Orders of the Day — Scotland Bill

House of Commons, 19 May 1998.

STAGES OF BILLS

Michael Ancram (Conservative, Devizes)

I beg to move amendment No. 7, in page 16, line 35, leave out from beginning to end of line 7 on page 17 and insert— '.—(1) Each Bill considered by the Parliament shall comprise the following stages— (a) a general debate and vote on the principles of the Bill; (b) a committee stage for members of the Parliament to consider and vote on the detail of the bill and for interested bodies to make representations to the Parliament; (c) a further stage for interested bodies to make representations to the Parliament; (d) a report stage to consider any amendments subsequent to the committee stage in subsection (1)(b) and the further stage for representations in subsection (1)(c); (e) a final debate and vote on the Bill at which the Parliament can either pass or reject it. (2) A period of not less than three calendar months shall separate the stages of the Bill mentioned in subsections (1)(b) and (1)(d) unless otherwise provided for by a resolution supported by the votes of not less than two-thirds of the total number of seats for members of the Parliament.'. As we near the end of this long road, we must feel rather like those in history who embarked on long marches. I hope that we can deal today with those matters that have not been covered since we began this process on 12 January. Amendment No. 7 is designed to fill what we believe is a serious gap in the provisions of the legislation. I suspect that the Minister will say that the procedures of the Scottish Parliament are a matter for that Parliament and for the committee that is advising him. I simply remind him that the Bill—rather unusually at this stage—requires the Standing Orders to contain certain provisions. We think that that is right: the House should have an overview of the general way in which the Scottish Parliament will operate. Clause 34, which I am seeking to amend, already includes provisions governing the stages through which legislation must pass in the Scottish Parliament. My amendment is before the House because we believe that those provisions are inadequate in very specific and important ways. The amendment seeks to address the fact that the Scottish Parliament is unicameral. When the Bill leaves the House today, it will go to another place where the noble lords will examine our work closely and, for all I know, may ask the House to think again about certain measures that have been passed. That is right, because that is the proper role of a scrutinising Chamber. The ability to require the main House of Parliament to reconsider legislation that may be inadequate, badly drafted or fundamentally wrong is an important safeguard within our constitution. That facility does not exist for the Scottish Parliament. According to the Bill, legislation will pass through the stages set out in clause 34. Subsection (1)(a) essentially provides for a Second Reading debate, subsection (1)(b) provides for a Committee stage and subsection (1)(c) provides for a Third Reading.

Alex Salmond (Scottish National Party, Banff and Buchan)

I am following the right hon. Gentleman's argument quite closely. He seems to be cutting across the purpose of the consultative group that is examining those aspects, which includes Conservative representatives and the Minister of State as chairman. Why is the right hon. Gentleman cutting across his own party in Scotland, which is attempting to agree those matters, by trying to be so prescriptive in this place?

Michael Ancram (Conservative, Devizes)

The hon. Gentleman may not have been listening when I said that I expected that to be the answer given to me by the Minister. The hon. Gentleman should look at clause 34, which already does precisely that. I merely think that it does it inadequately, so it is important that we point out the inadequacy. Report stages, let alone a second chamber, are missing from the Bill. Report is a useful stage for legislation. Hon. Members should look at the amendment papers for last Tuesday and for today: the vast majority of amendments are Government amendments to areas that they failed to get right when the Bill was drafted or failed to adjust sufficiently in Committee. They have an enormous amount of revising work to do on their own Bill on Report. When the Bill reaches the House of Lords, even more Government amendments may be tabled. I make no complaint about that, because a procedure that takes a Bill through Parliament in such a way that faults can be cured before it reaches the statute book and becomes law is an important protection of the quality of legislation. If such omissions occur during those three stages when a Bill goes through the Scottish Parliament, however, there will be no way to correct them, other than by amending the original primary legislation through further primary legislation. That cannot be satisfactory, from anyone's point of view. The only people who might find pleasure in such a situation are in my old profession, the law, which lives on the mistakes made by Governments and omissions in legislation. That is the basis on which they can earn a good living, but we must try to ensure that such a situation does not arise. In my view, there is no case for a second chamber in the Scottish context. We would all agree that, if anything, there is too much politics and that there will be all sorts of layers of politicians in Scotland. To create yet another layer would not meet with the approval of the Scottish people, whatever form it might take and whatever its context and powers. We considered whether, in terms of the Scottish Grand Committee, which is exclusive to Scottish MPs, there might be a role for Scottish Members of Parliament elected to this place by the Scottish electorate, but we decided that that might be difficult and cumbersome. The amendment is simple: it would add two further stages to the three in the Bill. The first stage would be a period of reflection and consideration. When Committee consideration—the stage described in clause 34(1)(b)—had been completed, legislators could reflect on the nature of the legislation for three calendar months. More important, those concerned with the legislation's effect and those with an interest in its working properly would have a chance to make representations and suggestions to the Scottish Parliament which could be taken into account before the Bill completed all its stages. The second stage would be Report. Following the period of reflection and the making of representations, the Parliament would have the chance to table or to consider amendments reflecting such representations and, indeed, to press for some reconsideration by the Administration. The amendment would not tie the hands of the Scottish Parliament; we are making more sense of something that is deficient. Although the Minister's record in acceding to amendments has not been good, we have tabled the amendment in the hope that he will realise the sense of it and accept it. It is in the interests of everyone in Scotland that the Parliament produces quality law. Perhaps I should declare an interest. Although I have not practised since 1979, I am a Scottish advocate who admires the Scottish legal system and who often boasts about the quality of Scottish law. It would be sad if devolution resulted in less considered laws being passed, because that would lead to a diminution in the quality of Scots law. For that reason and to give a greater say to bodies in Scotland that might have an interest in the legislation, I commend the amendment.

Tam Dalyell (Labour, Linlithgow)

The process would not be difficult and cumbersome, as the right hon. Member for Devizes (Mr. Ancram) would have it. It would be politically impossible, and we must rule out straight away any idea that the Scottish Grand Committee or anything like it could possibly be a revising body, because that would lead to all sorts of political difficulties and frictions. It is not clever either to suggest a body that is equivalent to the House of Lords. I do not know what it would be called—possibly the House of Thanes. That is out. However, there is a real problem and it would be much more satisfactory to have some kind of revising mechanism. I have a question for the Government. We read about a new body called the council of the isles. I do not know what substance there is in that or the form that such a body would take. Is it envisaged anywhere, as has been suggested in some sections of the press, that that council could take the place in the legislative process of the House of Lords? The answer may be no, but I should like to have an answer.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

The amendment's motives are no doubt well intentioned. They are to try to ensure that the laws that are passed by the Scottish Parliament are understandable and effective. Like the right hon. Member for Devizes (Mr. Ancram), I declare an interest as I am a member of the Faculty of Advocates. However, I am not sure that legislation is necessarily the greatest jewel in the crown of Scots law. I am sure that there are many ways in which we could improve our law making. We could try to frame our legislation in language that is much more readily understood by lay people. I hope that the Scottish Parliament will address that. My objection to the amendment is that it is far too prescriptive. I acknowledge that provisions in clause 34 have to be included in Standing Orders, but the amendment goes too far and would tie the Parliament's hands and, in the meantime, those of the consultative steering group. That group could do much imaginative work about how legislation should be treated, not least by pre-legislative Committees, which are completely missing from the Bill. All of us who were involved in the constitutional convention and in discussions in the constitutional steering group, most recently yesterday, agree that there should be proper, widespread consultation before Bills are laid before the Scottish Parliament. That would go a long way towards giving the reassurances that were sought by the right hon. Member for Devizes. Legislation should address the needs that have prompted it. I fear that some of the time scales could be unrealistic, although there is a let-out clause for a two-thirds vote. I hope that the Scottish Parliament will not be hidebound by a requirement to pass all its legislation in one year. There should be provision for rollover into the following year if that makes sense. That, in itself, would provide further opportunities for consultation. The consultative steering group and the Parliament should not be tied by the type of structures that are employed in this Parliament. They may work well here, but we are starting with a clean sheet and we should be allowed to engage in some lateral thinking to see how things could be done differently and, I hope, better. I oppose the amendment.

Dominic Grieve (Conservative, Beaconsfield)

The difficulty that has been faced throughout this legislation is that there is a desire to give Scotland the maximum devolved government within the ambit of the Bill, but it is a devolved Parliament, and the buck will stop back in this place, which is one of the problems that the hon. Member for Linlithgow (Mr. Dalyell) has touched on frequently during our debates. Therefore, the difficulty that we face is the extent to which we should try to go into the procedure of the Parliament to ensure that it works properly. The amendment is a good one because it does not stray so far into procedure. That is not a matter which can be left solely to the Scottish Parliament. It is essential, if we have a unicameral Parliament in Scotland, that there should be procedure for proper scrutiny, so that, if complaints arise, we can at least say, "There is a perfectly clear system for dealing with this in Edinburgh. Don't come bleating to us about it. The system is there and the scrutiny has properly taken place."

John Swinney (Scottish National Party, North Tayside)

I do not feel that the hon. Gentleman has learnt many of the lessons of the referendum. People in Scotland voted for a particular type of Parliament, as set out in the White Paper, and that Parliament should be allowed to take its decisions. If the Conservatives had reflected more on the feeling in Scotland and the demand in the referendum for a Parliament of the nature that is being established, the problems that he says the Parliament is incapable of addressing of its own free will would not arise. It seems a rather supremacist attitude.

Dominic Grieve (Conservative, Beaconsfield)

I think that the hon. Gentleman has misunderstood the point that I am making. What is more extraordinary, he has misunderstood his party's position in the referendum. It backed a devolved Parliament. It did not back a sovereign Parliament. As Ministers have said on countless occasions, the Parliament is devolved and residual responsibilities will remain here. I believe that they will remain here in practice. When complaints arise, they will still be ventilated in this place, although how we are ever going to deal with them, I do not know. It is certainly not a supremacist attitude.

John McAllion (Labour, Dundee East)

Will the hon. Gentleman explain to me, as I am a bit slow on the uptake, where it says in the Bill that the way in which the Scottish Parliament conducts its business is a reserved matter for Westminster?

Dominic Grieve (Conservative, Beaconsfield)

The way in which the Scottish Parliament conducts its business is not a reserved matter. If badly drafted legislation goes through the Scottish Parliament, and there are complaints about it which are brought back to this place, that will be a matter for us. It is bound to be a matter for us; that is one of the central difficulties of this whole legislation.

Alex Salmond (Scottish National Party, Banff and Buchan)

Can the hon. Gentleman, as a relatively new Member, think of any badly drafted legislation that has gone through this place—pioneered by the right hon. Member for Devizes (Mr. Ancram), in the case of the poll tax legislation—and through exactly the processes that he is trying to impose on the Scottish Parliament?

Dominic Grieve (Conservative, Beaconsfield)

I cannot think of any in the past 12 months. I can certainly think of stacks of badly drafted statutory instruments that have gone through the House. I have to look at them once a week. There is much bad legislation being passed. That is not a reason why we should not try to set up systems for Edinburgh that are workable. The matter is of particular importance because it is going to be a unicameral assembly.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

The hon. Gentleman said that if legislation that is passed in Edinburgh is bad and does not work, it will have to be tidied up or brought back to the House. By what mechanism does he see that happening?

Dominic Grieve (Conservative, Beaconsfield)

I did not say that. If the hon. and learned Gentleman had listened, he would have realised that that was not what I said. I said that if bad legislation is passed, the fact that sovereignty is remaining with this Parliament will, by implication, lead to problems that arise in Scotland being brought back to this Chamber. They will be raised in the House by Members of Parliament for Scottish constituencies. The matter simply will not go away, and I wish to minimise any adverse consequences. The best way of doing that, if it is necessary to do so, is for hon. Members to be satisfied, when we devolve power to Edinburgh, that the scrutiny system is such that we are wholly happy with it—which is the purpose of clause 34 and amendment No. 7.

Henry McLeish (Labour, Central Fife)

I shall attempt to be helpful. In devolved matters within the legislative competence of the Scottish Parliament, the Parliament will be in a position to make good or bad legislation. In my judgment, it will be good legislation. There will be an opportunity to interface with Westminster only when there is an issue of vires or of, for example, Scots law impinging on reserved matters. Otherwise, hon. Members will have no locus in the Scottish Parliament's deliberations on legislation in devolved matters.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for teaching me, as a new hon. Member, to suck eggs. However, we have been discussing the point dealt with in the amendment throughout the passage of the Bill. I appreciate what the Minister is saying—that that is how the system should work. Nevertheless, if there is a problem in Edinburgh with badly drafted legislation, or with a range of other issues, I do not share his confidence that, in practice, those matters will not resurface in this place. As I wish for such consequences to be minimised, and as I think that amendment No. 7 is innocuous in establishing a procedure that the House could broadly agree with, I commend it to the House. The amendment is not straying too far down the road of fettering procedure, but simply acknowledges the fact that the Edinburgh Parliament will have competence on a range of devolved issues and that it will be unicameral. Therefore, it is desirable that, from the outset, there should be a clear set of guidelines on the consideration of legislation, so that that issue should not thereafter be a contentious one, either within the Edinburgh Parliament, or between the Edinburgh Parliament and this place. That is the purpose of amendment No. 7, which is why the Minister should pay attention to it.

Alex Salmond (Scottish National Party, Banff and Buchan)

I can describe the speech by the hon. Member for Beaconsfield (Mr. Grieve) only as an "us and them" speech, about what us in this place should prescribe for them in the Scottish Parliament. Perhaps, after the advice of the hon. Member for Linlithgow (Mr. Dalyell), I should be speaking as a thane of Buchan. The Conservative party is in a state of political schizophrenia. Although there is no cure for schizophrenia, and it is very difficult to diagnose, I have been able to diagnose it in the Conservative party. When I speak to Conservatives in Scotland—in, for example, the Minister's consultative committee—they are enthusiastic, or say that they are, about developing new processes for the new Scottish Parliament, to try to do rather better and to pass less bad legislation than this place has done in the past 20 years or so. However, Conservative Members here seem to have absolutely no awareness of the arguments that have been accepted, and in some cases promulgated, by the Conservative party in Scotland.

Michael Ancram (Conservative, Devizes)

rose—

Alex Salmond (Scottish National Party, Banff and Buchan)

I give way to the man who piloted through the poll tax.

Michael Ancram (Conservative, Devizes)

I am grateful to the hon. Gentleman. He likes polishing that cherry from time to time, but it is getting fairly rotten and will not last much longer. Earlier, I told him that he was not listening to what was said. He is also not reading what is on the amendment paper. He keeps saying that we are proposing the procedures of this place for the Scottish Parliament. If he can tell me where in our procedures there is mention of a three-month period between Committee stage and Report stage, during which interested parties—such as trades unions and businesses— can make representations on legislation, I should be interested to hear it. Such a period is a new idea, which I believe is worthy of consideration for the Scottish Parliament. I am surprised that, whenever any proposal is made by the Conservative party, the hon. Member for Banff and Buchan (Mr. Salmond) seems to become blind and deaf, but, unfortunately, not dumb.

Alex Salmond (Scottish National Party, Banff and Buchan)

Definitely not dumb; and I am not foolish enough to believe that the poll tax will disappear from the public memory in Scotland as quickly as the right hon. Gentleman hopes. He has missed the point entirely. The point is not whether his ideas in amendment No. 7 are good or bad. The point is that it is not properly the province of this place to dictate any ideas on procedure to the new Scottish Parliament. A steering group, on which the Conservative party is represented, is debating such things.

Michael Ancram (Conservative, Devizes)

The provisions are in the Bill.

Alex Salmond (Scottish National Party, Banff and Buchan)

The provisions are in the Bill in outline form—precisely because the Minister of State is keenly awaiting ideas from the steering group that he has established. The last thing that he needs is to be pre-empted by these foolish and rather ill-thought-through amendments tabled by the Conservative party in this place. The Minister is anxious to get to his feet, so I shall provide just one example to illustrate my point—not that of the poll tax, but of electricity privatisation. In 1988, I served on the Select Committee—which had a Tory majority—that appealed to Lord Parkinson, the then Secretary of State for Energy, and to Sir Malcolm Rifkind, the then Secretary of State for Scotland, to delay legislation on electricity privatisation to allow an investigative committee to consider the issue. Both Secretaries of State declined that invitation, and, as a result, what the Committee described as "spatchcock legislation" was passed. The Minister of State has described a framework, and we should support him. We should allow his consultative group to do its work, and not attempt to wreck it with such foolish amendments.

