Orders of the Day — Scotland Bill

House of Commons, 12 May 1998.

CORRUPTION OR MALADMINISTRATION IN LOCAL GOVERNMENT

Liam Fox (Conservative, Woodspring)

I beg to move, That the clause be read a Second time. New clause 2 would provide scrutiny and accountability in the Scottish Parliament. The debate that we have had in the past hour shows why proper scrutiny and accountability are required. The new clause relates to corruption and maladministration in local government, which should concern all those involved in local government in Scotland. There has been a litany of accusations of maladministration in parts of local government in Scotland, and we have tabled the new clause because of the failure of internal scrutiny. It is not long since the Secretary of State and his colleagues arrived in Paisley to deal with allegations of scandal and corruption and the other problems afflicting the local Labour party. The headlines in the compliant Scottish press at the time referred to them as sleaze busters. We were told that they were going to sort the problems out once and for all, and that no stone would be left unturned. Now—a considerable time later—one inquiry has been completed and then ditched, and a separate inquiry is having to be held for which the House will have no locus, because it has not been set up by us although the matter is of great concern to us. The failure of internal regulation in Paisley is a good example of why the Scottish Parliament should have some powers over local government in Scotland. The relationship between local government in Scotland and the Scottish Parliament will be extremely important. Inquiries have been held into local government maladministration. The Labour party attempted such an inquiry in Glasgow. It was something of a kangaroo court and the charges were never made public. It ultimately collapsed because Millbank could not understand Scottish law, or at least that was the excuse. It was a complete farce and did party politics no good. If we want politics to be held in high regard, we must ensure that everything is above board. After the low turnout at the local government elections in England last week, all the political parties were talking about the need to explain the importance of local government and to foster a spirit of civic responsibility. Any inquiry into the behaviour of those who take part in local government should be fair and public. Those are important aspects of natural justice.

Tam Dalyell (Labour, Linlithgow)

I am puzzled. The hon. Gentleman asserts—it is only an assertion—that the Scottish Parliament should have some powers over local government. What powers? In particular, what powers does he think Holyrood should have that Westminster at present does not have?

Liam Fox (Conservative, Woodspring)

The new clause refers to complaints that, if they occurred in England, would be investigated by the Audit Commission. That is what the clause seeks to introduce for Scotland. There have been a number of scandals and allegations involving local government in Scotland that have given rise to great public disquiet. The Labour Opposition of the time told us that the Monklands problem was an isolated example. Glasgow was another isolated example, as were Govan and Paisley. When we join up the dots it becomes a large isolated example, because it involves the whole of the west of Scotland. We should be concerned about that.

Dennis Canavan (Labour, Falkirk West)

The hon. Gentleman did not mention Tory-controlled Westminster council. Is he proposing that the Scottish Parliament should have investigatory powers similar to those in England and Wales that exposed the disgusting scandal of Tory-controlled Westminster council?

Liam Fox (Conservative, Woodspring)

The new clause would give powers to the equivalent of the Audit Commission, and I hope that the hon. Gentleman will support it. He will, of course, be aware that the remit of the Bill does not extend to Westminster council, so I shall ignore his remarks. What occurred in Paisley shows best of all why these powers are needed. The Government may find it inconvenient that I bring up this party political subject, but questions remain unanswered. Such events have a negative impact on places such as Paisley. It is wrong for Paisley to get a bad name because of the Labour party's failure to deal with allegations. The people of Paisley dislike the way in which the town has become synonymous with problems in the conduct of local government. That is unfair, and there should be a clear mechanism of scrutiny. We still do not know what is going on in Paisley. The Government have not come up with a clear method of dealing with the allegations about the way that local government in Paisley was conducted. An hon. Member who was respected and liked in all parts of the House committed suicide and another hon. Member has been under suspension by his party for some time and is not representing his constituents in the House. There is no reassurance for the general public, and we need a mechanism that will reassure them. Matters must be above board so that those in local government know that they will be dealt with fairly. There must be proper public scrutiny.

Norman Godman (Labour, Greenock and Inverclyde)

I should perhaps declare an interest. My wife is a councillor in the west of Scotland and she is a remarkably honourable woman. I have to say that because she is bigger than me. The new clause is disgraceful. It plainly shows that Scotland is slipping away from the grasp of the Conservative party, what I call the English rural party. The United Kingdom as a unitary state is slipping away from it, and the new clause is an absurd attempt to bring some order to what should be done in Scotland. My hon. Friend the Member for Falkirk, West (Mr. Canavan) asked about Westminster council and the hon. Member for Woodspring (Dr. Fox) said that that had nothing to do with Scotland. He was right in the context of the Bill, but we must not forget the face of corruption. I suppose that at a moment like this I should murmur de mortuis nil nisi bonum in respect of the late Reginald Maudling, Mr. Poulson and Mr. Pottinger. I am tempted to repeat that for the benefit of the hon. Member for Banff and Buchan (Mr. Salmond), who is not a Latin scholar. Those three gentlemen and, I seem to recall, a Labour Member and Labour representatives from the north-east of England were involved in scandalous affairs. Corruption was a feature of much of Conservative public life.

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

Does not the hon. Gentleman agree that, as local government is a devolved matter under the Bill, there is nothing in it to preclude a Scottish Parliament from investigating local authorities that are suspected of corruption? Irrespective of which party forms the Administration, I am sure that the new Parliament will be quick to do that.

Norman Godman (Labour, Greenock and Inverclyde)

The hon. Gentleman makes a fair intervention. Of course his party will not command a majority in the new Parliament. It will be up to Members of the Scottish Parliament to engage in negotiations with representatives of local authorities to develop some kind of system to tackle corruption in councils. That applies to all parties, although Scottish councils are not led by Conservatives and perhaps never will be unless there is some system of proportional representation for local government. Even then Conservative control is unlikely. It is right to seek to drive corruption, cronyism and nepotism from our councils. That applies to Conservative councils here in the deep south, where the Westminster scandal is still fresh in our minds, as much as it applies to the occasional Labour councillor who goes adrift. The hon. Member for Woodspring spoke about Paisley, but I could not figure out what he was talking about. He referred to the late Gordon McMaster, who was an hon. Member and a good friend of mine. He was utterly innocent of any charge, as I am sure the hon. Gentleman would concede. He also referred to a neighbouring constituency but he made little reference to the council whose headquarters are in Paisley and whose meetings were recently described rather graphically by a senior police officer as somewhat lively—livelier than some Paisley pubs on a Saturday night. I place the blame for that unbecoming conduct fairly and squarely on the Scottish National party. It has nothing to do with Labour, with Councillor Hugh Henry and the fine people who sit behind him, but the independents and some of the SNP councillors leave a little to be desired.

Liam Fox (Conservative, Woodspring)

The belief that everybody but members of the Labour party is responsible for the problems in local government in Paisley leaves a credibility gap. The hon. Gentleman described the new clause as deplorable. It seeks only to give to Scotland the same power of scrutiny as is held by the Audit Commission in England. Why should the people of Scotland have less power than people in England to scrutinise local government?

Norman Godman (Labour, Greenock and Inverclyde)

I agree with the hon. Member for Galloway and Upper Nithsdale (Mr. Morgan). If there are to be regulations about the authority of our Edinburgh Parliament to scrutinise and perhaps discipline errant councillors, it must be based on genuine consultation in Scotland, not consultation in this place. It must take account of consultations not just with local authorities but with community councils. They were not mentioned by the hon. Member for Woodspring. How many community councils are there in Paisley or in Inverclyde and elsewhere? Consultations should involve representatives of the Edinburgh Parliament and civic society. What about business and trade union interests and those of voluntary organisations which have to work closely with local authorities? They should all be engaged in negotiations about the formulation of such powers.

Alex Salmond (Scottish National Party, Banff and Buchan)

I did not want to interrupt the hon. Gentleman's flow a few moments ago when he suggested that the problems in Renfrew council related to conduct at council meetings. In fairness, the hon. Gentleman might recall FCB Securities and the allegations about the activities of council-originated companies that were made by a Labour Member. Does the hon. Gentleman concede that there is a great deal more to Renfrew politics than the conduct at a few council meetings?

Norman Godman (Labour, Greenock and Inverclyde)

I readily concede that point, which the hon. Gentleman makes in a fair-minded way. In formulating policies to help needy communities, Strathclyde regional council in some cases gave too much unfettered authority to groups that had been set up throughout the region, and problems were created. That council did a fair job of looking after people in need, especially in my constituency and in Glasgow and Paisley. However, mistakes were made, and I am perfectly happy to accept the suggestion by the hon. Member for Galloway and Upper Nithsdale that a Scottish Parliament, after genuine consultation with civic society, could come up with a system to regulate the conduct of councillors. The overwhelming majority of such representatives have integrity. They play a fair game and are dead straight and honourable, and they should not have the new clause imposed upon them. Such measures must come from Edinburgh. Change is needed in our local authorities. I advocate proportional representation, and I have long argued for it. There is to be electoral reform for the European Parliament, the Scottish Parliament and the Northern Ireland assembly—if we get the result that we all hope for in about 10 days. Local government should be based on proportional representation. This may not make me very popular with a certain councillor whom I meet occasionally, but in Glasgow we have a massive number of Labour councillors and a very small opposition. That is not right. The same holds for south of the border. The Conservative party used to have massive majorities down here in the deep south and that is wrong. Speaking as a democratic socialist, I believe that that is wrong. We need electoral reform. I prefer the additional member system. That is the fairest system of proportional representation, but we should not have councils where those in power occupy 70 seats and those in opposition occupy fewer than a dozen seats. That is not right. It will not happen in our Parliament. We will even have—we may have—four or five Conservative representatives in that Parliament, if they are lucky. Subsection (1) of the new clause states: The Parliament shall make provision". I might have been a little happier with it if it had said "may make provision". That has to be done by the people of Scotland and their representatives. The hon. Member for Woodspring equates this with the Audit Commission, not with Parliament. Again, that is unacceptable. If we are going to talk about elected representatives determining these things north of the border, should we not talk about elected representatives south of the border having the same power? Again, why Scotland? Why not Northern Ireland? Why not Wales? The hon. Member for Woodspring is going to say, "Of course, we are debating the Scotland Bill," but he does not make even a passing reference to the scandals that overtook Westminster and indeed other Conservative oligarchies down here. That is why I am so opposed to the new clause. By all means, let us have change in local government. Let us demand the highest standards of conduct from our representatives at all levels, including at the level of this multinational state Parliament, but let us not focus just on local authority representatives, with them not having any say in the sort of system that is developed.

Alex Salmond (Scottish National Party, Banff and Buchan)

As usual, that was for the most part a fair-minded speech from the hon. Member for Greenock and Inverclyde (Dr. Godman). I follow that by making a few points briefly. I am suspicious of clauses, arguments or indeed recent proposals from the Secretary of State for Scotland saying that the solution to manifest problems in local government is to impose structures from above. I am not against having a sleaze buster or some form of administration, overseeing authority or commission—most people are not against that—but that is not the way in which we should be examining these particular problems. We should be examining democratic structures in councils, so that those are healthy and enable a vibrant democratic exchange to take place in councils where it does not take place at present. As some hon. Members will know, I come from West Lothian. I am a Lithgae lad. I am a black bitch, which confirms the thoughts of a few Labour Members and what they think about me. Among other things, West Lothian council—I see the hon. Member for Linlithgow (Mr. Dalyell) in his place—has benefited from the substantial number of changes in administration that it has had over the past 20 years or so. I believe—and I am trying to be fair-minded about this, although I am not saying that I would not prefer the Scottish National party to be in administration all the time—that both Labour and the SNP have keen kept on their toes in that council because they have had a substantial opposition force, which was ready and able to take over at the next election if the electorate so decided. We should consider that structure and that model in examining councils throughout Scotland. That is why the reference by the hon. Member for Greenock and Inverclyde to proportional representation is more important than this new clause, the Government's sleaze buster or any other factor. We should provide methods of ensuring a vibrant democratic opposition and a balance of forces within councils, so that some of the malpractice that we have undoubtedly seen in certain Scottish Labour councils does not become the norm rather than the exception. It would be useful if we also examined this matter in terms of moving to full-time councillors. The Conservative party often argues that there is a risk in Scotland of people becoming overgoverned. I was looking at some figures recently. Scotland has fewer elected representatives per head of population, even allowing for the 129 who are going into the new Parliament, than any other country in western Europe. Incidentally, we have substantially fewer than England because of the new single-tier structure in Scottish local authorities. It is not a case of cutting the number of councillors in Scotland. There is a substantial case for having decent remuneration for the councillors we do have in a simple form, relying on a salary as opposed to augmented expenses. That would be fairer and more democratic. It would allow a wider pool of people to move into Scottish local authorities and, again, would be a generic way in which to tackle these problems, instead of assuming that the solution is to prescribe and to impose from above. I was interested to read in The Herald last week that the Labour party was appointing a sleaze finder to scrutinise—I see the Minister of State laughing—the work of the SNP throughout Scotland, so that Labour could fling some mud at the SNP, instead of all the mud being thrown at the Labour party. The SNP is by no means perfect—I would never make that claim—and no party is, but it would take a fair amount of brass neck for anyone in the Labour party hierarchy to believe that that might be a fruitful area of exchange in the run-up to the Scottish parliamentary elections. It might find that more ammunition was coming in its direction than in that of the SNP. The serious point that I want to make is this. I hope that the debate that we conduct over the next year looks at democratic structures, instead of negative allegations between political parties. We would do the Scottish Parliament and Scottish local government a substantial service if the argument about cleaning up Scottish local government in certain councils—not the majority; corruption is not the norm—concentrated far more on how to achieve vibrant, democratic structures. As we are introducing a vibrant, democratic structure for the nation, we should be thinking of introducing the same thing in local authorities throughout Scotland.

Tam Dalyell (Labour, Linlithgow)

I agree with the hon. Member for Banff and Buchan (Mr. Salmond) that it should be local government that sorts itself out and that it should not be sorted out from any Parliament, either Holyrood or Westminster, but I am astonished at some of the other things that have been said. I do not make a party point here. Incidentally, I leap to the defence of the late Reginald Maudling. There were two sides to that story and I recall only that, for Scotland, he was one of the most helpful Chancellors of the Exchequer whom I ever went to. As a doctor, let alone a politician, the hon. Member for Woodspring (Dr. Fox) should be extremely careful in his references to the late Gordon McMaster and suicide notes because the truth is that, as he will know—I will put it this way—Gordon McMaster, who was a friend of mine, as he was of my hon. Friend the Member for Greenock and Inverclyde (Dr. Godman), said that he had been a fool when he was a lecturer in gardening at Langside college not to go along with the strict regulations on the handling of pesticides. As we know, pesticides are organophosphates and, as research is proving, organophosphates and organophosphate poisoning can do very odd things to the human mind, so we should be extremely careful about using that example.

Liam Fox (Conservative, Woodspring)

I am sure that the hon. Gentleman will recognise that that, with all due respect, is not the issue here. The issue is the failure of internal regulation within the Labour party in Scotland to come to conclusions as to what happened and the wider issues relating to Paisley.

Tam Dalyell (Labour, Linlithgow)

It was the hon. Gentleman who raised the subject and, frankly, I thought that to make that or any other point was uncalled for. Anyhow, what are we doing spending time on this when we should be discussing new clause 4, which deals with expenditure on reserved matters? If there is not time to deal with new clause 4, Mr. Deputy Speaker, would it be out of order for me at least to ask the Minister to give a Government explanation of the answer to—

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

Order. Yes, it would be out of order for the hon. Gentleman to try to do that.

Tam Dalyell (Labour, Linlithgow)

For Parliament to spend this time talking about corruption rather than the vital issues in new clause 4 is an absolute disgrace.

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

Before I call the next speaker, I should like to make the point to the House that all of today's debate is programmed and carefully timed. It is up to hon. Members on both sides of the House to decide how they spend that time.

Donald Gorrie (Liberal Democrat, Edinburgh West)

I support the hon. Members for Greenock and Inverclyde (Dr. Godman) and for Banff and Buchan (Mr. Salmond) in their enthusiastic comments on proportional representation, which I think would make a very considerable contribution in sorting out corruption and misbehaviour in councils. I also agree with the intervention by the hon. Member for Galloway and Upper Nithsdale (Mr. Morgan), who pointed out that the Scottish Parliament will have complete control over local government. New clause 2 is therefore unnecessary, as the Scottish Parliament will be able to do what it wishes in regulating local government without it. 5 pm I should like to make only one point to the Minister: the approach taken in new clause 2—which is undoubtedly well intentioned—is wrong in suggesting that the Scottish Parliament should have to establish its own inquiry into complaints made to it. I realise—from a small involvement, at second hand, in recent events in my own area—that a council may, as a council, establish an inquiry, which will be conducted by an official. Subsequently, the party involved in the inquiry may feel that it also must have an inquiry. The police may then feel that they, too, must conduct an inquiry. Ultimately, all the inquiries may become snarled up with one another. Therefore, if the Scottish Parliament is required to conduct yet another inquiry, the situation may become even worse. I think that, in collaboration with local government and police, the Scottish Parliament will have to establish a sensible method of investigating allegations of corruption, so that we do not have one inquiry after another. Unfortunately, so far, such a series of inquiries has led to nothing being done about the allegations that have been made in Scotland. I therefore plead that the Scottish Parliament does not replicate what others are doing, but co-operates with others to ensure that one thorough inquiry is conducted. After such an inquiry, action should be taken—rather than no action, as currently happens.

Malcolm Chisholm (Labour, Edinburgh North and Leith)

Although my speech will be very brief, I feel that I must very briefly mention the fact that the hon. Member for Woodspring (Dr. Fox) delivered his entire speech and seemed not to be aware of the Government's proposals on local government corruption and maladministration. I realise that the issue is difficult for Conservative Members, as they have no hon. Members representing constituencies in Scotland. In April, the Government issued a consultation paper entitled "A New Ethical Framework for Local Government in Scotland", which deals with precisely the type of matters with which we are all concerned. In the paper, the Government have gone further than the Nolan committee's recommendations, to make it absolutely clear that we are determined to take a very tough line on any maladministration or corruption in local government. In case Opposition Front Benchers are unaware of it, the Government are proposing that serious allegations of misconduct should be considered by a new national standards commission for Scotland, led by a Scottish standards commissioner. In his reply, the hon. Member for Woodspring should at least tell the House the Opposition's thoughts on that proposal, which seems to be the correct way of proceeding on a very important matter.

