Clause 35

Orders of the Day — Scotland Bill – in the House of Commons at 12:00 am on 7th December 1977.

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POWER TO MAKE CHANGES IN LAW CONSEQUENTIAL ON SCOTTISH ASSEMBLY ACTS

Photo of Mr Maurice Macmillan Mr Maurice Macmillan , Farnham

I beg to move Amendment No. 115, in page 16, line 15, after 'Kingdom', insert 'insofar but only insofar as it pertains to Scotland'.

Photo of Mr George Thomas Mr George Thomas , Cardiff West

With this we may take Amendment No. 118, in page 16, line 21, after 'section', insert 'if it affects any part of the United Kingdom whose government is not changed by this Act and'.

Photo of Mr Maurice Macmillan Mr Maurice Macmillan , Farnham

Before I deal with the amendment, may I make a suggestion which may be appropriate for my right hon. Friend the Member for Cambridgeshire (Mr. Pym) who is now occupying the Opposition Front Bench and the Government to consider.

I suggest that the Business Committee should be reconvened to see whether we may take "injury time" out of the proceedings on this Bill. What are already short debates on important clauses are being further curtailed by the necessary and equally important matters relating to Europe, the Polish ships order and other matters, but it seems a little hard that when we are under a timetable procedure we are unable to discuss such important matters as were raised a little earlier by the hon. Member for West Lothian (Mr. Dalyell) relating to a number of groups of people in Scotland who will be affected by this legislation.

I hope that these matters will be discussed between the Front Benches so that we may not lose any time that has been allocated to us. This will be unlikely to add more than three-quarters of an hour to the proceedings and will not normally mean the Committee sitting after midnight. I hope that this matter will be considered through the usual channels.

If I may deal with the amendment, I hope during this discussion to obtain an answer to the question I put to the Minister of State last night on Clause 34. I shall ask it again because it is also relevant to Clause 35 and to Amendment No. 115. If a United Kingdom Minister, whether acting on his own or as agent for a Scottish Secretary or Scottish Assembly, wishes to obtain information from a Scottish Secretary or the Assembly, he can do so if the Secretary of State for Scotland so requests. However, this House cannot insist that a Minister, who is accountable to us in theory at least, should be able to obtain through the Secretary of State from a Scottish Secretary information relating to actions of Ministers, who again are theoretically responsible to this House, when acting as agents or on their own. It is an important factor that this House cannot get its hands on such information, and the situation will be doubly uncertain if this amendment to Clause 35 is not accepted by the Government.

Clause 35 as it stands means that the Government of the day can use their majority to push through an order in council on subordinate legislation which under the rules of this House cannot be amended but must be accepted or rejected. Such an Order in Council can enable the Assembly to legislate for the United Kingdom. This legislation will mean that we shall be unable to obtain information from the Assembly because it cannot be forced to provide such material. That situation arises because of our failure to amend Clause 34 since an Order in Council allows the Assembly to legislate for other parts of the United Kingdom. United Kingdom Members of Parliament, Scottish as well as English, will be powerless to obtain information which they require in order to see what the Assembly is up to. That Assembly can even alter the provisions of this Bill because it says so specifically.

The Government by Order in Council can alter the provisions of this legislation once enacted, including Schedule 2. Schedule 2 governs the legislative competence of the Assembly. Therefore, by Order in Council which is unable to be amended by any Member of this House, subject—and one is grateful for small mercies—to the affirmative procedure, the Government may use their majority to alter the legislative competence of the Assembly, whether the Assembly likes it or not, and indeed whether it is requested by the Assembly. They can increase or decrease those powers. This will be asking for trouble. If the powers of the Assembly are increased at the expense of this House, that will cause trouble here, and if its powers are decreased in other ways it will cause trouble in the Assembly.

I shall not repeat previous discussions on the relationship between a devolved Assembly and this House. The nature of our amendments makes that situation clear. It is fitting in some ways that Clause 35 should be the first clause under the subheading that always tends to be a most sinister element in a Bill—that is, the subheading that refers to the supplementary and reserve powers that the Government are seeking and which they are, as usual, saying they will not need to use, but which will be used in fact by some later government to the detriment of the liberties of the people.

We have received, as usual, during the course of debates on the Bill, the normal ministerial defences of the extension of powers. We have heard the defence that as in the Victorian story of the illegitimate child—this extension of power is only a little one and not very important. We have heard the defence that the situation that has been described by hon. Members on both sides of the House is unlikely to occur. I do not accept that any more, and I hope that the rest of the House and the country will not either, for time has proved it false.

I was a junior Treasury Minister in 1963 and I remember the arguments about ministerial discretion put forward during the course of legislation on export credit guarantees. Even then we were not strangers to incomes policy, but at no time then did anyone imagine that credit would be refused to a firm to force it to carry out an incomes policy—that was not even a policy but simply a guideline—and that it would be used to expand Government by prerogative away from the will of Parliament and the people.

Throughout their history this Government have made any defence of unlikelihood untenable. They have allowed powerful groups to operate beyond the rule of law and have themselves operated unconstitutionally and extended Government prerogative to an extent that would make a Stuart green with jealousy. They are continuing to do that through the legislation introduced in this clause.

There is a total of four amendents down to this clause, and, together, they are intended to do two things. They would legitimise the Long Title of the Bill. The Long Title now says: To provide for changes in the government of Scotland and in the constitution and functions of certain public bodies. As the clause now stands, it is plain that "certain public bodies" includes the Government of the whole of the United Kingom, as well as affecting hon. Members and the Crown. If it were amended the Bill would indeed be about the government of Scotland.

The second object of the amendments is to make the marginal description of Clause 35 truthful. Not only is the Title entirely false as it now stands, but so is the marginal description of the clause. It says that it is a clause giving Power to make changes in law consequential on Scottish Assembly Acts. It is more than that. However, it would become only that if one of the amendments—I think it is Amendment No. 117—were accepted by the Government because that would remove the words "or expedient" so that the Bill would read: further provision as appears to Her to be necessary in consequence of any provision made by or under any Scottish Assembly Act The removal of the words "or expedient" would go some way towards justifying the description of this clause as making consequential changes following Scottish Assembly Acts. No doubt the Government will say that is what they wish to use the clause for, so why not amend the clause so that it cannot be used for another purpose—as it can be now?

Photo of Mr John Smith Mr John Smith , Lanarkshire North

May I draw the attention of the House to the fact that the right hon. Gentleman was a member of the Administration that brought before the House the Northern Ireland Constitution Bill 1973 and that there is an almost entirely similar provision in Section 38(2) of that legislation. Did the right hon. Gentleman feel these doubts at the time that that was discussed?

Photo of Mr Maurice Macmillan Mr Maurice Macmillan , Farnham

Even the most stubborn, bloody-minded expatriate Scot can learn from experience. I wish that the Government Front Bench could do so, too.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

On a point of order, Mr. Murton. I am probably the last hon. Member here who should say this and it should not lie in my mouth, but the Committee is in difficulties because it seems that the right hon. Member for Farnham (Mr. Macmillan) is discussing the question whether the clause should stand part of the Bill. I ask whether we are on Amendments Nos. 115 and 118. Some of us think that Amendment No. 430 is extremely important. Does the Chair wish us to make our speeches before the guillotine in one lump and leave it at that?

Photo of Mr George Thomas Mr George Thomas , Cardiff West

I disagree with that point of order. The right hon. Member for Farnham (Mr. Macmillan) is speaking to his amendment, and I do not intend to amend the selection in any way.

Photo of Mr Maurice Macmillan Mr Maurice Macmillan , Farnham

I take the point made by the hon. Member for West Lothian, and I, too, think that Amendment No. 430 is important.

Amendments Nos. 115 and 118 would confine subsections (1) and (2) to Scotland and the people of Scotland. The wording of the two amendments is slightly different but, together, they are designed to confine the clause to Scotland. Amendment No. 430 is part of the same scheme, because there is a danger of the powers of the Act being extended if there is an Order in Council. That would automatically happen if Amendments Nos. 115 and 118 were not carried. If they were not carried, Amendment No. 430 would be even more important. Equally, Amendment No. 117 is included in the amendments that we are now discussing because that would remove the expediency reason for using the powers contained in the clause. It is therefore the weakest of the amendments.

Photo of Mr George Thomas Mr George Thomas , Cardiff West

Order. I said that we were now discussing Amendments Nos. 115 and 118 together, in answer to the hon. Member for West Lothian who raised the point, and I said specifically that the selection was shown in the way that it is. We are discussing Amendments Nos. 115 and 118 only.

Photo of Mr Maurice Macmillan Mr Maurice Macmillan , Farnham

I am sure that if the Committee were wise enough to carry these amendments the point that the hon. Member for West Lothian wanted to make in the other amendments would be covered. If one considers how the wording of Amendments Nos. 115 and 118 would alter it, the clause becomes clear. I shall not read them now in order to save time.

If one asked what these amendments would take away from the people of Scotland the answer would be "Nothing". That is partly because Schedule 2, paragraph 8 enables the Assembly to legislate on borderline cases. We have already discussed that and therefore, from the Assembly's point of view there will be no need for extra powers to enable the Assembly to legislate for the United Kingdom in the way that these amendments seek to prevent. The amendments take away the power of the Executive to decide, in a form unamendable by the House, to use its majority to put forward changes that could not be altered, that, because of what happened on Clause 34, could probably not be questioned in operation, and that would thereby increase the power of the Executive.

4.30 p.m.

It one looks at the whole group of clauses in this part of the Bill, one can see that they are a cynical preparation that will enable the Bill, once it becomes an Act, to be extended to cover separation or federation with the minimum amount of amendment and possibly even by Order in Council. That seems to be possible under Clause 35 as it stands. It is a more dangerous extension of administrative power than we have seen for a long time and it is more likely to cause conflict than anything we have seen for some time. It is all the more sinister because, in putting it through, the Government seem almost unconscious of the dangers they are about to face.

Photo of Mr Eldon Griffiths Mr Eldon Griffiths , Bury St Edmunds

Can my right hon. Friend see any reason, under the clause as it stands, to prevent a Scottish Assembly from insisting on separation and the Government in this country making an Order in Council, consequential upon that, permitting the separation of Scotland from the United Kingdom? Where is there anything in the clause, if it is not amended, to prevent that?

Photo of Mr Maurice Macmillan Mr Maurice Macmillan , Farnham

That is a valid point which can be developed later. I had deliberately left out the awkward constitutional points which this could raise, but since my hon. Friend has brought them in, I must say that there is something extremely distasteful about using an Order in Council, which is debatable, but not amendable, and to put it into a Bill in this form, to make major constitutional changes that will put the Crown in an extremely difficult position. No Privy Councillor should do that.

Unless the amendments are accepted, the Bill will apply to the United Kingdom. I do not see how any amendment or new clause referring to the government of the United Kingdom, England, Wales or Northern Ireland in relation to Scotland and the United Kingdom as a whole can be out of order. If the amendments are not acceptable to the Government, the Committee must look to new clauses—some of which have already been put down and will be followed by others—to limit the powers of Scottish Members here and to discuss their numbers and constituencies and the problems of regionalism in other parts of the United Kingdom. There will also have to be new schedules listing those matters which must never be devolved. That negative power will be required in any Act that contains this clause as it stands.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

Last night, the Minister of State referred to nightmares that I might have about the Bill. In the nightmares, one canard which does not feature is one of the issues implicit in Amendment No. 115. I do not think that it does the case which I and others put forward very much good to claim that the Scottish Assembly will be able to make many laws affecting England. There may be minor problems from time to time, but I do not see this as a major problem, and I wish to put that on the record.

Some of us want to hurry on to Amendment No. 430, so let me just put this question to the Minister of State. Is it realistic to say exactly what the devolved and non-devolved powers are to be?

