Agency Arrangements and Provision of Services

Orders of the Day — Scotland Bill – in the House of Commons at 12:00 am on 6th December 1977.

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Question proposed, That the clause stand part of the Bill.

8.15 p.m.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Glasgow Cathcart

This is one of the clauses to which we have tabled no amendments because we are not sure precisely what the clause is designed to do. I hope that that is not because of our lack of understanding, since we have shown that we have probably an even greater grasp of the details and the dangers of the Bill than the Government. I am sure that the Minister of State will accept that. What we would like to do is to ask one or two questions about why the clause is necessary.

Subsection (1) provides: Arrangements may be made between a Scottish Secretary and any relevant authority"— and "relevant authority" is defined in subsection (3)— for any functions of one of them to be discharged by, or by officers of, the other, and for the provision by one of them for the other of administrative, professional or technical services. My first question is whether we are correct in saying that this is a two-way process. Could a Scottish Secretary or his Department do a job for a relevant authority and could that relevant authority do a job for a Scottish Secretary? Can the Minister confirm that that is so?

Second, can the Minister say under what circumstances he envisages these things being done? There are some public bodies, such as the Scottish Special Housing Association, which the Government ask to do a job for them. Is it this kind of thing which is envisaged, or is it to cover some of the relevant functions of the organisation itself?

Thirdly, we should like to know why this provision is restricted to what are called relevant authorities. There will, I am sure, be many occasions on which the Assembly will want an outside body which is not a relevant authority to do a job for it. There will, presumably, be a great many studies carried out. One thing we always find with new bodies is that they want to do a great deal of fact-finding. I see the hon. Member for Glasgow, Garscadden (Mr. Small) present. He can confirm what I say because he is one of those hon. Members who carries out parliamentary fact-finding on behalf of his colleagues, returning to give us a great deal of helpful information. Many hon. Members engage in fact-finding exercises which can be helpful.

The Scottish Assembly will want to consider many things. It may wish to appoint Select Committees to investigate certain subjects such as land use in various parts of the world. It is more than likely that there will be a great deal of fact-finding. It may be necessary to employ consultants and to obtain advice from other places.

Will the Minister say why the clause is limited to relevant authorities? Will it be possible for the Assembly to go ahead and make arrangements with bodies other than relevant authorities within the terms of the Bill? Why is it necessary for the Government to insert a specific clause saying that the Scottish Assembly can ask a local government body, a public corporation or a public authority to do a job for it? I should have thought that this was already within the scope of the Bill. If the clause did not exist, would it not be possible for the Assembly to ask relevant authorities to do a job for it?

Another matter of interest is whether the clause would be a vehicle enabling the work of United Kingdom Departments to be carried out by the Scottish Assembly. Concern has been expressed about the possibility that this Bill will not be a logical stopping point. The Minister of State has said, and most hon. Members accept, that it is unlikely that the Bill will be a stopping point. Some people think that it will lead to separation, others that it will lead to federalism and others that it will lead to a shambles. Few people believe that it will be a logical stopping point and will form a firm constitutional basis.

It would be interesting to know whether the clause could be used to enable the Assembly to take over the executive rôle of Government Departments—for example, the Department of Health and Social Security.

There is no question of us objecting passionately or strongly to this clause because we are not sure what it does. I hope that the Minister of State can answer my questions.

Photo of Malcolm Rifkind Malcolm Rifkind , Edinburgh Pentlands

In the minute after 8 o'clock the Committee approved six clauses in this fundamental Bill without a single word of debate and without a single amendment being considered. Whatever one's view about what the Government are doing, it is disgraceful that six clauses out of a Bill with such dramatic consequences should be dealt with in that way. Even if timetable motions are necessary at some future date, the minimum that should be required is that some time at least be given for consideration of each clause of a Bill, so that those who wish to speak about it have the ability so to do.

For the first time in our proceedings we are dealing with the relationship between the Scottish Assembly and United Kingdom authorities. As my hon. Friend the Member for Glasgow, Cathcart (Mr. Taylor) has said, this opens up the question of the future rôle of United Kingdom Ministers in relation to devolved matters, the question of the future rôle of United Kingdom Members of Parliament and in particular the future functions and rôles of hon. Members representing Scottish constituencies. Under the clause it would appear to be possible for a Scottish Secretary to require United Kingdom Ministers to carry out any of the functions devolved to the Scottish Executive. I should like the Minister to comment on whether, in that situation, Members of the House of Commons would be able to question a Minister on the issue that had been passed to him by the Assembly.

The matter goes beyond that, because there was considerable speculation earlier about the function which Members of the House of Commons will have in relation to devolved matters in Scotland should the Bill take effect. In particular, the question has been raised whether hon. Members representing Scottish constituencies will have any worthwhile part to play in this House after devolution, if it is implemented and approved at the referendum. Certain hon. Members have suggested that the rôle and function of hon. Members representing Scottish constituencies will be limited to debates on foreign affairs and defence. Clearly, even on a narrow interpretation of this clause and those following it, that would be a nonsensical suggestion. It is clear from the Bill that many areas will continue to be the responsibility of the full House of Commons and the British Government.

