Orders of the Day — Scotland Bill

House of Commons, 11 November 1998.

CONSTITUENCIES, REGIONS AND REGIONAL MEMBERS

Donald Dewar (Labour, Glasgow Anniesland)

I beg to move, That this House disagrees with the Lords in the said amendment.

Betty Boothroyd (Speaker, West Bromwich West)

With this, it will be convenient to consider Lords amendments Nos. 216 to 220.

Donald Dewar (Labour, Glasgow Anniesland)

Today, we continue a long saga that has become part of our lives over the past year or so. I offer hon. Members the consolation that we approach the end, as we are now dealing with Lords amendments to the Scotland Bill. Today and next Monday, the House will be asked to consider the formidable number of amendments made to the Bill during its passage through the Lords. The Government have taken, as is traditional and proper, particularly with such complex legislation, the opportunity to strengthen and improve the Bill against its drafting when it left the House last May. I hope to persuade hon. Members that many of the changes made in their lordships' House are both desirable and to be welcomed. I am sure that the Opposition Front-Bench teams will join me in the task, looking squarely, but, I hope, briefly in most cases, at the merits of each proposal as it comes along. It is therefore perhaps a little ironic that I have to start by asking the House to disagree with the Lords on a group of amendments that relate to a matter of some importance: the size of the Scottish Parliament, and whether it should remain, irrespective of what may happen in other parts of Scotland's parliamentary representation, at 129 Members. Let me say immediately that I believe that there is a genuine desire among most hon. Members—and among Members in the Lords—who have debated the matter to ensure that the Scottish Parliament can operate effectively and on a basis that will inspire and command public confidence. To some Conservative Members, its size is the most important or determining factor of its ability to do that. I do not agree, and want to advance some arguments to support my point of view. We believe that quality is important and that the working methods of the Parliament are an important part of the process. In addition, the involvement of the wider community beyond Parliament is an element in the general process and in the preparations made to allow the Parliament to operate effectively. I pay tribute to the consultative steering group, to the Minister for Home Affairs and Devolution and to the representatives of other parties who have joined him on the steering group. Great progress has been made: one or two ideas have been picked up and knocked about in the public press in a way that I regret, but that is the price one pays for innovating and producing ideas that are novel and depart somewhat from the precedents accepted here. We have always made it clear that we would take the best from this place, but that, if Scottish conditions made it necessary to think anew, we would not hesitate to do so. There are points of principle involved in the Bill and in the amendments to it. One point of principle that those of us on the Government Benches think is of some significance and importance is that there is genuine virtue in a linkage between Westminster and Scottish parliamentary constituencies; and we see merit in coterminous boundaries. The White Paper "Scotland's Parliament", which is familiar to all hon. Members who have the staying power still to participate in these debates, spelt out clearly the importance that the Government attach to maintaining common boundaries for the constituencies at Westminster and in the Scottish Parliament. Such an approach will strengthen the integrity of the United Kingdom. In addition, there are benefits from the point of view of constituents, because common boundaries will make representation easier to access. All of us know from our own experience the surprising amount of confusion that often prevails in the minds of our constituents about how the various branches and levels of government interact and interrelate. I am often more clearly recognised by my constituents as a surrogate local councillor than as a Member of Parliament. I realised early in my career that, when people approach me with problems, delivering a mini penny lecture on the fact that housing allocation is not my responsibility as a Member of Parliament, or that I am not responsible for some other aspect of local government work, does not go down well.

Donald Gorrie (Liberal Democrat, Edinburgh West)

In the light of what he has said, will the Secretary of State make sure that local government ward boundaries are coterminous with the proposed parliamentary boundaries? Currently, they are not.

Donald Dewar (Labour, Glasgow Anniesland)

The hon. Gentleman raises a very different issue—local government reform. He is asking me to intervene and interfere with the work of the local government boundary commission in a way that I should be loth to do. If I did attempt to do as he asks, I suspect that I should quickly run foul of my legislative duties. I know that the hon. Gentleman enjoys pursuing that argument with the dogged persistence that is his trademark, and it may be that I shall have to sit and listen to a great deal on that subject at some point in the months ahead; however, today is not that day. I merely imported local government into my argument to illustrate that lack of clarity about function is common, as is lack of clarity about boundaries.

Liam Fox (Conservative, Woodspring)

Will the Secretary of State give way?

Jim Wallace (Liberal Democrat, Orkney and Shetland)

Will the Secretary of State give way?

Donald Dewar (Labour, Glasgow Anniesland)

I shall give way in a minute, first to the hon. Member for Woodspring (Dr. Fox), the Conservative Front-Bench spokesman, and then to the hon. and learned Member for Orkney and Shetland (Mr. Wallace), for the Liberal Democrats. If there are coterminous boundaries, that will encourage Members of Parliament and Members of the Scottish Parliament to work together. In addition, it will mean that we have a rational structure, which is in the interests of all. Now, I give way, with pleasure, to the hon. Member for Woodspring.

