Orders of the Day — Scotland Bill

House of Commons, 10 February 1998.

THE SCOTTISH EXECUTIVE

Michael Ancram (Conservative, Devizes)

I beg to move amendment No. 303, in page 18, leave out lines 7 and 8 and insert— '(1A) Any devolved Law Officer shall not be a member of the Scottish Executive'.

Michael Martin (Deputy Speaker, Glasgow Springburn)

With this, it will be convenient to discuss the following amendments: No. 274, in page 18, line 10, at end add— '(3) The Solicitor General for Scotland shall be the law officer to the Scottish Executive'. No. 10, in clause 45, page 19, line 24, at end insert— '(1A) The Lord Advocate and Solicitor General for Scotland shall be qualified as either (i) an advocate, or (ii) a solicitor under the Solicitors (Scotland) Act 1980.'. No. 314, in page 19, line 25, after 'Advocate', insert `or by an official or agent appointed by and responsible to him'. Clause 45 stand part. Government amendment No. 321. No. 289, in clause 59, page 25, line 6, after `Ministers', insert `or the Scottish Law Officers'. No. 290, in page 25, line 9, after 'Ministers', insert `or the Scottish Law Officers'. No. 11, in clause 82, page 37, line 40, at end insert— '(1A) The Advocate General for Scotland shall be qualified as either (i) an advocate, or (ii) a solicitor under the Solicitors (Scotland) Act 1980.'. No. 12, in page 38, line 5, after 'writing', add ',provided that the office shall not be vacant for a period of more than one month.'.

Michael Ancram (Conservative, Devizes)

Amendment No. 303 is an important amendment which we are debating with several other amendments. Amendments Nos. 289 and 290 do not relate to the main purpose of my argument and I shall deal with them briefly by saying that they seek to ensure that provision for the transfer of functions, which we shall debate later in Committee, should apply to the Law Officers as much as to other Ministers of the Scottish Executive if the other amendments in my name fail. That would make sense in those circumstances.

Tam Dalyell (Labour, Linlithgow)

The right hon. Gentleman mentioned Ministers of the Scottish Executive. Does he include junior Ministers, because there is some confusion over whether they are included in the term "Ministers of the Scottish Executive"? That may be a pedantic point, but it arises from the Bill.

Michael Ancram (Conservative, Devizes)

It is a good point and it will be relevant when we consider the functions of Ministers in other groups of amendments that we will discuss later today. The hon. Gentleman will have gathered from our amendments that we think that it is highly questionable whether there should be a plethora of Ministers in Scotland to do the job that is now being done by the Secretary of State for Scotland, two Ministers of State and three junior colleagues. However, I do not wish to steal the thunder of my hon. Friend the Member for Woodspring (Dr. Fox), who will move those amendments in due course. I merely wished to take amendments Nos. 289 and 290 out of the argument that I am making now, because it is right to concentrate on the matter in hand. Amendments Nos. 303 and 274 would mean that neither the Lord Advocate nor the Solicitor-General would be members of the Scottish Executive, and also that only the Solicitor General would be a Law Officer to the Executive. This is a matter of substantial importance to us. It has a legal aspect as well as a constitutional aspect, and it is important that we consider it carefully. In paragraph 4.8, the White Paper "Scotland's Parliament" accepted that there was something different about Law Officers and the Lord Advocate in particular, and said: The traditional independence of the Lord Advocate as public prosecutor will be maintained. That independence really causes us concern in relation to the amendments before us and the Bill as it stands. The amendments seek to do two things. The first is to try to achieve a situation where the Law Officers are not part of the Scottish Executive. We believe especially that it is wrong in principle to devolve the office of Lord Advocate, because he is, as the White Paper says, an independent public prosecutor, and as such he must act at all times in the public interest of the whole United Kingdom, not the Scottish public interest alone. It is important to realise that the Lord Advocate, in whatever guise, will continue to be responsible for the prosecution of offences enacted by both Parliaments. Many crimes—such as those involving drugs, firearms and Customs and Excise matters—will be reserved matters on which the Lord Advocate will prosecute, and do not fall solely within the matters that will be in the control of the Scottish Parliament. Therefore, we believe that the role that the Lord Advocate will perform, having a United Kingdom dimension, is not recognised in the legislation as it stands and, indeed, would be precluded by clause 41(1)(c), which we seek to remove from the Bill, which states that the Scottish Executive shall also have as its members the Lord Advocate and the Solicitor General for Scotland. Interestingly, in 1978, the importance of the United Kingdom dimension was recognised, and the position of Lord Advocate was not devolved for very much those reasons. I know that the hon. Member for Linlithgow (Mr. Dalyell) remembers some of the debates that took place at that time. It may be useful to illustrate the point with hypothetical examples. There could be a case where a Westminster Member of Parliament from a Scottish constituency was to be prosecuted for electoral improprieties after devolution. [Interruption.] The Minister for Home Affairs and Devolution, Scottish Office smiles and laughs, as though he believes that it could never happen. I suspect that he might like to reconsider whether he is wise to so mock that example. Let us say that a procedural blunder occurs, the prosecution founders and the Member of Parliament is acquitted on a technicality. In those circumstances, no Member of Parliament or peer at Westminster would be able to call any Minister to account for that, although it would affect the membership of the House, because there remains no ministerial responsibility at Westminster for the Scottish prosecution service. We need to think very carefully about that. We might also consider the case of the Lockerbie bombing. The United Kingdom public interest would loom large in any prosecution that might take place in Scotland. If the case were ever to come to trial, evidence would be given by members of United Kingdom agencies such as the intelligence services and the forensic science services. I pose the question to the Minister: would it not be wrong in principle for a situation to be created whereby no accountability would be reserved to Westminster for the conduct of what might be one of the most prominent trials of all time?

Tam Dalyell (Labour, Linlithgow)

The Minister for Home Affairs and Devolution, Scottish Office knows—because he had to answer one of them—that I have initiated 14 Adjournment debates on Lockerbie. This is a very difficult hybrid question, and I hope that, when the Minister speaks, he will cast some reflection, in the light of his experience of answering one of the debates on Lockerbie, on how the problem is to be resolved. It is a very real one.

Michael Ancram (Conservative, Devizes)

I am grateful to the hon. Gentleman because it is a good example, which he calls a hybrid situation. Such a situation could occur in other eventualities and, with all respect to the Minister, I do not think that the Bill covers these points sufficiently, so I hope that he will consider our amendments carefully. The reverse situation might occur also. Let us take the hypothetical case of an English citizen charged with putting drugs on board a train in London that is bound for Glasgow as part of a drugs cartel to supply drugs to Scotland. The Englishman could be arrested by the Scottish police and prosecuted in Scotland although he might, in the commission of the crime, never have set foot in Scotland. Those of us who have practised at the criminal Bar know that such situations can arise. His Member of Parliament, who would be an English Member of Parliament, would have no opportunity to question in the United Kingdom Parliament the Minister with responsibility for the case in which his constituent was involved. Once again, lack of accountability could create great unfairness in terms of the representation available to citizens. I shall give way to the hon. Lady.

Lynda Clark (Labour, Edinburgh Pentlands)

I would have more sympathy with the right hon. Gentleman's argument if he could say when the Lord Advocate was last a Member of the House of Commons.

Michael Ancram (Conservative, Devizes)

At present, no Law Officer answers for the Scottish Law Officers in this place. However, during my time in government, the Solicitor-General for Scotland was a Member of the House of Commons. Lord Fraser of Carmyllie was Solicitor-General in this place before he became Lord Advocate. Law Officer questions were separate from questions to the Scottish Office, which underlines the importance of making that distinction. I give way again to the hon. and learned Lady—I apologise for not remembering her full title.

Lynda Clark (Labour, Edinburgh Pentlands)

I am much obliged. It may be a figment of my imagination, but I think that a Law Officer was last a Member of the House of Commons in 1983.

Michael Ancram (Conservative, Devizes)

I think that it was 1987. The hon. and learned Lady makes an important point. When considering our amendments to the Bill, we pondered whether it was right to insist that Law Officers be Members of the Scottish Parliament for those reasons. However, we resisted putting down such an amendment, as we thought that it might preclude those who might hold that office with distinction from being able to do so.

Alex Salmond (Scottish National Party, Banff and Buchan)

In the 10 years between 1987 and 1997 when the Solicitor-General was not a Member of the House of Commons, did the right hon. Gentleman make any representations to his party or argue in this place that that was an unacceptable situation that should be changed?

Michael Ancram (Conservative, Devizes)

I think that the hon. Gentleman misses my point. There was an acceptance that the Lord Advocate had a United Kingdom role. This part of the Bill categorises the Lord Advocate as a member of the Scottish Executive, who is therefore responsible within that Executive and not on a wider basis. I am making a serious point. If we are not careful, we shall create a situation whereby the necessary role of the Lord Advocate in terms of United Kingdom prosecutions could be compromised by the fact that he is a member of the Scottish Executive. I am surprised that hon. Members have difficulty with that. I believe that it is part of the tradition of the office of Lord Advocate that it should not only relate to Scotland, but have a wider perspective, which is important to Scottish law as well as to the office of Lord Advocate.

Roseanna Cunningham (Scottish National Party, Perth)

The last time that we debated the matter in this place, we had a long and heated discussion about clause 23. In the debate, it became quite clear that we could require anyone to appear before Parliament and give evidence. That did not necessarily please several hon. Members, but it was stated that that would continue to be the case. Does that not cover the point about which the right hon. Gentleman has expressed concern?

Michael Ancram (Conservative, Devizes)

With respect, I do not think that it covers the point—otherwise I would not have moved the amendment. We must ensure that the independence of the Lord Advocate is sustained as far as possible. I must concede that the Bill tries to do that; many clauses in the Bill seek to achieve that aim, but I do not think that there are enough. The Lord Advocate's ability to act in a role that is beyond the powers that will not be reserved to this Parliament and therefore available to a Scottish Parliament is a second important point. There is a third key point to which I shall turn in a moment. However, I do not think that the Bill, as it stands, resolves the question. The Opposition question the need to have two Law Officers in the Scottish Parliament—whether they are members of the Executive or not. Therefore, our amendment seeks to ensure that the office of the Lord Advocate is not devolved, which would allow him to retain a wider role. The Solicitor-General for Scotland could be devolved and made answerable to the Scottish Parliament, which would have the added advantage of eliminating the so-called "Harry Lime" position, whereby a third man is suddenly introduced by the Bill. that third Law Officer would be a new animal—no one is quite certain what the Advocate General for Scotland will do. I believe that the simple procedure whereby the Lord Advocate is answerable to the United Kingdom Parliament and the Solicitor-General is answerable to the Scottish Parliament would resolve the issue without getting into the technicalities of creating a new position.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

Does the right hon. Gentleman not see a difficulty with the proposal, in that, if a Member of the Scottish Parliament wished to raise a question about a Scottish prosecution, he would not be able to tackle the person who was ultimately responsible—the Lord Advocate? The buck would stop with the Lord Advocate who would not be answerable to the Scottish Parliament regarding the overwhelming number of prosecutions compared with the one or two hypothetical exceptions that the right hon. Gentleman has suggested.

Michael Ancram (Conservative, Devizes)

I appreciate that it would be nice for the Scottish Parliament to be able to call to account the person who is in charge of all prosecutions. However, it could call to account the Solicitor-General—that is nothing new. The hon. and learned Gentleman was a Member of Parliament when the Solicitor-General for Scotland used to sit in this place. I do not think that we argued then that that was second best. I make the point with some seriousness, as I know that it concerns members of the legal profession in Scotland. The matter was considered carefully in 1978, and the then Labour Government decided not to go down that path. Another effect of the amendment is to ensure something rather different: the devolved Law Officers will remain distinct from the Scottish Executive. That is not clear in clause 41(1)(c), which states that they would be members of that Executive. We are trying to create a situation that mirrors the current position, whereby the Crown Office and the Scottish Office are strictly separate entities—and are so described in any Government lists. They are not in the Cabinet and they are not Ministers outside the Cabinet; they are always declared separately. That is right and proper. This position is significant. Clause 48(3) of the Bill states: Statutory functions of the Scottish Ministers shall be exercisable by any member"— I stress that point— of the Scottish Executive. If the Bill is left unamended, Scottish Law Officers will be included in the definition of Scottish Ministers. If Law Officers could exercise the functions of other Ministers—according to my reading of the Bill, it could not happen the other way around—it would create an extraordinary anomaly that could lead to conflicts of interest. On my reading of the Bill—I shall be interested to hear the Minister's comments—the Lord Advocate could grant planning permission, because that is a function of a member of the Executive. Therefore, the Lord Advocate would not be precluded from doing that. Through these amendments, we are trying to protect the position of Lord Advocate, which is not only historic, but extremely valuable in terms of the constitution of this country and the Scottish legal system. We believe that it is not sufficiently protected at present, either in terms of independence or in terms of distinction from the Executive. On that basis, we hope that the Government will consider our arguments seriously.

Tam Dalyell (Labour, Linlithgow)

Hon. Members have been asked to be succinct, so I shall limit my speech to two points. First, clause 41 defines the Scottish Executive. It is a matter of some importance to return to the question of junior Scottish Office Ministers. Will they be construed as being members of the Scottish Executive? What is their status? I do not think that the Bill makes that clear. Secondly, the right hon. Member for Devizes (Mr. Ancram) raised the example of Lockerbie. Surely it is where the criminal act has its effect that the courts and prosecution system would have jurisdiction. If that is a correct understanding of the Scottish Parliament's responsibility for a hybrid situation such as that, I should be grateful if it could be confirmed.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

Before I speak to the amendments tabled by my hon. Friends and me, may I respond to some of the comments of the right hon. Member for Devizes (Mr. Ancram), who tried to address the issues and made some reasonable points. I pointed out in an intervention that the overwhelming majority—99 per cent. or more—of cases in respect of which the Lord Advocate will ultimately have the responsibility for bringing the prosecution will be matters that affect the constituents of those who will be in the Scottish Parliament. The right hon. Gentleman's reply was that, for a long time, we accepted a Solicitor-General coming to the House and answering questions, and that did not work too badly. Let us be honest: it was better than nothing, and nothing is what we have had since 1987. Although the right hon. Gentleman was not in Parliament at the time, it was a Conservative Government who took away the 10 or 15 minutes allocated at Question Time to the Law Officers' responsibilities. Several of us raised the matter on several occasions, and the balance was only latterly redressed in a small way by the provision that allowed the Lord Advocate, because he happens to be a Member of another place, to appear before the Scottish Grand Committee. As I understand it, that is done only with his permission, because he is a Member of another place. In the case of the Scottish Parliament, the amendment that the Conservatives considered but decided not to table is not necessary, because under clause 26, if the Lord Advocate or the Solicitor-General is not a Member of the Parliament, he may still participate in the proceedings of the Parliament to the extent permitted by the Standing Orders. It will not be a question of whether the Lord Advocate deigns to appear; the standing orders will make the Law Officers part and parcel of the proceedings. Moreover, I understand that, in Standing Committees of this House, it is possible to require a Law Officer to be present, not necessarily when the Committee is dealing with criminal matters, but when advice on points of law on other matters is needed. That has not been possible in Scottish legislation since 1987, when Mr. Peter Fraser—now Lord Fraser—lost his seat. There has been no Scottish Law Officer in the House of Commons. The scheme for which the Bill provides offers considerable advantages. The right hon. Gentleman makes a fair and valid point—which those of us who have been brought up and trained in the Scottish legal tradition readily recognise and support—about the rigorous independence of the Lord Advocate when he fulfils his duties as the person who prosecutes in the Queen's name in Scotland. Specific provision is made for that in the Bill, which states: Any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person. That is set out in statutory form, and I support it. Amendment No. 314 expands that and makes it clear that any official or agent appointed by and responsible to the Lord Advocate—in the Crown Office, advocate-deputes and procurators fiscal—will also have that independence guaranteed to them by the provisions of the Bill. The Minister may respond that that is already implied. The Government have not been over-generous in accepting amendments. Perhaps they will accept this one, which sets out the position. It would guarantee that independence and put it on a statutory basis and beyond question at any future date. The Lord Advocate must be answerable to the Scottish Parliament, and he would not be answerable if he remained a Member of this place or the other place and a member of the United Kingdom Government. Let us forget all the fancy stuff about the Law Officers being totally independent. Although they are independent, and rightly so, and any Lord Advocate whom I have known has jealously guarded his independence with regard to the prosecution, nevertheless they have not been above partisanship in their other activities, and I make no complaint about that. They are there to help the Government to implement their policies and to give legal advice, and one would expect that they would generally be in step with the Government; but the idea that recent Lords Advocate have been above the political battle does not stand up. I do not criticise them for that. They have made no secret of it in some cases, and it is part of their job. If the Law Officers did not sit in the Scottish Parliament—if they were the creatures of Westminster—the Solicitor-General could answer questions, but there would be no right of the Scottish Parliament to question the Lord Advocate. Although there has been no Law Officer in the House of Commons, the Law Officers are still ultimately responsible to the House of Commons and to another place. Technically, the Secretary of State answers questions on their behalf. As the hon. Member for Linlithgow (Mr. Dalyell) knows, if we had a Law Officer in this place, some of his Adjournment debates on Lockerbie would have been answered by a Law Officer, but they have had to be answered by a Minister—indeed, the Minister for Home Affairs and Devolution, Scottish Office has had to answer them—as a stand-in for the Law Officers. That would not be the case if the Lord Advocate was not a Member of the Scottish Parliament. The hon. Member for Perth (Ms Cunningham) rightly pointed out in the battles that we had over clause 23 that it would be possible for the House of Commons to call the Lord Advocate or the Solicitor-General if it was felt that he was not executing his duties or there were questions to be answered. Amendment No. 10 would require that the Lord Advocate and the Solicitor-General should be members of the Faculty of Advocates or a solicitor under the Solicitors (Scotland) Act 1980. That would ensure that those who hold such high office were suitably qualified. I am grateful to Mr. Michael Clancy of the Law Society of Scotland for giving me some of the historical background. The Lord Advocate has always been an advocate, as far back as anyone can trace. With regard to the Solicitor-General, the first appointment of a King's Solicitor dates to 1587, when a commission was granted to William McCartney, one of the King's Clerks, writer and special agent". That might suggest that he was a solicitor rather than an advocate, but during the 17th century the office became the preserve of members of the Faculty of Advocates. In 1684 the King's Solicitor was authorised to prosecute with similar jurisdiction to that of the King's Advocate. In more recent times, during the first Labour Government, the Prime Minister, Mr. Ramsay MacDonald, attempted to have a Glasgow solicitor, Rosslyn Mitchell, appointed Lord Advocate, but after an encounter with the Lord President of the Court of Session, Ramsay MacDonald thought again and Mr. Mitchell was not appointed, as he had no rights of audience in the Court of Session. The position has been different since the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.

Tam Dalyell (Labour, Linlithgow)

If the Mitchell case, to which the hon. and learned Gentleman rightly refers, were repeated today, would he agree to a solicitor of the distinction of Rosslyn Mitchell being appointed? Personally, I would.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

Subject to what I am about to say, yes. My amendment would make provision for a solicitor to become Lord Advocate or Solicitor-General for Scotland—a solicitor under the Solicitors (Scotland) Act 1980. Of course it is now possible for solicitors to have rights of audience in the High Court, the Court of Session, the House of Lords and the Judicial Committee of the Privy Council. I hope that the Minister will be minded to accept the amendment, which would build in a guarantee that whoever holds those high offices will be suitably legally qualified. Amendment No. 11 contains a similar requirement in relation to the Advocate General for Scotland and clause 82. It is perhaps even more important that the qualification be included here. One wonders whether, in times to come, a short cut might be taken and it might be thought a good idea to let the Attorney-General for England and Wales also be the Advocate General for Scotland. 5 pm Clause 82(3) states: If that office is vacant or the Advocate General is for any reason unable to act, his functions shall be exercisable by such other Minister of the Crown as the Prime Minister may determine in writing. That suggests that someone, somewhere along the line, has thought that the Advocate General's functions might be carried out by, for example, the Lord Chancellor's Department, or possibly the Secretary of State for Trade and Industry. The field is wide open. Amendment No. 12 would allow the vacancy to exist for only one month. Important Scottish legal considerations would come to bear on matters which are still the reserved powers of Westminster. It is important that advice on the Scottish dimension is given by someone suitably qualified in Scots law.

Michael Ancram (Conservative, Devizes)

As a Scottish lawyer, I have some sympathy with the idea of creating more jobs for Scottish lawyers. But does not the hon. Gentleman's point on the Advocate General substantiate something that I was trying to say, which is that the safest form of Advocate General within the United Kingdom is the Lord Advocate? It is clear that he is qualified as a Scottish lawyer but can also bring to that role the influence and weight of the office. To create this new third man, Harry Lime-type creature will not do anything for the law of Scotland or the advice given to the Government here.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

I do not agree, because one cannot serve two masters. As I have already said, we are not talking about the prosecution function, which I think we are all agreed should be separate. If one had a Government of a particular complexion in Edinburgh and one of a different complexion in London, one could not honestly expect the Lord Advocate to deliver legal advice to both. The right hon. Gentleman says that that problem would not arise because the Lord Advocate would not be involved in the Scottish Parliament, and I have given the reasons why that would not be appropriate. It is important to have someone available in Westminster to give advice on Scottish legal matters and, by the very character of the being, it must be someone in step and in political sympathy with the Government of the day.

