§ 5.54 p.m.
§ Consideration of amendments on Report resumed on Schedule 5.
§ [Amendment No. 208A not moved.]
§ Lord Sewel moved Amendment No. 208B:
§ Page 69, leave out lines 32 to 35.186
§ The noble Lord said: My Lords, those who quite rightly are somewhat eagle-eyed when we come to discuss amendments will have noticed that this is the second time I have brought this amendment before the House. There is no mystery about that. It is simply that, despite speaking at great length about the package of technical amendments of which this was one, when it came to its place on the Marshalled List it was not actually moved. I apologise to the House for that and hope at this stage that the House will accept the amendment.
§ On Question, amendment agreed to.
Lord Hardie moved Amendment No. 208C:
Page 71, line 11, after ("1") insert ("to 3 and 5").
§ The noble and learned Lord said: My Lords, this amendment amends the provisions of the reservation of entertainment under Section 5, Head 2 of Schedule 5. It provides that Section 4 of the Cinemas Act 1985 is not covered by the reservation. The reason for the amendment is simple. The reservation is intended to cover the licensing of premises for use for film exhibitions and classification of films and videos. It is not intended to cover matters relating to public safety such as fire safety or building standards. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 208D had been withdrawn from the Marshalled List.]
§ Lord Hardie moved Amendment No. 208DA:
Page 71, leave out lines 27 to 29 and insert—
("The interception of communications; but not the subject-matter of Part III of the Police Act 1997 (authorisation to interfere with property etc.) or surveillance not involving interference with property.").
§ On Question, amendment agreed to.
Lord Sewel moved Amendment No. 208E:
Page 71, leave out lines 30 and 31.
§ On Question, amendment agreed to.
§ Lord Mackay of Ardbrecknish moved Amendment No. 209:
Page 72, line 3, at end insert—
("Exception from reservation
The distribution in Scotland of the New Opportunities Fund raised by the National Lottery.").
§ The noble Lord said: My Lords, when we discussed this matter in Committee I wanted to move the whole of the expenditure of National Lottery money to the control of the new Scottish executive. However, in the light of that debate, I have decided to come back with an amendment which is very much more tightly drawn and refers only to the New Opportunities Fund. Your Lordships will know that there is an arts fund, a sports fund, a heritage fund, a charities fund and now there is the New Opportunities Fund.
§ In answering the debate in Committee on 23rd July the Minister was very helpful. He said that there would be mechanisms for Scottish Ministers to exercise appropriate powers of direction over the New Opportunities Fund's activities in Scotland while 187 keeping control at the UK level. The problem is this. The arts fund money and the sports fund money will be distributed by Scottish bodies which will be appointed by the Scottish executive. When we come to the heritage fund and the charities fund, those are cross-border bodies and I am content with the arrangements that are in hand for Scottish nominees to be on the bodies and for the ability of the Scottish executive, and therefore the Scottish parliament, to make suggestions to the two bodies. However, the New Opportunities Fund is different in this regard. It will pay out money for health and education.
§ I said in Committee that when I sat on the Back Benches during the passage of the National Lottery Bill I heard a great deal from the Labour Party about the need to make sure that the Government did not use National Lottery money as a substitute for money that should be paid out from general taxation. The Government at that time gave assurances that that would not happen and they kept their word until the election. We are now in a position where National Lottery money is to be used for health, education and childcare.
§ I am not arguing whether or not that is right. I happen to believe that it is not because it is a breach of the undertakings given by the then government and sought by the present government when the National Lottery Bill was being considered that money would not be used to fund matters that should be paid for by general taxation. I accept that that is water under the bridge. My concern is that education, health and childcare are devolved entirely to the Scottish parliament; they are matters entirely for the Scottish parliament and the Scottish executive. It seems odd that money can be spent in those areas by the New Opportunities Fund in Scotland without the Scottish executive having the same control over the expenditure of that money as the UK Government. I should like to see the New Opportunities Fund treated more akin to arts and sport and bodies appointed by the Scottish executive in Scotland specifically to spend the new opportunities money on Scottish education, health and childcare, taking account of Scottish priorities and the different Scottish stance on those three issues. It would be much more satisfactory to go down that route and have Scottish bodies concerned with arts and sport than to have cross-border bodies despite all of the assurances given to me by the Minister. He told me that there would be internal structures and that the New Opportunities Fund would be sensitive to the Scottish interest. I accept all of that in good faith. However, we should treat the New Opportunities Fund in the same way as we treat arts and sport and set up a free-spending body in Scotland to spend the money in that fund in Scotland according to the priorities of Scottish education, health and childcare.
§ I would quite understand the position of the Government if these issues had not been devolved. However, because they have been devolved the New Opportunities Fund should follow. I believe this to be a fairly straightforward arrangement. No doubt I shall receive further assurances from the Minister. But I remain puzzled as to why this important new fund is not to be treated in the same way as the arts and sports 188 funds and Scottish bodies are not to be set up to spend the money in Scotland along the lines of the very different Scottish education, health and childcare systems. I believe that that would make common sense. I hope that I shall make some progress on this matter with the Minister. I beg to move.
§ 6 p.m.
§ Lord Fraser of Carmyllie
My Lords, I support my noble friend in this amendment. When the National Lottery Bill came before your Lordships' House at Committee stage in particular I raised this very point with the Minister. I should place on record his letter dated 4th March this year in which he provided me with a great deal of additional detail and spelt out the arrangements for a degree of involvement by the Scottish executive in the way in which National Lottery funds would be disbursed in Scotland. However, grateful as I am to him for that information, he did not and could not answer the central question. He was able to say:The allocation of resources will follow an approach appropriate to each initiative, which may include Barnett where that is the right approach".To that extent some reassurance is proffered by the Minister. However, the central point remains unanswered. Health, education and environment are at the very centre of the responsibilities to be given to the Scottish parliament, but only the Secretary of State, a Member of the Westminster Parliament, will be in a position to give directions. I understood that the central justification for devolution was that, while this Parliament and the Secretary of State within it might wish to promote initiatives and to give directions or propose a particular policy approach, for their own good reasons the Scottish parliament and the Scottish executive might prefer to re-order those priorities. They might prefer children's education to health. The policy point is not important but they might wish to re-order those priorities.
As I understand the answer given to me, there will be a degree of involvement by the Scottish executive and if an initiative is to be pursued it will be for the Scottish executive, for example, to prefer charity A to charity B as the body to take forward the initiative but the setting of the initiative is for the Secretary of State within the Westminster Parliament. That seems to me to be one of the most extraordinary anomalies that has arisen over this legislation. One might better understand it if this had been a provision in the original National Lottery legislation, but the Bill that came before Parliament set up a scheme of arrangements in advance of which this Bill had already been published. It is quite astonishing that this matter has not yet been properly dealt with. I support my noble friend in suggesting that this is a matter to be left to the Scottish parliament.
§ Lord Monro of Langholm
My Lords, I join my noble friend Lord Mackay of Ardbrecknish and my noble and learned friend Lord Fraser of Carmyllie in protesting about the position of the National Lottery relative to Scotland. Noble Lords are aware that there were originally five good causes and a sixth good cause 189 was added. Like my noble and learned friend Lord Fraser, I protested about that in Committee. The position is now worse in that following the millennium all moneys in the Millennium Fund will go into the New Opportunities Fund.
Noble Lords on this side of the House maintained throughout the passage of the National Lottery legislation introduced by the previous government—with tremendous success for so many voluntary organisations throughout the United Kingdom—the arm's length principle so that there was no direct government involvement. Organisations were set up to disburse the money and the Government did not have a direct say in the distribution of it.
Now the New Opportunities Fund will be administered by civil servants and will be subject to the direct control of Ministers. I believe that that is unfortunate and absolutely wrong, particularly when the Government have said that the New Opportunities Fund will be to provide direct support for a range of education, environment and public health projects. All of those issues should be dealt with by direct taxation, not by milking the lottery, which was set up for voluntary good causes: charities, heritage, sport and the arts. All of that is working very well. I am disappointed that the Government have introduced a sixth fund by which they avoid spending government money on those matters which should be the responsibility of government. They are taking money from the lottery to save the taxpayer having to pay directly for matters for which they should be directly responsible.
Having indicated my displeasure at the introduction of a sixth fund, my noble friend is absolutely right that this matter should be administered in Scotland. I was somewhat concerned to read in the press that the Secretary of State for Scotland would consider allowing communities in Scotland to buy land in order to set up local land trusts. I believe that that is pretty far removed from the original objectives and principles of the National Lottery Act.