Desmond Swayne (Conservative, New Forest West)

I should like to remind the hon. Member for Edinburgh, North and Leith (Mr. Chisholm) that we are debating the Scotland Bill, and that—although it is all very well for the Government to have proposals and to be considering them—we are considering mechanisms that may be included in the Bill. Therefore—in the absence in the Bill of the Government's proposals, which the hon. Gentleman described—it is perfectly proper for hon. Members to attempt to include such necessary provisions in the Bill. I differ from the hon. Member for Linlithgow (Mr. Dalyell) in his analysis of this debate, as I believe that the matters with which we have been dealing are particularly important. My analysis differs very significantly from those of the hon. Members for Banff and Buchan (Mr. Salmond), for Greenock and Inverclyde (Dr. Godman) and for Edinburgh, West (Mr. Gorrie), all of whom seemed to take the position that we should not find remedies to problems which clearly must be dealt with—Conservative Members have tabled new clause 2 to do so—but tackle what they regard as the fundamental institutional problem giving rise to the phenomenon of corruption that we have identified. The hon. Gentlemen think that if we work on the democratic and institutional structures, the problems will go away. As a solution, they have offered us a form of proportional representation, several forms of which they have discussed. Proportional representation would make the problem worse. It is highly likely that proportional representation will lead to semi-permanent coalitions that will entrench administrations—just as administrations have become entrenched in certain parts of the central belt.

Tam Dalyell (Labour, Linlithgow)

I had better speak on this for myself and not for my colleagues. If people are going to level charges of corruption at other men and women, the place to do it is a court of law. It is either put up—in a court of law—or shut up.

Desmond Swayne (Conservative, New Forest West)

I beg to differ with the hon. Gentleman. The fact is that the perception among newspapers and the public has been of a number of cases of what, in the previous Parliament, Labour Members themselves characterised as "sleaze". It is entirely proper for hon. Members—when considering a Bill that will hand to the Scottish Parliament responsibility for local government—to consider procedures to deal with that phenomenon. Such consideration prejudges nothing about cases that have been mentioned, and I have made absolutely no accusations about any specific council. However, it is entirely proper that the public mind should be put at rest by passing a provision, such as new clause 2, to deal with the matter.

Alex Salmond (Scottish National Party, Banff and Buchan)

What was the public perception of this place in the previous Parliament?

Desmond Swayne (Conservative, New Forest West)

My suspicion—which was confirmed by my own knocking on doors—is that the public's perception of the reputation of this place remains considerably higher than their perception of the reputation of individual hon. Members. Many hon. Members would therefore do well to improve our conduct, so that we live up to the standard of the institution in which we take part. It is entirely proper for us to consider new clause 2, which is designed to include in the Bill a mechanism to investigate the allegations that have been drawn to our attention. The new clause would provide the Scottish Parliament with a powerful investigatory mechanism.

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

I feel as though I have to express my own thoughts—also, I suspect, the thoughts of many other hon. Members—in having to deal with a succession of totally specious and spurious amendments and new clauses, which have been tabled only to give the official Opposition an opportunity to score some political points. The amendments and new clauses—especially new clause 2—will add nothing to the Parliament's powers, but will merely give it yet another instruction, which is so patronising. Although we want to give a Parliament to the Scottish people, we seem to feel that we have to tell them what they must do with that Parliament. We are saying, "Using these powers, you will do such-and-such; using those powers, you will do something else." The Conservative party is very fond of criticising the Government for running a nanny state and for constantly telling the public what to do. However, Conservative Members want the Westminster Parliament to be a nanny Parliament, always telling the Scottish Parliament what to do. The Scottish people will not stand for it.

Henry McLeish (Labour, Central Fife)

I agree with almost every hon. Member speaking in this debate on one point: we should take the issue seriously. I hope that there is no serious dispute between hon. Members, first, about the need for the highest standards of conduct at any level of government; secondly, on the matter of effective and efficient scrutiny; and, thirdly—I agree with the hon. Member for Banff and Buchan (Mr. Salmond)—that we want open and transparent structures in both the Parliament and local government. The culture will have to change, and such structures will be the best way of ensuring that it does. I hope that hon. Members agree also that, in any forum, the best method of discipline is self-discipline. Those who participate in democratic life should always be aware of circumstances and of their obligations, not only to one another, but to the communities that they represent. The new clause adds nothing to the quality of what the Parliament will be able to do. It is narrow and unnecessary. The Bill places a duty on the Parliament to make provision for the investigation of relevant complaints of maladministration made to its Members. It does not place a duty on the Parliament to investigate complaints about maladministration or corruption in local government—but that does not preclude the Parliament from making provision about such matters. It is important to stress that we have in Scotland the Accounts Commission, which will investigate complaints of financial impropriety, and the Commissioner for Local Administration in Scotland, who will investigate complaints of maladministration. Criminal corruption will continue to be a matter for the police. The powers and duties of the Secretary of State in relation to the commissioner and the Accounts Commission will transfer to the Scottish Executive. By tabling new clause 2, the Conservatives are trying to impose a duty on the Scottish Parliament to make provision for the investigation of complaints of corruption or maladministration in a Scottish local authority. The Government do not think that that is necessary. Provision is already made for the investigation of complaints by the Accounts Commission or the local government ombudsman, depending on the nature of the complaint. In addition, the Government have just published proposals to strengthen further the ethical framework for local government, which has been alluded to in the debate. The new clause would have the perverse effect of requiring investigation only of the very limited subset of complaints about financial impropriety, which, in England and Wales, falls within the remit of the Audit Commission. I hope that it comes as no surprise to Opposition Front Benchers that the Audit Commission does not operate in Scotland.

Liam Fox (Conservative, Woodspring)

indicated assent.

Henry McLeish (Labour, Central Fife)

The hon. Gentleman has confirmed that the Opposition know that. It is therefore interesting that their new clause makes no reference to the Accounts Commission and refers only to the Audit Commission, which is germane only to England and Wales.

Liam Fox (Conservative, Woodspring)

Obviously, the Minister did not either listen to my remarks or read the new clause, which states that a complaint is relevant if it is a complaint which, if it were made of a local authority in England or Wales, could be investigated by the Audit Commission. It clearly draws a distinction between England and Wales and Scotland.

Henry McLeish (Labour, Central Fife)

I rest my case. It is obvious that a new clause or an amendment to the Government of Wales Bill may have to be changed for the Scotland Bill. I think that hon. Members will agree that the issue of local government conduct stretches more widely than the narrow remit of the Audit Commission.

Alex Salmond (Scottish National Party, Banff and Buchan)

I think that I heard the Minister make a very serious allegation. Is he saying that the Conservative party is so short of people and researchers that it is economising by tabling the same amendment to different Bills? That surely cannot be so.

Henry McLeish (Labour, Central Fife)

I will not entertain the hon. Gentleman on this issue any further. I shall just leave a little thought in hon. Members' minds. The Government are very serious about ensuring that there is a robust ethical framework for local government conduct. Following the Nolan committee's report on local government conduct in July 1997, we have been giving a great deal of thought to how to secure the highest standards of conduct in local government. We have published proposals that go much further even than Lord Nolan's committee recommended in ensuring swift and authoritative independent investigation of allegations of misconduct against councillors. We believe that a stronger ethical framework for local government is needed if the instances where local government conduct appears to fall short are not to undermine people's confidence in local democracy. Once we have consulted on our proposals, we intend to look for an opportunity to legislate to bring into effect a new ethical framework. In the meantime, we do not see a need for the specific measure proposed by Conservative Front Benchers. Nor do we believe that we should legislate piecemeal for the creation of a new ethical framework for local government. We think that the Bill gives the Parliament the desired flexibility to make arrangements for the investigation of complaints against other bodies. In view of that, I urge the hon. Member for Woodspring (Dr. Fox) to withdraw the motion.

Liam Fox (Conservative, Woodspring)

The entire point of considering the Bill is to delineate the responsibilities that the Scottish Parliament should and should not have. It is therefore quite legitimate for us to circumscribe its investigative powers in any one area. I therefore disagree with the hon. Member for Galloway and Upper Nithsdale (Mr. Morgan). I am not entirely clear about the Government's objection to the new clause. The Minister began by saying that many of the powers of investigation into local government maladministration are sufficient, but then said that the Government had to introduce a new ethical code and new powers. I cannot see why, if the Government plan to go much further, they will not accept the new clause. The perception among voters in Scotland will be that the matter concerns the development of a cosy relationship and a lack of scrutiny. Those who read the Scottish press and follow local government events in Scotland will know that there is a great deal of disquiet among the public. Although some of it may not be correct, it deserves to be taken seriously—I agree with the Minister on that. I must disagree with the Minister that the provision is unnecessary and that it is not legitimate for the House to try to impose a responsibility on the Scottish Parliament to take the issue seriously at the soonest point. We should remember that the Secretary of State has told us that the Parliament should be up and running six months sooner than we expected—long before the Government's White Paper proposals are enshrined in legislation, even if they can cram them into their legislative programme at the earliest opportunity, which is likely to be three years down the road. For that reason, I have no intention of withdrawing the motion. We shall press it to a Division.

CONCORDATS

Michael Ancram (Conservative, Devizes)

I beg to move, That the clause be read a Second time. This is not the first time we have addressed this issue. We had a lengthy general debate on concordats on 31 March, and I do not intend to rehearse all the arguments made then. The new clause—which I hope to introduce briefly—has been tabled in all seriousness, in an attempt to meet some of the points made during that debate. As the House knows, my concern about concordats is that they are designed, either intentionally or unintentionally, to avoid the legislative process. Like executive agreements in America, they are designed to avoid scrutiny; the scrutiny of this House. It is evident from the paper on concordats—which the Government most helpfully put in the Library—that they will not come before this House. They will be made public; there is no question of their being confidential unless there are reasons for confidentiality. However, they are informal agreements which will not be legally enforceable, and they will not be subject to the scrutiny of this House or of the Scottish Parliament. I mention the Scottish Parliament because, when I made the point during the last debate—[Interruption.]

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

Order. The hon. Member for Glasgow, Kelvin (Mr. Galloway) is standing and holding a conversation. He and others must listen to the debate.

Michael Ancram (Conservative, Devizes)

I realise that I do not come from the middle east, Mr. Deputy Speaker, but I hope that the hon. Member for Glasgow, Kelvin (Mr. Galloway) will listen to the case that I am making. I was accused of skewing the earlier debate on concordats when I said that concordats should come before this House and this Parliament. I was asked why they should not come before the Scottish Parliament. That was a valid point. It was also said that many of the concordats would relate to relatively unimportant issues, such as organisational matters concerning the relationships between Departments. However, the concordats will be of great importance in a number of areas, most obviously in the representation of Scotland at the Council of Ministers—indeed, although we are debating concordats in relation to the Scotland Bill, the same case could be made in relation to the devolution proposals for Wales. When we debated the White Paper assurance that Ministers from the Scottish Executive could represent the interests of Scotland and the United Kingdom in the Council of Ministers, we were told that that would be organised by concordat—it did not need to be specified in the Bill. Indeed, I was given to understand that some of the concordats were being drafted—although obviously they cannot become effective until the Scottish Parliament and Executive are established. I questioned the wisdom of leaving a matter as crucial as Scotland's voice in Europe to informal arrangements, especially as the concordats will not be legally enforceable and as, according to the paper that was placed in the Library, they will usually be signed by officials. 5.30 pm On Europe, and on resource and taxation matters covered by parts III and IV, agreements that are reached by what in law we might call back-letters but what in the Bill are called concordats—they are not specified, but are in the background—should be scrutinised by both the Westminster and Scottish Parliaments. Both Parliaments will have a strong interest in such matters, so I see no reason why they should not be able to scrutinise and approve the concordats—unless, that is, the UK and Scottish Administrations do not want them to be able to do so. I make no major point about this, but I have been concerned throughout our deliberations at the fact that many of the agreements will be signed by officials, not by Ministers. The affairs of the past few days have suggested that it is always better for Ministers to be aware of what their officials are discussing and agreeing. It is important that Ministers are involved in issues of such grave importance as the resourcing of Scotland after devolution, and Scotland's voice at the Council of Ministers. The new clause would ensure that any concordats relating to devolved matters that are raised at the Council of Ministers—or to matters that are raised under parts III of IV of the Bill—would not come into effect until the Scottish Parliament and the House of Commons had approved them, and that they would have to be signed by a member of the Scottish Executive and a Minister of the Crown. I tabled the proposal with some anticipation and optimism. When I moved an equivalent but much more broadly based amendment, the Liberal Democrats made it clear that they would have found it acceptable—in relation to Wales, at least—if I had also specified the Welsh assembly, and I think that I was told the same in relation to the Scottish Parliament. I have genuinely tried to make the new clause constructive and important.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

The right hon. Gentleman may be about to clarify this, but I want to ensure that I fully understand what he is saying. The list of consultation arrangements that could be defined as concordats under subsection (2) seems to cover more than matters discussed at the Council of Ministers or Treasury and tax-varying powers. Would the new clause apply to all concordats, or only to those relating to the Council of Ministers and taxation?

Michael Ancram (Conservative, Devizes)

The latter. Subsection (2) simply defines what the concordats would need to contain to trigger the provision. The same interest would not apply for issues raised before the Council of Ministers that did not relate to devolved matters. I have tried to ensure that the new clause would actively work in the interests not only of Scotland but of the Scottish Parliament and the House of Commons. It would ensure that no major decisions were taken without being scrutinised by those who were elected to scrutinise them.

Tam Dalyell (Labour, Linlithgow)

Given the scarcity of time, may I put my contribution in the form of five questions? First, how will the concordats be enforced? Secondly, will they be justiciable in courts? Thirdly, how will they be litigated on—indeed, will it be possible to litigate on them? Fourthly, how will concordats on matters such as investment problems, which are only too real—these questions are not hypothetical—be sorted out? Fifthly, will not the whole process depend on amiability and amicability? One would like to assume that there will be amiability and amicability, but, alas, that is not always the case. Finally, I should like—before you bong me out of order, Mr. Deputy Speaker—to express regret that new clause 4, which deals with expenditure on reserved matters, was not discussed.

John Swinney (Scottish National Party, North Tayside)

I find myself in the altogether surprising position of having some sympathy with the new clause—no doubt the right hon. Member for Devizes (Mr. Ancram) will be equally surprised. Throughout consideration of the Bill, Scottish National party Members have expressed unease about concordats. In being asked to endorse the Bill, we are being asked to take at face value other documents—no one seems to be sure of their status—but are being offered no process through which to scrutinise them. I have seen drafts of concordats on inward investment and on agriculture and fisheries matters—such concordats are being developed in the corridors of power. Following our previous discussions about concordats, I tabled a number of parliamentary questions to various Departments. I discovered that the Foreign and Commonwealth Office, the Ministry of Defence, the Ministry of Agriculture, Fisheries and Food, the Department for Education and Employment, the Department of the Environment, Transport and the Regions and the Department of Trade and Industry have all discussed the need for concordats on matters that they would deal with in relation to Westminster and the Scottish Parliament. We have seen what purport to be draft copies of the concordats on inward investment and on agriculture, but what status will documents from any of the other Departments have? The memo on the agriculture concordat states: From the MAFF perspective, the concordat is a chance to emphasise their lead UK role and to keep tabs on action by the Scottish Executive. From our perspective"— that is, the perspective of the Scottish Office— it is a chance to keep open the access to the European policy process and to decisions which have to be made at UK level while limiting MAFF interference in Scottish Executive business. That memo, from a civil servant to a Minister, strikes at the nub of the question of how influential the Scottish Parliament will be in European deliberations. How far will Scottish Parliament lobbying and intervention on agriculture—which is fundamental to my constituency—be compromised by the constraints applied by the concordats? We are being asked to approve certain arrangements in relation to Scottish representation in Europe that I do not find especially satisfactory and against which my hon. Friend the Member for Moray (Mrs. Ewing) has argued, and now some doubts are being introduced about those arrangements and the nature of the concordats.

Michael Ancram (Conservative, Devizes)

The hon. Gentleman was talking about the constraints of the concordats. What worries me about the concordats is that there are no constraints, in that they are not enforceable. Important rights between the Parliaments could be agreed by a concordat that turned out not to be worth the paper it was written on. That is why I want them to come before the House and the Scottish Parliament for approval.

John Swinney (Scottish National Party, North Tayside)

I may say something of more comfort to the right hon. Gentleman later on about the status of the documents and the process of enforceability. I seek specific assurances on when the concordats are to come into force and what their status will be. A memo to Ministers from a Scottish Office civil servant on the timing of implementation says: it is clear that concordats will not come fully into operation until the devolved administration is up and running. However, we"— presumably, the Scottish Office and the Ministry of Agriculture, Fisheries and Food— see considerable advantage in getting the groundwork established well before then and, indeed, operating a period of shadow-running … We are therefore aiming with MAFF to get the concordat in more or less final form in order to allow a decent period of shadow-running. I find that rather bewildering. Here we are, 12 months before the elections to the Scottish Parliament—we have absolutely no idea who will form its Administration—and issues about the development of the concordat are running apace. The memo contradicts parliamentary answers that I have received, which I find disturbing. The Secretary of State for Defence replied to a written answer: In most cases, these discussions are in their early stages in the light of the fact that such agreements cannot be finalised until the Scottish Parliament and the Scottish Executive are established. Parliament will be kept informed of progress on these matters."— [Official Report, 28 January 1998; Vol. 305, c. 245–46.] A civil servant argues that we can have shadow running with an imaginary Administration, because there is so much doubt about who will be in the driving seat, but Ministers say that the concordats will have no status until the Scottish Executive has signed up to them. Can we be confident that the powers to be granted to the Scottish Parliament and Executive will in no way be eroded by a Whitehall fix that gets the concordats in place at an early stage? Will there be shadow running, or can we have a guarantee that the development of the concordats will be left until the Scottish Parliament and Executive are up and running? I cannot imagine a Scottish Executive wanting to find that the boys from Whitehall have stitched up most of the details and left it with a fait accompli. That would be an appalling start to the Scottish Parliament's work. Some clarification is essential. New clause 12 gives us some structure for the scrutiny of the concordats and would oblige both parties—the Scottish Parliament and the House of Commons—to sign up to any concordat. We accept that there must be partnership consent, but it is absolutely unacceptable that, before the Scottish Executive is fully operational and able to make recommendations, it should be presented with a fait accompli.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

Some form of concordat is undoubtedly necessary to ensure that there is smooth running and a good working relationship between Whitehall and the Scottish Parliament. The new clause highlights ways in which some aspects of the concordats could be more thoroughly rooted, rather than being mere gentlemen's and gentleladies' agreements. The new clause picks up on amendments tabled in Committee that did not find favour with the Government. The House will recall that we tabled amendments that would have formalised what the block grant should be, and anything that gives us a chance to debate the financial arrangements is probably better than the vagueness in the Bill. 5.45 pm We were disappointed that the Government did not accept an amendment that would have given the Scottish Parliament rights to representation at discussions in the various European institutions and left the matter on the basis of good will. In so far as the new clause is designed to formalise such an arrangement, it is to be welcomed. Will the right hon. Member for Devizes (Mr. Ancram) confirm that the new clause refers to general procedures and would not require the House and the Scottish Parliament to rush through a debate to give a stamp of approval every time there was to be a delegation to the Council of Ministers?