The memorandum of the Faculty of Advocates issued on 22nd February 1977 says on page 3, paragraph 4: the Faculty expressed the view that it was impossible to draw a satisfactory line of demarcation between devolved and non-devolved matters in the manner proposed in the White Paper. The provisions in the Bill, which are discussed in more detail below, reinforce that view. Of course, that was the Scotland and Wales Bill, but I get the impression—though the Faculty has not yet produced a memorandum on this Bill—that many of the difficulties that it went on to outline between devolved and non-devolved matters are continued in this Bill.

May I ask the Minister of State, when he is speaking for the Government and as a lawyer—in the presence of the Lord Advocate—whether in light of the fears expressed by the Faculty, the distinction between devolved and non-devolved mat ters is adequate? This is an issue which arises at various stages in the Bill and not least out of Amendment No. 115.

Photo of Mr Graham Page Mr Graham Page , Crosby

The Minister of State has just used the Northern Ireland Bill as a precedent, but he will realise that it was passed in very different circumstances from the passing of this Bill. In fact, it was passed in emergency circumstances. Are we now discussing this Bill in emergency circumstances in Scotland? I do not think so. I think that we are discussing a straightforward and substantial constitutional change. The clause makes one of the most major changes in the whole Bill.

The hon. Member for West Lothian (Mr. Dalyell) said that he did not think that the Scottish Assembly would wish to legislate for England or for any other part of the United Kingdom than Scotland, but that is not the point of the clause. It gives power to the Secretary of State here, by Order in Council, to alter the laws of the United Kingdom consequential upon a Scottish Assembly Act.

Photo of Mr Harry Gourlay Mr Harry Gourlay , Kirkcaldy

Subject to the approval of the House.

Photo of Mr Graham Page Mr Graham Page , Crosby

Subject to approval by having before us a draft which cannot be debated line by line or amended.

Photo of Mr Harry Gourlay Mr Harry Gourlay , Kirkcaldy

We shall be able to vote.

Photo of Mr Graham Page Mr Graham Page , Crosby

Indeed, we shall be able to reject it, but why bother with the Bill at all if that sort of legislation on major constitutional matters is to be pushed through by the majority in power at the time?

Let me give a fairly simple example. Under the schedule of devolved powers, the Scottish Assembly can legislate on criminal penalties. Suppose that it decided to pass an Act restoring capital punishment. I admit that I should be delighted, but take the case of two muggers who mug someone in Liverpool and then go to Glasgow and mug someone else there. Say that one returns to Liverpool and is convicted there and the other remains in Glasgow and is convicted there. The one in Glasgow might get thrashed while the one in Liverpool might be put on probation. There would be an outcry. People would say that we cannot have that and that it is most expedient for the same penalties to apply in Scotland and in England.

Photo of Mr Gordon Wilson Mr Gordon Wilson , Dundee East

I am not sure which courts the right hon. Gentleman has been in recently. My impression was that when offenders came before the same court there could be different punishments for the same offences, depending on the circumstances. In any event, the laws in Scotland are different, and in some cases the penalties for certain offences and crimes are different. I cannot see what the right hon. Gentleman is driving at.

Photo of Mr Graham Page Mr Graham Page , Crosby

When I endeavour to give a colourful example, it is natural that hon. Members should try to pick holes in it. Let me pick a hole in what the hon. Member for Dundee, East (Mr. Wilson) said. Let us suppose that birching was made mandatory in Scottish law. That is one case in which the Scottish law might be changed. There might be two people who have exactly the same blame and responsibility for an offence but would be punished differently. There would then be an outcry that the law and the penalties should be the same in both countries, and, therefore, it would be necessary or expedient under the clause to alter the laws of the United Kingdom.

Photo of Mr Gordon Wilson Mr Gordon Wilson , Dundee East

I know that the right hon. Gentleman is experienced in legal matters, despite what I indicated earlier. Is he suggesting, because of his contention that the same laws should apply and that there should be the same penalties in all parts of the United Kingdom, that Scots law should be integrated with English law to form a common code under which each citizen of the United Kingdom could live? The right hon. Gentleman is on the horns of a dilemma. He has to admit that the Scottish legal system is distinct and separate and that the people of Scotland want it that way, but he is also trying to get round the fact that the system needs to be nurtured and taken care of within its own legislative framework.

Photo of Mr Graham Page Mr Graham Page , Crosby

The hon. Gentleman is suffering from two misconceptions. I am not advocating that the law should be the same. I am saying that it may be thought necessary or expedient that it should be the same. [Interruption.] I seem to have lost the attention of the Committee for some reason, but it is only a temporary distraction.

One can apply this argument not only to the example of corporal punishment but to any aspect of law where the Secretary of State here will think it necessary or expedient to have uniformity in the law. That is not legislating for Scotland. It is legislating for the United Kingdom to bring the law into line with some provision of a Scottish Assembly Act, which can come before the House of Commons by an Order in Council under Clause 35. That order need not apply to Scotland in any way. Under this clause it can be justified by the Minister who advises the Crown saying that it appears to him that it is necessary or expedient to have uniformity in the law on the subject in question. The Minister therefore lays an Order in Council in draft before the House for affirmative approval.

It has been suggested that, because the draft order will be laid before the House and will need affirmative resolution before it is passed, that procedure is quite safe because we can debate the order and possibly even reject it against the Government's majority at the time. I am sure that hon. Members know perfectly well what happens to a draft order when it is laid before the House and is backed by the Whips: it goes through. We cannot debate it or put down amendments to it. It is not like ordinary legislation at all. It can be steamrollered through by the Government in office, justified merely by the fact that an Act of the Scottish Assembly has been passed—uncontrollable by the House of Commons—which makes it, in the opinion of a Secretary of State here advising Her Majesty, necessary or expedient that we alter our law here.

4.45 p.m.

These amendments would prevent such a happening because they would restrict anything done by such an Order in Council to Scotland. It might well be necessary, and the House might so consider, that the Secretary of State here should advise Her Majesty to make an alteration in the law of Scotland to correct something which the House thought had been wrongly done by the Scottish Assembly. These amendments would restrict such matters to alterations in the law of Scotland.

As my right hon. Friend the Member for Farnham (Mr. Macmillan) said, the amendment would legitimise the clause in line with the Long Title— changes in the government of Scotland. But the clause as it stands provides for alterations in the laws of the whole United Kingdom, and to that extent it ought not to remain in the Bill unamended.

Photo of Mr Eldon Griffiths Mr Eldon Griffiths , Bury St Edmunds

I shall be brief, having in mind the point already made by the hon. Member for West Lothian (Mr. Dalyell), that there are other important amendments which the Committee wishes to consider. But I must protest at the outset that it is a disgrace to the House of Commons that matters of this importance have to be dusted aside without adequate discussion and that further amendments on the Notice Paper will not be dealt with as they should be by a sovereign Parliament simply because a guillotine has been imposed and, what is more, made worse by the fact that we are not even allowed the injury time consequent upon the statement made by the Prime Miniter.

I ask you, Mr. Murton, to take seriously the initial point made by my right hon. Friend the Member for Farnham (Mr. Macmillan) when he suggested that the Business Committee ought to consider whether the guillotine procedures could at least give us the injury time that we lose as a result of statements. [Interruption.] This is a matter which concerns all parties in the House, and I hope that the hon. Member for Coatbridge and Airdrie (Mr. Dempsey) will agree that it should be put and will support it.

The clause as it stands would provide a licence to the Government of the day to commit a constitutional outrage on the English. Whether there be precedents in Northern Ireland legislation or not, what it does, in effect, is to permit a subordinate Assembly in one relatively small part of the United Kingdom to trigger off changes in the law, made under delegated powers, which are unamend able and which will affect the rest of the population.

There are, of course, the two provisos. The first is that the Government of the day should believe such a change to be necessary or expedient. But Governments always think that their legislation is necessary or expedient. Otherwise, they would not bring it forward. The second proviso is that the draft Order in Council shall be laid and approved by both Houses of Parliament. Both my right hon. Friend the Member for Farnham and my right hon. Friend the Member for Crosby (Mr. Page) have plainly shown that that does not permit effective amendment, modification or revision. That procedure means only that, perhaps late at night, a major change will be brought forward and be steamrollered through without discussion.

We are not speaking here of minor changes. We are speaking of changes which can affect the lives of all our constituents in any of the matters within the purview of the Scottish Assembly—matters affecting education, transport and so forth—the warp and woof of the life of the people of this country.

If the Scottish Assembly were to decide to extend its powers, if it wished for example, to move into fields different from those within the Bill, and the Government of the day were to conclude that it was necessary or expedient by a draft Order in Council to permit that action to be legitimated, all that the Government would need to do under the clause as it stands would be to lay such an Order in Council and bring it before the House. Then, if there were a majority available to them, that would be the end of it, and the Scottish Assembly's action would be thus legitimated.

Photo of Mr John Smith Mr John Smith , Lanarkshire North

The hon. Gentleman will bear in mind that any such action by the Scottish Assembly would be ultra vires under the powers provided by the Bill.

Photo of Mr Eldon Griffiths Mr Eldon Griffiths , Bury St Edmunds

As the clause stands, if the Government took the view that it was necessary or expedient and consequential upon an action of the Scottish Assembly, it would be open to the Minister of the day to bring before the House an Order in Council of that kind.

Photo of Mr John Smith Mr John Smith , Lanarkshire North

With respect, I remind the hon. Gentleman that he suggested that the Assembly might extend its own powers and that that would be legitimated by use of the Order in Council. I am pointing out that the Assembly would have no such powers. It would be ultra vires under the powers in the Bill, so the condition precedent which would have to be met to make it "in consequence of" could not arise.

Photo of Mr Eldon Griffiths Mr Eldon Griffiths , Bury St Edmunds

With respect to the Minister, I ask him to examine line 16 of Clause 35, where he will see the words in brackets: including any provision contained in this Act. It is precisely "this Act" which sets out where the vires stand or do not stand, and, as I see it, so long as those words within brackets remain, it would be possible for the Scottish Assembly to move into areas which its majority might legitimately think that its competence included. The Government might agree or disagree. I do not wish to carry on an extended argument, but does the Minister wish to intervene again?

Photo of Mr John Smith Mr John Smith , Lanarkshire North

I do not wish to bandy words with the hon. Gentleman across the Floor, but the Committee ought to remember that the point of the clause is that it has to be "in consequence of" an Act of the Scottish Assembly. The Assembly has no power to extend its powers, so provision could not be used in the way suggested by the hon. Gentleman. I leave it at that, but I want the Committee to be under no misapprehension such as that into which the hon. Gentleman, perhaps quite innocently, may be leading it.

Photo of Mr Eldon Griffiths Mr Eldon Griffiths , Bury St Edmunds

I am obliged to the Minister, and I shall not continue to debate with him across the Floor, but I ask him to look carefully at the clause. I shall be obliged if he will put in writing to me his reading of the situation.

Photo of Mr Eldon Griffiths Mr Eldon Griffiths , Bury St Edmunds

I come now to my second point, a simple and practical point, and I shall be brief because I know that others wish to speak and we want to get on. By these amendments we seek to prevent an English backlash. I must give the Minister a warning. If we have a situation in which the English believe themselves to be discriminated against, as, indeed, they are by the Bill, and they find that, because the Scottish Assembly has taken some action—the Minister and I can debate whether it be within the vires or not—touching education, punishment, local government or transport, and the Government of the day conclude that it is necessary or expedient to extend that action of the Scottish Assembly to the rest of the United Kingdom, that will be done.