One hopes that the Secretary of State will think again about his use of the sixth fund. But it is right that it should be administered in Scotland where at least it will be much more obvious where the money is coming from and going to than it would be if it was administered by skeleton staff in the Secretary of State's office in Whitehall. I believe that what my noble friend has suggested is the right way forward and I hope that the Minister will agree.
§ Baroness Carnegy of Lour
My Lords, I shall not express a view on whether or not the New Opportunities Fund is a good idea. However, I believe that the measure raises unnecessary controversy between Westminster and Holyrood. The fund will supplement budgets of the Scottish parliament. The suggestion that any body other than the Scottish parliament will formulate policies and decide how the money is to be spent is extraordinary. It could distort some of the policies which the parliament proposes.
190 It is a small change that could make a big difference and the Government should consider it. From the point of view of the Scottish parliament the measure will be extremely irritating and may raise controversy.
§ Baroness Linklater of Butterstone
My Lords, I declare an indirect interest as my husband is chairman of the Scottish Arts Council. The noble Lord, Lord Monro, raised important elements and issues of doubt about the exact role and function of the New Opportunities Fund. When lottery money is being used as a substitute for government funding there is perhaps a blurring of the distinction between additionality, additional funding, and subsidiary.
The Department for Culture, Media and Sport, under Chris Smith, is responsible for the guidelines which are followed when lottery money is administered. In Scotland, a proportional amount of money is allocated to each of the strands. This final strand is currently the sixth good cause, at least until the Millennium Fund is wound up.
While it is an attractive notion that the Scottish parliament should make its own decisions—that is what we have been talking about throughout the Bill—and decide on its own guidelines according to the perceived needs of Scots by Scots, there is less point in devolving one of the strands in isolation. How would it be disentangled from the rest? I believe that there is greater merit in having unity of purpose and some synergy between the various strands of grant allocation.
I believe that until the Scottish parliament can address the total picture from the Scottish perspective it is preferable to stick to the current arrangement and have lottery guidelines for all the good causes determined at Westminster.
§ 6.15 p.m.
§ Lord Sewel
My Lords, the reservation of the National Lottery as a single UK-wide lottery offers the largest possible prize fund and the highest possible return to good causes in the United Kingdom. The basic idea is to keep the lottery as a UK-wide organisation and entity. A single UK-wide National Lottery distribution fund is an extremely important part of a single National Lottery.
The distribution arrangements have been discussed at length in another place and it makes no sense at all to attempt to introduce separate arrangements for only one of the six good causes. That point was made by the noble Baroness, Lady Linklater. However, it is right and proper that we recognise the legitimate interests which the Scottish parliament and executive will have in ensuring that Scotland receives its fair share of all lottery proceeds and that Scottish circumstances are fully taken into account in the distribution arrangements in Scotland. With the recent announcement that the New Opportunities Fund will receive one third of lottery proceeds after 2001, it is particularly vital that the initiatives that will be funded from it take cognisance of Scottish interests and priorities.
In the first place, the National Lottery etc. Act 1993, as amended, guarantees a place on the New Opportunities Fund for a member who is suited to make 191 the interests of Scotland his or her special care. Scottish Ministers, will have a particular interest in that appointment and I can assure noble Lords that that interest will be recognised. We are currently considering precise arrangements which will fully meet Scottish requirements and at the same time be compatible with the character of the lottery as a UK institution.
The first three initiatives to be funded from the New Opportunities Fund—healthy living centres, IT training for teachers and out-of-school hours activities—are all UK-wide initiatives. However, they will take Scotland's distinctive needs fully into account. In particular, Scotland will receive a very favourable share of the funds accruing to each; 11.5 per cent. for healthy living and child care initiatives and 10 per cent. for IT training. These allocations recognise Scotland's distinctive needs, in particular in terms of relative deprivation and health records. By having a national fund rather than allocating money to a separate Scottish fund on a per capita basis or on one which reflects the lottery's income, and by identifying the main themes, it is possible fully to recognise the relative need of Scotland in relation to those initiatives. It amply demonstrates how Scotland can benefit from the flexibility of current arrangements.
By contrast, if the distribution of the funds of the New Opportunities Fund were to be devolved, the allocation to Scotland would have to be set much less flexibly and probably less favourably from Scotland's point of view; for instance, on a simple population index Scotland would receive only 8.9 per cent. of the income.
The initiatives I have mentioned are only the first which the New Opportunities Fund will fund. The success of the lottery is such that already consideration is being given to what future initiatives might be funded. A consultation paper on this will be issued within the next few weeks. It is of course quite possible that an initiative might emerge which is primarily, or even exclusively, of concern to Scotland. Indeed, the opportunity currently exists. We have identified the possibility of an environmental initiative under Green Spaces. That can be given a particular twist in recognition of the precise environmental interests in Scotland, which may not be identical to environmental interests in England. The idea of a Scottish initiative, rather than being ruled out, is compatible with the current arrangements. I assure noble Lords that we are giving serious consideration to the way in which the views and roles of Scottish Ministers can be best expressed and carried through.
I believe that we have the best of all possible worlds. We have a national institution. Its public attraction stems from the fact that it is national and can generate—let us be honest—a big prize. That brings many people into the lottery. We do not wish to fragment that. The existing distribution arrangements mean that UK-wide initiatives can be funded. The money, when distributed, can take account of particular Scottish interests, 192 priorities and relative need, which is an appropriate mix and a good way forward. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
§ Lord Mackay of Ardbrecknish
My Lords, I am grateful to the Minister for explaining the Government's view on this matter. However, I remain puzzled. If the New Opportunities Fund is to deal with education, health, childcare and the environment, I do not see how it can have UK-wide initiatives. All these matters are entirely devolved to the Scottish parliament and the Scottish executive. Therefore, unless the Scottish executive twin with the UK Government, there can be no UK-wide initiative in any of those areas. I suspect that that is a matter which people will have to get used to. Many people do not yet appreciate that simple fact about devolution.
I hear what the Minister says about the involvement of the Scottish executive with the people who run the New Opportunities Fund. In the light of the fact that the disbursement of the National Lottery money is already on a Scottish basis on two issues, it seems odd that the Government should stand firm against the New Opportunities Fund and go down the same route.
I remind the Minister of what he said on 23rd July. The noble Baroness, Lady Linklater, does not seem to realise this point either. He stated:Distribution of lottery funds for the arts and sport is handled by Scotland-only bodies. Their members are appointed at present by the Secretary of State for Scotland, who is also responsible for the issue of financial policy direction to those bodies. … In future these tasks will fall to Scottish Ministers. In other words, complete control over the membership of Scottish arts and sports councils will rest with Scottish Ministers and they will be able to direct the councils on matters of policy without reference to Whitehall and Westminster. In addition, Scottish Ministers will, if they choose, be able to appoint other bodies to act as distributors of the arts and sports shares".—[Official Report, 23/7/98; col. 1084.]I remain puzzled as to why what is good enough for the arts and sports, and already exists, is not good enough for the New Opportunities Fund, which relates entirely to issues which are being devolved.
I suspect that somewhere down the line there may be friction on that issue. I have tried to warn the Government about this, as has my noble and learned friend Lord Fraser. However, I can see that I am not making any progress. I hope the Minister is right and that this will work happily. However, if it does not and it ends in friction between Edinburgh and Westminster, as my noble friend Baroness Carnegy of Lour suggested it might, dare I say to the Minister that he heard it from us first? I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 210 to 213 not moved.]
Lord Selkirk of Douglas moved Amendment No. 214:
Page 75, line 19, at end insert (", including all aspects of digital signatures").
§ The noble Lord said: My Lords, this is an important amendment. It deals with modern technology. Digital signatures are necessary to identify the senders of an electronic message. Encryption is the coding of the electronic message so that it cannot be accessed by an 193 unauthorised person. The recipient must know its point of origin. Just down the road, in the War Cabinet Rooms, Winston Churchill's messages to President Roosevelt were scrambled. They were put into a jumbled noise which was then unscrambled at the other end. It was Professor Alan Turing who broke the Nazi Enigma code and contributed greatly to allied successes. So, encryption is certainly not a new idea.
§ This amendment clarifies the definition of electronic encryption which is reserved to the United Kingdom Parliament. It would ensure that digital signatures are also reserved. There is a growing awareness that commerce and secret commercial decisions, conducted through the exchange of messages on open computer networks, are likely to increase enormously in both volume and value.
§ A common assumption in all analyses is that since the delivery of electronic messages is on open networks, by definition they are not wholly secure. People dealing with each other in a business sense need to have security in both the identity of the sender and the integrity of the message.
§ The widely stated view of industries, governments and professions is that those requirements can be met only by means of two independent but closely associated procedures; namely, the attachment and recognition of electronic signatures, and the strong encryption of the message. The framework within which reliability can be added to electronic or digital signatures and encryption is now perceived to be by the use of one or more asymmetric encryption keys issued within a public key infrastructure. However, other forms of ensuring security are being discussed and will no doubt be developed.
