam of Brighton, L. Hunt of Kings Heath, L.
Burlison, L. Kirkhill, L.
Carlisle, E. Linklater of Butterstone, B.
Carter, L. [Teller.] McIntosh of Haringey, L. [Teller.]
Cocks of Hartcliffe, L.
Davies of Coity, L. Mackie of Benshie, L.
Dean of Thornton-le-Fylde, B. Mar and Kellie, E.
Desai, L. Milner of Leeds, L.
Donoughue, L. Monkswell, L.
Ewing of Kirkford, L. Montgomery of Alamein, V.
Farrington of Ribbleton, B. Ramsay of Cartvale, B.
Gilbert, L. Sefton of Garston, L.
Gordon of Strathblane, L. Sewel, L.
Hacking, L. Steel of Aikwood, L.
Hardie, L. Thomas of Gresford, L.
Haskel, L. Thomas of Macclesfield, L.
Hogg of Cumbernauld, L. Whitty, L.
Howie of Troon, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

12.12 a.m.

[Amendments Nos. 224 to 226 not moved.]

Lord Selkirk of Douglas moved Amendment No. 227:

Page 83, line 27, at end insert—



The ownership and exploitation of the ocean bed.").

The noble Lord said: Amendment No. 227 reserves to the United Kingdom Parliament matters dealing with the ownership and exploitation of the ocean bed. The terms of Schedule 5 make some references to reservations to the United Kingdom Parliament of deposits of natural gas—Head 4, Section 2—but make no provision as to the reservation of the ocean bed. This amendment allows the United Kingdom Parliament to retain legislative power over it. That would be consistent with the reservation at Head 4, Section 2, which covers oil and gas and it would fit in neatly with Sections 2 and 3 of Head 4 of Schedule 5.

At present the provision does not deal with uranium, for example, and I shall be grateful if the Minister will look into that matter. Even if he does not give a comprehensive answer tonight, perhaps he could do so before the next stages of the Bill. For example, the provision does not deal with manganese. To a large extent the ocean bed is unexplored and I suspect contains many of the world's last secrets.

Perhaps I may say a word about the ownership of the ocean bed. In Volume 21 of the Stair encyclopaedia, it makes it clear that the United Nations Convention on the Law of the Sea of 1982 entered into force on 16th November 1994, 12 months after the convention had been ratified by 60 states. The United Kingdom acceded to the convention on 25th July 1997. The breadth of the territorial sea adjacent to the United Kingdom is 12 nautical miles under the Territorial Sea Act 1987. The United Kingdom continues to regard all waters beyond the 12-mile limit, including those over the continental shelf, as part of the high seas.

The legal status of the seabed and the subsoil of the territorial sea in relation to international issues is dealt with by the United Nations Convention on the Law of the Sea. In Scotland it has been held in a number of early 20th century cases that the Crown has a right in property to the seabed within the limits of the territorial sea and that this right is derived from its sovereignty.

In a case last century, Lord Advocate v. Weens, 1899, Lord Watson said: I see no reason to doubt that by the law of the sea the solum underlying the waters of the ocean, whether within the narrow seas or from the coast outward to the three-mile limit, and also the minerals beneath it are vested in the Crown".

Volume 11 of Stair encyclopaedia states that the rights of the Crown in the seabed within territorial waters are patrimonial and accordingly the solum of the seabed is capable of alienation.

In years to come the exploitation of mineral rights will become of ever-increasing importance. This should be the responsibility of the United Kingdom Parliament. I should be grateful if the Minister would look carefully and sympathetically at this. I beg to move.

12.15 a.m.

Viscount Astor

This amendment raises some interesting issues. Development on the coast below the low water mark, whether in England or Scotland, is largely the prerogative of the Crown Estate Commissioners. They laid a report before Parliament. It is an important report. It is particularly important for the economy in Scotland because it regulates fish farms and coastal development. Will the Minister say whether there is a mechanism by which the Scottish parliament will be able to look at the reports of the Crown Estate Commissioners?

Sand and gravel rights are also important in Scotland. I am not sure where they would come in the Bill. My noble friend Lord Selkirk of Douglas has raised an important point because it is not clear in the Bill how those rights will be dealt with and in which office. There are other maritime issues such as the protection of wrecks and the protection of war graves.

If for no reason other than that it comes after Section 6, this amendment is interesting. The reference to "outer space" rather intrigued me. It states: Regulation of activities in outer space is a reserved subject. That means that if an extra-terrestrial arrives at the Scottish Parliament and says, "Take me to your leader", he will be bundled on a train and taken to Westminster.

The Earl of Balfour

Perhaps I may intervene. There was a very interesting exploration some time ago about which I wrote to our Member of Parliament, Mr. Home Robertson, the Member for East Lothian. I wrote of my serious concern that a Belgian firm was going to dig up sand and gravel in the Firth of Forth, which would have ruined one of the fishing beds there. I am glad to say that at the end of the day the project fell through, but it is the sort of thing that I should not like to see happen. Had it been for our own use, that might have been a different matter. I was very concerned that this quite valuable fishing ground was going to be exploited to no benefit to this country whatsoever.

Lord Mackay of Drumadoon

Perhaps I may very briefly indicate that I support my noble friend Lord Selkirk of Douglas in raising this important issue. The Government may well have concerns about the drafting of the amendment, in that the United Kingdom does not recognise the ownership of the seabed outwith territorial waters. A distinction may well have to be drawn between the law as it applies within and outwith territorial waters. They are important issues. It would be unfortunate to have any confusion about this, and I hope a full reply will be made.

Lord Sewel

I think that it might be helpful if I explain what provision the Bill currently makes for dealing with the ownership and exploitation of the seabed.