But I warn the Minister that the English, though slow to anger, will sooner or later grasp what is being done. They will come to understand that the Scottish over-representation in the House of Commons is working to their disadvantage and that special and unique provisions made available to the Scottish Assembly are not available to the English. They will conclude that they are being discriminated against, and their anger, though slow to rise, will be sure, fierce and never ending.

If the Minister does not like these amendments, let him say how he will achieve their purpose, which, quite simply, is to prevent a situation in which actions of the Scottish Assembly can trigger off Orders in Council which apply to the English without the English representatives in the House of Commons having any opportunity by argument to amend, to revise, or to modify such Orders in Council brought in by the Government of the day.

The representatives of the English will be able to vote—the Minister is right about that—but they will not be able to amend, revise or modify anything brought before the House under delegated legislation arising from some action of the Scottish Assembly.

That cannot be right. I warn the Minister that, unless he can deal with this point, he will be sowing the seeds of great anger among the English, anger which he and I will come to regret.

Photo of Mr Charles Morrison Mr Charles Morrison , Devizes

I agree totally with what my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) said about over-representation in Scotland. I should like to see that overrepresentation continue because of the nature of Scotland, but it is a fact that is as clear as daylight that from the moment the Bill becomes an Act, if it does, the days of over-representation for Scotland are limited. The pressure from England for a reduction in the number of Scottish Members will grow swiftly.

I cannot agree with my hon. Friend about appealing to the Government to allow "injury" time. It is a farce to pretend that there is proper opportunity to debate the full implications and provisions of the Bill. If there were injury time it would, in the nature of things, clearly be limited. It might have the effect of salving the Government's conscience, but it would do nothing in reality to reduce the farce. It is better to leave the Government to get on with it and to take the full blame for the inadequate opportunity that they are allowing us to debate the Bill.

Clause 35 as it stands is yet another example of how inadequate is the limitation of the extent of the powers and provisions of the Bill. The hon. Member for West Lothian (Mr. Dalyell) rather surprisingly said that on this occasion he was not unduly concerned. I think I am right in saying that he said that the clause is not one of the major problems, although occasionally it might cause minor problems. The hon. Gentleman may be proved right, but there is no certainty about what he said.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

How were the citizens of Devizes or Bury St. Edmunds affected by what was done in Stormont?

Photo of Mr Charles Morrison Mr Charles Morrison , Devizes

I do not think that that is a reasonable parallel. We are dealing with a totally different situation. What may or may not have happened in Stormont in the past is not necessarily a precedent for what might have happened if Stormont had continued to exist.

I emphasise a point on which my hon. Friend the Member for Bury St. Edmunds touched. When the electors in England vote for a Member of Parliament, whether their choice is elected or not, they expect the person elected to be responsible, so far as he or she can be, for the course of events controlled until now from the House of Commons. If the clause is left unamended, the majority choice of the electorate will no longer be in such a position of power to exer cise influence on events. There is no doubt in my mind but that the Assembly will not merely exercise direct control in Scotland. The fact is that it will affect the course of events and the nature of the law in England.

Photo of Mr James Dempsey Mr James Dempsey , Coatbridge and Airdrie

I am interested in the argument that the hon. Gentleman is advancing and I ask him to answer a question. When he talks about the Scottish Assembly influencing the law of England, is he suggesting, for example, that the Scottish Assembly could activate an issue presented under the auspices of the Secretary of State in an Order in Council to interfere with the immigration laws of this country?

Photo of Mr Charles Morrison Mr Charles Morrison , Devizes

That is precisely what I am suggesting. In my interpretation of the clause, that is what could easily happen if the Bill should become an Act.

5.0 p.m.

When the Minister of State replies, he will argue that that is not the case and that the Bill is not like that. I suspect that he will argue as he did when we were debating certain consequences of Schedule 2(8), but in my opinion we must judge the Bill as it is drafted and not on the basis of the opinion of the Minister of State. The hon. Gentleman may put a reasonable and attractive interpretation upon what is in the Bill, but there is no certainty that others will interpret this measure, should it become an Act, in the same way.

I hope that for once the Minister will accept an Opposition amendment. If he does not, I believe that yet again he will be adding to the sum total of conflict, muddle and disillusionment among the public. I am thinking of the public in England as well as in Scotland, because, above all, it is those in England who will be indirectly affected by what we are now debating.

Photo of Mr William Small Mr William Small , Glasgow Garscadden

Once again there is the appearance of the English disease and the repetitive position of the English. All I know about the English is that they are haunted by ghosts and ghoulies, usually headless, clanking their chains through their castles enveloped in fear and terror.

This is the most poorly drafted amendment that I have ever seen. It seeks to insert insofar but only insofar as it pertains to Scotland". I hope that some legal luminary will be able to tell me the meaning of that repetitive phrase. This legal jargon is not even literal. It does not mean a thing. To that extent it is an imperfect amendment.

Photo of Mr Graham Page Mr Graham Page , Crosby

The hon. Gentleman used the phrase "to that extent", which is "insofar".

Photo of Mr William Small Mr William Small , Glasgow Garscadden

Very well, let us say pro tanto. I want to clear my mind and the minds of others. It may be that those who have tabled the amendment are talking to the innocent. The meaning of the clause is perfectly simple in every aspect. It is well drafted.

It seems that the right hon. Member for Farnham (Mr. Macmillan) is afraid of a red Socialist revolution and an Assembly in Scotland. That is his great fear. He need have no fear of the SNP, because at best its members are tartan albinos. They have no red blood in their veins. If we talk about the Loch Ness Monster or the White Stag of Arran, these picturesque topics will surely attract the English to visit the Assembly to observe it operating. They will have an interest in the preservation of Scotland's environmental amenities.

Photo of Mr Gordon Wilson Mr Gordon Wilson , Dundee East

It is a great privilege to follow the hon. Member for Glasgow, Garscadden (Mr. Small), bearing in mind the interesting phrases that he produces. I am sure that we all enjoy his contributions.

It has been said that this is a fairly simple clause. So it is. We are dealing with an amendment that seeks to weaken it and to prevent it from taking the effect that the Government have in mind.

I know that we cannot fully trust margin notes, but in this instance the note reads: Power to make changes in law consequential on Scottish Assembly Acts". I suspect that the Minister will explain some of the trip wires that exist before any Scottish Assembly Act can take effect and before the procedure under the clause can be operated.

It is clear that many of the worries expressed, particularly by Conservative Members, have been exaggerated, and if the hon. Member for West Lothian (Mr. Dalyell) does not fear the consequences of this particular clause and says it is a de minimis situation which will rarely be invoked, hon. Members need not worry too much about it [Interruption.] I hope always that the arguments are related to the amendment and the clause.

Photo of Mr Charles Morrison Mr Charles Morrison , Devizes

Although the fears of the hon. Member for Dundee, East (Mr. Wilson) and the hon. Member for West Lothian (Mr. Dalyell) may not be very great, is the hon. Member convinced that our interpretation of the clause cannot be realised?

Photo of Mr Gordon Wilson Mr Gordon Wilson , Dundee East

I would probably like to see the clause in much stronger terms allowing for continual upgrading of the powers of the Assembly. I am not sure that I am satisfied with the clause as at present worded, but that is to approach the matter from the other point of view.

Photo of Mr Russell Johnston Mr Russell Johnston , Inverness

Does the hon Member not agree that it would be most helpful to the Committee on this difficult matter if some of the shadow Law Officers were present?

Photo of Mr Gordon Wilson Mr Gordon Wilson , Dundee East

Whether the shadow Law Officers or the Law Officers themselves are present is a matter for the Government and the Opposition to determine.

Photo of Mr Maurice Macmillan Mr Maurice Macmillan , Farnham

The hon. Member for Dundee, East (Mr. Wilson) made the valid point that he wanted to see a stronger wording of the clause. One of the difficulties with the clause without our amendments is that it is possible for the Assembly to act in such a way that a Minister would be entitled to say that an Order in Council laid before this House would be consequential, when the purpose of that Order in Council was to reduce the powers of the Assembly consequent upon its actions and would thereby lead to conflict between the Assembly and this House.

Photo of Mr Gordon Wilson Mr Gordon Wilson , Dundee East

The valid point is the one about conflict. However, I would look at the matter from another aspect. One of the repeated arguments against this Bill is that the Scottish Assembly would be in a continual state of trench warfare with Whitehall and Westminster. The clause seeks to provide an area in which there can be co-operation, where the rigidity of statutory terms in the Bill can in certain respects be relaxed, and where, should difficulties arise under Clause 35, action can be taken through an Order in Council to remedy those difficulties.

If hon. Members have any worries about the situation, they must surely be alleviated by the fact that an order must be laid before and approved by each House of Parliament—not just the democratically elected House of Commons, but the undemocratically selected or inherited House of Lords. The two Houses of Parliament, dominated by a substantial English majority, have, unfortunately, the last say. So I cannot see why this set of amendments is necessary in the context of Clause 35.

If hon. Members were worried about the prospect of difficulty between the Scottish Assembly and the House of Commons, it could arise over the delay in getting enabling legislation through the House of Commons, thus creating a situation whereby Scottish Assembly Acts are partly in force, but are affected by the need for parallel legislation within the House of Commons. We know and have had experience of this in relation to Scots law when there tends to be a delay before the law of Scotland is given effect. We have before us the chance of a quick method by which minor changes—and I stress that—can be made in order to bring Scottish Assembly Acts into force in the way intended.

The argument being adopted by hon. Members in support of these amendments would tend towards the contrary effect. I have one question for the Minister concerning the extent to which he feels that any doubt or confusion about the powers of the Assembly might be clarified. If there is sufficient doubt to make a reference to the Judicial Committee of the Privy Council necessary, that sort of doubt, which is a genuine doubt and not one arising from political conflict, would have to be resolved by separate Westminster legislation. If there is doubt as to whether the Scottish Assembly has power to legislate in a given way in terms of the interpretation of the Bill, would Clause 35, amended or unamended, be sufficient to allow such necessary clarifying changes to take place?

The right hon. Member for Crosby (Mr. Page) did not answer to my satisfaction the question of a possible demand emerging that in the United Kingdom there should be one law for crimes of a similar nature with the same penalties in Scotland and England. Regardless of my political stance, I believe that there is a strength in diversity as well as the oft-quoted strength in unity about which we hear so much in this House. It is a strength when there are different codes of law because they can have a cross-pollinating effect and strengthen each other at times. There must be times when the principles can become confused as between one court of law and another, and the law therefore weakened.

Photo of Mr Graham Page Mr Graham Page , Crosby

What would the hon. Member say if the Secretary of State advised Her Majesty, by Order in Council, to bring the Scottish law into line with the English law, because that could be done under the clause?

Photo of Mr Gordon Wilson Mr Gordon Wilson , Dundee East

The mistake that the right hon. Gentleman is making is to look at the terms of the Bill and the Scottish Assembly in a vacuum. In practice, these things would not happen, and unless and until there was opinion in Scotland and England for such radical changes, they would not take effect. However, I was wondering whether the right hon. Gentleman would suggest as an improvement the assimilation of the Scottish legal system with that of England.

I do not foresee any real difficulty with the operation of the clause. I see no need for the amendments which have been suggested by the Opposition. I hope in this case that they will have the grace to withdraw them rather than put the House to the unnecessary trouble of rejecting them.

Photo of Mr James Dempsey Mr James Dempsey , Coatbridge and Airdrie

I shall be brief in view of the desire of the Committee to proceed to other amendments. However, I have been trying to follow the arguments of right hon. and hon. Members on the Conservative Benches, especially in the light of my study of Clause 35. I understood that the Scottish Assembly had certain limited powers and had been delegated certain functions, and it is in those areas that the Assembly is entitled, through the Secretary of State, to improve and strengthen the operation of those functions. I can see no argument against that.