I have been doing some research on what the consequences of this Bill will be if it is implemented. It may be of interest to mention those consequences. Since the beginning of 1974 Parliament has approved 267 Bills. Of those, 200 Bills have applied to Scotland, either as part of the United Kingdom or on its own behalf. If the Assembly, with the powers given in this and other clauses, had been in existence over the past three years, of the 200 Bills that have been passed by the House of Commons which applied exclusively to Scotland, only 47 would have been the responsibility of the Assembly. The other 153 would still have been the responsibility of United Kingdom Departments and of hon. Members sitting in the House of Commons, in particular those representing Scottish constituencies.

Using this criterion for the future rôle of this House, it is clear that hon. Members representing Scottish constituencies will, on that basis, have 75 per cent. of their present potential work load remaining if the Bill takes effect. If we apply other criteria the results are even more striking.

My hon. Friend the Member for Cathcart mentioned the future rôle of Select Committees. It is interesting, if we look at the present 15 Select Committees that have been set up by the House, to note that there is not a single Select Committee whose remit, either now or if the Bill becomes effective, would apply only to England or to any other part of the United Kingdom, to the exclusion of Scotland. Every Select Committee has a United Kingdom remit and, notwithstanding the words of this Bill, will continue to have such a remit. The rôle of Members representing Scottish constituencies will continue to be as active and legitimate as is the rôle of hon. Members representing other parts of the United Kingdom.

The clause deals with the possible powers that might be given to United Kingdom Departments to deal with devolved matters. It is interesting to look at the consequences involved in the future responsibilities of United Kingdom Government Ministers. The conclusion that one must reach is interesting. Clearly, many of the responsibilities of the Scottish Office will be dramatically devolved to the Assembly. But some United Kingdom Ministers will continue to have almost identical responsibilities throughout the United Kingdom after devolution takes place. They will continue to have the same responsibilities for Scotland as they have for Wales and elsewhere.

For example, the Chancellor of the Exchequer's powers will virtually not be affected. The Foreign and Commonwealth Secretary, the Secretary of State for Defence and the Secretaries of State for Energy, Industry, Prices and Consumer Protection, Trade and Employment will continue to have the same responsibilities throughout the United Kingdom, with one or two minor exceptions. Scottish Members will have as much interest in those responsibilities as do other Members of the House.

A batch of Ministries or Departments at present have responsibilities for England and Wales and for Scotland. Examples are Transport, Health and Social Services, Agriculture, and the Home Office. In those four cases each Minister has a substantial but limited responsibility for Scotland and will lose nothing but a fraction of those responsibilities in relation to Scotland. Let us take the example of the Department of Health and Social Security. That Department is, and will continue to be, the sole Department that is responsible for pensions and social security matters.

Not will the Home Office only retain responsibilities for nationality and immigration; the only responsibility to be devolved to the Scottish Assembly is that for summertime—a responsibility that we may assume the Scottish Assembly will not be enthusiastic to use.

With the exception of the Scottish Office the responsibilities of United Kingdom Ministers will continue to affect the whole of the United Kingdom.

I am not seeking to answer the arguments about the famous West Lothian question. Nothing invalidates the argument about the inequity that will follow the passage of the Bill if Scottish Members are able to vote on English issues without corresponding rights for English Members on Scottish issues. I am not entering into the question of the total Scottish representation in the House.

This clause and others clearly demonstrate that if there is a substantial sense of grievance on the part of Scottish opinion or opinion in the House on the matters upon which I have commented it will come from those who believe that too little is devolved. Not only do all these matters continue to be United Kingdom responsibilities; in this clause and in others we see that even in areas that are devolved United Kingdom Ministers will continue, or may continue, to have significant responsibilities. In addition, although the Scottish Office will become a shadow of its present strength and relevance it will retain significant executive powers in certain non-devolved areas.

I hope that the Committee will consider this matter. The future rôle of Scottish Members in the House of Commons is of importance and I hope that the Committee will not be lulled into the belief that only foreign affairs and defence will be legitimate interests for Scottish Members once the Bill has been implemented.

Photo of Mr William Benyon Mr William Benyon , Buckingham

My hon. Friend was speaking very quickly. He mentioned Select Committees. Surely under the Bill one cannot establish a Select Committee of this House to inquire into a devolved subject in Scotland—housing, for example.

8.30 p.m.

Photo of Malcolm Rifkind Malcolm Rifkind , Edinburgh Pentlands

My hon. Friend is absolutely correct. There are certain matters that the Select Committees might not choose to consider, or might not be able properly to consider if the Bill were implemented. However, my point is that under the present remits of every Select Committee set up by the House not one would cease to have any relevance to Scotland in the event of the Bill's taking effect, whether we are considering the Select Committee on European Legislation or the Select Committees concerned with expenditure, House of Commons services, Members' interests, the nationalised industries, overseas development, the Parliamentary Commissioner, privilege, or procedure.