§ In effect, asymmetric public private encryption keys are issued to a user by a certification authority after due inquiry. Messages encrypted and decrypted by those keys may be relied on at the time of use if a reliable authority—that is the certification authority which issues and certifies the public and private keys which constitute the key pair—can itself be relied upon in the manner in which it carried out its functions and to the extent to which it is recognised by higher authorities in any vertical scheme of mutual recognition.
§ Those matters can best be regulated on a global scale. Regulation by the Westminster Parliament should, however, extend to digital signatures. In view of the reasonableness of the amendment, I hope that the Minister is able to accept it. I beg to move.
§ Lord Hardie
My Lords, I recognise the noble Lord's desire to ensure that digital signatures are included in the reservation on encryption. I can assure the noble Lord that digital signatures are in fact included as an area of policy reserved for the United Kingdom. It is therefore not necessary to refer explicitly to digital signatures in this schedule.
As the noble Lord observed, encryption has long been used by banks and is an essential tool for electronic commerce. Its uses include keeping electronic data—ranging from an e-mail that might be sent over the Internet to a file stored on a floppy disc—confidential.
194 Another use, which is at issue here, is to prove that an electronic document was sent by someone holding a particular code and that the document has not since been altered. In other words cryptography can be used as an electronic signature.
I wish to point out that the Notes on Clauses state that electronic encryption covers the general use of encryption of communications or data in electronic form for the purposes of commercial confidentiality and authentication. The word "authentication", which means verifying who originated an e-mail or an electronic document, clearly relates to the use of encryption as an electronic signature. There is, therefore, no need to make this amendment.
Furthermore, I should point out to the noble Lord that a distinction is usually made between the terms "electronic signature" and "digital signature". Briefly, "electronic signature" has a wider meaning than "digital signature". So all digital signatures are electronic signatures, but not vice versa. The effect of this amendment might therefore be to limit the reservation to digital signatures but not electronic signatures. I doubt that this is what the noble Lord intends. In view of those reassurances, I hope that the noble Lord will feel able to withdraw his amendment.
§ Lord Selkirk of Douglas
My Lords, in view of the encouraging reply from the noble and learned Lord the Lord Advocate that the Bill as drafted covers digital signatures, I do not wish to press this matter. I am happy to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Sewel moved Amendments Nos. 214A and 214B:
§ On Question, amendments agreed to.
§ [Amendment No. 215 not moved.]
§ 6.30 p.m.
§ Lord Sewel moved Amendment No. 215A:
Page 76, line 27, at end insert—
("( ) the subject-matter of section 1 of the Mineral Exploration and Investment Grants Act 1972 (contributions in connection with mineral exploration) so far as relating to exploration for oil and gas,").
§ The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 215C and 226D.
§ Amendment No. 226D clarifies that the Scottish parliament can legislate on financial assistance to industry for the purpose of promoting or sustaining economic development or employment. That would, among other things, enable the parliament to make provision of a general nature which permits such assistance to industries, including those which operate in reserved areas. The parliament will not, however, have competence to legislate for such assistance specifically in relation to a reserved commercial activity.195
§ Clause 52 lists powers which are to continue to be exercisable by Ministers of the Crown despite the Clause 49 transfer of functions. Amendments Nos. 215A and 215C simply clarify the extent to which financial assistance under Section 1 of the Mineral Exploration and Investment Grants Act 1972 and under Sections 10 to 12 of the Industry Act 1972 will transfer under Clause 49 and, therefore, be exercisable concurrently by virtue of the references to those provisions in Clause 52. I beg to move.
§ On Question, amendment agreed to.
Lord Hardie moved Amendment No. 215B:
Page 76, line 39, leave out ("deposits in the sea") and insert ("activities").
§ The noble and learned Lord said: My Lords, noble Lords will recall that during Committee the Government tabled, and the House accepted, an amendment to the oil and gas reservation reserving Part II of the Food and Environment Protection Act 1985 so far as it relates to oil and gas exploration and exploitation in relation to deposits in the sea outside controlled waters. The purpose of that amendment was to remove any doubt that the oil and gas reservation should catch operational discharges from oil and gas installations and the deposit in the sea of oil-related articles such as redundant oil installations which are potentially subject to regulation under Part II of the Act.
§ Our earlier understanding had been that "deposits in the sea" would cover all types of potentially polluting activity relating to oil and gas exploration and exploitation covered by that Act. However, we have reflected further on this point and we now consider that this may not be the case and that it would be safest to use the word "activities". The use of the word "activities" instead of "deposits in the sea" makes it clear, for example, that the flaring and incineration of waste gas and fugitive emissions are also covered by the reservation. This amendment is merely clarificatory. I beg to move.
§ On Question, amendment agreed to.
§ Lord Sewel moved Amendment No. 215C:
§ On Question, amendment agreed to.
§ [Amendment No. 216 not moved.]
Baroness Ramsay of Cartvale moved Amendment No. 216A:
Page 78, leave out line 15.
§ The noble Baroness said: My Lords, grants in respect of bus fuel duty rebate were previously regarded as a tax matter and, as such, it was right to reserve them. However, as a result of a ruling from the Office of National Statistics and the Treasury, grants in respect of bus fuel duty rebate have now been reclassified as public expenditure with responsibility for this expenditure transferred to the Scottish Office. In the circumstances, it is appropriate 196 that, following devolution, the Scottish parliament should also have responsibility for such grants in line with its general responsibility for bus policy. I beg to move.
§ On Question, amendment agreed to.
§ Lord Mackay of Ardbrecknish moved Amendment No. 217:
Page 78, line 15, at end insert—
("Tolls or charges for the use of Trunk Roads.").
§ The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 218.
§ I start with Amendment No. 218. In Committee we discussed this matter and I believe that we were at cross-purposes. This part of the Bill seems to suggest, or at least to me it does, that the Scottish executive could decide to increase the amount of money which must be paid by an insurance company or, indeed, by an individual in respect of health treatment after a road accident. Currently, health boards may claim, up to a ceiling of £2,949, any money due for the treatment of a road accident casualty. That is normally paid by the vehicle insurance company.
§ In Committee, I was not arguing that the money should go to the UK Government. I am quite content that the money, up to the ceiling, should go to the Scottish health boards, as it does at present. I was concerned about the Scottish parliament and the executive having the power to increase that ceiling quite separately from the UK. That may create a situation in which in Scotland the ceiling was, for example, £5,000, whereas in England it was only £2,900. I asked the noble and learned Lord the Lord Advocate what consequences that would have on car premiums in Scotland.
§ I did not seem to be arguing my case very well. I did not manage to convey that the insurance companies might consider that they were open to greater liabilities, and therefore, as is the nature of insurance, the premiums would be increased to cover the liabilities. I asked whether I was right that that possibility existed and whether the Government had discussed those matters with the insurance companies. The noble and learned Lord was unable to help me with that. I suggested that the Government should reflect further on the issue. I have tabled this amendment to see whether the noble and learned Lord the Lord Advocate can clarify the matter.
§ Have the insurance companies been consulted? Is there not a danger that they will load the premiums of Scottish drivers? If the Scottish parliament were to take that power and increase the payment demanded, would not the insurance companies then increase their premiums? They already increase the premiums depending on where one lives. If one lives in the centre of a city, the insurance companies, probably quite rightly, have decided that the danger of theft and accident is greater than if one lives in the countryside. Therefore, the premium is greater if one lives in the city. It is that loading about which I am concerned, if the delegated power means what it says.
§ I turn back to Amendment No. 217. I had not even thought about this matter until I saw an article in the Scotsman on Monday 19th October which told me that the Government were considering using the M.8 as a pilot scheme for road tolling by electronic means. The 197 suggestion there was that the Scottish Office would launch one of two pilot schemes for electronic charging in Britain on the M.8. It seemed to me a rather interesting prospect that the Scottish parliament, in search of more money, could introduce tolling on the trunk roads of Scotland in order to get more money from motorists. I believe that trunk roads should be dealt with on a UK basis and I hope that the UK Government are not considering making the Scottish motorist the test-bed for electronic charging.
§ Needless to say—and I shall not bore the Minister by reading it—Mr. Alex Salmond was already making hay on the basis of that proposition on 19th October and he would make even more hay if it came about. I want to be clear as to who would have the power to introduce electronic or other tolling on trunk roads in Scotland. Would that be something the Scottish parliament could do or would it be something which only the United Kingdom Parliament could do? My amendment proposes to reserve those matters to the United Kingdom Government. I beg to move.