However, I fail to understand how that can be interpreted to mean that the Scottish Assembly could ultimately bring about alterations in the laws and policies of the United Kingdom. That is what the Conservatives are arguing. How could anyone by any stretch of the imagination suggest that the Assembly, through the Secretary of State for Scotland, could activate a change of policy in the endeavours to secure a settlement in Rhodesia? That is what is being said this afternoon.

I think that very heavy weather is being made of these amendments, which are unnecessary. When the Assembly gets into operation and applies the powers legislated for by this House, it will realise that it must be able to change and strengthen those powers, and there is no reason why it should not be allowed to do so. There is no reason why the rest of the United Kingdom should not fall into line with Scotland if the Scots are operating a sounder and more sensible policy. It would not be the first time that such a thing has happened. Only recently I supported a successful amendment to police legislation to bring English provisions into line with those of Scotland.

5.15 p.m.

In many of these respects there will be a certain amount of gain from experience. Why should not the Scottish people have the power to decide for themselves? For example, if in their wisdom they decide that young people should attend an educational or training establishment until they are 18, surely they are entitled to do that. If that proves to be a more sensible approach than that taken in the rest of the United Kingdom, it is up to Parliament to examine it.

I become rather annoyed and irritated at the constant references to the 71 Members of Parliament from Scotland. One would think that the United Kingdom Parliament had no control over Scotland, but it has. The Scottish Assembly will operate through a block grant which is approved by the House of Commons. If that grant is £1,000 million, the Assembly will have to operate within that total. If it is £3,000 million, the Assembly will be able to build more houses and provide more opportunities. That grant will be determined by the House of Commons. We shall have the ultimate control over what is spent north of the border.

Having listened to all the arguments, I feel that the Minister of State is on the right lines. It would be a mistake if he were to accept any of the amendments and thereby prevent the Scottish Assembly from improving itself.

Photo of Mr David Crouch Mr David Crouch , Canterbury

The hon. Member for Coatbridge and Airdrie (Mr. Dempsey) has made a valuable contribution to the debate. He brought us some common sense and I appreciate what he has said.

I am not guided by a knowledge of constitutional law or by the party Whips. The divisions on the Bill go right across party lines. Although I represent a South of England constituency, I do not argue on the basis of the so-called "Deep South" opposition to Home Rule. Yesterday I listened to much of the debate, but I made no contribution. Today I have listened to the whole debate and I find that it has not been a waste of time. I give all the contributors to the debate the benefit of the doubt by saying that not one of them has been trying to trip up the Bill on its way to becoming law.

I shall not be sorry to see the Bill become law, although it is not perfect in all its parts. I am not well versed, experienced or guided in any way on constitutional law, but perhaps as we proceed we shall find elements in the Bill which, after our mature consideration, will be seen in the light of experience. Perhaps we shall discover that the Assembly and the working of the Bill are not so much deficient as not efficient. We might discover situations which are seen to be to the disadvantage of good devolved government in and by Scotland and to good legislation in the United Kingdom. We may have to improve the situation.

In the last 50 years—or perhaps it is 500 years—we have had only one experiment at dispersing government from Westminster. We are not experienced in creating new constitutional legislation.

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

It appears that my hon. Friend believes that the Committee wishes to give too few powers to the devolved Assembly. Does my hon. Friend support this clause? He seems to want to make it easier for the Scottish Assembly to have bigger and better powers as it has bigger and better conflicts with the House of Commons.

Photo of Mr David Crouch Mr David Crouch , Canterbury

One of the dangers of giving way is that one might lose one's way. I do not wish to do that. I respect my hon. Friend's intervention, but I believe that there is a feeling among many hon. Members who are against the Bill that we should constrain and restrict the powers of the Assembly so that it becomes nothing more than a window display in Edinburgh. That is not my view.

I am very much an Englishman. I am concerned about my constituents and that I should continue to be able to represent them here. I am anxious that I should be able to exercise my responsibility to them in the United Kingdom. But I do not want to create something that is no more than a constitutional joke in Scotland.

I am not against a measure of Home Rule for Scotland. I use that phrase advisedly. I do not take constitutional advice, but I listened with exasperation yesterday to the frightened voices of those who love this Parliament and who are afraid to give any powers of decision-making to the Scottish Assembly.

It would be quite wrong to assume that the Government, in their drafting of this legislation, have left an open-ended arrangement for Scottish legislation which could affect legislation in the United Kingdom. I understand why my right hon. Friend the Member for Farnham (Mr. Macmillan) wishes to insert the words that he suggests in order to constrain the Scottish Assembly in its relationship to this Parliament. I understand his concern that there should be no possible chance of a measure passed by the Assembly altering the law of the United Kingdom. Without the advice of constitutional lawyers, I believe that Clause 35(2) contains sufficient provision.

I do not want us to encourage an English backlash. I do not want people outside the Committee to feel that there is a growing backlash here which they can take up themselves. We must not encourage the English to feel that we are giving the Scots such rights that they can break away, or break into, the United Kingdom and so distort our future legislation.

I hope that my hon. Friends have listened to what I have said in the knowledge that I am not experienced in these matters. I speak as one who is anxious that we do not allow anyone outside—whether in England, Scotland or anywhere else—to have the impression that we are trying to limit this step towards a measure of home rule for Scotland.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

The hon. Gentleman is making a candid, forthright and honest contribution. Part of the difficulty, as he has emphasised four times, is inexperience. All of us, including myself, perhaps started off by thinking "This looks attractive". The difficulty is that the more one knows about this whole process, the more one understands the difficulties of having a subordinate parliament in part, though only part, of a unitary State. That is why, as they come to learn and understand more of the difficulties, so many Scottish interests, including the doctors and those involved in civil aviation and in public and private forestry, among others, have expressed so much anxiety and objection.

Photo of Mr David Crouch Mr David Crouch , Canterbury

I would be the first to bow to the hon. Gentleman as the expert without being a constitutional lawyer. He has not missed a moment in this Chamber, both on this Bill and on the Scotland and Wales Bill in the last Session. We all respect his concern. After all, he lives in Scotland amidst constituents who could be the principal beneficiaries of this Bill giving them something that they do not now have. I, too, have witnessed him at work in his attack on the Bill. But I have often found, from my parliamentary experience, that, when one takes up a cause, the more one follows that cause, the more one stays down that path. The hon. Gentleman has gone a fair way down that path in this matter and he cannot come back now. His objections down to the very end of that path will always be heard, but I believe that he is on the wrong path.

We are hesitant in this country to take new steps. I have never known a country so hesitant as Britain is today to take new steps, particularly regarding law and constitutional change. I have never seen people so hesitant as we are today about extending democracy in Europe, or about allowing the Scots to have a little measure of Home Rule. Why should we suddenly stop and say "It is not possible"? What happened before 1703? It is extraordinary that we should consider that this is something that we dare not allow the Scots to have.

I would be the first to concede that, in parts of the Bill, perhaps even in parts of Clause 35, there may be mistakes which are not spotted by those who are greater experts than I. But we should not be so frightened or hesitant about making these changes. Above all, when we make these moves we should not make them in the spirit of distrust of the Scots themselves, of distrust of the democracy of the Scots, of distrust of the spirit of democracy which must exist there, and of distrust of the quality of the people who will take part in carrying out not just the letter of this measure but the spirit. We have to put that spirit in, not just by what is in the Bill, but by what we say and how we say it in this place. That is the only purpose of my intervention.

5.30 p.m.

Photo of Mr Ian Gow Mr Ian Gow , Eastbourne

I intend no discourtesy to my hon. Friend the Member for Canterbury (Mr. Crouch) when I say that I would find it difficult to serve as even the lowliest Parliamentary Secretary when he formed his first Administration. I find myself in full disagreement with the views that he has just expressed.

It would be ungracious not to pay tribute to the momentary presence in our debate earlier today of the Lord Advocate. It is a matter of regret to us that he is not here now. I know that it is a matter of regret to the Minister of State that I should be referring to his absence.

The Minister of State will not like this, but he gave the impression—perhaps it was a false impression—that somehow he, too, was resentful of the fact that we were debating Clause 35. In his first intervention he told us that we need not really worry and put down amendments, that there was nothing very important in the clause, that the powers conferred upon the Queen in Council would be used very carefully, and that any Minister would exercise his powers with great wisdom. That was certainly the impression that he gave.

Clause 35 confers on the Government of the day additional power to alter the laws of the United Kingdom by Order in Council. It is true that this requires an affirmative resolution of each House, but it is the official policy of the Labour Party that we should abolish the other place, so one of the safeguards written into subsection (2) will vanish if Labour Party policy is implemented. As the situation now stands we are to have an affirmative resolution of each House of Parliament. But if the Labour Party has its way, there will be an affirmative resolution of one House only.

As my right hon. Friend the Member for Farnham (Mr. Macmillan) pointed out, the affirmative resolution procedure allows no amendment and allows for a debate which, in almost every case, lasts only for one and a half hours. It is simply not good enough for the Minister of State to say to the Committee "Do not worry; the powers here will be used sparingly. Put your trust in us." That is the most fatal temptation into which a legislature can fall.

It is, above all, the most fatal temptation at a time when the powers of the Executive have been growing constantly. It is also, of course, the pretence of every tyrant—"Do not worry about scrutinising us; do not worry about the necessity of going through the time-honoured procedures. We shall not do anything that could be objected to."

I take two specific examples. Paragraph 1 of Schedule 10 sets out, in Group 4, the devolved powers of the Assembly in regard to housing and the regulation of rents. Let us make a big jump and assume that there is a Labour-controlled Assembly which decides to reduce still further the level of council house rents in Scotland. Let us suppose that the Government of the day in the United Kingdom also happen to be Labour. Would it not be possible for the Secretary of State to argue that, consequent upon the passing of an Assembly Act to reduce the level of council house rents, he could, by Order in Council, alter the law in the United Kingdom about the level of council house rents? I believe that that would be legally possible under Clause 35 as drafted.

Let us take another possibility. Let us suppose that there were a Conservative Government at Westminster and a Labour Assembly in Edinburgh. Let us suppose, for example, that the Assembly decided to allocate a very substantial part of the block grant towards housing. If the United Kingdom Government and Parliament disapproved of that allocation of the block grant—over which, of course, they would have no control once the allocation had been made—would it not be possible for the Conservative Secretary of State, by order, to say that, in consequence of the Act of the Scottish Assembly allocating vast sums of money to council housing, it was necessary to restrict the power of the Scottish Assembly over the allocation of the block grant or over housing? Could that not also be done under the clause? It could be argued that in consequence of a provision made by or under a Scottish Assembly Act it was desirable to alter this very Bill when it has become an Act. There is power under subsection (1) actually to amend the provisions of "this Act".

The Minister of State may well say that the two illustrations that I have given are far-fetched. I am not concerned with that. I am concerned with the way in which the powers conferred by the clause could be exercised by the Secretary of State, subject only to the possibility of a one-and-a-half-hour debate in the House of Commons and a one-and-a-half-hour debate in another place. If the Minister of State says that the powers will be used only very sparingly and only in very limited circumstances, do we not have a duty to spell out those circumstances in the clause?

The amendment seeks to restrict the circumstances in which the powers conferred by the clause can be exercised. It is because I wish to restrict those powers and to retain the supremacy of this place as a law-making body, going through the proper procedures of Second Reading, Committee stage, Report stage and Third Reading, and the responsibility of another place, and not to have merely an Order in Council, that I hope that the Committee will support the amendment.