Liam Fox (Conservative, Woodspring)

May I take the Secretary of State back to point raised by the hon. Member for Edinburgh, West (Mr. Gorrie)? I accept that it would be quite improper to interfere with the local government boundary commission. However, if the right hon. Gentleman's argument is not a practical point but, as he said, a point of principle, would he not have to agree that coterminosity in respect of local government is as desirable as coterminosity in respect of Westminster constituencies?

Donald Dewar (Labour, Glasgow Anniesland)

No, the hon. Gentleman has, perhaps understandably, got my points out of order. I started with a point of principle, which was the integrity of the United Kingdom and the advantage of coterminous boundaries in that context. I should have though that that was one of the few points in our long argument on which the hon. Gentleman might have been inclined to agree with me. I then moved on to an important practical point about clarity in the system and the ability of Members of the Scottish Parliament and Members of Parliament to work together. There were two points, conjoined in the text of my speech but clearly distinct in their ordering and how they were being made.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

Does the Secretary of State agree with the Minister of State? On 12 May, the Minister of State said: People are less concerned with maps and boundaries than they are with the quality of political contribution and of services. Yes, there is an issue, but we would do well to keep it in perspective."—[Official Report, 12 May 1998; Vol. 312, c. 224.] Is not the Secretary of State getting the matter a little out of perspective and adding to confusion in his announcements?

Donald Dewar (Labour, Glasgow Anniesland)

No, I am arguing practical points about confusion, clarity and working arrangements which are relevant to the debate. If boundaries are being made an enormous sticking point and the issue is being blown out of proportion, I could—but I shall not—charge Liberal Democrat Members with doing so. We must consider the matter in proper proportion and in context, and it is worth pausing on it because it is important that we try to get it right, but it is not a breaking point in the passage of the Bill, as other hon. Members seem to think.

Robert Smith (Liberal Democrat, West Aberdeenshire and Kincardine)

Why not?

Donald Dewar (Labour, Glasgow Anniesland)

Because I do not believe in arranging matters to create barriers where no barriers need exist.

Robert Smith (Liberal Democrat, West Aberdeenshire and Kincardine)

Will the right hon. Gentleman give way?

Donald Dewar (Labour, Glasgow Anniesland)

Very well, but I should have let the hon. Gentleman intervene on a more substantial point later.

Robert Smith (Liberal Democrat, West Aberdeenshire and Kincardine)

The substantial point is that the Secretary of State was saying that the matter should not be a great sticking point, but it is within his power to avoid its becoming a sticking point by accepting the Lords amendment, the contents of which his party signed up to when it signed the constitutional convention agreement.

Donald Dewar (Labour, Glasgow Anniesland)

I shall come to that argument, and I do not dismiss it lightly. To give the hon. Gentleman a hint and to rehearse a point, the matter was not a sticking point for the Liberal Democrats when they gamely and effectively campaigned for a yes vote for a White Paper that encompassed the Government's position, including the point that we are making in asking for the rejection of the Lords amendments. I shall return to that point in a moment. The practical point is that MPs and MSPs will be better placed to co-ordinate their constituency work and make sure that local interests are properly represented at Holyrood and Westminster. We want contacts between MSPs and MPs to be straightforward and their constituents to be in tune with, and aware of, the organisation and the way in which the system works. Our position would help that process. By contrast—this is a simple point that I shall not elaborate—if we were to accept the Lords amendments, a Westminster MP would in future find that he had probably more than one MSP with whom to work and, if the boundaries were out of alignment, there would be a patchwork of overlapping boundaries, which would leave room for confusion.

Liam Fox (Conservative, Woodspring)

It would be difficult for MSPs to have other Members roaming around their constituencies, but how does that differ from the proposals to have top-up MPs floating around the Westminster constituencies which were made in the report that Lord Jenkins published last week?

Donald Dewar (Labour, Glasgow Anniesland)

The hon. Gentleman is looking at me in a knowing way as though he has produced a knock-out punch. I know that that is a rare feeling for him, so I am sorry to have to spoil it for him. I am making two very different points. One is about overlapping boundaries for those who have a territorial responsibility. In this case, that means Westminster MPs and MSPs elected in the constituency section by first past the post. When the hon. Gentleman brings the Jenkins proposals into the debate, he is referring to a system that includes list members, which is very different. We are discussing the territorials, if I can use that somewhat dismissive term as a shorthand to explain the point. Let me say to those on the Liberal Benches that the parliamentary boundary commission is already required to take account of local government boundaries. It may not have done so as completely as the hon. Member for Edinburgh, West (Mr. Gorrie) would like, but the commission is required to take account of local council boundaries as part of the statutory rules. That will be the position at the next review. I hope that we will therefore minimise the overlapping, even with local government boundaries, to which he pointed. 4 pm The Government are committed to clause 81 and to undertaking a review of the number of Scottish Members of Parliament at Westminster. It is generally accepted that we cannot justify the above-average representation that Scotland enjoys in the House of Commons. It is anticipated, and I accept, that such a review will lead to a reduction in the number of Scottish Members of Parliament, and correspondingly a reduction in the number of constituencies in Scotland. In the White Paper, we made it clear that the size of the Scottish Parliament would change to take account of changes at Westminster so as to maintain common boundaries. I should reassure the House that the Government have thought long and hard about the implications for the Parliament of a reduction in its size. We do not believe that such a reduction will make the Parliament less able to carry out its key roles of scrutinising effectively the Scottish Administration's work and enacting legislation. We are not, on any realistic assessment, contemplating cutting the membership of the Parliament in half, or by a third, or even by a quarter. The reduction would amount to no more than 20 per cent. of the total numbers of seats, on most projections. Even after the review, the Scottish Parliament will still have significantly more than 100 Members.