§ Viscount Thurso
My Lords, I am very grateful to the noble Lord, Lord Mackay of Ardbrecknish, for that explanation. I was quite curious to see what was the objective of his Amendment No. 217. I was interested to hear that it is to do with the idea of electronic tolls on the M.8. I shall not go into the question of test beds that he raised. I thought on from that and two points came to mind which I would like to put to the noble Lord. Perhaps he can answer them when he winds up on this matter.
I assume that the Scottish parliament will be responsible for the maintenance of all trunk roads and so forth because as far as I can see that does not appear to be a reserved matter but a fully devolved one. Therefore, whoever has responsibility for paying, if a toll is ever going to be raised anywhere, should equally have the responsibility for raising payment.
I wonder whether he has considered my second point. I presume that the Forth road bridge and the Skye bridge are both considered trunk roads. Therefore, the effect of the noble Lord's amendment would be to reserve to Westminster any decision by the Scottish parliament as regards tolls on those two bridges. Given the great support in the Highlands for getting rid of the toll on the Skye bridge, I should imagine that is one thing he would like to leave to the Scottish parliament. Did the noble Lord consider that in framing his amendment?
§ Lord Rowallan
My Lords, I support my noble friend Lord Mackay of Ardbrecknish on Amendment No. 218, to which my name is attached as well. I am concerned that we do not have a situation where there is unnecessary controversy between Scotland and England. If we have a situation where insurance companies are necessarily compounding the amount that they wish to charge as a premium to Scottish drivers over English drivers, that is a recipe for disaster. People drive across the Border from all directions. I earnestly hope that cognisance is taken of this amendment.
§ Lord Hardie
My Lords, perhaps I may deal with the amendments in the opposite order. As regards 198 Amendment No. 217, as the noble Viscount, Lord Thurso, pointed out, its effect would be to reserve the responsibility for tolls or charges for the use of trunk roads. The Government find that unacceptable for two reasons. One of them is a reason put forward by the noble Viscount. The amendment would have the effect of separating responsibility for managing and maintaining the trunk road network from that of charging for using the network. As charging would have direct implications for management and maintenance, such as traffic flow, that does not strike us a sensible approach.
Secondly, the amendment would separate responsibility for charging on the trunk road network from the responsibility for charging on local roads. It will be clear to noble Lords that one has direct implications for the other. Therefore, there is a need for consistency in the application. I urge the noble Lord to withdraw that amendment.
As regards Amendment No. 218, despite the views expressed by both noble Lords, I am unable to accept it either. The effect of the amendment will be to reserve the provisions of the Road Traffic Act which deals with the recovery of payments towards the costs of treating road traffic casualties. The provisions of the 1988 Act clearly refer to the recovery of costs incurred by local hospitals and therefore they are concerned with health and not transport. I believe that the noble Lord, Lord Mackay of Ardbrecknish, accepts that it would be appropriate for the money to go to the local national health trust which incurred the treatment expenditure and not anywhere else. As health is a devolved matter, it would be inappropriate for this area of cost recovery and administration to be reserved.
I turn to the question of charging, which was the point of concern to the noble Lord, Lord Mackay of Ardbrecknish. Powers in relation to charges are exercised by health Ministers. The devolution of such powers would have the effect of giving Scottish Ministers the responsibility for setting charges which are commensurate with the treatment costs in Scotland rather than applying a UK average. The parliament will also be able to determine the most appropriate means for effecting recovery of the costs so that the National Health Service in Scotland can derive the maximum financial benefit from its ability to charge.
As regards the point raised about insurance companies, the Association of British Insurers is aware that, after devolution, Scotland will be able to apply different treatment charges to those applied in England. I am advised that it has raised no specific concerns about that possibility. With reference to the impact on motor insurance premiums, that is a matter for the companies themselves to assess in due course. But significant differences in the amounts which Scottish and English motorists would have to pay seem to us to be unlikely at this stage. The determining factor here is where the accident occurs and, therefore, where the injured person is treated. Clearly, that would apply to English and Scottish motorists.
For example, English tourists or people on business travelling in Scotland may have an accident there and be treated in Scotland. Their insurance companies would 199 have to pay the costs. Equally, there may be Scots injured in accidents and their insurance companies would pay the costs. The determining factor in this case is where the accident has occurred or where the person has been injured and treated and not where the motorist resides, which is the normal basis on which insurance is assessed. In any event, there is no question of people receiving different treatment simply because their accident occurred in England rather than in Scotland, or vice versa. With those explanations—
§ 6.45 p.m.
My Lords, I am grateful to the noble and learned Lord for giving way. There is a point which I do not believe has been raised. I ask the noble and learned Lord to look at page 78 of the Bill, lines 12 and 13, which read:The conditions under which international road transport services for passengers or goods may be undertaken".That is a reserved matter. Unless the United Kingdom Government have control over the tolls or charges for the use of trunk roads, they will be unable to control the conditions mentioned there under which international road transport services will be undertaken. Therefore, if this amendment is not accepted, will there not be a contradiction on that point?
§ Lord Hardie
My Lords, I do not think that there will be a contradiction. There is no intention of impeding the transportation of goods. It is simply that there may be charging for the use of trunk roads, just as there may well be charging for trunk roads in England for goods vehicles or others using the trunk roads.
§ Lord Mackay of Ardbrecknish
My Lords, I am grateful the noble and learned Lord the Lord Advocate for the clarification. I am not sure that I entirely agree with the way the Government have decided the issues, but at least it is clear and now on the record in Hansard. As regards trunk roads, I entirely accept the argument and take the point that the Scottish parliament and executive will be able to put electronic tolls and charges, or any other kind of charges, on the Scottish road system. That will at least make it clear for the future who is responsible for these issues.
Concerning the point about health payments, from my side there is no argument that the money should go to the trusts in Scotland. We then moved on to the question of whether it would be possible for Scottish Ministers to increase the charges. The Minister has made it clear that it would be possible. Inevitably, that means that the premiums could go up in such circumstances. The fact that the Association of British Insurers is aware, but did not raise any concerns, is neither here nor there because it will pass on those concerns to the customers. It is very simple.
The argument was that a person from England visiting Scotland might be asked to pay higher charges. The insurance companies will live with that, as they will live with higher charges for Scottish drivers. The example I gave about Scottish or English drivers based in the countryside paying lower premiums because there was 200 less chance of accident or theft in the countryside than in the towns, does not mean that insurance companies walk away from someone if they visit a town or city and are involved in an accident or have their car stolen. Insurance companies live with that; it is the overall risk that they take into account. And the overall risk for somebody living in the countryside is less than for those living in the towns, even allowing for the fact that people in the countryside occasionally visit the towns and are subject to those greater risks.
The noble and learned Lord the Lord Advocate underlined my point rather than went against it. The insurance companies will have to "cough up" any extra money for somebody from England who has an accident in Scotland, and they will live with that. The point is that they will load the premiums of Scottish drivers and that is something the motorists and motoring organisations will have to watch out for; that is, that the Scottish parliament does not use it as a convenient way to raise more money for the health service by upping the amount of money paid to health boards from road accident victims and therefore from insurance companies. The moment that happens insurance companies will review their premium position and, if I were their actuary, I would advise them that they would have to review their premiums slightly upwards and Scottish motorists would have to pay higher premiums than they otherwise would.
I am grateful to the Minister for clarifying these issues. The Government's intentions for both those amendments are now on the record, and we shall see what the Scottish parliament decides to do with those issues in the future. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 218 not moved.]
Baroness Ramsay of Cartvale moved Amendment No. 218A:
Page 81, line 2, leave out from first ("of") to ("Part") in line 3.
§ The noble Baroness said: My Lords, during Committee the noble Earl, Lord Mar and Kellie—temporarily not in his place—tabled an amendment to insert into the exceptions to the social security reservation a reference to Section 26 of the National Assistance Act 1948. His argument was that, if Section 22 of that Act is to be excepted, then Section 26 ought also to be excepted as the two provisions are closely related and both deal with the provision of accommodation by local authorities and their powers to charge for such accommodation. We agreed to look further at the relationship between those two sections.
§ In considering Sections 22 and 26 it became clear to us that neither of those sections deals with matters covered by the social security reservation. Section 22 of the 1948 Act is about the provision of accommodation by local authorities and their powers to charge for that accommodation. The provisions of Section 22 are applied by Section 26 which enables local authorities to arrange for accommodation to be provided by the voluntary sector or private providers. Those sections are also applied in relation to the provision of accommodation by local authorities in Scotland under the Social Work (Scotland) Act 1968 and the Mental Health (Scotland) Act 1984. The 201 provision of accommodation by local authorities and their powers to charge are not covered by the reservation and we have therefore decided to delete the reference to Section 22 altogether. I hope that meets with the approval of the House. I beg to move.