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

My hon. Friend the Member for Canterbury (Mr. Crouch), with his customary charm and humility, said that he was not a constitutional lawyer of great experience and that he wondered therefore, what would be the effect of the clause. But we do not speak in this Committee as members of one profession or another, or as representing one interest group or another. We speak representing our constituencies, and we speak most of all as Back Benchers, using what powers of common sense we have. One does not need to be a constitutional lawyer of the high standard of my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) or of the very high standard of my right hon. Friend the Member for Crosby (Mr. Page) to apply one's common sense to the clause. All that is required is some knowledge of the basic motivation of politics and politicians, because it is in the nature of politicians both to take and to abuse power.

It has been obvious from all consideration of the Bill that we are instituting a situation of both instability and uncertainty in the relations between the House of Commons and the proposed Assembly in Scotland. It is plain that in those battles in the future, for which we are providing the battleground, politicians in Scotland will want to extend their power at the expense of the House of Commons. We in this House of Commons, as Back Bench Members, ought to be critical of the situation that will emerge and of the inevitable motives that will be forcing Scottish politicians to blame us and to blame the Union for all their difficulties. Surely the same arguments apply when we, as Back Benchers, consider the actions of the Executive—the actions of all Executives.

My right hon. Friend the Member for Farnham (Mr. Macmillan) made a plaintive plea referring to the way in which the statutory provisions for the grant of export credit guarantee aid have been so disgracefully abused by the present Administration. He forgets that when he was a Minister in 1972 he supported the Industry Act, and some Back Bench Members from both sides of the House of Commons said that that particular piece of legislation could be and would be abused. No doubt when we consider the details of the Polish ships deal, we shall find that the Industry Act 1972 has once again been invoked by an Executive for some corrupt political purposes. So if we give power to the Executive—to any Executive—we may be certain that it will be abused.

Let us not look at this subject through the eyes of constitutional lawyers or constitutional historians. Let us look at ourselves and at those whom we know who are practising politicians. It is the desire of every politician to obtain power. Having obtained power, it is usually the practice to retain it by whatever means that politician can use. If we do not circumscribe the never-ending desire for additional power which will be felt by politicians in Scotland and which on occasions may have to be accommodated in the House of Commons, we shall be failing in our duty. Let us, therefore, look at the clause with one object only in mind—to reduce and to circumscribe the power of the Executive so that we as Back Benchers may fulfil our single most important rôle, which is to criticise the Executive.

Photo of Mr Leon Brittan Mr Leon Brittan , Cleveland and Whitby

I have a great deal of sympathy for the anxieties that have been expressed by my right hon. Friend the Member for Farnham (Mr. Macmillan) and other of my hon. Friends about the clause and for the amendment by which they have desired to seek to meet the problems that they see in the clause. However, I should like to develop my arguments in relation to that on the next amendment, Amendment No. 430, as time is so short.

On the amendment that we are discussing, I make an observation in response to what my hon. Friend the Member for Canterbury (Mr. Crouch) said. As he will know, many of us on the Opposition Benches—indeed, most of us—have the gravest reservations about this whole method of dealing with the problem of devolution. We object not so much to the concept but to this particular scheme. Therefore, criticising the details of the scheme is not in any sense a carping, unsympathetic or negative attempt, but rather a way of combining the very difficult tasks of, on the one hand, pointing out what seem to us to be genuinely the central flaws of a basically flawed approach and, on the other hand, where possible seeking to improve the Bill in spite of our basic disbelief in the fundamental concept.

Regarding the handling of Clause 35, we believe that perhaps the best course is to consider Amendment No. 430, which I hope even my hon. Friend the Member for Canterbury would agree to be a constructive approach to a problem which we think is intractable but which none the less we should like to solve.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

What the hon. Member has just said is an extremely elegant and legalistic way of saying that "We are still sitting on the fence as to whether we on the Opposition Front Bench want an Assembly." Will the hon. Member give me one undertaking—I ask him courteously—that before we come back after Christmas, in the third week of January when we next discuss this matter, it will be revealed to some of us who are curious about these matters whether the hon. Member for Cleveland and Whitby (Mr. Brittan) and the right hon. Member for Cambridgeshire (Mr. Pym) are in favour of any kind of Assembly in Edinburgh? Perhaps we may be told this as a sort of New Year present.

5.45 p.m.

Photo of Mr Leon Brittan Mr Leon Brittan , Cleveland and Whitby

The hon. Gentleman does not have to wait until the New Year. Unhappily, I should be out of order if I answered him at length, but if he is really that interested in something that does not arise on the clause, I am prepared to undertake to arrange for him to be sent a copy of an admirable speech made by my right hon. Member for Cambridgeshire (Mr. Pym) at St. Andrew's University.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

I have studied it carefully.

Photo of Mr Leon Brittan Mr Leon Brittan , Cleveland and Whitby

If what the hon. Gentleman is complaining about is not the absence of such a document but his inability to comprehend or agree with it, that will have to be dealt with in another way than a response to an intervention, but if he is genuinely concerned about the absence of the material, that is the material to which I would refer him.

Photo of Mr John Smith Mr John Smith , Lanarkshire North

It is proper for Parliament to be cautious about conferring fairly wide powers upon Ministers in any legislation, and I respect the concern shown by some hon. Members.

Before dealing with some specific points of a more legal and constitutional character, I wish to note in passing the speech of the hon. Member for Canterbury (Mr. Crouch), who has done the Committee a great service. I hope that his speech will be studied outside the Committee as well as appreciated inside it, because it indicates that there are in the Conservative Party perceptive people who understand what the whole argument is about. The hon. Gentleman expressed his views extremely well, and I agreed with almost every word he said. It is unusual for me to be able to say that about hon. Members on the other side of the Committee.

I am glad to see all the regular attenders on the Opposition Benches present again. There are those whom I have occasionally called the Bourbons and the "ultras" of the Conservative Party. I do not so describe the hon. Member for Cleveland and Whitby (Mr. Brittan), who is a semi-Bourbon, a St. Andrews-ite, because he clutches on to the speech of his right hon. Friend the Member for Cambridgeshire (Mr. Pym), floating as a piece of flotsam on the wreckage of Conservative policies on devolution. I think that the right hon. Gentleman made his speech at the Craw's Nest, Anstruther. He certainly appeared to give some thoughts on devolution at the Craw's Nest.

It is these stray pieces of policy that the hon. Member for Cleveland and Whitby has to fashion together and weld into a policy of some sort. It is time the right hon. Gentleman returned to the Craw's Nest, perhaps for his New Year holidays, and set out in more detail the Conservative Party's policy on devolution, or perhaps the hon. Gentleman could do it.

I come now to the clause, having felt it right to draw the Committee's attention to the important speech of the hon. Member for Canterbury. The hon. Member for Bury St. Edmunds (Mr. Griffiths), who was rightly rebuked by the hon. Member for Canterbury for seeking to stimulate resentment in England over the constitutional changes proposed in the Bill, put forward the possibility that there could be creeping devolution by the use of the clause. He suggested that the Assembly could extend its own powers and then a Minister of the United Kingdom Government could use the provisions of the clause to legitimate the change that the Assembly had made—though why a Minister of the United Kingdom Government would wish to do so, I do not know.

As I tried to point out in an intervention, that suggestion is absolutely unfounded as even the most remote theoretical possibility, because it is not a matter for the Assembly what its powers are to be. That is a matter for this Parliament. It would be completely ultra vires for the Assembly to seek in any way to increase its powers, and therefore that absurd proposition does not arise.

But I understand the concern expressed by the right hon. Member for Farnham (Mr. Macmillan) about the fact that a discretion is given to Ministers. However, the right hon. Gentleman underestimates—and I say this with respect, because I understand the concern that prompted his speech—the fact that an affirmative resolution of both Houses is required.

Certainly, there are limitations to the way in which an Order in Council can be debated in the House. It cannot be amended, but it can be rejected. The right hon. Gentleman says that that is not much protection because any Government can sledgehammer an Order in Council through the House by the use of the Whips. I think that the right hon. Member for Crosby (Mr. Page) was on the same line of argument. But if that is how a Government will behave, they can behave like that over primary legislation as well.

Photo of Mr John Smith Mr John Smith , Lanarkshire North

That is to take rather a poor view of Parliament. Governments are sustained by Members of Parliament, and it is no excuse for Members to say that they are forced by their Government to do things. There have been rebellions by hon. Members on both sides of the House on many matters, including the Bill. A Government could bulldoze primary legislation through just as effectively. Admittedly, it would be more difficult, because there are more stages, but it could be done. It is very important protection for Parliament that there requires to be an affirmative resolution.

The other important matter, which was noticed by some hon. Members, is that the power in the clause arises only in consequence of any provision made by or under any Scottish Assembly Act. Therefore, there must be a Scottish Assembly Act which makes a change in the law before the Order in Council power can be introduced.

The right hon. Member for Crosby, who gave us some lurid examples of muggers moving from Liverpool to Glasgow and back, suggested that the provision could be used to alter the law in England to mirror that in Scotland. I believe that that is a succinct way to put his argument. I beg to differ from the right hon. Gentleman. That would be a substantive change in the law of England. I do not believe that it could be represented by any Minister to be a consequential change. I see no Government having the nerve to try to put through in an Order in Council something of the magnitude of a change in criminal penalties, as the right hon. Gentleman suggests. The Committee is not helped by being given such far-fetched and unrealistic examples.

Photo of Mr Graham Page Mr Graham Page , Crosby

I do not interpret the clause quite as the Minister does. The amendments to the law covered by the clause are to be made in consequence of an Act of the Scottish Assembly, but once that Act has been passed what matters is the opinion of the Minister here as to whether it is "necessary or expedient" to make them. It is a matter not of whether the amendments are consequential but whether it is "necessary or expedient" to make them because there is an Act of the Scottish Assembly.

Photo of Mr John Smith Mr John Smith , Lanarkshire North

I accept the right hon. Gentleman's point, but it is important to establish that the matter can arise only if there has been an Act of the Scottish Assembly. We are agreed on that.

Then we come to the words "necessary or expedient". As the right hon. Gentleman well knows, they have been commonly used in legislation. Indeed, they were used in legislation that the right hon. Gentleman put through, such as the Local Government Act 1972. There were similar provisions in the Local Government (Scotland) Act 1973. The words used were "necessary or proper", but there is not much difference between the two phrases.

Parliament must have confidence that the Administration will use the powers with some respect for the purposes for which they are given. In almost every Act there are Order in Council or Statutory Instrument provisions fenced with such words.

Photo of Mr Maurice Macmillan Mr Maurice Macmillan , Farnham

The Minister has given examples of the use of the words "necessary or expedient" in legislation relating to Orders in Council made consequential upon an Act of this House and carrying out the purposes of the Act. The order with which the clause deals is not quite the same. It is based on a Minister's judgment as to whether the order is consequential. The matter is not laid down in the statute, as in the case the hon. Gentleman quoted.

Photo of Mr John Smith Mr John Smith , Lanarkshire North

I take the right hon. Gentleman's point in that regard. I think that this is a different provision from that which commonly appears in Acts of Parliament. But these are not strange and unusual words to appear in a Bill or in a statute. I would not want to make too much of the fact that a similar provision appears in the Local Government (Scotland) Act 1973, but I am entitled to make something of the fact that it appears in the Northern Ireland Constitution Act 1973.

I looked up the Official Report to see how the clause was dealt with, having been struck by the almost complete similarity between Section 38(2) of that Act and what is in the Bill. I wanted to see how Parliament handled it. I found that there was almost no discussion of the matter. I do not know whether Parliament was sleeping on that occasion. [Interruption.] The right hon. Member for Crosby seems to think that one cannot make much of that. Certainly there was an emergency atmosphere, but, none the less, the Government of the day must have considered the matter.