Andrew Rowe (Conservative, Faversham and Mid Kent)

As a non-Scottish lawyer, I seek a piece of information. If a constituent of mine from Kent crosses the border into Scotland and falls foul of the procurator fiscal service in circumstances that I regard as oppressive and improper, with whom can I take up my anxieties?

Jim Wallace (Liberal Democrat, Orkney and Shetland)

It would not be the Advocate General, because he would not have responsibility. The practical answer is that the hon. Gentleman could take the matter up with the Lord Advocate. I would fully expect the Lord Advocate of the day to treat seriously any such letter from an hon. Member of this House. We write to European Commissioners who are not answerable to us, but we expect and hope to have our letters treated seriously, which, for the most part, we do. In terms of theoretical accountability, as I have already said, at the end of the day, because of the clause that we have already debated, it would be possible for the Lord Advocate to appear before a Select Committee of this House and, in that way, there may be some indirect accountability. The practical point is that, if the hon. Gentleman had an aggrieved constituent, he would take it up with the Lord Advocate and I would fully expect any Lord Advocate worth his or her salt to give a decent and considered reply, in the same way as a Member of the Scottish Parliament would get such a reply if he wrote. In practical terms, that is not a problem. The balance struck by the Government of the two Law Officers being part of the Scottish Parliament and the Scottish Executive shows the seriousness of our intent with regard to the creation of the Parliament. If, somehow or other, the Lord Advocate were thought to be too grand a person for the Scottish Parliament, it might lead to questions as to what kind of Parliament we are creating in the first place. The Government have struck the right balance, but my amendments would secure the position and the independence of the procurator fiscal service and the advocate-deputes in terms of prosecution.

Alex Salmond (Scottish National Party, Banff and Buchan)

I can help with the reason why the right hon. Member for Devizes (Mr. Ancram) keeps referring to the third man and Harry Lime. As I remember the plot of the film, Orson Welles kept disappearing down the drains of Vienna. Given the state of the Tory party, that seems an apt analogy. I come now to the humbug behind the right hon. Gentleman's formulation. The current system of Law Officers' accountability to this place is clearly unsatisfactory. The hon. Member for Linlithgow (Mr. Dalyell) made the point. His 14 Adjournment debates had all been answered by proxy because it is 10 years since a Law Officer sat in this place who could answer the hon. Gentleman directly. Perhaps it was because the Law Officers were facing the hon. Gentleman that they decided no longer to be in this place, but that is an unsatisfactory position that the right hon. Member for Devizes was perfectly happy to allow for 10 years. Clearly, under the Bill, Members of the Scottish Parliament will be able to make the Law Officer directly accountable by questioning, by proper democratic process. That must be an enhancement of the current position. It may be an incentive for the hon. Member for Linlithgow to stand for the Scottish Parliament so that he can pursue the Lockerbie debate directly with the Solicitor-General and the Lord Advocate—who knows? But whoever does it, whether it be the hon. Member for Linlithgow or his Scottish National party replacement, the provision will enhance the democratic process. The right hon. Member for Devizes is perfectly happy in his amendments to remove the Lord Advocate from the provenance of the Scottish Parliament so that the senior Law Officer in Parliament will not be available directly to the Members of the Scottish Parliament, despite the fact that the vast majority of the issues will fall under the matters devolved to that Parliament. In place of that, he brings forward a few exceptions in terms of the reserved matters. In one of our debates two weeks ago, it became clear that, against my wishes and those of many other hon. Members, it would not be within the ability of the Scottish Parliament to summon UK Ministers. It could invite UK Ministers in much the same way as we can invite the Lord Advocate to the Scottish Grand Committee at the moment. But it would still be within the rights of this Parliament's Select Committees to summon Scottish Ministers before them, as they summon other people, if so required. The Opposition—in their amendments and in the position celebrated by Conservative Members when they congratulated the Government on the question of witnesses only two weeks ago—are perfectly happy to allow a democratic vacuum, whereby the senior Law Officer is not available to Members of the Scottish Parliament for questioning, in pursuit of a few isolated cases in which they think Westminster's responsibility should prevail. It is that attitude of trying to limit the Scottish Parliament's powers—

Michael Ancram (Conservative, Devizes)

If the Lord Advocate, although still remaining the adviser to the United Kingdom Government, could give answers to the Scottish Parliament, would the hon. Gentleman withdraw his objection?

Alex Salmond (Scottish National Party, Banff and Buchan)

Of course not. I argue that the Law Officer should be directly accountable to the Scottish Parliament. It is the right hon. Gentleman who has to account for the situation that he is prepared to allow which would mean that the Scottish Parliament did not have the ability to hold the senior Law Officer in Scotland directly accountable. That attitude towards the legislation—trying to draw back whatever can be saved for this place and the other place at Westminster—is the real reason for the miserable, down the drain, 9 per cent. that the Conservative party faces in the elections to the Scottish Parliament in a year's time.

Henry McLeish (Labour, Central Fife)

I wish to start by referring to the initial comments of my hon. Friend the Member for Linlithgow (Mr. Dalyell) on the many Adjournment debates he has had on Lockerbie. As a newly appointed Minister about to face the 14th debate, I sat with some trepidation. As it was an Adjournment debate, however, I thought that I could relax until 10 o'clock. This historic moment was the evening before the publication of the White Paper and, at 6.10 pm, the business in the House collapsed. My hon. Friend was on stage at that point. Remarkably, after an hour, he started to read from his notes—after speaking for one hour without any. We finished at 8.50 pm, and it was an important occasion for me in dealing with Lockerbie. My hon. Friend answered the question on prosecution—it is about the jurisdiction in which prosecution takes place. I shall deal with some of the points made about the Lord Advocate in a moment, but that is an important point. We have had a useful debate on the role of the Law Officers and the way in which they will be dealt with under devolution. Before dealing in detail with the amendments. It may help if I clarify first what is proposed for the Law Officers in the Bill. The policy that the Bill reflects was summarised briefly in the White Paper, which recognised that the Scottish Executive would require the services of Law Officers to provide them with advice on legal matters and to represent their interests in the courts. In addition, the role and responsibilities of the Lord Advocate as prosecutor were to be devolved, with his traditional independence maintained. The Bill delivers that policy and safeguards the Lord Advocate's independence in a number of its provisions. At present, the Lord Advocate and the Solicitor-General for Scotland are the Scottish Law Officers to the United Kingdom Government. The Bill provides for them to cease to be members of the UK Government and to become members of the Scottish Executive. They, along with the other Ministers, will be known as the Scottish Ministers. The effect of clause 45(3) is that the Lord Advocate and the Solicitor-General will cease to be Ministers in the UK Government and will cease to be the UK Government's Scottish Law Officers. Clause 45(1) provides for the appointment and the removal from office of the Law Officers, and makes this subject to the agreement of the Scottish Parliament. All the functions conferred on the Scottish Ministers will be capable of being exercised by any of them. It will be for the First Minister to determine the portfolios of individual Scottish Ministers. However, the Lord Advocate and the Solicitor-General for Scotland are to be the Law Officers to the Scottish Executive, and the intention of the Bill is that their functions as Law Officers should not be exercisable by any other Scottish Minister—a point alluded to by the right hon. Member for Devizes (Mr. Ancram). The Bill ensures that these Law Officer functions are retained by the Law Officers in their own names. The functions of the Law Officers principally involve their being the main legal advisers to the Government in matters of Scots law, and representing the Crown and the Government in civil and criminal proceedings. While the term "Law Officer" in itself does not, as a matter of law, confer any particular function or status, certain specific functions are conferred upon the Lord Advocate in his capacity as Law Officer. Retained functions include the functions of the Lord Advocate as Her Majesty's Advocate—as the head of the systems of criminal prosecution and the investigation of deaths in Scotland. The Lord Advocate will be entrenched in that role by clause 28(2)(e), and clause 45(2) confirms the continued independence of the decisions of the Lord Advocate in his capacity as the head of the systems of criminal prosecution and the investigation of deaths in Scotland. These provisions secure the protection that the Lord Advocate requires to fulfil those responsibilities in a way which will uphold his traditional independence. All the other functions currently exercisable by the Lord Advocate that do not relate to his Law Officer functions—whether they concern devolved or reserved matters—will require to be transferred from him before he ceases to be a Minister of the Crown or becomes a member of the Scottish Executive. Transfer of function orders will need to be made to effect this and, for the information of the House, I have today laid three working drafts of the orders in the Library.

Michael Ancram (Conservative, Devizes)

We understand that, under the Bill, the legal functions of the Law Officers are protected from being exercised by anyone else. However, I am interested in where the reverse could be the case. Under clause 48(3), a Law Officer might find himself exercising the statutory functions of another Minister of the Executive, and I gave planning as an example. Am I right in thinking that, under that provision, that is possible? If it is, does the Minister think that it is desirable?

Henry McLeish (Labour, Central Fife)

It would be possible, but it would be ridiculous and certainly would not reflect any precedent in the current distribution of functions within a ministerial team. The right hon. Gentleman once again picks an extreme example on which to base his case. That will not happen. We want to ensure that the ministerial functions are capable of being exercised by Ministers of the Executive. There is nothing surprising about that, and it is a reasonable step forward.

Michael Ancram (Conservative, Devizes)

If the Minister is right to say that that position will never arise, and that there is no possibility of a Law Officer exercising the functions of another member of the Executive, what is the point of having them as members of the Executive? The purpose of our amendment is not to prevent them from advising the Scottish Parliament, but to remove them from the Executive. We cannot see the purpose or benefit of the Law Officers being members of the Executive, but we can see a lot of dangers in blurring the distinction between their office and the offices of other members of the Executive.

Henry McLeish (Labour, Central Fife)

I do not see the danger. At present, I am the Minister responsible for home affairs, devolution and transport, but there may be occasions within my ministerial work when I am working on health or education matters. It is common sense to allow members of the Executive to carry out these functions.

Michael Ancram (Conservative, Devizes)

The Minister has missed the point.

Henry McLeish (Labour, Central Fife)

No, I have not. We are suggesting that the Lord Advocate and the Solicitor-General will be Ministers and part of the Scottish Executive. There is nothing remarkable in that proposal, and I hope to explain why it makes so much sense. I referred to the fact that a draft transfer of functions order had been placed in the Library, and I hope that hon. Members will avail themselves of the opportunity to look at it. There will also be another order to transfer certain functions from the Lord Advocate to a new UK Minister called the Advocate General for Scotland, who will become the Scottish Law Officer to the UK Government. His office is provided for in clause 82. Before the Lord Advocate becomes a member of the Scottish Executive, certain of his functions that relate to reserved matters will be transferred to the Advocate General by the order. Apart from the functions that the Lord Advocate is retaining, the functions he currently exercises in relation to devolved matters will be transferred first to the Secretary of State under one of the transfer orders. They will then be transferred to the Scottish Ministers under clause 49, when they will become exercisable by any of the Scottish Ministers as determined by the First Minister. The reason why these functions have to be transferred first to the Secretary of State is that they have to be transferred from the Lord Advocate to another UK Minister of the Crown before the two Scottish Law Officers cease to be part of the UK Government. This allows the functions then to be transferred to the Scottish Ministers under clause 49. Functions currently exercisable by the Lord Advocate in relation to reserved matters will be transferred by the draft orders to UK Ministers of the Crown. Most will subsequently be transferred to the Scottish Ministers by the draft Transfer of Functions (Scottish Ministers) Order, which will be made under clause 59. I have made available to the House a draft of that order. In light of that background, I wish to address myself to the amendments. Amendments Nos. 10 and 11 would require the Law Officers to the Scottish Executive—the Lord Advocate and the Solicitor-General for Scotland—and the new Scottish Law Officer to the UK Government, the Advocate General for Scotland, to be legally qualified in Scotland, either as an advocate or as a solicitor. As the hon. and learned Member for Orkney and Shetland (Mr. Wallace) will be aware, the offices of Lord Advocate and Solicitor-General are, by custom, held by distinguished members of the Scottish Bar. It has not been felt necessary in the past to prescribe the qualifications for office of the Scottish Law Officers, and it is not clear why this should be necessary now. To do so would be inconsistent with the Government's intention to legislate for a responsible Parliament and Executive, which can be expected to ensure that holders of these vital offices of state are qualified for them. Some reference was made to the history of the offices. I referred to the holders of the offices as being distinguished members of the Scottish Bar. That has been the case for the Lord Advocate's office for some 400 years and, for the Solicitor-General's office, for some 300 years. Custom has served us well in Scotland, and there is no reason why that should change.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

Does the Minister accept that it could be possible for a solicitor, particularly one who holds rights of audience in the Supreme Court, to become Lord Advocate or Solicitor-General? In the case of the Advocate General for Scotland, which is a new appointment, there might be a temptation for the Government to cut corners and double up on a salary, possibly with the Attorney-General. In that case, would it not be worth while spelling out the qualifications required?

Henry McLeish (Labour, Central Fife)

The question of the possible appointment of a solicitor to one of those offices is not an appropriate one for the Bill. The advent of rights of audience for solicitors and of solicitor-advocates may well give rise to the question whether it is strictly necessary for the Lord Advocate and Solicitor-General to be drawn only from the Faculty of Advocates. There are a number of interests which it would be appropriate to consult before proceeding with any change on that matter. In view of the wide range of the Lord Advocate's responsibilities, both formal and informal, it is essential that he or she should command the full confidence of the courts. That may be an issue which, in the fulness of time, the Scottish Parliament will wish to consider, but it is not an appropriate subject for the Bill. Similar considerations apply to the appointment of Advocate General. Clearly, the UK Government would wish to appoint only an eminent Scottish lawyer to a ministerial office of that nature, but there is no need to specify those qualifications in legislation. This is an area in which we can rely on long-established custom and practice, and I therefore ask the hon. Gentleman to withdraw the amendment. Amendment No. 12 provides that the functions of the Advocate General may be exercisable by another Minister of the Crown in the event of a vacancy or the incapacity of the Advocate General, provided that a vacancy lasts for no more than a month. The effect is to make it impossible for there to be a vacancy for longer than a month. Although I appreciate that the amendment is intended to ensure that the office of Advocate General for Scotland is not left vacant for too long, the matter can safely be left to the good sense of all concerned, as it might have other consequences. Clause 82(3) provides for the Prime Minister to determine that another Minister of the Crown should carry out the Advocate General's functions if the office is vacant, or if the Advocate General cannot act, for example, because of illness. I fully accept that it would be in no one's interest for the office to be left vacant for long and, except for circumstances beyond anyone's control, I cannot envisage the office being left vacant for longer than a month. I cannot agree that it is necessary to prescribe time limits to the provisions in clause 82. In any circumstances in which there was a vacancy or incapacity, whoever was appointed by the Prime Minister to hold the fort would be advised by the Scottish legal experts in the Advocate General's Department. There would be no question, therefore, of the UK Government taking decisions without regard to Scottish law.

Alex Salmond (Scottish National Party, Banff and Buchan)

May I press the Minister on his opinion on Law Officers' independence? We have had Law Officers who have been anything but politically independent—Lord Mackay of Clashfern kept making interventions in the constitutional debate; each was described as "unprecedented". The last Solicitor-General stood for a seat unsuccessfully in the general election. I am genuinely interested to know what the Minister thinks the question of Law Officers' independence means, because there has been no tradition of political independence.

Henry McLeish (Labour, Central Fife)

The hon. Gentleman asks a reasonable question. We should look at the totality of the Lord Advocate's functions and responsibilities in the new Scottish Parliament. He will be a member of the Scottish Executive and would therefore advise on legal aspects of political policy as it unfolds, but in relation to the prosecution function and overseeing investigations into deaths, his independence is absolutely vital. As in any democracy, an important balance must be struck. The proposals before us contain the right balance.

Tam Dalyell (Labour, Linlithgow)

It may be unlikely, and it would not happen often, but in the event of a difference of opinion between the Advocate General and the Lord Advocate, who would resolve it?

Henry McLeish (Labour, Central Fife)

Such points were raised at previous Committee sittings. We assume that the balance of common sense will prevail in many of the issues that will be dealt with between Westminster and the new Parliament at Holyrood. If we reach the point where matters must be resolved, the systems of debate and dialogue must come into play. When we have discussed such matters, we have always considered the most pessimistic scenario. That is understandable, but I would hope that, especially in this area, which is absolutely vital to the freedom of individuals and to the public interest, those matters will be fully resolved. I am grateful to the right hon. Member for Devizes (Mr. Ancram) for saying why he considers amendment No. 274 to be desirable. The amendment is both unnecessary and, I am afraid to say, would run counter to what is envisaged by the Bill. As I explained, the Bill provides that the Lord Advocate and the Solicitor-General for Scotland should be members of the Scottish Executive. It does not, however, need to provide expressly that they will become the Law Officers of the Scottish Executive. The Solicitor-General will continue to be able to carry out the functions of the Lord Advocate in terms of the Law Officers Act 1944. The amendment describes the Solicitor-General as the Law Officer to the Scottish Executive. I am left wondering where the amendment would leave the Lord Advocate. The right hon. Member for Devizes said that Scotland could deal with one Law Officer, not two. The amendment would, by implication, deprive the Lord Advocate of his intended role as principal Law Officer to the Scottish Executive. The Government believe that both the Lord Advocate and the Solicitor-General should be the Law Officers to the Scottish Executive, and that the two offices should continue to have the sort of relationship that has existed for more than three centuries. The amendment would destroy that.

Tam Dalyell (Labour, Linlithgow)

May I also ask about the back-up to the Advocate General? Clearly, the civil servants and the Crown agent are responsible to the Lord Advocate and the Solicitor-General, but what about the civil servants responsible to the Advocate General? Will they be UK civil servants, or responsible to the Scottish Parliament?

Henry McLeish (Labour, Central Fife)

It is a UK appointment and they will be UK civil servants. The Government will deal in due course with the details and procedures behind setting up the office and the specific functions. Amendments Nos. 289 and 290 allow the subordinate legislation under which functions may be executively devolved to determine whether the functions should be exercised by the Scottish Law Officers rather than by Scottish Ministers generally. The purpose appears to be to try to allow particular functions to be assigned specifically to the Scottish Law Officers rather than to the Scottish Ministers. That goes against the general approach in the Bill, which is to make fully and executively devolved functions exercisable by any Scottish Minister. In legal terms, they will be equally capable of exercising those functions. In practice, that will leave the First Minister with the proper degree of discretion to decide which of his Ministers should exercise particular functions. Only in respect of the Lord Advocate's retained functions, which are his Law Officer functions and his functions as head of the systems of prosecution and deaths investigation service, will the Law Officers exercise functions that cannot be exercised by another Scottish Minster. I expect that the First Minister will wish to allocate functions in accordance with the Scottish Ministers' portfolios. In practice, it is likely that certain policy functions that relate to the Scottish judicial system will be exercised by the Scottish Law Officers. In line with the devolution of responsibility for the judicial system in Scotland, the draft Executive devolution order lists a number of functions currently exercised by the Lord Advocate and the Secretary of State in relation to tribunals concerned with reserved matters. Those functions involve making or being consulted about appointments, and procedural rules and other procedural matters. Executive devolution will enable the functions to be exercised by the Scottish Minister. We expect the First Minister to allocate the functions in question to the Scottish Minister responsible for civil justice matters, whether he be the Lord Advocate or some other Scottish Minister. In exercising those functions, the role of the relevant Scottish Minister would relate to his involvement in the civil justice system rather than to any other policy interest of the Scottish Executive in the matter concerned. However, there would be no justification for fettering the discretion of the Scottish Ministers as the amendment proposes. The Committee has to make up its mind whether it wants power and responsibility to be devolved to a Scottish Parliament and a Scottish Executive that can stand on their own feet and be responsible for their own decisions. There is no need for the type of provision proposed in the amendments. I ask the Committee to resist amendment No. 303, which appears to be intended to prevent the Lord Advocate and the Solicitor-General for Scotland from being members of the Scottish Executive. That would be quite inappropriate. The Lord Advocate and the Solicitor-General will be the Law Officers to the Scottish Executive. That means that they will be expected to provide advice from a legal perspective on the formulation and implementation of policy. They can only properly do that if they are members of the Scottish Executive. Amendment No. 303 would therefore severely restrict the role of the Law Officers, which I am sure is not what the right hon. Member for Devizes intends. It is vital to the Scottish Executive that the Law Officers should play a full and effective part in it. The devolution of the Law Officers and their responsibilities is one of the key respects in which the Bill improves on the 1978 Act. The amendment would be a significant weakening of the Bill. For those reasons, I ask the right hon. Gentleman to withdraw amendment No. 303. Amendment No. 314 would extend the provision on the independence of the Lord Advocate to officials and agents appointed by and responsible to the Lord Advocate, such as Crown Office staff, procurators fiscal and Crown counsel. The amendment is defective because clause 45(2) protects any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland. It does not make any sense to refer, as the amendment does, to any decision by such an official or agent taken in that capacity because the official or agent is not the head of those systems. Furthermore, the amendment could be taken to mean that any decision of an official or agent of the Lord Advocate is required to be taken independently of the Lord Advocate. 5.30 pm The amendment is unnecessary. It presumably seeks to protect any decision for which formal responsibility rests with the Lord Advocate but which in practice is taken by one of his officials for whom he is responsible. Any such decision is regarded as the decision of the Lord Advocate. It is important to underline that point. The reference to the Lord Advocate will therefore include any such official. Accordingly, the guarantee of independence of the Lord Advocate should be sufficient to protect officials from outside pressures without express mention. I should also point out that clause 28(2)(e), which entrenches the position of Lord Advocate as head of the systems of criminal prosecution and investigation of deaths, will also have the effect of ensuring that any officials and agents who are appointed by the Lord Advocate in connection with those functions will remain answerable to him. That reinforces the guarantee of independence. In the light of that explanation, I trust that right hon. and hon. Members will agree that the amendment is unnecessary. Government amendment No. 321 is a drafting amendment that is intended to clarify clause 48(6) by making it clear that what the Bill refers to as the Lord Advocate's "retained functions"—those functions that are exercisable by him alone—include any functions that may be conferred on him alone in future legislation. It is not intended to refer to any statutory functions that are at present conferred on him because, to the extent that he retains them, they will be caught by the reference in clause 48(6)(a) to any functions exercisable by him immediately before he ceases to be a Minister of the Crown". The amendment refers to any functions that the Scottish Parliament may confer on the Lord Advocate in connection with the criminal prosecution or deaths investigation systems. It is simply a clarificatory point.

