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Scrutiny Of Assembly Bills

Volume 940: debated on Wednesday 30 November 1977

The text on this page has been created from Hansard archive content, it may contain typographical errors.

I beg to move Amendment No. 182, in page 8, line 11, leave out from beginning to end of line 25 and insert—

'(1)(a) No Bill passed by the Scottish Assembly shall be enacted until it shall have been considered by both Houses of Parliament; and
(b) if either House is of the opinion that the Bill is not within the legislative competence of the Assembly or is incompatible with the international and community obligations of the United Kingdom, the Bill shall be referred to the Judicial Committee of the Privy Council for decision.'.

No. 102, in page 8, line 11, leave out 'The Secretary of State' and insert 'Both Houses of Parliament'.

No. 103, in page 8, line 13, leave out 'he' and insert 'one'.

No. 104, in page 8, line 14, leave out 'he' and insert 'it'.

No. 106, in page 8, line 18, leave out 'he' and insert' one'.

No. 108, in page 8, line 23, leave out 'he' and insert 'it''.

No. 109, in page 8, line 24, leave out 'he' and insert 'it'.

On a point of order, Sir Myer. The Lord Advocate, who has a very heavy responsibility for guiding the Committee, was just about to leave the Chamber. May I say how very pleased indeed the Committee is that he has just come back?

I am particularly pleased, because, although the hon. Member for West Lothian (Mr. Dalyell) and my hon. Friend the Member for Eastbourne (Mr. Gow) had difficulty in making their points concerning the Law Officers, I anticipated that there would be no objection if I raised this very point in moving the amendment.

At the outset I must declare an interest. I am a Privy Council appeal agent. It is not generally known what such agents are, but they are those solicitors who are entitled, having signed the roll of Privy Council appeal agents, to instruct counsel in the Judicial Committee. The Judicial Committee is a forum which is not commonly known. I see that the Lord Advocate is now crossing the Floor to join me. I hope that he will listen to this. The Judicial Committee is a forum the function of which is not generally known. The amendments deal with the Judicial Committee and a reference to the Judicial Committee.

There is one little word in the clause which I fear I have been tempted to repeat in the amendment and which shows a misunderstanding of the function of the Judicial Committee. That word is "decision". The Judicial Committee does not come to a decision or a judgment. It traditionally advises Her Majesty.

There is only one instance that I am aware of where the Judicial Committee came to a judgment. That was in the case of Malaysia. But normally the Judicial Committee is a body which is not allowed to come to a judgment. It is a committee of the British Government which advises Her Majesty. This is not just a technical point. It goes right to the basis of all references to the Judicial Committee. I wanted to make that clear at the commencement.

My right hon. Friend may develop this theme. If not, I shall endeavour to catch the eye of the Chair to do so. But it is important for the Committee to know that this clause touches on the Royal Prerogative, if not the Monarchy. That is a point of the highest importance which must be carefully scrutinised by the Committee.

3.45 p.m.

I am obliged to my hon. Friend. The point I was making is that the Judicial Committee is not strictly a court but an advisory committee to Her Majesty. I do not know why under Clause 20 it was chosen to refer matters to the Judicial Committee. After all, it has almost exactly the same composition as the House of Lords. On frequent occasions I have been able to get a case set down for the Judicial Committee because the personnel of the Judicial Committee sits in the House of Lords. Why cannot we use the ordinary judiciary—the House of Lords—as the highest court rather than going to the Judicial Committee?

Indeed, it is rather extraordinary—again, this is by direct reference to the amendment—that when there is to be a case of the Scottish Assembly breaking national rules, the case does not go to the Judicial Committee. If the Scottish Assembly endeavours to pass a Bill which is contrary to Community regulations or to international obligations of the United Kingdom, the Secretary of State merely puts a dead stop to it and does not refer it to the Judicial Committee. That is strange, because that is the kind of case with which the Judicial Committee is always dealing. It is always dealing with international affairs—international as between Commonweath countries and, indeed, the forms of independent Commonwealth countries that we now have.

The very basis of Clause 20 is in question. Amendment No. 182 endeavours to simplify the rather unusual procedure that is set out in the clause itself. We have now reached the stage where the Committee has approved that the Assembly may legislate on devolved matters, which is duly set out in Schedule 10, and for Scotland only. But if it legislates on a devolved matter and for Scotland only, it can legislate for the whole of the United Kingdom on anything which is necessary, expedient, incidental, or consequential as a result. That is what the Committee accepted last night, despite the amendment that I moved.

By Clause 20 the Secretary of State is appointed as referee to see that the Scottish Assembly keeps to the rules of legislative competence. If he is of opinion —I stress that—that the Scottish Assembly can be booked for foul play, or for breaking the rules of legislation competence, he blows his whistle and the Judicial Committee marches on to the field. I put it in that picturesque way but that is the position.

Even if the complaint against the Scottish Assembly is that it has broken the rules of the European Community or any other treaty of the United King- dom, all the Secretary of State is required to do under the formula in Clause 20 is to say that he will not advise Her Majesty to give her Royal Assent to the Bill in question. In fact, he orders everyone off the field and that is the end of it. It does not go to any sort of judicial tribunal at all.

It seems to me that Clause 20 is the most amateurish, most inadequate and most infantile effort to erect a structure of procedure for the resolution of conflict not between two legislatures—Parliament and the Scottish Assembly—but between the United Kingdom Government in the form of the Secretary of State and the Scottish legislature, the Scottish Assembly.

May I ask the right hon. Gentleman a question that he may or may not be in a position to answer in view of his connections with the Judicial Committee? When the Minister said a fortnight ago that the Judicial Committee had been informed about these things, was it asked at the same time for its opinion of the rôle that it had been given? Did the lawyers with whom the right hon. Gentleman is in association on the Judicial Committee of the Privy Council give any kind of opinion on the task that they are being asked to perform?

I do not know how one could formally inform the Judicial Committee or ask for its opinion without adopting the normal procedure of a petition to the Judicial Committee. That is how one originates procedure before the Committee. It is not a body to which one can go at any time and ask for its opinion. It is a tribunal, a forum.

The Minister of State said:

"We have ensured that the Judicial Committee and the courts' administrations generally have been informed about the proposals which concern them."—[Official Report, 14th November 1977; Vol. 939, c. 197.]

I assume that that must mean that the Registrar of the Judicial Committee, who is the administrator of that body, and each individual judge who is entitled to sit on the Committee was informed. I do not know whether each has given his opinion informally. I know nothing of a formal petition to the Judicial Committee for its opinion. There are matters in which the Judicial Committee can be required to give an opinion ex parte without any particular issue before it, but it is by formal petition that the case will be argued before the Judicial Committee.

The architects of Clause 20 realised that every federal constitution has some sort of procedure and some structure for decision and settling disputes as to the jurisdiction of the two legislatures concerned. With a sort of federal scaffolding, the architects of the clause endeavoured to erect a devolution system, a devolution constitution, and it has come out as a very rickety sort of structure.

As far as I recollect it—the right hon. Gentleman's recollection will no doubt be better than mine—the Judicial Committee of the Privy Council has been asked to give a view in the past and has given a view on the relationships or disputes between the Federal Government of Canada and the Provincial Governments of Canada. Is that not a precise parallel of what the right hon. Gentleman suggests here?

I am not saying that it cannot be done. I am saying that it is a structure that is inappropriate to this Bill. It is a federal form of structure that has been set up here, but the Bill is not setting up a federation. It is an endeavour to adapt a federal structure, which has been done so many times throughout the Bill with so much failure.

My hon. Friend the Member for The Wrekin (Mr. Fowler) has recalled the Canadian experience. What happened there was that the Judicial Committee was, in effect, responsible for taking decisions on whether something could be done at provincial level or federal level in Ottawa. The political disagreements that ensued from its pursuing that role were so intense that the Canadians decided to abolish appeals to the Privy Council because it could not keep itself out of politics. For that reason, appeals to the Privy Council were terminated.

I agree about the failure of that type of reference to the Judicial Committee of the Privy Council. Pre- cedent does not augur well for the system that Clause 20 endeavours to adopt.

The important point that I wish to make is that it is not a procedure for settling issues between Parliament and the Assembly. As I see it, both Houses of this Parliament can pass resolutions unanimously saying that in their opinion a particular Bill of the Scottish Assembly is not within the Assembly's legislative competence.

But nothing whatever need happen as a result of those resolutions. This House and another place will not be asked for an opinion. The Secretary of State is the one to give his opinion. Any views expressed by this House or the other place can be ignored by the Scottish Assembly.

To whom is the Secretary of State accountable and responsible in forming this opinion? We have raised this point before. I may have been given an answer, but I have never been able to understand exactly what the answer was. To whom is the Secretary of State responsible for forming an opinion that the Scottish Assembly is acting outside its legislative competence? If he is accountable only to the Assembly, the whole clause is pointless. The clause merely says that, if the advice of the Scottish Assembly or the Scottish Executive holding a majority in the Assembly is that a Bill is within the legislative competence of the Scottish Assembly, the Secretary of State will have to form an opinion that it is, and it will never be referred to the Judicial Committee. On the other hand, the Secretary of State is directly responsible to this Parliament and I presume that he would have to respond to motions in this House and another place.

The purpose of the amendments is to ensure that Parliament will have the opportunity of initiating any claim that the Scottish Assembly is acting outside its legislative competence. The amendments seek to place Parliament in the position in which Clause 20 places the Secretary of State. Amendment No. 102 and others have been drafted in desperation, accepting the formula, but merely putting the word "Parliament" in the place of "Secretary of State" in the hope that the Minister will at least accent this, after all his doggedness, determination and obstinacy on every amendment that we have put forward.

I do not like Amendment No. 102 and the others. I much prefer Amendment No. 182, which does almost the same thing, but refers the international breaches by the Scottish Assembly to the Judicial Committee in exactly the way that other breaches are to be referred.

Will it be practicable for Parliament to consider every Scottish Bill? The clause says that the Secretary of State should consider every Bill. The amendment says that Parliament should consider every Bill. At present, both Houses consider all subordinate legislation, and we do not find any great difficulty in doing so. The House does so by such legislation being laid before it by Statutory Instrument and by that subordinate legislation being scrutinised in Committee and, if necessary, reported to the House. It is also done by such legislation being scrutinised by right hon. and hon. Members and by being brought before the House selectively either on a Prayer or an affirmative resolution.

There is no great difficulty in this. It is not as if the House would have to debate every Bill of the Scottish Assembly. It would merely look at it in the same way that it looks at ministerial legislation at present, or EEC regulations and directives. We do not find great difficulty in selecting those matters that have dynamite in them and in passing those that seem perfectly acceptable and not dangerous. The clause itself states:
"The Secretary of State shall consider every Bill passed by the Assembly".
In practice the Secretary of State personally will not do it at all. His civil servants will examine each Bill and advise him. Why should not right hon. and hon. Members of this House look at Bills in exactly the same way? Why should it be reserved to civil servants to advise the Secretary of State rather than right hon. and hon. Members?

4.0 p.m.

Clause 20 means that this legislation will be considered by the Secretary of State's advisers. He will be advised about which piece of legislation is within or without the legislative competence of the Scottish Assembly. I am not sure who those advisers may be, whether they will be from the United Kingdom Civil Service or the Scottish Civil Service. What I am quite sure of is that Clause 20 abandons the supremacy of Parliament and hands that supremacy over to the Civil Service.

Even the Scottish National Party should accept this amendment and should be pleased to do so. If the amendment is accepted, those members of that party who are Members of this House will have a chance to argue their points in this House. It is the only chance they will get. Otherwise, the Secretary of State makes the decision and there will be no chance for SNP Members of Parliament to argue the point.

There can be no doubt that as Clause 20 stands Parliament is deprived of its legislative supremacy. The amendments, particularly No. 182, seek to restore that in what is a perfectly practical way.

In my view this is a matter of the greatest importance. I start with the proposition that political decisions ought to be made by the political process and not handed to lawyers. This is a proposition that was highly acceptable to my right hon. Friend the Lord President because, as my hon. Friend the Member for Liverpool, Walton (Mr. Heller) well remembers, a great deal was said by the Labour Party when we were in opposition about a High Court judge being involved in politics. It is no good the Minister of State or anyone else saying that it is simply a decision on vires—some neutral decision that lawyers can legitimately make.

The truth of the matter is that whenever the Judicial Committee of the Privy Council is brought in to decide as between the Assembly and Parliament in Westminster, it will concern, by definition, a subject of controversy. If that were not so, there would be no row and no need to bring in the Committee in the first place. We cannot say to ourselves "Oh well, it is just the lawyers deciding a legal problem in a vacuum." What they are being asked to do is to decide on a highly-charged political matter.

It might be of help to this Committee if I explained precisely the composition of the Judicial Committee. There is a great deal of vagueness about this, and I must say that before this subject arose my ignorance was just as great as that of any other colleague. I have found out from the Library that the Judicial Committee consists of the Lord Chancellor, the Lord President, ex-Lord Presidents, Lords of Appeal in Ordinary—that is, judges in the House of Lords—the Lord Justices of Appeal—that is, judges of the Court of Appeal—and
"such other members of the Privy Council as shall from time to time hold or have held 'high judicial office'"
within the meaning of the Appellate Jurisdiction Acts 1876 and 1877, I exclude the Commonwealth representatives.

I do not know why the hon. Member should exclude the Commonwealth representatives. They are important. We have an ex-Attorney-General of Ceylon, a Lord Chief Justice of Australia, and so on. I am not sure why they should decide issues between Scotland and England.

I was simply trying to save time. I should have included Commonwealth representatives. I have a list here of the members of the Judicial Committee. They include the Lord Chancellor, Lord Elwyn-Jones; the Lord President of the Council, Thomas Frederick, Lord Peart; Reginald Edward, Viscount Dilhorne; John Clarke, Lord MacDermott; Alfred Thompson, Lord Denning; John William, Lord Morris; Francis Lord Charlton; Christopher William Graham, Lord Guest; Patrick Arthur, Lord Devlin; Edward Holroyd, Lord Pearce; Gerald Austin, Lord Gardiner; Richard Orme, Lord Wilberforce; Colin Hargreaves, Lord Pearson; Herbert William, Lord Aylestone William John Kenneth, Lord Diplock; Quinton McGarel, Lord Hailsham of St. Marylebone; John Lord Wheatley; Jocelyn Edward Salis, Lord Simon of Glaisdale; Arthur Geoffrey Neale, Lord Cross of Chelsea; Lord Widgery; Lord Kilbrandon.

Let us consider Lord Kilbrandon. Here is a man who is supposed to be in the position of a neutral judge. He is no less prejudiced on these matters than I am.

The hon. Gentleman is surely familiar with the practice that prevails whereby judges do not sit on matters with which they have been previously concerned, whether in a political capacity, whether through a court of inquiry or anything of that kind. It is unthinkable to me that Lord Kilbrandon would be called upon to sit on the Judicial Committee in the circumstances envisaged in the Bill.

It may be unthinkable but Lord Kilbrandon is entitled to sit on the Judicial Committee. In the issue of the Scotsman of 28th November, Lord Kilbrandon said some explosive things. He said:

"Two hundred and seventy years ago these were vital questions. It is not so easy to perceive an overriding necessity for union in the 1970s."
The newspaper report went on:
"Lord Kilbrandon said the Assembly would have power to lay down their own procedure and he expressed the hope that they would avoid entangling themselves in some of the absurdities discreditable to a legislature pretending to be in business."
That is a straight report of Lord Kilbrandon's speech. Now that he has retired he is entitled to express such a point of view. I am sure that he must have held such prejudices while he was a judge and I am sure that many judges hold political views. I ask once again that political decisions should be made not through the legal process but through the political process.

I had better continue with the list of members of the Judicial Committee. Other members include Lord Salmon; Lord Edmund-Davies; Lord Home of the Hirsel; Lord Fraser; Lord Russell; Lord Carr; Lord Keith of Kinkel; Lord Glenamara, who has certainly played a part in this discussion.

Would the hon. Gentleman not do better if he were to give us a reading from his book?

Lord Glenamara was the right hon. Edward Short. I could go on with the list. It is an exceedingly unsatisfactory situation.

Although the hon. Gentleman is dealing with a point of immense legal and constitutional importance, so as not to spread dismay and consternation throughout the land may I ask him to make it plain that the customs of the Judicial Committee are such that neither the Chairman of Cable and Wireless Ltd. nor the Lord President of the Council will ever be called upon to act in a judicial capacity?

I hope that the Minister of State will make this clear. So far it has not been made clear.

I do not want to take too much time, because of the Guillotine. But I want to put a direct question to my hon. Friend. What did he mean when he said that the Government had ensured that the Judicial Committee and the courts' administrations generally had been informed about the proposal which concerned them? I say bluntly that there are certain people in the list that I have just read who have not been so informed.

Will the hon. Gentleman agree that his comments about the rôle of the Judicial Committee are a very good indication of the way in which the British constitution acts mostly by custom and precedent and that it is the fact that, although the custom and precedent is as laid down by my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton), no one looking at our constitution who did not know the precedents and the customs would understand the way in which the Judicial Committee was likely to act? It is when we start to try to incorporate continental systems of a written constitution that, understandably, we get into these difficulties.

We are in very genuine difficulty about this. It is quite clear that there would be endless argument about those people from whom the members of the Judicial Committee were chosen. I look forward to hearing how they will be chosen. Some of those people might themselves say that they were unwilling to serve on any kind of Judicial Committee. That would be to their credit. They might say, very reasonably, "We have very strong views of a political nature. How can we be asked to serve on a Judicial Committee?" That is one problem.

The second problem is to know who will accept a decision, in a highly charged political situation, handed down from on high by a Judicial Committee when that decision goes against them?