Desmond Swayne (Conservative, New Forest West)

Does the Secretary of State agree that that is a dangerous path on which to embark? In the future, should the Government implement the findings of the Jenkins report, which foresees a 20 per cent. fall in the number of directly elected Members of Parliament. the Scottish Parliament would end up with only 48 directly elected MSPs.

Donald Dewar (Labour, Glasgow Anniesland)

I know the hon. Gentleman. He is one of my favourite former bank managers. I am always amazed to think that he was once in charge of a branch of the Royal Bank of Scotland, where I bank, which makes that a matter of anxious interest to me. I do not have a crystal ball. The House will remember that Lord Jenkins made it clear that any changes that might emerge from his proposals, which are representative proposals to be tested in a referendum, could not be implemented for at least eight years. Although I recognise that the hon. Gentleman has an interest in those matters, his contention is, to say the least, hypothetical.

Alex Salmond (Scottish National Party, Banff and Buchan)

The parliamentary boundary changes could not be implemented until the election after next, either. The Secretary of State cannot have it both ways. Is he saying that the reduction in constituency size—the reduction proposed by the Jenkins commission for Westminster—will automatically follow through for the Scottish Parliament? Will he answer the question whether that could mean a reduction in the number of directly elected constituency members to 50 or so if the Jenkins recommendations were implemented?

Donald Dewar (Labour, Glasgow Anniesland)

That is some way—and a referendum—away. There is plenty of time to consider those matters. We must start with a reasonably stable basis. We suggested—[Interruption.] The hon. Member for Banff and Buchan (Mr. Salmond) laughs, but we are speaking about practical politics. Let us assume for a moment that we reduce, as we will, the number of Scottish constituencies, so that Scotland is treated in exactly the same way as the rest of the United Kingdom in respect of the boundary commission criteria, and let us assume that there is a variation. There is no reason for thinking that that would result in a Scottish Parliament that was unable to carry out its duties properly and consistently. If the hon. Gentleman likes to think about it, let me point out that we have 72 Scottish Members of Parliament at Westminster. That increase above the United Kingdom average is justified because Scottish Members have a large number of responsibilities deriving from the distinct and different Scottish legislation, which justifies that buttressed number. I think that we are all familiar with that argument. All that additional work will go to the Scottish Parliament. On that basis, it seems right that we should have—to use a term from another area—a "level playing field" between Scotland and the rest of the United Kingdom in terms of the boundary commission's considerations at the next boundary review. My point is that, even on that basis, we shall have 129 Members of Parliament in Scotland. That will be a permanent feature, irrespective of what happens at other levels of government, if the other place has its way. Those 129 Members of Parliament will do the additional work—that which is over and above the normal work of Members of Parliament in the House of Commons—but will have none of the other responsibilities that lie with Members of the House of Commons in areas such as the economy, foreign affairs, level playing field legislation, company legislation, financial services regulation and so on. Those 129 Members of Parliament will have a very much narrower remit than do the present 72 Scottish Members of Parliament in the House of Commons. If the current representation in the House of Commons is satisfactory, I do not see why it should suddenly be anathema to have in the Scottish Parliament—which will have a very much narrower remit—almost 50 per cent. more Members. Why should that figure be written into legislation and never altered? That seems to me to be a highly illogical view, and I recommend that argument to the House. I understand entirely the point made by the Liberal Democrats. The hon. and learned Member for Orkney and Shetland—I have discussed the matter with him on more than one occasion —takes the view that an agreement was reached in the constitutional convention and should be honoured. That is an understandable point of view. The hon. and learned Gentleman also knows—I rehearsed this argument a minute or two ago—that, subsequent to that agreement, a White Paper was published. If he looks at paragraph 8.7 of the White Paper—I am sure that he is very familiar with it; I hardly need to quote it—he will see that it clearly states: The integrity of the UK will be strengthened by common UK and Scottish Parliament boundaries. The rest of the paragraph argues that case. I think that the word "may", which is used in the last sentence, has misled some people. However, according to any reasonable interpretation of the text, it will be seen that the point about coterminous boundaries is well made and well founded. The last sentence states: Any changes in Westminster constituencies will result in changes to Scottish Parliamentary constituencies; and may also lead to consequential adjustments to the size of the Scottish Parliament so as to maintain the present balance between constituency and additional Member seats. The "may" refers to a possible variation in the corrective mechanism: the regional or top-up seats—however the House wishes to describe them. The White Paper makes the clear point that coterminous boundaries are part of the scheme. While I do not necessarily wish to put it in terms of choice, if I were asked to choose, I would feel that the White Paper—which is of a later date, for which we all campaigned and which has been endorsed by the votes of the people—is the benchmark against which to measure those facts. I do not wish to overdo those arguments, but I believe that there are no absolutes in such matters. None of us has an absolute view about the right size of a Parliament. We have no such idea about the House of Commons. This place comprises 659 Members, and many people think that there should be fewer Members. I do not suppose for a moment that there is unanimity on that point or on how much smaller Parliament should be. The hon. and learned Gentleman will remind me—if he does not, I shall remind myself —that he thought at one time that the absolute right size of the Scottish Parliament was 144 Members. A special commission, chaired by Joyce McMillan, was established at the constitutional convention to examine this and related issues. It suggested that the Scottish Parliament should comprise 112 Members: 73 first past the post, plus 39 in the top-up. A compromise emerged at that point of 129 Members, and that is the starting point for the new Parliament. As I say, on top of that we have adopted the point that was made in the White Paper, which means that 129 is not just the starting point but is conditional upon the important point made in the White Paper about coterminous boundaries.