Michael Ancram (Conservative, Devizes)

A familiar and depressing atmosphere surrounded the Minister's reply. His standpoint is that his legislation is unamendable. I hope that he will consider that point carefully. Several amendments were tabled in good faith, including those of the hon. and learned Member for Orkney and Shetland (Mr. Wallace), yet we were told that they were not necessary. That attitude comes from a mind-set that assumes that legislation is perfect. As a lawyer, I can tell the Minister that, if legislation had ever been perfect, there would not be much work for lawyers. It is because legislation is so often imperfect that many of us manage to earn a living as lawyers. I was slightly surprised to be lectured about the fact that the Conservative Government did not have a Law Officer in this House.

Henry McLeish (Labour, Central Fife)

indicated dissent.

Michael Ancram (Conservative, Devizes)

Not necessarily by the Minister, but by others. It is obvious that the Government do not believe that a Law Officer should sit on the Treasury Bench to deal with legal matters in Scotland. They do not have the excuse that they have no one who is appropriately qualified. The hon. and learned Member for Edinburgh, Pentlands (Dr. Clark) is perfectly qualified to hold that position, but for reasons best known to themselves the Government decided that the Law Officer should speak in the other place. There is a question mark over the sincerity of their view of the importance of having the Lord Advocate in the Scottish Parliament to answer questions, because they have not adopted that position for this House. The hon. and learned Member for Orkney and Shetland tabled some good amendments that we would have supported, but we were told by the Minister that they were not acceptable. I am now used to the interventions of the right hon. Member for Banff and Buchan (Mr. Salmond). Is he right honourable?

Alex Salmond (Scottish National Party, Banff and Buchan)

No.

Michael Ancram (Conservative, Devizes)

Honourable but not right yet—that clarifies matters. The hon. Gentleman seems to regard everything that is proposed, certainly by Conservatives, as part of a conspiracy to destroy the Scottish Parliament. I do not think for a moment that he believes that, because he has no interest in making the Scottish Parliament work. He wants it to fail so that we move towards independence. I suspect that he criticises our proposals because he believes that they give the Scottish Parliament a better chance of sustaining itself within a devolved system, which will ensure that it does not go down the slippery slope towards independence.

Alex Salmond (Scottish National Party, Banff and Buchan)

It is early days, but it seems that my point of view on the Scottish Parliament elections is doing rather better than that of the right hon. Gentleman. Does he not think that, if the Scottish Parliament works, and if people have confidence in that new institution, it will lead to a move towards independence?

Michael Ancram (Conservative, Devizes)

The hon. Gentleman wants conflict and dispute between this House and a Scottish Parliament, because he believes that that will operate in favour of his ambitions and objectives. Throughout the referendum campaign, we argued that the creation of a Scottish Parliament would not diminish nationalism but would create a focus for it, and that nationalism would increase. If anything, the opinion polls show that our fears were right. The urbane reassurances that we were given by Labour Members are now seen for what they are. The Minister gave us some interesting information about the clause. I thank him for that, because we learned much about the intentions behind the clause. However, he did not answer our questions on the amendments. On one amendment, he said that the matter could safely be left to the good sense of all concerned. It is not an answer to say that a provision need not be in the legislation because we can rely on the good sense of all concerned. I do not share his touching faith in human nature. People who want the Scottish Parliament to work would be wise not to rely on faith in human nature: they should ensure that the right statutory provisions are in place. The Minister gave no reason why the Law Officers should be members of the Executive. He said that it was so that they could give legal advice on political events as they unfolded. Why can they not do that from outside the Executive, as do other legal advisers? They do not have to be part of what they are legally advising: in fact, their advice is often better for their not being part of it. The hon. Member for Linlithgow (Mr. Dalyell) made two important points about the Advocate General. He asked what would happen if there were a dispute between the Lord Advocate and the Advocate General. We received a wittering answer that did not tell us whether there was a mechanism to resolve such a dispute, which would be very serious for the law of Scotland. in answer to the question who would service the Advocate General's Department, we were told that civil servants would be made available. Where will they come from? The Crown Office? Will they be trained in Scottish law? Will they be seconded from among the civil servants who would otherwise look after the Lord Advocate and the Solicitor-General? We have no answers to those questions. Yet again, we are told that we must leave it to the good sense of all concerned. We are not prepared to leave such matters to the good sense of all concerned. I ask my colleagues to support my amendment.

Tam Dalyell (Labour, Linlithgow)

To whom will the civil servants who work for the Advocate General be responsible? Are they part of the home civil service and ultimately responsible to its head, who is currently Sir Richard Wilson, or to the permanent secretary at the Lord Chancellor's Department, or will they be responsible to the Scottish Parliament? That is an important question. Before we reach the later stages of the Bill, something more must be said about the possibility of a difference of opinion between the Advocate General and the Lord Advocate, because such a dispute is not so arcane, esoteric or hypothetical as we may suppose.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

I want to take up some of the points raised by the Minister in response to amendments that I tabled. First, however, let me take up what the right hon. Member for Devizes (Mr. Ancram) said when he was engaging in his bit of banter with the hon. Member for Banff and Buchan (Mr. Salmond). I think that there will be a penalty to be paid by any party that tries to wreck the Scottish Parliament, and I do not think that it is in any party's interest to do so. That is why I want the Scottish Parliament to be as fully fledged as possible. I think that a measure that took away a wing of it by refusing to allow the principal Law Officer of Scotland to be accountable to, or to be a Member of, the Scottish Parliament would give rise to conflict and frustration. I am not saying that that was the motive behind amendment No. 303, but I believe that it could be the consequence of it. If the right hon. Member for Devizes wants to know how the wrecking would happen, let me tell him that I think it would result from not having the Lord Advocate as a Minister in any Scottish Executive. I was disappointed by the Minister's reply, which was traditionally conservative with a small "c": "It has happened for years, and therefore it will go on happening." I take the Minister's point that we do not want to circumscribe the Scottish Parliament in too many ways, but he ought to accept that, far from circumscribing the Parliament by tradition—which, I think, is what he was trying to do—my amendments would open it up, making the pool from which the Lord Advocate and Solicitor-General might be chosen somewhat wider than tradition would allow it to be. I do not intend to press the matter to the vote on this occasion, but I think that what was said will be noted. I want to reserve our position on amendment No. 11, which relates to clause 82 and requires the Advocate General to be properly qualified in the law of Scotland. The right hon. Member for Devizes referred to the "good sense" of all concerned. When the Conservatives were in government, I used to apply what I have always considered to be a very good test: "How would you like the powers to be in the hands of the Opposition?" Does the Minister really think that the good sense of all concerned would necessarily be exercised in the right way if, as may happen, the Conservatives returned to office? After all, they have been in office before, and they may be again. Does the Minister trust the Conservatives to exercise good sense, or does he think that they may try to take a short cut? In the case of the Advocate General, I do not think that we can rely on centuries of tradition, because there is no tradition. We are creating a new post. It will be an important post, because large areas of responsibility affecting Scotland will remain with the House of Commons, and we hope that the advice on Scottish law that the Government of the day are given will be of the best quality. I do not think that we can leave the matter to chance, good sense, good luck and good will. Especially with regard to the Advocate General, we should not leave things to tradition. There is an old story about someone saying, "As from tomorrow, this college will have a new tradition." I think that the Minister was saying, "As from the time when the Bill is enacted and a Scottish Parliament is established, there will be the tradition of the Advocate General."

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman speaks of changes in traditions. Is he aware that recently, when it came to breaking traditions in regard to legal matters, the Government decided to introduce special legislation so that, for the first time, a non-lawyer could become permanent secretary to the Lord Chancellor's Department? Is it not consistent with the hon. Gentleman's argument, rather than with the Government's argument, that in certain circumstances— when it suits them—the Government are prepared to depart from legal tradition, while on this occasion they are not?

Jim Wallace (Liberal Democrat, Orkney and Shetland)

I was not aware of that. I have not been paying close attention to the machinations of the Lord Chancellor's Department. Perhaps I have read more in the press about the Lord Chancellor's wallpaper than about his permanent secretary. The hon. Gentleman makes a good point, however: traditions can be overturned. One of my amendments would allow for the development of a tradition, but in the context that we are discussing there is no tradition, and I think that there ought to be rules. As I have said, we shall reserve our position in respect of clause 82.

Henry McLeish (Labour, Central Fife)

I find it remarkable that the right hon. Member for Devizes (Mr. Ancram) is always so keen to reinvent the wheel. At present, the Lord Advocate is a member of the Government, and I submit that in past Conservative Administrations the position was probably the same. What is the great remarkable discovery about the Lord Advocate in the Scottish Parliament being a member of the Scottish Executive? I think that the point is bogus. We are seeking to strengthen the legal advice on policy within the Scottish Executive, while ensuring that the independence that the Lord Advocate requires to exercise his function is there in a real sense. We have presented a clear and coherent package in terms of that accountability, which should be commended. My hon. Friend the Member for Linlithgow (Mr. Dalyell) referred to the discussions between the Advocate General and the Lord Advocate. As I have said, Labour Members feel no malice in regard to what may happen between a Scottish Parliament and the Westminster Parliament. That said, two parts of the Bill refer to policy resolution and the question of vires. My hon. Friend was right to stress the fact that, ultimately, there will be ways of resolving disputes, and one way will be through the courts. My hon. Friend asked about the Advocate General's staff. They will of course be United Kingdom civil servants, responsible to the Advocate General at Westminster rather than to the Scottish Parliament. The practical strength of our proposals lies in the attempt to provide a coherent package for the Lord Advocate and the Solicitor-General. I take on board my hon. Friend's comments, because he has taken a passionate interest in ensuring that we get the balance right, but we believe that the right balance has been struck. I therefore urge the right hon. Member for Devizes to withdraw his amendment.

THE FIRST MINISTER

Dennis Canavan (Labour, Falkirk West)

I beg to move amendment No. 44, in page 18, line 11, leave out from `be' to end of line 13 and insert `elected by the members of the Parliament'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this, it will be convenient to discuss the following amendments: No. 254, in page 18, leave out lines 19 to 27. No. 313, in clause 43, page 18, line 36, leave out 'or'. No. 275, in page 18, line 38, at end insert 'or— (e) the First Minister being admitted to a hospital under the Mental Health (Scotland) Act 1984, becoming subject to a guardianship order or having a curator bonis appointed on his estate'. No. 76, in clause 44, page 19, line 9, leave out `with the approval of Her Majesty'. No. 276, in page 19, line 10, after 'appoint', insert `up to a total of ten'. No. 277, in page 19, leave out lines 11 and 12. No. 87, in page 19, line 11, leave out `seek Her Majesty's approval for' and insert 'make'. No. 88, in page 19, leave out line 14. No. 89, in clause 46, page 19, line 32, leave out `with the approval of Her Majesty'. No. 75, in page 19, line 35, at end insert— '(2A) The First Minister shall not make any appointment under this section without the agreement of the Parliament.'. No. 90, in page 19, leave out line 37.

Dennis Canavan (Labour, Falkirk West)

I shall speak to amendment No. 44 and the other amendments in my name and that of my hon. Friend the Member for Dundee, East (Mr. McAllion). Amendments Nos. 44, 76 and 75 are substantive and the others are consequential. Amendment No. 44 proposes that the First Minister should be elected by Members of the Scottish Parliament rather than being appointed by the Queen and holding office at Her Majesty's pleasure. As the First Minister will be primus in paribus, or first among equals, it is more appropriate that he or she is elected by his or her parliamentary colleagues than appointed by the Crown. In the early stages of the Scottish Constitutional Convention, members of the convention signed a document referring to the sovereignty of the people of Scotland. It seems to me that the concepts of the sovereignty of the people of Scotland and of the sovereignty of a monarch are mutually exclusive. The amendments propose that, if the First Minister is not directly elected by the people of Scotland, he or she should be elected by the people's representatives in the Scottish Parliament. I dare say that Opposition Members, and perhaps the Minister, will argue that the role of the monarchy is a mere formality in respect of the governance of the country or the countries that used to be part of the British empire. However, not all that long ago a Labour Prime Minister was ousted from his job in Australia because of the interference of the Governor-General, the Queen's representative. In 1974, there were two general elections, and the first resulted in a hung parliament. No party had an overall majority in Parliament, and Harold Wilson was the leader of the party with the largest number of Members. However, the Queen did not call Harold Wilson to the palace. In fact, she called the defeated Prime Minister, the right hon. Member for Old Bexley and Sidcup (Sir E. Heath), to the palace and asked him to cobble up some kind of coalition agreement with Jeremy Thorpe, the then leader of the Liberal party. There was a long hiatus in which, in effect, there was no Government. Harold Wilson, who was the leader of the biggest party, had to wait in the wings until he was called to the palace to form a Government.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

I am following the hon. Gentleman's argument and I am sure that he would not want there to be any inaccuracy. He will also agree that Jeremy Thorpe and his Liberal colleagues showed good sense by not supporting Edward Heath. Is not the point that Edward Heath had the advantage of incumbency—

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I remind the hon. and learned Gentleman that he is referring to a right hon. Member.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

I apologise, Sir Alan. I was speaking from a sense of history, as I was just a boy at the time. It was actually my first vote. The right hon. Member for Old Bexley and Sidcup (Sir E. Heath) was the incumbent Prime Minister at the time, so it was not a matter of the Queen sending for him. He had to tender his resignation. I am sure that even the hon. Member for Falkirk, West (Mr. Canavan) would have thought it an abuse if the sovereign had summoned the Prime Minister and demanded his resignation.

Dennis Canavan (Labour, Falkirk West)

That is exactly what the Queen should have done after the February 1974 general election. Whatever the will of the British people, as expressed at the ballot box, it was quite clear that they no longer wanted the right hon. Member for Old Bexley and Sidcup to be their Prime Minister. The Queen should have summoned him to the palace and sacked him and then called Harold Wilson, but for reasons best known to herself, she did not do that. Sometimes I wonder about the so-called neutral role of the monarchy in respect of politics.

Roseanna Cunningham (Scottish National Party, Perth)

The hon. Gentleman will know that I am very much in favour of reducing the work load of the monarch—preferably to zero. I was interested to hear the intervention of the hon. and learned Member for Orkney and Shetland (Mr. Wallace). I do not know whether he knows what happened in Australia, but in contradiction to his point about 1974—which may be true, but I do not know as I was not here at the time—when the Australian Labour Government were sacked and a general election was called, the Liberals, or the Tories, were appointed in the interim and therefore were in government throughout the election. That is an interesting point as it illustrates the other side of the coin from that referred to by the hon. and learned Gentleman. I agree with the hon. Member for Falkirk, West (Mr. Canavan) about the monarch's neutrality, which remains to be proved.

Dennis Canavan (Labour, Falkirk West)

I am grateful to the hon. Lady for that intervention as it shows the inconsistency of the monarchy or its representatives when they take a role in the running of Governments or Parliaments. We have to bear in mind too that, if the political pundits are correct, there will be a much greater probability of a hung Parliament in the Scottish Parliament because of the system of proportional representation. The amendments would minimise—in fact remove—the possibility of any interference by the monarchy as to who should be the First Minister and form the Government. My amendments Nos. 76 and 75 propose that Parliament's agreement should be required in appointing not only the First Minister but other Ministers and that there should be no role for the monarchy in appointing other Ministers or junior Ministers. Another anomaly in the Bill is that, under clause 46, the First Minister would require Parliament's agreement before seeking the Crown's approval of the appointment of a Minister, whereas the First Minister could appoint junior Ministers without seeking Parliament's approval. I think that that would be a bad thing and that all ministerial appointments should be subject to Parliament's approval. A Scottish Parliament should not simply ape the patronage system of this place, where the power of patronage is widely open to abuse. As I had started to say, the Crown is the very pinnacle of the patronage system, although in practice the Prime Minister exercises many of those powers. We have witnessed many examples—and are perhaps witnessing current examples—of appointments that are made without any reference to Parliament or much democratic accountability. We must remember that the First Minister of Scotland will have tremendous patronage powers, because, presumably, he or she will inherit all the patronage powers currently held by the Secretary of State for Scotland, who is responsible for hundreds of public appointments across Scotland. We are talking not about the appointment of a mere coterie of Scottish Cabinet members and junior Ministers but about patronage over hundreds of public positions across Scotland. We should make the First Minister and the First Minister's ministerial colleagues as accountable as possible to the people of Scotland through elected representatives.

Alex Salmond (Scottish National Party, Banff and Buchan)

I am very sympathetic to many of the points that the hon. Gentleman is making. However, it seems that clause 43 is something of an advance on the current situation at Westminster, where someone is to be called to the palace—presumably the head of the leading party in the general election. The clause states that the Scottish Parliament will nominate one of its members for appointment as First Minister. That seems to go part of the way towards achieving the more satisfactory situation that the hon. Gentleman outlined, and away from the process of mystification that we could have in this place if there were a hung Parliament.

Dennis Canavan (Labour, Falkirk West)

I agree that the Bill proposes a ministerial appointment system that is better than our current system at Westminster, where Ministers can be appointed without any reference to Parliament. We once had a rule in the parliamentary Labour party that, if someone was an elected member of the shadow Cabinet, he or she would automatically become a Cabinet member when Labour was elected to government. In at least two cases that I know of, that did not happen after 1 May. Furthermore, I know of at least one Minister whose appointment might not have been accepted had it required parliamentary approval. [HON. MEMBERS: "Name him."] I forget his constituency, but I believe that he has something to do with the millennium dome. [Interruption.] Yes, he is the Minister for the dome.

Alex Salmond (Scottish National Party, Banff and Buchan)

Is the hon. Gentleman's bleeper going off?

Dennis Canavan (Labour, Falkirk West)

I have it switched off. As I said, the two concepts of sovereignty of the people and sovereignty of the monarch are mutually exclusive. If we really believe in sovereignty of the people, Members of the Scottish Parliament should—as proposed—be elected by the people and accountable to the people. Similarly, Ministers should be elected by the elected representatives of the people. In that way, the Scottish Government or the Scottish Executive would be more accountable to the people of Scotland.

Liam Fox (Conservative, Woodspring)

I am rather sorry that the hon. Member for Hackney, South and Shoreditch (Mr. Sedgemore)—who said that Labour Members are clones—was not in the Chamber to hear the speech of the hon. Member for Falkirk, West (Mr. Canavan). It is nice to know that he still shops for his speeches at Republicans—'R—Us, adding a bit of colour to the Labour Benches. I shall speak to amendment No. 275, which deals with the important issue of the mental health of Members of Parliament, which is not a laughing matter but a serious issue that is important both for Members of Parliament and for the protection of their electorate—to ensure that representation of the electorate is maintained.

Henry McLeish (Labour, Central Fife)

Just for the record, is present company excepted from the deliberations?

Liam Fox (Conservative, Woodspring)

The Minister is asking me to give a professional opinion, which I do not think I want to stray into right now. I wonder how many hon. Members realise that the Mental Health Act 1983 has special provisions for section orders for Members of Parliament. Should, for example, an hon. Member fall ill with a mental health problem, a complex procedure will come into play. First, the doctor signing a section order or the person who is in charge of the hospital where the Member is detained will notify the Speaker. Secondly, the Speaker will appoint someone from the Royal College of Psychiatrists to look after the Member. If that Member is still detained under a section order after six months, the seat will become vacant. I do not know why there should be such a provision for hon. Members in this place, but not for those in the Scottish Parliament. I think that Ministers have simply overlooked the matter, and I look forward to the Minister bringing the Scottish Parliament into line on that point. It is quite a serious and important matter, which should not be belittled.

Lynda Clark (Labour, Edinburgh Pentlands)

Could the hon. Gentleman advise the Committee of the number of occasions when that provision has been used?