It must have been considered at least by the relevant Ministers. They must have recognised that there was a problem and that in case the Northern Ireland Assembly made a change in the law, it would be useful to have a consequential provision enabling the law to be changed in England. It was no doubt felt that there ought to be a clause enabling it to be done by Order in Council.

The Government have arrived at the same conclusion. I was going to say that it cannot be so terribly wicked for us to be doing it if the previous Government did it, but that argument may have a logical fault in it. However, I am prepared to give the previous Government the benefit of the doubt on this matter.

This is not the first devolution Bill to come before the House of Commons. The House of Commons very recently passed a devolution measure. I refer, of course, to the Northern Ireland Constitution Act 1973. The Conservatives were the first to carry through a devolution Bill in the House of Commons. We do not give them enough tribute for that. It is the fact that they are not sustaining the progress achieved on that occasion that is a matter for criticism.

There has to be some confidence that United Kingdom Ministers will not abuse the fairly broad powers given under this provision. What the Government have in mind is principally to bring the law up to date on matters where Scottish Assembly legislation bites deeper into the devolved matters and where differences emerge. It will be necessary, particularly in regard to the law on non-devolved matters pertaining to Scotland, to make consequential changes, as the names of institutions change and as policies diverge, in order to dovetail United Kingdom legislation which operates in Scotland together with Assembly legislation. That is our intention, and we have no nefarious purpose in putting this clause forward.

Parliament is, of course, entitled to be suspicious of the Executive, but most Executives have to come forward with fairly broad provisions of this sort, and at the end of the day Parliament must trust the good intention of Ministers.—[Interruption.] I notice that when right hon. Gentlemen leave Administrations they become much more critical than when they are members of them.

Photo of Mr Graham Page Mr Graham Page , Crosby

I think that I caught the Minister's words correctly when he spoke of an extension of non-devolved matters. I think he said that Scottish Assembly legislation might dig deep into devolved matters and make necessary consequential changes in non-devolved matters. This is a very serious point. The hon. Gentleman has been arguing that the Scottish Assembly could only deal with devolved matters and that therefore—

Photo of Mr John Smith Mr John Smith , Lanarkshire North

I did not intend to convey any meaning of that sort. If I did, I apologise. There will have to be consequential changes made in the laws for which this Parliament is responsible. For example, there would have to be changes in legislation if certain institutions to which reference is made were abolished. It would be sensible to make consequential changes in that respect.

I ask the Committee to consider the practical problems which would arise if we did not have such a provision. The hon. Member for Cleveland and Whitby I think recognised this. If we do not have this provision, we shall have to have primary legislation every time we want to make a minor change in the law. Maybe the United Kingdom Parliament will not give such a change priority. There will then be a very untidy situation. The provision in the Bill is fenced by the authority of Parliament. Parliament must approve it affirmatively. That is a major safeguard and a sensible provision to have.

I naturally accept that there is legitimate concern whenever such a provision is put forward by any Administration. I ask the Committee to accept the good faith of the Government in putting it forward. It is not intended to make major changes in the law but to make minor consequential amendments. I know that the powers here are drafted fairly widely but nevertheless I ask the House to accept our good faith in this respect.

6.0 p.m.

I have considered with some interest the submission of my hon. Friend the Member for West Lothian (Mr. Dalyell). I do not think that the point he makes is a major one, although no doubt we shall return to it when we get to Schedule 10. I think that we have managed to define fairly precisely in the Bill what is to be devolved. That is why there is such complexity in the schedules and why we have specified particular sections in particular Acts of Parliament. Indeed, the criticism has often been made that the Bill is unnecessarily complex. Complexity is the price of precision in this matter. My hon. Friend was entitled to raise the matter and he can test it for himself later when we come to deal with the devolved matters.

Amendment negatived.

Photo of Mr Leon Brittan Mr Leon Brittan , Cleveland and Whitby

I beg to move Amendment No. 430, in page 16, line 16, leave out '(including any provision contained in this Act)'. We on the Conservative side take the strongest exception to a provision, such as Clause 35, which enables the law of the United Kingdom to be altered by a simple resolution of Parliament just because a particular Scottish Assembly Act has been passed. Such a provision is, in the strongest sense of the term, totally unnecessary. If the Government are able to persuade Parliament that, as a result of Acts passed by the Scottish Assembly, it is necessary to make changes in the law of the United Kingdom, there is absolutely no reason at all why the Government should not come to the House and seek legislation of a primary kind by normal Act of Parliament to change the law of the United Kingdom.

The Minister of State has argued that the purpose of the power is innocent and innocuous and that therefore it is convenient that the law of the United Kingdom should be changed in minor respects from time to time, as a result of Scottish Assembly Acts, by the simple procedure of an order approved by a resolution of each House of Parliament. I took note of the Minister's words, which were very significant in illustrating the Government's approach to the problem. He said that if a whole series of changes of a consequential and minor kind were necessary in the law of the United Kingdom because of what the Scottish Assembly had done, to require such changes to be made by Act of Parliament would produce an untidy situation. I accept that it would be an untidy situation, but it is much better to have that than one which causes the sorts of anxieties and potential difficulties which are involved in the clause.

I give the Minister the credit of accepting that in his mind—and possibly in the mind of the Government—there is no intention whatsoever to use the clause in a way which would involve major changes in the law of the United Kingdom. But the potential is there, and if the only purpose of the clause is to avoid an untidy situation arising I say to the Minister of State that surely, in order to allay the anxieties which have been expressed generally and sincerely by Opposition Members, an untidy situation would be a small price to pay. There are worse things in that situation than untidiness. Anxieties about an apparently innocent and innocuous provision being used for purposes for which it was not intended but for which it is capable of being used comprise a much worse situation than merely administrative or constitutional untidiness.

It is in that context that I turn to the point made by the Minister of State from what has now become his favourite bedside reading—the Northern Ireland Constitution Act 1973—which he prays in aid whenever possible. It is a very good illustration of exactly the point that I am making.

In the situation of the Government of Northern Ireland and provisions made by this House in relation to Northern Ireland the anxieties that I have referred to—and which have been expressed by my hon. Friends—quite understandably were not nearly as great as they are in the case of the Scotland Bill. The clear view of the people of Northern Ireland is, has been, and I hope will continue to be, in favour of the Union with the United Kingdom as, indeed, it is in Scotland. But the legislative power when it has existed in Northern Ireland has always been used in the sense of cementing the Union. Wholly different considerations and anxieties arise with regard to the Scotland Bill.

I am, of course, conscious of the fact that in expressing opposition to the procedure whereby the law of the United Kingdom can be changed in order to avoid an untidy situation coming into existence one is going to the root of Clause 35. What I am proposing is only an amendment. But the real objection to the procedure is that the Government have to present the House with something on a take-it-or-leave-it basis.

I would draw the attention of the Minister of State to a slightly uncomfortable example of the difference between passing a Bill through Parliament and getting an order through Parliament. I refer to the Scotland and Wales Bill in the last Session. If it had just been a question of getting a resolution of the House, it would have sailed through. But it was precisely when it was subjected to the full parliamentary procedure of amendment and the scrutiny that flowed from that that the defects of the Bill became apparent to the House as a whole and further consideration of the Bill became impossible and the Bill not acceptable. A distinction has to be made.

But although that applies to the whole of Clause 35, I am proposing a modest amendment rather than the elimination of Clause 35 at the moment. It is to exclude the phrase: (including any provision contained in this Act)". Very special considerations apply to those words. We must remember that in this Bill we are creating a constitution. We are creating a constitution for a form of devolved government in Scotland. It is idle to pretend that it is anything other than a constitution. Most constitutions in other countries, particularly federal constitutions, are in some way entrenched. They are entrenched because special procedures are necessary to alter those constitutions. The agreement of both constituent parts, special majorities of two-thirds or three-quarters, or a whole range of entrenchments, are to be found in every constitution whereby there has to be a special sort of procedure when it is altered. In most countries constitutions cannot just be altered in the same way that we can alter an Act of Parliament.

But if Clause 35 stands we shall have a situation in which this constitution enacted in the Scotland Bill is not only not entrenched but is put in a weaker position than an ordinary Act of Parliament. The words which I am seeking to persuade the House to delete mean that the Scotland Bill itself—the creator of the constitution and the formulation of the constitution of the devolved Scotland—may be amended by a provision merely designed to tidy up and, as the Minister of State said, to prevent an untidy situation.

Whatever justification there may be for avoiding the bore of the Government having a sort of annual bits and pieces measure to make such consequential changes as are needed in the Government of the United Kingdom because of what the Scottish Assembly has done in the last year, there can be no justification for actually allowing by an order approved by resolution in each House the very constitution of devolved Scotland to be altered. That is what is happening.

This provision then, instead of entrenching that situation by some kind of special provision, is actually enabling the constitution of devolved Scotland to be altered by a simpler, more Draconian and quicker procedure than the passage of an ordinary Act of Parliament about drains, housing, or education. That is a fantastic proposition. It seems to me that merely by talking about it as being necessary or expedient in consequence of any provision made by or under any Scottish Assembly Act. does not alter the fact that by the inclusion of the words in brackets it is possible by resolution of this House actually to amend the Scotland Bill itself.

I know of no other constitution—I am not talking about the Northern Ireland Act, I am talking about other constitutions—in which it is possible to alter the constitution itself by a simpler and quicker procedure than the one by which ordinary legislation is enacted. Whatever need there may be for this power in relation to ordinary legislation, it seems to me that it is of quite a different order of magnitude to allow the constitution of Scotland to be altered by simple resolution.

I appreciate that it has to be in the view of a Minister of the Crown and of the House as a result of a provision in a Scottish Assembly Act that the House is invited to consider that it is necessary or expedient to change the constitution. But that is no protection, because it means that within the devolved sphere the Scottish Assembly can pass an Act which is clearly intra vires, dealing with some matter at the boundary or at the border of its powers, but plainly within its powers. It could then attempt to persuade the Government of the United Kingdom that, as a result of the changes being made by the Scottish Assembly Act, it is clear that the limitations on the powers of the Assembly contained in this Bill are out of date—and, perhaps, have become untidy—and that therefore a change is necessary in the Scotland Bill itself.

Therefore, inch by inch the frontiers can be extended in this fantastic way whereby a constitution itself can be amended by a procedure simpler than that of enacting ordinary legislation. I ask the Minister of State to consider this amendment seriously and to accept the view that even if he must have Clause 35—which we strongly oppose—genuine anxieties could be to some extent allayed by the removal of a provision permitting the constitution of Scotland to be changed by a simple resolution of the House.

Photo of Mr John Smith Mr John Smith , Lanarkshire North

I intervene briefly because it is important that I set out the Government's position. I shall do so succinctly.

I follow the hon. Gentleman's arguments, which are classic, constitutional-style arguments. But, with respect, I feel that he has underestimated two things. First, it is not such an easy hurdle to get an Order in Council through both Houses of Parliament if it seeks to make any major change. Secondly, the hon. Gentleman appeared to ignore almost entirely the fact that this part of the clause as, indeed, the whole of the first part of the clause, comes into operation only in consequence of any provision made by or under any Scottish Assembly Act". That condition precedent must be satisfied before an Order in Council can be made.

I give one practical reason why it would be a useful provision for a Minister to have, subject to the approval of this Parliament. In Part III of Schedule 10, hon. Members will see that one of the techniques that we have used to define what is devolved is to list a number of Acts of Parliament and to specify which powers under certain sections are devolved to the Assembly. As the Scottish Assembly passes legislation which bites into the corpus of existing legislation, there will be a need to bring all this up to date—for example, to make changes in the detail. We do not want a special Act of Parliament passed through both Houses to note the fact that certain of the Acts have been abolished or amended.

6.15 p.m.