Alex Salmond (Scottish National Party, Banff and Buchan)

I think that the Secretary of State is misinterpreting the Lords amendment. The purpose of the amendment is to allow the Scottish Parliament its own boundary commission and set its size on its own priorities, not to set, fixed in time, 129 as an absolute number. Can the right hon. Gentleman give any example anywhere in the world of a Parliament that judges its complexion and the numbers that should be in it on the basis of another Parliament's representations?

Donald Dewar (Labour, Glasgow Anniesland)

I know that we have a fundamental disagreement because the hon. Gentleman naturally does not believe that a devolution settlement is a stable settlement or one that in itself is worth while. I understand that. I say naturally because, as a political point of view, he will always criticise and push for more, and ultimately wants to drive on to an entirely different political settlement. I do not think that he will carry Scotland on that, but I appreciate that that viewpoint is his. My viewpoint is that we are looking for a new and strong voice for Scotland within the United Kingdom. We are handing over an unprecedented number of domestic areas of policy to a directly elected Scottish Parliament, where the writ of that Parliament will run unchallenged. We have retained—I think on a logical division—certain areas, which remain on a United Kingdom basis. The constitution and the boundary commission are preserved and fall into this category. That is the difference between the hon. Gentleman and myself. I accept that. I hold to the view that what we propose is sensible. That is how the White Paper was drafted and that is, in my view, how the Bill should go on to the statute book. I do not think that this is something on which I shall be able to persuade the hon. Gentleman. I can assure him that, on this point, he will not be able to persuade me. We shall have to push on, on that basis, and agree to disagree, which is becoming something of a habit of a lifetime between us.

John Bercow (Conservative, Buckingham)

How does the Secretary of State believe that reducing the size of the Scottish Parliament in the way that he suggests will help that Parliament to act as a bulwark against those in the Scottish Nationalist party who would like to exploit the difficulties of devolution as a justification for moves towards independence?

Donald Dewar (Labour, Glasgow Anniesland)

I said earlier and I say again that those are matters of judgment. My judgment is that there is genuine virtue—I think that it is a matter of principle—in having coterminous boundaries. It may be, although I would be surprised, that the hon. Gentleman disagrees with that. Will we satisfy the people of Scotland if we make a success of the Parliament that they endorsed with their vote? We shall have to produce the right positive policies. We shall have to attack the problems of unemployment, raise education standards and build on the excellence of the health service in Scotland. I think that we shall have to argue, as I believe that we can successfully argue, that a continuing connection with the United Kingdom, with our main market in economic terms, with an area with which we have many traditional ties, where we have intermarried and intermingled, where we have had challenges, disappointments and triumphs over 300 years, makes sense. However, that is an argument for the future. No doubt, it will be maintained over quite a lengthy period. The hon. Gentleman may think that the argument will turn on the issue of the number of Members, but I think that he is mistaken. I believe that there is no necessary correlation between the size of the Parliament and its efficiency. It could be argued, certainly on the extreme, that if there were a larger and larger number of Members, efficiency would be more and more sacrificed. That is a matter for debate. We start from the point of view of principle —

John Bercow (Conservative, Buckingham)

I concede the logic

Donald Dewar (Labour, Glasgow Anniesland)