Liam Fox (Conservative, Woodspring)

I do not think that it matters whether it has been used: the provision is there to protect the electorate should a Member of Parliament be absent for six months and unable to represent his or her constituents. One would hope that the provision would never have to be used and that hon. Members do not suffer in that way, but it is there to protect the electorate. It is, therefore, important. In tabling amendment No. 276, we wanted to examine a different aspect of the Bill. Our amendment would limit the size of the Scottish Executive. "Erskine May", for example, limits the Prime Minister's freedom of manoeuvre in establishing the number of places in his Cabinet, yet this Bill places no limitation on the size of the Scottish Executive. The Bill provides for an unspecified number of Ministers plus an unspecified number of junior Ministers. The Scottish Office is currently run by the Secretary of State and five Ministers. One would not wish a situation to arise—which has occurred elsewhere—in which the number of Ministers was increased simply to keep Members quiet, by appointing more of them as Ministers. The hon. Member for Falkirk, West dealt with the matter of patronage in his speech. When I was at the Foreign Office—although I do not suggest that it might happen in the Scottish Parliament—one of the Governments whom I dealt with was the Government of Nepal. As the coalition Government started to crumble, one side of the Parliament consisted of 130 Members, of whom 85 were Ministers. I see the hon. Member for Falkirk, West smiling—perhaps because he foresees the possible bonanza. However, it will happen only at the taxpayers' expense. If we are to avoid "jobs for the boys" gibes, we shall have to ensure that we are not writing a blank cheque for Members of the Scottish Parliament or giving unlimited powers of patronage to the First Minister.

Andrew Welsh (Scottish National Party, Angus)

Not content with limiting the powers of a Scottish Parliament, the Tories want to limit the number of Scottish Ministers to fewer than those in a football team—and for ever more. Surely the size and shape of the Scottish Cabinet is up to the Scottish Government and the Scottish Parliament. It is again clear that the Tories have no trust or faith in the Scottish people or their democracy.

Liam Fox (Conservative, Woodspring)

Quite the reverse—the issue is about having less faith in politicians than in the people. We are concerned with the ability of politicians to rein themselves in when offered a blank cheque. We have tabled the amendments from the point of view of protecting the electorate from politicians. When the people of Scotland voted in large numbers in favour of the proposals in the referendum, I do not think that they ever wanted to give such a blank cheque to the Parliament or for there to be an unspecified number of Ministers. Given that in this House Ministers are appointed by the Prime Minister, and that the First Minister will have to have the Scottish Parliament's approval, it would be excessive to stipulate that all Ministers had to be approved by the Scottish Parliament. To introduce an American style of approval of Ministers, such as that welcomed by the hon. Member for Falkirk, West, would be excessive control over the First Minister's freedom. Such control does not apply in Westminster, and the case has not been made for it to apply in the Scottish Parliament. I hope that the Minister will reconsider.

John McAllion (Labour, Dundee East)

I shall speak in support of the amendments tabled in my name and that of my hon. Friend the Member for Falkirk, West (Mr. Canavan). The amendments would delete the following phrases: appointed by Her Majesty from among the members of the Parliament and shall hold office at Her Majesty's pleasure", with the approval of Her Majesty"— in clauses 44 and 46— seek Her Majesty's approval", and shall hold office at Her Majesty's pleasure". in clauses 44 and 46. I would not want the group of amendments to be represented as an attack on either Her Majesty or the monarchy. That would be a misreading of the intent behind them. It is true that my hon. Friend the Member for Falkirk, West and I hold certain views about the legitimacy of an hereditary institution exercising what should be democratic power in a democratic society. I for one have never understood those who argue for modernising the British constitution and who speak about sweeping away powers of hereditary peers, while at the same time talking about entrenching the powers of an hereditary monarch. I very much take to heart my hon. Friend's arguments, particularly those on the 1974 election and what happened to Gough Whitlam in Australia. The future role of the monarchy is not at the heart of the amendments. The amendments focus on the Scottish Parliament's right democratically to elect Ministers who will hold office in the Scottish Government after 1999. The Bill technically says that the First Minister shall be appointed by Her Majesty and hold office at Her Majesty's approval. We know that that is a constitutional fiction. We know that the Queen will not in fact appoint anybody in the Scottish Parliament. She will do so only on the advice of the British Prime Minister and the British Cabinet of the day. We are really talking about the right of the United Kingdom Government and Cabinet to appoint the First Minister, other Ministers and junior Ministers in a Scottish Parliament. Without the approval of the UK Cabinet, that could not go ahead—otherwise, the provision would not be in the Bill. Even the right to hold office is contingent on the continuing approval of the British Government and Cabinet. There is danger in such a system. The hon. and learned Member for Orkney and Shetland (Mr. Wallace) said in an earlier debate that we cannot always assume that the British Cabinet will be in sympathy with the Scottish Parliament and necessarily want it to stand on its own feet, as the Minister would like.

Tim Collins (Conservative, Westmorland and Lonsdale)

I am following the hon. Gentleman's argument most closely. He seems to be making a case for a separate Scottish Head of State. If that is so, why is he sitting on the Government Benches and not with the Scottish nationalists?

John McAllion (Labour, Dundee East)

I do not think that I have referred to the Head of State. My opinion on the Head of State—which I presume the hon. Gentleman seriously wants to hear, or he would not have asked—is that the Queen could do a lot worse than put herself forward for a referendum to endorse whether she should be the Head of State. The legitimacy of the Queen's role will always be questioned as long as she does not subject herself to the consent of the people. If I were a monarchist—which I am not—I would be arguing for the Queen to call a referendum on her role in the British constitution. If, in such a referendum, she received the endorsement of a huge majority, as everybody says she would, I am sure that that would improve her situation. Others of us would also like a referendum so that we could vote for the kind of Head of State we wanted. It is not a matter of treason to want a democratically elected Head of State—although, judging from the Tories' comments, it would sometimes seem so. The heart of the problem is the relationship between the United Kingdom Parliament and the Scottish Parliament. All the phrases—which the amendments would delete—mean this: the Scottish Parliament would be allowed to appoint its own Ministers only so long as they met with the approval of the Westminster Parliament and Government. That lies at the heart of my objections.

Dominic Grieve (Conservative, Beaconsfield)

I think that the clauses about which the hon. Gentleman is complaining mean the complete opposite of what he is saying. The very reason why it is stipulated that the Scottish First Minister will hold office at Her Majesty's pleasure is that that asserts absolutely and categorically that he has a direct link with the sovereign, which cannot be overridden by the United Kingdom Prime Minister in devolved matters. That is an essential protection under our present constitutional arrangements.

John McAllion (Labour, Dundee East)

The hon. Gentleman is arguing as if the Queen had real constitutional powers. We have always been told that, of course, she does not have any real powers, because all constitutional power is exercised on the advice of the British Prime Minister. She would not dare to do anything on her own that a British Prime Minister would not allow her to do. Now, all of a sudden, the argument is very different. The hon. Gentleman is saying, "Yes, the Queen does have constitutional powers." He is agreeing with my hon. Friend the Member for Falkirk, West, who is concerned about the powers that an unelected monarchy exercises in the British constitution. I am increasingly concerned about the hon. Gentleman's tone and the way in which the argument is developing.

John Hayes (Conservative, South Holland and The Deepings)

The hon. Gentleman needs to consider the implications of what he is saying. As my hon. Friend the Member for Beaconsfield (Mr. Grieve) suggested, it matters not whether in practical terms the Head of State uses the power, but it matters from where the power is derived. The practical exercise of power and the source of power are two quite different things. The hon. Gentleman misunderstands the clauses.

John McAllion (Labour, Dundee East)

The hon. Gentleman, who goes to Scotland on holiday only occasionally, also totally misunderstands the situation. I will tell him where the source of the power of appointment in a Scottish Parliament is. It is the people who elect that Scottish Parliament. There is no need for any reference to the United Kingdom Government, Cabinet or heir to the Head of State. A Scottish Parliament will be democratically legitimate because it will be elected by the Scottish people; it should be allowed freely to appoint its Ministers. That is the bottom line for those of us who agree with the Claim of Right and who believe that sovereignty rests with the people and not with the institution in Westminster. Worse than that, throughout the debates, there has been a tension between the UK Parliament wanting to keep control and a leash on what the Scottish Parliament might do, and those of us who want the Scottish Parliament to get on with the job of governing Scotland's domestic affairs free from interference, control and any dependence on the British Parliament.

Liam Fox (Conservative, Woodspring)

But the logic of that position is to move to independence, not devolution. The hon. Gentleman is arguing for a separate Scottish Parliament.

John McAllion (Labour, Dundee East)

The Tories have a blanket approach to this debate. They envisage only two possibilities: either there is a toy town Parliament that is under the control of the British Parliament, or there is independence. They say that time and again, but they are wrong. There is a middle position, in which sovereignty is shared between the Scottish and United Kingdom Parliaments. The Scottish Parliament does not need to seek anyone's approval for the appointment of Ministers—it has the approval of the Scottish people, which is all the sovereignty that is required. That is not to argue for independence. Earlier, we debated whether, if the Scottish Parliament broke down and did not work, that would lead to independence or whether it would benefit the Tories and lead us back to a United Kingdom unitary state. I tend to agree with the hon. Member for Banff and Buchan (Mr. Salmond): if the Scottish Parliament is a success, it will greatly increase the confidence among the Scottish people. Yes, the Scottish Parliament will argue for more and more powers to be devolved to it—there is nothing wrong with that. The real wreckers of the Scottish Parliament, who are sitting on the official Opposition Benches, do not want the Scottish Parliament to work, so they want the Bill to contain all these various control mechanisms. 6.30 pm I have great sympathy with the idea that the number of Ministers should be restricted, not only in the Scottish Parliament but in this Parliament. The example of Nepal was cited, where of 130 Members 85 are Ministers. Everyone who is not a Minister wants to be one, so the Executive have complete control over the legislature, much as they have in this Parliament. As a point of principle, I want the Executive to be limited, but not to 10. I want a series of Departments to be set up under the Scottish Parliament, each with its own Minister, so that there are separate Departments for housing, health and local government. The Scottish Parliament should be able to decide on the number of Ministers and whether that number should be limited. There is much to be said for Bank Benchers having the power to hold the Executive to account. Any Parliament that is worth its salt has to have a number of independent Back Benchers. The trouble with the Westminster Parliament is that there are not enough independent Back Benchers—the Executive tightly control the Back Benchers, which is the wrong way round. We could easily ensure that the Scottish Parliament gets things the right way round, but that will not happen if we check and limit its powers to get on with its own business. The aim of the amendments is simple. It is for the Scottish Parliament—not for Westminster, the monarch of the United Kingdom state or anyone else—to decide who the Ministers are in the Government of the day in Scotland, as the Scottish Parliament alone will be elected by the Scottish people to fulfil that task.

Donald Gorrie (Liberal Democrat, Edinburgh West)

There is only one Liberal Democrat amendment in this group. It is a tidying-up amendment that relates to amendment No. 275, which was tabled by the Conservatives. We fully support that amendment, as it deals with the important issue of the mental health of the First Minister. There is a risk that the First Minister will suffer from megalomania. We already have a Secretary of State who single-handedly decides where the Parliament should be, so there is no knowing what may happen when power goes to people's heads in the Scottish Parliament and they are corrupted, as all people in power always are. By the law of averages, Conservative Members must sometimes be right—on this occasion, we believe that they have a good point. We do not agree with the two other points that Conservative Members have made. First, we do not see why there should be a limit on the number of Ministers in the Scottish Cabinet. The Scottish Parliament may decide to operate totally differently from Westminster—for example, there may be a flat structure rather than one that includes Secretaries of State and junior Ministers. It should have the scope to approach matters in a modern way and to organise its affairs as it wishes. The electorate will soon respond if there are jobs for the boys and girls, and will punish those responsible. Things can be left to the good sense not of the politicians, but of the electorate. Secondly, the Conservatives have moved against what we believe is one of the Bill's best proposals—the introduction of the concept, which is new to Britain, that Parliament must approve all the Ministers. That is a great step towards democracy, and it is a pity that the Conservatives want to remove it. I shall now deal with the points made by the hon. Members for Falkirk and for Dundee, East and West respectively, I think, although I never remember—

John Home Robertson (Labour, East Lothian)

There is a subtle difference.

Donald Gorrie (Liberal Democrat, Edinburgh West)

The difference is not so subtle. The hon. Members for Falkirk, West (Mr. Canavan) and for Dundee, East (Mr. McAllion) are two of the most refreshing hon. Members, and we have the greatest sympathy with the angle from which they are coming. On this occasion, however, although we understand their argument, we do not agree with it. We believe that the matter is covered in clause 43(1), which states: the Parliament shall within the period allowed nominate one of its members for appointment as First Minister". That makes it clear that the Parliament chooses the First Minister. As I said, it also has the power to approve the Ministers. There is a good argument for continuing to mention the Queen in this context. People may feel that there should be a different constitutional structure, but that is a debate for another day. Under the existing structure, the fact that the Queen has the same relationship to the Scottish premier as she does to the British premier gives legitimacy and status to the Scottish Parliament. It demonstrates that the Scottish Parliament is not a toy town Parliament, a parish council, a regional council or a city chambers—it is a Parliament with a direct relationship to the Queen. The language may be archaic, but the point at issue is sound—the Scottish Parliament should choose the First Minister. The Parliament will meet to elect the First Minister; he or she will not have to drive in a horse and carriage across the road to Holyrood palace, although the Queen will do whatever she usually does and bless the premier, perhaps—I do not know, as I have never been present at such an occasion. Clause 47 deals with civil servants. Liberal Democrats strongly believe that a new atmosphere should be created, in which the civil servants are responsible to the Parliament and do not work for the Government only. This is not the appropriate time to ensure that that happens, but when the Parliament's methods of operation and Standing Orders are considered, we shall push strongly in that direction. Civil servants should continue to advise Ministers, but they should also give information to and have much more open discussions with Members from all parties in the Scottish Parliament.

Tam Dalyell (Labour, Linlithgow)

Given the opening remarks of the hon. Member for Edinburgh, West (Mr. Gorrie), I have a sneaking suspicion that he has read the first leader in this morning's The Scotsman. I should like to ask my hon. Friend the Minister a question. If there is a conflict of opinion over a United Kingdom reserved matter, whose advice will the Queen take? Will she take the advice of the First Minister of the Scottish Parliament or that of the Prime Minister of the UK? If the matter is a devolved one, will the Queen take the advice of the Prime Minister or of the First Minister? Furthermore, if the matter is devolved but the UK Parliament is legislating under clause 27(7), whose advice will the Queen take—that of the Prime Minister or of the First Minister?

Dominic Grieve (Conservative, Beaconsfield)

I broadly welcome clause 42. Its purpose is to emphasise the importance of the First Minister's role and his direct relationship with the sovereign. I appreciate the fact that the hon. Member for Dundee, East (Mr. McAllion) does not like the principles underlying that but, as has properly been said, unless there is a change in our constitutional arrangements, it will be wise to observe constitutional conventions, so as to ensure a good working relationship between Westminster and Edinburgh and to secure the status of the Edinburgh Parliament. The First Minister should be appointed by Her Majesty and hold office at her pleasure; that will be an important constitutional safeguard, which will be to the advantage of the Scots. In tabling amendment No. 254, my concern was that, although clause 42 (1) to (3) properly sets out the First Minister's role, subsections (4) and (5) go off the boil and refer to a curious hybrid entity. Subsection (4) mentions a person designated by the Presiding Officer in circumstances where, I infer, the Parliament has not nominated someone for appointment. I do not want to get involved in an exercise in semantics, but as the Secretary of State and the Minister for Home Affairs and Devolution are here, I ask them to consider carefully whether clause 42 is properly drafted. The references in it to the designation "by the Presiding Officer" of a First Minister ad interim, while Parliament makes up its mind, would be better transferred to clause 43. Clause 42 should define simply and neatly what the First Minister is supposed to do. Some other part of the Bill should emphasise what the designated First Minister is supposed to be. I assume that he or she is to be the person appointed to stand in for the First Minister if the office is vacant, and so is supposed to have all the powers, rights and obligations that the First Minister has. If that is the case, it would be sensible not to leave the wording in this hybrid condition. The legislation should make it clear that we are talking about a First Minister ad interim, who holds office at Her Majesty's pleasure exactly as any other Minister would do. As that is a non-party political issue, will the Minister for Home Affairs and Devolution look into it? In conclusion, there has been some discussion of the role of the advice given by the First Minister and by the Prime Minister in the event of conflict—a matter raised by the hon. Member for Linlithgow (Mr. Dalyell). It is obvious that that is a real live issue. In defining the role of the First Minister, it is important that his status should be emphasised and that his direct position as the adviser of the Queen on matters relating to devolved issues should be at the forefront. In so far as clause 42 does not do so, I ask the Minister to look at it again and consider whether there should be some rejigging along the lines I have suggested in amendment No. 254 and the associated amendment, No. 255, which has not been selected because it relates to clause 43.

Alex Salmond (Scottish National Party, Banff and Buchan)

I am surprised that there was not more enthusiasm from the hon. Members for Dundee, East (Mr. McAllion) and for Falkirk, West (Mr. Canavan) for limiting the number of Ministers. If the Minister of the dome has any say in the appointments, I suspect that neither of those hon. Gentlemen is knocking at the door of ministerial office at present. Indeed, if the Minister of the dome has anything to do with it, the public gallery is the nearest that they may get to the Scottish Parliament. We all hope that that will not be the case and that more democratic processes will be allowed to be carried forward. However, we should be grateful to those two hon. Gentlemen for enabling us to have an important debate. Tory Members should not misunderstand the position that has been put forward in the amendments. It is not an attack on the monarchy, or the Queen as Head of State, but an attack on one aspect of the royal prerogative, particularly as it applies to the choice of Ministers. That is a legitimate argument. If the amendments were successful, the Queen would remain Head of State, but one aspect of the royal prerogative as regards the appointment of Ministers in a Scottish Parliament would have been removed. Certainly, it is difficult to argue with the logic of the argument of the hon. Member for Falkirk, West that the position of the First Minister, and indeed other Ministers, should depend on the approval and appointment of the Scottish Parliament as opposed to an aspect of the royal prerogative. 6.45 pm We heard a fascinating interchange between the hon. Members for Beaconsfield (Mr. Grieve) and for Dundee, East. The latter argued that because the Queen normally takes advice from her first Minister, the Prime Minister, and therefore exercises the functions of the royal prerogative on the advice of that person, it could be a dangerous intervention in the ability of a Scottish Parliament to choose its own Ministers. On the other hand, the hon. Member for Beaconsfield says that the clause is some form of entrenchment because it would give the First Minister of a Scottish Parliament a direct line to the head of state and therefore would put that person as a Prime Minister inter pares with the United Kingdom Prime Minister in terms of the relationship with their Head of State. The interchange was fascinating and not one to which I had paid close attention before this debate. The question has to be resolved one way or the other and the Minister for Home Affairs and Devolution would do the Committee a service if he could adjudicate and tell us whether the interpretation of the hon. Member for Beaconsfield or that of the hon. Member for Dundee, East was correct. The logic of the hon. Member for Falkirk, West is impeccable in the amendments and I am sympathetic to them, but that issue, which determines in practical terms the position of the Scottish Parliament and its standing with regard to the sovereign and her advisers, needs to be clarified. Finally and briefly, Conservative Members seemed concerned about protecting the people from the Scottish Parliament, but many people in Scotland voted for that Parliament to protect them from the Conservative party. The need to box in the Scottish Parliament's powers, as opposed to leaving them for the Standing Orders of a Scottish Parliament, betrays an underlying attitude that is not reconciled to the reality of that Scottish Parliament. The Conservative Front-Bench spokesmen, although perhaps not some of the Back Benchers, are still in a process of denial as far as the Scottish Parliament is concerned. They may not like hearing this, but the Conservative recovery will not start until that process of denial in Westminster comes to an end.

Henry McLeish (Labour, Central Fife)

First, on the point made by the hon. Member for Woodspring (Dr. Fox) about mental health issues, I have consulted the Under-Secretary of State for Scotland, my hon. Friend the Member for Strathkelvin and Bearsden (Mr. Galbraith) who is a neuro-surgeon, but he did not want to offer any suggestions to the Committee at this point. However, he suggested that the Scots are slightly better at differentiating between those who have a mental health problem and those who do not. I shall leave that as a question for the Committee. Interestingly, paragraph 9 of schedule 7 amends the Mental Health Act 1983, so the procedures to which the hon. Member for Woodspring referred will apply in a modified way to the Scottish Parliament. I will touch on some of the more serious issues when I refer to the amendments. To answer my hon. Friend the Member for Dundee, East (Mr. McAllion) who made a point about this—I do not know whether it was a slip—the Bill provides no role for the United Kingdom Government in the selection of the First Minister, the Scottish Ministers and junior Ministers, so there is no locus for this Parliament or this Government in that regard. I do not know whether that was his point.

John McAllion (Labour, Dundee East)

Can my hon. Friend make clear the distinction to which the hon. Member for Banff and Buchan (Mr. Salmond) referred? If the Scottish Parliament chooses a First Minister and proffers that choice to the Queen for appointment, but the advice of the British Prime Minister is not to accept the choice, whose advice would the Queen follow?

Henry McLeish (Labour, Central Fife)

The British Prime Minister would have no locus in that appointment.