Photo of Mr Evelyn King Mr Evelyn King , South Dorset

The hon. Gentleman has twice used the phrase "both Houses of Parliament" and suggested that that might be a safeguard. However, is it not part of the policy of his party that one of those Houses is to be abolished or weakened? In fact, the safeguard is likely to be dependent upon one House of Parliament and not both.

Photo of Mr John Smith Mr John Smith , Lanarkshire North

That is a matter for the future. I am dealing with the present constitutional position, and I am entitled to draw attention to the fact that any legislation must go through both Houses.

Photo of Mr Leon Brittan Mr Leon Brittan , Cleveland and Whitby

As I understand it, on Schedule 10 the Minister is saying that it may be that some of the enactments listed in the schedule will themselves be repealed or that new ones will appear on the United Kingdom statute book which need to be included in Schedule 3. The answer to that is simple. Any such procedure necessarily involves legislation in the House of Commons. Therefore, there is no reason why such legislation should not itself contain the consequential changes in the Scotland Act to have the effect that the Minister wishes.

Photo of Mr John Smith Mr John Smith , Lanarkshire North

There might possibly be something which could be done in terms of United Kingdom legislation where the powers are retained by the United Kingdom Parliament. But it would not apply to Acts named here where powers had been devolved to the Scottish Assembly. Therefore, that solution would not be apt in that case.

Photo of Mr Robert Hughes Mr Robert Hughes , Aberdeen North

As I understand the provisions of Clause 35 as drafted, it would be possible for the Assembly to change anything in the Bill, when it has been passed—either in powers devolved or in powers not devolved—and then, if necessary, the Government could say that they accepted it and they could deal with it purely by Order in Council, thereby negating the effect of Clause 36.

Photo of Mr John Smith Mr John Smith , Lanarkshire North

With respect, my hon. Friend is wrong about that. In the Bill there is no power to the Scottish Assembly to amend the provisions of the Bill. Therefore, the necessary condition precedent would not arise.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

I may nave misunderstood what my hon. Friend said, but he used the words "bites into the corpus of existing legislation". If existing legislation in the House of Commons is bitten into, does not that mean consequential action in this House? It is not possible to bite into the corpus of existing legislation without taking action both in the Scottish Assembly and in the House of Commons.

Photo of Mr John Smith Mr John Smith , Lanarkshire North

It is perfectly possible. If under the Housing Acts, which are Acts of the United Kingdom Parliament, powers for housing are devolved and given to the Scottish Assembly and the Assembly makes changes, those changes are effected by legislation passed in the Assembly without reference to the United Kingdom Parliament, because the powers have been devolved.

But there are some Acts of Parliament which are specified in Part III, where there are provisions which are devolved and others which are not devolved. Therefore, it is wiser to have this provision. Where there is a certain breadth in these provisions, it is always open to Opposition Members to point out that it is possible to drive a coach and horses through them. However, I do not think that this is a situation which is likely to arise. We need fairly broad provisions so that we can bring the Act up to date and keep it up to date with proper references in it.

The hon. Member for Cleveland and Whitby (Mr. Brittan) asks "If you want to do that, why not bring a Bill before Parliament?" We all know the existing mess that there is with miscellaneous law reform Acts where we have all sort of bits and pieces of reform collected in a lot of different Nets together. It is very difficult for lawyers, never mind the ordinary public, to find their way about them. I should like the Scotland Act to be brought up to date regularly by the use of this provision. That is the purpose behind this proposal.

I remind the Committee of two important matters. First, it has to be in consequence of something which the Assembly has done. Secondly, there is the important and real protection of an affirmative resolution in each House of Parliament.

Photo of Mr Maurice Macmillan Mr Maurice Macmillan , Farnham

I can see that the hon. Gentleman's argument would be valid against the previous amendment which the Committee considered. However, this amendment is to omit including any provision contained in this Act". The hon. Gentleman cannot need that phrase if Schedule 10 requires consequential changes in United Kingdom legislation. He can need that change only to add to or subtract from that phrase in Schedule 10 itself.

Photo of Mr John Smith Mr John Smith , Lanarkshire North

The provisions of Schedule 10 could be changed by activities of the United Kingdom Parliament. They could also be changed by activities of the Scottish Assembly operating in devolved matters.

It is open to hon. Members to say that this is a broad provision. Of course, it is. But it is a sensible one, because we have to look at it from the point of view not just of the classic arguments about the constitution but of making this Act a useful and effective tool. There will be changes. Legislation will be passed both here and in the Assembly, and it will require changes to be made, especially in areas like Part III of Schedule 10. It seems to me sensible that powers should be given to change that.

The hon. Member for Cleveland and Whitby spoke haughtily about the need for tidiness. We need to have a little more tidiness in our statute book. It is not the most important consideration, but it should not be ignored completely. This will be a very important Act. It is not a fundamental one, but it is one which will have to be studied both by Members of the Assembly and by the United Kingdom Government. It may have to be interpreted by the Judicial Committee of the Privy Council. This provision is entirely justified, and I think that I have given a good reason why it should be accepted. I hope that that good reason will be taken into account by the Committee.

Photo of Mr David Renton Mr David Renton , Huntingdonshire

I suggest that the Minister should give an undertaking to the Committee to think again about this matter. Despite the clarity of the speech of my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan), I do not think that the hon. Gentleman has fully grasped the full implications of the amendment.

We are dealing with a major constitutional Bill. In a Bill like this, we ought to get the principles right once and for all, even if at some later stage some of the detail contained in Schedule 10, for example, may have to be varied. I remind the hon. Gentleman that sometimes detail has to be varied even in a major Bill.

The words which the Minister has put into Clause 35 would enable both the principles and the detail to be amended, whereas he wants only the detail amended. I should have thought that, in order to get the detail amended, he ought to follow the many precedents that there are in various types of legislation which enable Ministers to lay Statutory Instruments before the House, sometimes with affirmative resolutions and sometimes with negative resolutions, so that the detail may be brought up to date. To claim, however, that this wide power to alter any of the provisions of the Act, even if they deal with important principles, should be obtained for use by Order in Council seems to me to be quite wrong.

I notice, and it is rather significant, that in replying just now to my hon. Friend the Member for Cleveland and Whitby the Minister of State did not refer to Section 38 of the Northern Ireland Act or any part of it. It is significant and very natural that he did not do so, because the Northern Ireland Act does not contain these words.

This idea of amendment by Order in Council is relatively new. It was first used for facilitating consolidation of Acts in 1973, passed by the previous Conservative Government—the National Health Service Reorganisation Act, Section 57, and the Pensioners Payments and National Insurance Act, Section 7. Both Acts specify that, to facilitate consolidation, amendments could be put forward by Order in Council, but our Committee on Legislation recommended that they should be subject to two conditions—affirmative resolution, which is conceded by the Government here, and that the relevant order should be reported by the Joint Committee on Statutory Instruments. Although we are dealing here with something much more important than consolidation, the Government have not contemplated making that second proviso. It could have been made. In view of these fresh considerations and what has already been said by my hon. Friend the Member for Cleveland and Whitby, I hope that this is a matter in which the Government will not be tied down to an immediate decision.

This is a much more difficult and important matter than it appears to be at first sight. I hope that for once the Minister of State will agree that this is something from which he would benefit if he were given a chance to look at it again.

Photo of Mr Robert Hughes Mr Robert Hughes , Aberdeen North

I understand perfectly the necessity for having some provision whereby it is not required that every time a change is made by the Scottish Assembly on an Act covering the whole of the United Kingdom—a change of some particular issue relating to Scotland—the Government should not have to bring forward primary legislation.

I am far from being a legal expert, and even less a constitutional expert, but I have always understood that the law is not as commonsense people understand it but as it is written and interpreted in the courts. The more the Government try to tidy up the Bill, the greater the minefield into which they stray.

I have assumed that the provisions of all Government legislation work because they have some specific purpose. The words in Clause 35 are: any such amendments of the law of the United Kingdom or any part of it (including any provision contained in this Act)". Why is "this Act" specifically referred to? I think it is unnecessary in any case. If one talks about an amendment to the United Kingdom law or any Part of it, the words about "this Act" are redundant.

Quite apart from that, by putting in these specific words we are encouraging the Assembly, if and when it is set up, to try to tinker with the Act. The Minister of State tells us, quite properly, that there are parts which say that the Assembly can act only within the specific competence set out in Clause 19. Clause 19 states: A Scottish Assembly Act shall be law only if or to the extent that it is within the legislative competence of the Assembly. Clause 19 refers to Schedule 2, which spells out all the things that are within and without the competence of the Assembly. In Schedule 2, on page 42, paragraph 7 states: A provision is not within the legislative competence of the Assembly if its effect would be to amend this Act. The Government cannot have it both ways. Clause 35 refers to any provision contained in the Act ", which means any part of the Act. It seems to me that there is a conflict here which has not been tidied up. In fact, this seems to make it worse. Is the Minister saying that Schedule 2 and Clause 19 totally override Clause 35 and any part of it? As it is, Clause 35 stands as an equal part of the Bill, and there is no distinction in terms of importance, relevance or competence. Therefore, I think it is necessary to remove these words, as they refer to any provision made by or under any Scottish Assembly Act. If we take that out, we remove the possibility suggested by the hon. Member for Cleveland and Whitby that the Assembly could perhaps, not in a dramatic way but gradually, change its powers and competence.

6.30 p.m.

I can foresee the possibility whereby the Assembly makes a change in Schedule 10 to bring within its competence a fairly minor matter, and the Government would say that it was easier to allow this change of the law. It would not be worth a candle to have all the hoo-ha at Westminster or to invoke Clause 36 or subsequent clauses especially if, like Parkinson's law, people who are here, after the Assembly, will not have time on their hands, and the amount of legislation will expand to fill the gap. I can see the Government saying that, on a strict interpretation of the Act, the Assembly is acting out of competence in dealing with the issue. However, they would probably add that they would let it go because they did not want a fuss and, after all, it was a sensible thing to do anyway, because the Assembly had exposed a loophole.

However, if the Government let it go in that manner a precedent will have been set. What happens if the Assembly tries drastically to change its powers or move beyond an Assembly into some form of home rule? To me, a complete layman, it is wholly confusing and will lead to conflict. I understand that the Government want to avoid conflict, yet here they are certainly tempting the Assembly to try its hand a bit.

Photo of Mr John Smith Mr John Smith , Lanarkshire North

I intervene very briefly to deal with the point put forward by the right hon. and learned Member for Huntingdonshire (Sir D. Renton). The Committee may find my intervention of some assistance.

I stress one point about the breadth of the clause. It has been made out to be too wide a provision. I remind the Committee that the Scottish Assembly Act is a condition precedent to the clause coming into effect.

Secondly, a Scottish Assembly Act must be intra vires the Scotland Act. Constitutionally, the provisions of this Act cannot be changed. That is understood by the Committee. But I have given as examples the detailed changes in the Act required to bring it up to date.

Criticism has been made that it has been drawn too widely. I cannot see how we can easily draw it more narrowly. I have listened very carefully to what has been said and I doubt whether it is possible to narrow the clause. If hon. Members want to test it in the Division Lobbies, they should not be dissuaded. If this amendment is carried the words will be in the Bill no longer.

I am willing to listen and to look at what has been said, but I do not want there to be any misunderstanding about my commitment. If there is concern about the breadth of the clause, I shall look at it and see whether it can be narrowed. I say that before taking any skilled advice, but personally I do not see how it could be done easily.

Photo of Mr Timothy Raison Mr Timothy Raison , Aylesbury

Will the Minister explain a matter that puzzles me? Is it possible for the Scottish Assembly to take action affecting any of the legislation listed in Schedule 10 as excluded from enactments applying to Scotland? Schedule 10 sets out various Acts relating to devolved powers, but certain Acts, which on the face of them seem to have a good deal to do with devolved powers, such as the Community Land Act, are not included in the list. In other words, could the Assembly pass an Act affecting matters not included in Schedule 10?