I do not know what the hon. Gentleman's views are and 1 do not think that I want to know. Let us say that there is considerable concern in the House about the size of the House. A local government example is that, in most parts of the country—certainly the part of it that I know well—there are many who would argue, although no doubt others would disagree, that we should reduce the number of councillors. Consider, for example, what is being done in the new form of London government, so those things are all matters on which hon. Members would argue, but I certainly protest against the argument that the more we have, the more efficient we are and the more beautiful the organisation. I do not for a moment imagine, although the hon. Gentleman may not be interested in beauty, that he would disagree with that proposition. I shall hurry on because I am being unfair to the House and many hon. Members will want to speak. 4.15 pm The amendments create, or try to create, a role for the parliamentary boundary commission for Scotland to undertake a separate review of the parliamentary constituencies in Scotland. As the House will know, the boundary commission is required to produce a report by June 2005. It is far from clear why hon. Members feel it necessary for such a report to be available so soon. It would mean that the boundary commission would be forced to conduct a separate review of the Scottish parliamentary constituencies at the same time as it was finalising its review of the Scottish seats at Westminster. That would be an onerous burden to impose on the commission and not one that would be necessary. If, however, we leave that to one side, one difficulty with the detailed amendments is that they propose that the report of the parliamentary boundary commission should be submitted to the Scottish Executive for subsequent approval by the Scottish Parliament. That is a reasonable proposition if hon. Members take the view that this should be not a reserved, but a devolved matter. I do not take that view. It follows from that that the attempt to reverse that decision by means of this group of amendments is not one that I am prepared to support. Schedule 5 makes it clear that elections to the Scottish Parliament, being a fundamental part of the constitution in the United Kingdom, are reserved. To be consistent with that approach, any review of the Scottish parliamentary constituencies should be a matter for the Secretary of State and for this Parliament. To split in the way that is suggested is not necessary or desirable. The amendments' approach is not acceptable to the Government and is not compatible with the provisions in the White Paper. Therefore, we believe that the House should disagree with the Lords in their amendment. However, I stress that the amendments pay insufficient attention to the importance of maintaining common constituency links between Westminster and Holyrood. Again, the Government believe—I just state it briefly—that the maintenance of those links is important. I have made it clear that we are prepared, obviously, and have thought long and hard about those matters. It is clear that, for a variety of reasons, it will be some time before there is a change. No doubt, there will be possibilities to revisit the arguments if we are convinced by experience that 129 MSPs are essential and that any reduction in numbers would be a democratic disaster. If hon. Members examine that proposition, they will see that it is unlikely to be tenable. I believe that experience will not teach us that lesson. If it does, because those changes—or any changes consequent on Westminster changes—will not come in for some years, that fact will no doubt become apparent and can be taken into account. We shall have the opportunity to see how the Scottish Parliament works in practice before any changes are made to it.

Maria Fyfe (Labour, Glasgow Maryhill)

Before my right hon. Friend leaves this point, I should like to make a point about paragraph 8.7. Although it clearly states: Responsibility for Scottish Parliamentary electoral arrangements… will be reserved matters", it goes on to say that it will be a matter for the UK Parliament subject to consultation with the Scottish Parliament. Will he confirm that there is no change in that position?

Donald Dewar (Labour, Glasgow Anniesland)

It would be odd of me, if, having rested heavily on paragraph 8.7 of the White Paper, I then announced a retreat from what it says. Of course there will be consultation. The point that is made by the amendments and by the hon. Member for Banff and Buchan is that there should be not consultation, but a transfer of power. In the context of the whole shape of the devolution package, that would not be sensible, wise or compatible with what we have been doing over the long periods of consultation and debate. I say again that, over the next few years, we shall have experience of the Scottish Parliament in operation and can then assess how dependent it is on having 129 MSPs for its success. I suspect that that will not be a determining factor. What I believe will be the success of the Parliament will depend on its ability to deliver, to respond to Scottish public opinion and to involve Scottish public opinion in its affairs.

Liam Fox (Conservative, Woodspring)

It does not seem long since we last debated the Bill. The difference is that now we have quite a different Bill before us. One point on which I agree with the Secretary of State is that many of the changes are desirable and should be welcomed. I pay tribute to what are affectionately called the MacKay twins—Lord MacKay of Ardbrecknish and Lord Mackay of Drumadoon—who did a great deal of work in the other place. They were able to reach agreement with Ministers on many aspects, all of which improve the Bill that left this House. However, there is a point to be made: the Government introduced 180 groups of amendments to their flagship Bill in a House that they claim does not have proper democratic legitimacy and needs to be changed.

Desmond Swayne (Conservative, New Forest West)

Did not many of the Government amendments in the other place bear a striking resemblance to amendments originally suggested by the twins to whom my hon. Friend referred?