Michael Ancram (Conservative, Devizes)

The new clause refers to Any concordat relating to … the procedures to be followed when issues relating to devolved matters are raised at the Council of Ministers as well as concordats relating to the implementation of the provisions of Parts 3 and 4". That covers the economic provisions, and it is not so much procedure as implementation that is important.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

The right hon. Gentleman confirms that the procedures would not impose a cumbersome duty, and that is welcome.

Norman Godman (Labour, Greenock and Inverclyde)

The hon. and learned Gentleman will recall that the hon. Member for North Tayside (Mr. Swinney) warned against Members of the Scottish Parliament being stitched up by Whitehall, but is not there a danger of their being stitched up by Westminster? Surely it would be better for concordats to be agreed by representatives of the Government and of the Scottish Parliament.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

It is intended that both institutions should have an opportunity—Whitehall through the House, and the Scottish Executive through the Scottish Parliament—to give consent. I take some comfort from the guidance note that states: Concordats cannot come into operation until the devolved administrations are operational. Drafts of concordats cannot be put forward for signature until after the Elections in 1999; and agreements reached now cannot be imposed on the devolved administrations. That is an important point of principle, subject to the one caveat that, as we all know, he or she who pens the first draft usually manages to influence the way in which matters develop. It will be incumbent on the Scottish Executive, whatever its complexion, to be strong-minded and examine all the concordats critically. I am sure that the vast majority will be acceptable, but I hope that the Executive and, ultimately, the Parliament, will have the will to insist on changes if it is felt that the best interests of Scotland are being compromised through an agreement that has already been struck.

Dominic Grieve (Conservative, Beaconsfield)

I am delighted to find myself agreeing, on this occasion, with the hon. Member for North Tayside (Mr. Swinney). We have had much discussion about concordats during our debates on the Bill. Let me pick up what was said by the hon. Member for Linlithgow (Mr. Dalyell). I am sure that the Minister will accept that concordats came into being to regulate disputes and areas of possible conflict between Departments subject to single Cabinet responsibility. Officials could reach agreements, and the Ministers in charge of them could either carry the can, or smooth out disagreements at the appropriate level. That has not always worked. I remember being involved in a case in which it was clear that the Ministry of Agriculture, Fisheries and Food in England and its Scottish Office equivalent were at loggerheads. A Scottish trawler man was prosecuted in Grimsby, and it was advanced in his defence that he had been told that something authorised by the Department in Scotland had not been authorised by London. He was given an absolute discharge, having, as I recollect, proved his case. In that instance, a concordat had not operated successfully. I am sure that the Minister will agree that concordats will be applied to a completely new situation and set of rules. We are, however, in an extraordinary position. The Government have introduced legislation which, on the one hand, emphasises such things as the sovereignty of the Scottish Parliament in the areas devolved to it, and, on the other hand, when it comes down to the nitty gritty of concordats, appears blithely to assume that everything will go on as before. It is clear that it cannot. The hon. Member for North Tayside was right to say that, when the Scottish Parliament is up and running, nothing could be better calculated to sour the relationship between it and this Parliament—which we, as Conservatives, want to operate as smoothly as possible—than concordats that appear to be behind-the-door stitch-ups by a common civil service. I have grave doubts about whether the common civil service can survive the passage of the Bill, but the underlying assumption about the operation of the concordats is that it will. I welcome new clause 12, and hope that the Government will consider it seriously. Here, for once, is a point on which all Opposition parties appear to be united. There is considerable merit and force in the new clause. Unless the operation of the agreements is seen to be transparent—and that can happen only if they are brought before the Scottish Parliament and the House for approval—there will be a fertile area for conspiracy theorists. I must say that, in some contexts, I am beginning to think that the conspiracy theorists may have a point. The Achilles' heel of the Government's proposals is the idea—which may have been born of the notion that the same party would be in power in both Edinburgh and Westminster—that day-to-day government could be smoothly conducted through back-door agreements. That simply will not be possible, and we shall therefore have to live with the consequences of devolution. Agreements must be transparent, negotiated and argued about, and the best way in which to do that is to submit them for approval by both Houses. I welcome the new clause, and commend it to the House. I believe that it will have to be considerably widened, as there is no room for concordats in a framework of devolved government—all decisions will have to be made and approved by both Houses—but, leaving that to one side, the new clause is a step in the right direction, and is the only step that we can take, given that our previous criticisms have been rejected.

Henry McLeish (Labour, Central Fife)

The proposals for the concordats appeared at paragraph 4.13 of the White Paper. We are talking about a good communications system between the Scottish Executive and its Departments and the United Kingdom Government. We want mutual understanding, and an appropriate exchange of information. We want advance notification, and joint working. That is simply about agreements. There is nothing sensational about having an agreement between the Parliaments on serious issues. Against that background—unfortunately, given the spirit in which the new clause was tabled—we must reject new clause 12. The new clause develops the theme introduced in Committee by the right hon. Member for Devizes (Mr. Ancram), who wanted all concordats to be approved by both Houses of Parliament, and to be logged in a public register. Now he wants certain concordats—relating to Europe and finance—to be approved by the Scottish Parliament and the House of Commons. I can see that that represents a more balanced approach, but we cannot agree to the new clause. As I explained in Committee, the purpose of the proposed concordats is not to cover matters that should more properly be dealt with by legislation. There is no hidden agenda. We have published guidance for Departments explaining what concordats are intended to achieve, which is the promotion of effective communications, and joint working between the Scottish Executive and UK Departments. Among other things, the guidance makes it clear that the proposed concordats cannot come into force—and this touches on the point made by the hon. Member for North Tayside (Mr. Swinney)—until the Scottish Executive has been established, and is in a position to agree to them. It is right that work on drafting such agreements should begin during the run-up to devolution, but there is no question of the Scottish Executive's being presented with a fait accompli. Guidance also makes it clear that the concordats are not intended to be legally binding, or to create legal duties or liabilities for either party. I can give a categorical assurance that there will be no Whitehall fix. The concordats will not come into operation until the Scottish Executive and, of course, the UK Government have approved them.

Tam Dalyell (Labour, Linlithgow)

What bothers us is what will happen if there is no such understanding. Assuredly, sooner or later, there will be none, because there will be arguments about money. There will be tremendous pressure on the Scottish Executive and the Members of the Holyrood Parliament to secure more money for projects for education, health and housing, and for everything else that has been promised. I fear that talk about mutual understanding, which I agree is highly desirable, is whistling in the wind.

Henry McLeish (Labour, Central Fife)

With great respect to my hon. Friend, I share neither his pessimism nor his cynicism about what may happen when the Parliament is established. These are working agreements, and there is nothing sensational about that. We want to ensure that, in creating a new institution of government in Scotland, we have a sensible working relationship between the UK Government and the Scottish Executive. Nothing could be more reasonable than the achievement of that, and our efforts must clearly be directed towards it.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

The Minister has indicated that the concordats would not be legally binding. How would he answer the earlier point made by the hon. Member for Linlithgow (Mr. Dalyell) about whether they would be judicially reviewable—not in a case taken by the Parliament, but perhaps in a case taken by an individual who felt prejudiced by, for example, a concordat on inward investment?

Henry McLeish (Labour, Central Fife)

The hon. and learned Gentleman asks a good question. The concordats are not intended to be legally binding contracts, or to substitute for matters properly covered by the Bill. However, it is likely that they will be justiciable to an extent. For example, if the Scottish Executive did not follow the consultation procedure set out in a concordat, it could be judicially challenged on the ground that the concordat had created a legitimate expectation that the procedure would be followed.

John Swinney (Scottish National Party, North Tayside)

I have listened carefully to the Minister's explanation, which has led me to conclude that there is no point in the concordats. The quotation that I gave earlier cast some uncertainty over the Scottish Parliament's access to Europe, and raised the determination of the Ministry of Agriculture, Fisheries and Food to have greater access. Those substantial issues are covered in the Bill. The concordats will, I suspect, provide a further interpretation, which gives a totally different flavour to the Minister's comments.

Henry McLeish (Labour, Central Fife)

It simply does not. We are talking not about different interpretations but about working agreements in relation to Europe and MAFF. There should be no sinister undertones suggesting that what is in the Bill and what has been discussed in the House will be undermined, distorted or interpreted differently. The concordats are simply working agreements, and. on that basis, it is sensible to operate them in the areas that we have identified. The new clause would introduce a formal parliamentary procedure in relation to concordats that such non-statutory agreements do not merit. Concordats will be agreements covering joint working between the Scottish Executive and the United Kingdom Government. They will not be treaties between the two Administrations, nor will they be a means of constraining the discretion of the United Kingdom or the Scottish Parliament. I hope that, in the light of this constructive but brief debate, the right hon. Member for Devizes (Mr. Ancram) will see fit to withdraw the motion.

Michael Ancram (Conservative, Devizes)

I am disappointed by that reply, which does not come to the nub of the matter. I did not table new clause 12 because I thought that it was the ideal way to deal with the matter: on finance and European representation, I sought, as did Liberal Democrat Members, to table amendments to the Bill to secure assurances and guarantees on those two important matters. The Minister told us then that, however important those matters were, everything would be all right because they would be dealt with by concordat: he did not say that we were talking about simple working arrangements sorting out sensible relationships between Departments. On enormously important issues, such as whether Scotland will have a proper voice in Europe on agriculture or fishing, we were told, "Don't worry, it's all going to be in concordats." Now we are told that the concordats are non-justiciable—

Henry McLeish (Labour, Central Fife)

indicated dissent.

Michael Ancram (Conservative, Devizes)

Well, they are not legally enforceable. They will not come before this House or the Scottish Parliament, whose endorsement would give them weight. The Scottish public are being firmly and openly sold a pup. I tabled new clause 12 in good faith, having listened to the arguments that were advanced against my earlier amendments. I advanced it on a restricted basis—not to cover all concordats, as the Minister suggested at the end of his remarks—narrowing it to those two crucial areas. The Minister always claims to be a listening Minister and I should have thought that he would listen to the arguments advanced not only by me but by Members from other Opposition parties and accept new clause 12. His response is totally unsatisfactory and I ask my hon. Friends to support the new clause in the Lobby.

CROSS—BORDER RESERVED BODIES

Roseanna Cunningham (Scottish National Party, Perth)

I beg to move, That the clause be read a Second time.

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

With this, it will be convenient to discuss Government amendments Nos. 41 to 45, 152 to 158, 160 to 180, 202, 233, 249, 206, 214 and 220.

Roseanna Cunningham (Scottish National Party, Perth)

I am conscious that there is little time for the debate on the new clause, so I shall try to be as brief as possible. New clause 17 is an attempt to get around the vexed question of accountability of bodies that deal in reserved matters, but are nevertheless of fundamental importance to Scotland. Effectively, we are proposing a new category of cross-border reserved bodies, which would exist alongside cross-border public bodies as defined in the Bill. The new category would comprise public bodies, including regulatory bodies, whose responsibilities include reserved matters, but whose remit covers Scotland; we have listed them in the new clause. The Government amendments make two fundamental changes to the cross-border public bodies by changing the definition and widening the category to include Government Departments and officials already included in new clause 17. Rather than specify and modify the bodies by subordinate legislation, the Government now plan to achieve that by Order in Council. In practical terms, it may make no difference, but I hope that that will not be a mechanism whereby the relevant Westminster Departments can hide behind the Queen's authority—something I am known for being unhappy about. 6.15 pm Our new clause would give the Scottish Parliament the power to summon witnesses and require evidence, rather than being able only to invite them. The underlying principles are fourfold. First, the new clause is about openness and accountability. We may not be permitted to legislate for bodies such as the BBC or the Post Office, but it is essential that we can scrutinise them and call them to account in matters that directly affect Scotland. In recent weeks, we have witnessed an example in the shape of the United Kingdom Atomic Energy Authority and the catalogue of errors at Dounreay. Would a Scottish Parliament have had the power to summon Roy Nelson to give evidence? As I read the Bill—the Minister may wish to comment—we might have been able to summon Mr. Nelson to answer questions in respect of environmental issues, which would cover the underestimation of radioactive emissions, but we could not have called him to answer questions about the security issues arising from Chief Constable Tony Pointer's resignation, or about industrial issues, such as the plans for the use or disposal of the Georgian waste. I can only imagine the rancour that would result. Frequently throughout our debates on the Scottish Parliament, hon. Members on both sides have stated that it is important for us to minimise the likelihood of such rancour, but if we do not build in a system such as is proposed in new clause 17, there will be a greater likelihood of such clashes occurring. The other example, which I have used earlier in our proceedings on the Bill, is that of the "Panorama" interview of John Major broadcast during the 1995 Scottish elections. As far as I can see, John Birt would not have been required to answer to the Scottish Parliament. The Minister may argue that Mr. Birt might have agreed to come and speak to us, but there would have been nothing a Scottish Parliament could do had he refused to do so. Such issues are bound to arise and, sooner or later, we shall have a great deal of angry debate and frustration being expressed because of the Parliament's inability to call to account people or bodies that have an important role to play in Scottish life. The Scottish Parliament has been billed as a Parliament with teeth, but so far, they look more like milk teeth than real teeth and we ought to try to beef them up a bit where possible. That is the second major principle underlying the new clause. Thirdly, there is the issue of pulling rank, in that the Bill appears to put people like John Birt above the reach of the Scottish Parliament. I fear that that will lead to a belittling of the Parliament from the outset and give rise to many of the grievances and arguments that everybody has said they do not want. Finally—I make this point in all sincerity—this Bill is about devolution, not independence. What I am proposing would not be appropriate if we were discussing a constitution for independence, but we are discussing devolution, and it ought to be perfectly possible and logical to set up procedures such as those outlined in new clause 17. There need be no problem with those procedures and I hope that the Government intend seriously to consider them.

Oliver Heald (Conservative, North East Hertfordshire)

The arguments that have been deployed reveal some of the problems that are bound to result from the illogical way in which the reserved powers are set out in the Bill. If equal opportunities law is separated from equal opportunities policy, policy on misuse of drugs is separated from policy on crime in general, or issues such as abortion and euthanasia—which obviously have much in common—are separated, there will be areas of dispute. I remember that in our earlier debates, the official Opposition and the Scottish National party argued that there was no logic in broadcasting not being a matter that could be dealt with by the Scottish Parliament. There were also arguments about who could be summoned by the Scottish Parliament. The SNP argued for a wider group of bodies than those that deal simply with devolved matters. The debate on new clause 17 harks back to the two themes of the reserved powers and their illogicality, and the problem of who can be held accountable to the Scottish Parliament. The solution in the new clause—whereby certain public bodies are designated cross-border reserved bodies—simply to allow witnesses to be summoned and asked to produce documents for the Scottish Parliament is a good wheeze. I congratulate the Scottish National party on its ingenuity. However, the Opposition do not accept the new clause because it is too wide and would cause difficulties. It is for the Government to explain how the Bill can be a source of settled law for the people of Scotland when there are already so many internal disputes. The fuzzy boundary between the powers is bound to be exploited by the Scottish National party, and it is time that the Government came up with a better solution. The Government amendments rename cross-border public bodies as authorities and widen that term by including non-statutory bodies, offices, office holders and Government Departments. They provide for subordinate legislation under clauses 84 and 85 to be introduced by Order in Council. They contrast those authorities with the Scottish public authorities, which are local authorities, and define Scottish public authorities in clause 111. Three questions arise from the Government amendments. First, the extension of the definition of cross-border public bodies to include non-statutory bodies, office holders, Government Departments and so on clearly aims to include certain authorities that were not previously included. Who are the main contenders to be included in the new category, and why? Secondly, the Minister has provided that the subordinate legislation under clauses 84 and 85 should be made by Order in Council, with procedure here and in Edinburgh. Can he reassure the House that that will be dealt with by affirmative procedure and, if not, will he explain why not? Clearly, such legislation is important because it would modify a range of laws. Thirdly, a Scottish Parliament will be able to legislate in respect of a Scottish public authority such as a council, which has a mixture of reserved and non-reserved functions. For example, management of housing benefit would be reserved, but is dealt with by local authorities in Scotland. What will be the restrictions on the Parliament's ability to legislate? Will it be able to interfere with the operation of the reserved functions? For example, what safeguards are there against a change being made by the Parliament that would have adverse side-effects on the administration of housing benefit? Is there any way in which such a law could be prevented? Should it be prevented? What is the Minister's view on that issue? Clause 33 contains a mechanism, which is known as the governor general clause, by which the Secretary of State can intervene, but that would not be consistent with the position that I have described. I look forward to the Minister's answers.

Tam Dalyell (Labour, Linlithgow)

The smile on the face of the hon. Member for Moray (Mrs. Ewing) revealed what I had suspected: this is not quite as artless a new clause as has been made out.

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

Perhaps she is happy.

Tam Dalyell (Labour, Linlithgow)

Perhaps she is happy—she has plenty to be happy about in the Bill. I suspect that the new clause could be subtitled "the haul John Birt up to Holyrood and give him a thorough pasting on a rack" clause. From the assent of the hon. Members for Moray and for Perth (Ms Cunningham), I suspect that I am nearer the truth than the House might think. I ask my hon. Friends, is not the new clause and the thought behind it a device to create friction?

