Thursday, 29th June, 1978.

The House met at three of the clock ( Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Newcastle):

The LORD CHANCELLOR On the Woolsack.

The Question was as follows:

To ask Her Majesty's Government what is their policy for the financing of consumer councils.

3.4 p.m.

The Question was as follows:

To ask Her Majesty's Government whether they will make a Statement on the outcome of the recent meeting of the Environment Council when further efforts were made to reach agreement on the draft EEC Directive on the protection of wild birds.

3.9 p.m.

The Question was as follows:

To ask Her Majesty's Government whether, in the interest of not discouraging new firms and new jobs in areas near to London docks, they will state that they have no intention of reintroducing the Dock Work Regulation Bill.

3.11 p.m.

The Question was as follows:

To ask Her Majesty's Government what progress is being made towards implementing a coherent and effective policy for using the Land Fund; and whether they will make a statement.

3.15 p.m.

On Question, Motion agreed to.

Moved, That the Bill be now read 2^a .—( The Lord Chancellor.)

On Question, Bill read 2^a , and referred to the Joint Committee on Consolidation Bills.

Report received.

3.17 p.m.

Read 3^a , with the Amendments.

Clause 1 [ The Scottish Assembly]:

The noble Lord said: My Lords, this Amendment is purely a drafting one. The words proposed to be left out made sense when they were inserted during the Committee stage, since at that time the clause equivalent to Clause 87(3) provided for a separate outcome of the referendum in Orkney and Shetland. As a result of Amendments relating to Orkney and Shetland which were made on Report in your Lordships' House, there is no longer any interaction between Clause 1(3) and Clause 87(3), and the words proposed to be left out should therefore clearly be deleted. I beg to move.

On Question, Amendment agreed to.

[ Amendment No. 2 not moved.]

Clause 12 [ Judicial proceedings as to disqualification]:

The noble and learned Lord said: My Lords, this Amendment seeks to correct a solecism that crept in and which I certainly ought to have spotted. The correct term in this context for the equivalent of "costs" in England is "expenses" in Scotland. That is what the Amendment does; it substitutes "expenses" for "costs". I beg to move.

On Question, Amendment agreed to.

Clause 16 [ Defamatory statements in Assembly proceedings]:

The noble Earl said: My Lords, this Amendment deals with the extent to which absolute privileges will apply to the Scottish Assembly. I am glad to say that I think I am in full agreement with the Government, in that this extent of absolute privileges should be the same as it is in Parliament. There were various ways of achieving this, and I for one am sorry that the draftsman did not take the course which has normally been taken with members of the Commonwealth; that is, to refer the question of privilege to that which is prevailing in the Commons House of Parliament at the present time.

However, that course was not pursued. A much bolder course was followed, and I admire the courage of the draftsman in that I think he tried to rewrite the terms of Article IX of the Bill of Rights 1688. That provision originally did not deal with defamation at all; it was intended to prevent Members of Parliament from being arrested by the King and put in the Tower of London, though in due course it has come to be the basis of Parliamentary privilege. The trouble is that, as it is a 17th century document, it is not clear what is meant by "proceedings in Parliament". Accordingly, in the last 40 years there have been six or more reports dealing with the subject of absolute privilege. Those reports have now been brought to a head, partly by the late Lord Donovan and partly by Mr. Justice Cooke, in a report which came out in 1975. It is important to reflect that that report sought a definition of two unknown factors; first, what is a proceeding in Parliament, and, secondly, what writings could be included? The Bill as drafted specifically includes the word "writing". I take my source from Sir Barnett Cox, Clerk of the other House, who said of the existing position:

"Freedom of speech is limited to speeches in the House or in a Committee of the House".

If one looks at Erskine May one finds absolutely no reference whatever to "writing". I must therefore say that we are introducing, as it were by a side wind, a change—I have absolutely no doubt about this—in the extent of absolute privilege, applying it in the wrong place (by means of a single clause in the Scotland Bill); and not only are we doing that, but we are getting it wrong.