Liam Fox (Conservative, Woodspring)

I am grateful to my hon. Friend, but I do not want to be ungracious at the outset of our debate. I am happy when the Government find humility and recognise when they are wrong. We will always welcome that. Indeed, I hope that they will do so again today. There has been a tight time scale for Opposition parties, with major amendments to Third Reading being tabled by the Government on Monday night, thereby giving us little time to assess their full impact. We said a long time ago that the time management of the Bill left something to be desired. The Secretary of State said on Second Reading, and it is worth reminding the House—[Interruption.] I know that the right hon. Gentleman finds it difficult to see and listen at the same time. His original approach was that the Bill would be framed against the background of a worst case scenario, in particular in a way that would not provide the nationalists and separatists with a wedge to drive between Edinburgh and Westminster. We have also taken that approach through the passage of the Bill; it has been a consistent theme. However, what the Secretary of State is defending today will have precisely the opposite effect to his stated intent. The first thing that will be required to make the Scottish Parliament work properly is stability, but what is guaranteed by what he is defending is instability. We already know what changes will come about as a result of other parts of the Bill. We know that the number of Scottish Members of Parliament will be reduced from 72 to about 58, if we have the same size electorates that we have for the remainder of the United Kingdom. That is a generally accepted point in the debate. That will reduce the number of Members of the Scottish Parliament by 14 for directly elected seats and eight for top-up. It is not a good basis on which to start a Parliament—knowing that, very soon afterwards, possibly within its first term and certainly within its second, there will be a major redistribution. With the best will in the world, there will be division among Members. We know that from our experience in the House when there is a boundary review. People naturally want to defend their constituencies and continue to look after the interests of their constituents. It is not a proper basis for stability. I do not accept the Secretary of State's argument—really just an assertion—that the matter should be left to his judgment and that we should accept that. I remember that, on Second Reading, we were told that only by accepting the Secretary of State's judgment could we stop a resurgence of Scottish nationalism. Since then, the Scottish National party, much to my deep upset, has been doing rather well; it is the Labour party which has been doing badly in Scotland.

Henry McLeish (Labour, Central Fife)

What about the Conservative party?

Liam Fox (Conservative, Woodspring)

I can tell the hon. Gentleman about my party's success. In local government by-elections in Scotland, the Labour party has dropped the most votes, while the other three parties have gained, especially since the devolution referendum.

Donald Dewar (Labour, Glasgow Anniesland)

By what percentage?

Liam Fox (Conservative, Woodspring)

What matters most to the Secretary of State is by how much our vote has risen, rather than the fact that his party's vote has dropped. That says a great deal about a party that was pinning all its hopes on delivering the right hon. Gentleman's devolution package. Far more important, the Secretary of State said that only by producing this particular package could we defend the Union. However, it seems now that the Union is more imperilled than at any time in our recent history. The Secretary of State's judgment therefore means nothing to Opposition Members. I do not want to go into the breach of faith perceived by the Liberal Democrats, as it was not something to which the Conservative party was a party. However, if the Secretary of State was willing to amend some parts of the Bill—which was based on the White Paper—in the other place, why is he unwilling to amend other parts of it? Why should some parts be sacrosanct while others are not? A logical case has not been made to support that position, but then neither has a logical case been made to support any of the Secretary of State's other comments in this debate. The most important point is that, if the Scottish Parliament is to fund arrangements through the Scottish block, surely it makes sense for the Scottish Parliament itself to decide on its priorities. It seems perfectly logical for the Scottish Parliament to want to reduce the number of those sitting in the Parliament so that it can spend more on something else. Conversely, if the Scottish Parliament decides that it wants to spend more money on the Scottish Parliament, why should it not have a chance to do so? It seems very strange to be unwilling to devolve any authority on the matter. It would seem to make perfect sense for the Conservative party—and other parties, too—to campaign on reducing the costs of the Scottish Parliament, and therefore on being able to spend more of the Scottish block on other priorities. That is a matter of legitimate political debate in Scotland, and it would be stifled by the Secretary of State's proposals. Today, we are witnessing another misjudgment by the Government, who are simply defending the stubbornness of the Secretary of State, or perhaps of those in Downing street. Regardless, the downside of such stubbornness will be unnecessary division and instability in the Scottish Parliament at a time when it most needs stability. That cannot be to the advantage of the United Kingdom, this Parliament or the Scottish Parliament, and it can act only in favour of those who want a wedge to be driven between Edinburgh and this place. It can help only the separatists. Even at this late stage, I hope that the Government will reconsider.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