§ Viscount Thurso
My Lords, the noble Baroness kindly referred to my noble friend who is not in his place. Noble Lords will be aware that he has been one of the most assiduous attenders on this Bill through all its stages in your Lordships' House. While I do not have a clue as to what the amendment does, on his behalf I thank the noble Baroness.
§ On Question, amendment agreed to.
§ The noble and learned Lord said: My Lords, in moving Amendment No. 218B, I shall speak also to Amendment No. 218E.
§ Amendments Nos. 218B, and 218E, along with Amendment No. 145C to Clause 52, which we have already considered, make up a package of amendments relating to training for employment and job search and support to ensure that the former is devolved and the latter is reserved. The two amendments refine the job search and support and social security reservations in Schedule 5 in order to ensure that that policy is achieved.
§ Amendment No. 218B adds an exception to the reservation of social security matters to ensure that payments to persons undergoing training who have injured themselves are not a reserved matter. Amendment No. 218E adds an exception to the reservation of job search and support. It will except parts of the Enterprise and New Towns (Scotland) Act 1990 relating to assisting persons to establish themselves as self-employed persons and relating to the disclosure of information under the Act. Those matters would otherwise fall within the reservation of the subject matter of the 1973 Act but would not fall within the existing exception for training for employment. Your Lordships may be aware that the 1990 Act established Scottish Enterprise and Highlands and Islands Enterprise. Matters relating to the economic development agencies such as Scottish Enterprise and Highlands and Islands Enterprise, which not only support economic development but also assist people to obtain training for employment and to establish themselves as self-employed, are also to be within the competence of the Scottish Parliament.
§ The Government believe that this package presents a sensible split of legislative competence and an efficient and practical sharing of powers. I beg to move.
§ On Question, amendment agreed to.
§ Lord Hardie moved Amendment No. 218C:
§ Page 81, line 21, at end insert—202
If section 30(2) of the Child Support Act 1991 (collection of payments other than child support maintenance) is not in force on the principal appointed day, it is to be treated for the purposes of this reservation as if it were.").
§ The noble and learned Lord said: My Lords, we are concerned that the blanket reservation of the subject matter of the Child Support Acts may restrict the legislative competence of the Scottish parliament in relation to the law on aliment more than is intended. Aliment is that part of Scottish private law that deals with the obligations of one person to pay maintenance in respect of children and others. The Scottish parliament should be able to legislate on the general rules of Scottish private law, of which aliment is a part, in so far as they do not conflict with the law of child support.
§ We have particular concern that the reservation of the powers conferred on the Secretary of State by Section 30(1) and, prospectively, by Section 30(2) of the 1991 Act to collect maintenance other than child support maintenance would prevent the Scottish parliament from legislating generally in relation to the imposition of obligations of aliment and the assessment of the levels of aliment payable and from legislating generally as to the collection and enforcement of such aliment.
§ This amendment is therefore to clarify that the Scottish parliament will be able to legislate on aliment other than where it is superseded by the Child Support Acts.
§ The second part of Amendment No. 218C ensures that Section 30(2) of the Child Support Act 1991, which is not yet in force, can nonetheless be considered as part of the subject matter of the 1991 Act. I beg to move.
§ On Question, amendment agreed to.
Lord Sewel moved Amendment No. 218D:
Page 81, line 28, leave out from ("authority") to ("persons") in line 29 and insert ("with mixed functions or no reserved functions,").
§ On Question, amendment agreed to.
§ Lord Sewel moved Amendment No. 218E:
Page 83, line 39, at end insert (", and
(b) the following sections of Part I of the Enterprise and New Towns (Scotland) Act 1990 (Scottish Enterprise and Highlands and Islands Enterprise)—
§ On Question, amendment agreed to.
§ 7 p.m.
Lord Mackay of Ardbrecknish moved Amendment No. 219:
Page 84, leave out lines 2 to 4.
§ The noble Lord said: My Lords, in moving Amendment No. 219, I shall speak also to Amendment No. 220.
§ We discussed Amendment No. 219 in Committee but did not discuss these two issues taken together. Amendment No. 219 would remove from reservation the law on abortion and move it to the Scottish parliament. Amendment No. 220 seeks to reserve euthanasia. The amendments seem to be in opposite directions but that is 203 entirely because the Government's current policy in the Bill goes in opposite directions. Abortion is to be kept at Westminster whereas the law on euthanasia is to be devolved to the Scottish parliament.
§ The two issues have three things in common. First, they have a considerable moral dimension. Secondly, they involve the criminal law. Thirdly, they involve health. I do not believe that we are encompassing the moral dimension in legislation, so I can leave that to one side, except to underline the point that that is a common theme of both abortion and euthanasia. People have very strong feelings on both of those issues on moral grounds, one way or the other.
§ When one comes to setting up a Scottish parliament, one has to approach those two issues from a different attitude, and that with regard to the criminal law and to health. The noble Lord, Lord Sewel, at various stages in the progress of the Bill, has justified the decision to devolve something to the Scottish parliament or to keep something at Westminster from the point of view that one starts with the big picture, the great issues that have been devolved, and one then asks: Are these issues closer to the big issue of being devolved or closer to the big issue of being reserved?
§ Perhaps I may give an example. We have debated frequently the question of agriculture and fisheries and the interaction between the agricultural and fisheries policies in the United Kingdom and in the EU. Eventually, we obtained from the Government a clear statement of the position—that is, that the common agricultural policy and the common fisheries policy are matters of foreign affairs, including matters relating to Europe and, therefore, have to follow that heading and will be dealt with by the United Kingdom Parliament. Other aspects of agriculture and fisheries which do not involve Europe, including the carrying out of the policy, may be devolved, but the actual policy will stay at Westminster because the broad heading of the negotiations with the EU is a Westminster decision.
§ In considering the two issues of abortion and euthanasia, we must now ask ourselves: Where does the criminal law go and where does health go? It seems to me right and proper that those two issues should follow those two broad headings. In this case, we do not even have a dilemma because both broad headings go to the Scottish parliament. The criminal law goes in its entirety to the Scottish parliament. Scots law will go to the Scottish parliament which will decide and legislate on matters relating to the criminal law. All those lovely Acts, such as the Criminal Procedure (Scotland) Act—and all sorts of other such legislation with which we have had pleasure in this House and in the other place—will go to the Scottish parliament. We do not argue about that. One of the key arguments in favour of having a Scottish parliament is that there will be a unique body of Scottish law.
§ Euthanasia and abortion also involve health—and health is to be devolved entirely to the Scottish parliament. The Scottish parliament will be entirely responsible for health, just as the Secretary of State for Health is responsible for it at present.204
§ If one follows the principled approach to these matters, it seems clear that two issues, which involve both the criminal law and health, should be devolved to the Scottish parliament. The Government have accepted that in the case of euthanasia, but not in the case of abortion. That seems odd. Their only justification in Committee appeared to be that one could not have a different law on different sides of the Border. If that is the view taken by the Government, we should not be going down the road of devolution. The whole point about devolution is that it envisages the possibility of the Scottish parliament coming to a different conclusion regarding the position in Scotland from that reached by this Parliament in relation to England and Wales.
Indeed, on 4th May 1978, when the last devolution Bill was discussed, the noble Lord, Lord Kirkhill, who then occupied the position of the noble Lord, Lord Sewel, said in relation to that Bill, that abortion should be devolved. In the debate on whether it should or should not be devolved, the noble Lord, Lord Kirkhill, answering the point that it would be undesirable to have different legal provisions on either side of the Border, said:
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; cols. 487–88.]
§ I would go further and say that they would fail to give proper weight to the problem of different laws south of the Border, but they would have the decision in their own hands.
§ That seems perfectly sensible. If it is to be a parliament in which we are to have confidence—I do, although it does not seem, in this regard, that the Government do—I believe that it should be given the ability to make such decisions both on euthanasia and abortion.
One does not have to go back to 1978 to look for some help with this argument. I have only to go back to 5th October this year, to the debate on the Northern Ireland Bill. Discussing the question of whether or not abortion should be devolved to the Northern Ireland Assembly, the Minister at the Northern Ireland Office, the noble Lord, Lord Dubs, said:
The position is very simple. Abortion law comes under criminal justice. Criminal justice is a reserved power and therefore abortion is a reserved power … when responsibility for criminal justice and policing is passed to the Assembly, which it is our clear intention will be the case when the conditions are appropriate, responsibility for abortion will also pass to the Assembly… As I have said, the day that we transfer those powers, responsibility for abortion will be transferred as well".—[Official Report, 5/10/98; col. 228.]