Photo of Malcolm Rifkind Malcolm Rifkind , Edinburgh Pentlands

An ad hoc Committee may occasionally be set up. However, I see that you, Sir Myer, are—

Photo of Mr Myer Galpern Mr Myer Galpern , Glasgow Shettleston

I am glad that the hon. Gentleman anticipates me. He is going wide of the clause.

Photo of Malcolm Rifkind Malcolm Rifkind , Edinburgh Pentlands

I thought it proper, Sir Myer, to answer the questions asked by my hon. Friend—

Photo of Malcolm Rifkind Malcolm Rifkind , Edinburgh Pentlands

As my hon. Friend's intervention was not ruled out of order, it would seem a bit unfair if the reply was.

Photo of Mr Myer Galpern Mr Myer Galpern , Glasgow Shettleston

I wish that I could stop some interventions before they became interventions.

Photo of Malcolm Rifkind Malcolm Rifkind , Edinburgh Pentlands

My point—I conclude on this, Sir Myer—is that the clause gives various potential powers to the United Kingdom Departments but that even if the clause did not exist United Kingdom Departments would, notwithstanding the Bill, continue to have a major and direct rôle in the government of Scotland. That is a matter that the Committee should keep permanently before it when it considers the Bill.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

On a point of order, Sir Myer. Is not the Committee in some difficulty? On a clause such as this it would be possible to stray into following clauses—as I did on the last section of the Bill under the guillotine—in the knowledge that unless one did they would not be discussed at all. I start by accepting blame for what I did, if blame is the right word. I rightly surmised that there could be no possible discussion on issues of Clerks, parliamentary draftsmen and a number of other matters, and therefore on "Clause 25 stand part" I went far wider than I would normally have done, or, indeed, is possible within the strict rules—

Photo of Mr Myer Galpern Mr Myer Galpern , Glasgow Shettleston

What is the hon. Gentleman's point of order?

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

It is this, Sir Myer: is there no way in which we can come to some kind of informal agreement between ourselves, or accept very strict rulings from the Chair, that we discuss the Bill clause by clause? As the hon. Member for Edinburgh, Pentlands (Mr. Rifkind) rightly said, it is nonsense that certain clauses should go undiscussed. It would be possible, in the light of previous rulings—not when you were in the Chair, Sir Myer—to discuss this whole section on Clause 33. That is necessarily unsatisfactory. But we have vital issues to raise on Clauses 35 and 36, so I ask either that you and your colleagues in the Chair are exceedingly tough or that we have an agreement to take a whole section and have a general debate on it. It is either one or the other.

Photo of Mr Myer Galpern Mr Myer Galpern , Glasgow Shettleston

That is a most interesting point of order. It seems to me that the hon. Gentleman is trying to usurp my position and get into the Chair. We would welcome him. But obviously we should discuss a clause on its own, and we should be discussing Clause 33. If there is a fleeting reference, to some cognate matter, without going into any detail, one would obviously allow it. One would welcome what the hon. Gentleman said, but it is not easy to interpolate other matters.

The suggestion was made that there should be some arrangement. The Chair will enter into no arrangement with anyone. It will discharge its duties as the Standing Orders lay down.

Photo of Mr Timothy Raison Mr Timothy Raison , Aylesbury

Further to the point of order, Sir Myer. One of our difficulties seems to be that we sometimes wish to discuss the principle of the clause. For example, some of us wanted to discuss the principle whether there should be an Executive. I tabled an amendment to delete the clause in question. The amendment was not called for discussion, and even if it had been called it would probably not have been until after what were, in my view, rather less important amendments to specific bits of wording. Would not it be possible for the Chair, when making its selection, at least to look favourably at amendments to delete a whole clause and take them at the beginning of the debate on that clause, so that we may debate the clause rather than wait on the off-chance that there is time left to do so?

Photo of Mr Myer Galpern Mr Myer Galpern , Glasgow Shettleston

The Chair selects amendments according to the rules laid down by the House itself.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

Further to that point of order, Sir Myer—

Photo of Mr Myer Galpern Mr Myer Galpern , Glasgow Shettleston

Perhaps the hon. Member for West Lothian (Mr. Dalyell) should take over the Chair.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

In cases such as this clause, where there is a clear doubt on both sides of the Committee about exactly what the clause means, would not it be sensible for the Chair to decide to call the Minister at an early stage so that we might at least discover what was in the Government's mind?

Photo of Mr Myer Galpern Mr Myer Galpern , Glasgow Shettleston

We are getting on to interesting territory now. I should like nothing more. My own feeling is that we would save a lot of debate if the Minister rose to explain the clause.