Let us suppose that there was a Judicial Committee decision about a kind of Tameside situation. That is what the argument would be about. It would be about that, about money or about some other difficult issue. It would be only human nature for the people who were defeated to say "Why should we take it from the Judicial Committee of the Privy Council?"

I say simply that these matters have to be settled by the political process in a political way and not handed over to lawyers. Lawyers cannot do the so-called dirty work for the politicians. Apart from anything else, it is the surest way of bringing the judges and the High Court into disrepute by embroiling them in politics, often against their will.

But I want to know what is meant by my hon. Friend's statement about ensuring that the Judicial Committee was informed. I should also like to be clear about the view of the lawyers on this matter. With due respect to the Minister of State, it is not his job as the advocate of the Bill to do this task—all other tasks, possibly, but not this one. We should have an authoritative statement from the Law Officers, speaking as law officers after consultation with the Lord Chancellor.

I have to report to the Committee that I have been singularly unable to persuade the Law Officers to make any such statement. This should be a statement coming with the authority of the Lord Chancellor of what the judges think about the rôle that they have been given. My information is that the judges are very unhappy about many aspects of this.

4.15 p.m.

In considering this group of amendments —and it will be the same in considering the next group—the Committee is beginning to taste some of the delights of a written constitution. The reality behind the debate appeared, albeit in different ways, from both the speech of the right hon. Member for Crosby (Mr. Page) and that of the hon. Member for West Lothian (Mr. Dalyell).

In two respects in recent years, we have started to provide ourselves with elements of a written constitution. The first such occasion was by becoming members of the European Economic Community. The Treaty of Rome and the Treaty of Accession are the first written constitution which this country has had. That decision, too, has produced its effects in the wording of this clause and in the thought processes of the Government, which one can trace as one studies its provisions.

But in the case of this Bill, what we are attempting is to give a partial written constitution to a part of the Kingdom. It is the old phenomenon, which we have met so often in these debates, of the consequences of semi-federalism.

There is one certain and indispensable concomitant of a written constitution. That is a supreme court—an authority which can authoritatively and beyond dispute adjudicate upon what is, and what is not, constitutional and which, by the very fact of accepting that constitution, is accepted as entitled to do this.

Following on from the speech of the hon. Member for West Lothian, it is implicit in having a written constitution—it was implicit in signing the Treaty of Accession in 1972—that we accept that highly political and ultimately overriding decisions will sometimes be taken not by bodies responsible to the people but by judges. The people of a country which lives under a written constitution lives in that sense under the rule of judges. I am emboldened to describe them—I do not know whether the word has been invented before—as the inhabitants of a critocracy.

The difficulty of our relations with the European Community is not one of logic. The question whether our legislation in this House is repugnant to the law of the Community is decided by the Supreme Court of the Community—though that is not actually its name. The problem there is whether or not we like it, whether we are content that it should be so; but at any rate the logic is intact.

The trouble with this clause, with which the amendments vainly try to cope, is that we have a semi-federal and semi-written constitution for part of the Kingdom, but have not got the supreme court. What we are looking for in the clause and in the attempts to amend it is an acceptable constitutional court of a federal United Kingdom which does not exist but which is implicit in what we are trying to do in endowing Scotland, and Scotland alone, with a legislature.

Two questions have to be met at the outset when we address ourselves as the Government have done—we can trace their struggles in the text of the clause—to the problem. The first is at what point the deus ex machina—the judgment—shall be brought in. Is it to be brought in to stop the subordinate legislature while it is still doing something which someone else apprehends is ultra vires, do we wait until they have completed all the processes, or, finally, is it only when law has apparently been made by the subordinate assembly that what they have done is to be challenged and referred to adjudication?

Different answers have been given at different times by this House. In the case of the 1920 Government of Ireland Act, power was taken to intervene at an early stage. The governing words are:
"If it appears to the Lord Lieutenant…in the public interest that steps shall be taken for the speedy determination of the question whether any Act…or any Bill introduced in either of those Parliaments"—
the Northern Ireland Parliament or the Southern Ireland Parliament—goes beyond its powers, then a certain reference shall be made.

I will come to the reference in a moment. For the present I am concerned with the fact that in 1920, in setting up subordinate legislatures in the island of Ireland, the view was taken that one could not let those subordinate legislatures go on through all the processes—at least one should have the power to prevent them from doing so—and then, when they had completely agreed to all stages of the legislation, come along and say "But that is ultra vires".

In the case of the misbegotten Northern Ireland constitution of 1973—that is a very polite term compared with others which are commonly applied to it in Northern Ireland—there was provision under Section 5 to prevent a Measure being brought in at all if it appeared to the Secretary of State—the Clerk of that Assembly was to examine Measures with this in view—that it was, or might be, ultra vires. So that was a still earlier stage.

In this clause, however, the Government propose—for the effective words in lines 11 and 12 are "every Bill passed"—that the adjudication shall only be started when the Bill has gone through all stages in the Scottish Assembly, thus, one would imagine, maximising the implicit friction and clash of political intention by allowing the Scottish Assembly to give full assent to the proposals, before the Secretary of State steps in and says "But I am not going to take it to the Queen; so there!".

The last possible stage, which we have not ousted by this Bill—indeed, it was not ousted by the 1920 Government of Ireland Act—was that one waits until the Act is in fact apparent law before it can be submitted to whatever is the appropriate jurisdiction. That, of course, is the procedure inside the EEC: we do not have its court listening in on our proceedings, or intervening between this House and the submission of the petitions to this House to Her Majesty, but when we have performed a legislative Act, anyone can challenge its validity before the court of the EEC.

Therefore, I say first, that there is a very real difficulty, which I do not believe this clause has satisfactorily solved, concerning the stage in the subordinate legislative process at which the question of vires is to be tested. More serious, however, is the question, by whom it is to be done—to whom the reference is to be made. Here there are three or four possibilities in the arena. The first—this is what I gather would appeal, judging from his speech, to the hon. Member for West Lothian—is that the decision should be recognised clearly as political, as an act of the superior Government based on the superior Parliament, and that the Secretary of State himself should pronounce upon the vires of a Bill when it becomes an Act.

That, one might say, is following the precedent, though not the timing, of the Northern Ireland Act 1973, in which it was the Secretary of State who said to the Northern Ireland Assembly "Yes, you can carry on with that legislation" or, "No, you cannot carry on with that legislation", and where his certificate was required in any case where he thought that something was beyond the legislative competence of the Assembly before it could complete the legislative process. That is one possibility, that the Secretary of State could do it. That was the Government's first thought. That was the proposition which the Govern- ment first presented to the House a year or two ago in the form of the White Paper.

The second possibility is that we should find a judicial authority to do the job. I must say that it is repugnant to me, despite my following the arguments of the hon. Member for West Lothian, that the interpretation of the effect of a statute should be authoritatively taken other than by a judicial process. Therefore, I can understand the reasons which led the Government to abandon their original idea of an executive ruling and to substitute a judicial ruling. But then, when we turn round and try to do that, we discover great problems in finding an appropriate judicial body.

I have to say to the Secretary of State that there are severe problems attaching to the Judicial Committee of the Privy Council for this purpose. I know, and I have indicated already, that there is a precedent for this—but I believe it is a precedent which should give us pause—in the Act of 1920, an Act, as it was ironically called,
"for the better government of Ireland",
where it was provided that reference could be made, upon the motion of the Lord Lieutenant or the Secretary of State, to the Judicial Committee of the Privy Council.

I ask the Committee for a moment to recall the background of the 1920 Act, the Irish Home Rule Act as split into two following the events which occurred between 1914 and 1920. An essential element of that background was the expectation—I might almost say "the intention", and that would be not imputing anything unworthy to any party—that the development of that constitution should follow the lines of the development of the Canadian constitution. The analogy of Dominion status and of the Canadian evolution was thoroughly present to the minds of those who, from 1916 onwards, were contemplating how the Government of Ireland Act 1914 would require to be amended if it was to survive at all and form the basis of future political development.

It was, therefore, entirely natural that, looking for a judicial authority to perform this function, they should select that judicial authority which characteristically is invoked by the Crown, not to settle the interpretation of the law of this country, not to settle the meaning of the statutes which this House of Commons passes, but to settle matters arising under the Crown but outside this realm and outside the area represented by this House of Commons. That is how the Isle of Man and the Channel Islands come in and how all the Indian and colonial appellate jurisdiction which was built up by the Privy Council over a century arose. So it was entirely natural in that context that Dominion status in embryo should be provided with a Dominion-type judicature to settle questions of ultra vires.

But, as I say, the difficulty with which we are here confronted is that we are invoking that judicial authority to give an opinion on the meaning of a statute which this House of Commons is engaged in framing for the management of an integral part, which we assert will remain no less integral, of this United Kingdom under this Parliament.

Therefore, we are led to ask whether there is any alternative. The alternative, of course, would be to use the same instance as is called into play when any other question arises whether the action of a Minister is intra vires or in the interpretation of an Act of this House of Commons. Of course, since we have no written constitution and since Parliament is sovereign, there can be no question of the vires of an Act, nor do we have an authority to rule upon the vires of our Acts except in the context of the federation to which we belong that is known as the European Economic Community. Domestically we do not have that. Nevertheless, the courts are there, the ordinary courts—with recourse right up to the House of Lords—for the interpretation of the law made by this House of Commons when doubt is cast upon it or when dispute arises.

4.30 p.m.

So why was not this question of vires also left to due process of law in the courts? I suspect that there are two reasons. I suspect that the first reason is that in that event one would have to invoke the ultra vires procedure at the very last stage, not at the sort of penultimate stage when Mr. Secretary of State is about to go to the Queen with a Bill but after the last stage, when it is an Act, so that one would be confronted with the possibility of an Act of the Scottish Parliament being struck down by the courts of this country and potentially, in the last resort, by the House of Lords.

There may be severe administrative inconvenience in that.

I see that the Lord Advocate does not think that there is. I am greatly encouraged because in that case I am fortified in my instinct that if we possibly could, we should use the same judicial means for settling the meaning and application of this statute as of any other statute. But there was probably also, in the minds of the Government—and I should be interested if the Minister of State could comment on this—a doubt whether it is quite consistent with what we are doing, or purporting to do, in setting up a legislature for Scotland, that the courts of the United Kingdom and ultimately the House of Lords should decide what is to be the limit upon the powers of the Parliament of Scotland, and should be given authority to strike down Acts of the Parliament of Scotland if they find them ultra vires.

Imagine what would be said by SNP Members in Scotland if this happened. Would not they have a heyday against the Lords?

I suspect that the "i" that the hon. Member has dotted was very much in view by the Government when they went for preference for what I shall describe for brevity as colonial judicature.

Thus what this debate is doing is to present to us once again the consequences of attempting to go half federal, of attempting to give a part, and a part only, of this realm a written constitution and partial self-government while still pretending that it remains an integral part of the Kingdom and subject to the authority of the House of Commons, in every respect as the other parts of the Kingdom. Whichever way we test it—and this is the significance—we have not yet found a clause which, when examined, did not yield the same result: one cannot do it. We are attempting to do something inherently contradictory. That is why both the clause and the amendments —it is no criticism, for they make the point—fail, because we are bound to fail in our attempt.

I share the view of the right hon. Member for Down, South (Mr. Powell) that much of the genuine as opposed to the political difficulty of this Bill and of our experience in this House from time to time has been that we go half way along the road and then stop without reaching our destination. The right hon. Gentleman said that the proposal was semi-federal. I would prefer to call it a semi-devolutionary proposal. There is a sharp distinction between federalism and the principle of devolution. It covers only one part in terms of the legislative devolution of the United Kingdom.

I have strongly argued—initially in private because it would have been difficult for me to argue this case publicly at one stage—that we would have been wiser to delay a little and to work out a fully fledged scheme for the whole of the United Kingdom if we wished to travel on that road at all. We are bound to experience difficulties if we proceed on this route.

On the other hand, that is no argument for not proceeding on that route, for a simple reason. If we were to try to work out such a scheme, such are the procedures of this House—and I have some sympathy with the words of Lord Kilbrandon on this subject—that we should never legislate at all. I hope that this Bill will be the beginning of our travelling further along that same road until we have a fully fledged devolutionary system.

The right hon. Gentleman was right to say that if we legislate in respect of Scotland alone and turn to the question of the determination of vires we shall face a hideous dilemma. We can either use the existing judicial mechanism in determining vires, or we can establish a totally new judicial mechanism in the shape of a supreme court, which does not exist, for this one purpose alone in respect of one part of the United Kingdom. We can also say "Let us dispense with judicial mechanisms totally and decide all such questions as if they were straightforward political questions."

That is the view taken by the right hon. Member for Crosby (Mr. Page) who moved Amendment No. 182. He wishes this House and another place to take decisions on matters of vires.

The right hon. Gentleman may be surprised to know that I have more sympathy with him in that idea than he might suspect, because initially that was my view. He will remember that at one stage it was the Government's view. I was very attracted at that stage by the notion that we should not follow either of the other two courses—in other words that we should neither invent new judicial mechanisms nor, alternatively, impose either what the right hon. Member for Down, South called with some justification the colonial judicial process or the normal judicial process in regard to Acts of the Scottish Assembly in determining their vires.

On the other hand, what turned me against that view and against the proposal put by the right hon. Member for Crosby was the realisation—a realisation that every politician should find it easy to comprehend—that from time to time this House does not always vote in a judicial manner but that sometimes its behaviour is occasioned by matters of political advantage. That may be to the political advantage either of a group or party in this House, or particular individuals in this House.

I put to the right hon. Member for Crosby that it is not inconceivable that in a situation where the Conservative Party had a single-figure majority in this House and yet was not in a majority in the Scottish Assembly a Conservative Secretary of State would move to reject an Assembly measure on the ground that it was outside the legal competence of the Assembly and that he would fail to get that motion through this House because it might be to the advantage of the Labour Party, the SNP or the Liberal Party to ensure that the motion was rejected. Indeed, there would be certain Scottish Members in the Conservative Party who as individuals would find their own political position in jeopardy if they were to support that Conservative Government on such a proposal. I think that that would bring the whole process of this House into disrepute and would turn a judicial matter into a head-on political confrontation between the Scottish Assembly and this House.

The right hon. Member for Crosby said that it might be to the advantage of the SNP to vote for his amendment, and I think he is right. The policy of the SNP Members is to produce confrontation of that kind because, so far as they can see, only they can benefit from such confrontation. I hope that SNP Members will not follow his advice, but I understand the point he was making.

The hon. Gentleman suggests that a decision of this House might be made on a political basis, but if that decision is made by a Secretary of State, it is even more likely to be a decision on a political basis.

When the right hon. Gentleman refers to a decision to be made by a Secretary of State, he is referring to the initial decision whether to refer a matter to the Privy Council. Once the Secretary of State has done that he is, as the clause is drafted, bound by the Judicial Committee of the Privy Council.

The right hon. Gentleman asked "To whom is the Secretary of State responsible in forming his opinion?" The right hon. Gentleman refers to the negative case. What happens when a Secretary of State refers an Assembly Act to the Judicial Committee? To whom is he responsible and accountable? The answer is simply that he is accountable to this House.

The right hon. Gentleman knows the technique he must adopt. He must table a motion of censure on the Secretary of State, or a motion to reduce his salary by some motional sum. In other words, he must seek to force the Secretary of State to resign or change his mind. At that point the issue has become political, but it has done so within terms which we understand here and which are confined within this Chamber on a political issue. It will be a party political issue in this Chamber because one party does not share the view of the other major party. In this instance I am talking of the United Kingdom authorities and not of sectional interests which represent only one part.

The right hon. Gentleman cannot say that the Secretary of State is not accountable. By this system he is more accountable in the normal political sense than if he had to come here repeatedly and lay measures before this House. That would become a bone of political contention in this House, and even a bone of Scottish political contention in this House, rather than a bone of United Kingdom contention.

The hon. Gentleman has lectured in Strathclyde and, as a former Minister, he understands these matters. Does his experience lead him to believe that there is any way in which the Judicial Committee of the Privy Council would not be involved in political contention?

I shall come to that matter a little later. I wish to deal with one other point made by the right hon. Member for Crosby, who spoke of Parliament settling issues between the Assembly and the Government. It seems to me that we are not discussing disputes involving the Government and the Scottish Assembly but trying to find a means, albeit not a completely satisfactory means, of settling what is essentially a judicial question. That is why I want to deal with the other alternatives.

The right hon. Member for Down, South said that it might be possible to use the ordinary courts in this country rather than the Judicial Committee of the Privy Council. Had he said "the courts of the United Kingdom" I should have known more or less what he meant. But he said "the courts of this country", and that is the first difficulty with that proposal. Which country did he mean—England or Scotland?

It is possible to imagine a case in which either set of courts could be used. He will say that they come together, at least in certain respects—not in all judicial functions but in some—at the level of the House of Lords. The hon. Gentleman's proposal therefore boils down to the use of the House of Lords rather than other courts. If this matter were to be settled in the English courts, that would become a bone of fierce political contention in Scotland. If it were settled in the Scottish courts, the English interests would never accept that Scottish courts were the best means of judging such disputes, or that they could do so without bias.

4.45 p.m.

I broadly agree with what the hon. Gentleman says. He may be interested to recall that in the 1920 Government of Ireland Act the court of appeal—that is, the one distinct from the provisions in Section 51—was the High Court of Appeal for Ireland.

I accept that entirely and it would be possible to devise mechanisms for the use of the Scottish courts with the House of Lords giving ultimate judgment.

However, there is another weakness. The right hon. Gentleman is proposing the use of the courts after the passage of the Act. If one permits that, one permits the use of the courts. That can happen in any event, because there may be disputes after any length of time over the validity of the interpretation of a particular provision of an Act of Parliament. We can have uncertainty in the law in England, too. Indeed, the prime manifestation of that was the Tameside judgment, which overturned what everybody had believed to be the law—much to my chargrin, because I was heavily involved —after no less than 32 years.