I feel I must point out why it is wrong,

because this is important. There is a draft Bill on the subject of defamation which Parliament will no doubt consider in due course; it has not yet been considered by Parliament although it has been before us for some three years. In dealing with absolute privilege, particularly in Parliament, the draft Bill says, in Clause 7(6)( b):

"All things said, done or written between Members and Officers of either House of Parliament, between Members and Ministers of the Crown, for the purpose of enabling any Member or any such Officer to carry out his function as such providing that the publication is not wider than is absolutely necessary".

This Bill puts in "writing" without that qualification, and I therefore have no hesitation whatever in saying that it is in fact an extension of absolute privilege which—I believe the Lord Chancellor agrees with me on this—should not take place. I have no doubt that this is an extension, and I am equally certain that there should not be such an extension in this measure. As I say, we shall have the Defamation Bill coming before Parliament and that will be discussed. No doubt it will be controversial in parts, but it has been completed and it is ready for consideration in Parliament. I believe it is wrong to introduce "writing" totally unqualified, as this Bill does, and pretend that it is on the same level as the absolute privilege we have in Parliament.

The late Lord Morrison of Lambeth, who was a tremendous stickler on these matters and something of an authority, said in 1957 in the Strauss case:

"I do not think that we should elevate privilege to the level of denying normal rights to ordinary citizens".

He added this to emphasise the point of keeping privilege to speeches, at least at that time:

"If we speak we can be answered".

That is true, whereas with a written communication no immediate answer is available. For this reason it would be wrong to bring a change of this character into a Bill of this kind. There are plenty of controversial subjects in the measure which we have to discuss, but this is not the place to bring this in. It should be considered as part of the Defamation Bill which eventually will come before Parliament. As I see it, we are bouncing Parliament by a side wind. I believe that is being done quite improperly and for that reason I move the Amendment.

3.34 p.m.

3.40 p.m.

Answer which appear in the Official Report are absolutely privileged.

I believe that there is nothing we can do other than divide on this question. This is a matter of importance. If the other place thinks that we are wrong, they can correct our decision. I have looked at the reports fairly closely and, on the evidence I have from them, I think that it is wrong to take a step in this direction, unless we have authority, which in this case we have not. To take such a step would misrepresent the words which I believe will be used one day in the Defamation Bill which is to come before us.

3.44 p.m.

On Question, Whether the said Amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 119; Not-Contents, 76.

Resolved in the affirmative, and Amendment agreed to accordingly.

Clause 20 [ Scrutiny of Assembly Bills]:

3.54 p.m.

The noble and learned Lord said: My Lords, this is an Amendment to Clause 20. In the course of re-examining this clause as it was after the Amendments which were initiated by the noble Viscount, Lord Colville, were made at Report stage, we discovered a matter which we felt ought to be corrected. The Scottish Assembly can pass a Bill to implement a Community obligation, and the Secretary of State might form the view that implementation should be effected in Westminster legislation. In these circumstances, under the second part of Clause 20(2), he can decline to submit the Assembly Bill for Royal Assent. However, he might form the view that the Community obligation could equally well be effected by subordinate instrument made under Section 2(2) of the European Communities Act 1972, just as well as by primary legislation at Westminster. The clause should therefore provide for this alternative method of implementation, and that is what the Amendment achieves. I beg to move.

On Question, Amendment agreed to.

The noble Viscount said: My Lords, this Amendment, No. 6, and the next one, are consequential upon the acceptance by this House at the Report stage of the Amendments that I suggested about directly applicable European legislation. I do not think I need say anything more than that. I beg to move.

On Question, Amendments agreed to.

Clause 22 [ Executive powers]:

3.57 p.m.

The noble Viscount said: My Lords, this Amendment is, I am afraid, nothing much less than a constitutional blockbuster; and I hope the House will forgive me, but it is really a very difficult subject indeed. May I say that in attempting to rewrite this clause of the Bill I am not proposing that there should be any change from what the Government are at present proposing should be done under Clause 22, although whether or not one likes that is another matter. What I am proposing is merely that it should be done in a different way, and I shall seek to explain what different way and why I suggest that that should be done.