§ Please can we have some consistency within Government? It is perfectly clear that in this Bill the responsibility for criminal law and for criminal justice is to be devolved. Following the logic that the Government explained on 5th October, abortion ought to be devolved because, as I have said, not only does that follow from what the noble Lord, Lord Dubs, said about the criminal law, but I believe that it also follows the health service point which I mentioned earlier.205
§ It is totally illogical for the Government to maintain their current position in the light of what the noble Lord, Lord Dubs, said. It is also illogical for them to have one policy on abortion and another on euthanasia, both of which affect the criminal law and the health service to a huge degree and both of which have a very large moral component.
§ I think that I have made the case. I am deeply grateful to the noble Lord, Lord Dubs, for making the Government's policy so abundantly clear on 5th October. I look forward to consistency from the Government about devolution and I look forward to them accepting Amendment No. 219. If they do not accept Amendment No. 219, they should accept Amendment No. 220. If they do not, there is a suspicion that there is some other motive behind their actions. If there is some other motive, I should be deeply grateful if the Government would let us know. I beg to move.
§ Viscount Thurso
My Lords, perhaps I may briefly make clear our position in regard to the amendments. Abortion was discussed at some length in Committee. I believe that there was a Division and that noble Lords took a decision. In that respect, those of us on the Liberal Democrats Front Bench will accept the views expressed by the House in Committee. However, it will be a free vote for my noble friends and they may go whichever way their consciences take them.
On euthanasia, I find it rather odd that something that basically does not exist can be devolved or reserved. Euthanasia, whatever it may be as a concept, is not something that exists in law. We have manslaughter, culpable homicide, murder and all sorts of things, but one thing that we do not have is euthanasia, so I do not see how we can write it into the Bill.
§ Baroness Gould of Potternewton
My Lords, I rise to oppose Amendment No. 219 as I opposed a similar amendment moved by the noble Lord, Lord Steel of Aikwood, in Committee. As I said then, in dealing with timescale, circumstances and conditions to be met before termination can be carried out, the 1967 Act did not, and does not, differentiate between different parts of the country with the exception of Northern Ireland—a point to which I shall return. Throughout the UK common criteria and common conditions must be met before termination can take place. The arguments for justifying that decision are just as valid today as they were then. That view was supported by your Lordships' House when it substantially defeated the amendment of the noble Lord, Lord Steel of Aikwood, by 88 votes to 45, after a debate which lasted one-and-a-half hours. I would have expected the decision of the House to be final. However, having said that, the fact that we are having the debate again gives me the opportunity to respond to some of the points raised by the noble Lord, Lord Mackay of Ardbrecknish, during previous discussions and indeed today.
The noble Lord suggested that somehow myself and the two other noble Baronesses who spoke on this side of the House could not possibly have a view of the matter because we were new to the key arguments on devolution and, therefore, did not appreciate the real 206 effect of the amendment. I can only speak for myself. I am certainly not a recent convert to the question of devolution. Indeed, I have been a supporter of devolution and an active participant in the debates since the 1960s and 1970s when it was not quite as popular as it is now.
On the last occasion, the noble Lord went on to say that the debate was not just about whether one is for or against abortion—that is correct—but about a grown-up Scottish parliament taking serious decisions. It is serious for a woman to have to decide whether to have an abortion. Having taken that serious and distressing decision, whether it is carried out should not be determined by whether she has the money to travel across the Border in either direction. If women can afford to travel and pay for abortions that is fine, but if they cannot that fundamental right is denied them. It is that right that we are talking about today.
I am sorry but I must correct another inaccuracy by the noble Lord, Lord Mackay, when he implied that I believed that the law in Scotland would be more restrictive. In fact, I appreciated that the medical profession in Scotland has a strong tradition of support for abortion. In 1996, the last year for which figures are available, the NHS in Scotland provided 99 per cent. of abortions free of cost to women, while the proportion paid for by the NHS in England and Wales varied between 97 per cent. and 34 per cent.
We might well see more liberal and effective laws in Scotland, but that is not the issue. Nor is the issue the competence of the Scottish parliament to take these important decisions; it is about the consequences for women—the consequence of cross-Border traffic. It is this cross-Border traffic which justifies abortion being a reserved matter. The heartache of the 6,000 women who came from Northern Ireland and the Irish Republic to the United Kingdom in 1995 in order to have abortions clearly illustrates the problem. The existence of such traffic is no reason to introduce such bad practice into the differences between England and Scotland.
I reiterate: this debate is not about the content of the law or about any change in abortion law; nor is it a question of whether the law in Scotland would be more rigid or relaxed, nor indeed is it about the competence of the Scottish parliament to take serious decisions. It is about who should have legislative responsibility over a complex and sensitive issue that can affect the lives of many women. As the noble Lord, Lord Mackay, said, it is about whether the Scottish parliament should be able to legislate and create a situation where the law on abortion is different on either side of the Scottish Border. However, the noble Lord did not mention the question of cross-Border traffic. I really wonder whether he is at all concerned about it and the effects on women.
For me, abortion is primarily a health issue but it is also an ethical one. That causes confusion and inequality of access. The need to overcome that in the best interests of women would be met by having a system which is common and consistent throughout the country. That can only be achieved by all women. whether from Scotland, England or Wales, having equal access to abortion. That would almost certainly not be the case 207 if this amendment were to be carried. I hope that your Lordship's House will be consistent and oppose the noble Lord's amendment.
§ 7.15 p.m.
My Lords, my noble friend Lord Mackay has made a most powerful case in favour of both his amendments. There is only one factor that I wish to add to what he said. It is something which I hope the noble Baroness will find is an answer to some extent to the case that she has just put forward. The Scottish courts have always had a separate jurisdiction in criminal matters, not only under the Act of Union but indeed ever since the beginning of time. They have different rules on procedure, on the burden of proof and on evidence. When we have legislated in the United Kingdom parliament on criminal matters, we have always done so separately; that is to say, we have legislated on the one hand for England and Wales and, on the other, for Scotland. There have been exceptions but they have been very rare.
The latter brings me to the subject of abortion. The noble Baroness was quite correct to refer to the Abortion Act 1967. But surely this is essentially a criminal matter on which a devolved parliament should have the right to give further consideration if it thinks necessary. The noble Baroness mentioned the ethical side of the matter, as she was fully entitled to do. However, abortion is so much condemned in the broad on both sides of the Border—that is, apart from the exceptions which are statutory—that I cannot imagine a devolved parliament in Scotland relaxing the law. If the parliament finds that the law needs to be strengthened, it is only right that it should be able to do so. In any event, in the broad, we must leave criminal jurisdiction to the Scottish courts. I very much hope that my noble friend's amendment will be accepted, even by the Government.
§ Lord Sempill
My Lords, I rise briefly to express my support for my noble friend's amendment. I should like to pick up on one very interesting point made by the noble Viscount, Lord Thurso. The Government have decided that the Scottish parliament has the devolved right to deal with euthanasia. If the new parliament chooses to pass a law that brings euthanasia into being, would that not mean that that parliament would be directly in conflict with the Westminster Parliament?
I apologise if I am slightly out of court here in terms of my understanding. However, it is my clear understanding from the lengthy debates that we have had that the final power and arbitration sit within the Westminster Parliament. In devolving euthanasia, I understand that the Scottish parliament could bring about a situation which would create conflict within the United Kingdom.
§ Lord Rowallan
My Lords, I, too, rise to make a few brief remarks. I find myself in the rather unusual position of not being able to support my noble friend Lord Mackay on his first amendment regarding abortion. However, when it comes to euthanasia, I support him 208 wholeheartedly. I feel most strongly that all these issues should be reserved matters and that we should only have one rule throughout the entire United Kingdom.
I entirely agree with the noble Viscount, Lord Thurso, who said that there is no such thing as euthanasia. However, it is a subject which seems to be more openly and more frequently talked about these days. Indeed, I would not be at all surprised if within a very short space of time it becomes a normal fact of life. Therefore, we should not ignore it and pretend that it does not exist because it is already happening now; we just do not talk about it. Whether that be right or wrong, it is what is happening. I very much hope that we will have a UK policy on euthanasia. I sincerely hope that we can also have such a policy on abortion.
§ Lord Thomson of Monifieth
My Lords, the noble Lord, Lord Mackay, put forward a closely argued and powerful case for these two amendments. Of course he deserves to be taken seriously in that respect. However, I believe that he is mistaken in the conclusions that he has drawn. In terms of devolution, this is not in any way a matter of distrust of what the Scottish parliament might do as regards the criminal aspects of either abortion or euthanasia when the latter becomes a legal issue. Indeed I think the whole tradition of Scottish criminal law, particularly in these matters that involve moral questions as well as criminal questions, has had a good record over many generations, and probably a more civilised one than south of the Border.