Donald Gorrie (Liberal Democrat, Edinburgh West)

I strongly support the new clause in the name of Scottish National party Members. It is an attempt to deal with some of the issues, including broadcasting, equal opportunities and racial equality, on which other hon. Members and I tabled amendments in Committee. I am sorry that the hon. Member for Linlithgow (Mr. Dalyell) seems to have a new doctrine that gloom must pervade all Members of the House at all times. Although we must all make our own judgment, I think that he is mistaken and that the new clause is a genuine attempt to produce a reasonable modus operandi which would reduce friction. For that reason, I am happy to support it. I have read the numerous Government amendments and not seen anything sinister in them, but that may be my fault, and I look forward to the Minister explaining them.

Henry McLeish (Labour, Central Fife)

The hon. Member for Edinburgh, West (Mr. Gorrie) has made an excellent judgment on the Government amendments, and I am sure that it will hold for the last few minutes of the debate. I shall deal specifically with new clause 17 in the name of the hon. Member for Perth (Ms Cunningham). We have reserved bodies, devolved bodies and cross-border public bodies. The new clause would create a new category of cross-border reserved bodies. The Government's policy on the power of the Scottish Parliament to summon witnesses and documents from bodies operating in Scotland with responsibilities only in reserved areas was clearly set out in the White Paper. We recognise the importance of those bodies in the economic and social life of Scotland. For that reason, the Parliament will be able to invite such bodies to give evidence. I know that that is not acceptable to the Scottish nationalists. Rightly, bodies that are active in devolved areas could be held to account by the Scottish Parliament for their activities in those areas. However, it would wrong for the Parliament to be able to hold bodies to account for their activities in reserved areas because the direct line of responsibility and accountability lies at Westminster.

Oliver Heald (Conservative, North East Hertfordshire)

If the Scots people are dissatisfied with broadcasting in Scotland, why should they not be able to force the person in charge of it to come before the Parliament?

Henry McLeish (Labour, Central Fife)

We have discussed that matter in some detail previously. We are trying to make a judgment about reserved and devolved areas, and I think that we have arrived at a balanced settlement. In light of my comments—which have been unbelievably brief—I hope that the hon. Lady will withdraw her new clause. In addition, we propose that there should be devolution of functions under clause 59 in some cases. For example, Scottish Ministers will be consulted about the appointment of one member of some bodies, including the Equal Opportunities Commission, the Commission for Racial Equality, the Independent Television Commission—to which the new clause refers—and the Radio Authority. Those bodies will make their annual reports available to Scottish Ministers so that they can present them to the Scottish Parliament. Arrangements will also be made so that Scottish Ministers are consulted about advice to Her Majesty regarding the appointment of the BBC national governor for Scotland. I am afraid that it is difficult to go into much detail in the time available.

Roseanna Cunningham (Scottish National Party, Perth)

Perhaps the Minister will answer one question: what does he think will be the reaction of the Scottish Parliament or Scotland at large when the first refusal to an invitation is received—which is what will happen?

Henry McLeish (Labour, Central Fife)

I live in a realpolitik and I understand the import of the hon. Lady's comments. This settlement is about devolution. It reserves matters to Westminster where the legislative competence will lie and it devolves matters to Scotland where the legislative competence will lie. Through myriad complex organisations, we are attempting to introduce a settlement that will endure and that looks logical not only to Scots and Members of the Scottish Parliament, but to those in England, in Wales and at Westminster. It is a question of balance. That is why I hope that, despite the difficulties, we have arrived at a fair settlement. The Scottish Parliament will be able to discuss reserved matters and make its views known in many areas. I expect that if the Scottish Parliament issues an invitation in a constructive manner, many people will want to respond beyond the issue of the devolved areas where the Parliament will have a statutory right to demand attendance. Because of the brevity of the discussion, I shall write to all hon. Members who have raised points and I shall answer the three questions posed by the official Opposition. I apologise that I have not had time to go into the detail of the Government's amendments, but they are mainly technical amendments which will improve the Bill and do nothing more than that.

Roseanna Cunningham (Scottish National Party, Perth)

I am sorry to hear the Minister's reply, which I think that he will live to regret. I shall not press the matter to a vote this evening, but I think that it will come back to haunt him. I beg to ask leave to withdraw the motion. Motion and clause, by leave, withdrawn.

CONSTITUTIONAL COURT

Alex Salmond (Scottish National Party, Banff and Buchan)

I beg to move, That the clause be read a Second time.

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

With this, it will be convenient to discuss the following amendments: No. 75, in clause 31, page 15, line 29, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 97, in page 15, line 31, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 98, in page 15, leave out lines 37 and 38 and insert— '"Constitutional Court" means the body established under section (Constitutional Court).'. No. 99, in clause 32, page 15, line 41, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 100, in clause 34, page 16, line 45, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 78, in schedule 6, page 79, line 40, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 79, in page 79, line 43, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 81, in page 80, line 3, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 82, in page 80, line 10, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 83, in page 80, line 11, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 101, in page 81, line 5, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 87, in page 81, line 9, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 88, in page 81, line 10, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 90, in page 81, line 40, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 102, in page 82, line 4, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 91, in page 82, line 5, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 93, in page 82, line 10, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 103, in page 82, line 16, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 95, in page 82, line 19, leave out 'Judicial Committee' and insert 'Constitutional Court'. No. 76, in clause 94, page 42, line 17, leave out from beginning to end of line 36. No. 117, in page 42, line 33, at end insert— '(d) provide such resources to the Judicial Committee as Her Majesty considers necessary or expedient.'. No. 122, in schedule 7, page 88, line 1, after 'counsel', insert 'or a solicitor'. No. 123, in page 88, line 7, after 'counsel', insert 'or a solicitor'.

Alex Salmond (Scottish National Party, Banff and Buchan)

That is quite a mouthful, Mr. Deputy Speaker. New clause 18 allows us to debate briefly a matter to which we did not do justice in Committee. I welcome the opportunity to explore that in a little more detail now. We are considering what will happen in the event of a dispute between the Scottish and Westminster Parliaments and resolving what may or may not be vires or extra vires in terms of what the Scottish Parliament wants to do. New clause 18 proposes replacing the Judicial Committee of the Privy Council, which has authority in the Bill as the body that adjudicates on disputes and vires matters for the Parliament, and creating a constitutional court comprising 14 members: six elected by the Scottish Parliament and six elected by Westminster with a Lord Advocate and a Lord Chancellor. The members of the court will be senior judges or advocates of 10 years' standing, solicitors of 15 years' standing or professors of law or legal studies in the United Kingdom of 10 years' standing. According to subsection (4), prospective members do not have to have all four qualifications—just one of the four will suffice. I thank the hon. and learned Member for Orkney and Shetland (Mr. Wallace) for pointing that out to me. I am not sure whether a Bill in respect of that legal advice can be expected or whether the hon. and learned Gentleman is protecting his position in case he wishes to serve on that constitutional court. Whatever the reason, I am grateful to him for drawing it to my attention. We must debate this important matter. We have chosen a model based on the German constitutional court, which has been exported recently to Spain and Mexico. We propose that, like the German model, the court's membership should be widely drawn from legal and academic experts. The key points in this discussion are the deficiencies which I see in the Judicial Committee of the Privy Council. Hon. Members may or may not be aware that the Judicial Committee consists of more than 100 people—only two of whom are women. The average age of members of the Judicial Committee of the Privy Council is 67. Of the judges on the committee, there are more from New Zealand—14—than from Scotland, which has nine. In addition, because of the way in which the committee is formed, there are several obvious political appointees. Eleven committee members are former Tory Ministers from the Governments of Lady Thatcher and the right hon. Member for Huntingdon (Mr. Major). Only four members of the Judicial Committee are current Labour Ministers, and the vast majority of members are from England.

Des Browne (Labour, Kilmarnock and Loudoun)

The hon. Gentleman's analysis of the membership of the Judicial Committee is very interesting, but does he have one jot of evidence to suggest that that has influenced the decisions of that body at any time?

Alex Salmond (Scottish National Party, Banff and Buchan)

The hon. Gentleman is on very dangerous ground. For example, only two out of more than 100 Judicial Committee members are women. We hope to achieve more gender equality in the Scottish Parliament than is evident in this place. It is particularly important to recognise that only two women serve on the Judicial Committee—and the hon. Gentleman would do well to appreciate that fact. It is not good enough to say that it does not matter that there is a huge gender imbalance on the Committee, an imbalance in terms of the nationalities and backgrounds of members, or that the average age of members is 67. In the normal course of events, those aspects would affect members' outlook on the various disputes that they were asked to resolve. Furthermore, I do not think that a committee that is so dramatically unrepresentative of the legal profession—never mind of society as a whole—is best placed to judge important political disputes between the Scottish and Westminster Parliaments. I must be fair to the Minister, who has written to me in some detail about this matter. I shall share with the House some arguments that he has advanced.

Oliver Heald (Conservative, North East Hertfordshire)

I have read new clause 18, which talks about decisions regarding vires and legislative competence. They are not political issues, but issues of law. Is the hon. Gentleman seriously advocating establishing a political court?

Alex Salmond (Scottish National Party, Banff and Buchan)

I have said that the requirements for serving on the court would be judicial office or judicial qualifications. A body that adjudicates on political disputes must be seen to be fair and balanced in terms of its background and the way in which it reflects both sides of the argument. If it is not, many people will believe that the body has predetermined notions about what judgments should be arrived at. If the House will allow me to reveal who the Minister says might hear such matters, we might make some progress in examining possible flaws in the Bill.

Des Browne (Labour, Kilmarnock and Loudoun)

rose—

Alex Salmond (Scottish National Party, Banff and Buchan)

I shall give the hon. Gentleman one more go, and then I must proceed as time is limited.

Des Browne (Labour, Kilmarnock and Loudoun)

I have one more question before we move from the terms of the new clause and the qualifications for membership of the constitutional court. Is the hon. Gentleman suggesting that those who have been registered as solicitors in Scotland for 15 years, and possibly never practised, and those who have been members of the Scottish or English Bars for 10 years, and possibly never practised, will be qualified to sit on the court?

Alex Salmond (Scottish National Party, Banff and Buchan)

Is the hon. Gentleman suggesting that being the Leader of the House, which is one of the qualifications for being a member of the Judicial Committee of the Privy Council, is necessarily a good qualification for membership of that body? Our argument is that some legal qualifications—some background and training in the law—might be a useful requirement. The Judicial Committee of the Privy Council seems to be made up of people who were hangovers from the Governments of Lady Thatcher. I am not certain that that is a suitable panel to move into the new politics that we are trying to develop between the Scottish Parliament and the Westminster Parliament. In his letter to me, the Minister stated: The Judicial Committee of the Privy Council will be composed of those members of the Privy Council, not over 75,"— that is important, as it rules out a substantial number of members of the Judicial Committee— who hold or have held the Office of Lord of Appeal in Ordinary or high judicial office in the UK. This would include past and present judges of the Court of Session who are Privy Councillors. Membership of the JCPC for devolution hearings is therefore more restricted than for other hearings. For example, the present and former Lord Presidents of the Council will not be eligible to sit, nor will Commonwealth judges. Clearly, that does not deal with my points about gender inequality or the background of the judges. The Minister continued: The actual composition of the JCPC to hear devolution cases will be decided by the senior Lord of Appeal in Ordinary. Normally we would expect the case to be heard by 5 Lords of Appeal in Ordinary, although this may not always be possible. It is very unlikely that Scottish judges would not be represented on the panel for devolution cases. That is usually the case for Scottish civil law appeals which are referred to the House of Lords. However, members of the panel will not be chosen to represent national interests. If I can compress what the Minister told me in his letters, that means that, in key cases, Scots judges may not be involved in the decision and, if they are, they will certainly be in a minority. An understanding of Scots law does not seem to be a requirement for deciding the legitimacy of Acts of the Scottish Parliament. That, to me, is unacceptable. Our proposal would, in contrast, produce a more balanced court, which would include a wider range of expertise and understanding of Scots and constitutional law and be democratically appointed by both Parliaments. The composition of any panel of judges would be decided by the court as a whole. It is unlikely that all 14 judges would sit in judgment in any one case. The figure is likely to be five, as in the Government's proposal, but two or three of them would have some familiarity with the Scottish legal system. I am surprised that, as a member of that fine profession, the hon. Member for Kilmarnock and Loudoun (Mr. Browne) does not seem to think that that would be a useful requirement. We are debating the way in which disputes between the two Parliaments can be arbitrated fairly. It is not good enough to pick an existing institution for whatever purpose, however it was formed and whatever elements it contains. The development of the Judicial Committee of the Privy Council has been complex, like Topsy. We should examine the best practice elsewhere in Europe—the German constitutional court is an extremely useful example—and see how that can be transported to meet the requirements of fair arbitration between the Scottish and Westminster Parliaments. If hon. Members are uncomfortable with the notion that the Parliaments should have equal standing in nominating members of the court, that betrays an attitude that regards the Scottish Parliament as subservient and the Westminster Parliament as its master—far better to move to a balanced situation, where both Parliaments enjoy equal and mutual respect in the resolution of disputes.

Des Browne (Labour, Kilmarnock and Loudoun)

rose—

Alex Salmond (Scottish National Party, Banff and Buchan)

I have given way twice to the hon. Gentleman, and I shall not give way again, or his hon. Friends will get crowded out.

Henry McLeish (Labour, Central Fife)

indicated assent.

Alex Salmond (Scottish National Party, Banff and Buchan)

I saw the Minister nodding vigorously when I refused that intervention. This debate, and the attitude towards such a proposal, is a touchstone in determining whether hon. Members regard the Scottish Parliament as a real Parliament, entitled to real respect, or as akin to a subservient council, which this Parliament and its institutions could dispose of as they will.

Oliver Heald (Conservative, North East Hertfordshire)

Perhaps I should declare an interest, as I think that I would be technically qualified to be a member of the court proposed by the hon. Member for Banff and Buchan (Mr. Salmond). Listening to his argument as it unrolled, one felt increasingly uneasy at what he was suggesting. He was proposing a court that was not a court, but a political body, with representatives fighting for each country. Such a body could be influenced by feelings of national pride. One of our proudest boasts about British courts is that they have not been partial. Our judges have been able to consider the law and make decisions uncluttered by concerns about politics, patriotism and so on. It would be a great pity if we set up a kangaroo political court to deal with the issues under discussion. It is in the interests of all the countries in the family of the United Kingdom that we should have the sort of courts that we have enjoyed in Scotland, England and Wales—courts that are impartial and on whose judgment one can rely. As a barrister, I practised in the courts in England and Wales for many years. I often did not like the decisions that judges made, but I never had the slightest doubt that they were doing their duty, concerned to reach a proper decision on the facts and the law.

Alex Salmond (Scottish National Party, Banff and Buchan)

First, is the spokesman for the official Opposition unaware that some members hold office on the Judicial Committee by virtue of political office? Secondly, would he describe the German constitutional court as a kangaroo court, given the system of nomination to it, which is similar to what we propose?

Oliver Heald (Conservative, North East Hertfordshire)

The Lord Chancellor does not sit in court doing a political job; he does the job of a judge. To suggest that members of the court are acting in a political role is so far from the truth that it beggars belief. Many hon. Members want to speak in the debate, so I shall be brief. The Opposition proposed that the House of Lords Appellate Committee should be the arbiter in these matters. That would deal with some of the hon. Gentleman's complaints. For example, there would be fewer members of the panel, there would not be judges from New Zealand, and there would be strong representation of the excellent Scottish judges we have.

Tam Dalyell (Labour, Linlithgow)

What we are discussing is an embryo, if not an actual, proto-constitutional court. If we are embarking on that road, there ought to be a statement at the Dispatch Box from the Prime Minister and no other Minister, because that is entirely new in British politics. The decisions taken by the court would, frankly, be political decisions. Do not tell me that there could be any meaningful argument without it being highly political. To set up a court to take quasi and actual political decisions requires a statement from my right hon. Friend the Prime Minister at the Dispatch Box, outlining the Government's policy on these matters. I have one question to my hon. Friend the Minister. If there is a constitutional court, what is the Government's view of what would be decided by that court? We ought to hear the scope of any such body which, as I said, will be new in British politics. In the short time available, I hope that my hon. Friend will deal with that question.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

There is a case for a constitutional court. In the context of the many constitutional changes that are taking place, the country should have a constitutional court. However, the new clause is not some kind of touchstone, a virility symbol for the Scottish Parliament. A touchstone should be crafted somewhat better than new clause 18. There is not just the technical point of whether one has to qualify under all four headings. For example, the Lord Advocate should not be a member of the court. His role should be to plead before the court, not to be a member of it. There is also no provision for the composition of the court in any given case, and Scottish representation might still not necessarily be achieved. My biggest concern is that the new clause falls foul of the danger—to which the hon. Member for Banff and Buchan (Mr. Salmond) referred—that the system could develop like Topsy. A constitutional court will ultimately be needed because there will be questions of vires between the Welsh assembly and the House, between the Scottish Parliament and the House, and on human rights, freedom of information and Northern Ireland. If we are to go ahead, we should do so properly, not on the basis of just one dimension of the evolving constitutional argument. That was the thinking in the Scottish Constitutional Convention when we considered whether we should opt for a constitutional court or the Judicial Committee of the Privy Council. The view was taken that a constitutional court, while ultimately being the desirable end point, could not be achieved in the context of the Scotland Bill. Therefore, the JCPC was chosen as the best of what was there. Is there any way of ensuring that, in any sitting of the JCPC, there is Scottish representation? It is a question not of justice being done, but of it being seen to be done. Lawyers here will no doubt accept that those who sit on the Judicial Committee will act judicially, but try to explain that if a decision went against the position taken by the Scottish Parliament and the JCPC did not contain a single Scot. It would no doubt be legally right, but try to explain that to a sceptical population who would, no doubt, see some conspiracy there.