Henry McLeish (Labour, Central Fife)

I shall respond first to my hon. Friend the Member for Linlithgow (Mr. Dalyell), who asked about the council of the isles as a revising chamber. I am not aware of any proposal that the council of the isles should act as a revising chamber instead of the House of Lords. Although I acknowledge the unicameral nature of the Scottish Parliament and therefore see some of the sense behind the issues proposed by the Opposition Front-Bench team, the Government believe that amendment No. 7 intrudes too far into the legislative processes of the Scottish Parliament. That point has been echoed in the debate. The amendment would impose requirements that could prove burdensome and unnecessary. It would require all Bills, no matter what their content, to be subject to at least three months of public consultation in the middle of their passage through the Scottish Parliament, unless two thirds of the Parliament voted to provide otherwise. By introducing further stages of detailed scrutiny, it could cause an unacceptable delay in the passage of Bills. Ultimately, it is for the Parliament to decide on its procedures, including arrangements for the scrutiny of legislation. None the less, the Bill requires the Standing Orders of the Parliament to make provision for three stages of parliamentary scrutiny. These are, first, a general debate on a Bill, with an opportunity for Members to vote on its general principles; secondly, consideration of, and opportunity to vote on, the details of the Bill; and, thirdly, a final stage at which the Bill may be passed or rejected. Those are the minimum stages which must be prescribed in the Bill. Further details should be left for the Scottish Parliament to decide. The White Paper explains that the Government expect Committees to play an important part in carrying out parliamentary business, and the Scottish Parliament will have power to establish such Committees as it considers appropriate. Ultimately, it will be for the Parliament to decide precisely what role Committees should perform, but we envisage that they could be involved in considering proposals for legislation before the formal legislative process has begun, including, in appropriate circumstances, taking evidence before a Bill is prepared. Their task will be to scrutinise and amend all proposals before the Parliament. Such a role will mean that the Scottish Executive's legislative and other proposals will be appropriately scrutinised before they are enacted. The all-party consultative steering group on the Scottish Parliament, which has been alluded to, agreed at its first meeting that arrangements for pre-legislative scrutiny should be introduced. The exact form that that might take will be considered carefully in the coming months. With cross-party agreement on the principle of pre-legislative scrutiny, amendment No. 7 becomes redundant. Pre-legislative scrutiny involving interested parties will result in the emergence of a greater consensus on legislation before it is introduced. Therefore, the need for a period of public consultation in the middle of the progress of a Bill through Parliament, as proposed, will not be necessary. It is useful to stress the work that is being done by the consultative steering group, which involves representatives of all parties, who are all making an excellent contribution. They are aware of the unicameral nature of the Scottish Parliament. They are keen to achieve consensus on legislation. Indeed, they are keen to improve radically on the Westminster model, which is important.

Owen Paterson (Conservative, North Shropshire)

Can the Minister name any genuine Parliament in the world that does not have a true revising chamber?

Henry McLeish (Labour, Central Fife)

I can furnish the hon. Gentleman with details on that question. We are not talking about the nature of a unicameral Parliament per se. We are talking about the right of the Scottish Parliament to decide on its legislative scrutiny and process.

Bernard Jenkin (Conservative, North Essex)

It is inadequate.

Henry McLeish (Labour, Central Fife)

We hear from a sedentary position that that is inadequate. The model that the Scottish Parliament will adopt will be a huge improvement on the Westminster model. It will involve people and experts, it will aim for consensus and it will ensure that we have the best possible legislation. I ask the House to reject the amendment.

Michael Ancram (Conservative, Devizes)

The Minister has answered my point in his own way. He said that there will be pre-legislative scrutiny in the Scottish Parliament. If ever legislation has had pre-legislative scrutiny, it is this Bill. There was a detailed White Paper last summer, a referendum campaign during which the proposals were discussed at length, and a three-month period before the Bill was produced, yet amendment after amendment has been tabled by the Government on Report. If this were a Bill in the Scottish Parliament, it would be too late and there would have to be further legislation. The amendment is much needed, and I ask my hon. Friends to support it.

JUNIOR SCOTTISH MINISTERS

Henry McLeish (Labour, Central Fife)

I beg to move amendment No. 46, in page 20, line 8, at end insert— `( ) The First Minister shall not seek Her Majesty's approval for any appointment under this section without the agreement of the Parliament.'. Amendment No. 46 fulfils the commitment that I gave in Committee to my hon. Friend the Member for Falkirk, East (Mr. Connarty), and will provide a role for the Parliament in the appointment of junior Scottish Ministers. That will bring the appointment procedure for junior Ministers into line with that for other Scottish Ministers. The Bill requires the Parliament to nominate the First Minister, who will be appointed by the Queen on the recommendation of the Presiding Officer. The First Minister will have to obtain the agreement of the Parliament and the approval of Her Majesty before appointing Scottish Ministers, and the amendment provides a similar role for the Parliament in the appointment of junior Scottish Ministers. Amendment agreed to.

THE CIVIL SERVICE

Henry McLeish (Labour, Central Fife)

I beg to move amendment No. 133, in page 20, line 18, leave out from 'appoint' to end of line 19 and insert `persons to be members of the staff of the Scottish Administration'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this, it will be convenient to discuss Government amendments Nos. 134 to 136, 146, 235 to 241, 246, 250, 252 to 255, 213, 216 and 217.

Henry McLeish (Labour, Central Fife)

The amendments are technical and clarifying—I shall explain them as quickly as possible, as I know that the House has yet to consider other important groups. Government amendment No. 213 clarifies what is meant by the term "Scottish Administration". Government amendments Nos. 134, 146, 236, 238, 239, 189, 199, 216, 217 and 245 are consequential. The Scottish Administration is an umbrella concept to describe what is, in effect, Her Majesty's Government in Scotland in relation to matters that are not reserved. It is important that the definition is clear—Government amendment No. 213 puts beyond any doubt who belongs to the Scottish Administration. The Scottish Administration is defined as the office holders in the Scottish Administration and their staff. Office holders in the Scottish Administration are defined as members of the Scottish Executive—that is the First Minister, the Scottish Ministers and the Law Officers—junior Scottish Ministers and holders of non-ministerial offices. Non-ministerial offices are defined as the Registrar-General of Births, Deaths and Marriages for Scotland, the Keeper of the Registers of Scotland, the Keeper of the Records of Scotland and other offices where the holders exercise functions that are conferred by an enactment and who are appointed by a member of the Scottish Executive—for example, the Accountant in Bankruptcy. The definition of the Scottish Administration can be changed by an Order in Council, which will be subject to parliamentary control by this Parliament and the Scottish Parliament, to take account of any future developments. I urge hon. Members to support these technical but necessary amendments. Government amendments Nos. 133 and 134 are designed to clarify the Government's policy that staff serving the Scottish Administration will be members of a unified home civil service. Amendment No. 133 makes it clear that Scottish Ministers may appoint not only staff in the Scottish Executive, but other staff of the Scottish Administration. Amendment No. 134 specifies that such staff and non-ministerial office holders of the Scottish Administration will be members of the home civil service. Government amendment No. 135 is a technical amendment to ensure that Scottish Ministers have the same delegated powers as Ministers of the Crown to deal with superannuation schemes affecting staff of the Scottish Administration. Government amendment No. 136 avoids ambiguity by making it clear that the Act referred to in clause 47(8) is the Civil Service (Management Functions) Act 1992. Government amendments Nos. 237, 240, 241, 246, 250 and 253 to 255 constitute a technical group designed to ensure that redundant references to Treasury consent and the Secretary of State are removed, and that appropriate powers are transferred to the First Minister and Scottish Ministers. Government amendments Nos. 240 and 241 clarify that the Secretary of State for Scotland's statutory power to appoint the Keeper of the Records, the Keeper of the Registers and the Registrar-General will transfer to Scottish Ministers. Government amendment No. 246 removes a function of the Secretary of State in relation to schools inspectors that will transfer by administrative action to the First Minister. Government amendment No. 250 clarifies that the Scottish Ministers will appoint the Accountant in Bankruptcy. Government amendment No. 252 makes similar changes in connection with the provision of prison staff. Government amendments Nos. 253 to 255 are technical amendments to the list of repeals in schedule 8. They are related to the amendments made in schedule 7.

Bernard Jenkin (Conservative, North Essex)

This group of amendments underlines how fantastically complicated it is to define a civil servant in the Scottish context and to specify which members of staff, who may ultimately be answerable to the Scottish Executive, count as members of the home civil service. Will the Minister say whether the definition of the home civil service is being expanded? While the hon. Gentleman is thinking about that—it may require some thought—will he also bear in mind the fact that, because this huge raft of amendments, which underlines the scale of the undertaking, has been brought forward at such a late stage, the House will not have the opportunity to consider them in much detail? We shall have to rely on the second Chamber to ensure that the amendments are appropriate. I have a sneaking suspicion that the Government may yet table one or two more amendments—indeed, there may be tens or hundreds of them. There will be pages and pages of changes to the Bill, which we have not been able to perfect in the House of Commons.

Donald Gorrie (Liberal Democrat, Edinburgh West)

Will the Scottish Parliament be able to introduce a more open ethos in the Scottish civil service than the one that conventionally obtains in the United Kingdom civil service? There has been much talk of the Scottish Parliament operating in a new way and being more open and consensual, so civil servants may have to respond differently. Will the Minister assure the House that they will be able to do so while continuing to be members of the United Kingdom civil service?

Tam Dalyell (Labour, Linlithgow)

I am not alone in thinking that there is a real problem. Both Sir John Garlick and Sir Michael Quinlan, the civil servants who were brought in last time when such matters were dealt with by the Cabinet Office, expressed their concern at various academic seminars in the 1980s—I suspect that the problem remains—about not only the unity of the British civil service, but who will be the "master" of these civil servants. It is very far from clear whether crucial civil servant appointments will be made by the Cabinet Secretary of the day, the head of the home civil service or the Scottish Executive. I ask for some comment on that. I do not know whether this is the right opportunity to ask this, but how many junior Ministers will there be, and what will they be paid? Will they be paid along Westminster lines, or is there another idea for payment?

Henry McLeish (Labour, Central Fife)

As the hon. Member for North Essex (Mr. Jenkin) said, the Bill is extraordinarily complex—that has become obvious during the eight days in Committee and the three days on Report. However, I think that it is substantially well worked out. As we are talking about civil servants, I should say that they have made an extraordinary contribution of the highest quality to achieve what I believe is our success in moving in 53 weeks from the general election to, I hope, the Bill's Third Reading. On the specific question posed by the hon. Member for North Essex, the base of the home civil service will not be extended. The matter is being dealt with entirely by transfer from the Scottish Office to the Scottish Executive. On openness, I stress that people who serve the Government are often much maligned. Our experience in government has shown us that openness is not an issue. I believe that there is a consistency of provision throughout the United Kingdom. I have no doubt that, whether the operation is in Scotland, England, Wales or Northern Ireland, we receive a high-quality response. I believe that the civil service will embrace and make an excellent contribution to the new politics in Scotland. My hon. Friend the Member for Linlithgow (Mr. Dalyell) asked about junior Ministers' pay. The Senior Salaries Review Body must deal with that. We want to generate confidence in Scotland in what we are doing on pay, pensions and conditions. My right hon. Friend the Secretary of State asked the SSRB to provide guidance, on the basis of its excellent knowledge, on salaries, pensions and conditions for Members of the Scottish Parliament and, indeed, the Scottish Executive. That is absolutely right, because we want to start off on the right footing. I remember the unedifying sight of Members scurrying through the Lobby here to vote on pay rises, conditions and allowances. With the SSRB report, I hope that my right hon. Friend will be in a position to make judgments for the Scottish Parliament, and that it will proceed quickly to fill in the detail of what is required for the future. There needs to be some objectivity in relation to sensitive issues that can be misconstrued, so Holyrood should not be involved in some of the decisions. There are often complaints about the number of Government amendments tabled at a late stage, on Report. The complexity of the legislation meant that we could not get the detail right any sooner, but we have made a comprehensive response on the question of the Scottish Administration and its staff. We believe that we have got it right. Although time must tell, we know that there is an excellent civil service in place, and that it will serve the Scottish Parliament well.

Tam Dalyell (Labour, Linlithgow)

There is a critical question as to who makes the decisions. Is it to be an organisation based in Scotland, with its own chief executive, or is it to be the head of the home civil service in London?

Henry McLeish (Labour, Central Fife)

The Scottish Executive will be responsible for appointments. That is a reasonable demarcation of responsibilities. What is good and unifying about our approach is that there is a home-based civil service throughout the United Kingdom. That is good for Westminster, for Scotland, and, indeed, for civil servants.

Dominic Grieve (Conservative, Beaconsfield)

The Minister slightly sidestepped the question about possible changes in the civil service ethos. It was suggested that the ethos in Edinburgh might be different from that in London. If there is a unified home civil service with central control—even if civil servants are working with different masters—there can be no room for a different ethos, because everyone will have to follow the guidelines laid down by the central civil service in London.

Henry McLeish (Labour, Central Fife)

That proposition is premised on the assumption that we need to change the ethos. After my first year as a Scottish Office Minister, I am not entirely convinced that that is so. There is a pejorative aspect to the talk of ethos, suggesting that something is substantially wrong, and I do not accept that. No matter where civil servants are working, I am convinced that we will get the same quality of active advice and thorough professionalism. Amendment agreed to. Amendments made: No. 134, in page 20, leave out lines 21 to 25 and insert— '( ) the holder of any office in the Scottish Administration which is not a ministerial office, or ( ) a member of the staff of the Scottish Administration'. No. 135, in page 20, line 38, at end insert— '( ) Section 1(2) and (3) of the Superannuation Act 1972 (delegation of functions relating to civil service superannuation schemes etc.) shall have effect as if references to a Minister of the Crown (other than the Minister for the Civil Service) included the Scottish Ministers'. No. 136, in page 21, line 7, leave out 'that Act' and insert 'the Civil Service (Management Functions) Act 1992'.—[Mr. McLeish.]

EXERCISE OF FUNCTIONS

GENERAL TRANSFER OF FUNCTIONS

SCOPE OF POWERS TO MAKE SUBORDINATE LEGISLATION, ETC.

SHARED POWERS

TRANSFERS TO THE SCOTTISH MINISTERS

POWER TO TRANSFER FUNCTIONS

SCOTTISH CONSOLIDATED FUND

Henry McLeish (Labour, Central Fife)

I beg to move amendment No. 147, in page 26, leave out lines 31 to 32 and insert— `( ) The Fund shall be held with the Paymaster General.'

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this, it will be convenient to discuss Government amendments Nos. 272, 148, 273 to 279 and 281.

Henry McLeish (Labour, Central Fife)

In Committee, I said that I would consider carefully the points made by the right hon. Member for Haltemprice and Howden (Mr. Davis), the Chairman of the Public Accounts Commission, with a view to tabling amendments designed to strengthen the independence of the head of the audit service of the Scottish Parliament, and to provide for the appointment of accounting officers in the Scottish Administration. I hope that amendments Nos. 273, 274 and 278 will fulfil that undertaking. Amendment No. 273 provides that the independent person who is to undertake, or supervise the undertaking of, audit and related functions will be the Auditor General for Scotland, established by amendment No. 278, which also provides that the Auditor General will be appointed by Her Majesty on the nomination of the Scottish Parliament, and that he or she can be removed from office by her Majesty only after a resolution of the Parliament. Taken together with the existing provision in clause 66(4), these proposals ensure considerable independence and status for the audit service, and provide that its head cannot simply be removed by the Executive. The second part of amendment No. 274 deals with accounting officers. It provides that Scottish legislation must provide for officials to be designated as answerable to the Scottish Parliament for the expenditure and receipts of each part of the Scottish Administration. Thus, the Parliament and its Committees will have direct access to officials. The first part of amendment No. 274 clarifies that it is the auditors who must, under Scottish legislation, be given access to documents that they may reasonably require for their functions. The previous drafting was imprecise on that matter.

Alex Salmond (Scottish National Party, Banff and Buchan)

Can the Minister confirm that he is not suggesting a local authority set-up, with an outside body appointing the auditors, and that the Parliament will look after its financial affairs properly without being overseen by a higher authority, as though it could not be trusted to conduct its affairs efficiently?

Henry McLeish (Labour, Central Fife)

Yes, that is the case. The intervention of the Chairman of the Public Accounts Commission highlighted the seriousness with which any parliament must take those issues. The Government considered that the legislation had not treated the matter with the appropriate seriousness, and tabled amendments accordingly. Amendment No. 147 is essentially technical, designed to make it clear that the Scottish Consolidated Fund will be held with the office of the Paymaster General. The existing provision is misleading, since the office, although it provides payments and receipt services for the Government, does not provide banking services as such. The new provision makes it clear that the fund will be held as an account with the office of the Paymaster General, ensuring that overnight balances are available to be swept back to the National Loans Fund, thus reducing overall Government borrowing. However, the Scottish Executive will be able to maintain subordinate bank accounts with commercial banks if that makes sense. Amendment No. 148 is for clarification. It makes it clear that Scottish legislation must provide for persons receiving money directly from the Scottish Consolidated Fund to account for all their expenditure and receipts. That would include receipts obtained by them but not paid into the fund because, for example, Parliament had authorised alternative disposal or accounting under clause 61(4). Amendment No. 279 inserts a new subsection in clause 66, to ensure that Scottish legislation is not required to make provision for accounts to be prepared by cross-border public authorities, when they are specifically dealt with under clause 84 or another enactment, or generally to impose accounting or auditing requirements when other legislation makes provision for accounting and audit. That is to avoid any clash between clause 66 and such other legislation. The new subsection also means that Scottish legislation will not have to provide for the Auditor General to audit his own accounts, which would clearly be wrong. It defines two new terms: "parliamentary accounts" and "Scottish legislation", which are used to simplify the drafting. Amendments Nos. 272, 275 to 277, and 281 are consequential on the others and amend references to make use of the new terms "Auditor General for Scotland", "parliamentary accounts" and "Scottish legislation".