Photo of Mr Francis Pym Mr Francis Pym , Cambridgeshire

Further to that point of order, Sir Myer. You will appreciate, I am sure, that no hon. Member on either side of the Committee has cast any reflection on the way that the Chair has done its job. We are complaining about the difficulty of debating in Committee a Bill of this constitutional complexity and magnitude. I think that it is fair to say that I speak for hon. Members on both sides of the Committee when I say that, in the light of the extreme difficulty in which we find ourselves, the Chair has been very reasonable, in the sense that it has been strict at some moments and less strict at others, and has helped the Committee to cope with what is a quite impossible situation. I think that it is important to put that on the record.

Photo of Mr Myer Galpern Mr Myer Galpern , Glasgow Shettleston

The right hon. Member for Cambridgeshire (Mr. Pym) did not join the House yesterday. This has been the practice over the years. It has not just arisen on this Bill. I suggest that we get on with the business and see how we progress.

Photo of Mr Jo Grimond Mr Jo Grimond , Orkney and Shetland

I wish to raise a matter which is directly relevant to the clause.

The Shetland Islands Council proposed at one time to ask the people of Shetland whether they wished to be omitted from the Bill. It did not ask whether they were for or against devolution in Scotland. It wished to ask the people of Shetland whether they were anxious to be omitted from the Bill, and it was thought that this clause might be used in a way that I shall indicate.

I have often described the situation in my constituency, and, in view of the time, I do not propose to do so at length again. However, my constituents have a different history from that of Scotland. At one time the Scots were extremely oppressive. My constituents feel that they have been neglected for many years over transport and the special allowances, for example, and oil has done them great damage as well as bringing them advantages. It may disrupt their economy. It has laid additional work on their public services. If it should affect the fishing of the fishermen or the crofting of the crofters, it would be disastrous for the islands. Naturally, they want to safeguard their future and, therefore, they attach great importance to the oil revenues and the disturbance fund.

Some felt that it was at least possible that a Scottish Assembly might interfere with the arrangements that they had already made, such as their special Private Bill, and they wished to be safeguarded against this or to explore the possibility of being excluded from the Bill. I pointed out to them that, if they were excluded, they would have to make arrangements for their general administration. They are administered from Edinburgh through the Secretary of State for Scotland. He would lose all his powers and staff, and the islanders would have to make other arrangements. Their education is Scottish education. Most of their land is held under the system of crofting, which is a peculiarly Scottish system. They deal with the Highlands and Islands Development Board. Their law is Scots law.

It was suggested to me that arrangements under Clause 33 could be made between the Secretary of State for Scotland and the relevant authorities in Scotland—the Crofters Commission and so forth—for the essential administration of the islands. When one first reads the clause, it seems possible that that might be so, because it is widely drafted. It says: Arrangements may be made between a Scottish Secretary and any relevant authority for any functions of one of them to be discharged by, or by officers of, the others". Thus, at first sight, it might seem possible for the Shetlands to remain in general under the control of this Parliament but for the Secretary of State, since he will have lost most of his powers and staff under the Bill, to make arrangements for the Shetlands' laws, education, administration and so forth to be conducted by "relevant authorities" of Scotland.

But, reading the clause more carefully, one finds that that is not possible. For example, subsection (2) would make it extremely difficult. In any case, I am convinced that that is not the real purpose of the clause. I accept that such wide delegation of authority by the Secretary of State would be illegal under the Bill.

That matter is of interest not only to the Shetland Islands Council but to the people of the islands. I have had the advantage of talks with the Minister of State about it, and I am grateful to him. I think I can say that in private he has confirmed that this is not the intention of the clause and that, for good legal reasons apart from anything else, it could not be used for this purpose.

I take this opportunity to get the Minister to put the position on record because it is of great interest in the Shetlands. Some people will feel that they might establish a special relationship. Many of us feel that some special relationship may, in the long run be necessary and desirable. That is to some extent my own feeling. But it cannot be achieved by this clause. I should be grateful if the Minister would explain the precise purpose of the clause and how far he considers that one authority can contrive with another to perform functions under the terms of the clause.

Photo of Mr Harry Ewing Mr Harry Ewing , Stirling Falkirk and Grangemouth

It may help the Committee if I make a few comments at this stage. Clause 33 is, in a sense, very narrow. While it provokes debate, it is very restricted in its functions. It merely sets up a situation whereby an arrangement—and here I must refer particularly to the comments of the hon. Member for Edinburgh, Pentlands (Mr. Rifkind), who appeared to be saying that a Scottish Secretary could require a United Kingdom Minister

Photo of Mr Harry Ewing Mr Harry Ewing , Stirling Falkirk and Grangemouth

I apologise to the hon. Gentleman if I have taken the wrong meaning.