Norman Godman (Labour, Greenock and Inverclyde)

On the last question raised by the hon. and learned Member for Orkney and Shetland (Mr. Wallace), I remind him that the composition of the tribunal inquiring into Bloody Sunday has been broadly accepted by the families of the men and youths who were shot on that terrible day. The judge who will chair the tribunal is an English Law Lord and the other two jurists are from elsewhere in the Commonwealth. I think that I was the first in the House to ask the Secretary of State to give sympathetic consideration, with his ministerial colleagues, to the setting up of a constitutional court. New clause 18 states: There shall be a Constitutional Court in the United Kingdom. It goes on to talk exclusively of Scotland and England. I know that I shall be reminded that we are debating the Scotland Bill, but I believe that there will be a massive vote in support of the yes campaign in the referendum in Northern Ireland on 22 May, and the House will shortly afterwards debate a Northern Ireland Bill. What then of the new clause which states: There shall be a Constitutional Court in the United Kingdom."? Would that have to be amended to include judges from the Northern Ireland judiciary? If the clause had referred to a British constitutional court, that might be a different matter.

Alex Salmond (Scottish National Party, Banff and Buchan)

Let me put the hon. Gentleman's mind at rest. If the Minister tells me that he accepts the principle of a constitutional court, I shall be amenable to accelerating the time scale this evening.

Norman Godman (Labour, Greenock and Inverclyde)

I am suggesting that the new clause should be withdrawn until we reach that Northern Ireland legislation concerning the setting up in Northern Ireland of an assembly which I hope will be more akin to the Scottish Parliament than to the Welsh assembly.

Henry McLeish (Labour, Central Fife)

The Government recommend that the House reject new clause 18 proposed by the Scottish National party. Again, the issue should not be seen in the context of current parliamentary or Government circumstances at Westminster plus what we shall have at Holyrood. The nationalists try to pretend that we are moving towards some independence model. The basis of this settlement is devolution, not federalism, which is basically the model adopted, quite legitimately, by the SNP to frame some of its ideas. The measure is not about independence; it seeks to allow issues concerning vires to be resolved in the most constructive and effective way possible. It is dangerous to suggest that we introduce politics into the court; that we introduce a kind of Scotland-England issue into the court. At the end of the day, we need to consider the legality surrounding a particular issue, not to politicise everything. That may be the nationalists' wish, but it does not lead to good or sensible government. The Government reject new clause 18 and the consequential amendments. The new clause would create a constitutional court to replace the role currently provided for the Judicial Committee of the Privy Council in determining questions concerning the legislative competence of the Scottish Parliament. Before dealing in detail with the SNP's proposal for a constitutional court, I shall discuss the existing arrangements that are within the Bill's competence. The policy that the Bill reflects was summarised in chapter 4 of the White Paper. It recognised that, from time to time, the Scottish Executive and the UK Government would take different views of the Scottish Parliament's legislative powers. In most cases, we expect that they should be able to resolve such views quickly and amicably. The Government recognised that, at times, there would be disputes and that it would be necessary to have a mechanism to resolve such disputes. The Government consider that the JCPC would be the appropriate body ultimately to resolve such issues. The Government do not support the proposed creation of a constitutional court. It is not necessary to try to create a new structure. The JCPC already exists. It has vast experience of dealing with constitutional issues from the Commonwealth. It is ideally placed to resolve any disputes about vires. It is wrong to suggest, as hon. Members have, that issues will not be fairly considered and will be dominated by an English bias. The JCPC is an impartial body. I have no doubt that each case will be decided on its merits after careful consideration of the facts of the case. Of course, the decision of the JCPC will be final.

Alex Salmond (Scottish National Party, Banff and Buchan)

Will the Minister confirm that it is possible under the arrangements that he is defending for a devolution case to be judged by the JCPC with no Scottish judge on that committee?

Henry McLeish (Labour, Central Fife)

It is our intention that that will not happen. Our intention is to ensure that the JCPC considers issues on their merit. We are talking about issues of vires. We are not trying to introduce politics into every conceivable decision. The veiled threat from the nationalists this evening is: "Beware of the Scottish Parliament because, when we are members of that body, we will talk about cross-border public bodies and there will be trouble for the first person whom we invite who does not come." That has been stated. Because the constitutional court may have English judges, there is some suggestion that we cannot resolve matters as vires, that we have to politicise everything. That is a dangerous attitude. It is not constructive and it does not augur well for the good sensible government that Scotland requires from the first day the Scottish Members of Parliament are elected.

Dominic Grieve (Conservative, Beaconsfield)

Does the Minister accept that I, as an English Member of Parliament, would not mind if five Scottish members of the JCPC determined such issues? That is completely irrelevant.

Henry McLeish (Labour, Central Fife)

The point has been made. The Government have no doubt that each case will be decided on its merits after careful consideration. Clause 94 provides that, for this purpose, the JCPC will be composed of members who hold or have held the office of Lord of Appeal in Ordinary or high judicial office in the UK. That will include the judges of the Court of Session who are Privy Councillors. It is difficult to imagine how the members of any constitutional court could be better qualified. The Government's approach is based on the belief that such issues should be decided as a matter of law, not of politics. Involving this House and the Scottish Parliament in the election of members of a constitutional court would inevitably politicise the process and raise questions about the independence of the court' s members—would they be genuinely free to make up their minds, or would they be beholden to the body that elected them? The involvement of the Lord Chancellor and the Lord Advocate—members of their respective Administrations—could also politicise the process of dispute resolution. Indeed, the suggestion that the Lord Advocate should be a member of the court ignores the fact that, as Law Officer to the Scottish Executive, he would be responsible for instituting and defending proceedings for the determination of a devolution issue. Under the model in the new clause, there would be an initial conflict of interest. It is nonsensical to suggest that he could present the case for the Scottish Executive and then rule on it. I was interested in whom else the SNP considers appropriate to hear such cases. Although there are many eminent advocates, solicitors and law professors with considerable experience in the legal system, I admit that the combined judicial experience of the Judicial Committee would be difficult to equal. It is hard to escape that conclusion in terms of competence in law and legal issues. The Government believe that there should be a mechanism to ensure independent consideration of devolution issues. In the Judicial Committee, the Bill provides that. I urge the hon. Member for Banff and Buchan (Mr. Salmond) to ask leave to withdraw the motion.

Alex Salmond (Scottish National Party, Banff and Buchan)

The Minister gave the game away. I asked him whether a case could be judged with no Scottish representative on the Judicial Committee. He replied that the Government intend to ensure that that does not happen. They can do that only by political direction on the composition of the body taking the case. He cannot have it both ways.

Henry McLeish (Labour, Central Fife)

Grow up.

Alex Salmond (Scottish National Party, Banff and Buchan)

The Minister says that I should grow up, but let us examine the matter. Either the composition of the Judicial Committee would be such that it would be free to judge such cases with no concern for nationality, background or political influence or the Minister, because he has realised the sensitivity of the situation, wants at least one representative from a Scottish legal background to sit in judgment of such cases. He cannot have it both ways. I was incredibly surprised, but delighted in some ways, by the naivety of some hon. Members, who talked as if the judicial process were totally removed from politics. Many members of the Judicial Committee of the Privy Council held political office and owe their appointment to politics. The Minister presents a political argument against a constitutional court and for pure judicial principle in the existing arrangements. However, that does not sustain serious examination. I have much more sympathy with the hon. Member for Greenock and Inverclyde (Dr. Godman) and the hon. and learned Member for Orkney and Shetland (Mr. Wallace), who said that, although a constitutional court was necessary, we should perhaps not have such a court as this and should take into account the variety of developments that are taking place. We would have accepted the principle if the Minister had said, "That's exactly what we are going to do; we are going to think about it." However, he did not say that. The Minister has argued that the Judicial Committee of the Privy Council—an archaic, Topsy-like institution—can accommodate such disputes. That is not the case. Its composition does not stand up to serious examination, and in such circumstances my hon. Friends and I shall most certainly press the new clause to a vote.

CONSTITUENCIES, REGIONS AND REGIONAL MEMBERS

Jim Wallace (Liberal Democrat, Orkney and Shetland)

I beg to move amendment No. 61, in page 53, line 9, at end insert— '(1 A) The parliamentary constituencies to which paragraph 1(c) applies are those determined by the Parliamentary Constituencies (Scotland) Order 1995, or those Scottish Parliamentary constituencies determined following a report of the Boundary Commission for Scotland as determined by paragraph 3 of this Schedule, except a parliamentary constituency including either of those islands referred to in paragraphs 1(a) and 1(b).'.

Michael Martin (Deputy Speaker, Glasgow Springburn)

With this, it will be convenient to discuss the following amendments: No. 62, in page 53, leave out lines 15 to 17. No. 63, in page 53, leave out lines 18 to 37 and insert— 'Redistribution of Scottish Parliamentary constituencies— 3. (1) The Boundary Commission for Scotland shall keep under review the representation in the Scottish Parliament and shall submit to the Scottish Executive a report either: (a) showing the constituencies into which they recommend that Scotland should be divided in order to give effect to the rules set out in Schedule 2 (subject to paragraph 7 thereof) to the Parliamentary Constituencies Act 1986 (hereinafter referred to as the 1986 Act) in so far as they apply to Scotland, or (b) stating that, in the opinion of the Commission, no alteration is required to be made in order to give effect to the rules set out in Schedule 2 to the 1986 Act (subject to paragraph 7 thereof). (2) Notwithstanding the provisions of section 81 of this Act, the rules in Schedule 2 of the 1986 Act as they apply to Scotland shall have effect in relation to the redistribution of the Parliamentary constituencies in paragraph 1(c). (3) Subject to sub-paragraph (5), the provisions in sections 3, 5 and 6 of the 1986 Act shall, in so far as they apply to Scotland, have effect in relation to the reports and the workings of the Boundary Commission for Scotland's review of Parliamentary constituencies for the Scottish Parliament. (4) Subject to sub-paragraph (5), the provisions in section 4 of the 1986 Act shall have effect in relation to the draft of any Order in Council laid before the Scottish Parliament by the Scottish Executive for giving effect, whether with or without modifications, to the recommendations contained in the report of the Boundary Commission for Scotland. (5) References to the Secretary of State in the 1986 Act shall, for the purposes of this paragraph, be construed as references to the Scottish Executive and references to "Parliament" in the 1986 Act shall be construed as references to the Scottish Parliament. (6) The Boundary Commission for Scotland shall submit its first report under this paragraph to the Scottish Executive no later than 30th June 2005. (7) In that report, the Commission shall also recommend any alteration in any of the regions which, in their opinion, is required to be made in order to give effect to the rules in paragraph 7. (8) If the Commission do not make any such recommendation under sub-paragraph (7), they shall in the report state that, in their opinion, no such alteration is required. (9) A report making a recommendation for an alteration in any region shall state the name by which the Commission recommend that the region should be known.'. No. 64, in page 53, leave out lines 38 to 43. No. 65, in page 53, line 46, leave out '3(2)' and insert '3(7)'.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

The scheme proposed in the Bill is designed principally to take account of the fact that the Government have recognised the need to reduce the number of Scottish Members at Westminster following the establishment of the Scottish Parliament. It also provides for the number of Members of the Scottish Parliament to be reduced to reflect the Westminster constituencies under the first-past-the-post system, and for a pro rata reduction in the number of additional Members in the various regions. The purpose of the amendment and those associated with it is to retain for the Scottish Parliament the 73 constituencies that exist under the first-past-the-post system and the seven additional Members in each of the eight regions. To achieve that, it would establish a boundary commission for Scotland, whose remit would be to review the 73 Scottish parliamentary constituencies. There are obviously population movements within those constituencies, and it would be important to ensure that those electorates remained of a relatively similar size.

Norman Godman (Labour, Greenock and Inverclyde)

In the current addition of The Scottish Review, the author of a paper argues that it is almost inevitable, over time, that the number of Scottish MPs in this House will be radically reduced, and that the number of MSPs in the Edinburgh Parliament is also likely to be reduced in the next decade or so.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

I think that the hon. Gentleman refers to an article by Mr. John Curtice of Strathclyde university, on which I propose to comment. Our amendments would retain the separate seats for Orkney and Shetland that are set out in the Bill. I acknowledge the Government's delivery of a commitment at the Scottish Constitutional Convention. When a similar provision was moved in Committee, we said that 129 Members—a figure that was struck after some debate in the convention—were needed so that, after the appointment of Ministers, there were sufficient Members to ensure the establishment of committees. There is to be a range of committees, such as pre-legislative, departmental and regional. If there is time, my hon. Friend the Member for Edinburgh, West (Mr. Gorrie) will move an amendment on that topic. About 129 Members are required to fulfil all the Parliament's functions, and reducing the number to 104 or 105 would affect its workings. As the Member for Greenock and Inverclyde (Dr. Godman) said, the number of Members could be substantially reduced as a result of the boundary commission's proposal. The article by John Curtice is far too technical to convey to the House in a short speech, but it shows that the number would creep up because of electoral quotas. The article is entitled "Reinventing the Yo-Yo", and shows that the number of Members will come down and then go back up. It states: Far from securing a permanent reduction in the size of the Scottish Parliament, the provisions are likely to result in a Parliament which after a once and for all cut is likely to start gradually increasing in size such that by the middle of the next century it could well have returned to its original size. We are trying to retain some stability because that is important for the working of the Parliament. Its stability would not be helped if, after three or four years, a quarter of its Members thought that a sword was hanging over them because seats were about to disappear. That would lead to tension and rivalries, and might distract Members of the Scottish Parliament from the work in hand. It would not be healthy for the Parliament. We do not know what will happen here in future. The Government have set up an electoral commission under the chairmanship of my noble Friend Lord Jenkins of Hillhead to look at different systems of proportional representation. We hope that there will be such a system for elections to Westminster sooner rather than later, and that would have consequences for the Scottish Parliament if it continued to reflect the Westminster model.

Norman Godman (Labour, Greenock and Inverclyde)

There may be a new assembly in Northern Ireland, and the Scottish Parliament and the two assemblies may have constituencies that are radically different in size. Is the hon. and learned Gentleman perfectly relaxed about that?

Jim Wallace (Liberal Democrat, Orkney and Shetland)

At the moment, some constituencies vary substantially in size. I am not sure what is envisaged in terms of Northern Ireland representation in the House following the establishment of an assembly. We may be about to embark on a substantial change in the way that the Westminster Parliament is elected. If an additional member system were adopted, there could not possibly be 659 constituencies, because a massive number of top-ups, additional Members, would make the House unwieldy. We need to examine different sizes of constituencies—hence the need for a separate system for Scotland to secure the sort of agreement that was reached at the constitutional convention and is enshrined in the Bill. Those of us who were in the convention foresaw that there might be changes. In our agreement, which was headed "Scotland's Parliament—Scotland's Right", we said: The electoral system for Scotland's Parliament must have stability but it will, of course, be dependent on boundaries established for the Westminster and European Parliaments. The European Parliament boundaries have disappeared because of the move to proportional representation. The document continues: These may be subject to alteration outwith the control of Scotland's Parliament and it will therefore be necessary to ensure that separate boundary reviews for the Parliament can be carried through with the purpose of maintaining the size of the Parliament and the integrity of the corrective effect of the additional members. This function will be performed by the Boundary Commission for Scotland. That is precisely what the amendments seek to do—to retain a Parliament of 129 Members irrespective of a change in the number of Scottish Members at Westminster. When the matter was raised in Committee, the Minister said: there are arguments on both sides, but we believe that the Bill strikes the right balance. I am mindful that he might not wish to press the amendments to a vote this evening; if that is the case, we shall have a chance to look further at the arguments involved."—[Official Report, 28 January 1998; Vol. 305, c. 456.] I am grateful to the Minister for looking further. I hope that my arguments in Committee and here will prove to be compelling.

Tam Dalyell (Labour, Linlithgow)

It may have occurred to Ministers by now that I am no friend of the legislation. However, even I am not so ill disposed as to wish to see a reduction in the number of Members in the Edinburgh Parliament. Imagine it: within a week of the election, Members would be eyeing one another and wondering what would happen five years hence. Understandably, people would begin to fight for position like Kilkenny cats, because they would know that, at the end of five years, a quarter of them would be axed. The ill feeling that such knowledge would create from the beginning, and the sickly personal relations that would follow, would be extremely undesirable. I hope that whatever number is chosen is kept up. If there is to be a Parliament, there should be 142 Members to start with, but that is all water under the bridge. The expectation of a reduction is a recipe for such sour ill will that it would be to the advantage of none of us in Scotland.

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

I have two comments. The first is the obvious one that would be made by any man or woman in the street: if 129 Members is reasonable for the Parliament next year, why would it be unreasonable in 10 or 20 years? Why on earth should we start to change the boundaries of a devolved Scottish Parliament simply because there is an argument for changing the Westminster constituencies? The second issue is more serious. There are two types of Member in the Scottish Parliament and the number of list Members, even under the present system, goes a fair way towards ensuring proportionality, although the precise amount that will be achieved will depend on the results. Nobody can predict how much proportionality will be realised. To some extent, the amount of disproportionality may be increased because there are to be eight regional lists rather than one national list. To achieve proportionality, it is necessary to have enough top-up seats to even out the imbalances. If the number of available top-up seats is reduced, there is a strong likelihood that proportionality will be diminished, even if first-past-the-post seats are also reduced. We will be back to a much more first-past-the-post system than is proposed in the legislation. Given that one of the main arguments of the people who introduced the legislation was that it did include a very high element of proportional representation, it seems strange that they now accept something that will almost inevitably reduce proportionality.

Bernard Jenkin (Conservative, North Essex)

Reflecting on the comments of the hon. Member for Galloway and Upper Nithsdale (Mr. Morgan), I think that we do well to remind the House that a degree of proportionality is not predictable under the hybrid additional member system that we are adopting for the Scottish Parliament. It remains to be seen how proportionally fair the electoral system is compared with a first-past-the-post system. I draw the House's attention to the comment by the Minister in reply to the previous debate on this subject in Committee, to which the hon. and learned Member for Orkney and Shetland (Mr. Wallace) has alluded. The Minister said that the Bill "strikes the right balance". I compare that with the all too sensible analysis of what is likely to happen by the hon. Member for Linlithgow (Mr. Dalyell). What we have here is far short of the stability that the Scottish Parliament will look for and that Scottish people have a right to expect from the Parliament. I remind the House that, in Committee, we tabled an amendment to deal with this problem, which was logical in view of the Government's original intentions as expressed in the White Paper. The amendment would change the constituency boundaries before the first elections to the Scottish Parliament, so that the number of MSPs that the Scottish Parliament started with would be the same as the number that it continued with. The representation in the House would be reduced as soon as it was re-elected at a subsequent general election. As I say, what we are left with in the White Paper is just a mess, with 129 MSPs first being selected and then cut. These amendments give the Scottish Parliament the opportunity to decide whether to maintain the present number or to change the number of constituencies. The key question is: who is to decide the criteria for the Scottish boundary commission? Effectively, that commission will work for two masters. If the brief drawn up for it is analogous to that of the boundary commission that already exists, it will have to have regard to the Westminster constituencies as much as to local government boundaries. There will be confusion as to which is paramount: the Westminster constituencies or the Scottish parliamentary constituencies. In any case, the Minister, by announcing that the Government are looking to review this—I should be grateful if he would confirm that the Government do intend to table amendments in the other place—shows that this part of the White Paper is extremely ill thought out and ill considered. Whatever the Government now recommend, either here or in the other place, to set this matter straight, it will be a departure from the White Paper.