David Davis (Conservative, Haltemprice and Howden)

I thank the Minister for that explanation. Amendments Nos. 278 and 274 implement the concessions that he made in Committee, in response to my proposals to provide better for the Auditor General for Scotland's security of tenure and to provide for accounting officers. The amendments, as he described them, are broadly in line with what I wanted, and I am grateful. Amendments Nos. 278 and 274 are broadly consistent with the amendments that I originally tabled. Amendment No. 278 goes slightly less far than I had hoped, in that a resolution for the removal of the auditor will not require a Division. That contrasts with the provision for the removal of judges in clause 89, but, for some reason, is in line with that for a dissolution in clause 3. The Scottish Office view is that the dissolution model is more appropriate for removing the auditor. There is a clear parallel between an independent auditor general and an independent judge, so I think that the judge model is better. It requires a Division, and would not allow an Administration to slip a proposal through Parliament, as we know is possible.

Tam Dalyell (Labour, Linlithgow)

This question is not meant offensively, but is this also the professional view of the current Comptroller and Auditor General?

David Davis (Conservative, Haltemprice and Howden)

Indeed. The hon. Gentleman is right: I have discussed the matter with the Comptroller and Auditor General. We agree on all these points. I should like the Minister to say why this approach has been taken. It seems anomalous, and is difficult to understand. I also raised in Committee the question of a scrutiny committee of the Scottish Parliament, not identical to or with the same name but modeled on, our Public Accounts Committee. Its chairman should come from the Opposition, and certainly not from the Executive or the coalition making up the Executive. That would be an important advantage and addition to the Scottish Parliament. There is no amendment to that effect. I would like to hear what the Minister has to say on that. The amendments do not address the other financial matters raised in Committee. The result will be inefficient, and probably ambiguous, accountability to Westminster for the funds granted to the Scottish Parliament, with the consequent risk of conflict over those matters. The principal absences are the UK Parliament's need to know the purposes for which it would be expected to vote money for the Scottish Parliament; the need for the Secretary of State to be properly accountable to this House for the grant of the Scottish Parliament; and the need for the Comptroller and Auditor General to have continuing access in Scotland to provide assurance to the UK Parliament about the spending of UK taxpayers' money. Amendments were tabled in Committee to protect the rights of this House and of the UK taxpayer. I hope that the House of Lords will revisit those matters and correct them. However, it would be churlish not to thank the Minister for his two concessions. They will be helpful, and are in the interests of the people of Scotland.

Donald Gorrie (Liberal Democrat, Edinburgh West)

I wish to touch on a point raised by the Chairman of the Public Accounts Committee, the right hon. Member for Haltemprice and Howden (Mr. Davis): the number of Members of the Scottish Parliament necessary to vote for the removal of the auditor general. We have tabled an amendment that the figure for judges should be three quarters. I ask the Minister to consider that three quarters might be more intelligent than two thirds. The whole thing is flexible, but it is likely that the Scottish Parliament will have a coalition Executive. The two, or even three, parties concerned might have two thirds of the votes. There would not be the same defence for the auditor general against the Executive if there was a quarrel.

David Davis (Conservative, Haltemprice and Howden)

I agree with the thrust of the hon. Gentleman's argument. The Comptroller and Auditor General for the Westminster Parliament can be removed only by separate votes of each House of Parliament. That is a formidable barrier for a Government wishing to remove an awkward or difficult auditor general—that is, one who is doing his job. I agree that the hurdle should be raised even higher.

Donald Gorrie (Liberal Democrat, Edinburgh West)

It is important that such officials have security. I was a member of a council that badly sacked its chief executive on the hoof. Three quarters might be safer than two thirds. I notice, in the light of the interest in trade union votes, that, on the same basis, two thirds of Members of Parliament would be required to vote.

Tam Dalyell (Labour, Linlithgow)

While there is an important meeting upstairs concerned with trade union recognition and the visit of the Scottish Trades Union Congress, and this is a quiet, gentle debate, these are crucial, not arcane, matters. They go to the heart of responsibility for money. The reason I interrupted the Chairman of the Public Accounts Committee is that, like my hon. Friend the Minister, I was educated—I choose that word rightly—on the Public Accounts Committee by the Comptroller and Auditor General—in my case, Sir Edmund Compton. The concerns of the Comptroller and Auditor General must be answered. We are operating under a guillotine, but I hope that the other place looks carefully at these matters. Unless they are sorted out, it will lead to endless trouble. The reason is basic. The subordinate Parliament is part of a unitary state, and is dependent on the overwhelming bulk of its money being raised by the other part of the state. That other part will doubtless be characterised as the parsimonious people in Great George street, or the English Chancellor—one can imagine all the phrases that will be used. Members of the Scottish Parliament, whatever their personal feelings, will be under pressure to report to this House on how money is used. There will be overwhelming demand for better services, education, health and everything else in Scotland that requires expenditure. The pressure on Members of the Holyrood Parliament to accede to such requests, or at least to say that they are doing their best, will be terrific. In those circumstances, sooner rather than later, this House will ask those who have departed this House to account for their use of money. I do not suggest that there will be anything corrupt about it, that there will be misappropriations, or that big nanny is needed to look after expenses; it is the politics of the situation. In those circumstances, the position of the Public Accounts Committee is crucial. The other place should explore that.

Bernard Jenkin (Conservative, North Essex)

I thank the Minister for his concessions to my right hon. Friend the Chairman of the Public Accounts Committee, but I underline what he finished by saying. There is a fundamental imbalance in setting up a Parliament that is not responsible for securing its own revenue. As long as the Scottish Parliament has such extensive reliance for its supply on this House, there will inevitably be tension between it and the Westminster Parliament. As the hon. Member for Linlithgow (Mr. Dalyell) said, that relationship will be difficult to manage politically. The amendments do nothing to resolve that fundamental imbalance.

Henry McLeish (Labour, Central Fife)

There is not a fundamental confusion, but a misunderstanding. I agree with the hon. Member for North Essex (Mr. Jenkin) and my hon. Friend the Member for Linlithgow (Mr. Dalyell) that there will be tensions and pressures on public policy on finance. That is the nature of the changes. However, we are discussing how we examine what we are spending, and how to ensure that we have a first-class system for accountability, efficiency and effectiveness, and all the issues of probity. I shall respond briefly to the Chairman of the Public Accounts Committee. I thought that the possibility of the Auditor General being removed without a Division would be of concern. On a Division, two thirds of the Members would be required to vote in favour. We do not envisage it being a factual proposition that the Executive would try to sneak through, if I may be allowed to use that phrase, a motion late at night, or in any other circumstances to try to achieve that. On a second, and perhaps more positive, note, a meeting of the all-party consultative steering group yesterday agreed that, as part of the Standing Orders, we might want to identify a few Committees to recommend to the Scottish Parliament, and that one would be the equivalent of the Public Accounts Committee. I hope that that will satisfy the Chairman of the Public Accounts Committee, and ensure that the integrity of the person who chairs such a Committee is beyond doubt. Clearly we will be expecting a high standard of deliberation. Like my hon. Friend the Member for Linlithgow, I enjoyed my experience on the PAC, and I have no doubt that the quality will be there in Scotland to ensure that we replicate that part of the scrutiny procedure.

David Davis (Conservative, Haltemprice and Howden)

Clearly, I welcome— It being one hour and fifteen minutes after the commencement of proceedings on consideration of the Bill, MR. DEPUTY SPEAKER, pursuant to the Order [13 January] and the Resolution [12 May], put forthwith the Question already proposed from the Chair. Amendment agreed to.

FINANCIAL CONTROL, ACCOUNTS AND AUDIT

POWER TO FIX BASIC RATE FOR SCOTTISH TAXPAYERS

CHANGES TO INCOME TAX STRUCTURE

Alan Haselhurst (Deputy Speaker, Saffron Walden)

We now come to amendment No. 22.

Tam Dalyell (Labour, Linlithgow)

On a point of order, Mr. Deputy Speaker. May I register that it is deeply unsatisfactory that amendments on the reference year for income-tax-varying powers and the restriction on changes to such powers, which are important subjects, have not been discussed because of the time—

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. The hon. Gentleman must not use a point of order to put a point of argument. That issue arises throughout a programmed debate.

REMUNERATION OF MEMBERS OF THE PARLIAMENT AND EXECUTIVE

Laurence Robertson (Conservative, Tewkesbury)

I beg to move amendment No. 22, in page 35, line 24, at beginning insert `Subject to subsections (6) to (8) below,'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this, it will be convenient to discuss the following amendments: No. 23, in page 35, line 26, at beginning insert `Subject to subsections (6) to (8) below,'. Government amendment No. 151. No. 21, in page 35, line 46, at end insert— '(6) The Parliament shall ensure that no salary or allowance paid to a member of the Parliament under subsection (1) shall exceed those for the time being paid to members of the House of the Commons. (7) The Parliament shall ensure that no salary or allowance paid to the First Minister shall exceed the average salary or allowance for the time being paid to a Secretary of State in the United Kingdom Cabinet. (8) The Parliament shall ensure that no salary or allowance paid to a member of the Scottish Executive other than the First Minister shall exceed the salary or allowance for the time being paid to a Minister of State in the United Kingdom Government.'. Government amendment No. 242.

Laurence Robertson (Conservative, Tewkesbury)

The amendments are intended to ensure that no salary or allowance paid to a Member of the Scottish Parliament shall exceed that paid to a Member of this House; that no salary or allowance paid to the First Minister shall exceed the average paid to a Secretary of State in the United Kingdom Parliament; and that no salary or allowance paid to a Member of the Scottish Executive other than the First Minister shall exceed that paid to a Minister of State in the UK Government. Those are the details of the amendments. The reasoning behind them is to protect and strengthen the Union; to reflect the fact that the Scottish Parliament is a subordinate legislature; and to recognise that the work and responsibilities of Members of the Scottish Parliament are different from those of Members of this House. The amendments are in keeping with the precedent set following elections to the European Parliament in 1979. The work load and responsibilities of Members—

Alex Salmond (Scottish National Party, Banff and Buchan)

If the hon. Gentleman were a time and motion man, and bearing in mind his experience as a constituency Member of Parliament and his knowledge of the functions being devolved to the Scottish Parliament and those being retained by Westminster, could he estimate whether the Member of Parliament in Westminster or the Member in Edinburgh will have the greatest constituency work load?

Laurence Robertson (Conservative, Tewkesbury)

The hon. Gentleman is either extremely well informed or very unlucky, because I used to be a time and motion person, and I assessed work loads each and every day. If he will allow me to proceed, I will explain my view. It cannot justifiably be claimed that Members of the Scottish Parliament will have the same work loads, or the same degree of responsibility, as exist in this place. That is especially true of the additional Members, whose presence will reduce the work load and responsibilities of those who represent constituencies. As we heard today, the Government recommend that the two different sorts of Member should be paid the same. Therefore, it is only right that Members of the Scottish Parliament should not receive more pay than Members of this House, and our amendments will ensure that that is the case. As for the First Minister, I am aware that the Secretary of State for Scotland has his eye on the job, but I am confident that he could survive on a salary of no more than £106,716, which is what he receives as a Cabinet Minister in the United Kingdom Government.

John Taylor (Conservative, Solihull)

I am grateful to my hon. Friend for giving way, as he is doing so well at the Dispatch Box, but I think that I am the only person in the Chamber who has been simultaneously a Member of this Parliament and the European Parliament for 12 months at the whim of the electors. That experience rewarded me with a salary of one and one third. There seems to be some merit in that, and at the very least, it is a precedent.

Laurence Robertson (Conservative, Tewkesbury)

It is indeed a precedent, and one which I am about to mention. I do not believe that anyone is suggesting that the pay of the First Minister should exceed the figure I quoted. Our amendments will ensure that it will not. Under our amendments, Members of the Scottish Executive could receive up to £77,047 in pay. I am equally confident that no one would suggest that, comparably, that would be inadequate. However, there is a deeper point about salaries, which is that the Scottish Parliament is essentially a subordinate Parliament, and therefore it would be very odd indeed to pay its Members more than Members of the supreme and sovereign United Kingdom Parliament. Our objection to that is not born of greed or resentment, but of a desire to protect the Union. Because the Scottish Parliament is new and people have high hopes of it, there may be a temptation, especially if the Parliament is dominated by Scottish nationalists, to attempt to enhance its standing. One way to do so would be by paying its Members more than Members of this House receive, which would be an odd and dangerous thing to do. In those circumstances, the comparable link would be broken, and that would weaken the Union. It is important that the subordinate character of the Scottish Parliament be maintained, and be seen to be maintained, if we are to preserve the Union. Therefore, a cap needs to be applied to what Members of the Scottish Parliament receive, and our amendments would do exactly that. As my hon. Friend the Member for Solihull (Mr. Taylor) said, there is a precedent, which is the European Assembly (Pay and Pensions) Act 1979. It limits the salaries of Members of the European Parliament to those paid to Members of this House. A Conservative Government passed that Act, but the Labour party supported it. On Second Reading, the then shadow Home Secretary, Merlyn Rees, said: I believe that to have paid the new members of the European Assembly higher salaries than those of Members of this Parliament … would have been an affront". He was right, but his reason for taking that view was even more important. He said: I agree with the Home Secretary that in no way should the European Assembly detract from the supremacy of this Parliament."—[Official Report, 22 June 1979; Vol. 968, c. 1679.] That is the crucial point. Lord Merlyn-Rees was right for more than just one reason. The fact is that he realised that paying higher salaries to Members of the European Parliament than those paid to Members of this House was objectionable for constitutional reasons. Those same objections exist in the case of a Scottish Parliament. The public tend to place importance on how much people are paid.

Alex Salmond (Scottish National Party, Banff and Buchan)

The hon. Gentleman rests his case too much on that argument. I once worked for the Royal Bank of Scotland, where, for example, a merchant banker was paid more than the chairman of the bank, although he was a subordinate because of the scale. I am not sure about his argument, but I am sure that, if he is a time and motion man, he must realise that the work load of Members of Parliament here will decrease when the Scottish Parliament is established. On that logical basis, what salary reduction will he suggest, as all the hon. Members here today will not have to do that sort of work in future? Their work loads will decline, and so should their salaries.

Laurence Robertson (Conservative, Tewkesbury)

We are not certain—because the questions have not yet been answered, we do not know how things will work. We are still searching for an answer to the West Lothian question, so we do not know how the arrangements will work in practice. We shall have to wait and see, but I certainly do not recommend that any Members of this Parliament should have to take any reduction in pay.

James Gray (Conservative, North Wiltshire)

Does my hon. Friend agree that the only Members of Parliament who will be doing significantly less work are Members representing Scottish constituencies who remain at Westminster? North Wiltshire will still demand the same amount of work, but will representing Banff and Buchan in this place require the same amount of work after the establishment of the new Scottish Parliament?

Laurence Robertson (Conservative, Tewkesbury)

The hon. Member for Banff and Buchan (Mr. Salmond) will have a reduced work load; nevertheless, I would not suggest that he should take a lower salary. The public tend to attach importance to how much people are paid; they tend to judge the worth of persons or organisations on the basis of how much income they receive—perhaps the reason why the public do not value Members of this Parliament highly is that we are inadequately paid, but that is another argument. It is important that Members of the Scottish Parliament do not receive higher salaries than Members of the House of Commons. It is important that the salaries they are paid recognise what I maintain will be a lower work load and less responsibility—[Interruption.]

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. I am sorry to interrupt the hon. Gentleman, but I have to tell the hon. Member for Banff and Buchan (Mr. Salmond) that he must not conduct a mini-debate while the main debate is taking place.

Laurence Robertson (Conservative, Tewkesbury)

Thank you, Mr. Deputy Speaker—the subject is an interesting one. It is important to preserve the subordinate character of the Scottish Parliament, and to prevent it from becoming a quango that feathers its own nest. It is vital that we preserve the Union, and doing as the amendments propose would be consistent with the precedent set by the European Assembly (Pay and Pensions) Act 1979, to which I referred. Our amendments would achieve all that. They would ensure fairness, and, in doing so, protect the Union. For those reasons, I commend amendments Nos. 22, 23 and 21 to the House.