However, that uncertainty becomes the greater if there is no regular means of establishing the way the Act of a minor assembly—I am not attempting to be parochial about the Scottish Assembly and use the word in a legal sense—is within the legal competence of that Assembly before the Act is applied. If we do not have such a procedure we shall find many hard cases where an Act of an Assembly is applied, perhaps to the pecuniary disadvantage of individuals, and then, years later, it may be ruled through the normal judicial process that that Act was ultra vires. We must find means of obtaining a ruling before a Bill becomes an Act.

Not only do we have the opportunity of obtaining a ruling from the Judicial Committee of the Privy Council before an Assembly Bill becomes an Act, but provision is made in the Bill for post-legislative attack on Assembly Acts, which could create tremendous uncertainty.

I am perfectly well aware of that. The point that I am making is that if one simply has the normal situation in which the courts may at any point rule on the interpretation of an Act and we also have a provision that the courts could decide that a particular Act was beyond the competence of the Assembly, there would be even greater uncertainty. One way of removing a substantial amount of the uncertainty is to obtain a judicial view before a Bill becomes an Act.

Clause 18(4) says:

"The validity of any proceedings leading to the enactment of a Scottish Assembly Act shall not be called in question in any legal proceedings."
Would not that include the kind of review by the courts to which my hon. Friend is now referring?

No. We are here talking about legal competence, not proceedings leading up to the passage of an Act.

I turn to the possibility of using the House of Lords. The great danger with that is that in Scotland, at any rate, a decision of the House of Lords—although it may be perfectly well understood here as a legal matter—might be seen as a decision that was not essentially judicial but political. It could be seen as a decision of part of the English Parliament. I therefore dislike the notion that we should use the House of Lords.

I agree entirely that to use the Judicial Committee of the Privy Council is, in essence, to use the same body as the House of Lords—that is, the Law Lords —provided we exclude the ex-politicians who do not have a legal background and who are technically members of the Judicial Committee but who are not called upon to sit on it. I should prefer that the Judicial Committee of the Privy Council was used, in spite of its use in connection with the colonies and Dominions in the past.

Will this still not be seen as a political decision? The answer is that any decision ruling that an Act of the Scottish Assembly was ultra vires would inevitably be seen in Scotland, in certain circumstances, as a political decision or as one with political overtones. I see no means of evading that.

If there were—heaven forfend—an SNP majority in the Assembly and if an Act were overturned by the Judicial Committee, I do not doubt for one second that the SNP would use the argument that this was an English political decision. We must live with that. Our task now is to minimise the danger. That danger cannot be eradicated and the clause as it stands is the best means that we can find of minimising the danger for as long as there is a specific Scotland Bill, taking us along the road to what the right hon. Member for Down, South (Mr. Powell) called semi-federalism and what I call semi-devolution.

Granted that weakness, we must make the best of a bad job and the words in the Bill will help the Government to do that.

We have just listened to a speech of remarkable honesty. The hon. Member for The Wrekin (Mr. Fowler) pointed out many of the grave constitutional problems that are inherent in the Bill and that come up as we examine it daily, clause by clause.

This afternoon we are again considering the practical difficulties in dealing with legislation of an Assembly, to ensure that legislation passed by that Assembly will not wreck the constitution of the United Kingdom. As always, we are indebted to my right hon. Friend the Member for Down, South (Mr. Powell) for pointing out so clearly the dangers of introducing into our political and constitutional life a written constitution for one part without a supreme court—a sort of half-botched going federal. As we discuss the Bill clause by clause we come up against these inherent difficulties that no one so far has solved. As the debates go on and are reported as widely as they have been throughout the country, people will increasingly come to realise what great dangers the Bill poses to our constitutional life in the United Kingdom.

I make no secret of my position. I do not want an Assembly of any kind in Scotland or in any other part of the United Kingdom.

I quite agree.

I think that it will be found that to have an Assembly in a unitary State, particularly where the main country, the one with four-fifths of the population, does not have an Assembly, will be the cause of endless problems, confusions and conflicts. However, as the clause and the amendments are before us, the least we can do is to try to minimise the mess and muddle.

The clause places an almost impossible burden on the Secretary of State, subject as he will be to every kind of political pressure, if not blackmail. What a poisoned chalice this post will prove to be to the unfortunate holder!

I should have preferred the amendment to say that matters of problem and conflict should be referred in the ordinary way to the ordinary courts of the land, but, clearly, the Government have no intention of doing that. Therefore, unfortunately, we can no longer regard that as a possible alternative. That being so, we are left only with the choice of removing the important task of scrutiny to this House, so that we can if possible reduce the conflict to a minimum and ensure that the House is fully apprised of all the Bills that the Assembly has passed or is trying to pass.

That will have the further advantage of demonstrating to everybody in the United Kingdom that this House is still sovereign and cannot be undermined by a subordinate Assembly. It will underline that legislation by the Scottish Assembly will necessarily be secondary legislation.

Perhaps I may add, without wishing to be thought frivolous, that this scrutiny will give the 71 Scottish Members who remain here something to do. Deprived of contact with the mainstream of Scottish life, they would at least be able to pore over the Scottish Assembly Bills, and that might keep them happy for part of their miserable existence here.

When we consider the content of the Bills, the mind starts to boggle. I believe that the Members of the Scottish Assembly will vie with one another to show their determination to be as Scottish and as separate from the United Kingdom as they can. They will be trying to stretch and strain their devolved rights to the utmost of their power. The task of controlling them would be impossible for the Secretary of State and highly unsuitable, for the reasons we have heard this afternoon, for the Judicial Committee of the Privy Council. Therefore, we are left only with the Commons of the United Kingdom who should have this vital rôle.

I have one much more serious worry, so serious that I must measure my words most carefully. This is a wholly new point. What will be the effect of the clause on the Royal Prerogative—nay, more important still, how will it affect the position of the Monarch herself? Does anyone present believe that if the Judicial Committee considered a specific Bill and advised Her Majesty that it was beyond the Assembly's competence, and therefore should not be passed into law, the Scottish National Party would take that decision lying down? Can we not imagine that it might suit its book to rail against not only the Judicial Committee but, in the last resort, against the monarchy?

5.0 p.m.

Speaking in Westminster Hall on 4th May 1977, the Queen said

"I cannot forget that I was crowned Queen of the United Kingdom of Great Britain and Northern Ireland."
Does not the hon. Gentleman think that she has some right in these very special circumstances to be consulted about some of these things?

I had occasion yesterday to give a ruling that references to the Queen's opinions, whatever they were, were not in order. I repeat that ruling for the benefit of hon. Members. The hon. Member for Halesowen and Stourbridge (Mr. Stokes) seems to me to be going along a road where he will convert all the members of the Scottish National Party into revolutionaries.

I shall not comment on the political point that you have just made, Sir Myer.

Without wishing to offend the hon. Member for West Lothian (Mr. Dalyell), whose interruptions have been such a notable feature of these debates—and I do not object to them—I must tell him that I had thought of quoting Her Majesty's speech on the occasion to which he referred, but, for the very reasons that you gave, Sir Myer, I decided that it would be improper to do so. Therefore, I hope that the hon. Gentleman will not prove to be more royalist than I am.

I warn the Committee that I would not put it past the members of the SNP—ruthless and opportunist as they are and deter- mined to stop at nothing to gain their end of separation and independence—in the last resort to attack the monarchy.

I am sad that neither my right hon. Friend the Lord President nor anyone else from the Cabinet is present to hear these discussions, because they are of the greatest importance. We are talking about the future of this country as a united State, and the arguments should be heard. It is most regrettable that most Labour Members have obviously written the Bill off and decided that it is of no consequence, but it is of great consequence. The more I listen to the debates, the more I am sure that the people will become totally confused.

This afternoon we have heard some erudite contributions, particularly from those who understand the law. I am not a lawyer. I am just a simple, ordinary, working-class chap who happens to have been elected to the House of Commons. It is from the simple, ordinary, working-class chap's point of view that I want to look at the matter. The more I listen to the debate on the clause, the more I see that it goes to the very heart of the whole question. We are discussing the central issue of the Bill.

The Assembly may pass legislation that is not liked by the Government of the day, whoever they are. If the Secretary of State decides that he is not happy about it, or if the Judicial Committee of the Privy Council looks at it, that is an immediate recipe for conflict. There is bound to be discussion and argument.

I agree with the hon. Member for Halesowen and Stourbridge (Mr. Stokes) that the 71 Members from Scotland, if they are still sitting here, will come into their own, because they will be under immense pressure from their constituencies to support Assembly legislation. There will be a great argument. The legislation will not be discussed in this House unless the amendment is accepted, and I have a great deal of sympathy with the amendment. Whatever happened, and whoever decided that it was not acceptable, the so-called English Parliament would be the villain of the piece. In that situation there would be even greater cries on the part of the Scottish nationalists for independence. That would be disastrous. I cannot think of anything worse.

It upsets me that this debate can proceed with hardly anyone listening to it. I can understand why Members take the view that they will not remain in the Chamber: they are bored with the Bill; they do not like it; they think that it is an awful business anyway. However, I wish that they would listen. If they listened, they would come to the conclusion that the whole thing is a lot of nonsense. The more I listen, the more I take the view that we cannot possibly go along with the rôle that is to be given to the Judicial Committee.

I am not prepared to divulge any names, but I understand that none of the members of the Committee has been consulted. No one has been asked for his opinion. It may be that the Committee does not want to make these decisions. If we are to ask people to make such important decisions, it is important that at least they should be asked. Their opinion should be sought. I should like to know their opinion. I should like an answer from the Judicial Committee.

The important question is whether we should elevate the Judicial Committee so that it becomes a supreme court. Are we beginning to have a written constitution? What is the judges' rôle in our political system? We have always argued—no one more strongly than my right hon. Friend the Lord President—that the judges should interpret the law and not make it. I agree with my right hon. Friend. Over the years many people in the Labour movement have argued that the judges have tended to make the law and that we in the House of Commons have had to put matters right, to restore what was before. In some cases the judges have gone beyond interpretation. There has been conflict. However, it seems that we are now to elevate a body to a position in which it will not merely interpret the law, but, in a sense, make the law. That is a serious development.

I agree with the right hon. Member for Down, South (Mr. Powell) that if we are talking in terms of a federal system— I can understand the argument for such a system—we should have some sort of supreme body, such as a supreme court. However, I do not think that we need a supreme court. A federal parliament could make the decision. There would have to be some supreme body, of course, to make decisions for the whole of the federation. That is a half-federal position. I use the phrase that my Dad used to use in the old days, it is neither one thing nor the other—in fact, he had a much better phrase, but I cannot use it in the Chamber.

There is nothing worse than a situation that is neither one thing nor the other. That is the worst of all possible worlds. If we had a federal system, that would be one thing. Even if we had regional government throughout the whole of the United Kingdom—I must say to my hon. Friend the Member for The Wrekin (Mr. Fowler), who is demanding regional government in England, that I do not hear great demand for that—it would be something.

However, the last thing that we want is another tier of government. We have too much damned government now. We do not want all these tiers of local government and regional government. We have far too much government. In a sense we are over-governed. We do not need this bureaucratic structure. [HON. MEMBERS: "Hear, hear."] Opposition Members are shouting in support, but they are the very people who brought it in. Labour Members argued against it. It is the Conservatives who are responsible. However, having brought it in, they do not like it: fair enough, but they should not have brought it in in the first place. If they had not done so, we should not be in in this situation.

It is not only a matter of regional government. To make the proposed system work there would have to be subordinate Parliaments in places such as Liverpool.

I entirely agree. I only wish that we could find oil in the Irish Sea. If we could find it, that would solve all our problems. If it were found, the Scottish demand for independence would disappear in one day, especially if we found a great quantity. The Scots would be happy to remain with the rest of the United Kingdom in the event of such a find. Oil is one of the problems. That is where the Scottish Nationalists have fastened their gaze in looking to the future of Scotland.

I hope that my hon. Friend will not lose sight of the fact that a large percentage of the oil—about 60 per cent. to 70 per cent. —lies off Shetland and that Shetland wants to remain firmly within the United Kingdom, and possibly would walk out of the Assembly if it is formed in Scotland.

Order. We are getting away from the main purpose of Clause 20. We are not on Second Reading. I am sure that the hon. Member for Liverpool, Walton (Mr. Heller) appreciates that, but I understand that he is about to conclude his speech.

You are quite right, Sir Myer. I do not want to go beyond the terms of the clause.

I do not want to see the Judicial Committee elevated to some sort of supreme court. However, that is what is likely to happen if we allow the clause to go through unopposed. That is why I have a great deal of sympathy for the view expressed by the right hon. Member for Crosby (Mr. Page).

Whether the decisions are made by the Secretary of State or the Judicial Committee, in the end they will be political decisions. That cannot be avoided. For example, the Supreme Court of the United States makes political decisions. One of the most momentous decisions that it ever made was on race. It was a fantastic decision. No one thought that that court would ultimately come to such a decision. However, it was a political decision. It was a judicial decision in that it was made by judges, but there is no question but that it was a political decision.

Should we leave these matters to a small number of people in the first analysis, or in the last analysis should a wider body of elected people make the decisions? If we are to have the Bill, and if this sort of clause is to become a section in the Act, it would be far better to make provision for a majority of elected people to decide than to make provision for judges. If it is the judges who are to decide, we shall always be arguing that they have made the wrong decision. If we make a wrong decision, we make it as elected representatives, and it is not made by a small group.

5.15 p.m.

I must apologise to the right hon. Member for Crosby (Mr. Page) for being absent when he addressed the Committee. Unfortunately, I was called out of the Chamber. However, the amendment is extremely clear and as I read it I have considerable sympathy for it.

I look at the situation as it will strike not this Parliament, not the Scottish Assembly, not the local authorities and not the lawyers and others who understand what vires may or may not mean, but from the point of view of the ordinary people of Scotland. In a year or two, if this measure is enacted and others follow, the ordinary people of Scotland will be in considerable confusion about the source of important regulations and legislation that affect their lives. Some of them might come from Brussels, from London or Edinburgh. It is incumbent on this House at least to make clear what are its responsibilities for enactments which will certainly rule the lives of the people in Scotland.

Secondly, people want to know to whom they can complain. They want to have the right to influence legislation before it is passed and to complain about it afterwards. It is not satisfactory, in these areas where conflict might arise, that the decision whether prima facie there is a conflict should rest entirely with the Secretary of State.

The amendment leaves the ultimate decision not to Parliament but to the Privy Council. That is right. I am terrified that Parliament, by a majority of votes, should make a decision on such a matter. The right hon. Member for Crosby says that Parliament could discuss a particular matter and, if it so determines, insist on a controversial Bill being submitted to the Privy Council.

One of the dangers is, not that the Secretary of State will refer too many Bills to the Privy Council but that he may not refer enough. For example, if he is a member of the party with the majority in the Assembly he might allow Bills to slip through. Perhaps the decision should be taken by a Law Officer and not the Secretary of State.

The amendment states
"No Bill passed by the Scottish Assembly shall be enacted until it shall have been considered by both Houses of Parliament."
I cannot believe that that is necessary. I should have thought that we could work out a procedure for a number of people to look at a Bill and for them to refer it for debate only if a point of substance is discovered.

The right hon. Gentleman was not here earlier when I made that point. We have a process to deal with subordinate legislation and all items are not brought to the Chamber.

I apologise for being absent earlier in the debate.

Although this Bill is an improvement on the original, there are still immense, grey areas. When it is passed we shall find that situations will arise which are not exactly covered by the Bill. The Government do not want to spell out all the things that are reserved for Westminster under the Bill. They would rather do it the other way round by indicating what is devolved.

In my new clause I try to spell out many matters that concern my constituents. They would be happier if they were written down. It may not be necessary to do that for lawyers, but my constituents are ordinary people who have to live with the legislation. We should have debates in the House on matters about which there is genuine controversy whether they are within the power of the Assembly.

I do not know whether the judiciary will receive sufficient guidance. Often the judiciary provides valuable indications of the way that Parliament is thinking and raises new points that can be turned into legislation. Certain things will be referred to the Privy Council, but it will be difficult to know the answer from a judicial point of view.

I should welcome further discussion on the grey areas. I should like to see the Government spell out more clearly in the Bill some of the matters which are of great importance to my constituents and other people so that the ordinary person, who does not understand about vires and reserve powers, has a clearer idea about under whose authority he will come when the Bill is passed.

Some of those whose job it is in the Press to write about our debates have craftily put it about that this debate is boring. They have therefore absolved themselves from attending. This afternoon's debate has been of exceptional interest and importance. It has been marked by a series of remarkable speeches.

Although I do not agree with the major conclusions of the hon. Member for Liverpool, Walton (Mr. Heffer), the point that he made about over-government was received with sympathy by the Committee. Some of us are rejoicing that, on this side of heaven, the hon. Member has discovered that we can have too much government.

We should not be discussing such enormously complicated constitutional issues without the attendance of the Law Officers and in the absence of the Leader of the House. I have a great respect for the Minister of State. He has done his rather unhappy job well, but there are times when we are entitled to ask that a Law Officer should be here. It is odd that the Lord President, who is normally assiduous in his attendance, should apparently have abandoned this Bill completely.

I support the principles that are set out in Amendment No. 182. I share the view that we are putting far too much on the Secretary of State in terms of quasi-judicial decisions.

The hon. Member for The Wrekin (Mr. Fowler) referred to the Tameside case. I may be biased on that issue, but leaving aside the merits whether Tameside should have the right to have the type of education that it wants, the Secretary of State should not have unlimited powers to tell people how Acts of Parliament are to be operated.