Photo of Mr John Smith Mr John Smith , Lanarkshire North

I thought that the hon. Gentleman was about to ask me something related to what I was saying, which was why I gave way to him. However, let me point out that the Scottish Assembly will have power to change the law in certain devolved areas which are defined in the schedule and referred to in various Acts of Parliament. If there are no powers in the Scottish Assembly to change any of those matters, it cannot do so. We must look carefully at the provisions of the Bill to see whether in any case power is devolved.

Photo of Mr John Stokes Mr John Stokes , Halesowen and Stourbridge

I have listened carefully to the Minister of State on almost every day that we have discussed this Bill. We all like and admire the urbanity with which he deals with anything that comes along, but if we look behind his manner we note that he has not made any concessions. So far he has not accepted one amendment, and obviously he does not intend to do so. Therefore, behind the urbanity we see the mailed fist.

I am glad to see that the Lord President is present in the Committee, because he has hardly been present at all. Indeed, even as I speak I see that he is leaving. However, I am delighted to see the Lord Advocate paying one of his visits to the Committee. I have the greatest admiration for the Lord Advocate and, although he has not said anything in this discussion, I am sure that he must be thinking very deeply indeed. Probably he is very worried about some of these provisions.

Once again the Committee finds itself in a muddle on the Bill. I agree with what was said by the hon. Member for Aberdeen, North (Mr. Hughes). In this clause we are trying to limit the legislative powers of the proposed Assembly to ensure that they do not conflict with this Parliament or, in vulgar parlance, turn the British constitution into a pig's breakfast.

Time and again as we consider the clauses of the Bill we come up against the insuperable difficulty of trying to create a new subordinate legislative Assembly in one part of a unitary kingdom while at the same time being under an omnipotent United Kingdom Parliament. There is no answer to this insoluble conundrum, and if it were not subject to a guillotine this measure would never have a chance of getting through Parliament.

I notice that there are now a few more hon. Members on the Government Benches than usual, and at one time this afternoon their numbers almost reached double figures. It is remarkable how few Labour Members have taken any interest in these proceedings, and occasionally a stray SNP Member takes part. I believe that the Bill must be one of the least liked and least supported measures that have come before Parliament this century. If Labour Members had not been dragooned by the Whips to go into the Lobbies, I believe that they would never have come along at all but would have been happier to stay away.

To return to the clause and the amendment, one can pretend that we in this Chamber will seek to confine and control acts by the Assembly which, regrettably, we are trying to set up. Once that Assembly is in being, however, we all know that it is bound to demand greater and greater powers for itself. Parliament has already gone on the defensive in this matter. We have lost the will to win, and the Scottish Assembly will arrogate to itself more and more powers and will come to glory at the expense of this ancient House of Commons. We in this exercise—an exercise which may be overturned by referendum—are engaged on a hopeless task.

I agree that it is our duty as the Opposition—and it is a duty which we are carrying out very well—to try to control and bind the Assembly as much as we can. That is why I support the amendment. In my heart of hearts, I know, as do other hon. Members, that there is no solution to the conflict and confusion of the Bill, unless on Third Reading hon. Members vote with their consciences and kill it.

My constituents are beginning to ask themselves whether they are prepared to have our country's laws altered to suit the Scottish Assembly. The Committee knows my love of history, and I have been looking back seeking to find a parallel with the extraordinary situation with which we now find ourselves faced. We are trying to devolve a constitution in a State which does not have a constitution.

Photo of Mr Myer Galpern Mr Myer Galpern , Glasgow Shettleston

Order. The hon. Member is not confining himself to the amendment. He is making what appears to be a Second Reading speech. I judge by the hon. Member's smile that he knows that full well. I think some reason for the larger attendance in the Chamber is that too many hon. Members are not confining themselves to the matter under discussion.

Photo of Mr John Stokes Mr John Stokes , Halesowen and Stourbridge

I always pay great attention to your comments, Sir Myer. I end by saying that on the last occasion when Parliament was involved in a great constitutional struggle which affected the whole future of England it was said—perhaps, Sir Myer, you will forgive me if I translate the Latin into English—"We do not wish to change the laws of England".

Photo of Mr Francis Pym Mr Francis Pym , Cambridgeshire

When the Minister of State intervened the second time, we hoped that he would do so in a helpful sense. At first, when we heard his words we thought that he was about to be helpful, but he couched his words in lukewarm terms. Indeed, he does not appear to have given any undertaking at all. He even admitted that his intervention might not be helpful. He said that if the Committee voted to knock out these words, the Committee would have to take note of that, as would the Government.

I hope that the hon. Gentleman will intervene the third time and say that he will take this matter away and genuinely re-examine these provisions, taking into consideration the arguments advanced by my hon. Friend the Member for Cleveland and Whitby (Mr. Brittan) and my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton). It would be only on that basis that it would be possible for us not to press this matter to a Division.

6.45 p.m.

I am mindful of the fact that we still have a major clause, Clause 36, which as yet has been totally undiscussed but is central and is a matter of constitutional importance. If the Minister were able to give that absolutely clear and categorical undertaking, it might be possible to spend a few minutes on the clause, but if he sticks to the lukewarm phraseology of his earlier intervention I doubt that he will carry the Committee, because what he had to say was not terribly convincing. Will the Minister be much more authoritative and categorical in what he intends to do?

Photo of Mr John Smith Mr John Smith , Lanarkshire North

It always happens that in Committee this kind of bargaining session between Opposition spokesmen and Ministers takes place. I have thought about this carefully, and I must make absolutely clear that I do not accept the fundamental argument which has been put forward by the hon. Member for Cleveland and Whitby (Mr. Brittan) and the right hon. and learned Member for Huntingdonshire (Sir D. Renton). The clause is much more limited than they suggested, for reasons which I spelt out in my second intervention. I have not changed my mind on that.

However, the point has been made that the clause is possibly drawn too widely for the purposes for which we wanted it, and I am willing to look at that. But I do not want hon. Members to be under any misapprehension that they gave up the opportunity for voting for their amendment because of my assurances. Assurances given by Ministers which cause hon. Members to change their conduct and not to vote are dangerous, and one must be careful. I am sorry if that is not enough. I have said that I have listened carefully and shall read the speeches to see whether it would be possible for this essential power to be made narrower.

I doubt that the amendment, if it were accepted, would achieve that result. However, whatever the result of the Division, I shall look at the matter. If hon. Members feel that what I have said does not go far enough, that is too bad and they had better protect their position in the Lobbies.

Photo of Mr William Ross Mr William Ross , Kilmarnock

I am more than slightly bemused by these exchanges, because I had thought that we were dealing with an amendment.

Photo of Mr Myer Galpern Mr Myer Galpern , Glasgow Shettleston

We are dealing with Amendment No. 430, and I am glad that the right hon. Gentleman has tried to draw the attention of the Committee to that.

Photo of Mr William Ross Mr William Ross , Kilmarnock

I am astounded at the range of the debate. Some have talked about history and others about limiting the powers of the Assembly and all the rest of it. Let us look at the amendment. It states: (including any provision contained in this Act)". What would be the effect of the amendment? The words would now read: Her Majesty may by Order in Council make any such amendments of the law of the United Kingdom or any part of it (including any provision contained in this Act)". If we pass the Bill, it will be part of the law of the United Kingdom. I do not want to make many or long speeches. I shall make my speeches to the point. What would be the effect of the amendment? Would it have any effect at all?

Photo of Mr Robert Hughes Mr Robert Hughes , Aberdeen North

Will the Minister say why these words are necessary? I doubt that they would do anything, and I want to know why he put them in.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

I feel dismayed, because it is not only Clause 36, Amendment No. 117, and the whole issue of expediency—

Photo of Mr Myer Galpern Mr Myer Galpern , Glasgow Shettleston

Order. As the right hon. Member for Kilmarnock (Mr. Ross) reminded the Committee, we are dealing with Amendment No. 430. The right hon. Member for Kilmarnock read out exactly what that amendment contains and its limitations.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

In that case, I merely want to say that, although I am not criticising the Chair, there is a great deal that should certainly be discussed, including the alteration of the whole basis of the power of the Secretary of State, the issue of Orkney and Shetland, Amendment No. 440 and the possible incompatibility with the EEC and the Judicial Committee. I hope that the House of Lords will look at these matters when the Bill is considered there.

I wish to make only two points. Much has been said about the Irish parallel—

Photo of Mr Myer Galpern Mr Myer Galpern , Glasgow Shettleston

Order. The hon. Member for West Lothian (Mr. Dalyell) was helpful to the Chair yesterday. If he refers to Hansard, he will find that he said that the Chair ought to be tougher concerning the relevance of contributions. I am following his advice.

Photo of Mr Tam Dalyell Mr Tam Dalyell , West Lothian

Then I ask just one question. The amendment refers to whether the Bill, when passed, is to be sacrosanct. I consulted the learned Clerks this morning, and the sanctity issue was one of those that came up on this amendment. I ask the Minister whether, given the political situation, it is realistic to suggest that such legislation should be sacrosanct, especially when we note that the political situation deeply concerns the destination of the oil revenues. Given Scottish politics, is it realistic to think that this kind of clause can limit an Assembly many Members of which would be committed to altering the basis of the legislation and claiming the oil revenues?

Photo of Mr John Smith Mr John Smith , Lanarkshire North

The right hon. Member for Kilmarnock (Mr. Ross) asked a direct question. He is absolutely right. It would make no difference if one took out these provisions. They are there in order to avoid doubt. It is essential to avoid doubt. It is honest to put them in the Bill.

My hon. Friend the Member for West Lothian (Mr. Dalyell) was a million miles wide of the point. He keeps referring to the oil revenues, but it is not within the legislative capacity of the Assembly to do anything about oil revenues. Such power could be given only by the United Kingdom Parliament. That is why the clause could be operated only following the passing of a Scottish Assembly Act. An Act must be one that is within the competence of the Assembly to pass and, since the Assembly would have no legislative competence in this matter, my hon. Friend's point was not relevant. I do not know what he meant by "sanctity" of an Act of Parliament. Parliament can change any Act. There are not two categories of Acts, those which are sanctified and those which are not. I do not understand what my hon. Friend meant.

Photo of Mr Gordon Wilson Mr Gordon Wilson , Dundee East

I shall be brief. My remarks will be in the context of what I said earlier. If it is the case that if the amendment were carried it would lead to doubt, is there not a practical problem that Acts of the Scottish Assembly might—simply because they could not put into effect the necessary consequential amendments to United Kingdom legislation—be left on the shelf until such time as Westminster got round to passing an enabling Act to make the minor changes required?

Pertinent statements have been made today. The hon. Member for Aberdeen, North (Mr. Hughes) rightly said that the business of the House would expand to fill the time available. One can think immediately of EEC business which needs more attention. It might be difficult for the Leader of the House to find sufficient time for the small measures that might be necessary, and so Scottish Acts might be left to gather dust. That would be a recipe for friction if delays were to arise as a result of the amendment preventing an Order in Council to make the necessary consequential changes.

Question put, That the amendment be made:—

The Committee divided: Ayes 158, Noes 201.

[For Division List No. 38 see c. 1521]

Question accordingly negatived.

It being after Seven o'clock, The CHAIRMAN proceeded, pursuant to the Order [16th November] and the Resolution [22nd November], to put forthwith the Questions necessary for the disposal of the Business to be concluded at Seven o'clock.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 191, Noes 155.

[For Division List No. 39 see c. 1523]

Question accordingly agreed to.

Clause 35 ordered to stand part of the Bill.