Tam Dalyell (Labour, Linlithgow)

In the past five minutes, a whole collective of cats has been let out among the pigeons. Without wishing to talk down to the hon. Member for Tewkesbury (Mr. Robertson), I should warn him not to be naive. He was unfair to the Scottish National party: it is not only the SNP that will take the view he describes, but every Member of the Holyrood Parliament, because it is in the nature of politicians to think that the institution they are in is the important institution. It is not only, or even mainly, a question of financial greed; amour propre will come into it. If the hon. Gentleman wants an example, I shall give one from my own party. Those who were pro-Europeans listened to Barbara Castle, then the hon. Member for Blackburn, endlessly criticising the Community and the dreadful institution in Strasbourg; but heaven knows, as soon as she herself got there, as Lady Castle of the British delegation, it metamorphosed into a most important institution.

John Taylor (Conservative, Solihull)

May I remind the hon. Gentleman that Barbara Castle was not just a member of the delegation, but that she was directly elected in 1979?

Tam Dalyell (Labour, Linlithgow)

We all knew it, very clearly. I say this seriously: it is in the nature of politicians that they will shout for the institution where they themselves happen to be. Do not let us think that it is only the Scottish National party that will do that; it will be every Member of the Parliament. They will say, "We are doing more work than those people in Westminster." I shall be mildly interested to see what is the reaction, first, of my colleagues who remain at Westminster and, secondly, of my right hon. Friend the Secretary of State and of my hon. Friend the Minister for Home Affairs and Devolution, both of whom will by that time be Members of another body, because position in that body will have a marvellous way of changing attitudes.

Henry McLeish (Labour, Central Fife)

It is instructive to note that today's Scottish edition of the Daily Express contains the following: Scottish Conservatives spokesman Paul Cullen"— who is a member of the consultative steering group— said that if Holyrood was to be taken seriously then salaries had to be comparable with the current Westminster level. `It would be undesirable to create a two-tier system of MSPs,' he insisted. The Government are attempting to set an objective basis for deliberations on this matter, which is why my right hon. Friend the Secretary of State wrote to the chairman of the Senior Salaries Review Body on 25 March asking him to consider and make recommendations regarding salaries, allowances and pensions benefits which would be payable to Members of the Scottish Parliament and the Scottish Executive. In that context, it is unreasonable to lay down in the Bill limitations on the levels of salaries and allowances which the Scottish Parliament can set for its Members, the First Minister or other members of the Scottish Executive, so we strongly resist the amendments. Much of this debate was not about salaries, allowances or pensions, but old Conservatives expressing old prejudices about subordinate Parliaments. That is not the spirit in which we have to move forward. In the short time left, I commend Government amendments Nos. 151 and 242 to the House. It being one hour and thirty minutes after the commencement of proceedings on consideration of the Bill, MR. DEPUTY SPEAKER, pursuant to the Order [13 January] and the Resolution [12 May], put forthwith the Question already proposed from the Chair. Question put, That the amendment be made:—

CROSS-BORDER PUBLIC BODIES: INITIAL STATUS

POWER TO ADAPT CROSS-BORDER PUBLIC BODIES

POWER TO TRANSFER PROPERTY OF CROSS-BORDER PUBLIC BODIES

MALADMINISTRATION

Henry McLeish (Labour, Central Fife)

I beg to move amendment No. 181, in page 40, line 1, leave out from beginning to end of line 3 and insert `any other office-holder in the Scottish Administration.'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this, it will be convenient to discuss Government amendment No. 182.

Henry McLeish (Labour, Central Fife)

Clause 86 places a duty on the Parliament to make provision for the investigation of certain complaints of maladministration made to Members of the Scottish Parliament. At present, the clause refers to members of the Scottish Executive and certain other members of the Scottish Administration. Government amendment No. 181 clarifies that, in addition to members of the Scottish Executive, all other office holders in the Scottish Administration come within the scope of the Parliament's duty. That amendment is linked to other Government amendments concerning what is meant by "the Scottish Administration". The present clause sets out what the Parliament must do. I am certain that the Parliament will want to consider what additional provision concerning the investigation of maladministration it will wish to make. Government amendment No. 182 is intended to ensure that the Parliament is able to do so. It is intended that the Parliament will be able to make arrangements for the investigation of complaints of maladministration against all members of the Scottish Administration, and Scottish public authorities, including local authorities and the health service. It is also intended that it will be able to make provision regarding cross-border public authorities where the complaints are about non-reserved matters concerning Scotland. I urge right hon. and hon. Members to accept the amendments.

Bernard Jenkin (Conservative, North Essex)

I thank the Minister for introducing amendments that go some way to allaying concerns expressed in Committee. We welcome them. Amendment agreed to. Amendment made: No. 182, in page 40, line 8, at end insert— `( ) The Parliament may make provision for the investigation of complaints in respect of— (a) any action taken by or on behalf of an office-holder in the Scottish Administration, (b) any action taken by or on behalf of a Scottish public authority to which paragraph 1A or 1B of Part III of Schedule 5 to this Act applies, or (c) any action concerning Scotland and not relating to reserved matters which is taken by or on behalf of a cross-border public authority.'.—[Mr. McLeish.]

APPOINTMENT AND REMOVAL OF JUDGES

Henry McLeish (Labour, Central Fife)

I beg to move amendment No. 50, in page 41, line 3, at end insert— `( ) Before making such a nomination the First Minister shall consult the Lord President and the Lord Justice Clerk (unless, in either case, the office is vacant).'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this, it will be convenient to discuss the following: Government amendments Nos. 51 to 55. Amendment No. 74, in page 41, line 14, leave out `two-thirds' and insert 'three-quarters'. Government amendments Nos. 56 and 57.

Henry McLeish (Labour, Central Fife)

The amendments to clause 89, and the linked amendment to schedule 7, concern the Scottish Land Court Act 1993, and have been tabled by the Government in response to points made by hon. Members in Committee about provisions relating to the appointment and removal of judges. Amendments Nos. 50 to 52 and No. 57 deal with appointment issues. Amendment No. 50 will require the First Minister to consult the Lord President of the Court of Session and the Lord Justice Clerk, where available, before making a nomination to the Prime Minister for an appointment to either of those senior posts when a vacancy arises. Amendment No. 51 similarly requires that the First Minister should consult the Lord President before making a recommendation to the Queen for the appointment of any other judge of the Court of Session or any sheriff principal or sheriff. Amendment No. 52 will oblige the First Minister to comply with any requirement relating to appointment matters which may be imposed by virtue of an enactment, including an Act of the Scottish Parliament. The amendment acknowledges that the Scottish Parliament would be competent, should it so wish, to impose other requirements on the First Minister, such as consideration of judicial nominations put forward by the judicial appointments committee. I should, however, make it clear that the First Minister would retain ultimate responsibility for making nominations or recommendations and for consulting the Lord President and the Lord Justice Clerk, where appropriate. Amendment No. 57 makes it clear that the First Minister will take over the responsibilities of the Secretary of State for recommending to Her Majesty the appointment of any person as a member of the Scottish Land Court. It requires the First Minister to consult the Lord President of the Court of Session before recommending anyone for appointment to the post of chairman of the Scottish Land Court.

Michael Ancram (Conservative, Devizes)

I have a general inquiry. Have the Minister or his right hon. Friend had discussions with the Scottish judiciary about these proposals; and, if so, is it generally happy with them?

Henry McLeish (Labour, Central Fife)

I can say yes to that valid question.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

I have another general inquiry; if the Minister cannot answer straight away, perhaps he will write to me. Given that provision has been made for the chairman of the Land Court, what is the position regarding the appointment of Lords of Appeal in Ordinary from the Scottish Bench?

Henry McLeish (Labour, Central Fife)

I shall be moving on to that point later. Amendments Nos. 53 to 56 deal with provisions on removal from office that are contained in clause 89. Amendment No. 53 adds the office of chairman of the Scottish Land Court to those posts to which the provisions on removal of judges will apply. That simply reflects the chairman's equivalent status to that of a judge of the Court of Session. Amendment No. 54 provides that the Scottish Parliament will be asked to vote on a motion for removal of a judge in which the First Minister will be required to specify the ground of unfitness for office which he considers to merit that exceptional action, which touches on the point made by my hon. Friend the Member for Linlithgow (Mr. Dalyell). Amendment No. 55 is a minor technical amendment which substitutes the word "motion" for "resolution", reflecting the wording of amendment No. 54. Finally, amendment No. 56 will require the First Minister, before making a motion for removal, to be satisfied that the judge in question is unfit for office by reason of inability, neglect of duty or misbehaviour.

Tam Dalyell (Labour, Linlithgow)

Perhaps this is little more than a drafting point, but it would be a calamity if it ever arose. I gather that the Lords of Appeal in Ordinary are not covered. Is that an oversight?

Henry McLeish (Labour, Central Fife)

I will clarify that point and convey the clarification to my hon. Friend. The wording of amendment No. 56 follows closely that of section 12 of the Sheriff Courts (Scotland) Act 1971 which deals with removal of sheriffs and sheriffs principal. The second part of amendment No. 56 places a requirement on the First Minister to consult the Prime Minister before bringing a motion for removal of the Lord President or Lord Justice Clerk. The provision reflects the important role that the Prime Minister plays in recommending an appointment to those two most senior posts. I believe that the amendments strike an appropriate balance between the responsibilities of Parliament and the First Minister, and the independence of the judiciary. They provide a statutory safeguard, which the senior judiciary sought, in place of the informal arrangements currently enjoyed, for consultation with them on judicial appointments at the levels of the supreme court and shrieval benches. I hope this will meet with general approval; we have tried to take on board points made from all sides. I commend the amendments to the House.

Bernard Jenkin (Conservative, North Essex)

We appreciate the efforts that the Minister has made to accommodate concerns expressed in Committee and elsewhere about the arrangements for the appointment and removal of judges. We stress that the real test of the provisions will come in the other place where more experts with judicial experience are available to raise concerns. We welcome the amendments as far as they go, but look forward to hearing what the other place may have to say.

Menzies Campbell (Liberal Democrat, North East Fife)

Perhaps I ought to declare an interest as an occasionally practising member of the Faculty of Advocates. The amendments represent a substantial improvement, and the Government are to be commended for that. It seems right that the sort of difficulties that the Secretary of State and the Lord President and Lord Justice Clerk faced in relation to the case of Sheriff Ewan Stewart ought, as far as possible, to be eliminated by making more precise the grounds on which a motion may be made to seek dismissal of a judge. Those who have studied the report of that case, which went all the way to the House of Lords and was heard by several Lords of Appeal in Ordinary—I shall return to them shortly—will be aware that interpretation of certain provisions was required before a clear indication could be given of the basis on which, in that case, the removal from office of Sheriff Stewart was sought. To that extent, the amendments represent a substantial improvement. I shall deal with the question of Lords of Appeal in Ordinary. There is always some confusion: a judge sitting in the outer house of the Court of Session is a lord ordinary, whereas a judge who sits as part of the Judicial Committee of the Privy Council is a Lord of Appeal in Ordinary. As I understand it, there is provision for a number of Lords of Appeal in Ordinary, but by convention, two are judges from Scotland, with Scottish experience. I do not believe—I am open to correction—that there is any statutory minimum number of such judges. The point made by the hon. Member for Linlithgow (Mr. Dalyell) was that the Bill's provisions do not apply to those judges who go from Scotland to become members of the Judicial Committee of the Privy Council. That is entirely appropriate, because the Bill includes a scheme to devolve responsibility for those parts of the judicial system that operate in Scotland. It does not seem incongruous or illogical that the Lords of Appeal in Ordinary should not be subject to the provisions.

Henry McLeish (Labour, Central Fife)

Not being a member of the legal profession has its drawbacks, but help is always on hand. With reference to the points made by the hon. and learned Gentleman and also by my hon. Friend the Member for Linlithgow, the Bill contains no provision relating to the appointment of those Lords. They are appointed by the Queen, and that will continue.

Menzies Campbell (Liberal Democrat, North East Fife)

On that footing, it would have been illogical for any reference to be made to the Lords of Appeal in Ordinary in a Bill the scheme of which is to devolve to a Scottish Parliament those parts of Scottish justice that are conducted in Scotland. In that sense, the Government's position is entirely logical. I shall take the opportunity to speak to amendment No. 74, which seeks to introduce a majority of three quarters of the legislature for the motion for a removal of a judge to take effect. We discussed the matter to some extent in Committee, and it may help if I explain why raising the threshold from 66.6 to 75 per cent. is justifiable. First, as has already been intimated in at least one intervention, the removal of a judge is an extremely serious business. By tradition, judges held office ad vitam aut culpam—that is, they kept office for as long as they lived or unless they were guilty of some very considerable indiscipline. The independence of the judiciary is an important part of our constitutional arrangements. Therefore, if we introduce a provision that may encroach on the independence of the judiciary, we must be satisfied that it provides adequate protection. Secondly, if we have a Parliament elected by proportional representation—the Minister will not be surprised to hear that I heartily approve of that part of the Bill—it is not difficult to envisage circumstances in which the Administration is formed by two parties that achieve 66.6 per cent. of the vote, which means that the Administration would have within their power the right to bring about the dismissal of a judge. That does not provide adequate protection. However, it is difficult to envisage an Administration getting as much as 75 per cent. of the membership of the Scottish Parliament. That provides an additional protection. There is now a far greater certainty, from the point of view of the Administration, as the grounds of unfitness for office are spelt out in much more detail than previously. Given that higher degree of specification, and as part of the balance necessary in such a matter, it is reasonable to make the hurdle that must be crossed before a judge may be dismissed from office rather higher than the Government propose.

Bernard Jenkin (Conservative, North Essex)

As a matter of interest, if the Scottish Parliament abused its powers in the way that the hon. and learned Gentleman envisages, would it be appropriate for the Westminster Parliament to intervene?

Menzies Campbell (Liberal Democrat, North East Fife)

It would be appropriate in statutory terms, but intervention on such an issue would raise some very difficult questions where the devolving of responsibility for the administration of justice in Scotland was so all-embracing. If there was an intervention of the kind postulated in the question, the consequence would be some degree of political disturbance. It would be much better to avoid such issues by creating a threshold sufficiently high as to require that three quarters of the legislature indicate their assent to the serious matter of the removal of a judge from office through unfitness. As far as I can remember—the Scottish Office records may go much further back than my memory—Sheriff Ewan Stewart is the only judge to have been removed from office since 1945, and possibly for a considerably longer period than that, which shows how rare such occurrences are. We are endeavouring to find a proper balance between the right of the legislature to ensure that there are proper standards of competence and ability on the Bench, and the traditional independence of the judiciary which, like many other parts of our constitution, is unwritten, but which none the less forms an important part of the checks and balances that are essential to our constitution. For that reason, my hon. Friends and I believe that the amendment is at least worthy of consideration. I hope that the Minister will be able to accept it.

Tam Dalyell (Labour, Linlithgow)

The last time that I raised the subject of Lords of Appeal in Ordinary was during an Adjournment debate on Lockerbie. I requested that the evidence that the Crown Office purports to have in relation to Lockerbie should at least be seen by the Lords of Appeal in Ordinary. The Minister replied that the evidence could not be shown to "sundry third parties". I am not sure that Lord Hope and Lord Clyde enjoyed being so described. However, on this occasion, in relation to the Lords of Appeal in Ordinary, I am satisfied with the answer and believe that it is logical.

Edward Garnier (Conservative, Harborough)

I intervene in the debate with considerable diffidence. Although I am a lawyer, I am very much an English rather than a Scottish lawyer. I hope that those who know more about the subject will forgive me if I wander into error. Government amendment No. 52 states: The First Minister shall comply with any requirement…imposed by virtue of any enactment. Can the Minister explain what that is supposed to mean? I fully agree—again, with diffidence—with the hon. and learned Member for North-East Fife (Mr. Campbell) in his description of the role of what I would call Law Lords, to avoid confusion—that is, Lords of Appeal in Ordinary who sit here. They are United Kingdom judges and therefore should be outside the ambit of any Scottish legislation. Those who sit on the Judicial Committee of the Privy Council are not just United Kingdom judges, as they include the noble and learned Lord Cooke, a former senior judge from New Zealand who sits on the Judicial Committee as a life peer and a peer of the realm. I believe that Northern Ireland judges have also been promoted to the Judicial Committee. We should not think of the House of Lords in its judicial capacity in any other way than in its United Kingdom role. I agree with the hon. and learned Gentleman on that point. I query the thrust of the Liberal Democrats' amendment on the matter of two thirds or three quarters. With proportional representation, it is likely to be difficult for any one party—although I accept the hon. and learned Gentleman's point about a group of parties—to command even two thirds of the total number of seats in the Scottish Parliament. It will be almost impossible for a coherent group to command three quarters of the seats—although I may be proved wrong on both points. I agree with the hon. and learned Gentleman that a judge could—I hope that I shall be forgiven for such a colloquialism—get up the nose of the Scottish Parliament or of a large part of it for having done something that the Parliament considers politically unacceptable. I recall some of the decisions made by English judges over the past 10 or so years that offended the trade unions. The judges were interpreting the law of England, as passed by the House, whether we like it or not. I fear that a Scottish judge, carrying out the law of the United Kingdom Parliament or of the Scottish Parliament, might upset a majority, which goes after him for purely political reasons. I accept the hon. and learned Gentleman's point, but it is a nice judgment. Where the line should be drawn is a matter of debate and opinion, which we may not be able to resolve this evening.