John McAllion (Labour, Dundee East)

My hon. Friend is clearly stating that the Queen would take the side of the Scottish Parliament, as set out in the Bill, against the British Prime Minister. Therefore, the British Prime Minister does not exercise sovereign control over the affairs of this country.

Henry McLeish (Labour, Central Fife)

The Scottish Parliament would approve the appointment of the First Minister. The Presiding Officer would submit that appointment to the Queen and that would be it. We are talking about a substantial devolution of power and responsibility to the Scottish Parliament. Devolution means devolution. It will be up to the Scottish Parliament to approve the First Minister, the Scottish Ministers and the junior Ministers. Of course, those appointments will then be approved by the Queen. It is straightforward and there are no complications.

Tam Dalyell (Labour, Linlithgow)

I will not ask my hon. Friend for an answer off the top of his head, but will he write to me, because this question is not as simple as he makes out? Clause 27(7) states: This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland. In the light of that, I think that my hon. Friend should give me a considered answer in a letter.

Henry McLeish (Labour, Central Fife)

I shall be happy to write to my hon. Friend, but we should make it clear that clause 27(7), and the debate on it, is about sovereignty and the ability of the Westminster Parliament to make laws in any area, devolved or reserved. This evening, we are talking about the First Minister, and I repeat that he or she will be selected by the Parliament after the election and the choice will be passed to the Queen by the Presiding Officer. That is the process.

Alex Salmond (Scottish National Party, Banff and Buchan)

The point made by the hon. Member for Linlithgow (Mr. Dalyell) is wrong, because it relates to legislation, not to appointments. However, is it not correct that, under clause 27(7), the UK Parliament could legislate to change the method of appointing the Scottish First Minister?

Henry McLeish (Labour, Central Fife)

We have debated the issue and points have been exchanged across the Committee; the view taken depends on one's political perspective. We have made the point that this measure devolves substantial powers to Scotland—it is about devolution, not separation or independence. The Government cannot agree to amendments Nos. 44, 76 and 87 to 90, which were tabled by my hon. Friends the Members for Falkirk, West (Mr. Canavan) and for Dundee, East. The amendments would remove the involvement of Her Majesty in the appointment of the First Minister, other Scottish Ministers appointed under clause 44 and junior Ministers appointed under clause 46. The Scottish Ministers, headed by the First Minister and assisted by the junior Scottish Ministers, will exercise, on behalf of Her Majesty, her prerogative and other executive functions in relation to devolved matters. They will, in effect, be Her Majesty's Government in Scotland in relation to devolved matters. It is, therefore, entirely appropriate that the Queen should appoint the First Minister; that she should approve the appointment of other Ministers and junior Ministers to the Scottish administration; and that each of those appointees should hold office at her pleasure. The involvement of Her Majesty does not, of course, exclude the involvement of the Parliament. On the contrary, in line with the White Paper, the Bill provides a significant role for the Scottish Parliament in the appointment of the Scottish Executive. It is a point worth making that in this place, Ministers are not approved or, selected by the House, but the Scottish First Minister and the other Scottish Ministers will be approved and voted on by the Scottish Parliament. That is a significant step forward in the scrutiny of the Executive. It starts at the foundation: the people will have spoken in electing Members of the Scottish Parliament who then, for the first time and unlike here, will have the ability to influence who represents the people of Scotland in ministerial posts. The significance of that step should not be lost on the Committee this evening. We see no need to amend the Bill in the way proposed, and I urge my hon. Friend the Member for Falkirk, West withdraw the amendment. I have listened carefully to the arguments put forward by my hon. Friends the Members for Falkirk, West and for Dundee, East in support of amendment No. 75. The nature of the post of junior Scottish Minister will differ from that of a member of the Scottish Executive. The nature of their task will be to assist the Scottish Ministers in the exercise of their functions. With that in mind, the Bill proposes a simpler mechanism for their appointment. Nevertheless, I am also aware that the Scottish Constitutional Convention recommended that all Ministers should require to be confirmed by simple majority of the full Parliament. I am therefore happy to accept the intention behind amendment No. 75 that the Parliament should be involved in the appointment of junior Scottish Ministers. I therefore undertake to bring forward an appropriate Government amendment on Report. With that undertaking, I invite my hon. Friend the Member for Falkirk, West not to press the amendment. The Government cannot agree to amendment No. 254. The provisions in the Bill are intended to ensure that there is always someone able to perform the functions of the First Minister and act as head of the Scottish Administration. In practice, it is expected that each First Minister will hold office until replaced by his or her successor. However, circumstances could arise where the post falls vacant, for example on the death of the First Minister or if the First Minister is temporarily unable to act—that may fall partly into the definition proposed by the hon. Member for Woodspring. In such an event, a caretaker can be appointed to fulfil the role, pending the nomination and appointment of a new First Minister.

Dominic Grieve (Conservative, Beaconsfield)

I understand that point, but the clause as it stands conveys the impression—it may be no more than an impression—that the person who is acting is somehow a different animal from the First Minister, whereas my understanding is that an acting First Minister would still hold office at the Queen's pleasure and have all the First Minister's powers. That is the point that is opaque in the clause as it stands.

Henry McLeish (Labour, Central Fife)

That is a reasonable reflection, but I must get on and cover some more of the points raised in the debate. The mechanism for appointment of such a caretaker reflects the exceptional and transitory nature of the appointment. It lacks the formalities of the appointment of the First Minister precisely so as to avoid conveying the impression that the person is the First Minister rather than a temporary incumbent. On balance, the Government believe that the arrangements should be kept as simple as possible. The Presiding Officer is well placed to be able to judge which Member of the Scottish Parliament has the capacity and political credibility to fulfil that important role and I believe that it should be left to the Presiding Officer's discretion. The Government do not accept amendments Nos. 276 and 277. Amendment No. 276 would restrict the number of Scottish Ministers whom the First Minister can appoint. It would be inappropriate to do that, for a variety of reasons. The First Minister will have to seek the agreement of the Scottish Parliament; therefore, within the group of 129 MSPs, there is accountability and a chance to make a judgment on the number of Scottish Ministers. The Parliament will be able to withhold its approval if it thinks that there are too many nominations. In addition, through its control of salaries and allowances, the Parliament will be able to limit to a reasonable sum the expenditure on ministerial salaries. There is a feeling on both sides of the Committee that the matter should be left to the Parliament. It is a question of maturity and of adopting a sensible perspective. Ultimately, the First Minister and the Scottish Parliament will be accountable to the people of Scotland for their actions. That will, in our view, provide the proper means of ensuring that the size of the membership of the Scottish Executive is truly appropriate.

Liam Fox (Conservative, Woodspring)

We are missing a great opportunity. Such a self-denying ordinance would have sent a signal to the Scottish electorate that a blank cheque is not being handed over. I am sorry that the Minister cannot accept the amendment, but we shall press it to a Division.

Henry McLeish (Labour, Central Fife)

The Committee is not offering a blank cheque to anyone. We are setting up a mature, serious and responsible Parliament, and it will be up to the Members of that Parliament to decide what Ministers are required to carry out the functions and represent the interests of the Scottish people. That is appropriate and proper. We do not share the Opposition's concerns, and I hope that they will not press the amendment. The Government cannot accept amendments Nos. 275 and 313, which are both unnecessary and inappropriate. The circumstances described are unlikely to arise in practice, and if they did, there are mechanisms in the Bill to deal with the problem. If at any time it appeared to the Presiding Officer that the First Minister was unable to act for whatever reason, including mental illness, it would be open to him or her under clause 42(4) to designate an MSP to exercise the functions of the First Minister. Should it become clear that the First Minister's inability to carry out his functions was not going to be merely temporary, he would be expected to resign. In the unlikely event of his being unwilling to resign, the Scottish Parliament could effectively remove him and his Executive through a vote of no confidence. That would require the First Minister to resign and would, in turn, lead to the appointment of a new First Minister. That may seem a drastic course of action, but the likely political reality is that there would be a general recognition of the need to address the problem and the Parliament could act to ensure that the matter was resolved without delay. In any case, I submit that clauses 42(4) and 43 provide a serious process to deal with a potential problem. First, there is a temporary acceptance and accommodation of the fact that the First Minister is unable to do the job; then there is a proper procedure to repair the situation. The Government cannot accept amendment No. 278, which would remove from the First Minister some valuable flexibility to tailor the structure of the Scottish Administration to the demands upon it. In view of the time, I shall now sit down.

Dennis Canavan (Labour, Falkirk West)

This is a somewhat historic occasion, as it has been many years since I last tabled an amendment that was accepted in principle by the Government. I thank my hon. Friend the Minister for that. I am pleased that the appointment of all Scottish Ministers, whether the First Minister, other Scottish Ministers or junior Ministers, will be subject to the approval of the Scottish Parliament. I am not convinced of the arguments for the role of the monarchy in the appointment of Ministers, but I shall not press that point. I shall seek to withdraw amendment No. 44 at the end of the debate and I look forward to the Government tabling an amendment similar to my amendment No. 75 on Report.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

Junior Ministers will not be members of the Scottish Executive under the terms of clause 41. Will the Minister explain why?

Henry McLeish (Labour, Central Fife)

The simple answer is that we shall have the First Minister and the Scottish Ministers, and we hope that the junior Ministers will have a supportive role in the work carried out by the other Ministers.

Dennis Canavan (Labour, Falkirk West)

I beg to ask leave to withdraw the amendment.

MINISTERS

EXERCISE OF FUNCTIONS

Oliver Heald (Conservative, North East Hertfordshire)

I beg to move amendment No. 279, in page 21, line 14, at end add — `(7) Nothing in this Act shall permit Scottish Ministers to exercise any function or to enjoy any power in any part of England, Wales or Northern Ireland.'.

Oliver Heald (Conservative, North East Hertfordshire)

Before I discuss amendment No. 279, I should say that I have similar feelings to the hon. Member for Falkirk, West (Mr. Canavan), but in this case about the Government's reaction to a substantial number of Conservative amendments in this group. I echo what my right hon. Friend the Member for Devizes (Mr. Ancram) said: we have not seen much of this, but it is good that the Government have considered and accepted the arguments for many of our amendments in this group. Amendment No. 286, which requires an affirmative resolution of both Houses in order to transfer additional functions from United Kingdom Ministers to Scottish Ministers, has been accepted in Government amendments Nos. 323 to 329 and Government amendment No. 306. I welcome the sight, on pages 1726 and 1728 of the Amendment Paper today, of amendments tabled by my right hon. Friend the Member for Devizes, me and other colleagues, to which the Secretary of State has added his name, in a constructive spirit. He has also tabled Government amendment No. 331, which is identical to our amendment No. 307. It is good to see that he has accepted the argument that the functions of the House should not be transferred to the Scottish Parliament without adequate scrutiny and debate in this place. We are glad that we have been able to help him to improve the Bill, and we should now like him to go a little further. 7.15 pm The hon. Member for Dundee, East (Mr. McAllion) said earlier that, in this Committee, the Conservatives have not been trying to bring about an effective, workable Scottish Parliament; the amendment gives the lie to that claim, because it shows that the Conservative party has tabled amendments that even the present Government—not a Government who are very often minded to accept amendments—have accepted, and the Minister has had to accept the logic of our arguments in substantial measure in this group of amendments.

Ernie Ross (Labour, Dundee West)

A weakness.

Oliver Heald (Conservative, North East Hertfordshire)

I would not accept that for a minute, and the hon. Gentleman knows it. The purpose of amendment No. 279 is to ensure that Scottish Ministers are not permitted to exercise functions or enjoy power in any way in England, Wales or Northern Ireland. It is obvious why that should be the case. Scottish Ministers are not directly accountable to this place. If they exercise functions in England or the other countries, it is impossible for constituency Members to challenge them or in any way to bring them to account. Therefore, I hope that the Minister can give an assurance tonight that Scottish Ministers will be unable to exercise functions or enjoy powers in England. Wales or Northern Ireland as a result of clause 48 or as a result of the Bill as a whole. If he wants to give me that assurance now, I should be happy to give way.

Henry McLeish (Labour, Central Fife)

indicated dissent.

Oliver Heald (Conservative, North East Hertfordshire)

It looks as though he is saving that for later. Amendment No. 310 is designed to remove the exception that at present would require the UK Government to consent to the designation of an enterprise zone by Scottish Ministers, in clause 51(2). The amendment would stop the Government centralising power over inward investment and important decisions about enterprise in the Department of Trade and Industry in London, and so the amendment would protect and enhance Scotland's ability to succeed in that area of enterprise. It is worth highlighting the success of recent years. One of the healthiest aspects of the Scottish economy has been the record levels of inward investment. The year 1995–96 was another record year for inward investment in Scotland. Inward investment has been a vital component in transforming the Scottish economy from being reliant on the old primary industries supported by taxpayers' subsidy to being very much at the cutting edge of the new and expanding high-tech silicon industry. In the year to March 1996, Locate in Scotland and the Scottish Office Education and Industry Department were able to attract to Scotland 84 inward investment projects involving planned investment of nearly £1 billion and the expected creation or safeguarding of more than 12,500 jobs. Although Scotland accounts for about 9 per cent. of the United Kingdom population, figures published by the Invest in Britain Bureau show that, in the past few years, more than 18 per cent. of all inward investment projects attracted to the United Kingdom and about a quarter of the new jobs associated with such projects have gone to Scotland. Britain receives more foreign investment from outside Europe than all the other European Union countries combined. In 1995–96, inward investment in Scotland created 1,000 jobs on average per month. In the five years to March 1996, Locate in Scotland recorded 400 inward investment projects involving planned investment of almost £3.5 billion and the expected creation or safeguarding of about 50,000 jobs.

Ernie Ross (Labour, Dundee West)

It will do as well under the Scottish Parliament.

Oliver Heald (Conservative, North East Hertfordshire)

The hon. Gentleman claims that a Scottish Parliament will be able to build on that success. That is what this amendment is about.

Andrew Rowe (Conservative, Faversham and Mid Kent)

Is my hon. Friend aware that one spurious reason for trying to impose on the south-east of England an entirely artificial creation called the regional development agency is that that will somehow help us to vie with Scotland and acquire silicon implants of our own?

Oliver Heald (Conservative, North East Hertfordshire)

The regionalism argument is designed to defuse the West Lothian question. Opposition Members are concerned that the idea of regionalism is offered as some sort of solution to the West Lothian question. I know that the hon. Member for Dundee, West (Mr. Ross) believes that there is no such thing as the West Lothian question, but most senior Labour figures have acknowledged that such a question exists and needs to be addressed. It is wrong to implant in England a form of regionalism that is alien to it and to ignore the fact that England is a country like Scotland or Wales. As to my hon. Friend's point, I see no reason why a regional development agency should be imposed on Kent when the county may not want it. There has been inward investment success in Scotland. It has been linked to enterprise zones, which is the burden of this amendment. It would be wrong to sell the Scottish people a false prospectus. The White Paper gave the impression that all enterprise would be devolved. It now seems from the Bill that the dead hand of Whitehall in the form of the Department of Trade and Industry will co-ordinate enterprise zones and may well act against Scotland's interest. We have moved the amendment in that spirit: it asks the Minister to provide assurances that enterprise in Scotland will be safe. Government amendment No. 332 seeks, at a very late stage in the proceedings, to reserve to the United Kingdom Parliament the Industrial Development Advisory Board for Scotland. Is that part of the DTI agenda to retain control over enterprise policies in Scotland? Does it fit with the policy approach that is set out and that the amendment seeks to defeat? I ask the Minister to provide those assurances. Will the co-ordination of enterprise zones in Scotland require the consent of the United Kingdom? Will the DTI retain control over inward investment packages and enterprise zones in Scotland? Does Government amendment No. 332 have the same intention, reserving the Industrial Development Advisory Board for Scotland to the United Kingdom Parliament? What are the Minister's intentions in that regard? I seek his assurances that Scotland will not be short-changed. Amendment No. 280—upon which amendment No. 305 is consequential—ensures that, when any disputes arise in respect of shared powers in clause 52 as to the prime responsibility for a particular issue, they will be resolved using the judicial procedures for devolution issues that are set out in schedule 6 to the Bill. A mechanism is clearly needed, and there seems to be no reason why the procedure in schedule 6 should not apply. What is the Minister's thinking on that important issue? Will he concede the logic of our argument in this area and agree to our amendments? The Government have already agreed to amendment No. 286—the first in the group—which would require an affirmative resolution of both Houses for subordinate legislation to transfer additional functions from United Kingdom Ministers to Scottish Ministers. Amendments Nos. 287 and 288 go a little further than that. Amendment No. 287 would permit the transfer of additional functions only on the basis of concurrent or shared powers with United Kingdom Ministers. There would be no further transfers solely to Scottish Ministers. That would provide some clarity. Throughout consideration of the Bill, Opposition Members have expressed concern that this is a slippery slope: it could lead to the transfer of function after function from the United Kingdom Parliament to the Scottish Parliament, and that ratchet effect would slowly drive the Scottish Parliament from being devolved to being independent. The Minister says that the Government are totally in favour of a devolved Parliament and that they have made it clear that they do not want separatism or independence. That is what he said in the previous debate. if that is so, it is surely right to provide some clarity about what functions may be devolved and how far the process can go. That would disabuse the Scottish Parliament from the outset of the notion that the process could lead to independence. I await the Minister's answer on amendment No. 287. That would provide clarity and ensure that the Scottish Parliament would devolve future powers only on a concurrent or a shared basis. Amendment No. 288 follows the same theme. It says that it would be possible to transfer the sole statutory functions of Scottish Ministers so that they are concurrent powers shared with United Kingdom Ministers. In other words, there would not be a ratchet effect: we should move from a one-way street to a situation of allowing some interplay between the two Parliaments. That could occur if it is found that shared or concurrent powers would be helpful in areas where the Scottish Parliament has sole statutory functions at present. I ask the Minister: what is wrong with that? Why is it not possible to say now, with some certainty, that those are the limits within which functions will be transferred? There should be an element of flexibility, if necessary, to transfer powers that are solely Scottish to a joint and shared arrangement. I look forward to hearing the Minister's views on that subject. I have already mentioned Government amendment No. 332, which seeks to reserve the Industrial Development Advisory Board to the Westminster Parliament. We are concerned that that may interfere with Scotland's ability to continue its inward investment success. Therefore, we ask the Minister to explain why the measure is proposed at this late stage.

Tam Dalyell (Labour, Linlithgow)

Of course there will be a ratchet effect, and it will be a faster ratchet than most people imagine. Incidentally, I think that the first reference to the ratchet effect was by the late Enoch Powell, who died on Sunday. He spoke at great length in 1977–78 on precisely that mechanism. It is sheer pretence to think that a ratchet effect will not occur, and it will be helped greatly not only by Scottish National party Members of the Parliament, but by Labour Members, Liberal Members and indeed Conservative Members of the Parliament, because they will have to explain the inadequacies in the perceptions of their constituents and how those can be met, and they cannot be met with insufficient resources. The entire scenario for the ratchet effect is there.

Oliver Heald (Conservative, North East Hertfordshire)

Does the hon. Gentleman see some hope in the fact that we have already been able to move the Minister from a position where additional functions could be transferred to Scottish Ministers simply by subordinate legislation of the Scottish Parliament, to a position where he has accepted the logic of our amendments, which require a resolution of the House of Commons, and that that should be by Order in Council?

Tam Dalyell (Labour, Linlithgow)

I do not wish to be rude or curt, but I see no hope at all. That is the blunt answer to the question. However, we must stick to clause 48. Subsection (2) omits any reference to the Solicitor-General or the junior Ministers. The reason for that, according to the Law Society, is unclear. The phrase "Scottish Minister" is used, and in terms of clause 41 that would include the First Minister, the Lord Advocate and the Solicitor-General. Can my hon. Friend clarify the situation in regard to clause 48(2)? My next question relates to the position of the civil service. Is the civil service to remain a Westminster function? Would it be possible for a UK Minister to give a direction to a civil servant in Scotland, which that civil servant would be obliged to follow, or would the civil servant be answerable only to his own Scottish Ministers? Clause 47(1) appears to provide that Scottish Ministers can also appoint non-civil servants—that is, advisers. What happens when a UK Minister gives a direction to a Scottish civil servant that is contradictory to a direction given by a Scottish Minister? That is by no means a fanciful state of affairs. For example, let us take railway services, which are a UK matter. Suppose there was an environmental impact assessment of the extension of the west coast line. It may be the view of the Department of Transport that the entire scheme could be jeopardised if the information were made public—for instance, by a Scottish Minister under pressure from environmental groups to publish. That situation is quite likely, in one form or another. The question is who rules in that case—the UK Minister or the Scottish Minister? To whom does the civil servant give her or his loyalty? That is a important and practical question. Where a subordinate Parliament is created, and it is supposed that, above all, the kingdom should be kept united, it is impossible that the civil service should serve two organisations, which may have significantly different opinions. That subject must be addressed.