However, I think the question before us is whether the rather special issues involved in abortion and euthanasia, when that becomes a legal issue, are issues on which there should be a single United Kingdom position which would prevent the kind of distasteful and expensive traffic that may occur across the Border between Scotland and England if there were not a single United Kingdom policy. I do not speak on the abortion issue with any particular knowledge, although I have taken my own view on the matter in free votes over the years. Compared with others who have spoken so far I may have a closer and more immediate interest in a possible law on euthanasia. I am a reformer as regards euthanasia. I agree with the noble Lord, Lord Rowallan, that as regards the special cases of both abortion and euthanasia the case for United Kingdom uniformity is overriding.
§ Baroness Carnegy of Lour
My Lords, I agree with that and I disagree with my noble friend on the Front Bench. I believe that both these issues should be reserved. One concerns the beginning of life and the other the ending of life. They are in some ways linked. They are great spiritual and moral issues. To say that either should be devolved because it relates to the criminal law is not a justifiable argument. I think the disadvantages for Scotland of devolving the issue of abortion would enormously outweigh the advantages. I do not believe there is any need to go into what I mean by that. I think many noble Lords will understand what I mean. I believe there would be huge disadvantages for Scotland in having to decide this issue from time to time because of the nature of Scotland, its social groupings 209 and so on. I believe that that should be a reserved matter. I hope that the Government will not accept Amendment No. 219.
§ Baroness Lockwood
My Lords, I did not join in this debate in Committee for the simple reason that I was in the Chair. However, I heard the entire one-and-a-half hour debate, just as I have heard many debates on this Bill when I have been in the Chair. I enter the debate now for two reasons. First, I express my surprise that we are debating now on Report exactly the same worded amendment as we debated in Committee and which was defeated in the Division Lobby by 43 votes. This second debate today—excellent though it has been—is a most unusual departure from our normal practice. I welcomed the comments of the noble Viscount, Lord Thurso, when he said that noble Lords on his Benches would accept the decision of the Chamber in Committee.
My second reason for entering the debate is in many ways a more substantive one, although I must confess that I find the way in which we appear to have disregarded our normal practices in some of these debates a fairly substantive matter. I believe the issue of abortion to be a UK issue and one that should be kept that way. In that sense I also believe that the issue should not be devolved in the Northern Ireland Bill either. The noble Lord, Lord Mackay, in moving the amendment, said—among his three arguments—that this was a moral issue. It is a moral issue and an ethical issue, but it is also a powerful emotional issue. I believe that matters of this kind should be dealt with on as wide a scale as possible and that is why I think abortion should be dealt with in the way I have described.
There is the whole question of whether abortion is a matter of health or of legality. The noble Lord, Lord Renton, with whom I usually agree on these matters, argued that Scotland has its own special judiciary. I would simply say to him that for the past 30 years since the 1967 abortion law the Scottish judiciary appears to have dealt with this issue—covering both the English system and the Scottish system—effectively.
My Lords, that was because we have a United Kingdom Parliament which made that law and the Scottish courts had to observe the provisions of it. But now that we have devolution, it seemed to me to be right, on a matter on which there may be slightly different feelings north of the Border, that a new Scottish parliament could, if necessary, for example, strengthen the Act.
§ Baroness Lockwood
My Lords, I am at one with my noble friend Lord Sewel who said in Committee that, although criminal law as such was to be devolved in Scotland, because there was a clear law on abortion it had been decided that that could be a reserved matter. That is a powerful argument, but I also think that the argument that my noble friend Lady Gould proposed is a powerful one. There is a great deal of concern about cross-Border traffic in abortion. There is already too much distressing movement of people from one area to another in order to obtain an abortion. I would not like to see us add further to that problem.
210 Of course it is quite true—as has just been said by the noble Lord, Lord Renton—that a Scottish parliament may attempt to improve the abortion law. It may keep it as it is; it may detract from it; or it may improve it. But if there were a difference between England and Wales on the one hand and Scotland on the other, there would be an increase in the movement I have mentioned. I believe we should attempt to decrease the traffic in abortion rather than to increase it. For all those reasons I hope that the House will reject the amendment.
§ Lord Alton of Liverpool
My Lords, we had an extensive debate in Committee and it would be quite wrong to repeat the arguments that we heard on that occasion. However, I wish to make one or two observations. They do not concern the substantive question of abortion which is not the issue before the House today. There is the question of consistency in the legislation which we pass.
In the case of the Northern Ireland Bill the Government have indicated that the issue of abortion will ultimately be decided by the Northern Ireland Assembly if that is its wish. Yet the same right is not being given to the Scottish parliament. As the noble Lord, Lord Mackay, pointed out in relation to this amendment, linking it with the euthanasia issue gives rise to another inconsistency; namely, that abortion is treated in one way and euthanasia in another.
The issue before the House is devolution. Is this, or is it not, a matter on which properly elected parliamentarians in Scotland should be able to decide? They are mature people. We do not know best. They should be able to make up their minds on these questions. These social, moral and ethical issues are matters upon which people reflect and which they consider in great detail.
As the noble Baroness rightly said, it leads to some inconsistencies in different legislatures. That is already true throughout Europe today. Unless we wish to move to a pan-European approach to these matters—for which I do not believe anyone would seriously argue—surely the argument for subsidiarity is better. We should move to a situation such as is outlined in this admirable amendment. It trusts Scottish people to decide on these matters for themselves. In other words, if we are serious about devolution, we should support the amendment that is before the House.
§ 7.30 p.m.
§ Lord Mackie of Benshie
My Lords, I shall not detain the House long. We on these Benches are consistent in our attitudes. I wish to say to the noble Lord, Lord Mackay of Ardbrecknish, that in the past 20 years matters have moved in a sinister way. We have seen the extraordinary events in America; doctors who legally practise abortion have been shot and killed by the so-called "pro-life" lobby. That movement is growing in this country. For that reason this needs to be a United Kingdom matter, quite apart from the cross-Border traffic that might evolve.
I must say to the noble Lord, Lord Alton, who was once my noble friend, that I suspect his motives, in that he wants a smaller field within which to operate. The 211 noble Lord is against abortion in any form whatever. That being the case, although, all things being equal, I should prefer this matter to be in the hands of the Scottish people, in the present event I have no doubt that it should remain a United Kingdom responsibility.
§ Lord Sewel
My Lords, we return to the issue of abortion and the linked issue of euthanasia after an extensive discussion in Committee. The Committee decisively rejected the very proposition that is before the House now.
Perhaps I may correct the noble Lord, Lord Mackay of Ardbrecknish, on a point he advanced. In Committee on 27th July we discussed the linkage between abortion and euthanasia. That is not a new matter. It was discussed extensively on 27th July (Hansard, col. 1305).
I also refer noble Lords to the point made by the noble Lord, Lord Steel of Aikwood, at the end of that debate. He said: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".— [Official Report, 27/7/98; col. 1307.]He did so, and the Committee decided. I know that the noble Lord, Lord Steel of Aikwood, is satisfied to rest on the opinion of the House as expressed in Committee. I should have hoped that we could all have done that.
I can be relatively brief. I have listened carefully to the views of all noble Lords. However, I fail to detect any new argument from those that were deployed at an earlier stage. I fully appreciate that abortion is an issue of great sensitivity and significance in Scotland and one which rouses deep emotions on both sides of the argument. But it is important to recognise at the outset of our debate today that we are not discussing the rights or wrongs of the current law on abortion. What we are considering is where legislative responsibility should lie for an issue which, while of great significance to the people of Scotland, is of similar importance to people south of the Border.
The desirability of this wider (Great Britain) perspective was recognised in the Abortion Act 1967 which, as noble Lords know, extends to Scotland. We believe that this common approach to abortion, which has endured for over 30 years now in Scotland, England and Wales, is right. In practical terms, we recognise that we have argued the case for devolution in terms of the type of argument explained by the noble Lord, Lord Mackay of Ardbrecknish. We have argued on the basis of which matters should be reserved and devolved—on the basis of what the noble Lord, Lord Mackay, terms "the big issue". I describe it as a more principled approach. Matters of health are devolved, as is much of the criminal law. However, we have recognised that there are areas of the criminal law which should be reserved, and that has been accepted by the whole House without Division. I refer to the misuse of drugs, firearms and treason. We have already decided, for good reasons, that those three areas of the criminal law should not be 212 devolved. If good reasons can be adduced as to why abortion should not be devolved, that does not in itself run contrary to the approach that we have adopted.