Menzies Campbell (Liberal Democrat, North East Fife)

The hon. and learned Gentleman might like to consider another instance. If it was believed that a particular judge was being unduly lenient in respect of a certain class of criminal cases that appeared before him, it could create an atmosphere—led by a prurient press—in which that judge would come under scrutiny. In addition, a judge who appeared to be more willing than others to grant applications for judicial review—accepting that there had been an abuse of discretion by Ministers—might find himself in similar circumstances.

Edward Garnier (Conservative, Harborough)

Those points are perfectly good. We can only hope, as the hon. Member for Linlithgow (Mr. Dalyell) said, that we never have to worry about that. The hon. and learned Member for North-East Fife is correct: one Scottish sheriff in living memory has been removed from his post. I do not think that the equivalent of a High Court judge has ever been removed—although in the not-too-distant past one judge jumped before he was pushed; but let us draw a veil over that. There appears to be some sort of a muddle. Clause 89 of the Bill as drafted, and as it is proposed it should be amended, grants the First Minister and the Scottish Parliament powers over the removal and appointment of judges, from the highest to the lowest, within the Scottish judicial system. I refer hon. Members to page 77 of the Bill and to head 11 of schedule 5 dealing with judicial remuneration. Unless I have wholly misunderstood the position, judicial remuneration is reserved for the United Kingdom Parliament. If the Scottish Parliament is able to remove judges, why is it not allowed to decide on the level of pay for judges? Does the Minister believe that there is any inconsistency in that position?

Dominic Grieve (Conservative, Beaconsfield)

I have only one question. I find it difficult to understand amendment No. 56 in so far as it refers to the Lord President and the Lord Justice Clerk. If the appointments continue to be made on the recommendation of the Prime Minister, does it not constitute a reserved matter? In those circumstances, how can a motion by the Scottish Parliament affect the Prime Minister in the discharge of his functions? That matter, if it rests with the Prime Minister, must be the responsibility of this House. I should be grateful if the Minister would answer that question. The amendment does not tally with the original wording of clause 89, which makes it clear that it is a reserved matter.

Henry McLeish (Labour, Central Fife)

I shall take the latter point first. There is no confusion about that matter. The essential prerequisite is the role of the Prime Minister in making those recommendations. The points that I have made in relation to amendment No. 56 are very straightforward, and there is no conflict or inconsistency inherent in them. Similarly, the satisfactory way of dealing with the question of judges' remuneration is as the hon. and learned Member for Harborough (Mr. Garnier) describes. It is a question of striking a balance in relation to both issues.

Dominic Grieve (Conservative, Beaconsfield)

I confess that I still do not understand—it may be a failing on my part. If the Prime Minister may recommend that a judge should be removed from office, should not the House—the Prime Minister will certainly not be answerable to the Scottish Parliament—scrutinise that decision and approve or disapprove of it? I do not see how that can be done on the recommendation of the First Minister through the Scottish Parliament.

Henry McLeish (Labour, Central Fife)

Amendment No. 56 places a requirement on the First Minister to consult the Prime Minister before bringing a motion for the removal of the Lord President or the Lord Justice Clerk—it is not a question of wider removals. As I said before, this provision measures the important role of the Prime Minister. The Prime Minister is taking an executive role and it is not an issue for the Westminster Parliament.

Menzies Campbell (Liberal Democrat, North East Fife)

It is an executive appointment.

Henry McLeish (Labour, Central Fife)

That is correct.

Dominic Grieve (Conservative, Beaconsfield)

It may be an executive appointment, but the executive roles of the Prime Minister are subject to the scrutiny of the House. How can the Prime Minister exercise an executive capacity over which the House has no power of scrutiny? We have that power now if we wish to exercise it.

Henry McLeish (Labour, Central Fife)

The point has not been well made in that it is a tradition of the House as part of the devolution settlement. We shall continue with what works. It is absolutely right—this is a matter for the judiciary as well as for us, and there is agreement on it—that the Prime Minister should continue to recommend appointments. The proper process in the amendments reflects much constructive discussion and many suggestions made by the House. The Government see no particular dilemma in that. The other point concerns amendment No. 52 and the question of enactments. The hon. and learned Member for Harborough (Mr. Garnier) seemed a little confused about that. It provides an opportunity for a judicial appointments committee, for example, to be established—it is nothing more sinister than that. It obliges the First Minister to comply with any requirement relating to appointment matters. That opens up the possibility that the Scottish Parliament could take a decision that will establish a judicial appointments committee within the Parliament to reflect what was said by Liberal Members and also to take cognisance of the fact that the situation surrounding appointments to the judiciary may change in the future. It allows the Parliament that facility.

Edward Garnier (Conservative, Harborough)

I am grateful to the Minister for explaining that point. It is now quite clear—although it appeared confusing on the amendment paper. The Minister said a moment ago that the inconsistency between remuneration in section 1, head 11 of schedule 5 and the amendments and main drafting of clause 89 was satisfactory. Will he explain why he thinks that is so?

Henry McLeish (Labour, Central Fife)

The Government believe that, given the Government amendments, we now have a balanced package in place. There is consistency between the two different interpretations. As always in these situations, I am happy to reconfirm that and I shall write to the hon. and learned Gentleman about that point. The Government believe that there is no inconsistency. This is a straightforward measure and each part of the Bill is consistent with that objective. We have no difficulty with it. Amendment No. 74 is similar to the amendment tabled by my hon. Friend the Member for Linlithgow (Mr. Dalyell) in Committee. As I said then, the proportion of two thirds suggested in the clause as it stands already represents a very high threshold required to vote in favour of any resolution—particularly having regard to the fact that it is not just two thirds of those voting, but two thirds of the total number of Members of the Scottish Parliament. In proposing that figure, the Government—and I in particular—have recognised the seriousness of the act of removing one of Her Majesty's judges from his post. That is why we have not proposed a simple majority in the normal way, but instead will require that a significant number of Members of the Scottish Parliament should be satisfied that the Government's actions are justified and appropriate. I agree with the hon. and learned Member for North-East Fife (Mr. Campbell) that it is a question of balance. The Government believe that we have struck the right balance. It is a serious issue—I hope that my comments reflect that fact—and, on that basis, I ask the hon. and learned Gentleman not to press his amendment. Amendment agreed to. Amendments made: No. 51, in page 41, line 4, after `Minister', insert `, after consulting the Lord President,'. No. 52, in page 41, line 8, at end insert— `( ) The First Minister shall comply with any requirement in relation to— (a) a nomination under subsection (2), or (b) a recommendation under subsection (3), imposed by virtue of any enactment.'. No. 53, in page 41, line 9, after 'Session', insert `and the Chairman of the Scottish Land Court'. No. 54, in page 41, leave out from beginning of line 12 to first 'the' in line 13 and insert— '(a) the Parliament, on a motion made by the First Minister and specifying the particular ground of unfitness, resolves that such a recommendation should be made on that ground, and (b)'. No. 55, in page 41, line 13, leave out 'resolution' and insert 'motion'. No. 56, in page 41, line 15, at end insert— `( ) The First Minister shall not make a motion under subsection (5) unless— (a) he is satisfied that the person in question is unfit for office by reason of inability, neglect of duty or misbehaviour, and (b) where the person in question is the Lord President or the Lord Justice Clerk, he has consulted the Prime Minister.'.— [Mr. McFall.]

POWERS OF COURTS OR TRIBUNALS TO VARY RETROSPECTIVE DECISIONS

Bernard Jenkin (Conservative, North Essex)

I beg to move amendment No. 24, in page 42, line 2, after first 'to', insert `the protocol of relevant considerations and to'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this, it will be convenient to discuss amendment No. 60, in page 42, line 4, at end insert— '(3A) In subsection (3), "protocol of relevant considerations" means a list of matters to which the court or tribunal is to have regard in exercising its powers under this section. (3B) The protocol of relevant considerations shall be drawn up by the Secretary of State, after he has first consulted such representatives of the judiciary and others as appear to him to be appropriate. (3C) The protocol mentioned in subsection (3B) shall not enter into force unless an Order containing it has been laid before, and approved by a resolution of, both House of Parliament and the Scottish Parliament.'.

Bernard Jenkin (Conservative, North Essex)

As we near the end of this marathon process, it distresses me that we have such a short time in which to deal with the issue of retrospection, which we have not had the opportunity to discuss before now. Clause 93(2) says that, in deciding a devolution issue—that is, the vires of the Scottish or Westminster Parliaments—the court or tribunal may make an order removing or limiting any retrospective effect of the decision". Suppose that a sheep farmer in the west of Scotland decides that he is eligible for a grant. The Scottish Office denies it him on the ground that it is beyond the scope of the Parliament's powers to award it—perhaps it is a European Community grant. The matter eventually goes to the highest court and that court decides in the farmer's favour. The decision may have taken many years to reach, and the resulting expenditure would be expensive for the Government, not only because of the individual concerned, but because lots of individuals might be in a similar position. The farmer having won his case, the court could decide to limit or to remove the retrospective effect and decide not to pay out any money to give the Government time to change the rules so that the grant should not be payable. That is fundamentally a political matter. Our amendment would allow the Secretary of State to draw up criteria by which such essentially political and subjective judgments should be made. What are the relevant considerations that a court should apply, as no legal text or guidance is available to help any court to decide what to do under such circumstances? It being two hours and fifteen minutes after the commencement of proceedings on consideration of the Bill, MR. DEPUTY SPEAKER, pursuant to the Order [13 January] and the Resolution [12 May], put forthwith the Questions necessary for the disposal of proceedings to be concluded at that hour.

POWER TO MAKE PROVISION CONSEQUENTIAL ON THIS ACT

POWER TO ADAPT CERTAIN MINISTERIAL AND OTHER FUNCTIONS

SUBORDINATE LEGISLATION: GENERAL

SUBORDINATE LEGISLATION: PROCEDURE

SUBORDINATE LEGISLATION UNDER OPEN POWERS

TRANSFER OF PROPERTY: SUPPLEMENTARY

MINISTERS OF THE CROWN

SUBORDINATE INSTRUMENTS

CONSOLIDATED FUND, ETC.

Tam Dalyell (Labour, Linlithgow)

On a point of order, Mr. Deputy Speaker. These are most important matters. May I make the naughty point of order that I hope that the other place considers them properly?

Alan Haselhurst (Deputy Speaker, Saffron Walden)

The hon. Gentleman has made his naughty point of order. It will be noted.

RESERVED MATTERS

Henry McLeish (Labour, Central Fife)

I beg to move amendment No. 73, in page 59, line 6, leave out from beginning to end of line 7 and insert— '1. The following aspects of the constitution are reserved matters, that is— (a) the Crown, including succession to the Crown and a regency, (b) the Union of the Kingdoms of Scotland and England, (c) the Parliament of the United Kingdom, (d) the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal, (e) the continued existence of the Court of Session as a civil court of first instance and of appeal.'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this, it will be convenient to discuss amendment No. 58, in page 59, line 31, at end insert— '5A. Paragraph 1 does not preclude the holding by the Scottish Executive of a referendum on any reserved matter, provided that the decision to hold such a referendum has been approved by a resolution of each House of Parliament.'.

Henry McLeish (Labour, Central Fife)

Government amendment No. 73 is clarificatory and makes clear the matters reserved under the heading, "The Constitution". As hon. Members know, we do not have a written constitution in the United Kingdom and there is no clear definition of what the term includes. Comments made by a number of parties make it clear that there is doubt about what the reservation covers. It might have been argued that it included local government or the courts. For the avoidance of doubt, we have decided to specify the matters that are covered by the reservation. The other matters listed are a central feature of the constitution and are required to be reserved to preserve the integrity of the United Kingdom. I shall be brief, because we must debate the wider issues.

Michael Ancram (Conservative, Devizes)

The Minister has moved the amendment very swiftly. When I first read it, I was surprised, because it replaced a catch-all provision. At part 1 of schedule 5, the Bill states: The constitution, including…the succession to the Crown and a regency and the Parliament of the United Kingdom are reserved matters. The word "including" is important, because it suggests that other matters form part of the constitution. When I first read the Bill, I assumed that the question whether such matters were constitutional would be decided by the courts. Provision has been made in the Bill to decide what are devolved issues and what are not. The broad catch-all provision was sensible, and disputes would have been resolved, but I was surprised, because the amendment restricts what is to be regarded as constitutional to the five provisions that will be inserted into the Bill by amendment No. 73. So surprised was I that on 7 May I wrote to the Secretary of State: In order to inform this Debate I would be grateful if before it you could let me know what the implications of the new amendment are as against the broader and more catch-all provision which it replaces. I was delighted to receive this morning a letter from the Minister referring to my letter and giving me notes on the amendments. I turned with excitement and anticipation to the note on amendment No. 73, which states that it is a Government amendment to clarify which aspects of the constitution are reserved. I am no further forward and, although the Minister has moved the amendment, still no clearer about what has been left out. What is left out is important, because a catch-all provision is being replaced by a specific provision which will weigh heavily in the minds of the courts, which may have to deal with the question of what are devolved matters and what are reserved matters. I have read the amendment a number of times, and it is difficult to see what has been left out. The Minister said that local government is not included. I had presumed that it was not a constitutional issue and therefore would not arise. I make these inquiries because we must have a clear idea of what the provision will achieve. Although the Parliament of the United Kingdom is a reserved matter and defined as constitutional, are its actings, for example in terms of the exercise of the power under clause 27(7) to legislate for Scotland, regarded as constitutional? Are they included in the definition, or are they outside it and therefore not covered by the reservation of constitutional matters? The matter concerns the sovereignty of Westminster over the Scottish Parliament, which we have debated at length. I hope that that is a constitutional matter, but whether it is covered by the definition's specific provisions is questionable. That leads to the question that we were debating a week ago, to which amendment No. 58 refers: the holding of referendums and whether that is regarded as constitutional and therefore reserved. I want to explore that issue further. I see nothing in Government amendment No. 73 that tells me that that is the case, so I hope that the Minister will deal with the matter specifically. The question of referendums is relevant, because I understand from an early sedentary intervention that part of the Liberal Democrat party in Scotland has decided to press for a referendum on the independence question.

Henry McLeish (Labour, Central Fife)

Just for the record, I did not want to go into too much detail on the first part of your response, but you are speaking to the amendment. I am happy to expand on our views later.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. The Minister needs to be reminded that he is addressing the Chair.

Michael Ancram (Conservative, Devizes)