Andrew Rowe (Conservative, Faversham and Mid Kent)

I share the gloom of the hon. Member for Linlithgow (Mr. Dalyell). I have no doubt that the measure represents the beginning of a ratchet that will eventually divide the United Kingdom. The Government have made considerable efforts to deceive themselves that that will not happen, but their efforts are set at naught by the schizophrenia demonstrated by my hon. Friend the Member for North-East Hertfordshire (Mr. Heald). One minute, my hon. Friend is desperately concerned to define and limit the powers of a Scottish Parliament by moving amendments to the Bill, and the next minute he is desperately concerned to give to Scotland unequivocally powers that the Government seem to wish to retain in Westminster. If such ambivalence is apparent on the Conservative Front Bench, the ambivalence among the other parties will be more extreme.

Oliver Heald (Conservative, North East Hertfordshire)

Does my hon. Friend acknowledge that, as the White Paper sets out a prospectus—which has been voted on—for devolution of the whole area of enterprise, it is right at least to probe the Government when they seem to be resiling from that?

Andrew Rowe (Conservative, Faversham and Mid Kent)

I could not support my hon. Friend more in his desire to find out what the Government are playing at. The Bill gives the appearance of having been carefully thought through, whereas the consequences of many decisions that have already been taken have not been addressed. I entirely support the aim of limiting the power of Scottish Ministers so that they will have no power or function in other parts of the United Kingdom. It is a great pity that we cannot do the same for Scottish Members of Parliament. I believe passionately that one of the great underlying weaknesses of the Bill is the prospect of Scottish Members of Parliament being debarred from examining, speaking on or voting on the matters that are closest to the everyday lives of their constituents in Scotland, but being free to roam carte blanche over constituencies in England, debating and voting on corresponding issues. That matters not a fig in a Parliament where the majority is as large as it is now, but if the next general election results in a majority of, say, 16 or 30, and decisions about English health, education and so on are taken by Scottish Members of Parliament who have no accountability whatever south of the border, that will lead to enormous instability. We should define not only for Ministers but for Members what they are entitled to do. I am gloomy about the prospect. I have no doubt, and never have had, that Scotland is capable of running its own affairs effectively. I spent several years in the Scottish Office and was deeply impressed by the quality of my colleagues and of the institutions in Scotland. It is sad that, on a pretence that we are somehow preventing—

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

Order. May I ask the hon. Gentleman to return precisely to the amendment. He is going rather wide of the mark, and there will be opportunities to discuss those matters on later amendments and new clauses.

Andrew Rowe (Conservative, Faversham and Mid Kent)

I apologise, Mr. Lord, if I was wandering more widely. I support the proposition that the exact limits of the powers of a Minister of the Scottish Parliament should be defined unequivocally.

Tim Collins (Conservative, Westmorland and Lonsdale)

I shall confine my remarks principally to amendment No. 279. The hon. Member for Linlithgow (Mr. Dalyell) famously placed on the table the West Lothian question, which highlighted the difficulties that would arise if Members of Parliament in the United Kingdom Parliament had responsibilities for matters relating to England, even though they were not sent there by their constituents in Scotland for that purpose. Amendment No. 279 deals with the difficulties that would arise in relation to Ministers. If there are difficulties in England about the role of MSPs, surely they would be even greater if there were any risk, however theoretical, that a Scottish Minister, accountable to an entirely different Parliament, could take decisions in England affecting English citizens.

Alasdair Morgan (Scottish National Party, Galloway and Upper Nithsdale)

Can the hon. Gentleman give me an example of the difficulty that he foresees? I fail to see anything in the Bill that would allow a Scottish Minister to exercise any powers south of the border.

Tim Collins (Conservative, Westmorland and Lonsdale)

If the hon. Gentleman is right in his assumption, he must, by definition, be in favour of amendment No. 279, because that merely seeks to include in the Bill the position that he understands to be the case and that we all hope to be the case. However, with legislation of this constitutional sensitivity, significance and importance, it is important to include in the Bill the exact understanding at the time that it is debated.

Lynda Clark (Labour, Edinburgh Pentlands)

The hon. Gentleman completely misunderstands the legal process here. The Bill gives Ministers certain powers, but no powers whatever in relation to English matters. Therefore, there is no need for the amendment.

Tim Collins (Conservative, Westmorland and Lonsdale)

I am grateful to the hon. and learned Lady for saying what she says, but if that is her understanding of the Bill, she and her hon. Friends on the Front Bench should have no objection in principle or in practice to amendment No. 279. It is important that her understanding and mine of the intention of the legislation should be stated clearly and without any ambiguity in the Bill. We have no doubt that the Bill will be enacted and that it will set in place a constitutional settlement for Scotland and its relationship with the rest of the United Kingdom, which is likely to endure for decades. Therefore, it is important at the start of this constitutional experiment, this immense voyage, that there be clarity. My understanding of the hon. and learned Lady's point is not that she objects to amendment No. 279, merely that she thinks that it is inherent in the Bill. If so, simply to clear up any misunderstanding, to avoid any difficulty, legal challenges or political confusion in future, those provisions should be stated clearly as amendment No. 279 sets out.

Lynda Clark (Labour, Edinburgh Pentlands)

My point is that there is no need for the amendment, because there is no possibility of any misunderstanding in a court of law or elsewhere. The Bill is perfectly plain. The powers derive entirely from the Bill. If no powers are given, no powers can exist, so the amendment is unnecessary. It would be equally daft having an amendment saying that no powers exist all over the place. No powers have been given in the Bill to Scottish Ministers in relation to English affairs. That must be the end of the matter.

Tim Collins (Conservative, Westmorland and Lonsdale)

Again, I hear what the hon. and learned Lady says. The amendment seeks to amend clause 48, and clause 48(1) states: Statutory functions may be conferred on the Scottish Ministers The hon. and learned Lady is right to say that, elsewhere in the Bill, there is an interpretation of those powers, but nothing in clause 48 limits the powers that are granted in the way that she says. Therefore, our case is that clause 48 should state clearly that no functions can be exercised in England, Wales or Northern Ireland. The hon. Member for Linlithgow talked about the possible confusion relating to civil servants. They will be in the difficult position of being accountable to Ministers in two separate Governments. That is the nature of this part of the Bill. It concerns not just the establishment of a separate Parliament, which is the way in which public debate has hitherto always been conducted, but the establishment of an entirely separate Government. As the hon. Member for Linlithgow rightly pointed out, if there are two separate Governments, there is inherent in that situation the possibility of confusion and difficulty for civil servants. I give an example that builds on one given by the hon. Gentleman. What will happen where a document involves civil servants from several different Departments? In an attempt to achieve a coherent, common UK Government position, many issues cross departmental boundaries which affect civil servants working in the Scottish Office and in other UK Departments such as the Department of the Environment and the Department for Education and Employment. At the moment, civil servants know where they stand in the preparation and dissemination of such documents. They know that they are accountable, through Ministers, ultimately to a United Kingdom Cabinet headed by a UK Prime Minister appointed by a UK Head of State and answerable to this UK Parliament. What will happen in future when there is a wish to have a common UK position? There must be many instances when, even after the establishment of a Scottish Parliament, it will be for the convenience of the Scottish people, as for those in the rest of the UK, that there should be commonality. We can all imagine the issues. There will be issues relating to, for example, the environment, transport links and exam procedures when some commonality will be convenient. There will be plenty of issues where there will be a common UK position.

Henry McLeish (Labour, Central Fife)

The hon. Gentleman refers to the need for commonality in exams. Scotland has a separate education system. It is time served. It has been around for a long time. I think that the hon. Gentleman will accept, with a bit of humility, that this is a complex subject. We are talking about the administrative devolution of reserved powers. There are three types. First, Westminster and Holyrood can agree that certain functions will be completely devolved to the Scottish Executive. Secondly, some responsibilities and functions can be carried out concurrently. Other powers will be carried out in consultation between Westminster and Holyrood. The Bill contains the comfortable and attractive proposition that Westminster's legislative competence can be handed to Scotland by way of Executive devolution. What is the problem?

Tim Collins (Conservative, Westmorland and Lonsdale)

I hear what the Minister says, and he is right to point out—I was not remotely seeking to pretend otherwise—that Scotland has and has had for a long time a separate examination system. However, I am sure that he will acknowledge that it remains the case, and will remain the case after the establishment of the Scottish Parliament, that there will be movement at primary and secondary levels, and particularly at higher and further levels, from one side of the border to the other, and there will continue to be points and purposes Where it will be sensible for there to be some co-ordination on education matters, as on others. I do not limit my point to education matters. I am talking about a range of other matters where common discussion is needed. My point was simply that discussion and the circulation of papers will happen not as it does now, within a UK civil service, accountable to a UK Government, but between two separate Governments. The issue that then arises, as was pointed out by the hon. Member for Linlithgow, is what will happen when a Minister in one Government takes a different view from a Minister in another about the dissemination, provenance and contents of a paper, assembled jointly by civil servants from two different Governments. There is a real possibility of civil servants being given conflicting advice.

Oliver Heald (Conservative, North East Hertfordshire)

As my hon. Friend will know, clauses 83 and 84 make provision for cross-border public bodies. Clause 84(1) states: Subordinate legislation may make provision in relation to a cross-border public body …enabling powers to be exercised or requiring duties to be performed by the Scottish Ministers instead of by a Minister of the Crown, or by the one or by the other, or by both jointly or by either with the agreement of or after consultation with the other". That is the point that the Minister was making. Does my hon. Friend agree that, in that context, if powers may be exercised by Scottish Ministers, instead of by a Minister of the Crown, it is only right that there should be an assurance that nothing can be done by Scottish Ministers—no function performed, no power given—in respect of England, Wales or Northern Ireland? There is no accountability in the Scottish Parliament for what occurs in England, Wales and Northern Ireland.

Tim Collins (Conservative, Westmorland and Lonsdale)

I am grateful to my hon. Friend for clarifying the matter. The issue at stake is whether there are any circumstances in which a Minister accountable to the Scottish Parliament can take decisions that affect citizens in the rest of the United Kingdom who have no say in, or influence over, his election to that Parliament, or over the actions, identity or philosophy of Scottish Ministers. It is an important philosophical question, and it is not an artificial question for my constituents in Cumbria. When I am at home in Kendal, we watch Border Television and we have access to a range of services. Sometimes, we are very conscious of the fact that we are a great deal closer to Edinburgh than to London. We are conscious that there will be occasions when people might well say that Cumbria should be governed by one of the cross-border public bodies, as it is already for the purposes of the ITV network. Amendment No. 279 is important because it would alleviate, or even remove, our worries that decisions affecting English citizens could be taken by Ministers who have no accountability to the people of England through the United Kingdom Parliament. That is a serious question, which I hope the Minister will seriously consider. He must not dismiss it lightly. If people felt that they had no control over those taking decisions affecting their lives, there would be a serious question of democracy in this country which could only cause great tension between Scotland and England, something that all Opposition Members are striving hard to minimise, rather than maximise.

Donald Gorrie (Liberal Democrat, Edinburgh West)

Three issues have emerged in the debate. First, there is the question of the amendments affecting industrial development powers, about which the Conservatives may have a point. We should like the Minister to make things clearer, as he seems to be reducing the power of the Scottish Parliament. Secondly, there is the question of the dual loyalty of civil servants—a point that I fail to grasp. It seems straightforward that civil servants who work for the Scottish Parliament and the Scottish Office will meet their Westminster counterparts about joint enterprises. They will then report back to their bosses in Holyrood or St. Andrew's house. The issue is clear cut; people will be serving two different Governments, working jointly, reporting back and doing what their political masters tell them. I see no problem in that. The third issue about which there has been much sound and fury is mentioned in the amendment. I do not enjoy any power, but I do enjoy Tory terminology. The amendment states: Nothing in this Act shall permit Scottish Ministers to exercise any function or enjoy any power"— that is Tory terminology— in any part of England, Wales or Northern Ireland. I was dismayed when, this morning in Committee, the hon. Member for Glasgow, Kelvin (Mr. Galloway), who is no longer in his place, accused me℄if that is the right word℄of being a clever Edinburgh lawyer. I am not a lawyer and whether I am clever or not is a matter of opinion, but I do come from Edinburgh. My point is that there is a Latin legal phrase, which I do not know, but which the hon. and learned Member for Edinburgh, Pentlands (Dr. Clark) may be able to tell me, the gist of which is that, if one mentions certain things in a list, one opens up the possibility of other things that are not on that list entering the frame. An amendment that states that Scottish Ministers may not exercise functions in England, Wales or Northern Ireland opens up the possibility that they could exercise powers and functions in Germany, France, the Channel Islands and so on. The phrase is misguided.

Oliver Heald (Conservative, North East Hertfordshire)

We do not mind if Ministers exercise power in Germany, but if they wish to exercise powers in England, they should be accountable. The only way that that can be done is by a Minister of the Crown under the auspices of this Parliament.

Donald Gorrie (Liberal Democrat, Edinburgh West)

I do not accept the hon. Gentleman's point. He is opening up a can of worms, and he is also preventing sensible co-operation. There are gloom merchants in the Chamber, such as the hon. Member for Linlithgow (Mr. Dalyell). Instead of Bloody Dalyell℄his famous ancestor℄we have Gloomy Dalyell, who may play as big a part in history as his ancestor. We also have gloom merchants in the Conservative party, who think that everything will be a disaster. Many of us think that there are opportunities, one of which is for constructive co-operation between the Scottish Parliament and Executive and the Westminster Parliament and Executive. There might be agreed, joint efforts in Cumbria or elsewhere in which there would be co-operation. If the amendment were passed, no Scottish Minister or Member of the Scottish Parliament could take part in any of those joint efforts. For example, the amendment would rule out the creation of a country park on either side of the border which was jointly managed from both countries. The amendment is misguided, and the answer℄as I have said before, with all due respect℄is for the English to think about how they wish to run their own affairs. They could then set up their own Parliament or regional assemblies. The sooner they do so, the better.

Desmond Swayne (Conservative, New Forest West)

I had begun to doubt myself. Having intended to speak in favour of amendment No. 279, I began to have my doubts when I heard Labour Members question my hon. Friend the Member for Westmorland and Lonsdale (Mr. Collins). However, I have now returned to my former opinion℄even more starkly℄having heard the hon. Member for Edinburgh, West (Mr. Gorrie), who raises every fear that I had about the Bill. The Bill states: Statutory functions may be conferred on the Scottish Ministers". Having read the Bill in its totality, I would welcome the addition of the rider: "but not in so far as they might affect England, Wales and Northern Ireland." That seems entirely proper, and everything that the hon. Member for Edinburgh, West has said confirms that. It is difficult to confer a general duty on a Member of Parliament to hold the Executive to account when there remains a possibility℄albeit theoretical℄that the Executive are not accountable to him. That is a theoretical argument, but there is a more important argument which has more resonance in terms of public opinion. I would say to the hon. and learned Member for Edinburgh, Pentlands (Dr. Clark) that, in these matters, perceptions are even more important than reality. Even now, I am approached by constituents at meetings and in public℄in a most unwelcome, unsolicited and unhelpful way℄who share their observation that, "Now Scotland is getting its own Parliament, isn't it awful and awkward that we have a Government entirely dominated by Scottish Members?" I have to point out to them that their concern is quite illegitimate and that they have no proper grievance. Those who sit on the Treasury Bench have a mandate and are very properly there. I should hate it if a situation arose in which my constituents had a legitimate grievance, and amendment No. 279 would prevent that from happening. As said, perception is important in these respects, and the Committee has a duty to remove such sources of conflict and public discontent.

Laurence Robertson (Conservative, Tewkesbury)

I endorse the amendments tabled by my right hon. and hon. Friends. Having sat through many hours of debate on the Government of Wales Bill and the Scotland Bill, I am worried about disputes, because both Bills have the potential to create a great many disputes. That is one reason why I support amendment No. 280, which gives guidance on how some disputes might be resolved. Amendment No. 279 concerns potential disputes, or at least confusion, so I support what my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) said about clarifying the Bill. We must make it plain that nothing in the Bill permits Scottish Ministers to exercise any functions℄or "enjoy" any power, if that word is preferable℄in any part of the United Kingdom other than Scotland. That helps to clarify the Bill.

Alasdair Morgan (Scottish National Party, Galloway and Upper Nithsdale)

Does the hon. Gentleman not realise that, before the Conservatives get anywhere in Scotland, the penny must drop that no one there is vaguely interested in exercising power south of the border, or in seeing Scottish Ministers exercising power south of the border? The people of Scotland simply want to get on with running Scotland; we are not interested in what happens south of the border.

Laurence Robertson (Conservative, Tewkesbury)

I am grateful for that intervention, which gives me the opportunity to say that, although what the hon. Gentleman says may be true in relation to the Scottish people, we in Westminster still face the prospect of Scottish Members coming down here and voting on purely English matters while we cannot vote on Scottish matters. So the potential for disputes still exists. I accept that the Scottish people have no selfish interest in matters outside Scotland, but the amendment attempts to clarify the matter. If the hon. Gentleman says that there is no potential for problems, why should the clarification not be included in the Bill?

Michael Ancram (Conservative, Devizes)

I was most interested in the intervention from a Scottish Nationalist, particularly given the geographical area that he represents, because it is precisely in areas near the border that we have all sorts of questions about rights over fishing on rivers and fishing within the Solway, all of which may well require decisions affecting cross-border issues. It seems strange that he should say that the Scots have no interest in those issues.

Laurence Robertson (Conservative, Tewkesbury)

I thank my right hon. Friend for that intervention. Some issues may come under the jurisdiction of Scotland or England; I suggest that they should come under the jurisdiction of the Crown. That would be the best way to proceed. I also endorse what my hon. Friend the Member for North-East Hertfordshire said about enterprise zones. The statistics for Scotland are, indeed, impressive. If we are to engage in the new spirit of co-operation℄in which the Minister seems to be willing to engage, albeit to a limited extent℄we want the best for Scotland. I admit that the Conservative party does not want a Scottish Parliament in the first place, but we do want what is best for Scotland. Amendment No. 310 deals with that issue. Like Wales, Scotland has attracted a disproportionate amount of inward investment in relation to its population, and we want that to continue for the purpose of creating more jobs and more wealth.

Alasdair Morgan (Scottish National Party, Galloway and Upper Nithsdale)

Will the Minister clarify amendment No. 322, which seems to remove from the clause the references to sections 10 and 14 of the Industrial Development Act 1982? I understand that section 14 of that Act does not apply to Scotland in any event, whereas section 10 does. Is it correct that the change to the clause does not diminish the powers of Scottish Ministers but merely enables UK Ministers also to exercise certain functions, and that we may therefore be in the lucky position of having two sets of Ministers?

Oliver Heald (Conservative, North East Hertfordshire)

The amendment is purely technical. If the hon. Gentleman reads amendment No. 332, which seeks to reserve the Industrial Development Advisory Board to the Westminster Parliament for the first time at this late stage in the proceedings, he may be a bit more concerned.

Alasdair Morgan (Scottish National Party, Galloway and Upper Nithsdale)

I was about to express my concern about section 10 of the 1982 Act. It strikes me as strange that the powers under section 10 should be exercised by two sets of Ministers. Given all the talk about co-ordination and the need for a concordat to prevent different people from going in different directions, how does having two sets of Ministers exercising the same function improve that co-ordination?