The clause sets up an arrangement whereby a Scottish Secretary can perform a function on behalf of a United Kingdom Minister, obviously at the request of that United Kingdom Minister, or whereby a United Kingdom Minister can perform a function on behalf of a Scottish Secretary, again, obviously, at the request of that Scottish Secretary. It would appear to me to go without saying that such an arrangement would require both parties to enter into it before it could be struck. There is, therefore, no question of the Scottish Assembly having extended powers as a result of the clause.

The hon. Member for Pentlands raised some important points. He seemed to concentrate rather heavily on the position of Select Committees in the House of Commons. I must remind him that they are Select Committees of the House; they are not Select Committees of a Minister of the Government. Therefore, Select Committees obviously cannot be part of the arrangements between a Scottish Secretary and a United Kingdom Minister.

Subsection (1) of the clause precisely coincides with the understanding and interpretation of the hon. Member for Glasgow, Cathcart (Mr. Taylor).

8.45 p.m.

I now turn to deal briefly with what was said by the right hon. Member for Orkney and Shetland (Mr. Grimond), who made an important contribution to the debate from the point of view of the people of Shetland and the Shetland Islands Council. I confirm categorically that the clause could not be operated in the way in which the Shetland Islands Council appears to think. All that the clause provides is an agency arrangement, no more and no less.

That brings me to the point made again by the hon. Member for Pentlands, who asked whether a United Kingdom Minister acting as agent for a Scottish Secretary would be responsible to the House of Commons for that part of the work that he was doing on behalf of a Scottish Secretary. The answer is "No", because subsection (2) makes it plain that no such arrangements for the discharge of any functions shall affect the responsibility of the authority on whose behalf the functions are discharged. The authority which holds the functions is still responsible for them.

That answers the point raised, quite rightly, by the hon. Gentleman. A United Kingdom Minister carrying out an agency arrangement on behalf of a Scottish Secretary would not be responsible for, and would not be questioned on the Floor of the House concerning that part of the agency arrangement that he was carrying out.

Photo of Malcolm Rifkind Malcolm Rifkind , Edinburgh Pentlands

I follow what the Minister says in the sense that ultimate responsibility for devolved matters must remain with the devolved Executive, but surely he is not suggesting that a United Kingdom Minister who is working within such an arrangement as is provided for in the clause will not be answerable to the House of Commons for what he does as an agent of the Scottish Executive.

Photo of Mr Harry Ewing Mr Harry Ewing , Stirling Falkirk and Grangemouth

That is right. I am not suggesting that. What I am saying is that subsection (2) makes it clear that even if an arrangement were entered into at the request of a United Kingdom Minister for a Scottish Secretary to do something on an agency basis on his or her behalf, that United Kingdom Minister would still be responsible to the House. There is no question of any United Kingdom Minister being able to shunt some of his responsibilities off on to the Assembly and, therefore, not be answerable to the House.

If a United Kingdom Minister were to do something on an agency basis on behalf of a Scottish Secretary—which is a different matter—he would not be responsible to the House for that function, but obviously he would be responsible for his own functions, whether or not he asked the Scottish Assembly to perform them on an agency business.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

I wonder whether my hon. Friend would clarify the situation. What kind of thing would a United Kingdom Minister do on behalf of a Scottish Secretary? May we have an example of what my hon. Friend has in mind?

Photo of Mr Harry Ewing Mr Harry Ewing , Stirling Falkirk and Grangemouth

I do not think that it is particularly helpful to give examples. The Committee is well aware that once examples are given the Government are drawn on other points and are asked to give other examples. In my view, it is sufficient to say that this provision is as it appears in the Northern Ireland Constitution Act 1973. The House is not entering into something new. It is something for which there is provision in an Act which was passed by the previous Administration and which appears to work well. At least, I have not heard any complaints about it. There is a precedent for this provision. It is not something new that we are introducing. It is not something terribly radical, though I hesitate to confess that.

I hope that in what I have said I have been able to reassure the Committee and that we can now move to the next set of amendments.

Photo of Mr Maurice Macmillan Mr Maurice Macmillan , Farnham

I must apologise to the Committee for the fact that on my return to the debate I shall strike a note of acerbity and uncertainty. I thought that this was a relatively innocent clause, but when I heard what my hon. Friend the Member for Edinburgh, Pentlands (Mr. Rifkind) said I began to get a little alarmed.

Having heard the Minister, it seems to me that Clause 33, particularly when taken in conjunction with paragraph 8 of Schedule 2, is a large extension of government by prerogative, and the fact that that extension of the prerogative can be achieved only by agreement between United Kingdom Ministers and Scottish Secretaries does not fill me with any degree of reassurance.

The clause seems to me to be rather objectionable in what it enables the Assembly and its servants to do through United Kingdom institutions in England. The somewhat curious phrasing of paragraph 8 of Schedule 2 enables the Assembly to extend—for very minor purposes, as the Minister pointed out—its legislative abilities beyond the boundaries of Scotland. I thought it was admittedly implicit when I read the debates that such cancelling out of paragraphs 1 and 2 of the schedule as was implied in paragraph 8 was for minor matters.