We have seen an acceleration in the power of the Executive. The amendment attempts to diminish slightly the power of the Secretary of State. If one goes back to earlier this afternoon one can see that the idea that Secretaries of State are fully accountable does not work in practice. It is true that they can be called before Parliament and face motions to reduce their salaries, but reduction does not take place. When it comes to the debate, the three-line Whips are on and the matter goes out of the window.

The controversial decision by the Home Secretary about the rights of immigrants shows how an important decision can be made by a Minister who is supposed to be accountable to the House. In reality that accountability is unlikely to mean much.

I welcome the suggestion that the House of Commons, rather than the Secretary of State, should determine whether these issues should go to the Judicial Committee of the Privy Council. My right hon. Friend the Member for Crosby explained how it is possible for that to be done. As he said, it is done with European legislation, and the same pattern should be applied in this case.

We are entitled to an explanation of what the words "of opinion" mean in practice. Do they imply that the Secretary of State has any discretion? Do they mean that any element of judgment comes into this? Will the Secretary of State be allowed any leeway to make up his own mind? Will he be allowed to apply anything but the strictest legal interpretation when deciding whether something is intra vires or ultra vires? We need an explanation from precedent of how the words "of opinion" work out in practice.

We should like an answer to a question which has been touched upon already. It may be answered in the Bill but I cannot discover it. If the Government scheme goes through, will it still be possible in subsequent actions before the courts to raise the question of vires? Or is it the Government's intention that the question of the vires of the Assembly can be raised only through the mechanism which is set out in Clause 20? There has been some reference to this. I am not clear on it, and it is important that we should have a categorical statement from the Minister whether, if the procedure set out in Clause 20 is not applied, there is no hope thereafter of anyone challenging the rightness or the wrongness of the Assembly to legislate on a particular matter.

I come to the question of which court should deal with these matters. We have had an interesting debate. I have learnt a lot of things this afternoon about the Judicial Committee of the Privy Council. I think that the Judicial Committee is probably not, in an ideal world, the most appropriate body for handling this.

Maybe the realities are that we have to choose the Judicial Committee, but as I have listened to the arguments I have realised that the notion that this is a kind of quasi-colonial court has some force and that it would be better to go straight for a court which does not have that particular connotation and which does not have among its theoretical potential members the sort of former Ministers that we have heard described as being members of the Judicial Committee. I know that Lord Glenamara and so forth would be unlikely to be called to serve on the Judicial Committee, but it would be better if it were made clear that this was a matter for genuine judges and no one else.

Therefore, I feel that it at all possible we should move towards the House of Lords as the supreme court, rather than go for the Judicial Committee. However, I recognise that there is some scope for political bickering and argument if the House of Lords is chosen, because it might be interpreted as being the House of Lords in its political rather than its strictly judicial capacity.

Does the Judicial Committee not have one advantage over the House of Lords, which is that the House of Lords acting simply as an appeals committee—that is to say the Law Lords—will contain English and Scottish judges, whereas the Judicial Committee can and very often does contain distinguished Australian, New Zealand and other Com-vires of the Bill in which feelings monwealth judges? In a dispute as to the between England and Scotland might be strong, that could prove to be a considerable advantage.

My hon. Friend has made an interesting point. My theoretical answer to this is that neither of these bodies is the correct one and that we are getting to the stage where we have to face up to the need for a constitutional court if we are to have this sort of measure on the statute book, although I should prefer not to have it. But if we are to have this and other indications of constitutional change, including our membership of the Common Market, the notion that we can go on without some kind of clear-cut constitutional court will become untenable.

I do not agree with those who say that these decisions should be seen strictly in a political light. I do not think that that is possible. As hon. Members have pointed out, the House would not often come to these questions in anything remotely resembling a reasonably nonpartisan frame of mind. These must be matters of law, as opposed to matters of political battle, and if they are we shall sooner or later have to set up a proper court to deal with them.

I believe that, given our set of circumstances and given that in this Bill we shall provide for a new kind of constitutional court, the amendment moved by my hon. Friend makes a great deal of sense.

5.30 p.m.

The hon. Member for Liverpool, Walton (Mr. Heffer) said at the beginning of his speech that this clause went right to the heart of the Bill. He was right. What is more, the more one listens to debates on amendments, the more one finds out that every clause in this Bill goes to the heart of the Bill.

Every time we open the Bill, out springs some horrible new monster. Every time we open the Bill we come upon some fresh problem that nobody had thought of before. We have had the West Lothian question, and the Government have been unable to answer it. We have had the question which will interest the hon. Member for Walton concerning the disadvantage that arises to one part of the United Kingdom from giving an advantage to another part. The more one gives to Scotland, the less there is available for Merseyside.

Yesterday the extraordinary situation arose in which we were told that the Scottish Assembly could legislate for parts of England. What the Scottish nationalists would say if the GLC were given the power to legislate for Scotland I dread to think, but that is the corollary.

Every day some horrible new monster jumps out. Yesterday's monster was particularly freakish. Yet here again today we have another irreducible problem. It is inevitable that conflicts will arise about the vires of Bills between Edinburgh and Westminster. These will not be gentle little matters that do not affect anybody. By their very nature they will be controversial matters which will stir up passions in Scotland and Westminster.

The idea that this can be easily settled by the Secretary of State, as the Govern- ment currently suggest, or by some Judicial Committee, as the amendment suggests, seems to me to fly in the face of political common sense. There is no way that a majority party in Scotland would accept that it could pass a controversial measure and then find it vetoed by the Secretary of State or the Judicial Committee. There would be no way of avoiding the stirring up of the maximum political discord out of this issue.

So, firstly, the maximum political discord will arise through its own dynamic qualities, and, secondly, the miserable SNP will exist solely to foment that discord and stoke the fires of controversy. If they have anything to do with it, the SNP Members will put forward Bills simply to cause this sort of discord. To believe that the SNP would accept the disagreement of the Secretary of State or would agree to the rejection of Bills by a gang of people in the House of Lords is to ignore the political realities in Scotland. Here again we have a positive incitement to constitutional conflict.

In a sense, we in this House are creating the weapons by which this House can be destroyed. We are putting a weapon in the hands of those who feel that their whole raison d'être is to destroy this House and the unity of the United Kingdom. Of course it is not only in Scotland that the seeds of discord will be sown. Hon. Members who represent London constituencies could not believe last night that we were actually legislating that the Scottish Assembly could pass laws to affect people in London, that Members could pass laws to cover areas that they did not represent. So people in London will be fed up with the procedure whereby Scottish MPs will be telling London how it must run its education, housing, roads and so on.

Let us consider the West Lothian question. If the hon. Member for Inverness (Mr. Johnston) knows the answer to that question I shall give way to him now. He stays in his place and the House may draw its own conclusions. There is no answer—

Order. The hon. Member for Inverness (Mr. Johnston) stays in his seat because the question is out of order.

I wish that I had as much faith in the good sense of the hon. Member for Inverness as you have, Sir Myer. However, I will depart from that.

I do not believe, in short, that political questions should be settled by anyone but elected politicians. That is what we are here to do. Once we drag in the lawyers, as we have seen with the Industrial Relations Act, however well meaning the judges may be, and however above politics they may think they are, there are difficulties, because we cannot ask the judges to make political decisions. Well, we can, but we should not do it.

As so often in these debates, we are again indebted to the hon. Member for West Lothian (Mr. Dalyell) for saying the obvious. I think it was General de Gaulle who said that almost the most valuable quality in a politician is the ability to see the obvious. The hon. Gentleman indicated to us who the members of the Judicial Committee might be. We heard some interesting names read out. There was Lord Glenamara, who in a previous incarnation was Mr. Ted Short, one of the most ruthlessly insensitive—

Order. It is not in order to attack the personalities of the members of the Judicial Committee of the Privy Council.

I apologise. I will draw the attention of the Committee to only two other members of the Judicial Committee, and this Committee can draw its own conclusions. We have the noble Lord, Lord Home—a splendid man. I am not saying that I disagree with him but I ask the House to reflect on his part in all this. I have already referred to the noble Lord, Lord Glenamara. Then we have the amazing Lord Kilbrandon, about whom—perhaps unfortunately—no more can be said. I hope that hon. Members will read Monday's Scotsman if they want to see the unbiased view of Lord Kilbrandon in these matters. In short, I do not believe that lawyers should ever be asked to make political decisions. Political decisions should be made by politicians who are elected to do so.

The hon. Member for Walton asked earlier whether the Judicial Committee had been consulted on whether it wants to do this job. He asked what the Judicial Committee thinks about it. Perhaps the members of that Committee do not want to do it. I noticed at the time, if I was lip-reading correctly, that the Minister of State said "Too bad." Indeed, he said it twice.

The hon. Gentleman ought to be much fairer than that. I said nothing of the kind and implied nothing of the kind. I hope that the hon. Gentleman will speedily withdraw his remark.

I can only say that that is what I thought the Minister of State said. If he did not say it, I withdraw my remark. It would have been within the sight and earshot of other hon. Members. No doubt the Minister of State will tell us whether he has consulted the Judicial Committee and, if so, what the Judicial Committee said. I withdraw my remark on the Minister's absolute assurance that he neither whispered it, mouthed it nor said it.

I do not think that we should elevate the Judicial Committee into some sort of supreme court. We should certainly not do it by the back door in an amendment such as this. In any case, as a general principle, we should always require political decisions to be made not by lawyers, however distinguished, but by elected politicians.

The question, surely, is whether a particular action is within the terms of an Act of Parliament, and that would seem to be a judicial rather than a political decision.

Fair enough, but it is in fact a political decision, although it may be dressed up as a judicial decision. I will go on to qualify that in a moment. The hon. Member for Walton talked about the Supreme Court having made a judicial decision about race. He said that it was judicial because it was made by judges. He was quite right, and in that sense I agree with my hon. Friend the Member for Aylesbury (Mr. Raison) that this would be a judicial decision. But suppose that a Scottish Assembly has said that it wants to do a certain thing about housing or schools and the judges say, on a purely technical legal point, that the Scottish Assembly cannot do it. There is then no way for it not to become a political issue in Scotland. I do not doubt that the judges would consider it in a judicial way, but it would become a political issue. This would involve dragging the law into politics, and that is something that we should not do.

Following the very interesting speech of my hon. Friend the Member for Aberdeen, South (Mr. Sproat), I suggest that the real answer to the point made by my hon. Friend the Member for Aylesbury (Mr. Raison), in his interjection, is this: every time an Act passed by a Scottish Assembly is questioned in Westminster, by that very fact of questioning it will become a political matter. It is perhaps almost immaterial whether the matter in question lay within the competence of the Assembly or otherwise. Whether the questioning is done immediately by the Judicial Committee, on the instruction of the Secretary of State, or whether the Act is first sieved by this House of Commons, is again almost immaterial. The main factor is that every time we in Westminster query an Act which has been passed in Edinburgh and ask whether it is within the Assembly's competence, that will be interpreted in Edinburgh as a political decision, a political act, on our part.

It is in that context, I suggest, that we have to read Clause 20 and the amendment moved by my right hon. Friend the Member for Crosby (Mr. Page). As so many hon. Members have said, Clause 20 clearly lies at the heart of the Bill. It already anticipates conflict between Westminster and Edinburgh. My right hon. Friend is therefore asking how that conflict, when it arises, will be decided and who will take the initiative. I think that my right hon. Friend, in essence, was trying to put Parliament in this context in the place of the Secretary of State and, at the same time, to reassert the supremacy of this Parliament of the United Kingdom in relation to any Acts of the Assembly. I strongly support the amendment moved by my right hon. Friend.

There was reference to the poison chalice of the Secretary of State for Scotland, if it is he who is to take these decisions. I believe that it is more than that. I believe that it would be an intolerable burden for him, for in the first instance, as envisaged in Clause 20, he has to take the decision whether to refer an Act to the Judicial Committee. That would be bad enough, but under Clause 20(1)(b), if the Secretary of State decides that the Bill is not compatible with EEC obligations, his decision is then final and irrevocable. He simply decides that he will not submit the Bill to Her Majesty in Council for approval. He does not take any second opinion. He does not go to any judges or do anything else at all. He just takes the decision that the Bill is not compatible with our EEC obligations, and stops the buck totally at that point.

Let us suppose that there is a Tory majority in the Scottish Assembly and that legislation is passed concerning the selling of council houses. Suppose, further, that this is viewed as involving a fiscal element. A Scottish Secretary of State would then decide that the Bill was not within the competence of the Assembly. Clearly, at that stage he would be involving himself in a political decision. If it were an EEC matter, it would not involve the Judicial Committee at all, and he would take the decision himself. I believe that he would be taking on an intolerable burden and would be fomenting and creating arguments between Westminster and Edinburgh.

The right hon. Member for Orkney and Shetland (Mr. Grimond) said how difficult it would be for the Judicial Committee to decide. How true that is. As hon. Members of the Committee have often said, the danger is that if the Judicial Committee cannot reach a decision the judiciary itself will be brought into disrepute. We would therefore be moving on from the inevitable conflict between Westminster and Edinburgh, which many of us see arising, and involving the judiciary in that inevitable conflict that will follow as a result of this Bill.

5.45 p.m.

Last night we discussed an amendment, again moved by my right hon. Friend the Member for Crosby, which sought to omit paragraph 8 of Schedule 2. I have no doubt that many of us were sorry that that amendment was lost. I believe that the potential for dispute as a result of that paragraph remaining in the Bill is very much greater than it was before. That paragraph means that provisions are within the legislative competence of the Assembly if those provisions are necessary or expedient for making other provisions effective which are prima facie within the competence of the Assembly.

When winding up last night the Minister of State kept on referring to these provisions as being "minor" provisions. He never made it plain to any of us how he could justify the use of the word "minor". Since we are back on the same subject this afternoon—the question of the legislative competence of the Scottish Assembly and the potential of this Parliament to challenge that competence— I hope that he will find time to explain why he was so ready to dismiss that paragraph in Schedule 2 as unimportant.

My final point is that in that same speech the Minister referred to some hon. Members, I think myself included, who in his view were sufficiently foolish to question devolution to the Scottish Assembly. He referred to us very contemptuously as Bourbons. Perhaps the Minister saw himself as Talleyrand and thought of the phrase about forgetting nothing and learning nothing.

The Minister will have a chance to put forward his own views in a moment. Let me remind him of Matthew Prior's epitaph, which said:

"Nobles and heralds, by your leave, Here lies what once was Matthew Prior; The son of Adam and of Eve, Can Bourbon or Nassau go higher?"
I believe that with regard to this Bill we are all involved and that we are all British Matthew Priors. We are all sons of Macadam.

I do not believe that the Minister has any right, as he imputed last night, to query whether English Members of Parliament should get up in this Committee and question the devolution of responsibility and power to a Scottish Assembly. We are all involved in seeing that the unity of the United Kingdom remains intact.

I tried to get up three times during the Minister's speech and he never gave way. He gave way to Scottish Members, but although I tried to get in on the debate he never gave way to me. I shall now take my chance.

We are all involved in seeing that the unity of the United Kingdom remains intact. It is not just because we have—as I have in my constituency—many Scots living there who still regard Scotland as their home. Although they have lived all their lives in England, they have always believed that they could go to work or retire in a Scotland that was part of the United Kingdom. They are now worried at the threat of the separation of Scotland from England.

It is not just that. It is, I believe, that we have a prime duty in this Parliament at Westminster to preserve the unity of the United Kingdom. I hope, therefore, that in future the Minister will not deride—with all the arrogance of an Edinburgh lawyer— the wishes of English Members of Parliament such as myself who want to see the United Kingdom remain intact.

If a Government are able to submit to the House of Commons this Scotland Bill, and if the same Government are proposing to drive the Bill through Parliament under a guillotine, how can we have any confidence that that Government will not also rig the composition of the Judicial Committee of the Privy Council?

It is not impossible that this Government—if the Secretary of State were an honest man and wished to certify that he was of the opinion that a Bill passed by the Scottish Assembly was not within the legislative competence of the Assembly —would contrive to pack the Judicial Committee of the Privy Council so that it might be disposed to give a verdict favourable to the Government.

Of course, the Minister of State has said "No, we are so entitled to the confidence of the House that to make such a suggestion is unreasonable". But I shall make that suggestion. I do not believe that it is beyond the machinations of this Government to appoint to the Judicial Committee the Chairman of Cable and Wireless Ltd, the Lord President of the Council and the noble Lord, Lord Kilbrandon.

What is so extraordinary about the proposals in Clause 20 is that there must first be a decision to refer the matter to the Judicial Committee under subsection either (1)(a) or (1)(b). That means a political decision of the Secretary of State. We cannot get near the Judicial Committee of the Privy Council unless the Secretary of State for Scotland refers the dispute to the Judicial Committee. That is the only situation in which we can get there.

I think it is quite wrong to refer a dispute of this kind to the Judicial Committee of the Privy Council. It is a body of men who in many ways are very distinguished. But it contains among its number several people whose competence to judge on matters of this kind is very limited indeed.

If we are to have a referee in this matter I would much prefer that it should be referred to a High Court judge and then go on appeal to the Court of Appeal and, finally, on appeal to another place. That, after all, is the procedure that we have adopted on issues such as Thameside where it was shown that the Minister was acting far beyond his powers. That was the procedure we used for the famous television licence case when it was shown that the Home Secretary was acting gravely in breach of his powers. That was the procedure followed in the case of a licence to fly aircraft over the Atlantic, where it was shown that the Secretary of State for Trade had greatly exceeded his powers.

It is not a matter of packing the Judicial Committee with Government appointments but rather the effect of referring such a case to a High Court judge and then to the House of Lords. Just think how that would be used by politicians in whose interests it was to attack decisions that did not go their way.