Norman Godman (Labour, Greenock and Inverclyde)

I have some sympathy for a couple of the comments by the hon. Member for North Essex (Mr. Jenkin) on the likely composition of the Edinburgh Parliament. I should not like to guess it. I do not at this moment have much idea at all. The question of proportionality is a different matter. I personally favour the sort of electoral system that we will have for that Parliament. I have always opposed the first-past-the-post system. The new system will, of course, be of some advantage to the party of the hon. Member for North Essex. As I have said many times, we have an absurd set of circumstances concerning this place. About 500,000 Scots voted for Conservative candidates, yet neither the Scottish Conservative party nor those Scots are represented in this Parliament. For all its flaws and loose ends, the system proposed for the new Parliament is much better than the system we have for this place. I am not altogether arguing that the number of MSPs should in the near future be reduced. I am concerned just about the size of the constituencies represented by MSPs. I think, for example, if I might digress just for about 14 seconds, that the number of representatives proposed for the Northern Ireland assembly is too high. People say, "Yes, but we are talking there about special circumstances." However, I thought that the aim would be to bring that assembly as near as we could to the normal, everyday life of other assemblies and Parliaments elsewhere in the United Kingdom. It may be that, as the hon. Member for North Essex, who speaks on behalf of the official Opposition, says, it should be left to the Scottish Parliament to determine these matters—for example, how many Members should be in that place. I say to my hon. and very old Friend the Member for Linlithgow (Mr. Dalyell): I am not particularly concerned about the feelings of the Members of that assembly. I might be if I were one of them and facing the disappearance of my constituency, but I am never going to be in that position. The Parliament has been created for the better governance of Scotland, not to meet the needs, aspirations and concerns of those who will be in that Parliament.

Tam Dalyell (Labour, Linlithgow)

The better governance of Scotland is not going to be served if Members of the Parliament fight for position like ferrets in a sack, as they assuredly will.

Norman Godman (Labour, Greenock and Inverclyde)

We have seen some of that fighting in parties in this place. It is epitomised by the chicken run and people squabbling over boundary changes. I have seen a little of that in Renfrewshire in recent years. I have some sympathy for the object of the amendments, but, at the same time, the hon. Member for North Essex is absolutely right: these matters must be left to the Members of Parliament in Scotland. At the same time, I caution against the idea that the figure we now have is in some way sacrosanct. Over time, the number of MSPs, or of representatives or deputies—whatever they are called—going into the Northern Ireland assembly, will change. There will be a change in the number of Scots Members in this place. As I have said, in a general sense, we are, in an unco-ordinated way, moving towards a federal system. I note that more and more Tory Members believe that—

Bernard Jenkin (Conservative, North Essex)

"Unco-ordinated" is the word.

Norman Godman (Labour, Greenock and Inverclyde)

I think it is. We are moving along that road. The hon. Member for Epping Forest (Mrs. Laing) shakes her head vehemently. I do not think that she wants Scotland to move in any way from the UK. I think that her heart is in a Scottish constituency somewhere, but that is another story.

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

Does the hon. Gentleman accept the point that I was trying to make: the more we reduce the overall number and the first-past-the-post and list Members pro rata, the less likely we are to achieve a proportional outcome in any given election?

Norman Godman (Labour, Greenock and Inverclyde)

I agree, and I thought that the hon. Gentleman put his case intelligently and concisely. We do have problems relating to proportionality. There are problems with any system that we think of. God forgive us for thinking about the Knesset and the dreadful system of proportional representation there. I would not inflict the Irish system on a Scottish Parliament or on the assembly that is to be created in the six counties. However, the system proposed—even if the numbers are reduced—for all its loose ends, is much better than what we have in this place. Although there may be a reduction in the number of MSPs, it will still be a better and fairer system than the ridiculous, anachronistic system for electing hon. Members to this place.

John Hayes (Conservative, South Holland and The Deepings)

The hon. Member for Linlithgow (Mr. Dalyell), not for the first time, exercised a degree of profound observation which has partly stolen my thunder. I agreed with many of his comments—in stark contrast to those of the hon. and learned Member for Orkney and Shetland (Mr. Wallace). I never cease to be amazed at the Liberal Democrats' ability to pursue facile policies. We heard another example of that ability today. I say that more in sorrow than in anger—no, to be absolutely frank, I say it more in anger than in sorrow. Nevertheless, we learned in the local government elections the electorate's opinion of the Liberal Democrats, who were given just the consolation prize of Liverpool. The important aspect about this group of amendments is that they would cause damage in three ways. First, as my hon. Friend the Member for North Essex (Mr. Jenkin) said, they are uncertain and unclear about the boundary commission for Scotland's terms of reference. Who will determine the commission's remit, and what will that remit be?

Jim Wallace (Liberal Democrat, Orkney and Shetland)

Will the hon. Gentleman please look at amendment No. 63, which states: to give effect to the rules set out in Schedule 2 … to the Parliamentary Constituencies Act 1986"? Those are the rules that will apply.

John Hayes (Conservative, South Holland and The Deepings)

I am delighted by that observation, as it shows that, occasionally, even the facile can have an eye for detail. Secondly, the inconsistency established by the potential—I accept that there is only a potential—of establishing in Scotland constituencies of a different size from those at Westminster, and the electorate's consequential confusion, will be a nightmare. If the Scottish Parliament—about which I certainly have reservations—is to have credibility, there must be some clarity and comprehensibility about it in the eyes of the electorate. The notion of different-sized constituencies for elections to Westminster and to the Scottish Parliament is nonsense. Can hon. Members imagine how that would affect political parties and political associations—which, regardless of party, are based on Westminster constituencies? All hon. Members will know that European elections already cause sufficient difficulty. European elections, because of different-sized constituencies, cause confusion and complications not only for the Conservative party but for the Labour party, and probably even for the Liberal Democrats. Creating another size of constituency would cause an organisational nightmare.

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

I wonder whether the hon. Gentleman might help me by defining the nature of the confusion that will be caused in the minds of the electorate. If I as an elector have one person as my MSP and someone else as my MP, and someone five miles down the road shares the same MP but has a different MSP, how will I be confused? What is the problem?

John Hayes (Conservative, South Holland and The Deepings)

Surely the nature of the political process makes it important that people should know in which constituency they are electors and constituents. Electorally, we have had great difficulty at all levels, from local government upwards, in establishing in the minds of constituents and electors in which area they reside, who represents them and the functions performed by their representatives at the various tiers. Establishing those facts is a fundamental part of establishing a relationship between the elector and the elected, is it not?

Tim Collins (Conservative, Westmorland and Lonsdale)

My hon. Friend is making an excellent point. Will he reflect on the media's effect on that confusion? The newspapers that voters will read, and the television news that they will see, will refer variously either to an elector's MP or to his MSP, further aggravating the confusion that my hon. Friend has described.

John Hayes (Conservative, South Holland and The Deepings)

I am grateful to my hon. Friend, and I entirely agree with his excellent illustration of the point that I was making. I am not surprised that Liberal Democrat Members are unimpressed by that argument, as their party believes in proportional representation—which would cause a break in the link between the elector and the elected, which is what it would mean. Proportional representation would end the appropriate sense of ownership that electors have for their representatives, and we representatives for our constituencies. History, and the electorate, will judge very harshly anyone involved in breaking that bond, which is one of the most valuable and important elements in our democratic system. In relation to the Scottish Parliament, this group of amendments goes down that road. If we are to have a Scottish Parliament and a Welsh assembly, let us make them work well. As the hon. Member for Linlithgow said, it would be nonsense for us, as responsible Members of this Parliament, to get the project off in a fashion that doomed it right from the beginning. If we are to have a Scottish Parliament, let us establish a structure and system that gives it some credibility, and not indulge irrelevant, minority and fringe parties.

Henry McLeish (Labour, Central Fife)

As the hon. and learned Member for Orkney and Shetland (Mr. Wallace) suggested, early in the Committee stage the Government responded to some of the very positive arguments that were made on the link between Scottish parliamentary and United Kingdom parliamentary constituencies, and on the number of Members of the Scottish Parliament. The hon. Member for Galloway and Upper Nithsdale (Mr. Morgan) made a point on the list system. We are not dealing with an easy matter, as we are dealing not with a first-past-the-post system but with a system in which 73 MSPs will be elected on a first-past-the-post basis, and in which there will be 56 additional Members. The arguments are therefore very complex. Currently, the Government cannot accept amendment Nos. 61 to 65, which would seek to break the link between constituencies for the UK Parliament and constituencies for the Scottish Parliament. As I said earlier in the debate, hon. Members will recall that we considered similar amendments in Committee. In Committee, the hon. and learned Member for Orkney and Shetland made a strong and very reasoned case to retain the size of the Scottish Parliament at 129 members. I agreed then—the point has been confirmed in this debate—that the Government would reflect carefully on the issues that he raised. My right hon. Friend the Secretary of State for Scotland and I have thought long and hard on those matters. We understand the arguments in favour of maintaining the Parliament's size, but we also believe that the Parliament could operate effectively with fewer Members, and that there are good arguments for maintaining the linkage in constituencies. Nevertheless, my hon. Friend the Member for Linlithgow (Mr. Dalyell) has made a valid point. Projecting ahead, we must consider the possible realities of Scotland after the devolution settlement, and within the Scottish Parliament once its 129 Members are elected. In the White Paper, we explained that we believed that the Union's integrity would be strengthened by having common constituencies for the Scottish Parliament and for the United Kingdom Parliament, with the exception of Orkney and Shetland. Having constituencies that cover the same geographical area will help to encourage liaison between MPs and MSPs in ensuring that the interests of their common electorate are served properly in whichever Parliament is responsible for an issue. Good working relationships between Members of the Scottish Parliament and Westminster will be essential if devolution is to be a success. Contiguous boundaries would have gone some way in ensuring that success. Over time, the effect of this group of amendments could lead to different parliamentary constituencies for the Scottish Parliament and the UK Parliament, with overlapping boundaries leading—in some people's judgment—to confusion among the electorate. Although that point has been highlighted in the debate, I cannot agree with some of the latter comments on the electorate's confusion. I do not think that the electorate are as confused as some hon. Members think. Because hon. Members are concerned about boundaries, we assume that the electors also are concerned. However, electors in my constituency are a very sharp, bright bunch—which they demonstrate at every election, by voting in a very superior way.

John Hayes (Conservative, South Holland and The Deepings)

The Minister was obviously referring to my speech. Does he not agree that, under our two-tier local government system, for example, there was massive confusion among the electorate about their various local representatives in district councils, county councils and regional councils? It took 20 years to dissipate that confusion. Therefore, although I do not underestimate the electorate, surely the Minister will agree that changes in political structure can have a devastating effect on people's understanding of who represents them, and of which authorities do what.

Henry McLeish (Labour, Central Fife)

I am sure that, after this debate, the hon. Gentleman and I could discuss the fact that change creates some confusion and some concern. However, we should not use the word "devastating". Since 1974, we have had a two-tier system of local government, introduced unitary authorities and created European electoral boundaries. We have Westminster parliamentary boundaries, and will soon have elections to the new Scottish Parliament. We should never underestimate the electorate, because the system has worked. Under two-tier local government, and now unitary authorities, excellent services have been and are provided. People are less concerned with maps and boundaries than they are with the quality of political contribution and of services. Yes, there is an issue, but we would do well to keep it in perspective. I am sure that, once the Scottish Parliament is established and its working practices are in place, it could operate effectively with fewer MSPs. Fewer Members would still be able to carry out the essential scrutiny of the Scottish Administration and the enactment of legislation. As this short debate has highlighted, there are clearly good arguments on both sides of the issue. For the reason that I have explained, there is a good argument for maintaining linkage in constituencies. We are still considering the matter, and we hope to reach a conclusion by the time that the Bill goes to another place.

Tam Dalyell (Labour, Linlithgow)

Here am I defending the interests of Members of the Scottish Parliament. It is very unfair to put them in the position of fighting like Kilkenny cats, squabbling like ferrets in a sack and having the sword of Damocles over them from the very beginning. To put it bluntly, we have the prospect of repeating what happened over Glasgow, Central 30 or 40 times over, writ large from the beginning. Is that fair on the people involved?

Henry McLeish (Labour, Central Fife)

With the greatest respect, I do not want to embrace my hon. Friend's extravagant tones concerning ferrets and cats. I think that I have captured the essence of the argument. If we establish a Parliament of 129 Members, there is an expectation that they might want to continue. That is why addressing the realpolitik of the Parliament is part of the wider consideration. With those few remarks, I hope that the hon. and learned Member for Orkney and Shetland will withdraw his amendment, and allow us to complete that consideration.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

The debate has been useful, particularly the observations and the extended metaphors of the hon. Member for Linlithgow (Mr. Dalyell), which illustrated the kind of circumstance that would all too readily arise in the Scottish Parliament if a quarter of its Members had a death sentence hanging over them. Of course, they would not know which quarter that would be, which would make the ferrets in the sack scramble even more. The hon. Member for Galloway and Upper Nithsdale (Mr. Morgan) made the important point that, although the Government have, to be fair, preserved the 73:56 ratio, the ratio tends to be less proportional when it is applied to fewer people. I note what the Minister has said. I am encouraged by his remarks—not least his opening comment that the Government could not accept the amendments at present. No doubt my hon. and noble Friends in another place will seek to table them again to ensure that we do not lose sight of the issue. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn.

CANDIDATES

Henry McLeish (Labour, Central Fife)

I beg to move amendment No. 26, in page 3, line 12, at end insert— '( ) A registered political party's regional list has effect in relation to the general election and any vacancy occurring among the regional members after that election and before the next general election'.

Henry McLeish (Labour, Central Fife)

In view of the number of amendments that other right hon. and hon. Members have tabled, I shall try fairly quickly to explain the purpose behind the Government amendments. At this stage, I shall not comment on the other amendments in the group, but with your permission, Mr. Deputy Speaker, I will deal with them if I get an opportunity to wind up the debate. Amendment No. 26 makes provision for a party list to have effect in relation to a general election to the Parliament and to any vacancy occurring among regional Members after that election and before the next general election. That makes it quite clear that vacancies for regional Members will be filled from the list presented to the electorate at the general election. Amendment No. 27 makes it clear that a registered party's list of candidates for the purposes of the election of regional Members could contain only one name if the party so wishes. I turn to amendments Nos. 28, 29 and 30. Amendment No. 28 effectively provides that, where a person on a party's list is returned as a Member, that person should be removed from that list so that he or she would not thereafter be available to fill a vacancy. That corrects a possible anomaly, whereby a Member loses his or her seat through failure to take the oath or by disqualification, but because his or her name is still on the party list, he or she would arguably be entitled to be returned to the Parliament again. If a Member refused to take the oath or was disqualified, he or she should not be considered by the returning officer, and under the amendment, could be removed from the list. Amendment No. 34 ensures that the order to be prepared under clause 11 can make detailed arrangements for what will happen if two regional parties or individual candidates get the same number of votes. It will also enable the order to regulate the filling of regional vacancies. For example, it has been pointed out that, as the Bill stands, a candidate on a party's regional list who had subsequently resigned from the party could still be returned to fill a vacancy that subsequently arose. That would clearly be absurd. The House may be interested to learn that we have established a working group involving the four main parties in Scotland, electoral administrators and returning officers to consider the detailed arrangements for the elections. The group will be of assistance to the Scottish Office in preparing the order. Amendments Nos. 33 and 32 simply improve the drafting of the Bill. I urge the House to accept the Government amendments.

Michael Ancram (Conservative, Devizes)

All the Government amendments seem to be moving in a sensible direction, so I shall not comment on them in depth, except to say that here we are again dealing with clause 4, which refers to enactments providing for the registration of political parties, yet we have still not seen the draft legislation. I have protested before about this; it is outrageous. Three Bills have gone through the House without our having seen the draft legislation. We were promised it at the end of March, then soon after Easter. Now, it is the middle of May, and we still have not got it. I register once again a strong protest about that. The main Conservative amendment, No. 4, relates to the question of split-ticket voting, to which I have referred before. Under the present system, it is possible, by registering a different party name from that under which candidates stand in direct elections, to enhance the number of seats won. I have given figures previously to indicate how that can be done. It is a way of manipulating the system against the spirit of proportionality, and is of considerable concern. For instance, if last May's figures for the Glasgow electoral region were replicated exactly under the additional member system, Labour would have won 10 seats on direct elections and two on the list system—a total of 12. The Scottish National party would have won three seats on the list—a total of three—and the Conservatives and the Liberal Democrats would have won one each on the list. If a party splits its ticket and uses an alter ego party, such as the Co-operative party, which the hon. Member for Glasgow, Pollok (Mr. Davidson) has mentioned, and candidates do not stand under Labour on the list system, a totally different picture emerges. Labour would win 10 seats on direct elections and six on the list under the Co-operative party banner. The SNP would win one list seat and the other two parties would win none. The Secretary of State shakes his head, but that analysis was done by a very senior political lecturer in Aberdeen on behalf—I understand—of the Labour party. It shows that there is a fault. Having tried other methods, we are simply trying in amendment No. 4 to get around the problem by having not two votes but one, so that the vote cast in direct elections for a candidate would count for that candidate's party on the indirect list. That would avoid party manipulation. I admit that it produces a result that would not allow for individual candidates on the regional list, but I hope that the Government will consider it seriously as a way in which to get away from a very dangerous weakness in the system.