The reasons why I suggest that the granting of Her Majesty's executive powers, so far as they relate to matters devolved on to Scottish Secretaries, should not be done by means of a statute are several. The first of them is that, according to all the advice that I have been able to obtain from learned sources and, indeed, from text-books, if one takes the prerogative (which is what this is) in Clause 22(1) and, by means of this provision in the Bill, actually hands it over to the Scottish Secretaries, then the source of their power to act in realms that are at the present moment purely non-statutory prerogative will, instead, be the Bill itself. In other words, by doing what subsection (1) does we are making statutory those parts of the prerogative which we are seeking to devolve although at the present moment they are not statutory. That means that in the case of doubt the courts will have to interpret what Parliament meant by this Bill, and not what the prerogative consists of other than in terms of statutory declaration; and there is no doubt that, by doing what we are doing in this subsection, we open up the possibilities of challenges in the courts against executive acts by Scottish Secretaries on the grounds that they are outside the powers and the legality of what has been conferred on those Scottish Secretaries by the Bill.

The courts will be in a difficulty. The primary difficulty they will be in, I think, is perhaps one which is very obscure but which, nevertheless, goes to the root of the prerogative itself. There is, so far as I am aware, no other statute or provision in any part of this country or the Commonwealth in respect of which the powers of the prerogative are exercisable by people who do not have access, either to the Crown or, in Colonies or Dominions, to the Governor or the Governor-General, who is the Crown's representative in those territories. Scottish Secretaries are to have no direct access to the Crown and therefore they cannot advise the Queen; they can only do it, if at all, at second hand. There is at least this to be said: if Parliament so provides, it does not help the courts to say what is the extent of the provision that Parliament has made when it is done in this way which is wholly unique in the history of our constitutional legislation.

I believe that the first thing that we are doing is to invite the possibility of litigation, and of course if one does that one invites delay. But I would go further than that, and in order not to make too long a speech I should like to take an example of an hypothesis that may happen. I cannot look into the future to see what prerogative Acts may come to be used in the future which have no precedent, but perhaps I could suggest to the House that we take the example of the first time (I know it is in the past) that somebody had to decide whether or not to blow up a wrecked oil tanker that was leaking its cargo on to the beaches. Let us suppose that this had never been done before. That tanker was on its way to Rosyth and it went aground in the Forth Estuary, the Firth of Forth, and the oil started coming ashore on both sides.

The Scottish Secretary has the power under this Bill to control pollution; therefore, it is a devolved matter. There is no doubt, after what happened at Lowestoft which nearly blew in my windows 25 miles inland, that the prerogative extends to blowing up tankers; but as this would be the first time it happened nobody might be exactly clear whether or not this was so. There is judicial authority for this, but it is not necessarily clear.

The first question that would arise when the Scottish Secretary sought to decide whether or not to exercise his powers would be this: Parliament could not have known when it passed the Scotland Bill that the prerogative might be said to include this sort of action, so did Parliament devolve this part of the prerogative on the Scottish Secretary? It would be a matter of construction, not of the prerogative but of the statute; that is, the Bill which is now before us. That is the first point.

There is a subsidiary point. Supposing that the Scottish Secretary was minded to go ahead despite this difficulty, would he be able on his own to exercise the right to blow up the tanker? Although it is perfectly true that under the legislation that we have before us he is in charge of the control of pollution—and pollution was undoubtedly in my hypothesis—nevertheless he is not in charge of the Forces of the Crown, nor is he in charge of foreign affairs. Supposing that the only people available to blow up the tanker were the Royal Navy and the tanker was a Russian one, involving matters definitely not devolved upon the Scottish Secretary. Supposing that the Scottish Secretary, wishing to blow it up, found that the Secretary of State, who presumably still exercises anything that is left of the prerogative so far as it is not devolved, decides that he does not wish to advise the Queen to use the Royal Navy to blow it up. Who wins?

There are parallels to this situation. In Canada there was the situation where provincial leigslation had, as it were, taken over the old prerogative task of allowing a company to operate by charter, and there was provincial legislation which limited the extent of a company's operation to the confines of the province in which the legislation was passed. But the company wished to mine outside the limits of that province. Incidentally, it was a company called the Bonanza Gold Creek Goldmining Company—a good name for a goldmining company. It obtained a charter from the Federal Government which allowed it to operate outside the province. Somebody wished to see whether that was in order.