Henry McLeish (Labour, Central Fife)

The debate has ranged from the ultra-theoretical to the issue of public perception. It may therefore be useful to try to take the middle route and discuss realism and pragmatism in relation to some of the issues that have been dealt with. Before I deal with the amendments, may I say a word about clause 59 and the Executive devolution order generally? The clause enables subordinate legislation to provide for the transfer to Scottish Ministers of statutory ministerial functions to be exercisable by them either instead of, or as well as, by the UK Minister. I alluded earlier to the three-tier structure of that system. It also provides for the adaptation of such functions by requiring UK Ministers to consult with, or obtain the agreement of, the Scottish Ministers before they exercise statutory functions. The Government have made available to hon. Members copies of a working draft of a clause 59 order, which I shall refer to as the "Executive devolution order". That draft order lists over 300 functions in relation to reserved matters, which will be exercisable in or as regards Scotland by the Scottish Ministers, or in relation to which Scottish Ministers will be consulted before the UK Minister exercises the function. The draft order covers functions to be transferred in a wide range of areas, including betting, gaming and lotteries, firearms licensing, extradition, lord lieutenants, the Government indemnity scheme and the acceptance of property in lieu of tax, the funding of Gaelic television and radio, tribunals, electricity supply, environmental impact assessments, civil nuclear installations, roads, railways, airports, public sector pension schemes, abortion clinics and medicines legislation. It covers a wide sweep of Executive responsibility. It also provides for Scottish Ministers to be consulted over the appointment of the Scottish member of the Independent Television Commission. It delivers the Government's commitments on Executive devolution made in the White Paper. Amendment No. 279 seeks to ensure that Scottish Ministers cannot exercise any function or power outside Scotland. It is inappropriate because it would prevent Scottish Ministers from exercising some functions that are essential for the discharge of their responsibilities in relation to Scotland. The functions transferred to Scottish Ministers by virtue of clauses 49 and 59 will be exercisable not just in Scotland but as regards Scotland. There will certainly be circumstances where functions exercisable as regards Scotland need to be exercised outside Scotland, including in England, Wales and Northern Ireland. For example, Scottish Ministers will need to exercise certain functions in relation to some public bodies based in England that have functions in Scotland, such as the Intervention Board for Agricultural Produce. Furthermore, Scottish Ministers will, on occasion, in exercising a devolved function, require to meet Ministers of the UK Government, for example in considering the formulation of policy, particularly where there are potential advantages in maintaining a degree of consistency in policy both north and south of the border. The hon. Member for Westmorland and Lonsdale (Mr. Collins) made a passing reference to that. At a practical level, Scottish Ministers will need to have the authority to pay the property and staffing costs of any representative office in London. Although the Scottish Parliament will only be able to make laws that form part of the law of Scotland, it should, and will, be able to confer functions on Scottish Ministers which are exercisable outwith Scotland. That reflects the fact that there will be circumstances where Scottish Ministers will need to exercise functions outside Scotland to secure the effective implementation of policy on devolved matters north of the border. For example, it should be open to the Scottish Parliament to confer functions on Scottish Ministers of promoting a devolved matter such as Scottish sport outside Scotland. If Glasgow℄or Glenrothes in my constituency℄wants to launch a bid to host the Olympic games, Scottish Ministers should be able to do their bit in promoting that bid abroad. The amendment would prevent them from doing that. That may sound trite, but I am trying to emphasise the fact that the amendment could result in functions and activities being stifled. The amendment would deprive the Scottish Ministers of any powers to exercise functions outside Scotland, even if they clearly related to devolved matters in Scotland and formed part of Scots law. It is therefore quite inappropriate. For those reasons, I ask the right hon. Gentleman to withdraw amendment No. 279. Amendment No. 280 would provide that a dispute between a Minister of the Crown and the Scottish Ministers arising from the exercise of powers that the Minister of the Crown is permitted to exercise under clause 52 should be dealt with as a devolution issue under the provisions of schedule 6. I shall explain why I do not think that such a provision is necessary, or would be an appropriate use of the procedures in schedule 6. Clause 52 provides for a limited number of exceptions to the general rule that functions transferred to the Scottish Ministers by virtue of clause 49 will cease to be exercisable by Ministers of the Crown in or as regards Scotland. In a number of cases, it makes sense for Ministers of the Crown to be able to continue to exercise certain powers as well as the Scottish Ministers. Almost all the powers concerned involve the provision of grants or loans from the departmental resources of the Ministers of the Crown, for transport infrastructure, certain scientific research, grants and loans to industry and road safety measures. Clause 52 also enables UK Ministers to continue the levy scheme used to promote the export of wool textiles. Scotland will continue to benefit from the United Kingdom Government's legitimate continuing interest in supporting such activities in Scotland. Given the nature of the powers concerned, there is very little likelihood of any significant dispute about how they are exercised. Our view is that any necessary co-ordination on these matters between the Scottish Executive and the relevant Department in Whitehall should be carried out on a non-statutory basis, and any dispute should be resolved in the same way. That is in line with the Government's approach to co-ordination between the Scottish Executive and Whitehall generally. I believe that any amendment to impose a statutory procedure for dispute resolution would be unnecessary and inconsistent with our general approach to the future management of the relationship between the Scottish Executive and United Kingdom Departments.

Oliver Heald (Conservative, North East Hertfordshire)

If there is a dispute about the prime responsibility for one of those issues, and if agreement cannot be reached, how is it to be resolved?

Henry McLeish (Labour, Central Fife)

That is another timely intervention. Schedule 6 deals with devolution issues that are confined to judicial issues, and are intended to police the boundaries of the devolution settlement. Obviously, if a dispute arising from the exercise of functions referred to in clause 52 raised such questions, they could be dealt with as devolution issues as the Bill is currently drafted. For example, any question whether a Minister of the Crown had gone beyond what is authorised by clause 52 and was therefore purporting to exercise a function that was a devolved matter would fall within the definition of a devolution issue under schedule 6(1)(f). However, in the unlikely event of other disputes arising out of the exercise of the shared powers under clause 52, they would fall to be resolved under the non-statutory arrangements that I have described, because they would be of a policy rather than a judicial nature. There is an important distinction between matters that relate to devolution issues and justiciable factors concerning the boundaries of the settlement, and matters that clearly relate to policy. Amendment No. 305 is purely consequential on amendment No. 280, as it simply tidies up the numbering of the subsections in clause 52. Amendments Nos. 280 and 305 are unnecessary and inappropriate, and I invite the Committee to reject them. I can be more positive about amendment No. 286, and the consequential amendment No. 307, which raise a valid point that I accept in principle. Amendment No. 286 seeks to ensure that subordinate legislation under clause 59 is subject to an affirmative resolution of both Houses of Parliament. The Bill currently provides that subordinate legislation under clause 59 can be made by Her Majesty by Order in Council or by a Minister of the Crown by order. Under the Bill, subordinate legislation is subject to the negative resolution procedure in both Houses of the United Kingdom Parliament and in the Scottish Parliament, although it could be subject to affirmative procedure if the person making it were so to choose. Given the importance of Executive devolution orders, I agree that it would be more appropriate for subordinate legislation under clause 59 to be made only by Her Majesty by Order in Council, and for it to be subject to an affirmative resolution of both Houses of Parliament, which is the point made by the right hon. Member for Devizes and his Front-Bench colleagues. Subordinate legislation must also be subject to an affirmative resolution of the Scottish Parliament: there can be no question of imposing functions on the Scottish Executive without the equal agreement of the Scottish Parliament. An Order in Council, affirmative resolutions of both Houses and an affirmative resolution of Holyrood would require consensus and agreement, so I hope that that will allay the fears of Opposition Members about conflicts that may arise. Government amendments Nos. 306, 308, 323, 324 and 329 to 331 make the changes necessary to achieve that, and are all related to this key principle. 8.15 pm Unfortunately, I cannot take such a sympathetic view of amendment No. 287, and I ask the Committee to resist it. It strikes at the heart of clause 59, and of our proposals for Executive devolution. It would remove the provision that allows statutory functions of UK Ministers of the Crown to be exercisable in or as regards Scotland by the Scottish Ministers instead of by the UK Minister. Although it would leave the possibility for functions to be exercisable concurrently by Scottish Ministers and by UK Ministers, it would not allow a straightforward transfer of functions from the UK Minister to the Scottish Ministers. I referred earlier to the three tiers of the arrangement. It is eminently sensible for the affirmative resolution procedure to take place and for the transferred functions to be wholly exercised by Ministers of the Scottish Parliament. The amendment is unacceptable, because it would result in an unnecessary and unworkable duplication of powers in relation to Scotland. Clause 59 already provides for functions to be exercised concurrently if the UK Government and the Scottish Executive agree that that is the right approach. An order under clause 59 cannot be made without agreement. We fully recognise that concurrent exercise of functions will be the right approach when it is necessary to ensure compliance with European obligations. However, that can be provided for in the order itself: there is no need for the legislation to require that such functions can be transferred only on a concurrent basis. Amendment No. 288 is unacceptable because it seeks to provide a mechanism for functions exercised by the Scottish Ministers in relation to devolved matters to be exercisable in or as regards Scotland by UK Ministers. That would be quite contrary to the scheme of devolution set out in the Bill. The right hon. Member's objective may be to probe us on whether functions that have been made exercisable in or as regards Scotland by the Scottish Ministers by an order under clause 59 should be capable of being transferred back to a UK Minister. I am willing to consider whether any additional provision is needed to deal with that scenario, and what the nature of any such provisions should be. In any event, any re-transfer should be subject to the agreement of both Westminster and the Scottish Parliament. In view of that, I should be grateful if the right hon. Member would not press amendment No. 288. Amendment No. 310 would remove the requirement for Treasury consent to the designation of an enterprise zone by the Scottish Ministers. We consider that that would be wrong, because of the tax privileges conferred by enterprise zone status. Clause 51 removes requirements for UK Ministers to agree to, or be consulted about, the exercise of functions by the Scottish Ministers by virtue of clause 49. It would clearly be inappropriate for such controls to be maintained over functions that relate to devolved matters. I hope that hon. Members will agree that amendment No. 310 is inappropriate. Government amendment No. 322 amends clause 52, which enables the UK Government to continue to share certain powers in relation to devolved matters. It makes two amendments to the reference to the Industrial Development Act 1982. It removes a reference to section 14, which does not apply in Scotland. It also deletes the reference to section 10, which concerns the Industrial Development Advisory Board. That body is responsible for advising the President of the Board of Trade about certain powers to provide financial assistance to industry. We propose that the board should be reserved, as there is already a parallel Scottish body, the Scottish Industrial Development Advisory Board, which was established under quite different legislation. SIDAB rather than IDAB should be the appropriate source of advice for the Scottish Ministers. The effect of reserving IDAB is that ministerial powers in respect of the board set up under section 10 of the 1982 Act will remain with the United Kingdom Government.

Michael Ancram (Conservative, Devizes)

Waffle.

Henry McLeish (Labour, Central Fife)

One of those bodies advises the Secretary of State for Scotland on industrial development. It examines applications for regional selective assistance from indigenous companies and inward investment where the amount of grant likely to be offered is more than £250,000. An identical organisation services the President of the Board of Trade down south.

Tam Dalyell (Labour, Linlithgow)

The argument is difficult to follow, although I am not making a criticism. Have the Scottish Office and the Minister satisfied the Law Society℄they may well have℄that the reasons for the joint-exercise provision need to be made clear?

Henry McLeish (Labour, Central Fife)

I hope that the Law Society will be satisfied. My hon. Friend has asked for clarification; we are trying to clarify something that is not clear in the Bill as it stands, and I think that, in relation to the two organisations, it makes sense for us to proceed on the basis that I have outlined.

Alasdair Morgan (Scottish National Party, Galloway and Upper Nithsdale)

The fact that the Industrial Development Advisory Board is included in the list of bodies with reserved powers suggests to me that the board will still have some functions with regard to Scotland, which will remain reserved.

Henry McLeish (Labour, Central Fife)

Let me allay the hon. Gentleman's fears. Ours is a genuine tidying-up operation in relation to two organisations, one servicing the President of the Board of Trade and the other servicing℄currently℄the Secretary of State, but in future the First Minister of the Scottish Executive. We are simply saying that the position should be made clear in schedule 5. Nothing is being lost. We have a powerful advisory body, which will continue. It is replicated in the south, in relation to the President of the Board of Trade. The effect of reserving the IDAB is that the ministerial powers in respect of the board that were set up under section 10 of the Industrial Development Act 1982 will remain with the United Kingdom Government. There is no need for them to be shared, and the reference in clause 52 should therefore be deleted. Clause 52 provides for a limited number of exceptions to the general rule that functions transferred to the Scottish Ministers by virtue of clause 49 will cease to be exercisable by Ministers of the Crown in or as regards Scotland. In a number of cases, it makes sense for Ministers of the Crown to be able to continue to exercise certain powers alongside the Scottish Ministers. Nearly all the powers concerned involve the provision of grants or loans from the departmental resources of the Ministers concerned, for matters such as transport infrastructure℄to which I referred earlier℄scientific research, industry and road safety measures. The clause also allows United Kingdom Ministers to continue to impose the various levies that we have described. In all those matters, the United Kingdom Government have a legitimate continuing interest in supporting activities throughout the UK, from which Scotland should continue to benefit. Amendment No. 332 would add the Industrial Development Advisory Board to schedule 5, which deals with reserved matters. It is a technical amendment, designed simply to help to ensure that the board's role in advising the President of the Board of Trade remains entirely a matter for the UK Government and the UK Parliament. The board is established under the Industrial Development Act 1982, under which it advises the President of the Board of Trade on the exercise of certain powers under that Act to give financial assistance to industry. As the Bill is currently drafted, the board would fall within the devolved classification involving financial assistance for industry. It would therefore be treated as a cross-border public body, and would share certain functions with the separate Scottish Industrial Development Advisory Board. We consider that it would make more sense for the UK body's activities to remain a matter for the UK Parliament, for functions relating to it to be a matter for the UK Government and for the Scottish body℄which will be fully devolved℄to advise Scottish Ministers. Amendments Nos. 322 and 332 will enable that to happen.

Oliver Heald (Conservative, North East Hertfordshire)

rose—

Tam Dalyell (Labour, Linlithgow)

On a point of order, Mr. Lord. Is it in order for us to discuss clause 53 stand part?

Oliver Heald (Conservative, North East Hertfordshire)

I listened carefully to what the Minister said, but℄certainly in respect of amendment No. 279℄he did not really deal with the point raised by my hon. Friends the Members for Faversham and Mid-Kent (Mr. Rowe), for Westmorland and Lonsdale (Mr. Collins), for Tewkesbury (Mr. Robertson) and for New Forest, West (Mr. Swayne). They asked how it was right for there to be cross-border public bodies and powers that, as a result of subordinate legislation, might be exercised by Scottish Ministers in respect of England℄or, indeed, Wales or Northern Ireland℄when there would be no accountability to this Parliament. The Minister said that some functions relating solely to Scotland might be required to be exercised in England, Wales or Northern Ireland. In a spirit of conciliation, let me offer him the chance to give me the assurance that Scottish Ministers shall not be permitted to exercise any function other than as regards Scotland, or enjoy any power in England, Wales or Northern Ireland. We seek that for reasons of accountability. The Minister will understand our point if he looks at clauses 83 and 84. Indeed, he described the workings of those clauses rather well himself. If Scottish Ministers are indeed to deal with certain functions in respect of England, perhaps the Minister will justify that. Perhaps, in relation to amendment No. 279, he will also consider the issue of fishing in the border area℄in rivers such as the Tweed and the Esk, and in sea waters off the coasts of Scotland and England. Is he really saying that such matters could be dealt with solely by Scottish Ministers?

Dominic Grieve (Conservative, Beaconsfield)

I was interested in clause 99, which has a bearing on the issue that the hon. Gentleman has raised. One reading of the clause is that, unless Scottish Ministers are appointed to the Privy Council, they will have no say in the operation of the fisheries on the Esk or the Tweed.

Oliver Heald (Conservative, North East Hertfordshire)

Clause 99 states: Her Majesty may by Order in Council make provision for regulating fishing for salmon, trout, eels and freshwater fish in the River Tweed and the River Esk. No doubt that is due to a proper concern that fishermen on the English side of the Tweed and at the English end of the Esk might wish to fish on Sunday, and might not be able to do so if fishing were regulated solely by Scots law. That is not the only issue of its kind, however. A range of cross-border issues may arise, not just in relation to rivers but in relation to sea water. I ask the Minister for an assurance in the few moments that remain. We welcome what the Minister said about the amendments on which he accepts our arguments, but we continue to press him on the others. We ask him if he cannot find some way of meeting the case that the Opposition have made. He has gone a certain way towards that, but he has not gone far enough, and we will divide the Committee unless we are satisfied with the assurances that he gives us now.

Tam Dalyell (Labour, Linlithgow)

As the guillotine is coming down and this is our only opportunity, may I ask about the difficulties that might arise between the two Parliaments? Let us suppose that a future EC directive addressed matters that fell within the competence of a Scottish Parliament. That directive might be implemented by an Act of that Scottish Parliament, or an Act of a Scottish Executive, or a United Kingdom Minister under section 2℄

Tam Dalyell (Labour, Linlithgow)

On a point of order, Mr. Lord. Let me just register the fact that this is a travesty of parliamentary scrutiny.

Henry McLeish (Labour, Central Fife)

I am not sure that I can give the hon. Member for North-East Hertfordshire (Mr. Heald) much more reassurance, but let me say something about amendment No.279. I think that there is an impression that, once the Parliament is there, we will organise ourselves into marauding groups that will want to nip down to Liverpool℄to cross the border, do a bit of pillaging, do a bit of legislating and return to the Parliament. That may figure prominently in some of the fantasies of Opposition Members, but the reality will be slightly different. In every instance, we have said that this will be about agreement and consensus. If we are transferring functions in the three-tier framework that I have described, it will all be about agreement in both Houses. It will be about affirmative resolutions. It will be about seeking agreement and, of course, about accountability. Any decision by both Houses in Westminster to transfer functions to the Scottish Executive will be made on the basis of agreement in this House, and all hon. Members will participate in that. I therefore argue that agreement can be reached. There will be good will, but we have built in affirmative resolution procedures. There is an Order in Council to deal with the matter. Things have to be done by agreement. That is the important consideration behind much of the Bill.

Oliver Heald (Conservative, North East Hertfordshire)

The Minister has moved but, sadly, not enough.

SHARED POWERS

POWER TO PREVENT OR REQUIRE ACTION

Bernard Jenkin (Conservative, North Essex)

I beg to move amendment No. 281, in page 22, line 40, leave out from `may' to end of line 41 and insert `apply to the Court of Session to seek an order to prohibit the proposed action'.

Bernard Jenkin (Conservative, North Essex)

I have to confess that I rise with some trepidation, because I was given this neat little collection of amendments to pursue. The more I delved into the Bill and had the Secretary of State jog my elbow and chuckle, the more I realised why a QC would want to delegate the matter to a non-lawyer. I shall try to be brief to give the Secretary of State as much time as possible to address all the issues that arise from clause 54. Clause 54, which we term one of the governor-general clauses of the Bill in view of the powers that it possesses, relates to clause 33, which, unfortunately, we did not have time to discuss. I remind the Committee that clause 33(1)(a) deals with the Secretary of State's powers to intervene. If a measure contains provisions which he has reasonable grounds to believe would be incompatible with any international obligations", he can delay or make an order suspending the Royal Assent of an Act of the Scottish Parliament. Although I do not wish to tie the Committee in knots, the Secretary of State tells me that the provision relates back to clause 28—one of the most complicated clauses of the Bill, which sadly, we did not discuss. In addressing our amendments to clauses 54 and 55, I invite the Secretary of State to relate his comments to the other clauses that we have not discussed, while remaining in order. The key question is what is an international obligation, and what is the Secretary of State's determination of an international obligation in respect of his order-making powers under clauses 33 and 54. In the equivalent debate on Wales, we established that international obligations went beyond treaty obligations. We used as an example the Agenda 21 agreement on the environment. The example which I want to pursue in respect of the amendments is that of the Rio carbon emission targets. To what extent do they represent an international obligation on the United Kingdom that is translatable into an international obligation on the Scottish Executive and the Scottish Parliament? What is the nature of the Secretary of State's decision whether to use his order-making powers in circumstances which I shall describe later? The issue turns on whether the Secretary of State is making a political or a judicial judgment. The substance of our amendments to clause 54 and to clause 33 is that the Secretary of State is making more of a judicial pronouncement than a political judgment; therefore, it would be more appropriate for the matter to be decided by a court—whether it is the Judicial Committee of the Privy Council or the Court of Session—than by the Secretary of State. Let us accept that the circumstances would be exceptional, but they could also be extremely controversial. If the Secretary of State used an order-making power to strike down an action of the Scottish Executive or to compel the Scottish Executive to take an action that it would not otherwise take, one can imagine that the political atmosphere would become pretty heated. If we want a positive and constructive relationship involving Westminster and Whitehall and Holyroodhouse and St. Andrew's house, it is not difficult to suggest that the heat should be taken out of the issue by the courts rather than have an essentially judicial matter decided by the Secretary of State.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

There is much to commend amendment No. 281, not least the point that the hon. Gentleman has been making. However, if he has read the notes on clauses—as I am sure he has—he will note that one of the features of the international treaty obligations referred to in the Bill, and the reason for the clause, is that they have not been made part of our domestic law. How does he think that those obligations would become justiciably noted?

Bernard Jenkin (Conservative, North Essex)

I shall deal with that point.

Sam Galbraith (Labour, Strathkelvin and Bearsden)

Do we have all weekend?

Bernard Jenkin (Conservative, North Essex)

I wish I had. The issue that the Secretary of State decides is not immune to questioning by the courts and may well be subject to judicial review. I shall deal with that point shortly. I invite the Committee to examine the possibility, which I had started to describe, of a dispute among the Government, Whitehall and the Scottish Executive over the extent to which Scotland was fulfilling its part of the obligation to reduce carbon emissions. It would fall to the Secretary of State to decide whether Scotland was frustrating the United Kingdom in fulfilling that obligation. Perhaps there had been a concordat between the Scottish Executive and Whitehall on how the emission targets should be divided between Scotland and the rest of the United Kingdom, and perhaps that agreement had broken down. When the point came at which the Secretary of State had to take a view on the issue, he might decide that Scotland had not contributed sufficiently to reducing emissions, and therefore invoke his order-making powers. I invite the Secretary of State to tell the Committee whether that order-making power would be subject to judicial review. If so, what would be the substance of the judicial review? It is one thing for the Secretary of State to decide whether he considers an international obligation to have been fulfilled, but, if it comes to a judicial review, surely the court has to decide whether an international obligation existed and whether the Scottish Parliament and Scottish Executive were frustrating the United Kingdom's fulfilment of that obligation. Would it not be better if such an issue were decided initially by a court? I do not know whether the issue would ultimately finish in an international court—for it to decide a United Kingdom constitutional dispute—but that seems rather unlikely. Therefore, to answer the question asked by the hon. and learned Member for Orkney and Shetland (Mr. Wallace), I think that, on an issue of international obligation and international law, a domestic court would have to decide whether the Secretary of State was justifiably using that power. Our group of amendments would ensure that initially courts address the issues, rather than leaving them as the basis of political dispute. Specifically, in our proposed amendments to clause 33, we suggested that the matter should be referred directly to the disputes procedure, as specified in paragraph 4(1) of schedule 6. In amendment No. 281, we recommend using the Court of Session, but we are not fussy. If the Secretary of State comes up with a better idea, we should very much welcome those proposals. It is clearly odd to invite a United Kingdom domestic court to decide a matter of international law. Although it seems unavoidable that such adjudications will have to be made, they should not be made by the Secretary of State.