Having set out a principled approach, particularly in relation to devolving health issues in general, the burden of the argument rests with those of us who wish to maintain the reservation of abortion; it is for us to make the case. That case can be made briefly, but powerfully and persuasively. It is simply this. If in the future there were to be a considerable difference in the abortion law north and south of the Border and that in itself produced a significant cross-Border trade of women seeking abortion, that would be regarded as offensive by public opinion. That is the case that I make. It is the case upon which I rely. I recognise that it is not drawn from some high principle. It is drawn merely from a feeling that our fellow citizens would find it basically unacceptable that there was a cross-Border trade in women seeking abortion within Great Britain. On that basis, I hope that on this occasion the noble Lord will feel able to withdraw his amendment.
§ Lord Mackay of Ardbrecknish
My Lords, I am grateful to noble Lords who took part in the debate. First, perhaps I may say to the noble Baroness, Lady Lockwood, that had my amendment been out of order, I doubt whether the Clerks would have accepted it. Secondly, although we discussed euthanasia last time, the linkage is important. A little consistency is needed from the Government. Thirdly—this addresses the Minister's remark that there were no new arguments—the arguments advanced by the Government on 5th October on the Northern Ireland Bill seem to introduce a totally new dimension. I do not believe that the noble Baronesses Lady Gould and Lady Lockwood took part in that debate and said to their noble friend Lord Dubs that they disagreed with his assertion that the abortion law should follow the criminal law, which is the Government's clearly stated position, on the record. All I ask for is consistency. That position should apply to Scotland, as well.
§ Lord Mackay of Ardbrecknish
My Lords, devolution throughout all parts of the United Kingdom is on exactly the same principle. The Government have decided not to devolve the criminal law to Northern Ireland currently but have made it clear that, when they do devolve it, the abortion law will go with it. The arguments with regard to Northern Ireland should be the same for Scotland and vice versa.
My noble friend Lord Renton made the point that Scots law has a long tradition of being different from English law. The Scottish parliament is being set up to legislate on a wide variety of matters. Although the noble Baroness, Lady Gould, said that she believed in devolution, it did not sound like it. This very large Bill, which we have now been discussing in Committee and on Report for 14 days, contains a vast number of important issues which we Scots shall decide for ourselves in Edinburgh. I believe that abortion should be one of them.
213 If noble Lords will not support me on the first amendment, I look forward to their supporting me on the second amendment. The noble Viscount said that euthanasia is not a matter on which there are currently laws. In fact, it is illegal and so serious laws apply to it. I think the noble Viscount meant that there were not laws which allowed for euthanasia in certain circumstances. While that may be the case, there is a great deal of discussion on the subject. In the countries of some of our European friends laws already exist which allow for euthanasia in very limited circumstances. There are vigorous lobbies both for and against in this country—by which I mean both England and Scotland. It is very possible that in the next few years legislatures will have to address these issues. If the House does not think that abortion can be trusted to the Scottish parliament, I suggest that nor can euthanasia. I therefore invite the opinion of the House on the first amendment and, dependent on the result, I shall invite the opinion of the House on the second amendment.
§ 7.42 p.m.
§ On Question, Whether the said amendment (No. 219) shall be agreed to?
§ Their Lordships divided: Contents, 70; Not-Contents, 127.214
|Division No. 2|
|Aldington, L.||Linklater of Butterstone, B.|
|Alton of Liverpool, L.||Luke, L.|
|Ashbourne, L.||Lyell, L.|
|Astor of Hever, L.||Mackay of Ardbrecknish, L.|
|Biddulph, L.||Mackay of Drumadoon, L.|
|Blatch, B.||Marlesford, L.|
|Brabazon of Tara, L.||Masham of Ilton, B.|
|Bridgeman, V.||Mayhew of Twysden, L.|
|Brougham and Vaux, L.||Molyneaux of Killead, L.|
|Burnham, L. [Teller.]||Monro of Langholm, L.|
|Buscombe, B.||Monson, L.|
|Chesham, L.||Mowbray and Stourton, L.|
|Colwyn, L.||Northbrook, L.|
|Cope of Berkeley, L.||Northesk, E.|
|Craigmyle, L.||Norton, L.|
|Cranborne, V.||Onslow, E.|
|Crathorne, L.||Park of Monmouth, B.|
|Dixon-Smith, L.||Patten, L.|
|Dundee, E.||Phillips of Sudbury, L.|
|Eccles of Moulton, B.||Pilkington of Oxenford, L.|
|Elton, L.||Renton, L.|
|Fookes, B.||Ryder of Wensum, L.|
|Forbes, L.||Saltoun of Abernethy, Ly.|
|Fraser of Carmyllie, L.||Seccombe, B.|
|Gardner of Parkes, B.||Selkirk of Douglas, L.|
|Glenarthur, L.||Sempill, L.|
|Henley, L.||Sharples, B.|
|HolmPatrick, L.||Skelmersdale, L.|
|Home, E.||Stewartby, L.|
|Howe, E.||Strathclyde, L. [Teller.]|
|Hylton, L.||Teviot, L.|
|Kimball, L.||Thomas of Gwydir, L.|
|Kingsland, L.||Vivian, L.|
|Kinnoull, E.||Waddington, L.|
|Lang of Monkton, L.||Wynford, L.|
|Ackner, L.||Hughes of Woodside, L.|
|Acton, L.||Hunt of Kings Heath, L.|
|Addington, L.||Islwyn, L.|
|Ahmed, L||Janner of Braunstone, L.|
|Alli, L.||Kintore, E.|
|Amos, B.||Levy, L.|
|Archer of Sandwell, L.||Lichfield, Bp.|
|Bach, L.||Lockwood, B.|
|Balfour, E.||Lofthouse of Pontefract, L.|
|Barnett, L.||Macdonald of Tradeston, L.|
|Berners, B.||McIntosh of Haringey, L. [Teller.]|
|Borrie, L.||Mackenzie of Framwellgate, L.|
|Burlison, L.||Mackie of Benshie, L.|
|Callaghan of Cardiff, L.||Maddock, B.|
|Carlisle, E.||Mallalieu, B.|
|Carmichael of Kelvingrove, L.||Merlyn-Rees, L.|
|Carnegy of Lour, B.||Miller of Chilthorne Domer, B.|
|Carter, L. [Teller.]||Milner of Leeds, L.|
|Castle of Blackburn, B.||Monkswell, L.|
|Chandos, V.||Montague of Oxford, L.|
|Christopher, L.||Montrose, D.|
|Clarke of Hampstead, L.||Morris of Castle Morris, L.|
|Clement-Jones, L.||Morris of Manchester, L.|
|Clinton-Davis, L.||Newby, L.|
|Craigavon, V.||Nicol, B.|
|Crawley, B.||Northfield, L.|
|Currie of Marylebone, L.||Orme, L.|
|Darcy de Knayth, B.||Parry, L.|
|David, B.||Pitkeathley, B.|
|Davies of Coity, L.||Prys-Davies, L.|
|Davies of Oldham, L.||Ramsay of Cartvale, B.|
|Desai, L.||Randall of St. Budeaux, L.|
|Dholakia, L.||Razzall, L.|
|Dixon, L.||Rea, L.|
|Donoughue, L.||Redesdale, L.|
|Dormand of Easington, L.||Richard, L.|
|Evans of Parkside, L.||Rowallan, L.|
|Falconer of Thoroton, L.||Sainsbury of Turville, L.|
|Farrington of Ribbleton, B.||Sawyer, L.|
|Flather, B.||Scotland of Asthal, B.|
|Gallacher, L.||Sefton of Garston, L.|
|Geraint, L.||Sewel, L.|
|Gilbert, L.||Shore of Stepney, L.|
|Goodhart, L.||Simon, V.|
|Gordon of Strathblane, L.||Simon of Highbury, L.|
|Goudie, B.||Stair, E.|
|Gould of Potternewton, B.||Stodart of Leaston, L.|
|Graham of Edmonton, L.||Stone of Blackheath, L.|
|Grenfell, L.||Strange, B.|
|Grey, E.||Symons of Vernham Dean, B.|
|Hacking, L.||Taylor of Blackburn, L.|
|Hardie, L.||Thomas of Macclesfield, L.|
|Hardy of Wath, L.||Thomas of Walliswood, B.|
|Harris of Greenwich, L.||Thomson of Monifieth, L.|
|Harris of Haringey, L.||Thornton, B.|
|Haskel, L.||Thurso, V.|
|Hayman, B.||Tomlinson, L.|
|Hogg of Cumbernauld, L.||Uddin, B.|
|Hollis of Heigham, B.||Varley, L.|
|Hope of Craighead, L.||Walker of Doncaster, L.|
|Howie of Troon, L.||Warner, L.|
|Hoyle, L.||Whitty, L.|
|Hughes, L.||Williams of Mostyn, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.215
Lord Mackay of Ardbrecknish moved Amendment No. 220:
Page 84, line 33, at end insert—