The argument ran like this: the prerogative has been taken over in the province by the legislation, therefore there is no further room for a federal prerogative to go beyond legislation. The matter went to the Privy Council. I have not looked to see how long it took to get there. The Privy Council said, "No, in fact there remains a federal prerogative which has not been taken over by the provincial legislation, and it is perfectly all right for the Governor-General to grant a charter for the company to mine outside the province". Think of the trouble that this would cause; think of the litigation, think of the delay; what is going to happen to the tanker meanwhile?

Supposing the courts came to the opposite conclusion that there was no power, or something of this kind, and the tanker had been blown up, does that mean that the owners are to claim damages for something that turns out under this statute to have been ultra vires? I am very concerned about this. If one seeks to put entirely unspecified prerogatives into statutory form—and I accept that they cannot be listed, although I asked at the Committee stage that they should be listed—then I think we are in trouble. I wish to go as far as I possibly can to assist the Government, because I know that they do not want to do anything that is out of order or out of the ordinary.

There are ways in which it could be done. If the Government must have something in the Bill, perhaps they could adapt Section 61 of the Commonwealth of Australia Constitution Act 1900 and say something like this: "The executive power of the Crown is vested in the Queen and is exercisable by the Scottish Secretary in so far as it relates to devolved matters or is exercised in or as regards Scotland as the Queen's representative (one may not wish to have as the Queen's representative'; that is optional) and extends to the execution and maintenance of the laws of Scotland and the United Kingdom."

I put it forward as a suggestion which might fill a gap in the Bill if the Government must do it. Alternatively, your Lordships might be interested to look at the end of each yearly set of Statutory Instruments which are in the Library, because in addition to the Statutory Instruments there are printed a selection of items of law which are non-statutory Instruments and are, at any rate, in very large part the exercise of the Crown's prerogative pure and simple devoid of any statutory authorisation.

Therefore, if one wished to do what subsection (1) of this Bill does by other means, there are a number of Instruments available to do it. There is an Order in Council which can be made without statutory authority just by the Royal prerogative itself. There are Royal Instructions which tend to start off: "We do hereby direct and enjoin and declare our will and pleasure" as follows. There is a proclamation: "Whereas by grant, usage, sufferance and other lawful means we have power …". And there are Letters Patent which usually say something or other which ends with the words, "greetings". Despite these archaic words, these, as I understand it, are all backed by the law of the United Kingdom under the Sovereign, and there is nothing wrong with any of them. Although I do not know which would be the correct vehicle to convey the conferment of the executive or prerogative powers upon the Scottish Secretaries, I am quite sure that one of them would.

If it were done that way, or if it were done in the way I suggested by declaratory provisions similar to those of the Australian Constitution Act, the nature of those prerogative powers would not be affected. You would not make them statutory. You would not cause the courts to interpret statutes and you would not divide them up so that some of them reposed in the Scottish Secretaries and some of them in the Secretary of State, but in different forms: one being purely prerogative and the other statutory so as to lead to the kind of difficulties that I suggested about my tanker. Although I appreciate the Government's gesture in accepting my earlier Amendment about removing the words "prerogative or other", I am persuaded by my noble friend Lord Selkirk and by others to whom I have spoken, that in the form in which it now appears in the Bill this is a legislative monstrosity; and that is the last thing that we should wish to have.

I was invited on the last occasion by the noble and learned Lord, Lord McCluskey, to tell him what mischief it did. I hope that I have succeeded in making clear and not too far-fetched a sketch of some of the mischiefs which might ensue. I hope that we will take it out. I hope that the Government will reproduce the same effect by one of the other means that I have suggested. If I may say this in passing, my second Amendment merely reproduces in a re-drafted form (I hope) the exact contents of what are already subsection (2) of this clause.