Tam Dalyell (Labour, Linlithgow)

If I am no friend of this Bill, I am an enemy of lists—partly for the reasons that were eloquently given in an earlier debate by the hon. Member for New Forest, West (Mr. Swayne). I must be one of the few who has seen lists in action. It was when I was exiled to the indirectly elected European Parliament and had friends in the Social Democratic party. They were good politicians and good people, but whenever it came to a crunch issue, their judgment was determined by the reaction back home of Herbert Wehner, who was then the all-powerful floor leader of the SDP. I thought that it was absolutely humiliating for Members of the European Parliament to say, as they did, "Yes, we would like to vote one way, but we cannot anger Herbert Wehner." I know why they could not anger him—he was extremely tough. However, he had absolute power as to where individuals would come on the list next time around. If there is to be a Scottish Parliament—it is possibly water under the bridge now—there should be 142 or 143 Members, giving gender balance. There should be two Members in each constituency—taking into account Orkney and Shetland—and we should leave it at that. Lists will create endless difficulty and a lot of rancour.

Donald Gorrie (Liberal Democrat, Edinburgh West)

We have tabled a number of amendments, covering two particular points. First, we propose to make the closed-list system an open-list system. Under the Bill, after putting an "X" for their first-past-the-post constituency Member, the voters would put an "X" against the name of the party they support. We propose that they should put the name of a candidate of the party that they support on the list. Candidates on that list would be elected in order of the number of votes they received from the electorate. The electorate would choose who got in from the party's list, rather than the party managers. We feel that that would be much more democratic, as a closed list gives too much appearance of manipulation by the party and leads to the sort of thing that the hon. Member for Linlithgow (Mr. Dalyell) mentioned. Secondly, we should consider having votes at 16, rather than 18. The age of voting has come down, and there was a time when women were considered suitable to vote only at 25. The age was moved to 21, and then to 18. There are some countries whose voting ages are less than 18. There is a greater rapidity of maturity among young people, many of whom show great interest in politics. The decisions of the Parliament will affect them greatly, and we should consider a voting age of 16. There is no doubt that our amendment will not be carried today, but it is a marker and we should pursue that issue. I hope that the Minister will consider both those matters favourably.

John Hayes (Conservative, South Holland and The Deepings)

The hon. Gentleman's argument about the greater maturity and understanding of young people is extremely interesting. Given the different rates at which men and women mature—young women mature much faster than young men—and given the fact that young women do much better academically at a much earlier age, would his party go as far as—

Henry McLeish (Labour, Central Fife)

Unfortunately, I have one minute to deal with a number of outstanding amendments and I will have to write to individual Members to respond to the debate. I hope that the House will accept that proposition in good faith, rather than having me start and finish in roughly 30 seconds. Amendment agreed to. It being three and a half hours after the commencement of proceedings on consideration of the Bill, MR. DEPUTY SPEAKER, pursuant to the Order [13 January] and the Resolution [this day], put forthwith the Questions necessary for the disposal of the business to be concluded at that hour. Amendment made: No. 27, in page 3, line 13, at end insert '(but the list may include only one person)'.—[Mr. McLeish.]

ALLOCATION OF SEATS TO REGIONAL MEMBERS

REGIONAL VACANCIES

POWER TO MAKE PROVISION ABOUT ELECTIONS

DISQUALIFICATION FROM MEMBERSHIP OF THE PARLIAMENT

EFFECT OF DISQUALIFICATION

SCOTTISH PARLIAMENTARY CORPORATE BODY.

Henry McLeish (Labour, Central Fife)

I beg to move amendment No. 39, in page 9, line 18, leave out from first 'the' to end of line 20 and insert 'functions conferred on the corporation by virtue of this Act or any other enactment'.

Henry McLeish (Labour, Central Fife)

The Scottish parliamentary corporate body will oversee the administration of the Parliament. It will have a general duty to provide the Parliament with the property, staff and services it requires and it will have powers to appoint staff, to hold and acquire property on behalf of the Parliament and to enter into contracts, as well as representing it in legal matters. However, the Bill leaves scope for further statutory functions to be conferred on the body in the future both by the Scottish Parliament and by Westminster. Government amendment No. 39 is of a technical nature which makes it clear that further functions may be conferred on the SPCB only by virtue of an enactment, including Acts of the Scottish Parliament and instruments made under such Acts. This is in keeping with its position as a statutory body. It also leaves it to the Parliament to decide whether it should be possible to confer functions on the body by means of a resolution to make provision in an Act to that effect. This will not, however, affect the statutory functions to be carried out by the SPCB under clause 20(3). Government amendment No. 49 is again a technical amendment which is intended to ensure that, in respect of salaries and pensions of Members of the Scottish Parliament and Executive, the Parliament still has the flexibility to make provision simply by conferring appropriate functions on the SPCB by resolution without having to pass an Act of the Scottish Parliament first.

Tam Dalyell (Labour, Linlithgow)

I am rather curious about this matter. I think I am right in saying that the present Clerk of the House of Commons and the Clerk Assistant were earmarked to go to Edinburgh last time around to form part of the core and basis of those who would work in the Scottish Parliament. If we are to have a Parliament, we will need a lot of people who are extremely skilled in the disciplines of clerkship. These people do not come out of thin air. What is the Government's thinking on the number of Clerks and others with expertise of this House who will have to go to Edinburgh? Last time around, it was the present Clerk and the Clerk Assistant, and doubtless others. These are people of the highest calibre in their professional field. We ought to know the Government's thinking.

Henry McLeish (Labour, Central Fife)

My hon. Friend raises important points of detail regarding the staffing of the Parliament. Suffice it to say that, at this stage, the matters are in hand. The discussions will ensure that we have the highest quality of staff, and will not lead to a two-tier situation in terms of standards. The clerking of the Parliament is vital. I would be happy to write to my hon. Friend to give the details of where we are in terms of his question. Amendment agreed to.

STANDING ORDERS

Dennis Canavan (Labour, Falkirk West)

I beg to move amendment No. 106, in page 10, line 5, at end insert—

Dennis Canavan (Labour, Falkirk West)

Clause 79 places a statutory obligation on all persons returned as Members of the Scottish Parliament to take the oath of allegiance, and forbids Members from taking part in any of the proceedings of the Scottish Parliament until such time as the Member takes that oath of allegiance. I assume that the oath of allegiance which is referred to in the Bill is the same as the one taken by Members of this House, who swear to be faithful and to bear true allegiance to the monarch, her heirs and successors. Standing Order No. 5 of this House states: Every person returned as a Member of this House may make and subscribe a solemn affirmation in the form prescribed by statute instead of taking an oath. In other words, if people have religious or other convictions whereby they feel that they cannot take the oath of allegiance, it is open to them to make an affirmation rather than to take that oath—although, of course, to make that affirmation is also solemnly to declare to be faithful and to bear true allegiance to the monarch, her heirs and successors. The amendment would ensure that there was no statutory requirement on any elected Member of the Scottish Parliament to take any oath or, indeed, to make any affirmation. It would include in the Standing Orders of the Scottish Parliament a request—I emphasise that—that all Members make an affirmation. The wording of that affirmation would be the same as that of the Claim of Right, acknowledging the sovereignty of the people of Scotland. That Claim of Right was signed by members of the Scottish Constitutional Convention, including those Labour and Liberal Democrat Members of the House of Commons representing Scottish constituencies who took part in the convention's inaugural meeting in 1989. The sovereignty of the people is surely the basis of any genuine democracy.

Bernard Jenkin (Conservative, North Essex)

Hear, hear.

Dennis Canavan (Labour, Falkirk West)

I am pleased to hear the shadow Minister saying, "Hear, hear." We are Members of the House because we were elected by the people. Therefore, our allegiance should be to the people rather than to any king or queen.

Bernard Jenkin (Conservative, North Essex)

When the President of the United States takes office, he swears an oath of allegiance not to the people, but to the constitution of the United States. Is the hon. Gentleman saying that the United States is not a democracy because of that?

Dennis Canavan (Labour, Falkirk West)

Unlike the United States, this country does not have a written constitution. In any case, the United States constitution acknowledges the sovereignty of the people. The Scottish Parliament will, I hope, be representative of the people of Scotland as a whole; it will represent the pluralist nature of Scottish society. It may include Members who are royalist and those who are republican; it may include Members who are atheist or agnostic and those who believe in God—in that category, there may be people of different beliefs. They will have in common the fact that they were elected by the people—therefore, they should have allegiance to the people. The amendment would not place a strict obligation on Members to subscribe to the Claim of Right. If, because of royalist or Unionist convictions, Members refused to affirm the Claim of Right, they would not be prevented from taking their seats—the amendment represents a request rather than an obligation. Nevertheless, I hope that all Members of the Scottish Parliament—and, indeed, all Members of the House of Commons—will acknowledge the sovereign right of the Scottish people to determine the form of government best suited to their needs. That was the basic democratic principle agreed by the Scottish Constitutional Convention, which did much of the preparatory work to the Bill and to the establishment of the Scottish Parliament. It is, therefore, appropriate that all Members of the Scottish Parliament be requested to acknowledge that principle.

Bernard Jenkin (Conservative, North Essex)

The amendments go to the heart of the likely consequences of the Bill.

Donald Dewar (Labour, Glasgow Anniesland)

Ah!

Bernard Jenkin (Conservative, North Essex)

I hear the Secretary of State saying, "Ah!" in a knowing way, perhaps because I am giving him satisfaction by behaving—as he would think—predictably.

Donald Dewar (Labour, Glasgow Anniesland)

indicated assent.

Bernard Jenkin (Conservative, North Essex)

The right hon. Gentleman seems to agree. The constitutional effects of the Bill cannot be legislated for. However much we should like to think that the legal technicalities will determine the future politics of Scotland, that will not be the case—as is nowhere better illustrated than by the amendment, which refers to the Claim of Right. 8.15 pm The Claim of Right—unsurprisingly, given its antecedents—reflects a mediaeval view of sovereignty. Sovereignty is not a question of deciding whether the rulers or the ruled are sovereign. The sovereignty of Parliament does not negate the sovereignty of the people; it reflects an agreement between people, collectively and individually, that their sovereignty is vested in our constitution, so that laws can be made and agreed to with the authority and consent of the people.

Alex Salmond (Scottish National Party, Banff and Buchan)

If that is the case, why are United Kingdom referendums consultative rather than binding?

Bernard Jenkin (Conservative, North Essex)

That is a matter for Parliament; Parliament could make a referendum result binding rather than consultative. In any sovereign state—whether a republic or a constitutional monarchy—the authority of the people is vested in the constitution, and the rules of that constitution are the supreme law of that state. People need rules to live together in harmony, and a set of rules is needed on how to make and interpret those rules. Whether a constitution is written or unwritten, the rules of the constitution are the supreme law of the state.

Alex Salmond (Scottish National Party, Banff and Buchan)

Would not it assist people if the rules in a constitution were written rather than—as in the United Kingdom—unwritten?

Bernard Jenkin (Conservative, North Essex)

I totally agree with your interpretation, Mr. Deputy Speaker. It is irrelevant whether a constitution is written or unwritten—a constitution is the supreme authority of the land until it is overthrown by the people, in a revolution or through some other extra-constitutional event. In that respect, all constitutions are sovereign. We swear allegiance to the Queen in the same way as the President of the United States swears his oath of office to the constitution. The hon. Member for Falkirk, West (Mr. Canavan) is right to say that the constitution of the United States explicitly acknowledges the sovereignty of the people, but the British constitution operates in such a way as implicity to acknowledge the sovereignty of the people, as the laws of this country are made in Parliament—they cannot be made without at least the indirect consent of the people. The Queen is at the heart of our constitution. Indeed, the question at the heart of the Bill is, "Who are the people?" The Claim of Right is inherently nationalist, not because it sets the people against the Westminster Parliament—that dualism does not exist—but because it sets the Scottish people against the peoples of the rest of the United Kingdom. It is interesting to note that the only individuals elected to this Parliament who refuse to swear an oath acknowledging the sovereignty of Her Majesty are Sinn Fein Members, who cannot take their seats. That exposes their real intention: up to now, they have wanted to overthrow the constitutional order in which they refuse to participate. The Bill assumes that the seats of those who refuse to take the oath of allegiance will fall vacant. That allows the dangerous possibility that those who refuse to swear allegiance to the democratic constitution of this Union, by swearing allegiance to the Queen, may be repeatedly unseated and re-elected. That is a flaw in the Bill. We should have a system whereby people who refuse to swear allegiance to Her Majesty are prevented from taking their seats, but those seats are not available to be contested unless they resign. The Secretary of State and his colleagues will tell us that the Claim of Right need not be a nationalistic claim, and that that is demonstrated by the fact that the Scottish people voted for a Scottish Parliament in a Unionist settlement. That is the premise on which all Unionists will seek to build in the future but, as the amendments demonstrate, that view is not universally held by those who are likely to take part in the Scottish Parliament. In the final analysis, although sovereignty can technically be legislated for, power flows where it will, and in a constitution in which sovereignty derives from the people, the process and flux of politics will determine whether the Scottish people will regard the continuing sovereignty of this Parliament as legitimate or whether the new legal supremacy of Parliament will become an empty shell. The amendments could make Parliament's sovereignty a supremacy that it dare not exercise in defiance of the Scottish Parliament. For the Union to continue to work—for Holyrood and Westminster to operate effectively together—the Scottish Parliament will need to acknowledge the sovereignty of this Parliament, which is reaffirmed by clause 27(7), but by signing the Claim of Right Ministers have created an expectation of something different. The logic of clause 27(7) is allegiance to the Crown but, by supping with nationalism and aiding and abetting its resentments, Ministers have given credibility to the suggestion that sovereignty permanently lies elsewhere. If the Claim of Right was right for the Scottish Constitutional Convention when the Secretary of State signed it, why is it not right for the oath of allegiance in the Bill? The answer is that the Claim of Right is not compatible with this Parliament's sovereignty or with the Unionism that Ministers claim to espouse.

Tam Dalyell (Labour, Linlithgow)

I have the feeling that Ministers are not exuding gratitude to my hon. Friend the Member for Falkirk, West (Mr. Canavan) for having tabled the amendment, because it means that they have to answer the question whether they believe in the Claim of Right, and that is a very direct question. As one who failed to sign the Claim of Right, I am entitled to ask that important question. I notice that the co-signatory to the amendment is the hon. Member for Banff and Buchan (Mr. Salmond), the black bitch himself, who called me a scarecrow and, what is worse, an old scarecrow. This old scarecrow is entitled to ask precisely what is Her Majesty's Ministers' updated position on the Claim of Right.

Alex Salmond (Scottish National Party, Banff and Buchan)

I am sure that I called the hon. Gentleman a scaremonger, not a scarecrow, but I know that he never says anything that he does not believe to be true. Yesterday, I was called on by the Edinburgh Evening News to respond to his suggestion that there should be another referendum in Scotland and that the question should be: "Are you sure that you want to vote for a Scottish Parliament?" For the first time in my political career, I was speechless; but he knows that I respect his integrity. He was indeed the only Labour Member not to sign the Claim of Right, which is encapsulated in the splendid amendment. I am somewhat bemused by the line taken by the official Opposition. All my political life I have been taught and have believed that there is a tension between the concept of popular sovereignty—sovereignty of the people—and the uniquely British concept of the sovereignty of the Queen in Parliament. The hon. Member for North Essex (Mr. Jenkin) started his speech by saying that there was no such tension, and finished it by saying that there was a tension between the Claim of Right asserting popular sovereignty in Scotland and the concept of the sovereignty of the Queen in Parliament. There has been a continuing thread through Scottish political thought that emphasises the sovereignty of the people, which is not necessarily in conflict with the monarchy. Many would argue that the declaration of Arbroath promulgated the concept of an elective monarchy. It said, and I paraphrase because I do not have it off by heart, that if good King Robert did not defend the rights and responsibilities of the community of the realm, we could get rid of him and have someone else as the monarch. Monarchy and popular sovereignty are not necessarily in conflict. The question is which has primacy. The hon. Member for Falkirk, West (Mr. Canavan) and I believe that the sovereignty of the people should have primacy, so the oath of affirmation and the fundamental loyalty of the Members of the Scottish Parliament should be to the well-being of the Scottish people, from whom they derive whatever authority and responsibility they have. I hope that the Government will accept the amendment. I am led to believe that they may do so by the answer that the Secretary of State gave me almost a year ago. He said: Even though the hon. Gentleman"— he was talking about me— and I may have differences of interpretation, I hope that he will accept that I should be the last to challenge the sovereignty of the people or deny them the right to opt for any solution to the constitutional question that they wish."—[Official Report, 21 May 1997; Vol. 294, c. 725.] That is a solid affirmation in support of the affirmation called for in the amendment. The hon. Member for Falkirk, West is splendidly consistent and has argued robustly for many years for a particular position on the constitutional question. There are those in his party who tell me that the nearest that he will get to being a Member of the Scottish Parliament is the visitors' gallery. That would be a great pity for that Parliament. I hope that whoever determines such matters in his party will find the wisdom to allow him to stand. Having argued the cause for many years, he has the right to be there. Whatever happens to this splendid, small but critical amendment, we can be certain that he will affirm the values for which he has stood consistently in Scottish politics for many years. Would that others had his consistency of position on the sovereignty of the people of Scotland.

Desmond Swayne (Conservative, New Forest West)

I have great difficulty even with the language of the amendment. The hon. Member for Falkirk, West (Mr. Canavan) said that the oath was to be voluntary. The amendment says: every member elected to the Scottish Parliament to be requested to make the following affirmation", but that is preceded by the phrase, The standing orders shall include a requirement for". There is merely a requirement that everyone should be asked to take the oath. However, the phrase that follows the oath reads: and no other affirmation or oath shall be required of members of the Scottish Parliament. In other words, that oath is "required". There seems to be a contradiction between the two halves of the amendment. It strikes me as extraordinary that an oath should be required to be put to Members of the Scottish Parliament, but that they should not be required to take it. What is the purpose of an oath? It is similar to the purpose of a creed. If one goes to church and says the creed, one expresses one's identity and membership of that institution. If one cannot say the creed, one by definition excludes oneself from the Church. 8.30 pm By specifying an oath for Members of the Scottish Parliament, we are asking them to subscribe to fundamental propositions inherent in the nature of that Parliament. If they cannot do that, they will disqualify themselves, just as hon. Members who refuse to take the oath in the House disqualify themselves from sitting here. They are unable to subscribe to the fundamental consensus that underpins this institution. I fail to see why that should be different in Scotland. I will go further. To put a proposition to Members of the Scottish Parliament that is fundamentally different from the one put to hon. Members here would be most unsatisfactory. The Bill was put to us on the basis that we would remain a united kingdom. The Bill was supposed to protect the Union. As far as I am concerned, nothing could be more symbolic of the Union than the fact that the two Parliaments would remain united under the Crown, which would be symbolised by having Members of both Parliaments take the same oath. Giving Members of the Scottish Parliament a very different oath—whether or not it is voluntary—would be most regrettable, although I fear that it may merely be a recognition of the true state of affairs.