I agree very much with the hon. Gentleman's point. But, of course, members of the Judicial Committee are not all peers. The Lord President of the Council is himself a member of the Judicial Committee, as is my right hon. Friend the Member for Penrith and The Border (Mr. Whitelaw), who is a former Lord President of the Council.

I have made this point on two occasions and I do so for a third lime. It is exceedingly unsatisfactory that there has not been a statement from a Law Officer as to what the Judicial Committee itself thinks about the task that it has been given. We want to know what the judges themselves think. We are told that the Judicial Committee has been informed, and we want to know what it has said. A judge who is put in this position must realise that bringing these matters into the sphere of political decision-making could bring into disrepute the decisions of the High Court.

I have protested more than once at the absence of the Attorney-General and the Solicitor-General and it would be courteous to welcome back the Lord Advocate to our proceedings. I hope very much that the Minister of State will reply or that we shall have an intervention from that passionate prodevolutionist, the Lord Advocate, and that he will address himself to an issue that has been raised again and again during the debate.

Whatever may have been the muttered comments of the Minister of State which were heard by my hon. Friend the Member for Aberdeen, South (Mr. Sproat), we have been given the impression that there has been a look, nod, wink or some kind of communication between the Government and those distinguished gentlemen who form the Judicial Committee of the Privy Council. If discussions have taken place between the Attorney-General and the Privy Council Office and the Judicial Committee of the Privy Council—it would be natural if there had been discussions because they have headquarters in the same building, presided over by that well-known constitutionalist the Lord President of the Council—I am sure that the Minister of State will want to reassure us and take the Committee into his confidence on the Judicial Committee's view on having this new burden placed upon it.

As we debate, sadly, only some of these clauses—because of the guillotine —we find recurring again and again not just the prospect but the absolute certainty of continuing and continuous conflict between the Secretary of State and the Assembly and between the House and the Assembly. That is why this clause has been put here. It is an attempt to reconcile the irreconcilable and to solve the insoluble, and it is a pretty bad attempt. If the clause goes unamended, the Minister of State knows full well that we shall have all the drama of the Secretary of State initially taking a political decision, namely whether to refer the matter to the Judicial Committee of the Privy Council. Then we shall have the Privy Council itself taking a quasi-political and quasi-judicial decision and we shall have continuing conflicts concerning what should be the supreme authority of the House of Commons and challenges to that authority by those representing the Scottish National Party.

6.0 p.m.

I wish to deal only with a very narrow point concerning the use of the system of declaring secondary legislation to be ultra vires, but everything I say will illustrate the proposition that there are hitherto unrecognised and great advantages in the supremacy of a sovereign Parliament. For the present, the doctrine of ultra vires is most seen where a citizen wishes to challenge the legality of secondary or delegated legislation. It is not open to the citizen to argue that primary legislation which is properly on the statute book is outside the competence of Parliament. It is open to the citizen only to argue that the Minister, in carrying out his delegated responsibilities, has failed to confine himself within the discretion granted to him by primary legislation.

The disadvantages of the procedure of ultra vires are obvious. When, for instance, an individual says in planning matters that a land use classes order is illegal, he may be one of 10,000 people against whom that legislation has been put. He may be the last of the 10,000, but the rest will have already conformed to the conditions of that delegated legislation, and, should he succeed in showing that the delegated legislation is ultra vires, there would be a substantial administrative difficulty in doing justice to those who have already conformed to what is, in fact, an illegal piece of delegated legislation.

What will happen if the House allows this piece of legislation through? The proposals are that the Scottish Assembly should have the power to legislate not over minor matters, matters of planning detail or mere matters of minor importance in respect of housing legislation. Schedule 4 makes clear that important issues of principle will be decided upon by the legislature in Edinburgh.

What happens then? We find that it will be sieved in some way by the Secre- tary of State and he will decide by a purely political decision whether it conforms to the law. He will decide by a purely political decision whether the legislation has gone further than is allowed by the Scotland Bill.

What happens if, after the Bill reaches the statute book, an individual citizen attempts to argue before the courts that an Act passed by the Scottish Assembly is ultra vires? The administrative difficulties will be enormous. What happens if, after the Scottish Assembly has passed legislation, the Queen has given her assent and, let us say, legislation has been in force for a year, when along comes Fred Smith from Galashiels and succeeds in showing that this piece of legislation cannot be passed within the discretion that is allowed to the Scottish Assembly as granted by the Scotland Act of 1978? Then the injustice done to those who have already conformed to the illegal legislation will be enormous.

We see once again the advantages of having a sovereign and supreme single Parliament for the whole of the United Kingdom. This proposal will not give to the individual citizen the certainty and justice that comes from a single supreme Parliament, nor will it give him the right that ought to come from a fully federal system. He will have the worst of all worlds.

Can the hon. Gentleman, as a lawyer, answer the following question? If an Act of the Assembly has been passed as intra vires by the Judicial Committee of the Privy Council, will it still be open to the citizen to challenge the vires of the Assembly Act in litigation in which his rights are involved in relation to an Assembly Act?

That is very much a question for those who are putting forward this legislation to explain to the House. We have had no proper explanation of this. If it be that the citizen does not have the right to challenge the vires of the legislation after it has been passed —if the Secretary of State has the sole right to challenge the vires—the citizen who says after the event that this legislation is ultra vires may have had to conform to illegal legislation. He is therefore, suffering the worst of all worlds. He has neither the protection of a federal system with a supreme court nor the certainty that arises from the continuance of this Parliament's position as a supreme and single Parliament for the whole of the United Kingdom.

I intervene briefly to discuss the rubric to Clause 20:

"Scrutiny of Assembly Bills."
"Scrutiny" is an exquisite word. Any future Secretary of State, of whatever party, is likely to be involved with such a matter. He is unlikely to adopt any kind of central derogation and lose face. The upshot of all this is that he will take counsel's opinion before reaching a decision.

In the normality of life there is a style of parliamentary etiquette which identifies the House of Commons man working for the good of the nation. I do not know that the Scottish Assembly will be any different in quality or nature working on behalf of the Scottish nation.

On a point of order, Mr. Murton. Very much the same debate as we have just had will arise on the next group of amendments. In the clause it is the Secretary of State who is given the power to make the opinion. In my amendment it is the House of Commons or both Houses of Parliament. In the next group of amendments an alternative is given—either the Secretary of State or the House may make the decision. It might be convenient, since we are pressed for time, for the Minister of State to answer both these points at once. Therefore, it might suit the Committee if we consider the next group of amendments before the hon. Gentleman addresses us. I am giving the Minister of State warning so that he can stop me from asking the leave of the Committee to withdraw the amendment.

Further to that point of order, Mr. Murton. I shall be happy to oblige the Committee. However, I have been asked, even pressed, to answer some specific points. I am in a dilemma, not knowing whether to accede to the request of the right hon. Member for Crosby (Mr. Page) or to carry out any obligation I may have to answer the points that have been put to me strictly, and even personally, at times.

Further to that point of order, Mr. Murton. Since there is an overlap between what we have heard and what we are about to hear, it would benefit the debate if we had some preliminary explanation from the Minister of State.

The right hon. Member for Crosby (Mr. Page) can withdraw his amendment only with the unanimous consent of the Committee. One dissentient voice would be sufficient to prevent that happening.

Further to that point of order, Mr. Murton. I think it would be appropriate for me to intervene at this stage, although it had been hoped that if the suggestion made by my right hon. Friend the Member for Crosby (Mr. Page) were adopted, I would move the next amendment, which covers very much the same ground. Indeed, the debate has gone far wider than the amendment. I am in the hands of the Committee. If the Committee does not wish the amendment to be withdrawn it would be right for me to intervene now so that the Minister can reply.

Perhaps the Committee's opinion could be tested. If the right hon. Member for Crosby begs leave to withdraw his amendment we shall see how the Committee decides.

Further to that point of order, Mr. Murton. Having reflected on the matter I think it would be useful if I made a short contribution in reply to the points that have been raised. I shall try to make it as concise as possible.

Further to that point of order, Mr. Murton. The Committee will be aware that although many of the amendments in this group raise the same issues, there is one amendment, that tabled by the right hon. Member for Orkney and Shetland (Mr. Grimond), which is in a different category and raises quite different issues. It would be a pity if, before we get to the deadline of 7 o'clock, it was not possible for the right hon. Gentleman to move Amendment No. 235 with which is associated New Clause No. 8, so that the Committee could take a decision on that matter, by vote if necessary.

We have had a substantial and important debate, which has come up to the level of some of the remarkable debates we had last winter on the Scotland and Wales Bill. Throughout the debate we have been dealing with the legislative rôle proposed for the Assembly, which is one of the matters of central controversy in this Bill. It has been one of the main reasons why there has been such opposition to the Bill in all parts of the Committee. Hon. Members feel that this element represents a continuing threat to the unity of our country—a point made strongly by the hon. Member for Liverpool, Walton (Mr. Helfer). It certainly raises the vital question of the rôle of Members of Parliament in the House of Commons after the Bill is passed, if it ever is. That matter is germane to the amendments currently being considered.

The devolved legislative rôle was outlined thoroughly yesterday by my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths). We have heard even stronger speeches today. I share the view of the hon. Member for West Lothian (Mr. Dalyell) about the paucity of support for the Government on the Treasury Bench. I agree with him that it would have been appropriate for a Law Officer to be present to give his opinion to the Committee about the issues that have been raised. Whereas the Labour Benches have been slightly fuller than they were yesterday, there has been a surprising degree of absenteeism. However many hon. Members may be absent, that does not mean that the problems arising under the Bill will go away.

In this Bill we are dealing with the creation of another Assembly, which will be in competition to some extent with this House. We are considering two elected bodies, each enacting legislation within the United Kingdom, each with powers to amend, interfere with or repeal the legislative acts of the other. That is where the most basic element of conflict arises. The Bill contains a division of powers of a complicated nature and in a form that I do not think has ever been tried before. This is the creation of a quasi-federal State in Scotland within the unitary State of the United Kingdom.

The right hon. Member for Down, South (Mr. Powell) was right to say that this is the beginning of a written constitution. We think that this is a complicated division of powers. The Minister protests that no great difficulty will arise and that everything is reasonably clear cut. No one else thinks so and no one has said so today. Furthermore, the Bill admits that differences and disputes will arise. It anticipates that and attempts to make provision for it. This clause is part of the proposed process for resolving differences. We do not think that it is a satisfactory method. Indeed, some hon. Members believe that there cannot be a satisfactory method if we go down this road.

6.15 p.m.

The amendment that I was intending to move represents an attempt to rectify one of the weaknesses, but there has been criticism of a fundamental kind for the whole clause. Our debate has been more like a "clause stand part" debate, and I am sorry that the guillotine will not permit a debate on that to take place. The amendments that we have been discussing are related to a specific aspect of it—the rôle of the Secretary of State in deciding legislative competence and matters of that kind.

The Government have shown flexibility in this matter. Over recent years they have moved a considerable distance. The Committee will remember that in the White Paper of November 1975 the original suggestion in paragraph 56 was that these decisions should be taken by the Secretary of State and the Law Officers and by the Presiding Officer in the Assembly and his Counsel. That proposition attracted a great deal of criticism, and as a result the Government yielded to some extent, in that they out into the Scotland and Wales Bill Clause 20, which is the same as this clause.

Certainly that is a change. It involves a reference to the Judicial Committee of the Privy Council and, for some matters, a judicial process. But we do not think that it is anything like adequate, because everything is left to the Secretary of State and the Secretary of State alone No parliamentary process is envisaged in the clause as it stands, nor is there the possibility of a parliamentary process. It does not seem to be right to give such a power exclusively to the Secretary of State.

Whether a Bill is, in the words of subsection (1)(a),
"within the legislative competence of the Assembly"
is a matter of opinion, and there will be different opinions about it. As the Commitee understands, there will be many pressures on the Secretary of State. There will be many considerations for him to take into account. There will not only be legal considerations; there will be political considerations to take into account. So why should he alone be left to decide?

It seems to me that either House of Parliament may wish to express a view about this. Our Amendment No. 358 gives an option to the Secretary of State, to this House or to another place to express a view. We think it quite wrong that it should be left exclusively to the Secretary of State.

But in subsection (1)(b), the position is even worse, because the Secretary of State is not even required to make any further reference to any other body, let alone a court or a judicial committee. It is not a proper procedure, because we are dealing with matters of fact and of law, and it should not be left to the Secretary of State alone to decide.

In the same White Paper of November 1975, in a section headed
"European Community and other international aspects",
this sentence appears, in paragraph 91:
"…since international obligation is essentially a matter of fact and law (often involved and technical) rather than of general political judgment, the use of reserve powers in these cases will not require the approval of Parliament."
In other words, we are dealing with matters of fact and law, and clearly those matters are justiciable and should have a judicial process accorded to them.

What is more, in the case of the European Community our obligations are laid down in writing and there is the European Court to which such matters can be referred. Indeed, there is an amendment in the name of the right hon. Member for Western Isles (Mr. Stewart) to pro- pose that these matters should be referred to the European Court. But whether that were done or not, the Judicial Committee of the Privy Council could also be asked to look at these matters as well as to consider whether a Bill is within the legislative competence of the Assembly.

Is not the right hon. Gentleman anxious that in that event there could arise a conflict, which we would not wish to create, between the advice of the Judicial Committee and the decision, by which we are bound, of the European Court? Is there not that difficulty?

That is a perfectly fair point. But I am not advocating that we should take these matters to the European Court. I merely point out that there is a European Court which could be used and that there is an amendment to that effect. I am saying that what applies to subsection (1)(a) could also apply to subsection (1)(b), and that these matters of international obligation could just as well be referred to the Judicial Committee as matters relating to the legislative competence of the Assembly.

On a point of order, Mr. Murton. I am sorry to interrupt the right hon. Member for Cambridgeshire (Mr. Pym), but I should like to get one matter clear. Are we still discussing Amendment No. 82, or are we moving to a general debate?

Amendment No. 182 deals also with the matters that I have just been discussing. It deals with the international and Community obligations of the United Kingdom. That is the element with which I was dealing. But, in any event, I am sure that the hon. Member for Inverness (Mr. Johnston) will agree that this whole debate has gone far wider than the terms of that amendment. At any rate, all these matters can be judicially determined, and so also can the other matters appropriate for a parliamentary rôle. Why should the Secretary of State or the Government be above Parliament on such issues?

What is more, in areas of devolved responsibility, as proposed in the Bill, by definition I should have thought that there was no hurry and that there was plenty of time for a parliamentary process and plenty of time for a judicial process. They are not matters requiring immediate or urgent decision which cannot be referred to the House.

It is a little strange to refer a matter of fact to the Judicial Committee in one instance, as set out in subsection (1)(a), and not in another, as set out in subsection (1)(b). If a Government wish to dispute any opinion or decision of the Judicial Committee, they can always do so provided that Parliament is convinced.

It is appropriate to point out that the clause is not the only one dealing with the differences and conflicts that will arise from the division of legislative powers. I refer the Committee to Clause 36, which mentions this clause specifically. It reads:
"If it appears to the Secretary of State…that a Bill passed by the Assembly contains any provision which would or might affect a reserved matter, whether directly or indirectly … he may lay the Bill before Parliament."
I do not know whether we shall have time to debate those words. I am sure that many right hon. and hon. Members are hoping that we shall. Looking at the timetable motion, it is doubtful. But those words are drawn extremely wide. They amount, in effect, to a licence to interfere. At any rate, in that case it is a parliamentary process, and I agree with it.

But under the Clause 36 procedure, we find that Parliament would be invited by the Secretary of State to support a resolution that an Assembly Bill be not submitted to Her Majesty in Council—that is to say, the legislative competence of the Assembly is not in doubt but some other contradiction is thought to exist.

Here we see how, even if an Assembly Bill is within the Assembly's legislative competence and no one disputes that, it can still be overruled by a vote in another political body, which is to say this House. If that is not a recipe for discord and disagreement, I do not know what is.

However, Clause 36 is a parliamentary process. Parliament can disagree with the Secretary of State, who may be motivated by all sorts of legitimate considerations but also by highly political considerations. In those circumstances, Parliament should be entitled to hear the case, listen to the arguments and come to a view.

I hope that the right hon. Gentleman is taking into account that with this clause it is a matter of vires and that with Clause 36 it is a matter of override. Therefore, what might be appropriate in one case is not necessarily appropriate in the other.

I appreciate that there is that difference. However, I am drawing attention to complications that will arise and differences that will exist between Parliament and the Assembly, and to the different method of treatment. In the case of override, there is a parliamentary element in it. But that is not so in this clause, which apparently intends to leave the Secretary of State effectively in an unchallengeable position.

The amendments are designed to ensure that at any rate all matters that are justiciable should go to a Judicial Cornmittee—that is to say, in respect of legislative competence, our European Community obligations and our international obligations. They go to the Judicial Committee either at the instance of the Secretary of State or of this House of Commons or another place. We on the Conservative Benches are strongly opposed to legislative powers being devolved in this way, because we are convinced that the result would be a muddle that would prove unworkable.

The amendment was tabled by my right hon. Friend the Member for Crosby (Mr. Page) in a manner that is very close to the Bill, certainly as an attempt at a constructive improvement, which I think the Government could accept—that is, if the clause were not knocked out in its entirety as an unsatisfactory clause. It seems to us that in the clause as it stands the Secretary of State and the Government are trying to avoid a parliamentary process and in some cases a judicial process. If the amendment is not accepted, the Secretary of State may find that he still has not avoided being challenged in the courts over a decision that he takes and that he hoped could not be challenged.