What I find worrying is the extent to which powers which Parliament in all innocence has given to Ministers are now being and have been abused. In the Act setting out the terms under which, for example, Export Credits Guarantee Department aid might be given to various firms it was implicit that the Minister's discretion related solely to the creditworthiness of the customer and to the nature of the transaction. There was no implication that ECGD support would be withheld from a firm which did not even disobey the law but which did not follow guidelines which had no legal or parliamentary sanction of any kind.

It was not either implicit or explicit that the Industry Act would be used for the purpose of disciplining private industry which did not fall in with the Government's wishes—not with Parliament's enacted legislation, nor even with powers devolved under supplementary legislation on Ministers, but simply with the Government's express wishes.

These points may seem to be quite a way from Clause 33 and paragraph 8 of Schedule 2, but they are not, because it is in provisions such as these that these powers creep in. The Under-Secretary explained very clearly that if a Department were asked to act as agent by a Scottish Secretary that Department would not be accountable to Parliament through its Ministers for those actions which concerned devolved powers only.

Yet, even though those devolved powers might be of a trivial nature involving legislation under Schedule 8 and with across-the-border effects, individuals in England who were involved would be unable to get redress from Parliament. Under Schedule 10, Group 21, relating to—inter alia—dog licensing, control over stray dogs is a devolved matter. Clearly it would be expedient, and indeed sensible, under paragraph 8 of Schedule 2 to extend the legislation to cover dogs which strayed backwards and forwards across the border, but what happens in that event?

I have deliberately chosen a trivial example. A more serious example might concern the movement of oil tankers. If an English person has no redress because the Minister concerned and Parliament are not accountable, it becomes a serious matter. This could be extended in other ways.

There is no mention in the clause of who is to pay for the agency arrangements. I was alarmed when the Under-Secretary explained that the Minister and the Department, acting as the agents, will be in no way accountable to the House of Commons for their actions over devolved issues. To whom will they be accountable, and for whose money? How is it raised, and how do we control this spending if it involves general taxation, because the Chancellor of the Exchequer is Chancellor of the Exchequer for the United Kingdom?

Those are the sort of things that we hoped the Under-Secretary would explain. If he had done so, he would have removed the need to raise certain points relating to other clauses, but he has not done so. Nor has he given any indication of the purposes for which this provision could be used the other way round. The Assembly has the capacity, through its officers, to use for its purposes devolved powers, but the clause makes no reference to accountability. It seems that the Government are doing their best, at a rather curious time, to create within the Departments of State of the United Kingdom a sort of Crown Agency situation with the Scottish Assembly agents, where accountability is not sufficiently under the control of any elected body and we cannot be certain that the Assembly will fulfil the functions of a proper democratic Assembly.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

The right hon. Gentleman is a former Chief Secretary to the Treasury, and I should like to ask him a question of opinion rather than of fact. If he were Chief Secretary to the Treasury, what would he expect to see in terms of financial returns from a Scottish Assembly in the kind of situation that he has described?

Photo of Mr Maurice Macmillan Mr Maurice Macmillan , Farnham

I should like to see laid down firmly in part of the legislation that any use of other Departments outside Scotland as agents of the Scottish Assembly in terms of Clause 33 should be paid for notionally or otherwise out of funds raised by the block grant or other method of financing the Assembly. In other words, as the Under-Secretary suggested, if the Scottish Assembly and its servant, the Scottish Secretary, uses as an agent a United Kingdom Minister, that should be accounted for on the basis of that agency being paid. I recall that the use of Government aeroplanes was accounted for by a Government Department and credited to the Board of Trade in my day. That reduces to that extent the funds available and voted to Scotland by the House of Commons.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

My speech will be shorter than it would otherwise have been because of the intervention of my hon. Friend the Under-Secretary. I take issue with his statement that it is not useful to give examples. It is precisely when examples are given that we tend to get to the truth of the matter and to what will turn out to be the reality. It is one thing to discuss a Bill in highly narrow and legal terms and another thing to work out what is likely to turn out in reality. One of our main functions as politicians is surely to try to foresee the crises and difficulties before they take place.

I regret very much the absence from the debate of my hon. Friend the Member for Berwick and East Lothian (Mr. Mackintosh), because for many years he has had a great deal to say about what he expects of the Select Committees and Standing Committees of a Scottish Assembly. This is precisely the point on which I feel that we shall run into difficulties on this and other clauses. The Assembly will almost certainly set up a number of Select Committees and have a number of Standing Committees. That is how the whole idea of the Assembly hase been partly sold.