Tam Dalyell (Labour, Linlithgow)

Clause 54 constitutes a substantial restraint on the competency of certain legislation in the Scottish Parliament. Although the clause empowers the "Secretary of State", that need not be the Secretary of State for Scotland; as the Bill is written, it could be any Minister of the Crown. I wonder whether the Secretary of State will confirm that. I must say that it is a travesty of scrutiny in the House of Commons that, as with clause 33, we did not debate clause 53. By the time of the Bill's Third Reading, no one will be able to say that the Bill was properly scrutinised. Unless we very thoroughly scrutinise clauses 33 and 53 at Report, we cannot claim to have had scrutiny. Given the existence of clause 53, which allows Westminster Ministers to override the actions or supply the omissions of Scottish Ministers in the European Community and convention spheres, it is not clear why clause 54(2), with its power to require action of a Scottish Minister in the same spheres, is necessary. Surely the same result can be achieved by the UK Minister asserting his independent right. Regardless, what sanctions are available to ensure that relevant action is taken by the Scottish Minister? Clause 54(1) clearly remains necessary, to take account of the possibility that a Scottish Minister committed to so acting could presumably act contrary to international obligations unless the UK Government retained a preventive power. Again, however, and much more pertinently, that raises the question of appropriate enforcement mechanisms. The Bill does not have much to say about those. Clause 54(3) makes no provision for the Secretary of State's action to be directed to a particular person. Is it the First Minister or the member of the Scottish Executive who can be directed to act, and how can such a direction be reviewed? I look forward to hearing the Secretary of State on those matters.

Bill Cash (Conservative, Stone)

As the hon. Member for Linlithgow (Mr. Dalyell) has said, the provision in clause 54 ignores the fact that clause 53 has not been properly scrutinised, raising some fundamental questions—not the least of which is the relationship involving legislation that is made in the House, legislation that is made in the Scottish Parliament and the obligations that are imposed by section 2 of the European Communities Act 1972. The bottom line is simply that, in the Bill, an attempt is made to bypass the impact of the European dimension on legislation that will have an impact on the people of Scotland, not to mention on the people of the United Kingdom as a whole. Clause 53, which has not been debated but is of direct relevance to the provision, states: (1) Despite the transfer to the Scottish Ministers by virtue of section 49 … any function of a Minister of the Crown in relation to any matter shall continue to be exercisable by him as regards Scotland for the purposes specified in section 2(2) of the European Communities Act 1972. It goes on: (2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible"—

Bill Cash (Conservative, Stone)

The point that I am making arises with respect to clause 54(4). The question whether the Secretary of State has reasonable grounds to believe that a provision would be incompatible with international obligations or within the legislative competence of the Parliament by virtue of … section 28 is directly relevant to superior law, which takes us back to clause 53. I shall not go into the merits of clause 53. I shall simply make the important point that the consequences of legislation made in the European Community dimension—because it is superior law—will override any decisions taken, including those on the basis of so-called "reasonable grounds" by the Secretary of State. The bottom line is that, whether or not the Secretary of State comes to a conclusion based on what he may regard as "reasonable grounds", that is not within his jurisdiction, because it will be overridden by the fact that the legislative competence of the Parliament under clause 54(4) will be determined by the ultimate decision of the European Court.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

Given that international obligations are defined in clause 111(7) as meaning obligations … other than obligations under Community law", and therefore expressly exclude anything relating to Community law, how can Community law have relevance? 9 pm Mr. Cash: I debated this question with the Minister during earlier proceedings. When he kept on saying that he was concerned with the question of international agreements—by which I mean international obligations—I made the point that he was completely confused about the interaction between what he was describing as international agreements and international obligations as defined in clause 111. That is where the problem lies. Clause 111 may be an attempt to define an international obligation, but the plain fact remains that whether such an obligation is an international obligation falling within the purview of the European Communities Act will be decided not by the Secretary of State's reasonable assessment but by the Court of Justice—if and when the question gets there because of a contravention of a provision of European Community law. We know perfectly well that, over and again, there have been attempts—as, indeed, there is in this Bill with regard to the Scottish Parliament—to create an impression that, somehow, we will be able to retain control over what is decided in this House. The White Paper demonstrates the nature of the problem by reference to the manner in which decisions will be taken in the Council of Ministers. An attempt is being made, somehow, to create an impression that there will be a continuing jurisdiction in this House or in the Scottish Parliament. The reference to legislative competence under section 28 shows that the Government are concerned about whether there would be legislative competence in the Scottish Parliament. There is a raft of inconsistency of jurisdiction in the schedules which seek to determine the Parliament's legislative competence. The Bill is unbelievably obscure and opaque when it comes to where decisions will be taken. I see the Secretary of State shaking his head. Perhaps he would be kind enough to say why he thinks that I am wrong on this point. I raised it with him in an earlier debate, and he admitted that he did not have the means of determining where the line was drawn. A massive confusion will occur, ultimately driven by the provisions of European Community law, which will override and frustrate any attempt, which I am sure the Government are making, in any Act of Parliament—including this Bill or, indeed, the European Communities (Amendment) Bill—to create dividing lines between the various jurisdictions. We now have a tripartite jurisdiction. We are no longer talking only about what matters will be determined by ministerial decision. The opportunities that Ministers have to state whether they have reasonable grounds, which is a matter of judicial review, will be determined—as the Amsterdam treaty makes abundantly clear—not in the courts of first instance but in the highest courts in the land. The Secretary of State will be in an extremely ambiguous position in his relationships with the United Kingdom Cabinet, Scotland and the Council of Ministers. He will find himself in increasing difficulties over the legislative competence of the Scottish Parliament as stipulated in subsection (4). Who will be the ultimate arbiter? Who will make the fundamental decisions? It will not be the Secretary of State. The clause is a load of codswallop. It is an attempt to give the impression that the Secretary of State will have the power to revoke legislation where he has reasonable grounds to believe that there has been an infringement of the powers that are laid down—it is an ultra vires issue. He is arrogantly trying to give the impression that he can make decisions that he will not be able to make. Irrespective of what the hon. and learned Member for Orkney and Shetland (Mr. Wallace) said—that clause 111 defines international obligations—where there are conflicts with the European Court and European Community obligations, decisions will be taken by the highest courts in the land and, ultimately, by the European Court itself. The Secretary of State is living in cloud cuckoo land if he does not understand that the implications of the clause will be overridden by decisions ultimately taken by the European Court. In the past few years, a denial has been increasingly built into the legislative process. There has been a refusal to admit that there will be complications in determining the overriding jurisdiction of the law-making powers of this land in relation to a raft of legislation, including those matters set out in the schedules to the Bill, as the debate on clause 28 demonstrated. There will be no clear dividing line, and ultimate jurisdiction will lie with the European Court of Justice. The Secretary of State can remonstrate and shake his head. He can say that he does not think that that will happen, but I guarantee that, within a matter of years, it will become abundantly clear that—despite the Government's protestations—the dividing line of legislative competence will be determined by the European Court in those areas where it has the competence to decide. I see that the Secretary of State has been handed a note from his advisers. I should be delighted if he would be good enough to read out what advice he has been given, as it is clear that he cannot make up his own mind on the subject. I have raised this point with him over and over again—

Henry McLeish (Labour, Central Fife)

The hon. Gentleman is out of touch.

Bill Cash (Conservative, Stone)

The Minister may say that, but over and over again there have been attempts to give the impression that we are in control of our own affairs, on questions of overlapping jurisdiction, ultra vires issues and legislative competence, when in reality those matters have been resolved against us. The Secretary of State may seek to determine those questions of legislative competence in a Bill of this sort, on what he would term reasonable grounds, but there is no basis for the confidence that is expressed by the look on his face at the moment.

John McAllion (Labour, Dundee East)

I shall not follow the remarks made by the hon. Member for Stone (Mr. Cash). Indeed, I doubt whether any hon. Members present could do so. When the hon. Member for North Essex (Mr. Jenkin) introduced this group of amendments on behalf of the Opposition, he said that the key to understanding them was the definition of "international obligations". One of the keys to understanding the amendments, as well as the clause, is the definition of "any action proposed". Clause 54(3) states: 'action' includes making, confirming or approving subordinate legislation and, in subsection (2), includes introducing a Bill in the Parliament. That tells us what the definition includes, but it does not tell us what is excluded. When my right hon. Friend the Secretary of State replies, I hope that he will be clear about what is meant by "action". Does it refer only to subordinate legislation—to Bills of some sort—or can it refer to any sort of action taken by the Scottish Executive, or indeed, the Scottish Parliament? I shall give an example. Let us pretend that the Scottish Parliament is already in existence and that, in the middle of this international crisis in the Gulf, the First Minister has decided to hold a debate on the crisis and to put forward a resolution for the approval of the Parliament that would condemn any military action in the Gulf either by the United States of America or by the United Kingdom. That is an action that the Prime Minister in this Parliament could well define as being opposed to international obligations undertaken by the United Kingdom Government. Obviously, we are under some sort of obligation to support the Americans in any military action in the Gulf. Could the UK Prime Minister overrule the Scottish Parliament and stop it holding such a debate?

Donald Dewar (Labour, Glasgow Anniesland)

The answer to that question is simply no. I fear that my hon. Friend is suffering from the delusion that a speech by him against certain forms of action in the world amounts to an international obligation. That is an optimistic definition of his own efforts.

John McAllion (Labour, Dundee East)

My right hon. Friend deliberately misses my point. I was not referring to international obligations arising from any speech that I might make, but simply saying that the British Government are under an international obligation, I would assume, to support America in the Gulf at the moment. If a Scottish Parliament were against giving that support, would that be defined as going against a UK Government international obligation?

Donald Dewar (Labour, Glasgow Anniesland)

The answer is that there is no such international obligation. The foreign policy of Her Majesty's Government is a matter for the judgment of the Government of the day, but a decision to follow a certain line in international debate does not constitute an international obligation.

John McAllion (Labour, Dundee East)

I am greatly relieved to find that we are under no obligation to undertake military action in the Gulf. That will be a great source of satisfaction for many Labour Members.

Bill Cash (Conservative, Stone)

Perhaps the hon. Gentleman ignores the fact that, under both the Maastricht and the Amsterdam treaties, what is or is not decided as an international obligation is continuously and progressively being taken into European jurisdiction. Therefore, my earlier point—about which he was dismissive—is entirely relevant to this debate. The bottom line is that it is no good the Secretary of State saying that he will have the right to make those decisions, because he is already being overtaken by—

Michael Martin (Deputy Speaker, Glasgow Springburn)

Order. I have just arrived in the Chair, but I have been listening to the hon. Gentleman, and clause 54 does not concern our obligations in Europe, so perhaps we could leave that question for this evening.

John McAllion (Labour, Dundee East)

I am grateful to you for your ruling, Mr. Martin. If the definition of an international obligation is any international obligation of the United Kingdom, will my right hon. Friend the Secretary of State confirm that, if, the United Kingdom Government signed up to the multilateral agreement on investment this April, it would be the sort of obligation that would affect the Scottish Parliament? My right hon. Friend will recognise that the multilateral agreement on investment prevents any Government, whether of the UK or of Scotland, from discriminating against multinationals. It is expected that, under that agreement, multinationals will be able to sue local authorities which they believe to be in breach of that obligation not to discriminate. The Canadian Government are trying to ban a dangerous toxin that is used as an additive in petrol but, because the toxin is produced by only one multinational company, they have been taken to court under the north American free trade agreement, which is similar to the multilateral agreement on investment, on the basis that to ban the toxin would be to discriminate against the multinational that produces it. When he winds up the debate, will my right hon. Friend confirm that a Scottish Parliament acting through local government legislation to ban toxins on environmental grounds might under the clause be subject to UK Government intervention to prevent such legislation being passed, because it might be in breach of the multilateral agreement on investment? If the answer is yes, is not that a good and strong argument for not signing up to the multilateral agreement on investment until we hold a proper debate in this Chamber?

Jim Wallace (Liberal Democrat, Orkney and Shetland)

First, may I say how much I envy your power, Mr. Martin? When I intervened on the hon. Member for Stone (Mr. Cash) and suggested that the clause dealt with international obligations, which are defined expressly as not including anything relating to European Community law, he told me that I was missing the point. I am sure that the Committee was relieved that he did not try to explain how you, too, had missed the point as, from the Chair, you could not possibly have missed the point—in fact, you were bang on.

Bill Cash (Conservative, Stone)

The hon. and learned Gentleman seems to have great confidence in what is contained in a British Act of Parliament. Does he dispute the fact that, if there is a dispute about whether a matter that is thought to be a matter of international obligations as defined in the Bill is in fact to be regarded as a matter of Community obligations, the question will go to the European Court of Justice for a decision? Will he answer that?

Jim Wallace (Liberal Democrat, Orkney and Shetland)

I am convinced that, if the matter is one of Community law, it will fall under clause 53. In addition, the Parliament will be ultra vires under other clauses, including clause 28.

Bill Cash (Conservative, Stone)

That is not my point.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

The hon. Gentleman asked rhetorically how it was that he might be mistaken. The answer is that, when one is as Euro-obsessed as he is, one can be mistaken about a great many things. Earlier today, when my colleagues and I went through the amendments, we thought that amendment No. 281, which was moved by the hon. Member for North Essex (Mr. Jenkin), held some superficial attraction. We thought that something must be wrong, as we might have to support a Conservative amendment which seemed to be constructive. When the hon. Gentleman thought that he had the wrong brief when he rose to move the amendment, we thought that our analysis had been right. However, the hon. Gentleman did make a fair and legitimate point when he said that, if many of the matters in question could be put into the hands of the courts, that might reduce any political tension that may arise in future between the Scottish Parliament at Holyrood and the Westminster Parliament. The difficulty is that, if they are not incorporated into domestic law, international treaty obligations are not automatically judicially noted. However, if my recall of practising law many years ago is correct, I believe that it was and is possible to set out foreign law in one's pleadings, so specific treaty obligations can be set out in pleadings to any action or application before the Court of Session. I should be interested to hear whether the Secretary of State thinks that the provision might reduce some of the tension that might arise if it was thought that, for political motives, the Secretary of State in Westminster had intervened in the Scottish Parliament. Clause 54(2) states: If the Secretary of State has reasonable grounds to believe that any action capable of being taken by a member of the Scottish Executive is required for the purpose of giving effect to any such obligations"— that is, international obligations— he may by order direct that the action shall be taken. If, for example, the intention is to distribute fairly the reduction of carbon dioxide emissions across the United Kingdom, I am sure that it is not in prospect that all the responsibility will be loaded on to the Scottish Executive, or the balance put on Scotland. Clearly, the hon. Member for Dundee, East (Mr. McAllion) and I are on the same wavelength, because the issue connected with international obligations that I wish to raise is the multilateral agreement on investment. I mentioned to the Secretary of State earlier tonight that I thought that the issue was flavour of the month, and he said, "Not in Anniesland." I can tell him that it is in Dundee and Orkney. The issues connected with the multilateral agreement on investment are serious and are becoming more current.

John McAllion (Labour, Dundee East)

The issues are serious, and one of the best attended meetings that I have been to recently in Dundee was about the multilateral agreement on investment. Feeling is running high among ordinary people in Scotland, and if any hon. Members believe that the people do not know or care about the multilateral agreement on investment, they should think again.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

The hon. Gentleman is right, and we shall find that the issue is increasingly addressed in the contents of our postbags. He gave the example of a local authority taking certain actions, but what would happen if the Scottish Parliament or the Scottish Executive were to take certain actions? For example, if one of those bodies was trying to attract inward investment and imposed certain requirements with regard to local employment or the use of indigenous suppliers, would that fall foul of the multilateral agreement on investment? Could the Secretary of State at Westminster intervene to prevent that? Who would be ultimately liable—the United Kingdom Government or the Scottish Parliament—if a multinational company were to sue for damages for a breach of the multilateral agreement on investment? The issue has not been aired sufficiently, and I bear some responsibility for that, because I have become aware of the problem only in the past week or two. The House of Commons should have a broader debate on it, but this debate addresses issues that will be relevant to the workings of the Scottish Parliament and Scottish local government. It may be unfair to ask the Secretary of State to produce an answer tonight, but I hope that he appreciates from the contributions to the debate that the issue will require explanation at some stage, and sooner rather than later.

Desmond Swayne (Conservative, New Forest West)

I regard it as one of the principal duties of the Committee to remove sources of potential conflict before the Parliament begins to sit. I have read the Bill sequentially without the benefit of a legal education, and my impression of clause 54—and I have pointed out to the Committee before that impressions are very important—was that it gave draconian powers to the Secretary of State. Under clause 54(1), he may direct that the proposed action shall not be taken. He is given a similar power in clause 54(2), and under clause 54(4), he may by order revoke the legislation. It strikes me as an obvious source of conflict if a Secretary of State, who is effectively appointed by the British Prime Minister under the Crown, may revoke legislation made by a Parliament responsible to the Scottish people. Amendment No. 281 would at least ameliorate that conflict in some respects.

Alex Salmond (Scottish National Party, Banff and Buchan)

I have waited 20 years to agree with something said by my old university friend, the hon. Member for New Forest, West (Mr. Swayne), but I am now in that position. I have two questions for the Secretary of State for Scotland. First, will any Secretary of State have the power to adopt a quasi-judicial, supervisory role over the functions of the Scottish Parliament on any issue related to international obligations? Secondly, what are "reasonable grounds" and who will judge what would be reasonable grounds for an intervention? I await the answers to those questions with great interest. Meanwhile, I hope never again to agree with the hon. Member for New Forest, West.

Dominic Grieve (Conservative, Beaconsfield)

I want to pick up an important point, which I hope that the Secretary of State will address. It is always said that courts grant mandatory injunctions very sparingly. However, clause 54 makes it possible for a Secretary of State to give a mandatory direction without having any power to back it up, because ultimately, as I understand it—the Secretary of State will correct me if I am wrong—if the Scottish Parliament, annoyed at the fact that there had been a direction that legislation should be introduced, simply said, "We will do nothing about it," the only solution would be for the Westminster Parliament to introduce the legislation and impose it. That strikes me as an unsatisfactory state of affairs. In those circumstances, would it not be better if there were a mechanism to enable the courts to determine who was right in a dispute?

Owen Paterson (Conservative, North Shropshire)

It is vital for the Secretary of State to give us some clarification in answer to the questions that have been asked in the debate, such as: what are reasonable grounds, and how are they decided? Ministers have laughed and sniggered, but those questions are fundamental. Ministers must also address the issue raised by my hon. Friend the Member for Stone (Mr. Cash). International obligations are defined in clause 111. That is fine, but what happens if the European Court of Justice does not agree with the definition in the Bill? It is most important that the Secretary of State quickly reads the piece of paper in front of him, which may have come from the dog run over there, which may inform him. Time is running out. My final point, which I have made in previous debates in Committee, is that the Bill presumes that a party in power in Westminster has friends in power in the new Scottish Parliament—which may not always be the case. I should like the Secretary of State to consider an example from recent years—the break-up of Czechoslovakia. Clause 54 fills me with foreboding, because it is possible to see conflict ahead and it is ludicrous that the Secretary of State should be the grand panjandrum who decides. Amendment No. 281 should be made, so that disputes are settled in a court of law. The Secretary of State laughed at me when I took the example of the former Czechoslovakia—

Donald Dewar (Labour, Glasgow Anniesland)

indicated dissent.

Owen Paterson (Conservative, North Shropshire)

The Secretary of State did laugh. The Committee should think carefully about what happened in the Czech and Slovak lands, which were bound together in a union and have since fallen apart, catastrophically for the secessionist nation. The secessionist nation is now the one that is struggling. It is the one that was previously subsidised by the richer nation. The nationalist—the secessionist—party in this case has a rotten example from the past 10 years, and it should address it. As it stands, clause 54 is a recipe for conflict.

Robert Smith (Liberal Democrat, West Aberdeenshire and Kincardine)

I shall be brief. Subsection (2) of clause 54 seems to be the one that is most likely to lead to controversy or conflict. It says: If the Secretary of State has reasonable grounds to believe that any action capable of being taken by a member of the Scottish Executive is required for the purpose of giving effect to any such obligations, he may by order direct that the action shall be taken. The Secretary of State may desire to fulfil an international obligation such as the reduction of carbon dioxide emissions, but a range of actions might be available to achieve that object. By what process will the Secretary of State choose an action so as to produce the least damaging reaction from the Scottish Parliament? Conflict may well arise in that regard. That worries me. Perhaps, when he replies, the Secretary of State will address that issue, which seems to give the Secretary of State a much wider power to intervene. Stopping an action is a specific and focused act. Forcing an action when there could be a range of options to achieve an international goal is far wider-ranging. I am still quite sympathetic to the concept that, if one goes to the courts first and sorts the matter out, one knows where one stands. If one takes the action and relies on judicial review, the process is dragged out and becomes bogged in a quagmire.

The rest of the debate is in Hansard.