It is a feature of the present Government that Ministers find themselves in court on rather frequent occasions. Regrettably, they seem to arrive there, to be challenged and usually to lose their cases without any sign of embarrassment on their part, let alone any attempt at resignation. At any rate, we think that the provisions laid down in the clause do not deal satisfactorily with the disputes that will arise. It is in order to avoid that kind of situation that this constructive though very limited amendment has been tabled by my right hon. Friend.

I very much regret that the timetable will not allow us to have a full debate on the Question, "That the clause stand part of the Bill", on which we could have dealt with fundamental issues in the area into which we have strayed. That is a very great pity. It is not possible for me to cover all the ground that I should have liked to cover. My right hon. Friend has moved the amendment in the spirit of—so far as it is possible—making a bad Bill slightly less bad. I commend it in the same spirit.

It is a tragedy that we cannot debate the clause as a whole, because we believe that it is a thoroughly bad one and will be proved to be so within the course of a very few years if it is enacted.

The right hon. Member for Cambridgeshire (Mr. Pym) ranged fairly widely in the course of his speech. I feel obliged to reply to some of his points, many of which were perhaps slightly beyond the narrow ambit of the amendment and the way in which the right hon. Member for Crosby (Mr. Page) moved it.

My hon. Friend the Member for West Lothian (Mr. Dalyell) was insistent in putting a question about consultation. He quoted from a previous passage in Hansard in which I had said that the Judicial Committee of the Privy Council had been informed of the pre-assent reference procedure. I can confirm this. I can tell him, because I have checked it in detail, that both the Clerk to the Privy Council and the Registrar of the Judicial Committee were consulted about the pre-assent procedure.

I think that my hon. Friend does not sufficiently appreciate the point that it would not be proper for the Government to consult judges about a constitutional reform that the Government are to lay before Parliament. It would not be proper for the judges to express opinions to members of the Government about a political matter that is to be put before Parliament. Therefore, with respect to my hon. Friend, I think that that is a point without very much substance. If we were to go round consulting members of the Judicial Committee or any other members of the judiciary about constitutional reform, we should receive many complaints from another direction.

Does the Minister agree that there is a precedent for consulting judges? Is it not right that before the monopolies legislation was passed in 1964 or 1965, when a judicial review of mergers was being brought in for the first time, judges were asked about it because it was felt that they were going to have to exercise a political and economic judgment as well as a legal judgment?

I am afraid that the hon. Gentleman has the advantage of me, because I am not aware of what consultations, if any, took place in 1964. It is quite proper for a court to be consulted about procedure and the procedural consequences that might follow for it from a decision that Parliament might arrive at, adding a new task to the role of that court or that tribunal, or whatever other body.

My hon. Friend the Member for West Lothian said—I do not know with what authority—that some judges were unhappy about it. The House of Commons takes decisions on the rôles that we shall ask the judges to perform as we alter the constitution in the way that is provided for in the Bill. My hon. Friend has raised this matter on points of order time and again. I hope that he will accept my explanation of the reason why individual members of the Judicial Committee of the Privy Council are not consulted in matters of this sort. It is entirely proper that they should not be consulted in matters of this sort. Indeed, it might be improper if they were consulted.

6.30 p.m.

Does not the Minister think that his statement that the Judicial Committee was consulted—if I understand his words correctly— was a little misleading when he consulted only the Registrar? The Clerk of the Council has nothing to do with the Judicial Committee.

I think the opposite. The right hon. Gentleman cannot have been listening to me. I specifically said that these were the people consulted. Having told my hon. Friend the Member for West Lothian that they had been informed, and as he is so anxious to establish what precisely happened, I made specific inquiries. If the right hon. Member for Crosby looks at Hansard tomorrow he will see that I have made it crystal clear that these were the people consulted. If he wants to make out that I implied in some way that the judges themselves were consulted, I think that he is straining the ordinary meaning of English. I think that he knows that perfectly well. The tenor of the proposition in the right hon. Gentleman's amendment is that he is making rather heavy weather of these provisions.

Perhaps I may move from reassuring my hon. Friend the Member for West Lothian on the point that concerns him so much to the way in which the right hon. Member for Crosby moved his amendment.

I have been trying to follow the Minister of State's argument that it would somehow be improper for him or his Department to have discussions with any members of the Judicial Committee. However, does the Minister not understand that the Lord Chancellor himself and the Lord President, who are both members of the Cabinet and who have both approved the Bill—the name of one of them actually appears on the Bill—must have considered this matter and expressed a view about it?

I think that the hon. Gentleman knows very well the way in which the Judicial Committee operates, and that the Lord President would never sit on it in a judicial capacity. The Lord Chancellor is in many ways a very odd feature of our constitution, combining, as he does, an executive and judicial rôle. However, we shall not go into that. The important point was that my hon. Friend the Member for West Lothian seemed to be raising a great constitutional issue. I hope that I have assured him about that, and that there is no element of bad faith. We have behaved as one would expect a Government to behave in such circumstances, and it would not be appropriate to go to the judges saying "Would you prefer Parliament or yourselves to do this?"

My hon. Friend is a lawyer and I am not. However, to some of us it seems that on this issue the Lord Chancellor ought to have been consulted, as at any rate representative of the judges. It is they who are being asked to perform this task. That is precisely why I think that this answer ought to be given not by the Minister of State but by one of the Law Officers, perhaps the Lord Advocate.

With great respect, it is quite appropriate for me to give this answer, because it concerns not a legal matter but a matter of the propriety of Government and the propriety of the way in which the Government operate within the constitution. It is a matter that concerns my hon. Friend very much, but I should have thought that in these matters he should regard himself not as a layman or a spokesman for laymen but as a parliamentarian who is able to judge these things. This is not some arcane legal point. It concerns the way in which the Government handle their relationship with the judiciary. However, that is some distance away from the amendment.

I hope to take some account of the persistence of my hon. Friend and of the number of times that he has raised this point. I think that he has been on a wrong point, and I hope that he will accept what I have said. He is handsome about these matters. He accepts it when he is wrong. There is a difference of opinion. I hope that he will accept that it is not such a major matter as he made out.

I regret that the right hon. Member for Crosby described the drafting and the policy of the clause as amateurish and infantile. With great respect, I think that he could do better than that. The clause is perfectly adequately drafted. What the right hon. Member has proposed is that instead of the Secretary of State referring a matter to the Judicial Committee, that is a rôle that the House of Commons, or either House of Parliament, should be able to perform. As I read the amendment, even if the House of Commons decided not to make a reference to the Judicial Committee, the House of Lords could decide to make such a reference. It is not a decision of both Houses, as I read the amendment. No doubt the right hon. Member will correct me if I am wrong. The House of Lords could refer a matter.

Therefore, we could have a situation in which the House of Commons had discussed a matter and decided that it should not be referred upon its consideration of the vires of the matter, and then the matter could go to the House of Lords and the House of Lords could take a different decision and decide that the matter should be referred. Then the matter would be referred as a result of that House of Lords decision. That seems to be a rather odd way of going about the matter.

The sensible way of going about it is for the Secretary of State to consider whether the matter is, in his opinion, within the legislative competence of the Assembly and to refer it then to the Judicial Committee. The Judicial Committee's decision—it will not be a political decision; again I must take issue with my hon. Friend the Member for West Lothian—will be binding.

What, in effect, the Judicial Committee will be deciding is whether a piece of legislation or part of a piece of legislation from the Scottish Assembly falls within the powers that are conferred on that Assembly by what will by then be the Scotland Act. Every day of the week the courts construe statutory provisions and see whether the person to whom a power is given is operating within the limit of the statute. I think that that is a perfectly proper rôle for the Judicial Committee to perform in this instance. It was one that the previous Conservative Government obviously thought had some merit, because on a slightly narrower front it was provided that the Judicial Committee should be used under the Northern Ireland Constitution Act 1973.

Incidentally, as the right hon. Member for Crosby raised the point, the word "decision" rather than the word "opinion" appears in that piece of legislation. The right hon. Member may have opposed that legislation and he may have criticised the drafting at that time. If he did so, he has been a remarkably consistent and far-seeing man. If, on the other hand, he did not oppose that legislation or criticise its drafting at the time, it may be open to some hon. Members to think that he is rather selective in the criticisms that he makes on these matters.

Is not part of the truth—I do not say that it is the whole truth—what was pointed out by my hon. Friend the Member for The Wrekin (Mr. Fowler) —that, like it or not, these things would be seen as a bone of contention?

My hon. Friend cannot get out of the matter in that way. I think that he must take account of the fact that what the court would be asked to do in this situation would be to construe a statutory provision and see whether it was within the powers of the Scotland Act. It does not decide whether the powers that the Assembly is given are extensive or very narrow. It looks to the Scotland Act and sees what Parliament provided should be the powers of the Scottish Assembly, and then, construing that, decides whether a clause or a Bill that is brought forward by the Scottish Assembly is within those powers. I cannot think that that is a highly political decision.

I fully accept that the powers that the Scottish Assembly ought to be given is a matter of political controversy. It is such a matter here. We are arguing about it. No doubt when we reach Schedule 10 we shall be arguing that there should be powers in certain areas and not in others. That is political controversy. However, surely it is not a matter of political controversy to construe an Act and see whether the Assembly is operating within the powers that Parliament has given under that Act. I just do not see that that is a highly charged political issue.

I know that the Minister of State disagrees with me about Canadian history, but if he re-reads it he will find that there was an opinion in Canada that this was a highly charged political matter. The Minister said a moment ago that the decisions of the Judicial Committee would be binding. I understand that because of Schedule 12 the decisions of the Judicial Committee would be binding on all the many lower courts that are there referred to. Will he bear in mind that paragraph 23 of Schedule 12 lays down that

"If a devolution issue arises in judicial proceedings in the House of Lords, it shall be referred to the Judicial Committee of the Privy Council, unless the House considers it more appropriate, having regard to all the circumstances, that they should determine the issue".
If the House of Lords determined such an issue will that be binding on the Judicial Committee? Surely it cannot work in both directions.

My hon. Friend is right to draw attention to that part of the schedule, but that relates to a post-Assent challenge. I was asked by the hon. Member for Aylesbury (Mr. Raison) whether there is a provision in respect of such a challenge, and I confirm that there is. If he examines Schedule 12, allied to Clause 63—and I am speaking from memory—he will find such a provision there.

The point put to me by my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) envisages a case coming before the House of Lords, but that relates to a slightly different provision. It envisages a post-Assent situation, not the pre-Assent situation that we are now discussing. I am willing to argue these matters in detail with my hon. Friend, but I have an obligation to answer some of the other points that have been raised in this discussion. I hope that we shall be able to discuss these matters on Schedule 12, including the relationship between the House of Lords and the Judicial Committee.

Some Opposition Members have attempted to suggest that in some way the procedure involved will be unsatisfactory. I do not agree. This is a sensible way of handling a dispute that might arise over the powers of the Assembly. It removes the charge that either the House of Commons or the United Kingdom Government may operate in a politically-motivated way to decide matters such as vires. It gives the responsibility for deciding matters of vires to the Judicial Committee.

Let us accept the Minister's analysis, namely, that the question here is just to initiate a judicial process. The unworthy suspicion is left in my mind that there might at some future date be a Secretary of State who, for political reasons, decides not to refer an issue to the Judicial Committee. In that situation, is there some more appropriate person, Minister or body to whom to refer the issue? I suggest that possibly a more appropriate person to whom to refer such an issue is the Lord Advocate because he, along with the Attorney-General, is regarded as having in certain circumstances a quasi-judicial rôle. He is supposed to detach himself from the political pressures of the day.

If the Minister regards that as an absurd power, I refer him to Schedule 12 of the Bill, which suggests that in other litigation it should be the Lord Advocate who is joined in these issues. It would give a greater measure of public confidence—I am not referring to any personalities involved in these offices today—if that responsibility were placed on the shoulders of the Lord Advocate rather than the Secretary of State of the day, who might be a more political animal.

There are reasons why the Lord Advocate may operate as a Minister under Schedule 12. This relates to matters where, in the opinion of the Government, the rôle carried out by the Law Officers makes it necessary for him to intervene in a legal process. It might be said that there is an area of discretion in this case whether the Secretary of State should refer the matter to the Judicial Committee, and there might be differing opinions. We believe that in the Bill the Secretary of State would act in good faith in carrying out his statutory responsibilities.

6.45 p.m.

The right hon. Member for Cambridgeshire looked ahead to other matters that were on the Order Paper. In seeking to counter his arguments—I hope that I shall not stray out of order—I should like to deal with the right hon. Gentleman's comments on our European obligations. Also on this point, the right hon. Member for Crosby asked whether these were suitable matters to be considered by Parliament.

There is a difficulty about this matter, which we can see if we look at the wording of paragraph (b) of the Clause. We see from the way in which it is phrased that European and international obligations may not be referred to the Judicial Committee of the Privy Council. Two reasons are given by which the Secretary of State could refuse to refer such matters to that committee. The first, according to the Bill, relates to a matter that is incompatible with the European Community or an international obligation. The second deals with the question whether this Parliament or the Assembly should provide for these considerations. Paragraph (b) provides that
"if he is of opinion that the Bill is not compatible with Community obligations or any other international obligations of the United Kingdom or that it provides for matters which are or ought to be provided for in legislation passed by Parliament and implementing any such obligation, he shall certify to the Assembly that he is of that opinion and shall not submit the Bill to Her Majesty in Council for approval."
What is given to the Secretary of State is a right not to refer the Bill to the Judicial Committee, and effectively to send it back to the Assembly. Amendment No. 357, tabled by the right hon. Member for Cambridgeshire, says that that should be a matter to be determined by the Judicial Committee. I appreciate that there might be a code for the Judicial Committee to decide EEC or international obligations, although the line taken by Governments in this country is that it would be inappropriate for this country's international obligations to be subject to decisions by a domestic tribunal.

However, the right hon. Gentleman proposes more than that, namely, that the Judicial Committee should decide whether it will be more appropriate for Parliament rather than the Assembly to deal with legislation in respect of Europe. That cannot possibly be a proper rôle to give to the Judicial Committee. What we are giving the Judicial Committee is a perfectly defined rôle in the clause. But if we accept the right hon. Gentleman's amendment we would be asking the Judicial Committee, which is effectively a court, to consider whether Parliament or the Assembly would be a better instrument for passing legislation. I do not think that the Judicial Committee would wish that rôle to be put upon it and I do not think that it is desirable that such a difficult choice or decision should be given to a court. I am sure that my hon. Friend the Member for West Lothian will agree with me on that point, if on no other.

Does that mean that the Secretary of State can choose and say that the Scottish Assembly has no legal competence, or that, on the other hand, under paragraph (b), he can do the same thing and say that the Scottish Assembly has not the competence to handle the matter because this Parliament should handle it? Does he have a clear choice?

The choice of Parliament or the Assembly is confined within paragraph (b). If it is a Bill that does not raise EEC or international obligations, my right hon. Friend is under a duty to refer the matter to the Judicial Committee of the Privy Council if he thinks that it is beyond the legislative competence of the Assembly.

Let me say how we see this operating in practice. We do not anticipate that a large number of questions will be raised or referred to the Judicial Committee in the normal course of events. The Assembly will be advised, as legislation proceeds, whether the matter is within its legislative competence. No doubt the United Kingdom Government will examine legislation coming from the Scottish Assembly, because we shall have to dovetail that legislation with other legislation passed here or in Scotland as part of the United Kingdom and the United Kingdom Parliament.

Normal representations will be made if it is believed that a particular provision is beyond the legislative competence of the Assembly. It is only in hard cases where there is a genuine difference of opinion—which may be about small matters—that it may be convenient for both sides that the Secretary of State should refer the matter to the Judicial Committee, which can then come to a reasoned legal decision on the meaning of the statute.

The Government were wise to change their policy from that contained in the 1975 White Paper, under which the Secretary of State would have operated the veto. As a result of criticism, the Government reflected upon that. We received representations from many quarters about the undesirability of that policy, and we responded to them and made changes. We should receive more recognition for the fact that we listened to reasoned comment and opinion. I know that the hon. Member for Inverness (Mr. Johnston) agrees with that, because he has been a strong supporter of this provision. I am grateful to him for the way in which he has pursued his ideas on this matter, although he has not been able to take part in the debate today.

I acknowledge the change in the Government's thinking but, with reference to paragraph (b), how does the Minister justify leaving adjudication on that matter solely in the hands of the Secretary of State? The Minister has complained that it would not be right to send such matters to the Judicial Committee, but if they are left in the hands of the Secretary of State how can that be any more right?

It is more appropriate that the Secretary of State should decide whether a Bill is compatible with Community obligations. The right hon. Gentleman's line of thought is indicated by an amendment that he has on the Order Paper. He said that all Bills should be referred to the Judicial Committee.

The hon. Member for Cleveland and Whitby (Mr. Brittan) shouts at me. The right hon. Member for Cambridgeshire may correct me if he wishes, because I sometimes have difficulty in interpreting his amendments. I do not draft them, and I must seek to understand them as best I can.

Does my hon. Friend agree that there is great danger in the suggestion of the right hon. Member for Cambridgeshire (Mr. Pym)? The right hon. Member for Down, South (Mr. Powell) referred to the European Community as a quasi-federal body. If we adopted the suggestion of the right hon. Member for Cambridgeshire, we should have a domestic court pronouncing on federal matters, subject to being overruled by the quasi-federal court, and that could only bring the Judicial Committee into disrepute.

There are many complication. We think that it is far better that matters that involve the EEC and international obligations—and there will not be many of them involved in legislation passed by the Assembly—the United Kingdom Government should decide whether they are compatible with our obligations. That is why we have drawn a distinction between the ordinary legislation that is covered in paragraph (a) and the other types of legislation affecting EEC and international obligations.