Photo of Mr Myer Galpern Mr Myer Galpern , Glasgow Shettleston

Order. I doubt very much whether the question of setting up the Assembly has anything to do with the clause, and I must ask the hon. Member not to pursue that line.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

With respect, Sir Myer, it has a great deal to do with subsection (2)—

9.0 p.m.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

The subsection refers to the responsibility of the authority on whose behalf the functions are discharged". We are talking about local authorities and public corporations. The Select Committee on Housing, if it were to do its job in public, would almost certainly become involved with the South of Scotland Electricity Board, the Hydro Board, the Scottish Gas Board and all sorts of other public authorities. Its demarcations would not be nearly as black and white as they may seem in the pages of a Bill such as this, because the Select Committee could not do its job with these narrow lines of communication. That is precisely where we shall get into great difficulty. A Select Committee of the Scottish Assembly that is worth its salt will not come within narrow, easily defined lines. [Interruption.] If my right hon. Friend the Secretary of State wishes to intervene, I shall gladly give way. He clearly does not wish to intervene. He comes into the Chamber—I accept that he has many other responsbilities—and he keeps up a running conversation. Of course, I shall give way to him if he thinks that I am wrong.

The Secretary of State for Scotland (Mr. Bruce Milan):

I was not talking about my hon. Friend's speech.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

I know my right hon. Friend's attitude to all this and I disagree with it. I say that there is a substantial issue concerning Select Committees of the Scottish Assembly. They would find it impossible to keep within these lines of demarcation.

Photo of Mr Ian Gow Mr Ian Gow , Eastbourne

Those who introduced the Bill included three Scottish Ministers. It will come as no surprise to you, Mr. Murton, to know that the Lord Advocate is not with us. So far he has taken responsibility for not one clause or amendment. We now have the advantage of the presence of the Secretary of State. We would very much welcome it if the Lord Advocate could be put in charge of some of the clauses, and particularly if he could be here when issues of fundamental constitutional importance are being debated.

The Under-Secretary gave the impression that he was almost resentful that a debate was taking place on Clause 33—

Photo of Mr Ian Gow Mr Ian Gow , Eastbourne

—and the intervention of my right hon. Friend the Member for Cambridgeshire (Mr. Pym) was most apt because he pointed out that we were under the gravest handicap and difficulty in debating the Bill properly since so many clauses were going through without debate. I must tell the Minister that we on the Conservative Benches believe that the Government should welcome the prospect of sensible and realistic debate upon every clause and that it is scandalous that clauses in a Bill of such far-reaching importance should go undebated.

I turn now to one aspect of the clause. It gives powers for agency arrangements to be made without stating where the financial responsibility for the services so rendered resides. Although there is a definition in subsection (3) of "relevant authority", there is, as far as I am aware, no definition in the Bill of "public corporation". If I have misunderstood that, no doubt the Under-Secretary will correct me.

I think, therefore, that the Committee is entitled to have a list of the public corporations to which the subsection applies as at today's date. Of course we understand that, particularly if the present Administration remains in power, other public corporations may be created, but the Committee should be told which are the public corporations to which subsection (3) applies.

I assume that among the public corporations to which subsection (3) applies are, for example, the National Freight Corporation and the British Steel Corporation. The British Steel Corporation has factories in Scotland. Therefore, we can assume that agency arrangements might be made between a Scottish Secretary appointed under Clause 21 and the British Steel Corporation. But does it also include the National Bus Company? Does it include Cable and Wireless Limited? Is the company over which Lord Glenamara presides one with which there can be an agency arrangement made by a Scottish Secretary? Are we really to envisage that the noble Lord will make a journey from London to Edinburgh and will be empowered to conclude an agency agreement with a Scottish Secretary?

Is the National Enterprise Board included in the definition of "public corporation"? Is the National Enterprise Board a public corporation? Are we to see the Chairman for the time being of the National Enterprise Board concluding agency agreements with a Scottish Secretary? These are matters which seem to us to be of very great importance, but because there is no definition of "public corporation" we cannot tell whether the kind of situation that I have described will materialise.

I hope that the Under-Secretary will intervene again and answer the pertinent points which were put by my right hon. Friend the Member for Farnham (Mr. Macmillan), whose arrival on these Benches is as reassuring for us as it is frightening to the Government Front Bench. It is certainly incumbent on the Under-Secretary to answer the points put by my right hon. Friend. Even though we do not have the advantage of the Lord Advocate's presence. I hope that we may still have a definition from the Under-Secretary and a list of the bodies which at present are included in the term "public corporation". Is Lord Glenamara's company included, or is it out?

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

My hon. Friend the Member for Eastbourne (Mr. Gow) divided the responsibilities which might be delegated to a relevant authority into political responsibility and financial responsibility. Perhaps I may add a third—legal responsibility.

I dare say that many right hon. and hon. Members in this Committee are more familiar with English law than they are with Scottish law. [Interruption.] I do not say all, but looking round the Chamber at this moment I suspect that at least half of the right hon. and hon. Members present are unfamiliar with Scottish law. I therefore join my hon. Friend in very much regretting the persistent and constant absence of the Lord Advocate and his failure to explain these points to those of us who are ignorant of Scottish law.