I appreciate that the Minister deliberately did not deal with those issues, but I want to put them firmly on the record as I want clear answers. Whether official or unofficial, there has been a Liberal Democrat call for a referendum on the independence question in Scotland. At the moment, it is within the purview of this House to arrange for such a referendum to be held. What is much more questionable is whether, consequent on devolution and the creation of a Scottish Parliament, the right to hold such a referendum would reside in this House only, or whether it would also be available to a Scottish Parliament. I want to secure assurances from the Minister on that matter. Last week, we had an interesting debate during which the subject was raised with the Secretary of State, perhaps slightly in advance of its time on the amendment paper. I am sorry that he is not in his place, because I had hoped to question him further on language that was characteristically his. It is worth studying the exchanges, because they show a lack of clarity. I said to the Secretary of State: I hope that I am not pre-empting our debate on the issue, but the Secretary of State mentioned the Union of the United Kingdom being a reserved matter. That is part of the Government amendment. I asked: Does that mean that a referendum on the Union also will be a reserved matter and not available to the Scottish Parliament? The Secretary of State replied: It is clear that constitutional change—the political bones of the parliamentary system and any alteration to that system—is a reserved matter. That would obviously include any change or any preparations for change. Later in his reply, he referred to the hon. Member for Banff and Buchan (Mr. Salmond) wanting a referendum. He said: It is clear that he cannot find a vehicle for doing that in the machinery laid down in this legislation. It seems from that reply that the ability of a Scottish Parliament to hold such a referendum was being ruled out. I asked: In very simple terms, does that mean that a referendum on Scotland's future in the United Kingdom is within the competence of the Scottish Parliament? 6.30 pm The Secretary of State could have said yes or no to that question, depending on his view, but he said: If one assumes that that is a way of changing the constitution, no, it is not in the power of the Scottish Parliament to change the constitutional arrangements. Later in the debate, my hon. Friend the Member for Beaconsfield (Mr. Grieve) sought to question the Secretary of State. He asked: Would the holding of a referendum be within the competence of the Scottish Parliament? The Secretary of State replied: A referendum that purported to pave the way for something that was ultra vires is itself ultra vires. That is a view that I take, and one to which I will hold. The Secretary of State qualified that by saying: But, as I said, the sovereignty of the Scottish people, which is often prayed in aid, is still there in the sense that, if they vote for a point of view, for change, and mean that they want that change by their vote, any elected politician in this country must very carefully take that into account. Rather than getting a straight answer, the jungle was becoming thicker by the moment. Characteristically, the hon. Member for Linlithgow (Mr. Dalyell) sought to cut away the foliage by asking: Can the Scottish Parliament of itself initiate a referendum on independence? It could not be put straighter than that. The Secretary of State said that he thought that he had answered that, but he went on to say: It is my view that matters relating to reserved matters are also reserved. It would not be competent for the Scottish Parliament to spend money on such a matter in those circumstances."—[Official Report, 12 May 1998; Vol. 312, c. 256–57.] I think that we made some progress because, in the words of the Secretary of State, it would not be possible for the Scottish Parliament to hold a referendum the cost of which came from the financial provisions that will be made for that Parliament. However, the question about whether it is in the competence of that Parliament to hold a referendum was not answered. I could be facetious and say that the Liberal Democrat party, or the section of it that wishes to have a referendum, could decide to sponsor one and put up the cash for it. As the Scottish Parliament would not have to find the wherewithal, would it be competent to initiate and conduct such a referendum? That is an important matter. Our amendment is a probing one. The Scottish Parliament could decide to hold a referendum, but the amendment ensures that it could do that only with the consent of both Houses of this Parliament. It would allow the Scottish Parliament to apply to this Parliament as the custodian of the constitution, which is how I understand the Bill, for permission. I do not intend to press the amendment: it is intended only to tease out the situation. However, it is at the heart of the debate because it looks at the relationship between the Edinburgh and Westminster Parliaments. I understood that it was agreed between the Government and the Opposition that the Westminster Parliament is supreme and could, under the Bill, legislate on all matters in Scotland if it so wished. It also decides on questions of constitutional change because of its supremacy and the sovereignty that is vested in it. The dialogue to which I have referred from last week's debate casts some doubt on that and the matter needs to be clarified. When we started the debate on the Bill in January, the Government spoke about the creation of a Scottish Parliament in which there would be new politics. They said that there would be sweetness and light and that many questions about the legislation were irrelevant because everybody wanted to see the Parliament working. On that basis, many of our concerns were brushed aside, but now there is a somewhat different political situation. It was assumed that the Scottish Parliament would be a friendly one that was run by some combination of the Scottish Labour party and others and that it would deal in a friendly way with this Parliament. But that is questioned by opinion polls in Scotland and will not necessarily be the case. The idea that dialogue between Westminster and Edinburgh would always be friendly and co-operative is in doubt. Today's debate and Scottish questions were undermined by the vitriol—that is the only word that I can use—of the hon. Member for Banff and Buchan in addressing some of the issues that we raised about sovereignty. The Minister for Education and Industry, Scottish Office, was vitriolic in his responses to the hon. Gentleman at Scottish questions. The question whether sovereignty ultimately rests here or can be vested under certain conditions in the Scottish Parliament is not theoretical. It cannot be quietly be left on the shelf as if it does not matter. It could become important quickly.

Alex Salmond (Scottish National Party, Banff and Buchan)

If the right hon. Gentleman thinks that those exchanges were vitriolic, I can only say that he has led a sheltered existence. He said all that in the referendum campaign, but is repeating it as if it has only just been discovered. Perhaps I could refer to Lady Thatcher's celebrated remark. She said, "If the Scots were to determine on independence, no English politician, certainly not me, should gainsay that process." Does the right hon. Gentleman believe that that is still the view of the Conservative party?

Michael Ancram (Conservative, Devizes)

Yes, I do, and it was repeated by my right hon. Friend the Member for Huntingdon (Mr. Major) when he was Prime Minister. He said that he would not hold any part of the United Kingdom within it against the wishes of the majority of the people in that part. I think that I quote him correctly. Obviously, that is relevant to the debate. The hon. Member for Banff and Buchan says that I am saying nothing new. I know that: I am trying to avoid saying, "I told you so." I predicted all along that that issue would become crucial because of the fact that the extraordinarily sunny picture that was being painted by the Government was simply unreal. In the referendum campaign, I said that devolution would create a focus for nationalism, which would grow on the back of it. I was told that I did not know what I was talking about, and the Secretary of State for Defence said that devolution would kill nationalism stone dead. We see now that our fears during that campaign were real. If anything, that strengthens my point that these matters need to be clarified before the Bill leaves the House. If matters are left uncertain, they will become the focus for further resentment and anger that will cause friction between the Edinburgh and Westminster Parliaments, and that can only feed the flames of nationalism. We want to avoid that. As I said, ours is a probing amendment, but I have more than a hope that, before the Bill completes all its stages, there will be clear answers. I hope that the Minister will not think that I am insulting the Secretary of State when I say that I do not think that we got clear answers last week. I hope that he will take this opportunity to give such answers.

Tam Dalyell (Labour, Linlithgow)

My view is simple and concise. Sooner rather than later there will inevitably be a referendum on the question of independence. Therefore, we should clear up the issue of who has the power to initiate it.

Alex Salmond (Scottish National Party, Banff and Buchan)

I listened with interest to the right hon. Member for Devizes (Mr. Ancram). He rightly said that the Conservative party said last year in the referendum campaign that devolution would lead to independence. Some official spokesmen for the party said that the process would be inevitable. If they still believe it to be inevitable, I do not see the point of making these speeches. By definition, if something is inevitable, there is no point in trying to resist it, so if the right hon. Gentleman is now disputing the inevitability of the process, we have to conclude that the Conservative party has at least modified its position since the referendum campaign. Surely the important point is that these arguments were ventilated before the people in the referendum campaign by the Conservative party, and the people gave their answer.

Michael Ancram (Conservative, Devizes)

indicated dissent.

Alex Salmond (Scottish National Party, Banff and Buchan)

The right hon. Gentleman shakes his head, but I recall being on television programmes with him, and he made exactly those points. They were available to the people when they judged the matter, and they gave an answer. He implied that the reason for that was that they did not believe him. Another reason might be that they did not care particularly. The argument from the other side—both from me and the Secretary of State for Scotland—was that it was up to the people to decide the constitutional future of Scotland. When the right hon. Gentleman made those arguments in the referendum campaign, the united answer that he received from the yes forces was that these matters would be determined by the people of Scotland.

Edward Garnier (Conservative, Harborough)

I think that the hon. Gentleman will accept that the referendum, which the yes campaign decisively won last summer, took place in ignorance of the Bill. Does that not have some bearing on this debate?

Alex Salmond (Scottish National Party, Banff and Buchan)

The referendum was informed by a White Paper that gave a detailed explanation of what we could expect from the Bill. Certainly what would be a reserved matter in terms of the constitution was in the White Paper, but the answer given by the yes forces was very clear, and it was given on a number occasions. I had a number of meetings with the Secretary of State in that period. I asked him a number of times in the House what his answer was. I particularly remember 24 July 1997, when I specifically asked him whether there would be any attempt to put up obstacles or roadblocks to stop the Scottish Parliament from developing, if the people so chose, into an independent Parliament. He gave a specific answer: If I did try to build such barriers, they would be futile and without effect. At the end of the day, in practical politics, what matters is what people want. If the hon. Gentleman is able to carry the people of Scotland, no doubt he will be able to advance his cause."—[Official Report, 24 July 1997; Vol. 298, c. 1049.] There was no doubt or dubiety whatever. The Secretary of State clarified that there was to be no glass ceiling in these proposals. They envisaged a devolved Parliament within the state of the United Kingdom, but the sovereign right of the Scottish people to choose to change that arrangement, if they so wished, was upheld.

Liam Fox (Conservative, Woodspring)

Does the hon. Gentleman not accept that, on two occasions last year—first at the general election and then in the referendum—the population of Scotland voted for a Unionist position: first, for Unionist parties in the general election and then for devolution within a United Kingdom, for which he campaigned?

Alex Salmond (Scottish National Party, Banff and Buchan)

I did not see the hon. Gentleman very much in the campaign. I was told that he was on holiday in America at one stage in the campaign. [Interruption.] If I am wrong, I gladly apologise.

Desmond Swayne (Conservative, New Forest West)

Will the hon. Gentleman give way?

Alex Salmond (Scottish National Party, Banff and Buchan)

No, I will not give way to my old university friend. I repeat the point that I did not see very much of the hon. Member for Woodspring (Dr. Fox) during the devolution campaign, but if he saw much of me during that campaign, he would know explicitly that the yes side argued that, although we had different objectives for Scotland's future, the thing that united us was that we accepted the right of the people of Scotland to decide their future. The hon. Member has asked me about the last general election. I would have thought that the Conservative party, which ended up with zero seats in Scotland—nul point, as the hon. Member for Glasgow, Pollok (Mr. Davidson) is fond of pointing out—would be the last party to say that the last general election was a final determination of the state of Scottish politics. The hon. Gentleman prays in aid a victory for the Labour party as a victory for his position. I am sure that there are people in the Labour party who would be very upset about that argument. Clearly, the last general election decided the last general election. The Scottish election will decide the Scottish election. No doubt the next general election will make a decision. Democracy does not stop at a point in time. The whole point about democracy is that if people lose an argument, they have the right and ability to re-present that argument. Scotland was an independent state for 1,000 years. It then made a decision not to be an independent state. If it chooses to reverse that decision, it has the absolute right to do so. 6.45 pm Before the hon. Member for Woodspring diverted me, I was going through some of the quotations from the Secretary of State for Scotland. I come to one that specifically looks at how that sovereignty might be exercised: Although the hon. Member for Banff and Buchan is in favour of a multi-option referendum as a general principle, when it comes—if it ever does—to the point where he wishes to implement a specific constitutional scheme, he should put that to the people of Scotland in a single-question referendum to get it endorsed."—[Official Report, 4 June 1997; Vol. 295, c. 433–34.] The Secretary of State advised me that that was the right and proper methodology to use if I wanted argue the case for independence and have it put before the people—I was to put it before the people in a single-question referendum. I find it a bit surprising that, less than a year later, the same Secretary of State is now, in pejorative terms, daily accusing me of doing exactly what he advised last June. What has changed between last June and this May? The most significant change is that, last June, the Labour party was 30 points clear in the opinion polls and, this May, it is five points behind.

Tam Dalyell (Labour, Linlithgow)

As the hon. Gentleman knows, not since Mephistopheles made a bargain with Dr. Faust has there been anything quite like him and my right hon. Friend the Secretary of State for Scotland coming together. It was a Faustian bargain because they both knew that they wanted different things. I ask the serious question: what is the hon. Gentleman's interpretation of my right hon. Friend's undertaking at that time in relation to a referendum? For the sake of clarity, what does he think was promised by the Secretary of State?

Alex Salmond (Scottish National Party, Banff and Buchan)

The position is absolutely clear in the Hansard of 4 June last year. That was repeated to me at private meetings and in the press. On 16 May in The Herald, the Secretary of State made it clear that no "glass ceiling" would be built. He said: The only way in which we could move to independence would be if people voted for independence. That is clearly their right and I would not wish to deny them their right", ruling out any trick in the White Paper. When I specifically asked the Secretary of State about the reserved matter of the constitution in the Bill, he repeated that that was overridden by the Scottish people's sovereign right to express their wish for independence, if they so chose to do, that this was a point in time and that if the Scottish National party, the independence forces, won their argument, they would have their case resolved.

Desmond Swayne (Conservative, New Forest West)

Will the hon. Gentleman give way?

Alex Salmond (Scottish National Party, Banff and Buchan)

No. The hon. Member for Linlithgow (Mr. Dalyell) is a fair-minded man. He knows that I have argued consistently for a position, as he has. He was with me on television programmes last year when both the Secretary of State and I answered his specific point by saying, "It is up to the people to decide." The arguments of the Conservative Front-Bench team have an air of total unreality. There is the apparent belief that it can find a mechanism, an amendment, a clause, a statement from the Government Front-Bench team, an expression of view by the Secretary of State, by the Minister for Home Affairs and Devolution, or by a Labour Member, which could somehow stop the process of sovereignty in the Scottish people. It cannot be done in that fashion. No amendment or clause can erect the roadblock that the Secretary of State promised would not be there.

Desmond Swayne (Conservative, New Forest West)

I do not think that anyone is questioning the sovereign right of the Scottish people to opt for independence, should they so wish. We are discussing merely the proper means by which that process will arise.

Alex Salmond (Scottish National Party, Banff and Buchan)

That is why I quoted—I know that the hon. Gentleman was listening carefully—the advice given to me, on 4 June 1997, by the Secretary of State for Scotland. He told me that if it comes to a point at which I wish to implement a constitutional scheme, I should put the scheme to the people of Scotland in a single-question referendum. I suggest to the House that I could put the matter to the people of Scotland only if I were in the majority party, or the leader of a coalition, in the Scottish Parliament. I cannot see myself as Prime Minister in this place, or commanding a majority in accepting such a scheme. The words of the Secretary of State for Scotland can be interpreted only in that way. It is a bit rich, and a bit late, for that certainty—that democratic point of view—which was crystallised and repeated many times last year by the Secretary of State for Scotland, to have undergone a transition this year, because of a change in the nature of Scotland's opinion polls. What manner of politics is it that bases an argument on democracy on the latest position of a few public opinion polls?

Tam Dalyell (Labour, Linlithgow)

This is a very important discussion indeed in terms of the British constitution. In the presence of the Whips—I do not care who knows it—I want to know, as a Labour Member of Parliament, why the Secretary of State for Scotland has something better to do than to be in the House of Commons at this point? This is a House of Commons point, and I am an old House of Commons traditionalist. On this particular issue, the place for the Secretary of State for Scotland—Cabinet Committee meeting or not—is on the Treasury Bench. I hope that the Whip registers that.

Alex Salmond (Scottish National Party, Banff and Buchan)

That was an intervention for me, but an observation for the Labour party. I should tell the hon. Member that there are several crisis points in the Labour party in Scotland. Perhaps the Secretary of State is dealing with one of the other crises, rather than with us in the Chamber. Despite the Secretary of State's absence, there is no shortage of quotations from him. I have another half dozen of them with me, which I shall not read out now. Nevertheless, Ministers should remember that those quotes, and the notes of various meetings that I have had with the Secretary of State, are on the record and can be prayed in aid. It is ridiculous to try to block the democratic sovereign right of the Scottish people, and the parties that try to do so will not gain any benefit. For 20 years or more, the Tories tried to do it, and the result of that and other measures was that they were perceived—in the words of the previous Secretary of State for Scotland—as being "anti-Scottish". They were perceived as such not necessarily because of the views that they held but because of their attempt, in one way or another, to deny the Scottish people the right to decide their own destiny. Regardless of its views on other matters, any party that makes an argument that one can deprive people of that right will fall into the same trap as the Tory party did for so long.

Michael Ancram (Conservative, Devizes)

The hon. Gentleman is touching on an important point. Does he believe that the type of roadblock that he fears is or is not being created by Government amendment No. 73? I am trying to clarify that point. It is essential that we should have the answer to that question before the Bill is passed by this place.

Alex Salmond (Scottish National Party, Banff and Buchan)

I do not think that such a roadblock would be created by the Government amendment, although one would be created by amendment No. 58, which was tabled by the right hon. Gentleman. That is why, if he had the courage to press it to the vote, I should take the greatest pleasure in voting against it. We have to distinguish between the Parliament's legislative competence and its right to discuss, decide and consult on anything that it wishes. We have to distinguish between the Parliament's legislative competence and whether it can "pray in aid"—to use the Secretary of State for Scotland's own words—the sovereign right of the Scottish people to determine their own future. I think that the right hon. Member for Devizes will find that that view is well supported by eminent Scottish lawyers and academics. It is certainly the view I take. I do not mind that the settlement is a devolution one—I never have. The only question that I have asked the Secretary of State—and the Minister of State, as he can verify—is whether the Scottish people have the right to move on if they so wish. I am genuinely saddened that the confident democratic answer given last year by the Secretary of State for Scotland has been replaced this year by a much more equivocal and muddied one. It would be far better if all of us were to accept that sovereign right, stop trying to move the goalposts and let the Scottish people determine their own national destiny.