There is another important matter, because one of the reasons, under paragraph (b), why the Secretary of State can stop Assembly legislation is that he believes that Parliament should provide for the implementation of such legislation through a United Kingdom statute. It was on that point that I was atttacking the ideas of the right hon. Member for Cambridgeshire. It is better that the Secretary of State should take such a decision than the Judicial Committee of the Privy Council.

I must stress that it is not a case of the judges being involved in making essentially political decisions. It would not be wise to involve the judiciary in making essentially political decisions, any more than it would be wise for a Minister to try cases. We should not impose political tasks on the judiciary because for some reason we do not want to face the responsibility of them. However, a matter of vires is very much a matter of construing a statute, and it is proper that that should go to the Judicial Committee. That is the most effective way to have a sensible check upon the limits of authority of the Assembly.

I again heard today the litany trotted out that this was somehow a recipe for conflict. I should have thought that it was the opposite—that it was the sensible way of resolving potential difficulties in interpreting the powers of the Assembly.

Does the Minister agree that whether this is a recipe for conflict or not, it is certainly a recipe for muddle if an individual citizen is to have the right to argue before the court that legislation passed by the Scottish Assembly is ultra vires? What would happen if the legislation had been working for three years and suddenly along came Fred Smith and showed that it was illegal?

I am surprised that the hon. Gentleman takes that view because I had thought that he was previously urging the desirability of post-Assent challenge. However it is an interesting argument. One must weigh the rights of the citizen to complain before the courts about alleged ultra vires activity, against practical considerations about the certainty of legislation. No doubt the Committee will have some interesting discussions on that point when we reach the relevant part of the Bill. However, it is wiser that I should now confine my remarks to the amendment under discussion, and we are here dealing with the pre-Assent scrutiny stage.

The value of this procedure is that if there were disagreement between the United Kingdom Government and the Scottish Assembly on the powers of the Assembly, before a Bill could become law it would be referred to the Judicial Committee for decision. That is a practical and sensible way of dealing with the dispute, and I anticipate that there will not be many cases because of the existence of the procedure. Most people will consider carefully the implications of having to go before the Judicial Committee and justify their decision. We shall probably build up a valuable and useful body of case law for the guidance of future framers of Assembly legislation.

Will the Minister explain the composition of the Judicial Committee? Will it have to reach a unanimous decision? I recognise that the committee is composed of top-level legal headshrinkers, but how long will be allowed for its thought processes?

The Judicial Committee tends to give one opinion but it does have the capacity, under an Order in Council of 1966, to issue differing opinions and to have differing judgments, just as many other courts do. It will come to its decision in open court. The present room that is used by the committee is fairly small, and if busloads of people wished to come down from the Assembly to listen to its deliberations it might be necessary to find more commodious premises.

The Judicial Committee has an historic rôle in constitutional matters. It was, in effect, a supreme court for Canada in deciding constitutional questions between the Federal Government and the Provinces from 1867 to 1949—questions arising out of the interpretation of the British North America Act fundamental to the constitution of Canada. But it is not right to say that it ceased to have that role because of controversy. That was because it was decided that it was inappropriate that such important matters should be sent to this country for decision, and it was agreed that they should be decided in Canada by the Supreme Court there. It would be nothing new for the Judicial Committee to handle such matters, and we are giving it a new rôle only in the sense that we are separating questions of vires from questions of override.

The right hon. Member for Cambridgeshire referred to Clause 36, but that deals with a quite different matter, relating to occasions when the Secretary of States believes that something that the Assembly has done is having an unfortunate effect upon a reserved matter. In those circumstances lays it before Parliament, and there is a parliamentary procedure, because that is very much a matter of policy. We are distinguishing a matter of vires, and therefore one must use different solutions to meet different problems.

I must apologise to the hon. Gentleman. He complained that I called him a Bourbon last night. I thought that he would take that as a compliment, but if he thinks that it is an insult, I certainly withdraw it. I believe that the hon. Gentleman is one of those who are totally opposed to any form of devolution and will criticise any aspect of it. The hon. Member for Halesowen and Stourbridge (Mr. Stokes) is another. Whatever solution we propose, they will find something impossible about it. Those who are trying to make this a better Bill, as they would put it—

It being Seven o'clock, The CHAIRMAN proceeded, pursuant to the Order [16th November] and the Resolution [22nd November], to put forthwith the Question already proposed from the Chair.

Question put, That the amendment be made:—.

The Committee divided: Ayes 245, Noes 282.

Division No. 28]


[7.0 p.m.

Adley, RobertGoodhart, PhilipMonro, Hector
Aitken, JonathanGoodlad, AlastairMontgomery, Fergus
Alison, MichaelGorst, JohnMoore, John (Croydon C)
Amery, Rt Hon JulianGower, Sir Raymond (Barry)More, Jasper (Ludlow)
Arnold, TomGray, HamishMorgan, Geraint
Atkins, Rt Hon H. (Spelthorne)Grimond, Rt Hon J.Morris, Michael (Northampton S)
Atkinson, David (Bournemouth, East)Grist, IanMorrison, Charles (Devizes)
Baker, KennethGrylls, MichaelMorrison, Hon Peter (Chester)
Bell, RonaldHall, Sir JohnMudd, David
Bennett, Dr Reginald (Fareham)Hall-Davis, A. G. F.Neave, Airey
Benyon, W.Hamilton, Michael (Salisbury)Nelson, Anthony
Biffen, JohnHampson, Dr KeithNeubert, Michael
Biggs-Davison, JohnHannam, JohnNewton, Tony
Blaker, PeterHarrison, Col Sir Harwood (Eye)Nott, John
Body, RichardHaselhurst, AlanOppenheim, Mrs Sally
Boscawen, Hon RobertHastings, StephenPage, Rt Hon R. Graham (Crosby)
Bottomley, PeterHavers, Rt Hon Sir MichaelPage, Richard (Workington)
Bowden, A. (Brighton, Kemptown)Hayhoe, BarneyParkinson, Cecil
Boyson, Dr Rhodes (Brent)Heath, Rt Hon EdwardPattie, Geoffrey
Braine, Sir BernardHiggins, Terence L.Percival, Ian
Brittan, LeonHodgson, RobinPeyton, Rt Hon John
Brocklebank-Fowler, C.Holland, PhilipPink, R. Bonner
Brooke, PeterHordern, PeterPrentice, Rt Hon Reg
Brotherton, MichaelHowe, Rt Hon Sir GeoffreyPrice, David (Eastleigh)
Brown, Sir Edward (Bath)Howell, David (Guildford)Prior, Rt Hon James
Bryan, Sir PaulHunt, David (Wirral)Pym, Rt Hon Francis
Buchanan-Smith, AlickHunt, John (Ravensbourne)Raison, Timothy
Buck, AntonyHurd, DouglasRathbone, Tim
Budgen, NickHutchison, Michael ClarkRawlinson, Rt Hon Sir Peter
Bulmer, EsmondIrving, Charles (Cheltenham)Rees, Peter (Dover & Deal)
Burden, F. A.James. DavidRees-Davies, W. R.
Butler, Adam (Bosworth)Jenkin, Rt Hon P. (Wanst'd&W'df'd)Renton, Rt Hon Sir D. (Hunts)
Carlisle, MarkJohnson Smith, G. (E Grinstead)Rhodes James, R.
Chalker, Mrs LyndaJones, Arthur (Daventry)Ridley, Hon Nicholas
Churchill, W. S.Jopling, MichaelRidsdale, Julian
Clark, Alan (Plymouth, Sutton)Joseph, Rt Hon Sir KeithRifkind, Malcolm
Clark, William (Croydon S)Kaberry, Sir DonaldRoberts, Michael (Cardiff NW)
Clarke, Kenneth (Rushcliffe)Kershaw, AnthonyRoberts, Wyn (Conway)
Clegg, WalterKimball, MarcusRossi, Hugh (Hornsey)
Cockroft, JohnKing, Evelyn (South Dorset)Rost, Peter (SE Derbyshire)
Cooke, Robert (Bristol W)King, Tom (Bridgwater)Royle, Sir Anthony
Cope, JohnKitson, Sir TimothySainsbury, Tim
Cormack, PatrickKnox, DavidSt. John-Stevas, Norman
Corrie, JohnLamont, NormanScott, Nicholas
Costain, A. P.Langford-Holt, Sir JohnShaw, Giles (Pudsey)
Craig, Rt Hon W. (Belfast E)Latham, Michael (Melton)Shelton, William (Streatham)
Crouch, DavidLawrence, IvanShepherd, Colin
Crowder, F. P.Lawson, NigelShersby, Michael
Davies, Rt Hon J. (Knutsford)Le Marchant, SpencerSilvester, Fred
Dean, Paul (N Somerset)Lester, Jim (Beeston)Sims, Roger
Dodsworth, GeoffreyLewis, Kenneth (Rutland)Sinclair, Sir George
Douglas-Hamilton, Lord JamesLloyd, IanSkeet, T. H. H.
Drayson, BurnabyLoveridge, JohnSmith, Dudley (Warwick)
du Cann, Rt Hon EdwardLuce, RichardSmith, Timothy John (Ashfield)
Durant, TonyMcAdden, Sir StephenSpeed, Keith
Dykes, HughMcCrindle, RobertSpence, John
Eden, Rt Hon Sir JohnMacfarlane, NeilSpicer, Jim (W Dorset)
Edwards, Nicholas (Pembroke)MacGregor, JohnSpicer, Michael (S Worcester)
Emery, PeterMacKay, Andrew (Stechford)Sproat, Iain
Eyre, ReginaldMacMillan, Rt Hon M. (Farnham)Stainton, Keith
Fairbairn, NicholasMcNair-Wilson, M. (Newbury)Stanbrook, Ivor
Fairgrieve, RussellMcNair-Wilson, P. (New Forest)Steen, Anthony (Wavertree)
Fell, AnthonyMadel, DavidStewart, Ian (Hitchin)
Finsberg, GeoffreyMarshall, Michael (Arundel)Stokes, John
Fisher, Sir NigelMarten, NeilStradling Thomas, J.
Fletcher, Alex (Edinburgh N)Mates, MichaelTapsell, Peter
Fookes, Miss JanetMather, CarolTaylor, R. (Croydon NW)
Forman, NigelMaude, AngusTaylor, Teddy (Cathcart)
Fowler, Norman (Sutton C'f'd)Maudling, Rt Hon ReginaldTebbit, Norman
Fox, MarcusMawby, RayTemple-Morris, Peter
Fraser, Rt Hon H. (Stafford & St)Maxwell-Hyslop, RobinThomas, Rt Hon P. (Hendon S)
Fry, PeterMayhew, PatrickTownsend, Cyril D.
Galbralth, Hon T. G. D.Meyer, Sir AnthonyTrotter, Neville
Gardiner, George (Reigate)Miller, Hal (Bromsgrove)van Straubenzee, W. R.
Gardner, Edward (S Fylde)Mills, PeterVaughan, Dr Gerald
Gilmour, Sir John (East Fife)Miscampbell, NormanViggers, Peter
Glyn, Dr AlanMitchell, David (Basingstoke)Walder, David (Clitheroe)
Godber, Rt Hon JosephMoate, RogerWalker, Rt Hon P. (Worcester)

Walker-Smith, Rt Hon Sir DerekWhitelaw, Rt Hon WilliamYounger, Hon George
Wall, PatrickWiggin, Jerry
Walters, DennisWinterton, NicholasTELLERS FOR THE AYES:
Weatherill, BernardWood, Rt Hon RichardMr. Ian Gow and Mr. Tim Renton.
Wells, JohnYoung, Sir G. (Ealing, Acton)

Allaun, FrankEwing, Harry (Stiring)McCartney, Hugn
Anderson, DonaldEwing. Mrs Winifred (Moray)MacCormick, Iain
Archer, Rt Hon PeterFernyhough, Rt Hon E.McDonald, Dr Oonagh
Armstrong, ErnestFitch, Alan (Wigan)McElhone, Frank
Ashley, JackFitt, Gerard (Belfast W)MacFarquhar, Roderick
Ashton, JoeFlannery, MartinMackenzie, Rt Hon Gregor
Atkins, Ronald (Preston N)Fletcher, Ted (Darlington)Mackintosh, John P.
Atkinson, NormanFoot, Rt Hon MichaelMaclennan, Robert
Bain, Mrs MargaretFord, BenMcMillan, Tom (Glasgow C)
Barnett, Guy (Greenwich)Forrester, JohnMadden, Max
Barnett, Rt Hon Joel (Heywood)Fowler, Gerald (The Wrekin)Magee, Bryan
Bates, AlfFraser, John (Lambeth, N'w'd)Mahon, Simon
Bean, R. E.Freeson, Rt Hon ReginaldMallalieu, J. P. W.
Beith, A. J.Freud, ClementMarks, Kenneth
Benn, Rt Hon Anthony WedgwoodGarrett, John (Norwich S)Marshall, Dr Edmund (Goole)
Bennett, Andrew (Stockport N)George, BruceMarshall, Jim (Leicester S)
Bidwell, SydneyGilbert, Dr JohnMason, Rt Hon Roy
Bishop, Rt Hon EdwardGinsburg, DavidMaynard, Miss Joan
Blenkinsop, ArthurGolding, JohnMeacher, Michael
Boardman, H.Gould, BryanMellish, Rt Hon Robert
Booth, Rt Hon AlbertGourlay, HarryMikardo, Ian
Boothroyd, Miss BettyGrant, George (Morpeth)Millan, Rt Hon Bruce
Bottomley, Rt Hon ArthurGrant, John (Islington C)Miller, Dr M. S. (E Kllbride)
Boyden, James (Bish Auck)Grocott, BruceMitchell, Austin
Bradley, TomHamilton, James (Bothwell)Molloy, William
Bray, Dr JeremyHarrison, Rt Hon WalterMoonman, Eric
Brown, Hugh D. (Provan)Hart, Rt Hon JudithMorris, Alfred (Wythenshawe)
Brown, Robert C. (Newcastle W)Hattersley, Rt Hon RoyMorris, Charles R. (Openshaw)
Buchan, NormanHatton, FrankMorris, Rt Hon J. (Aberavon)
Buchanan, RichardHayman, Mrs HelenaMulley, Rt Hon Frederick
Callaghan, Jim (Middlelon & P)Henderson, DouglasMurray, Rt Hon Ronald King
Campbell, IanHooley, FrankNoble, Mike
Canavan, DennisHooson, EmlynOakes, Gordon
Cant, R. B.Horam, JohnOgden, Eric
Carmichael, NeilHowell, Rt Hon Denis (B'ham, Sm H)O'Halloran, Michael
Carter-Jones, LewisHowells, Geraint (Cardigan)Orbach, Maurice
Cartwright, JohnHoyie, Doug (Nelson)Orme, Rt Hon Stanley
Castle, Rt Hon BarbaraHuckfield, LesOvenden, John
Clemitson, IvorHughes, Rt Hon C. (Anglesey)Owen, Rt Hon Dr David
Cocks, Rt Hon Michael (Bristol S)Hughes, Mark (Durham)Padley, Walter
Cohen, StanleyHughes, Robert (Aberdeen N)Palmer, Arthur
Coleman, DonaldHughes, Roy (Newport)Pardoe, John
Colquhoun, Ms MaureenHunter, AdamPark, George
Concannon, J. D.Irvine, Rt Hon Sir A. (Edge Hill)Parker, John
Corbett, RobinJackson, Colin (Brighouse)Parry, Robert
Cox, Thomas (Tooting)Jackson, Miss Margaret (Lincoln)Pavilt, Laurie
Crawford, DouglasJanner, GrevillePendry, Tom
Crawshaw, RichardJay, Rt Hon DouglasPenhallgon, David
Cronin, JohnJeger, Mrs LenaPerry Ernest
Crowther, Stan (Rotherham)Jenkins, Hugh (Putney)Prescott, John
Cryer, BobJohn, BrynmorPrice, William (Rugby)
Cunningham, Dr J. (Whiteh)Johnson, James (Hull West)Radice, Giles
Dalyell, TamJohnson, Walter (Derby S)Rees, Rt Hon Merlyn (Leeds S)
Davidson, ArthurJohnston, Russell (Inverness)Richardson, Miss Jo
Davies, Bryan (Enfield N)Jones, Alec (Rhondda)Roberts, Albert (Normauton)
Davies, Denzll (Llanelli)Jones, Barry (East Flint)Roberts, Gwilym (Cannock)
Davies, Ifor (Gower)Jones, Dan (Burnley)Robinson Geoffrey
Davis, Clinton (Hackney C)Judd, FrankRoderick, Caerwyn
Deakins, EricKaufman, GeraldRodgers, George (Chorley)
Dean, Joseph (Leeds West)Kelley, RichardRooker, J. W.
de Freitas, Rt Hon Sir GeoffreyKerr, RussellRose, Paul B.
Dell, Rt Hon EdmundKilroy-Silk, RobertRoss, Stephen (Isle of Wight)
Dempsey, JamesKinnock, NellRoss, Rt Hon W. (Kilmarnock)
Doig, PeterLambie, DavidRowlands, Ted
Dormand, J. D.Lamborn, HarryRyman, John
Douglas-Mann, BruceLamond, JamesSandelson, Neville
Duffy, A. E. P.Latham, Arthur (Paddington)Sedgemore, Brian
Dunn, James A.Lee, JohnSelby, Harry
Dunnett, JackLestor, Miss Joan (Eton & Slough)Sever, John
Eadie, AlexLever, Rt Hon HaroldShaw, Arnold (Ilford South)
Edge, GeoffLewis, Ron (Carlisle)Sheldon, Rt Hon Robert
Ellis, John (Brigg & Scun)Lipton, MarcusShore, Rt Hon Peter
English, MichaelLitterick, TomShort, Mrs Renée (Wolv NE)
Ennals, Rt Hon DavidLoyden, EddieSilkin, Rt Hon John (Deptford)
Evans, Gwynfor (Carmarthen)Lyon, Alexander (York)Silverman, Julius
Evans, Ioan (Aberdare)Lyons, Edward (Bradford W)Skinner, Dennis
Evans, John (Newton)Mabon, Rt Hon Dr J. DicksonSmall, William

Smith, Cyril (Rochdale)Thompson, GeorgeWigley, Dafydd
Smith, John (N Lanarkshire)Tierney, SydneyWilley, Rt Hon Frederick
Spearing, NigelTinn, JamesWilliams, Rt Hon Alan (Swansea W)
Spriggs, LeslieTomlinson, JohnWilliams, Alan Lee (Hornch'ch)
Stallard, A. W.Torney, TomWilliams, Sir Thomas (Warrington)
Steel, Rt Hon DavidWainwright, Edwin (Dearne V)Wilson, Alexander (Hamilton)
Stewart, Rt Hon DonaldWainwright, Richard (Colne V)Wilson, Gordon (Dundee E)
Stewart, Rt Hon M. (Fulham)Walker, Harold (Doncaster)Wilson, Rt Hon Sir Harold (Huyton)
Stoddart, DavidWalker, Terry (Kingswood)Wilson, William (Coventry SE)
Stott, RogeWard, MichaelWise, Mrs Audrey
Strang, GavinWatkins, DavidWoodall, Alec
Strauss, Rt Hon G. R.Weetch, KenWoof, Robert
Summerskill, Hon Dr ShirleyWeitzman, DavidWrigglesworth, Ian
Swain, ThomasWellbeloved, JamesYoung, David (Bolton E)
Taylor, Mrs Ann (Bolton W)Welsh, Andrew
Thomas, Dafydd (Merioneth)White, Frank R. (Bury)TELLERS FOR THE NOES:
Thomas, Jeffrey (Abertillery)White, James (Pollok)Mr. Joseph Harper and Mr. Ted Graham.
Thomas, Mike (Newcastle E)Whitlock, William
Thomas, Ron (Bristol NW)

Question accordingly negatived.