4.25 p.m.

my Lords! I have not only given notice to the Government of my unhappiness over this issue—which I may say is a matter of conversion because I listened to what other noble Lords said in earlier speeches—but I gave notice of the specific questions that I asked about uncertainty and delay. They have not been answered by the noble and learned Lord, either because he does not consider that they are worth answering—as to which I suppose I am entitled to my own opinion and noble Lords can make up their own minds—or because there is no answer. It is the latter which I think is the case. Once this matter gets into the realms of possible litigation and interpretation by the courts, then indeed we shall get the situation that the noble and learned Lord talks about, whereby the Scottish Secretaries will not have these former common law executive powers because they will not be able to exercise them until the outcome of the litigation. Why do it like that? I have set out what I think is a perfectly respectable, responsible and well precedented alternative which will come to exactly the same thing and avoid all the difficulties.

I cannot think that in this House we wish to violate the Constitution or should set our seal on something which responsible people who have looked carefully at this issue—learned men in the universities and the legal profession—say is wrong. I do not think that we should let the Bill go from this House containing that flaw. I am afraid that I am not convinced by what the noble and learned Lord says.

4.29 p.m.

On Question, Whether the said Amendment (No. 8) shall be agreed to?

Their Lordships divided: Contents, 105; Not-Contents, 83

Resolved in the affirmative, and Amendment agreed to accordingly

4.36 p.m.

Page 11, line 6, leave out from beginning to ("and:") in line 9 and insert—

("Such executive powes as have been conferred on a Minister of the Crown by an enactment passed or made before the passing of this Act shall, if they relate to devolved matters and are exercisable in or as regards Scotland, be exercised by a Scottish Secretary;").

The noble Viscount said: My Lords, this Amendment merely puts into what I hope is reasonable English the devolved statutory executive powers that are going to the Scottish Secretaries. It is necessary to make this Amendment because of the removal of subsection (1) and the necessity to set the words out again. I beg to move.

On Question, Amendment agreed to.

Clause 28 [ Members' pecuniary interests]:

Page 13, line 27, after ("orders") insert ("or such other interests (if any) as may be specified in the standing orders")

Page 13, line 30, at end insert—

("(2) Standing orders made in pursuance of subsection (1) above may include provison for excluding members contravening them from the proceedngs of the Assembly.")

The noble and learned Lord said: My Lords, during our discussion of this rather difficult subject, dealt with in Clause 28 at the Report stage, my noble friend Lady Stedman stressed that the Government sympathised with the Opposition's worries on this whole matter and agreed to look again at the suggestion from the noble Earl, Lord Selkirk, that the Assembly should be required to cover pecuniary and other interests, and at the suggestion made by the noble Viscount, Lord Colville, that the Assembly should be able to suspend or exclude Members who failed to comply with standing orders on interests. The Government have considered these matters carefully and the two present Amendments are the result.

With your Lordships' permission, I should like to speak to Amendments Nos. 10 and 11 at the same time. Amendment No. 10 makes it clear beyond doubt that the Assembly may include in its standing orders provision for the disclosure of interests other than pecuniary interests. Without it, there might have been room to argue that the particularity of the provision on pecuniary interests was intended to exclude the provision on other interests. We believe that the second Amendment, No. 11, meets the point raised by the noble Viscount, Lord Colville, and enables the Assembly to provide for the exclusion from its proceedings of a Member who contravenes the standing orders relating to interests. Exclusion is not the same as expulsion. Of course, to expel a duly-elected Member would be a step of major constitutional significance requiring, we think, primary legislation. It certainly should not be done under standing orders. I hope the House will agree with both these Amendments, and that they meet the worries expressed by the two noble Lords. I beg to move Amendments Nos. 10 and 11.

On Question, Amendments agreed to.

Clause 29 [ Committees]:

4.42 p.m.

The noble Earl said: My Lords, we had quite a lot of discussion, at both the Committee stage and the Report stage, about the types of committees which the Assembly can set up and what functions and powers they can have. Various Amendments were put down at both stages, from which we elicited a lot of information from the Government. We entirely accept that the Assembly should have powers to set up committees, and the Government's answer has invariably been—it has become rather like a record—let the Assembly be free to set up what committees it likes, on whatever matters it likes.