John McAllion (Labour, Dundee East)

Like the hon. Member for Banff and Buchan (Mr. Salmond), I cannot foresee his ever being the Prime Minister or commanding a Scottish National party majority in this place. As he well knows, it is not in the nature of the beast. I tell my hon. Friend the Member for Linlithgow (Mr. Dalyell) that, although certainly he can tell the Secretary of State for Scotland what he thinks, through the Whips, I certainly would not—as I await an interview for the Scottish Parliament—dream of doing any such thing—[Interruption.] I am only, at the very outset, setting the tone of my speech. I was relieved to hear that amendment No. 58 is only a probing amendment. I thought that the Tory party was trying to facilitate constitutional referendums in Scotland. As the Tories have spent 18 years frustrating such referendums, that really would have been one for the book. I tell the right hon. Member for Devizes (Mr. Ancram) that he cannot call in aid the state of current opinion polls in arguing that devolution will necessarily fan the flames of nationalism and lead to an independent Scotland. If he carefully examines opinion polls in Scotland, he will see that the SNP is ahead of Labour only in elections to the Scottish Parliament. Scottish voters realise very well that electing a large SNP contingent to the Scottish Parliament is not the same as voting for independence. Scottish voters are being very discriminating in how they are indicating their voting intentions in the next election. I felt that I had to speak in this debate because of the attack by the right hon. Member for Devizes on an individual Liberal Democrat Member, for daring to come out in favour of a referendum. Today, I seem to have caused some controversy by saying that I, too, am in favour of an early referendum on whether Scotland should remain with a devolved Parliament inside the United Kingdom or move to independence in Europe. It seems that I am now—unintentionally—at odds with my right hon. and hon. Friends on the Treasury Bench. I was merely stating what I believe to be the case. I make it clear that, in any such referendum, I would vote for Scotland to remain within the United Kingdom, and for the devolved Parliament to be the way forward for Scottish government. The differences between Ministers and me is only about tactics, and about what is in the Labour party's best interests. I believe that it is certainly in Labour's interests to hold an earlier rather than a later referendum, because the current mood in Scotland is very different from what it might be in five or 10 years' time. We will have to consider that fact. I have several concerns about Government amendment No. 73, which I hope that my hon. Friend the Minister will try to deal with in his reply. Paragraph 1(b) of the amendment would seem to exclude any matter of the Union of the Kingdoms of Scotland and England from being dealt with by the Scottish Parliament, in a referendum or by any other device. The provision seems to be a type of blocking mechanism designed to stop the Scottish people, through their elected representatives in the Scottish Parliament, from ever reaching any decision on whether Scotland should remain inside or outside of the United Kingdom. The Government amendment seems to require a vote in this place before a referendum could be held to discover the views of the Scottish people—thereby giving a veto to the majority of non-Scottish Members in this place, allowing them to prevent the Scottish people from ever having an opportunity to vote in such a referendum. If that were the case, I should be very concerned about the amendment. Many years ago, when many of my right hon. and hon. Friends and I signed the Claim of Right for Scotland, we were unequivocal in stating that sovereignty lay with the Scottish people, and only with the Scottish people. We signed up to the Claim of Right for Scotland, and we signed up to the sovereignty of the Scottish people. We should be standing by what we believed in 1989.

Eleanor Laing (Conservative, Epping Forest)

Does the hon. Gentleman think that if action is taken that fundamentally alters the whole of the United Kingdom, the whole of the United Kingdom should be part of the decision-making process, at least through the United Kingdom Parliament?

John McAllion (Labour, Dundee East)

I might be prepared to take that argument a little more seriously if it were applied in Northern Ireland, for example. Friday's referendum does not involve the whole of the United Kingdom; nor should it. As I was saying, the Labour party is committed to the Claim of Right for Scotland and to the concept of the sovereignty of the Scottish people. If the Scottish people decide on independence, it would not matter whether 500 or 600 Tory Members in this place were opposed to the Scottish people breaking away from the United Kingdom. They would have no right to stop them from breaking away, if it was based on the democratic view of the Scottish people. Even Mrs. Thatcher was prepared to accept that much. I am surprised that the hon. Lady is at odds with her great heroine.

Bernard Jenkin (Conservative, North Essex)

The hon. Gentleman is absolutely right that if the Scottish people demand independence, it is game, set and match to the Scottish National party. The question is whether it is right in the United Kingdom constitution for the Scottish Parliament to be able to facilitate that process. Does he think that there is any limit on the powers that the Scottish Parliament can demand, argue for, campaign for, spend money on campaigning for or hold referendums on? Is there anything on which it cannot spend money? If he thinks that there is not, we are establishing a sovereign Scottish Parliament and an a la carte United Kingdom, which I do not suppose he favours for the European Union, for example.

John McAllion (Labour, Dundee East)

The hon. Gentleman paints a distorted picture of reality. I ask him in turn how this Parliament will stop a majority in the Scottish Parliament deciding that they should hold a referendum on the future constitutional position of Scotland? It is all very well for this Parliament to say that it is not in the competence of the Scottish Parliament to spend any taxpayers' money—even if it is raised by the Scottish Parliament's right to vary income tax—on holding a referendum, but how does it stop the Scottish Parliament? Is anyone seriously arguing for sending troops to prevent the holding of a referendum in Scotland and the Scottish people having a say on the future constitutional set-up under which they wish to live? Of course a referendum could not be stopped. If a majority in the Scottish Parliament ever decide that they want to hold a referendum, there will be very little that this Parliament can do. One only has to look back to the previous Tory Government to realise that very little can be done. Strathclyde regional council decided that it would hold a referendum on the future structure of the water and sewerage industry in Scotland. The Government of the day did not want it to do that. They may even have decided that it was not competent to do so and that it should not be wasting local taxpayers' money on such a referendum, but the region went ahead with the referendum and it had an effect on the Government of the day. Even with a big majority in the House, the Tory Government had to back down because it was clear that the Scottish people thought that the water and sewerage industry should remain in the public sector. Even a Government who were committed to privatisation had to accept that. That is the reality with which we are dealing.

Alex Salmond (Scottish National Party, Banff and Buchan)

The hon. Gentleman has done well to remind his Front-Bench team of the Claim of Right, which dealt with such issues explicitly. Does his memory of the referendum campaign accord with the quotations that I have cited? There was not a Faustian bargain, as the hon. Member for Linlithgow (Mr. Dalyell) suggested; there was a very clear agreement which allowed the Scottish people to determine the future of our country.

John McAllion (Labour, Dundee East)

I understand that that is the policy of my party. It has been made clear on several occasions that the Labour party is a democratic party and would accept whatever democratic decision the Scottish people took. In fact, I think that every political party in the House holds that position. I know of no hon. Member who would seriously argue that if a majority of the Scottish people want to go down the road towards independence in Europe, this House should try to block their wishes. Surely nobody in a democracy would argue that.

Michael Ancram (Conservative, Devizes)

At the risk of ruining the hon. Gentleman's chances in his future selection contest, is he saying that he disagrees with the Secretary of State when he said last week to the hon. Member for Banff and Buchan (Mr. Salmond) that he cannot find a vehicle for doing that"— holding a referendum— in the machinery laid down in this legislation"?—[Official Report, 12 May 1998; Vol. 312, c. 256.]

John McAllion (Labour, Dundee East)

I am not disagreeing—partly because I was not here. I had a constituency week last week; I was somewhere else. I was certainly not watching the proceedings of the House on cable television. I have far better things to do with my time. I am trying to put across the point that we are not dealing with some inferior institution. We are dealing with a Parliament that will be elected under—in my view—a much fairer democratic system and will reflect the views of the Scottish people. It will be a democratically elected Parliament consisting of 129 Members who will be every bit as competent to decide on such issues as anyone in this House. It is not for us to instruct them on what they can or cannot do with the budget that has been devolved to them. If we continue to try to block what a Scottish Parliament wants or does not want to do, there will be constant friction and fighting between the two Parliaments, which will play into the hands of the Scottish National party. That is why we should not be trying to place such constraints on the Scottish Parliament in anticipation of what might happen many years down the road. Trying to put in place such constraints betrays an acute lack of confidence in our position. I am in favour of an early referendum in Scotland because the Scottish people want a devolved Parliament in the United Kingdom and do not want to move to independence in Europe. When the new Parliament is up and running, most Scots will be wishing it well and hoping that it starts to improve the government of their country. The last thing that they will want is another constitutional upheaval. I think that that is also the view of the Scottish National party—although its members would never admit it publicly. The last thing that they want is a referendum in the first or second year of the Scottish Parliament because they know what the result will be. If there were an overwhelming endorsement of Scotland remaining in the United Kingdom, the SNP's case for independence would be put back at least 10 years—and SNP Members know it. They hope that there is not an early referendum; they hope that they do not get a majority in the Scottish Parliament. [HON. MEMBERS: "Come on."] It will he very difficult for any party to get a majority in the Scottish Parliament under proportional representation. If the Westminster Parliament continues to block the Scottish Parliament's rights to do this or that, it will add to the sense of grievance in Scotland against the Westminster Parliament. Who benefits from any such grievance? None of the parties that argues for remaining in the UK will benefit; only the SNP will benefit. We should not be making it easier for the SNP. In arguing our corner, we should be making it more difficult for the SNP and showing confidence in our position. It is tactically inept to put off the question of a referendum. If there are years of friction between the Scottish and Westminster Parliaments and if the view is maintained in Scotland that the Scottish Parliament has been held back from doing what it wants to do on behalf of the Scottish people due to politicians in Westminster, the case for independence in any future referendum will be boosted. It is in our interests to hold an early referendum, get the issue out of the way for at least 10 years and get down to governing Scotland properly.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

This is an important debate. I hope that it is common ground between the four parties that no one has ever suggested that the Scottish Parliament established by the Bill could claim independence for Scotland or become an independent Parliament. To that extent, many of us have always thought that, as amendment No. 73 states, the Union of the kingdoms of Scotland and England is a reserved matter. That should not come as any surprise. We run into difficulty on whether there can be a referendum on a reserved matter. The notorious—or famous—clause 28 states that an Act of the Scottish Parliament would not be law so far as the Act related to a reserved matter. The question is whether a reserved matter in this case is the Union between Scotland and England or—if it were an advisory referendum—the holding of referendums. If it is the latter, I do not see any problem. Clarification would be useful so that the principle of holding a referendum does not become contentious. Amendment No. 58, tabled by the Conservative party, helps only to the extent that it is a clarification. It does not help that it would require an appeal to Westminster for orders to be granted.

Dominic Grieve (Conservative, Beaconsfield)

The hon. and learned Gentleman will recollect that, last week, with great difficulty, it was extracted from the Secretary of State that he was quite satisfied that it would be ultra vires for the Scottish Parliament to hold a referendum.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

The Secretary of State has expressed that view, but, at the end of the day, that might be a matter for the courts to interpret. That is why it would be better if the matter were cleared up in the Bill. Even the hon. Member for Banff and Buchan (Mr. Salmond) seems to accept that facilitating a referendum could not be achieved by legislation. An article that I happened to glance at in today's edition of The Scotsman says: Mr. Salmond said this could be done as long as the referendum was not set up by an act of the Scottish Parliament, which could be challenged as being outwith the competence of Holyrood. No doubt, if there were some other way—if a referendum were sponsored by Stagecoach, for example—a referendum could go ahead.

Alex Salmond (Scottish National Party, Banff and Buchan)

The hon. and learned Gentleman can relax; I shall not refer to the rest of the article in The Scotsman. I was quoting Professor Colin Munro, professor of constitutional law at Edinburgh university, who said: You have to make the distinction between the reserved powers and what parliament can debate and discuss … there is nothing to stop the parliament arranging to hold a referendum, because that would not involve a change in the law. The actual separation of Scotland from the rest of the UK would be a Westminster decision, but Labour have already said they would regard a majority vote in favour … as a vote for independence".

Jim Wallace (Liberal Democrat, Orkney and Shetland)

Arranging to hold a referendum might involve passing a law. The referendums on accession to the European Community in 1975, on the Scottish and Welsh Parliaments in 1979, in Wales and Scotland last year and in Northern Ireland later this week were all arranged by Acts of Parliament.

Alex Salmond (Scottish National Party, Banff and Buchan)

And the Strathclyde water referendum.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

The hon. Gentleman mentions the Strathclyde water referendum, which I remember well and which my colleague, Councillor Christopher Mason, managed to persuade Strathclyde region to hold. Labour Members scoffed and told me in the Lobby that that was a terribly bad idea and that we should not hold it because we might get the wrong result, but the result was overwhelming and Labour Members were only too pleased to use it to twist the tail of the Conservative Government. Since that referendum was held, legislation has been passed that would not allow it to be repeated. Strathclyde region could never pass an Act of Parliament. The hon. Member for Banff and Buchan (Mr. Salmond) may agree that it would help to clarify the point about the holding of a referendum. There is a further question of the wisdom of having a referendum, which is a point on which I do not agree with the hon. Member for Banff and Buchan.

Alex Salmond (Scottish National Party, Banff and Buchan)

The hon. and learned Gentleman has said that he wants clarity, but he has not told us his view.

Edward Garnier (Conservative, Harborough)

He is a Liberal—he does not have views.

Alex Salmond (Scottish National Party, Banff and Buchan)

That is not fair. Does the hon. and learned Member for Orkney and Shetland (Mr. Wallace) believe that the Scottish Parliament should have such a power, regardless of whether he thinks that to exercise it would be wise?

Jim Wallace (Liberal Democrat, Orkney and Shetland)

It would be better if the power existed; whether it is exercised is another matter, which brings me to the hon. Gentleman's position. He suggested that democracy is standing still. I do not say this in a pejorative sense, but his party is a single-issue party. It exists for only one purpose—to get independence for Scotland. That is a perfectly legitimate aim.

Roseanna Cunningham (Scottish National Party, Perth)

At least we have a purpose.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

The hon. Lady makes a silly remark, but, during the by-election in her constituency, the Conservative party made an outrageous attack on her party on the anniversary of VE-day, when it tried to compare the Scottish National party to the nationalism that existed in Europe—

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

Order. The hon. and learned Gentleman must address the Chair.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

In Europe in 1939, Mr. Deputy Speaker.

Eleanor Laing (Conservative, Epping Forest)

It is the same.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

The hon. Lady ought to withdraw that remark.

Edward Garnier (Conservative, Harborough)

On a point of order, Mr. Deputy Speaker. Would you ask the hon. and learned Gentleman to return to the matter under discussion, rather than airing a private grief?

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

That is not a matter for the Chair.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

The Scottish National party has always argued its case through the ballot box. At every election in Scotland—general elections and Scottish elections—we have a referendum on whether the people of Scotland want independence. At the most recent general election, the overwhelming majority rejected independence, and I believe that they will do so again. If the Scottish National party managed to get a majority of votes, it would have a mandate to hold a referendum and put the case for independence. Until that happens, Scottish nationalists must accept that the electorate has that opportunity at the ballot box. No new Parliament—once it had been set up and was getting on with its task of discussing Scotland's jobs, housing, education and health service—would want to be distracted. It would inevitably be distracted if it had also to debate the constitutional issue that has distracted our intention from other issues for far too long.

Malcolm Chisholm (Labour, Edinburgh North and Leith)

I want to focus not on whether the Parliament could have a referendum—a matter which I am sure that my hon. Friend the Minister of State will address—but on the topical question of whether it should do so, particularly in its early years. My hon. Friend the Member for Dundee, East (Mr. McAllion) said that it was in the interests of the Labour party to hold such a referendum. However, we should be acting, here and in the Scottish Parliament, in the interests not of the Labour party but of the Scottish people. That will be a key issue in the run-up to the Scottish parliamentary elections. Everything that we do must be directed towards making the Parliament work for Scotland. Our argument is that the SNP wants to make the Parliament work for the SNP, which is what the referendum policy is about, so Labour Members should not use a similar argument to say that the Parliament should work for the Labour party. This is an exciting venture, to which all the people of Scotland are looking forward, and for which the vast majority of them voted. All our energies must be directed towards making the Parliament work for Scotland on the issues that concern its people, such as health, education, jobs and child care. I mention child care because the first-ever child care strategy was launched today. The hon. Member for Banff and Buchan (Mr. Salmond) referred to a glass ceiling. No party in this House—here I agree with my hon. Friend the Member for Dundee, East—has ever said that there is a glass ceiling. Even the previous Prime Minister said that the people of Scotland would get independence if they voted for it. As the hon. and learned Member for Orkney and Shetland (Mr. Wallace) said, the people of Scotland have a continuing chance to vote for independence. It will be perfectly clear, through the votes cast for the SNP, whether the people of Scotland support independence. Notwithstanding the current protest votes in Scotland, people are not, at present, voting for independence.

Henry McLeish (Labour, Central Fife)

Many people in my constituency will, like me, be astonished that, after the 55 weeks that it has taken to get to the point at which the Bill will have completed all its stages in the House, the 100 years for which this aspiration has existed in Scotland and the 20 years for which a movement for change has existed, we are now debating this matter. It has been graphically illustrated that the people of Scotland want a Parliament that will deal with the issues that they feel need to be addressed. They do not want the Parliament to be turned into a constitutional circus—that is not its aim. We have worked for 55 weeks to ensure that we have a substantive legislative framework to move Scotland forward in the next century. We have done so around a consensus arrived at on 11 September and on 1 May last year. When we are talking about the will of the people and their votes, I am reminded that the Conservative party has no Members of Parliament in Scotland. I am reminded also that the Scottish National party has six Members out of a possible 72—

Roseanna Cunningham (Scottish National Party, Perth)

Wait until next year.

Henry McLeish (Labour, Central Fife)

I look forward with relish to that contest. I am reminded also that one party, now represented in government, got 56 seats out of 72. Let us have a little pragmatism and perspective on an issue that is in danger of becoming abstract.

Edward Garnier (Conservative, Harborough)

rose—

Henry McLeish (Labour, Central Fife)

I am not giving way.

Edward Garnier (Conservative, Harborough)

Will the Minister give way on clause 29?