It is not surprising that I disagree with the Secretary of State in disagreeing with the Lords amendments. The amendments are similar to those that I moved in the House in Committee and on Report, and were moved by my noble Friends in another place, where they were passed. It should be remembered that, both in Committee and on Report, when I moved those similar amendments, the mood music from the Treasury Bench was relatively sweet. The Minister for Home Affairs and Devolution said that the Government were listening and would consider the arguments being made. On Report, he said that I had made a strong and very reasoned case to retain the size of the Scottish Parliament at 129 members", and confirmed that the Government would reflect carefully on the issues that he raised. There was perhaps an expectation in another place that things might be changed. Therefore, there was profound disappointment when, in another place, albeit with not much conviction, Lord Sewel sought to defend the position. I wondered whether there was perhaps some confusion about what the Minister had said. He said: We are still considering the matter, and we hope to reach a conclusion by the time that the Bill goes to another place."—[Official Report, 12 May 1998; Vol. 312, c. 223-34.] But Ministers dug in their heels. The suspicion—on which press speculation has dwelt—is that the Minister for Home Affairs and Devolution and the Scottish Office were very much persuaded by the arguments made in this place to retain the size of the Parliament at 129, but that No. 10 Downing street —the Prime Minister himself—has been the blocking factor. The Scottish Constitutional Convention negotiations—which the Secretary of State mentioned—that reached the compromise figure of 129 were quite fraught. When the 129 figure was reached, my hon. Friend the Member for Edinburgh, West (Mr. Gorrie)—who was not then an hon. Member—sent me a fax which almost burnt my fax machine, as he thought that we should have stood out for 145. I say that to underline that it was not an easy negotiation. It was not simply an agreement between two parties, but reflected a broad base of Scottish civic opinion. The agreement stated: the system the Convention has devised is the outcome of long and detailed discussions, and is underpinned by fundamental principles including proportionality and the opportunity for equal representation. It should not be easily challenged or changed without careful and democratic scrutiny. Regrettably, the Government are departing from that today. The Secretary of State argued the case on the basis of the White Paper, although, as the hon. Member for Woodspring (Dr. Fox) said, on other matters the Government are clearly prepared to move away from it. In fact, we shall be debating a significant change in the manner in which judges can be dismissed—a change with which we agree. 4.30 pm In other cases, the Secretary of State has moved away from the convention agreement. For example, we are to have a system of reserved powers rather than detailed devolved powers. We welcome that as it was something of which we tried to persuade the Labour party in the Scottish Constitutional Convention. I do not remember many speeches by the Secretary of State during the referendum campaign in which he referred to paragraph 8.7 of the White Paper. Nevertheless, he rests his case on that and it seems to be one of his best points. However, in earlier debates, the Government suggested that they might be prepared to negotiate, so they cannot pin too much of their argument to the White Paper. We wish to retain larger numbers of MSPs because all parties agree—the Secretary of State rightly paid tribute to the work of the consultative steering group, a constructive working group of which I am pleased to be a member—that the Scottish Parliament should work very much on a committee basis and that committees will have an important role to play. Those committees must have sufficient numbers to make them worth while. The figure of 129 is important, as it delivers a degree of proportionality that allows for a fair representation of all sections of Scottish political opinion in the Scottish Parliament. I know that the Secretary of State—I have had this discussion with him many times —believes that inserting the ratio of 73 to 56 in the Bill will mean that, when the Parliament is downsized, it will maintain the same degree of proportionality. However, I believe that, if there are fewer additional Members to correct, the level of correction must be lower; therefore, it will not be as proportional. I do not doubt the Secretary of State's good faith—he is just arithmetically wrong. The Prime Minister's argument is based on the White Paper which talks about the need for coterminous boundaries. The Secretary of State suggested that not having coterminous boundaries might lead to confusion. That argument continued to be peddled on Report, and the Minister addressed it when he said: I do not think that the electorate are as confused as some hon. Members think. Because hon. Members are concerned about boundaries, we assume that the electors are also concerned. However, electors in my constituency are a very sharp, bright bunch-which they demonstrate at every election, by voting in a very superior way."—[Official Report, 12 May 1998; Vol. 312, c. 224.] I am sure that, even with non-coterminous boundaries, they would be equally sharp. The Minister put the argument into some perspective on Report. Are the Government and the Secretary of State trying to persuade the House that the integrity of the Union depends on whether the boundary for Edinburgh, South runs up Warrender Park road or Marchmont road? If the Union is in such a perilous state that one road may make a difference, heaven help us. I think that the opposite is the case. If, in eight years' time, it is seen to be at the hand of Westminster that the number of MSPs is being cut, that could give rise to tensions between Westminster and Holyrood and undermine the Union. On that particular argument, the Government have got it wrong. The agenda in relation to the size of the Parliament may be that the Prime Minister wants a reduced Parliament. We are always brought back to the obstinacy of a Prime Minister who legislates for devolution and talks about devolution, but does not seem to understand it, so today the Secretary of State has to come here and be his master's voice. This matter is important for the future of the Scottish Parliament. If the Labour party makes any agreement in the Scottish Parliament, will it have to be countersigned by Downing street in order to be delivered or will we be able to trust the Government, as we thought that we could when they agreed the constitutional convention? Contrast that with my party, which already has devolution in its federal structure. I have made it clear to my right hon. Friend the Member for Yeovil (Mr. Ashdown) that, regardless of agreements to extend the remit of Cabinet Committees or anything else that may happen at Westminster, the Scottish Liberal Democrats are sovereign on matters that are the responsibility of the Scottish Parliament. He accepts that.