The CHAIRMAN then proceeded to put forthwith the Question necessary for the disposal of the Business to be concluded at Seven o'clock.

Division No. 29]


[7.16 p.m.

Allaun, FrankDavies, Bryan (Enfield N)Hayman, Mrs Helene
Anderson, DonaldDavies, Denzil (Llanelli)Heffer, Eric S
Archer, Rt Hon PeterDavies, Ifor (Gower)Henderson, Douglas
Armstrong, ErnestDavis, Clinton (Hackney C)Hooley, Frank
Ashley, JackDeakins, EricHooson, Emlyn
Ashton, JoeDean, Joseph (Leeds West)Horam, John
Atkins, Ronald (Preston N)de Freitas, Rt Hon Sir GeoffreyHowell, Rt Hon Denis (B'ham, Sm H)
Atkinson, NormanDell, Rt Hon EdmundHowells, Geraint (Cardigan)
Bain, Mrs MargaretDempsey, JamesHoyle, Doug (Nelson)
Barnetl, Guy (Greenwich)Doig, PeterHuckfield, Les
Barnett, Rt Hon Joel (Heywood)Dormand, J. D.Hughes, Rt Hon C. (Anglesey)
Bates, AlfDouglas-Mann, BruceHughes, Mark (Durham)
Bean, R. E.Duffy, A. E. P.Hughes, Robert (Aberdeen N)
Beith, A. J.Dunn, James A.Hughes, Roy (Newport)
Benn, Rt Hon Anthony WedgwoodCunnett, JackHunter, Adam
Bennett, Andrew (Stockport N)Eadie, AlexIrvine, Rt Hon Sir A. (Edge Hill)
Bidwell, SydneyEdge, GeoffJackson, Colin (Brighousei
Bishop, Rt Hon EdwardEllis, John (Brigg & Scun)Jackson, Miss Margaret (Lincoln)
Blenkinsop, ArthurEnglish, MichaelJanner, Grevilie
Boardman, H.Ennals, Rt Hon DavidJay, Rt Hon Douglas
Booth, Rt Hon AlbertEvans, Gwynfor (Carmarthen)Jeger, Mrs Lena
Boothroyd, Miss BettyEvans,Ioan (Aberdare)Jenkins. Hugh (Putney)
Bottomley, Rt Hon ArthurEvans, John (Newton)John, Brynmor
Boyden, James (Bish Auck)Ewing, Harry (Stiring)Johnson, James (Hull West)
Bradley, TomEwing, Mrs Winifred (Moray)Johnson, Walter (Derby S)
Bray, Dr JeremyFernyhough, Rt Hon E.Johnston, Russell (Inverness)
Brown, Hugh D. (Provan)Fitch, Alan (Wigan)Jones, Alec (Rhondda)
Brown, Robert C. (Newcastle W)Fitt, Gerard (Belfast W)Jones, Barry (East Flint)
Buchan, NormanFlannery, MartinJones, Dan (Burnley)
Buchanan, RichardFletcher, Ted (Darlington)Judd, Frank
Callaghan, Jim (Middleton & P)Foot, Rt Hon MichaelKaufman, Gerald
Campbell, IanFord, BenKelley, Richard
Canavan, DennisForrester, JohnKerr, Russell
Cant, R. B.Fowler, Gerald (The Wrekin)Kilroy-Silk, Robert
Carmichael, NeilFraser, John (Lambeth, N'w'd)Kinnock, Neil
Carter-Jones, LewisFreeson, Rt Hon ReginaldLambie, David
Cartwright, JohnFreud, ClementLamborn, Harry
Castle, Rt Hon BarbaraGarrett, John (Norwich S)Lamond, James
Clemitson, IvorGeorge, BruceLatham, Arthur (Paddington)
Cocks, Rt Hon Michael (Bristol S)Gilbert, Dr JohnLee, John
Cohen, StanleyGinsburg, DavidLestor, Miss Joan (Eton & Slough)
Coleman, DonaldGolding, JohnLever, Rt Hon Harold
Colquhoun, Ms MaureenGould, BryanLewis, Ron (Carlisle)
Concannon, J. D.Gourlay, HarryLipton, Marcus
Corbett, RobinGraham, TedLitterick, Tom
Cox, Thomas (Tooting)Grant, George (Morpeth)Loyden, Eddie
Crawford, DouglasGrant, John (Islington C)Lyon, Alexander (York)
Crawshaw, RichardGrocott, BruceLyons, Edward (Bradford W)
Cronin, JohnHamilton, James (Bothwell)Mabon, Rt Hon Dr J. Dickson
Crowther, Stan (Rotherham)Harper, JosephMcCartney, Hugh
Cryer, BobHarrison, Rt Hon WalterMacCormick, Iain
Cunningham, Dr J. (Whiteh)Hart, Rt Hon JudithMcDonald, Dr Oonagh
Dalyell, TamHattersley, Rt Hon RoyMcElhone, Frank
Davidson, ArthurHatton, FrankMacFarquhar, Roderick

Mackenzie, Rt Hon GregorPerry, ErnestSwain, Thomas
Maciennan, RobertPrescott, JohnTaylor, Mrs Ann (Bolton W)
McMillan, Tom (Glasgow C)Price, William (Rugby)Thomas, Dafydd (Merioneth)
Madden, MaxRadice, GilesThomas, Jeffrey (Abertillery)
Magee, BryanRees, Rt Hon Merlyn (Leeds S)Thomas, Mike (Newcastle E)
Mahon, SimonRichardson, Miss JoThomas, Ron (Bristol IW)
Mallalieu, J. P. W.Roberts, Albert (Normanton)Thompson, George
Marks, KennethRoberts, Gwilym (Cannock)Tierney, Sydney
Marshall, Dr Edmund (Goole)Robinson, GeoffreyTinn, James
Mason, Rt Hon RoyRoderick, CaerwynTomlinson, John
Maynard, Miss JoanRodgers, George (Chorley)Torney, Tom
Meacher, MichaelRooker, J. W.Wainwright, Edwin (Dearne V)
Mellish, Rt Hon RobertRose, Paul B.Walker, Harold (Doncaster)
Mikardo, IanRoss, Stephen (Isle of Wight)Walker, Terry (Kingswood)
Millan, Rt Hon BruceRoss, Rt Hon W. (Kilmarnock)Ward, Michael
Miller, Dr M. S. (E Kilbride)Rowlands, TedWatkins, David
Mitchell, AustinRyman, JohnWeetch, Ken
Molloy, WilliamSandelson, NevilleWeitzman, David
Moonman, EricSedgemore, BrianWellbeloved, James
Morris, Alfred (Wythenshawe)Selby, HarryWelsh, Andrew
Morris, Charles R. (Openshaw)Sever, JohnWhite, Frank R. (Bury)
Morris, Rt Hon J. (Aberavon)Shaw, Arnold (llford South)White, James (Pollok)
Mulley, Rt Hon FrederickSheldon, Rt Hon RobertWhitlock, William
Murray, Rt Hon Ronald KingShore, Rt Hon PeterWigley, Dafydd
Noble, MikeShort, Mrs Renée (Wolv NE)Willey, Rt Hon Frederick
Oakes, GordonSilkin, Rt Hon John (Deptford)Williams, Rt Hon Alan (Swansea W)
Ogden, EricSilverman, JuliusWilliams, Alan Lee (Hornch'ch)
O'Halloran, MichaelSkinner, DennisWilliams, Sir Thomas (Warrington)
Orbach, MauriceSmall, WilliamWilson, Alexander (Hamilton)
Orme, Rt Hon StanleySmith, Cyril (Rochdale)Wilson, Gordon (Dundee E)
Ovenden, JohnSmith, John (N Lanarkshire)Wilson, Rt Hon Sir Harold (Huyton)
Owen, Rt Hon Dr DavidSpearing, NigelWilson, William (Coventry SE)
Padley, WalterSprlggs, LeslieWise, Mrs Audrey
Palmer, ArthurSteel, Rt Hon DavidWoodall, Alec
Pardoe, JohnStewart, Rt Hon DonaldWoof, Robert
Park, GeorgeStewart, Rt Hon M. (Fulham)Wrigglesworth, Ian
Parker, JohnStoddart, DavidYoung, David (Bolton E)
Parry, RobertStott, Roger
Pavitt, LaurieStrang, GavinTELLERS FOR THE AYES:
Pendry, TomStrauss, Rt Hon G. R.Mr. A. W. Stallard and Mr. Jim Marshall.
Penhaligon, DavidSummerskill, Hon Dr Shirley


Adley RobertCooke, Robert (Bristol W)Gow, Ian (Eastbourne)
Aitken, JonathanCope,JohnGower, Sir Raymond (Barry)
Alison, MichaelCormack, PatrickGray, Hamish
Amery, Rt Hon JulianCorrie, JohnGrimond, Rt Hon J.
Arnold, TomCostain, A. P.Grist, Ian
Atkins, Rt Hon H. (Spelthorne)Crouch, DavidGrylls, Michael
Atkinson, David (Bournemouth, East)Crowder, F. P.Hall, Sir John
Baker, KennethDavies, Rt Hon J. (Knutsford)Hall-Davis, A. G. F.
Bell, RonaldDean, Paul (N Somerset)Hamilton, Michael (Salisbury)
Bennett, Dr Reginald (Fareham)Dodsworth, GeoffreyHampson, Dr Keith
Benyon, W.Douglas-Hamilton, Lord JamesHannam, John
Biffen. JohnDrayson, BurnabyHarrison, Col Sir Harwood (Eye)
Biggs-Johndu Cann, Rt Hon EdwardHaselhurst, Alan
Blaker, PeterDunlop, JohnHastings, Stephen
Body, RichardDurant, TonyHavers, Rt Hon Sir Michael
Boscawen, Hon RobertDykes, HughHayhoe, Barney
Bottomley, PeterEden, Rt Hon Sir JohnHeath, Rt Hon Edward
Bowden, A. (Brighton, Kemptown)Edwards, Nicholas (Pembroke)Hlggins, Terence L.
Boyson, Dr Rhodes (Brent)Emery, PeterHodgson, Robin
Braine, Sir BernardEyre, ReginaldHolland, Philip
Brittan, LeonFairbairn, NicholasHordern, Peter
Brocklebank-Fowler, C.Fairgrieve, RussellHowe, Rt Hon Sir Geoffrey
Brooke, PeterFell, AnthonyHowell, David (Guildford)
Brotherton, MichaelFinsberg, GeoffreyHunt, David (Wirral)
Brown, Sir Edward (Bath)Fisher, Sir NigelHunt, John (Ravensbourne)
Bryan, Sir PaulFletcher, Alex (Edinburgh N)Hurd, Douglas
Buchanan-Smith, AlickFookes, Miss JanetHutchison, Michael Clark
Buck, AntonyForman, NigelIrving, Charles (Cheltenham)
Budgen, NickFowler, Norman (Sutton C'f'd)James, David
Bulmer, EsmondFox, MarcusJenkin, Rt Hon P. (Wanst'd&W'df'd)
Burden, F. A.Fraser, Rt Hon H. (Stafford & St)Johnson Smith, G. (E Grinstead)
Butler, Adam (Bosworth)Fry, PeterJones, Arthur (Daventry)
Carlisle, MarkGalbralth, Hon T. G. D.Jopllng, Michael
Carson, JohnGardiner, George (Reigate)Joseph, Rt Hon Sir Keith
Chalker, Mrs LyndaGardner, Edward (S Fylde)Kaberry, Sir Donald
Churchill, W. S.Gilmour, Sir John (East Fife)Kershaw, Anthony
Clark, Alan (Plymouth, Sutton)Glyn, Dr AlanKimball, Marcus
Clark, William (Croydon S)Godber, Rt Hon JosephKing, Evelyn (South Dorset)
Clarke, Kenneth (Rushcliffe)Goodhart, PhilipKing, Tom (Bridgwater)
Clegg, WalterGoodlad, AlastairKitson, Sir Timothy
Cockroft, JohnGorst, JohnKnox, David

Lamont, NormanMudd, DavidSkeet, T. H. H.
Langford-Holt, Sir JohnNeave, AireySmith, Dudley (Warwick)
Latham, Michael (Melton)Nelson, AnthonySmith, Timothy John (Ashfield)
Lawrence, IvanNeubert, MichaelSpeed, Keith
Lawson, NigelNewton, TonySpence, John
Lester, Jim (Beeston)Nott, JohnSpicer, Jim (W Dorset)
Lewis, Kenneth (Rutland)Oppenheim, Mrs SallySpicer, Michael (S Worcester)
Lioyd, IanPage, Rt Hon R. Graham (Crosby)Sproat, Iain
Loveridge, JohnPage, Richard (Workington)Stainton, Keith
Luce, RichardParkinson, CecilStanbrook,Ivor
McAdden. Sir StephenPercival, IanSteen, Anthony (Wavertree)
McCrindle, RobertPeyton, Rt Hon JohnStewart, Ian (Hitchin)
McCusker, H.Pink, R. BonnerStokes, John
Macfarlane, NeilPowell, Rt Hon J. EnochStradling Thomas, J.
MacGregor, JohnPrentice, Rt Hon RegTapsell, Peter
MacKay, Andrew (Stechford)Price, David (Eastleigh)Taylor, R. (Croydon NW)
MacMillan, Rt Hon M. (Farnham)Prior, Rt Hon JamesTaylor, Teddy (Cathcart)
McNair-Wilson, M. (Newbury)Pym, Rt Hon FrancisTebbit, Norman
McNair-Wilson, P. (New Forest)Raison, TimothyTemple-Morris, Peter
Madel, DavidRathbone, TimThomas, Rt Hon P. (Hendon S)
Marshall, Michael (Arundel)Rawlinson, Rt Hon Sir PeterTownsend, Cyril D.
Marten, NeilRees, Peter (Dover & Deal)Trotter, Neville
Mates, MichaelRees-Davies, W. R.van Straubenzee, W. R.
Mather, CarolBenton, Rt Hon Sir D. (Hunts)Vaughan, Dr Gerald
Maude, AngusRenton, Tim (Mid-Sussex)Viggers, Peter
Maudling, Rt Hon ReginaldRhodes James, R.Wainwright, Richard (Colne V)
Mawby, RayRidley, Hon NicholasWalder, David (Clitheroe)
Maxwell-Hyslop, RobinRidsdale, JulianWalker, Rt Hon P. (Worcester)
Mayhew, PatrickRifkind, MalcolmWalker-Smith, Rt Hon Sir Derek
Meyer, Sir AnthonyRoberts, Wyn (Conway)Wall, Patrick
Miller, Hal (Bromsgrove)Ross, William (Londonderry)Walters, Dennis
Mills, PeterRossi, Hugh (Hornsey)Weatherill, Bernard
Miscampbell, NormanRost, Peter (SE Derbyshire)Wells, John
Mitchell, David (Basingstoke)Royle, Sir AnthonyWhitelaw, Rt Hon William
Moate, RogerSainsbury, TimWiggin, Jerry
Molyneaux, JamesSt. John-Stevas, NormanWinterton, Nicholas
Monro, HectorScott, NicholasWood, Rt Hon Richard
Montgomery, FergusShaw, Giles (Pudsey)Young, Sir G. (Ealing, Acton)
Moore, John (Croydon C)Shelton, William (Streatham)Younger, Hon George
More, Jasper (Ludlow)Shepherd, Colin
Morgan, GeraintShersby, MichaelTELLERS FOR THE NOES:
Morris, Michael (Northampton S)Silvester, FredMr. Spencer le Marchant and Mr. Michael Roberts.
Morrison, Charles (Devizes)Sims, Roger
Morrison, Hon Peter (Chester)Sinclair, Sir George

Question accordingly agreed to.

Clause 20 ordered to stand part of the Bill.