It was only at the Committee stage that we discovered that it was the Government's intention to let the Assembly set up committees even on matters that were not devolved to it. This concerned some of us, and at Report stage my noble friend Lord Gray tried to reshape this clause. This was done on the assumption that the committees could have legislative powers. But it was only in response to Amendments

of my noble friend and other noble Lords, that it became clear at the Report stage that it was the Government's intention that the committees should not have legislative powers. Therefore, the Amendments which I moved, which sought to curtail the Assembly from setting up committees on non-devolved matters, fell because they were designed to fit in with the Amendments of my noble friend Lord Gray.

So that we have tried again, and I venture to suggest that it is not right for the Assembly to set up committees on matters which do not relate to devolved subjects. This is all that these Amendments seek to cover. If they are accepted, the Assembly will, for example, be able to set up committees to service the Assembly and discuss the quality of the Brussels sprouts served in the dining room. It can set up committees to discuss health or education, which are both devolved matters, and in so doing, if these Amendments are accepted, they can discuss health and education in England and compare the two. It can set up committees on transport, which is devolved, and—I know that this will satisfy my noble friend Lady Elliot, who expressed some concern about the matter—in talking about transport they can discuss the effect of British Rail on the transport system and, inevitably, can consider the effect of British Rail on the United Kingdom and, in particular, on Scotland.

However, what the Assembly will not be able to do is to set up a committee specifically on foreign affairs, which is a reserved matter. It will not be able to set up a committee with functions to discuss, for example, United Kingdom aid to Chile. Nor, as the noble and learned Lord, Lord Wilson of Langside, suggested, will it be able to set up committees to consider the Polaris submarines in Holy Loch. Those are reserved matters and, in my judgment, it would be wholly inappropriate for the Assembly to set up committees which could challenge Westminster on matters for which Westminster is responsible. If that were done, it could provide a potential focus of conflict on sensitive or emotional problems.

If I may give one example, industrial relations is a reserved matter and it could be that there was a large strike in some factory where people were demanding a wage increase of, say, 20 per cent., but the Government of the day had a pay policy restricting wages to 10 per cent. Imagine, my Lords, the situation which would arise if the Assembly decided to set up a committee to discuss that matter, on which it had no powers. If the Assembly, having a Party majority that was different from that at Westminster, declared that its sympathies lay with those who demanded 20 per cent., as against the Government's pay policy restrictions of 10 per cent., it would be wrong to permit the Assembly to set up committees which could deliberately and directly embarrass Westminster. This would be highly undesirable. So I hope the Government will agree that, while committees can be set up to consider and discuss most subjects, they should not be set up and be given functions which do not relate to devolved matters. My Lords, I beg to move.

4.47 p.m.

4.51 p.m.

4.56 p.m.

A noble Lord: Never!

5.5 p.m.

On Question, Whether the said Amendment (No. 12) shall be agreed to?

Their Lordships divided: Contents, 90; Not-Contents, 85.

Resolved in the affirmative, and Amendment agreed to accordingly.

5.13 p.m.

The noble Earl said: My Lords, I beg to move Amendment No. 13, which is consequential.

On Question, Amendment agreed to.

Page 13, line 38, at end insert—

("(b) for ensuring that no committee shall be appointed with functions not relating to devolved matters")

Page 13, line 39, at end insert ("referred to in paragraph ( a) above").

The noble Earl said: My Lords, Amendments Nos. 14 and 15 are consequential. Perhaps it would be convenient if I moved them en bloc. I beg to move.

On Question, Amendments agreed to.

Reporting and publishing of proceedings of the Assembly

(".The standing orders of the Assembly shall include provision for the reporting of the proceedings of the Assembly and for the publication of the reports of such proceedings.").

The noble Lord said: My Lords, I beg to move Amendment No. 16. The Amendment is in the form of a new clause as printed in the Marshalled List. This is the repeat of an Amendment which I moved on Report but which was dealt with only briefly then, not because it was a quarter past eleven at night but because the noble Lord, Lord Kirkhill, intervened at an early stage to say:

"I have been reflecting upon its content and I want to give it some thought".