Henry McLeish (Labour, Central Fife)

I am not giving way at this stage. In a curious way, when people talk about the sovereign right of the people, there is no debate, because people vote in a representative democracy, but another issue, which has been confused with that, is the rights and responsibilities of the Parliament that we have proposed over the past 55 weeks. A third tier has been brought into the problems—the constitutional underpinning and the logic inherent in the Scotland Bill. It is easy for right hon. and hon. Members to get the three issues mixed up, each for their own convenience. It is crucial to say that we are discussing a Bill which sets out matters clearly. I take exception to the way in which quotes of my right hon. Friend the Secretary of State have been bandied about in the Chamber and the press. There is nothing unclear about my right hon. Friend's position on an issue that has been raised by Conservative Members in a so-called probing amendment.

Michael Ancram (Conservative, Devizes)

The hon. Gentleman can clear up the matter once and for all. I shall put to him the question that the hon. Member for Linlithgow (Mr. Dalyell) put to the Secretary of State: can the Scottish Parliament initiate a referendum on Scottish independence—yes or no?

Henry McLeish (Labour, Central Fife)

The right hon. Gentleman should give me time to get to the central point. On 12 May, my right hon. Friend the Secretary of State said: A referendum that purported to pave the way for something that was ultra vires is itself ultra vires. One does not need expert lawyers to consider that in detail and interpret its meaning. Am I wrong in thinking that what the Secretary of State has been saying is consistent not only on that point, but on the sovereignty of the people? In a similar vein, also on 12 May, the Secretary of State said: But, as I said, the sovereignty of the Scottish people, which is often prayed in aid, is still there in the sense that, if they vote for a point of view, for change, and mean that they want that change by their vote, any elected politician in this country must very carefully take that into account.—[Official Report, 12 May 1998; Vol. 312, c. 256.] In previous debates, my right hon. Friend has captured the essence of linking the sovereignty of the people to the constitutional underpinning that forms the core of the Bill. The whimpering of the so-called official Opposition shows that they do not recognise the fact that 11 September meant that we should go forward. For the Government, that is what the Bill is about. This has been an extensive debate, and many right hon. and hon. Members have participated in it; far be it from a Minister to be criticised for trying to stifle such a debate. Clearly, the Government do not support amendment No. 58— It being three hours and fifteen minutes after the commencement of proceedings on consideration of the Bill, MR. DEPUTY SPEAKER, pursuant to the Order [13 January] and the Resolution [12 May], put forthwith the Question already proposed from the Chair. Amendment agreed to.

Henry McLeish (Labour, Central Fife)

I beg to move amendment No. 231, in page 59, line 16, leave out 'Crown Estate Commissioners' and insert 'management (in accordance with any enactment regulating the use of land) of the Crown Estate'.

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

With this, it will be convenient to discuss the following amendments: Government amendment No. 232. No. 96, in page 78, line 22, at end insert— 'The subject of land reform in Scotland is not a reserved matter, notwithstanding the reservation of the Crown Estate Commissioners in Part I of this Schedule and of business associations under Head 3 of Part II of this Schedule.'. No. 113, in schedule 7, page 85, line 8, at end insert— `Crown Estate Act 1961— 6A.—(1) The Crown Estate Act 1961 is amended as follows— (2) In section 1(4)— (a) after each "Secretary of State" add "or the Scottish Executive" (b) after second "Scotland" omit "Secretary of State" and insert "Scottish Executive". (3) In section 2(1) (Reports and accounts of Commissioners), at end add "and the Scottish Parliament.".'.

Henry McLeish (Labour, Central Fife)

May I stress at the outset that, under the Government's proposals, the Crown Estate will be subject to the Scottish Parliament's legislation on devolved matters, such as land law including land tenure reform, planning, environmental protection and fisheries, in the same way as all other land in Scotland? Amendment No. 231 is a technical amendment intended to make the position of the Crown Estate Commissioners clear, and it may be helpful if I set out precisely what is intended in respect of the commissioners. The Crown is reserved and the Crown Estate Commissioners are included as part of that reservation. However, it is intended that, although the functions of the commissioners in managing the Crown Estate should be reserved, the property and interests that form the Crown Estate should not be reserved. The Scottish Parliament would, for example, be able to legislate to implement the proposals announced by my noble Friend the Under-Secretary responsible for agriculture, fisheries and the environment, to extend the role of planning authorities to cover marine fish farming. The Under-Secretary responsible for local government and housing, my hon. Friend the Member for Western Isles (Mr. Macdonald), announced on 17 December that new statutory procedures for the control of the dredging of marine minerals in Scotland would be introduced to replace the existing non-statutory procedure. That, too, would be within the legislative competence of the Scottish Parliament.

Edward Garnier (Conservative, Harborough)

The reserved matters are defined in schedule 5; we know that from clause 29, subsection (2) of which says: Her Majesty may by Order in Council make any modifications of that Schedule which She considers necessary or expedient. What modifications did the Government envisage in drafting that subsection? How would they affect not only the matters that we were discussing a moment ago but the matters that the Minister is trying to discuss now?

Henry McLeish (Labour, Central Fife)

Government amendments Nos. 231 and 232 deal with the issues surrounding the reservation of the Crown and the Crown Estate Commissioners. The essence of the discussion is to highlight, relative to the concerns that have been raised, the powers of the Scottish Parliament in that respect. There is some misunderstanding about the reservation of the Crown Estate and the Crown Estate Commissioners, and I am attempting to clear it up.

Edward Garnier (Conservative, Harborough)

rose—

Henry McLeish (Labour, Central Fife)

No, I do not want to give way, because we need to make some progress. It is important that we discuss some of the other amendments that the Opposition have tabled, and if I catch your eye, Mr. Deputy Speaker, I shall want to talk about them at a later stage. Amendment No. 232 makes it clear that the reservation of the hereditary revenues of the Crown does not include revenues from bona vacantia, ultimus haeres or treasure trove. That is a bit of a mouthful, but it means matters that the Crown can take over. Such matters are devolved as property belonging to Her Majesty in right of the Crown. I am sure that hon. Members will agree that, as they are matters dealt with distinctly under Scots law, it is appropriate that ultimus haeres, bona vacantia and treasure trove should be devolved. The revenues from bona vacantia and ultimus haeres and the benefit from treasure trove will accrue to the Scottish Consolidated Fund. The Queen's and Lord Treasurer's Remembrancer, who is responsible for administering ultimus haeres, is also devolved.

Roseanna Cunningham (Scottish National Party, Perth)

I shall speak to amendments Nos. 96 and 113, which stand in my name and in those of my hon. Friends. With the present debate, we are returning to the issue of land reform—a subject which has exercised a great many people and been the subject of much political debate in Scotland. I am sorry that the hon. and learned Member for Orkney and Shetland (Mr. Wallace) is not in his place now, after his claim that my party was a single-issue party. From that, I can only presume that the hon. and learned Gentleman does not think that land reform is an issue. I do. Land reform is an issue for the Scottish National party, and has been for a considerable time. During the passage of the Bill, we have had several opportunities to explore what I see as the potential barriers that it could place in the path of radical land reform in Scotland. Amendment No. 96 identifies two of those—the reservations of business associations and of the Crown Estate Commissioners. It offers the Government the opportunity to confirm that the Parliament will be free to legislate in any way that it sees fit to move forward with land reform proposals. Government amendment No. 231 goes part of the way to allay my concerns, and I was grateful to hear what the Minister said about it. It restates the actual nature of the reservation, which focuses on the management of the Crown Estate, and confirms that the Crown Estate will not escape from the general structure of land reform legislation. However, the alterations do not go far enough. Indeed, they confirm the points that I sought to raise in Committee. Government amendment No. 232 devolves responsibility for certain elements of residual Crown finance. The Government have seen fit to devolve revenue in three areas. One is treasure trove, which in plain language means discovered treasure. Another is the Crown inheritance of certain types of property, such as when businesses are in dissolution and what, according to "The Oxford Companion to Law", are "waifs and estrays". Apparently, waifs and strays are classified as a form of income, although I am not sure how that would come about. That heading also includes beached whales and wrecks; I am not sure how many Members present tonight would come into that category. However, it is clear that some issues critical to future land reform are not devolved. Those are the Crown Estate Commissioners' control of the foreshore, the sea bed, mineral rights and salmon, and of the revenues that accrue from those rights. The Government amendments are not enough. Any meaningful land reform will have to include the option of transferring control and revenues from the Crown's residual ownership of the foreshore, sea bed and mineral rights. Those are sources of income that could be used to revitalise our rural areas and enhance community involvement in the management of land—a subject which I have dealt with in detail in earlier debates.

Edward Garnier (Conservative, Harborough)

I tried to invite the Minister to clarify a certain point, but he seemed unable or unwilling to do so. I wonder whether the hon. Lady could help me. All the points raised by the amendments that she has tabled to schedule 5 could be rendered useless if an Order in Council were passed under clause 29(2), which says: Her Majesty may by Order in Council make any modifications of that Schedule which She considers necessary or expedient. Is the hon. Lady confident that the schedule that she seeks to amend could not simply be wiped out by an Order in Council passed in the House late at night?

Roseanna Cunningham (Scottish National Party, Perth)

With all due respect to the hon. and learned Gentleman, I am not sure whether that is what we are debating now. We had an opportunity to debate that aspect at an earlier stage and, if he will forgive me, I do not want to be drawn down that avenue now. To return to the matter in hand, let me say that amendment No. 113 focuses on a problem identified in Committee. As the law currently stands, the Secretary of State for Scotland has wide-ranging powers of direction over the Crown Estate Commissioners in relation to their activities in Scotland. That power is contained in the Crown Estate Act 1961. That power confirms the overall democratic control of the Crown Estate land, and the distinctive needs of the Scottish estate are confirmed by the sole power of the Secretary of State to direct the commissioners in relation to Scotland. Amendment No. 113 would have two effects. First, it would transfer those powers that are currently held by the Secretary of State to the Scottish Executive. I wonder whether the Minister trusts the Scottish Parliament to carry out the functions with which the Secretary of State is entrusted. What happened in the discussions between the Government and the Crown Estate Commissioners that led to the decision not to devolve the Secretary of State's responsibilities? In the answer that I received today to a written question that I had tabled, I was told that no meetings had taken place between the Secretary of State and the first Crown Estate Commissioner to discuss land reform in Scotland, but that officials were in touch with the Crown Estate on the matter. I want in particular to know about the devolution of powers relating to the commissioners.

Liam Fox (Conservative, Woodspring)

May I take the hon. Lady back to the debate on land reform that took place only a few weeks ago? She said then: The SNP seeks a people's land reform for Scotland. That means information, management, development, access and ultimate ownership of the land by and for the people of Scotland. Land reform must go beyond mere technical tinkering with the basic land law in Scotland."—[Official Report, 29 April 1998; Vol. 311, c. 247.] How will amendments Nos. 96 and 113 take that process forward? What will be the role of the Scottish Parliament in the transfer of Crown Estate land?

Roseanna Cunningham (Scottish National Party, Perth)

I am not sure to which debate the hon. Gentleman refers—land reform has been discussed a number of times in our consideration of the Bill, and recently there was an Adjournment debate on the matter. We are now focusing on the ownership of foreshore, sea bed and mineral rights; the resolution of that issue is vital if we are to move forward land reform in Scotland. It will come as no surprise that the consensus in Scotland is that land reform is a necessity—it is likely to be an early priority of the Scottish Parliament. We may differ slightly on what we want—some of us may want to go much further than others—but there is no doubt that land reform will be on the agenda. The amendments would make it absolutely clear that the Scottish Parliament will not face difficulties in coming up against the reserved power. I hope that the Minister will enlighten us on the discussions with the Crown Estate Commissioners on the devolution of the Secretary of State's powers over them. Amendment No. 113 would ensure that, even in relation to the Crown Estate, there was no question that the Scottish Parliament would be prevented from taking the steps that it thought necessary to maximise economic and community access to all aspects of the land, which perhaps answers the question asked by the hon. Member for Woodspring (Dr. Fox). It would open up access to the resources that are currently under the commissioners' control—mineral rights, salmon rights, the sea bed and the foreshore. It would open the door to meaningful land reform. In his pre-general-election manifestation—before he became a Minister—the hon. Member for Cunninghame, North (Mr. Wilson) made a radical call for control over those rights. I shall not quote his words verbatim, as I did so in the Adjournment debate that has been mentioned, but he was speaking in the House about legislation introduced by the previous Government. I do not understand why the Bill cannot go further on land reform, especially in relation to the Crown Estate Commissioners. The second key effect of amendment No. 113 would be to introduce a requirement for the Crown Estate Commissioners to present reports not only to Westminster but to the Scottish Parliament. That would be a basic step. Even if the Minister does not accept the amendments in full, I hope that he will at least consider imposing that requirement and confirm that the Crown Estate Commissioners will be among the bodies that the Scottish Parliament can summon as witnesses. That will be essential when the Scottish Parliament discusses land reform.

Charles Kennedy (Liberal Democrat, Ross, Skye and Inverness West)

The hon. Lady will find a ready echo of what she is saying among those of us who have had to deal with the Crown Estate Commissioners for years, with all the attendant frustrations—not least in the fish-farming sector in the highlands and islands. Does she share my frustration at the appointment system to the Crown Estate Commissioners, which is through the Chancellor of the Exchequer? When one asks questions on public policy of Scottish Office Ministers, those questions are often transferred to the Treasury, but Treasury Ministers, understandably, do not have the same knowledge of, or insight into, those matters as Scottish Office Ministers have. That problem may be overcome as a result of the new structure in the Scottish Parliament.

Roseanna Cunningham (Scottish National Party, Perth)

I certainly hope so. It would be a shame if our agreements on land reform were to be stymied by problems arising from the way in which the Crown Estate Commissioners are currently constituted. I do not know whether all hon. Members have experienced this, but it has been noticeable that, since the issue was first raised in our consideration of the Bill, the commissioners have been much more communicative. Perhaps it dawned on them that the secrecy and lack of transparency with which they had managed to conduct their affairs will not last much longer, and that they needed to get their act together, at least in public relations. They certainly seem to have extended their fax and mailing lists to include many more people than previously received information from them. I do not criticise that—I am glad that it has happened—but it shows that even minimal debate in the House engenders a response. How much greater the response would be if the Scottish Parliament were able to consider those issues even more closely. The detail of the Scottish National party's concerns have often been misunderstood. We know that the Crown Estate will be subject to the technical reform of the feudal system—I think that I can say with some confidence that such reform will be introduced by the Scottish Parliament regardless of the result of next year's election. The Crown Estate will be subject to any changes in the law on the sale or purchase of land, the registration of land or access to grants for the development of land. It will not be exempt from the legal structures introduced by land reform legislation. The Government amendments and the comments of the Crown Estate Commissioners in the press serve only to highlight the basic nature of my concern—the aspects of the Crown Estate over which the Parliament will not be empowered to legislate, such as the revenues and residual ownership rights. Those are not trivial matters; they are extremely important, and have a profound effect on many communities in Scotland. They should be within the scope of the Parliament. Amendment No. 113 provides the Government with a solution. I hope that the Minister will explain why the Parliament cannot be trusted with powers that are currently exercised by the Secretary of State, and why it should be prevented from legislating to transfer ownership of, for example, the foreshore from the Crown Estate to local communities, which, I suspect, people may want to do in future. I await with interest the Minister's reply.

Tam Dalyell (Labour, Linlithgow)

I want to thank the hon. Lady. I interrupted her on the previous occasion when she raised this subject, and she said that she would send me the documents. She was as good as her word, and sent me the background work that she and others had done. Having read it, I find that there is a great deal of meat in it. I totally agree that these matters are not trivial, but I want to put it on the record that I have had both good and bad experiences with the Crown Estate Commissioners. They have done much of their work extremely imaginatively and competently, and I would not like the House to give the unfair impression that everything they have done is unimaginative and not for the good of Scotland.

Roseanna Cunningham (Scottish National Party, Perth)

indicated assent.

Tam Dalyell (Labour, Linlithgow)

I am glad that the hon. Lady recognises that the Crown Estate Commissioners have done many good things. That said, vital issues concerning the sea bed are involved. Everything that flows from the Wildlife and Countryside Act 1981 is intimately concerned with this matter. Some estates are run extremely well, but awkward issues such as Knoydart remain. Those issues should certainly be discussed. I very much look forward to my hon. Friend's reply on this vital subject.

Liam Fox (Conservative, Woodspring)

On 29 April, we had a substantial debate on land reform in Scotland. It was one of the most constructive debates that I have sat through in this Parliament, and there were wide areas of consensus among all the parties. We agreed that changes in land use must remove barriers to sustainable rural communities, and we discussed the contribution made in the past by private ownership and the cost of public ownership. There was consensus about the need for reform of the feudal system; an example given at the time was the maintenance of tenancies, but with reform along the lines of farm business tenancies. We also agreed about regulation of public access. How do the Government amendments relate to what the Minister said on that occasion about the Government's broader view of land reform in Scotland, and especially the current review? When is that review expected to finish? What role do the Government envisage for the Scottish Parliament in broader issues of land reform? When he rejects—as he no doubt will—amendments Nos. 96 and 113, will the Minister consider those questions?

The rest of the debate is in Hansard.