This is no academic point. If, for the sake of argument, a nuclear reactor were to be built in Scotland, and if, for the sake of argument, it were to be decided to delegate from England some rights to Scotland in order to set up that reactor, and the reactor were later to blow up, the question who was responsible in tort for any negligence—or whatever tort there might be in Scottish law that would be relevant to such an action—might be very important indeed.

Would the primary responsibility lie with the English authorities, or might it lie with the Scottish authorities to which the duty of building the reactor had been delegated? This is an important matter; it is not a mere academic matter. [An HON. MEMBER: "That matter is not devolved."] It is said that this is not devolved. It is a bad example, but there are various activities that can be devolved and that could give rise to substantial legal responsibility. What the Committee would like is a proper exposition from the Lord Adovcate of the law of tortious liability, in order to resolve these real doubts.

Photo of Mr Harry Ewing Mr Harry Ewing , Stirling Falkirk and Grangemouth

With the permission of the Committee, may I say that when I intervened earlier I was trying to be helpful. Apparently that has not been the case. Despite the pleas from both sides of the Committee, it cannot in future blame Government Ministers if they decide not to intervene in the middle of a debate.

I do not believe for a minute that the right hon. Member for Farnham (Mr. Macmillan) does not understand the simplicity of the clause. I have never been one for trying to find a complex argument where none exists, and there is no complexity about this clause at all. I rest on the very simple point that what it provides is a basis on which a Scottish Secretary can enter into an agency arrangement with a United Kingdom Minister, or a United Kingdom Minister can enter into an agency arrangement with a Scottish Secretary, but if neither of the two wants to do so the agency arrangement cannot be entered into. For the life of me I do not see anything more simple than that.

There is nothing complex or complicated about this clause. It has its precedent in the Northern Ireland Constitution Act 1973. It is not even an innovation that is being introduced into this legislation. It is really a simple and straightforward clause to allow the Scottish Assembly and the United Kingdom Government, through its Ministers, if they so desire, to enter into an agency arrangement. If they do not desire to do so, the agency arrangement simply will not take effect.

Photo of Mr Maurice Macmillan Mr Maurice Macmillan , Farnham

As it is so simple, what is the parliamentary method for Parliament's preventing the United Kingdom Minister entering into an agency arrangement which the Government wish to enter into but which Parliament does not?

Photo of Mr Harry Ewing Mr Harry Ewing , Stirling Falkirk and Grangemouth

The right hon Gentleman has been here for much longer than I have. Each United Kingdom Government Minister is responsible to the House. There is no point in the right hon. Gentleman shaking his head and saying that a United Kingdom Government Minister is not responsible to the House. He is, and he would be prevented from entering into an agency arrangement with the Scottish Assembly if the House said he had not to do so. It is as simple as that. There is nothing complicated in it. I am surprised at the heavy weather that has been made in respect of this clause.

My hon. Friend the Member for West Lothian (Mr. Dalyell) asked for examples. I thought it would be wise to refrain from giving examples, but one of the best examples is that of the Property Services Agency. That will not be a devolved agency, but it has offices, workpeople and all the rest in Scotland.

If the Assembly decides to set up a Select Committee, that Select Committee obviously might want to call witnesses. But that does not mean that the Select Committee would have entered into an agency arrangement. It would not. The clause is about an authority entering into an agency arrangement.

I finally turn to the hon. Member for Eastbourne (Mr. Gow). It was grossly unfair of him to say that I seemed to resent a debate on this clause taking place. I have never resented debates on anything. I would welcome a debate with the hon. Member, in Eastbourne, on the question of devolution. I take the strongest possible exception to the allegation that has been laid at my door. The hon. Member should know much better than to display the ignorance that he has displayed tonight in making such an allegation. If he had any decency at all he would withdraw that unfounded and unsubstantiated allegation.

9.15 p.m.

Photo of Mr Ian Gow Mr Ian Gow , Eastbourne

I assure the Minister that I intended no discourtesy. He has always treated the Committee with great courtesy. I said that in his earlier intervention he had given the impression—it may well be that it was a false impression—that he resented the fact that we were debating a clause to which he ascribed little importance but we ascribe a great deal of importance. I assure him that I intended no discourtesy to him.

Photo of Mr Harry Ewing Mr Harry Ewing , Stirling Falkirk and Grangemouth

If that is the best I can get in the way of an apology, I shall accept it. What is said in this House and the way in which it is read into the record are two different things. Some things that are said in jest read quite seriously in writing. The hon. Member should be more careful about the allegations he makes in future.

The hon. Member asked for some examples of public corporations. One example is the Post Office—a public corporation set up under the Post Office Act 1968. This is not a nationalised industry in the sense that the Coal Board is. There are other good examples of public corporations. I stress the simple point that this is just a clause to enable agency arrangements to take place between the Assembly and the United Kingdom Government.

Question put and agreed to.

Clause 33 ordered to stand part of the Bill.