He gave an undertaking to communicate with me, but I accept that it was not an unequivocal undertaking to go further than that. The noble Lord and I have since been in communication. At one time I thought there was a good chance that the Government would accept the inclusion of this new clause in that part of the Bill which deals with the standing orders of the Assembly, because I believe that the Government are sympathetic to the spirit of this Amendment. However, on Monday I am afraid I got a written thumbs down from the noble Lord, Lord Kirkhill, and I must now come to the House for a verdict on this point.

I wish to do so because it is a subject upon which I feel very strongly and a subject which has not been explored. Were I to have my true wish, I would seek to write into the Bill a detailed provision requiring parity of reporting standards with Westminster whenever and wherever the proposed Assembly was legislating in areas which currently are legislated for in this Parliament. I have this feeling since surely this is what we in this Parliament, and those for whom this Assembly, if it comes into being, will be legislating, have a right to expect.

I am, however, mindful of the repeated entreaties from the Front Bench team opposite not to tie the Assembly down in too detailed a fashion on procedural matters, and I have therefore opted for what I see as the minimum on which this House should insist; namely, that the standing orders of the Assembly shall lay down provisions governing the reporting of proceedings and the publishing of reports of those proceedings. Then we shall at least know what we are getting; with the necessity to make prior provision, and perhaps with a generous nudge from the Secretary of State when he conies to make directions governing the initial procedure of the Assembly, the result will secure standards commensurate with the Assembly's functions.

My Lords, if my Amendment is made then perhaps when another place come to look at the wording of the new clause they might feel it appropriate to insert "legislative" before the word "proceedings" in the new clause which forms the substance of my Amendment. I trust that they will have the opportunity to consider this point. It is a point that has been suggested to me and it is certainly worth considering although for my part I would sooner not so restrict the wording since such a narrowing of the effect touches the next point that I wish to make which is this. Surely quality of reporting touches questions of privilege which have been referred to this afternoon matters relating to accountability for statements made and answers given and questions for instance concerned with declaration of interest. Along with legislative proceedings surely these are all matters calling for accurate verbatim reports and totally unsuited to any paraphrase or minute type of reporting.

At Report stage I also referred to the fact that there might be occasions when the Assembly for reasons similar to those that enable this House to close its doors to the public and to outsiders, might also have to consider this at some time and without a standing order of this type they might have difficulty in securing that situation. It may he a fair assumption to expect the Assembly to make the kind of provision that I want to see, but an assumption is just not good enough. All too frequently over the past few weeks we have been asked to make assumptions as to the probable or possible conduct of the Assembly. In this instance we shall be assuming how that body will deal with the matter and even that it will deal with it at all.

I believe that my formula will secure what I earlier termed "the minimum condition" that we who are proposing to devolve and the electorate, in respect of whom we are proposing to devolve, have a right to expect. Surely it is our duty to protect that right. I beg to move.

reporting of their proceedings with the reporting of proceedings of this House. In view of what has been said in this debate and views that may be taken in another place if the Amendment goes there, I should have thought that this new clause goes as far as we can, without being too interfering, to secure that. I beg to move.

5.32 p.m.

On Question, Whether the said Amendment (No. 16) shall be agreed to?

Their Lordships divided: Contents, 101; Not-Contents, 77.

Resolved in the affirmative, and Amendment agreed to accordingly.

Clause 41 [ Industrial and economic guidelines]:

5.41 p.m.

Page 21, line 16, leave out subsection (6) and insert—

("(6) No order under this section shall be made unless a draft of it has been laid before and approved by resolution of the House of Commons.").

The noble Lord said: My Lords, we now turn again to the question of guidelines. The purpose of this Amendment is to substitute the Affirmative Resolution Procedure for the Negative Procedure in regard to the orders that are to be laid before Parliament. When we discussed this clause about guidelines on the Question whether the clause stand part, the noble Lord, Lord Kirkhill, gave us a full and interesting explanation of how it would work as he saw it. Your Lordships seem to me to be particularly concerned with the Scottish Development Agency in this matter and with the Highlands and Islands Development Board, although to a lesser extent only in the latter case because it gave rise to fewer problems.