As noble Lords will be aware, the Crown Estate's Scottish interests include ownership of much of the foreshore and the seabed and the mineral resources in the UK Continental Shelf, excluding coal, oil and gas. Under the Bill, the remit and function of the Crown and the Crown Estate Commissioners, would be reserved. However, the property and interests of the Crown Estate would be subject to the Scottish parliament's legislation in such areas as planning law, land law and environmental protection.

One aspect which would not be devolved, however, is the ownership of, exploration for and exploitation of deposits of oil and natural gas. This appears to us to be the most sensible way of allocating responsibility for the seabed. Further offshore, the seabed is, and will continue to be, exploited for its oil and natural gas reserves which lie underneath. That is already a reserved matter. These resources are a UK asset and we believe that they should be regulated on that basis. I hope that that goes at least some way to answering noble Lords' points and, on that basis, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Selkirk of Douglas

I do not want to prolong this debate, but I must advise the Minister that I am not altogether satisfied with that reply because I believe that in the future mineral deposits of very considerable consequence—perhaps even more significant than oil and gas—will be discovered and will be of enormous importance to the UK as a whole. I am quite certain that if that happens the UK Parliament will not want to find that it is barred from considering the matter because the future potential of such matters has not been fully considered.

Lord Sewel

At this time of night, perhaps I may write to the noble Lord to clarify the matter.

Lord Selkirk of Douglas

My request is that the Minister looks at this matter and all its implications thoroughly in co-operation with his colleagues in government to see how this can best be covered. I genuinely believe that this will be enormously important in the future. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Sewel moved Amendment No. 227A:

Page 83, line 32, at end insert—

("(1A) Sub-paragraph (1) has effect as regards—

  1. (a) the constitution of the authority, including its establishment and dissolution, its assets and liabilities and its funding and receipts,
  2. (b) conferring or removing any functions specifically exercisable in relation to the authority.

(1B) Sub-paragraph (1A)(b) does not apply to any function which is specifically exercisable in relation to a particular function of the authority if the particular function relates to reserved matters.").

The noble Lord said: Government Amendment No. 227A inserts an interpretative provision into Part III of Schedule 5 to make it clear what that part means by providing that the schedule does not reserve Scottish public authorities with mixed functions which are not cross-Border public authorities under Clause 83. Examples of such bodies are local authorities, the courts, NHS trusts, Scottish Enterprise and Highlands and Islands Enterprise, the Scottish Law Commission and the Registrar General for Births, Deaths and Marriages in Scotland. Local authorities have mixed functions because, although most of their functions relate to devolved matters, they have some functions which relate to reserved matters, such as in relation to consumer protection or the administration of housing benefit.

The purpose of that provision is to ensure that the Scottish parliament has full legislative competence over such authorities as if they did not have any reserved functions and that all ministerial functions exercisable in connection with such authorities will transfer to Scottish Ministers. These general propositions are subject only to the qualification that the Scottish parliament should have competence over the subject matter of the reserved function of the authority or that ministerial functions which are specifically exercisable with regard to those reserved functions should not transfer, with the exception of any ministerial functions to fund those reserved functions.

The new provision in Amendment No. 227A therefore provides that the non-reservation of such an authority has effect with regard to its constitution, which is defined as including its establishment and dissolution, its assets and liabilities and its funding. This will enable, for example, the Scottish parliament to legislate about the constitution and establishment of local authorities.

Amendment No. 227A also enables the Scottish parliament to confer or remove any functions specifically exercisable in relation to the authority. This will also ensure that ministerial functions will transfer to Scottish Ministers—for example, any powers of direction or to supervise activities or any functions relating to funding. This however will be subject to certain specific exceptions for which we propose to bring forward amendments at Report stage. One case for which this will be required is the function of the DSS to fund local authorities in relation to housing benefit and council tax benefit which are to remain with DSS.

The new sub-paragraph 1(3) that would be inserted by this amendment provides an exception to the general rule about conferral on removal of functions. It provides that the general provision in paragraph 1(1) of Part III of Schedule 5 will not apply to functions which are specifically exercisable in relation to a particular function of an authority which relates to reserved matters. This will ensure for instance that ministerial powers of direction which are specifically exercisable in relation to the administration of the reserved matter of housing benefit or council tax benefit by local authorities remain exercisable by UK Ministers.

I am sure the Committee agrees that this amendment can only be described as technical. It is, however, necessary to ensure that the Bill's provisions in relation to public bodies work as intended. I beg to move.

On Question, amendment agreed to.

Lord Sewel moved Amendments Nos. 227B and 227C:

Page 83, line 36, at end insert—

("Reserved bodies

2A.—(1) The reservation of any body to which this paragraph applies has effect to reserve—

  1. (a) its constitution, including its establishment and dissolution. its assets and liabilities and its funding and receipts,
  2. (b) conferring functions on it or removing functions from it,
  3. (c) conferring or removing any functions specifically exercisable in relation to it.

(2) This paragraph applies to—

  1. (a) a body reserved by name by Part II of this Schedule,
  2. (b) each of the councils reserved by Section 11 of Head 3,
  3. (c) the Commission for Racial Equality, the Equal Opportunities Commission and the National Disability Council.").

Page 84, line 5, at end insert— ("(2) Subordinate legislation under section 115(3) may, in relation to the operation of this Schedule at any time before the principal appointed day, modify the references to that day in sub-paragraph (1).").

On Question, amendments agreed to.

Schedule 5, as amended, agreed to.

Lord Hoyle

I beg to move that the House do now resume.

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

House resumed

House adjourned at twenty-seven minutes past midnight.