Donald Gorrie (Liberal Democrat, Edinburgh West)

The amendment raises two points. One is an issue that affects the House. Perfectly worthy citizens who hold republican views must, in effect, perjure themselves by swearing an oath of allegiance to Her Majesty. That strikes me as extraordinarily demeaning, and we should address it.

Bernard Jenkin (Conservative, North Essex)

The hon. Gentleman should not regard it as demeaning. It is not a religion to swear allegiance to Her Majesty the Queen; it is simply a recognition that that state of affairs has the broad consent of the population. The hon. Gentleman may wish to change that, but it is the framework within which to seek to pursue change. To swear allegiance to Her Majesty the Queen is not to declare that one is a royalist.

Donald Gorrie (Liberal Democrat, Edinburgh West)

With respect, I think that it is. Compelling people to swear things that they do not believe is not the sort of thing that we should do. It does not affect me, but I feel for those for whom it matters.

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

Has the hon. Gentleman reflected on why an oath is necessary at all? No elected councillor or Member of the European Parliament swears an oath, yet they seem perfectly capable of carrying out their functions. What difference does it make?

Donald Gorrie (Liberal Democrat, Edinburgh West)

I agree. I do not think that an oath is necessary. Either one behaves well, or one does not; no oath will make any difference. Some Conservative Members seem to feel that the amendment is an independence amendment. They feel that one can sign the Claim of Right only if one favours independence, but that is not true. The people have sovereign power; even the Conservative party accepts that, and numerous Conservatives have said over the years that if the Scottish people vote for independence, they will have independence. The concept of the sovereignty of the people is accepted, but the Conservatives seem to have extraordinary difficulty with devolution, which seems to be a sort of gastric block somewhere in their tubes. That is their problem, and they must deal with it. The Conservatives accept the sovereignty of the people. Those who signed the Claim of Right, and believe in it, feel that the Scottish people have clearly said that they want a Parliament of their own, but in the United Kingdom. If at some future date a majority say that they want an independent Parliament, that will doubtless happen, but for now the Claim of Right seems reasonable. Whether the best way in which to proceed is to have a requested oath, I do not know, but the motives behind it are admirable. I do not see why people should have to swear oaths, but if they do, an acknowledgement of the sovereign rights of the Scottish people is a good thing.

Eleanor Laing (Conservative, Epping Forest)

Some hon. Members have suggested that the Government might consider accepting the amendment. I sincerely hope that they do not, for three good reasons. First, the Government cannot accept, or even consider accepting, the amendment if they insist that their plans for devolution are designed to strengthen, not weaken, the Union.

Alex Salmond (Scottish National Party, Banff and Buchan)

Will the hon. Lady give way?

Eleanor Laing (Conservative, Epping Forest)

I have hardly started, but I will stop and start again.

Alex Salmond (Scottish National Party, Banff and Buchan)

The hon. Lady may hardly have started, but she has made an important point. Is she aware that Ministers, including the Secretary of State and the Minister of State, have already signed such a declaration, in the Claim of Right? Why on earth should they refuse to accept it in the Bill?

Tim Collins (Conservative, Westmorland and Lonsdale)

That is their problem.

Eleanor Laing (Conservative, Epping Forest)

That is indeed their problem, but I take the point made by the hon. Member for Banff and Buchan (Mr. Salmond). I believe that it was irresponsible and short-sighted for any hon. Member to sign the so-called Claim of Right—except for members of his party, who really believe in republicanism and a separate Scotland. If, however, the Government insist, as they do, that their plans for devolution are intended to strengthen the Union, they cannot—no matter what they have signed, under whatever misapprehension—accept the amendment.

Alex Salmond (Scottish National Party, Banff and Buchan)

Perhaps I can tell the hon. Lady a little bit of history. The Scottish National party did not, in fact, sign the Claim of Right, although we believed in it; the question is whether those who did sign it believed in it.

Eleanor Laing (Conservative, Epping Forest)

I thank the hon. Gentleman for enlightening us with that little bit of history, as he called it, but we are discussing the serious matter of what will actually be in the Bill. What may or may not have been signed in the past—and I know that we can go all the way back to the declaration of Arbroath and so on and so forth—is very interesting in its historical context, but it is not relevant to the future of Scotland. We are discussing that future, and what will actually be in the Bill. The amendment is ludicrous for three reasons. First, it would be a complete negation of the United Kingdom. I know that the hon. Member for Banff and Buchan would like that to happen, but I did not know that the hon. Member for Falkirk, West (Mr. Canavan) had aligned himself to such an extent with the Scottish National party. That is entirely up to him, of course, and I accept that he believes in his arguments. However, the rest of his party cannot possibly believe in them. Not only is the amendment a negation of the Union; it negates the position of Her Majesty the Queen as the sovereign in whom we, as an elected Parliament, vest our democratic and constitutional rights.

Alex Salmond (Scottish National Party, Banff and Buchan)

One last intervention. In her memoirs, "The Downing Street Years", Lady Thatcher said that if the Scottish people were to determine on independence, no English politician, certainly not herself, would gainsay that decision. I paraphrase, but is that not an affirmation from the great Lady Thatcher of the right of sovereignty of the Scottish people?

Eleanor Laing (Conservative, Epping Forest)

I appreciate that that is a paraphrase and not exactly what she said, but it is close. I accept that, and, of course, I entirely agree with it. There is nothing wrong with that, but that is not what we are discussing. The hon. Gentleman strays from the point, and I am being too generous in accepting his interventions. Naturally, Lady Thatcher was right. I choose my words carefully. That is why I agree with her and that is why we are not in principle against devolution because it is the will of the Scottish people. The first reason why the amendment cannot be accepted is that it negates the sovereignty of Her Majesty the Queen, which we vest in her as an elected parliamentary body.

Tim Collins (Conservative, Westmorland and Lonsdale)

My hon. Friend is making a wonderful speech and demonstrating that there is another Conservative woman who is naturally always right. Will she focus on why it is beneficial to those who believe in democracy to vest sovereignty in the monarch? Dictators across the years, from Hitler to Stalin to Saddam Hussein, have all paid lip service to popular sovereignty. Only by having a sovereign above and outside politics can we ensure that we have smooth-running, democratic politics and no risk of dictatorship.

Eleanor Laing (Conservative, Epping Forest)

My hon. Friend is right. It is because of the risk of dictatorship and other forms of republicanism that we are proud of our heritage and our constitution, which has at its head Her Majesty the Queen as the sovereign in Parliament. She is not the sovereign alone, but the sovereign in Parliament in making the laws of our country. My hon. Friend's other remarks are probably the nicest thing that anyone has ever said to me.

Alex Salmond (Scottish National Party, Banff and Buchan)

That will not get you anywhere these days.

Eleanor Laing (Conservative, Epping Forest)

That is all I am admitting to anyway. Secondly, the amendment is an atheist's charter. I respect the rights of anyone who wishes to be an atheist. It is up to each of us personally whether and how we believe in God, or which god we believe in. However, if the amendment were accepted, Members of the Scottish Parliament would have no choice but to make the affirmation. That is out of character with our democratic system. When Members come to this House, they are given the choice of swearing the oath of allegiance by almighty God or affirming. The amendment would mean that MSPs had no choice. When I took the oath of allegiance a year ago, I heard two new lady Members of the Labour party discussing whether to swear or affirm. One said that she would not swear because she did not believe in God, but the other said that she was not sure whether she would affirm or swear. It amazed me that someone could go so far in life as to become an elected Labour Member without knowing whether she believed in God. Presumably, she was waiting for her bleeper to tell her whether she was supposed to swear or affirm. She had been here for three days, but she had to wait for the "voice of Mr. Mandelson". Thirdly, some MSPs would not be able to say the words in the amendment. I could not if I became an MSP, not that that is possible because I will not stand. The oath of allegiance to Her Majesty the Queen is what binds the United Kingdom together. Members who support this amendment are merely showing, once and for all, that they are bent on the destruction of the United Kingdom.

Henry McLeish (Labour, Central Fife)

I am grateful for the fact that the hon. Member for Epping Forest (Mrs. Laing) has finished, because, the more I listened to her, the more I might have been tempted to go astray on the amendment. I will resist that temptation. We have to return to the pragmatic decision before us on the two amendments tabled by my hon. Friend the Member for Falkirk, West (Mr. Canavan), whose sincerity is never in doubt. I acknowledge the consistency with which he tabled certain amendments. The Government ask the House to resist amendments Nos. 106 and 125. Provision has already been made in the Bill for all Members of the Scottish Parliament to take the oath of allegiance provided for by the Promissory Oaths Act 1868 or to make the corresponding affirmation. Members of the Executive will also be required to take the official oath under the 1868 Act and the oath of allegiance, where they have not already taken it as MSPs. That is in line with current practice at Westminster and recognises the relationship between the Parliament and Her Majesty, as has been noted in the debate. Hon. Members will agree that clause 79 does nothing contentious. It simply makes a similar provision for the taking of the oath for Members of the Scottish Parliament and the Scottish Executive as is required of Members of this House and Ministers, which is entirely appropriate.

Ray Michie (Liberal Democrat, Argyll and Bute)

The Minister talks about what happens when new Members are elected to the House of Commons. Will he confirm that the practice here whereby the oath can be taken in English, Gaelic or Welsh will be extended to allow the oath to be taken in English or Gaelic in the Scottish Parliament? I was the only Member who took it in Gaelic after the last general election. I hope that the practice will apply to the Scottish Parliament.

Henry McLeish (Labour, Central Fife)

That is interesting. We have established a constitutional consultative steering group and done considerable work on identifying virtually every issue that we need to discuss, but I am not sure that that is on the agenda. I assure the hon. Lady that that will happen. We need that consistency. It is a valid point. I will find out whether the point is covered in the deliberations; if it is not, it will be.

Tam Dalyell (Labour, Linlithgow)

I listened carefully to my hon. Friend. For clarity's sake, does this not mean, to use his word "simply", that the Government, rightly or wrongly, have recanted on the Claim of Right?

Henry McLeish (Labour, Central Fife)

Not at all. We have had a rich and heady mix of constitutional, governmental and parliamentary theory, but there is no inconsistency about the comments of my right hon. Friend the Secretary of State for Scotland on the sovereignty of the people, to which the hon. Member for Banff and Buchan (Mr. Salmond) alluded. Nor is the signature of the Claim of Right inconsistent with the points that we are making this evening, in the context of Parliament and of taking the oath. Hon. Members would no doubt also agree that it is proper that MSPs and members of the Executive take an oath that is symbolic of the relationship between the Parliament, the Executive and Her Majesty.

Bernard Jenkin (Conservative, North Essex)

I asked the Minister two specific questions, neither of which he has troubled to answer. First, if it was right to sign the Claim of Right as a member of the Scottish Constitutional Convention, why is not the Claim of Right the right oath for a Member of the Scottish Parliament? The Minister has not squared that circle. Does he want to deal with that first before I come back on my second point?

Henry McLeish (Labour, Central Fife)

indicated dissent.

Bernard Jenkin (Conservative, North Essex)

I generally dislike long interventions, Mr. Deputy Speaker. My second question refers to clause 79(3), which amendment No. 125 would delete and which states that, if an MSP has not taken the oath within the period of two months beginning with the day on which he was returned, or such longer period … he shall cease to be a member of the Parliament (so that his seat is vacant). Does the Minister understand what a crisis that provision would cause if it applied to this Parliament, with Sinn Fein Members refusing to take the oath and being re-elected again and again on a platform that was designed to undermine the constitution?

Henry McLeish (Labour, Central Fife)

On the second point, we have no difficulties with that whatsoever. That is a pragmatic response to a question that, in our judgment, is not relevant. On the question of the Claim of Right, I alluded to that in my response to my hon. Friend the Member for Linlithgow (Mr. Dalyell). We do not want to indulge in further political and constitutional theory, but I see no inconsistency between the statements made by my right hon. Friend the Secretary of State in response to comments often made by the hon. Member for Banff and Buchan, nor do I see any inconsistency in relation to the constitutional convention. However, we are now dealing with the simple, consistent matter of taking an oath in the new Parliament, and I urge the House to reject the two amendments tabled by my hon. Friend the Member for Falkirk, West.

Dennis Canavan (Labour, Falkirk West)

I am disappointed that my hon. Friend the Minister is recommending rejection of my amendments, because he and I were original signatories of the Claim of Right back in 1989, at the inaugural meeting of the Scottish Constitutional Convention in the assembly hall of the Church of Scotland in The Mound in Edinburgh. I should have thought that, for reasons of consistency if nothing else, he would support my amendment No. 106. Indeed, the Secretary of State and all the Scottish Office Ministers were co-signatories of the Claim of Right and I deliberately worded my amendment so that its wording was exactly the same as that of the declaration that we all signed nine years ago.

Bernard Jenkin (Conservative, North Essex)

Perhaps to be consistent with Government policy, MSPs should take both oaths of allegiance—to the Queen and to the Scottish people. I do not suggest that that is Opposition policy, but it might have tempted the Minister, as that appears to be his position.

Dennis Canavan (Labour, Falkirk West)

Under the terms of my amendment, there would be a choice. I would not exclude people who, because of royalist or Unionist convictions, felt that the Claim of Right stuck in their craw. I cannot understand why it should stick in their craw if they are democrats, but, if it did and they refused to take the oath, I would not be in favour of excluding them. Conservative Members appeared to suggest that the practice in the House somehow gives Members of Parliament a choice, but the only choice is to come up after being elected and either take the oath or take the affirmation. If a Member of Parliament refuses both, he or she is not allowed to take part in the proceedings of the House and I should not like to see that replicated in the Scottish Parliament. The hon. Member for North Essex (Mr. Jenkin) rightly referred to the possibility of a crisis—not a huge constitutional crisis, but a mini-crisis—if a Member or group of Members duly elected by their constituencies refused to take the oath. Clause 79(3) states that, if an MSP has not taken the oath within the period of two months beginning with the day on which he was returned, or such longer period as the Parliament may have allowed before the end of that period, he shall cease to be a member of the Parliament (so that his seat is vacant). In other words, he or she can then go back to the constituency that elected him or her and seek re-election through a by-election. There could be a whole group of people coming in and out of the Parliament whom the Parliament refused to allow to take their seats because they had not taken the oath. If my amendments were accepted, that would help to avoid such a crisis, so I hope that the hon. Member for North Essex and the rest of the Opposition Front-Bench team will support me.

Alex Salmond (Scottish National Party, Banff and Buchan)

The hon. Gentleman is coming to the point that crystallises the wisdom of his amendment. Current procedures of the House have led to the state of affairs in which Ministers of the Crown cross their fingers when taking the oath. Under the arrangements in his amendments, it would be left to the Scottish people to decide the fate of anyone who refused to swear allegiance to, or to affirm, the sovereignty of the Scottish people. The hon. Gentleman's solution is a far more democratic solution and is greatly superior to the procedures of the House.

Dennis Canavan (Labour, Falkirk West)

I agree. The democratic principles enshrined in the Claim of Right would have more universal appeal than the principles, if they can be called principles, in the proposed oath—assuming that the proposed oath is the same as the one that we are required to take when taking our seats in the House. I know some people of a republican persuasion who, when taking the oath or affirming, simply acknowledge that the Queen is the de facto Head of State, but who would like this country to have a democratically elected Head of State, rather than a Head of State who has simply inherited that position from her parent. Some Members, especially new Members, who do not particularly believe in the monarchy might have some crisis of conscience over taking the oath or affirming. That would be avoided by doing away with the requirement completely. I realise that we are talking not about this place—although I would welcome such a development here as well—but about the Scottish Parliament and people taking their seats there. The criticism of my amendment included the point that it posed a threat to the integrity of the United Kingdom—I believe that the hon. Member for Epping Forest (Mrs. Laing) said that. What is the United Kingdom? Is it, as its name suggests, simply the domain of a monarch? If so, is that really what people are defending when they defend the integrity of the United Kingdom? I should have thought that, if there is an argument for the defence of the United Kingdom, it would be in terms of the bonds of friendship and culture and the social and economic links between the different parts of the United Kingdom. I should not have thought that it was simply a matter of allegiance to the Head of State.

Eleanor Laing (Conservative, Epping Forest)

Is not the sovereign the symbolic point of focus for those ties and friendship? It is a united kingdom, with a sovereign at the top. That is why the oath of allegiance is the one oath that binds every person in the United Kingdom, symbolically, to the sovereign.

Dennis Canavan (Labour, Falkirk West)

If the hon. Lady is saying that, if what is now called the United Kingdom developed into a republic, its integrity would somehow be demolished, that is rather a weak argument for the integrity of the United Kingdom. The Queen is also head of the Commonwealth, but it contains many countries that are republics and do not have the Queen as their Head of State. The hon. Member for North Essex said that the Claim of Right was inherently nationalist. It is not nationalist in a narrow-minded sense. I am sure that most, if not all, of those who subscribe to the Claim of Right for Scotland would also recognise the claim of right of other nations, including those that make up the United Kingdom, particularly Wales and England. There ought to be recognition of other nations' claims of right, as well as of that of the people of Scotland. I was disappointed to hear the shadow Minister saying that the Claim of Right is somehow mediaeval. I would say that the sovereignty of monarchs, rather than of the people, is a mediaeval concept. The sovereignty of the people is much more relevant to a modern, egalitarian democracy. Amendment negatived.

STANDING ORDERS—FURTHER PROVISION

Donald Gorrie (Liberal Democrat, Edinburgh West)

I beg to move amendment No. 111, in page 57, line 39, after 'sub-committees', insert 'other than regional committees and regional sub-committees.'.

The rest of the debate is in Hansard.