On two occasions the noble Lord, Lord Kirkhill, responded fully to our search for information about the guidelines. On 25th April—although it appears in the Hansard for the next day—he said at column 1782:

"The aim of the guidelines is to avoid unfair distortions of competition by ensuring that assistance to industries is provided on comparable terms throughout Great Britain, having regard to the different needs and problems of different parts".

The "aim of the guidelines" of course relates to those who are to receive the

guidelines; the Scottish Development Agency, the Highlands and Islands Development Board, and the upper tier local authorities and new town development corporations. The guidelines are to be transmitted to the Scottish Administration, and they are to translate those guidelines into directions, approvals, et cetera, to use the noble Lord's words, to the various bodies, as in their opinion the need arises.

As the clause now stands, the guidelines will be subject to Negative Procedure; that is to say, they will take effect immediately, or on a specified date, and will continue in effect unless a motion to annul them is passed. But the main guidelines—that is, those not subject to adjustment at irregular intervals; for example, as the noble Lord explained, the rate of interest to he charged would be subject to such alterations—would remain in force presumably for a year or many years. It is not at all clear from the way the clause is drafted whether the guidelines are there for good or whether they are to be capable of frequent change.

For those reasons, it seems to me that they should be debated before they are brought into effect, or at least that an opportunity to debate them should be afforded through a Mortion to approve them. As I drafted this Amendment, I had to consider whether an equal opportunity should be given to both Houses of Parliament. At most times of the year we in this House have normally more time available but, on the other hand, the guidelines will presumably deal mainly with financial limits, and it may be thought more appropriate for them to be considered by the Commons. It is for that reason that I am suggesting in this Amendment that it should be subject to Affirmative Resolution Procedure of the Commons.

The noble Lord said on the same date at column 1787—and I think in the same debate:

"The guidelines will, in practice, delineate the boundaries of the executive discretion to be available to the Scottish Administration on matters of great political sensitivity. The form of the guidelines, and the manner in which they operate, will be closely watched by those concerned with industrial development in the English regions and other countries of the United Kingdom. It should, therefore, be clear, without scope for misunderstanding, that they are in a statutory sense the responsibility of the Government and Parliament and of no one else".

This was on a different point made by my noble friend Lord Lauderdale, but the noble Lord clearly expressed what is intended.

In view of the great political sensitivity and interest in other parts of the country—and this has been amply demonstrated from various parts of the House; I see my noble friend Lady Ward in her place—it seems to me that the guidelines are indeed worthy of an Affirmative Resolution. The passage I have read from the noble Lord seems to me to have made the case for the guidelines to be subject to Affirmative Resolution rather than the Negative Procedure, and I feel that I need say no more. I am confident that the noble Lord will accept my Amendment. I beg to move.

5.47 p.m.

Amendment, by leave, withdrawn.

Clause 64 [ Reservations]:

5.52 p.m.

Page 30, leave out line 26 and insert—

("Nothing in this Act shall affect the Prerogative of Mercy".)

The noble Earl said: My Lords, I raised this point on Report and suggested that it would be constitutionally inappropriate to say that one would not do something that was also constitutionally inappropriate. However, now that we have passed Clause 22, which affirms the view of the House that it is inappropriate to devolve prerogative power—my noble friend said it was a monstrosity to suggest one should do so—I have taken words which the noble and learned Lord, Lord McCluskey, himself suggested, words which come from the Criminal Procedure Act 1975 and which would, I suggest, have the same effect but be constitutionally more appropriate. I go so far as to say that the Government could regard this as a consequential Amendment to that which your Lordships approved in Clause 22. In those circumstances, I would ask the Government to agree to the Amendment, which I believe is more appropriate and does what is wanted without raising the question whether prerogative powers can be devolved by legislation.

On Question, Amendment negatived.

Clause 78 [ Protection of special interests of Orkneys and Shetlands]:

5.57 p.m.

The noble Lord said: My Lords, this is a drafting Amendment. Clause 78 is linked by its content with Clauses 38, 39 and 40, and it is more appropriate that it should be placed after them than in its present position. At the time when Clause 78 was moved, during Report, it was too late to insert it in the most suitable place. This Amendment rectifies the matter.