Liam Fox (Conservative, Woodspring)

Does the hon. and learned Gentleman accept that de-linkage does not necessarily mean that the numbers will be set in stone? The Scottish Parliament could change the numbers if it felt that that was appropriate. That is surely the best mechanism for defusing any potential tension between Edinburgh and here, which is what I thought that we were doing in removing what we called the wedge.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

In an effort to get some agreement, we have been willing to say that 129 was not sacrosanct, but, unfortunately, the Prime Minister has not been willing to show any sign of compromise. Last Saturday, my right hon. Friend the Member for Yeovil made a proposal, which I suggested to the Prime Minister, that when the boundary commission reviews Westminster boundaries, the electoral commission recommended by the Jenkins commission and the Neill committee—or a Scottish sub-committee of it—should examine the workings of the Scottish Parliament and consider how many Members were needed for its committee structure to work effectively, taking into account the relative proportionality on which the first elections would be fought and the geography of Scotland so that we did not have vast constituencies. The point about what might happen under the Jenkins proposals, which would leave only 48 first-past-the-post or alternative vote seats, is relevant. The commission should recommend the smallest number of Members that could deliver an effective Parliament, having regard to all those points. That compromise proposal shows that we have the issue in perspective and are not tied to the figure of 129. The proposal still lies on the table. If the other place insists on its amendment—I shall urge my noble Friends to do so—and the Government have to come up with a compromise, the suggestion will still be there. Lord Sewel said in another place that, some years down the line, perhaps the Scottish Parliament could say to Westminster that it needed greater numbers. I am sure that Westminster would think seriously about that, but if the measure were set in statute, primary legislation would be needed. All of us, from those who have been here as long as the hon. Member for Linlithgow (Mr. Dalyell) to those as recently arrived as the hon. Member for Paisley, South (Mr. Alexander), have heard the Government say at some point that their timetable does not allow time for a particular measure. If this provision were taken out of the Bill, Westminster would at some stage be obliged to address the issue and legislate on it without any preconditions. Our proposal was put forward in the spirit of trying to find a compromise. It remains on the table. That is why I say that we have the issue in perspective. Surely the Secretary of State did not expect us not to support a yes campaign in the referendum because we disagreed with one paragraph of the White Paper. On Second Reading, the Government said that they were willing to listen constructively to amendments and amend the Bill accordingly. It is disappointing that they have not accepted our arguments. The House may have to debate the issue again before the Bill receives Royal Assent.

John McAllion (Labour, Dundee East)

My right hon. Friend the Secretary of State began the debate by warning everyone that the end was nigh. 1 hope that that apocalyptic warning will not apply to me, too, because I cannot join my right hon. Friend tonight in voting down the Lords amendment. I agree with my right hon. Friend that the size of the Parliament is not necessarily the most important issue at stake. Voters tend to favour fewer politicians rather than more if they are given the choice. However, the manner in which we arrive at the size of the Parliament is fundamental. My right hon. Friend did not address the fundamental point — which has been raised by the hon. and learned Member for Orkney and Shetland (Mr. Wallace)—that the figure of 129 was not plucked out of the air. It was agreed inside the Scottish Constitutional Convention. Not only the figure but any future change to the figure was agreed inside the Scottish Constitutional Convention. As members of the convention, the Labour party agreed that any future reduction in the size of the Scottish Parliament would be carried out by a separate boundary commission for Scotland and on the advice of the Scottish Parliament. That was in the agreement. We gave our word that, were we ever to form the Government of the United Kingdom, we would implement that agreement. We are certainly not doing that here and now by opposing the amendment. There was more than just cross-party agreement. The only political parties that were inside the convention were us, the Liberal Democrats, the Greens and the Communists—or the Democratic Left, or whatever they called themselves at that time—but many other people took part. The trade unions—an essential part of our party—were separately represented, to give their agreement to any future change. The Churches and women's organisations were involved, as were representatives of the ethnic minorities. What we now call Scottish civil society was inside the Scottish Constitutional Convention. We agreed with them all about changing the size of the Scottish Parliament in the future. We should not break our word to Scottish civil society, or to the other political parties inside the convention, as lightly as we appear to be doing tonight. My right hon. Friend referred to paragraph 87 of the White Paper. I must say, in all honesty, that I was not aware of paragraph 87. I suspect that a lot of people in Scotland were not aware of it. Perhaps I would not have welcomed the White Paper as warmly as I did when it was announced in the House had I known that that paragraph existed. It is a relatively obscure paragraph in the White Paper, and my right hon. Friend was at least honest enough to say that it does not actually say in the White Paper that the size of the Parliament will be changed —it says that it "may" be changed. Of course, that is a favourite parliamentary word for putting things off and not confronting them at the time. My right hon. Friend reassured my hon. Friend the Member for Glasgow, Maryhill (Mrs. Fyfe) that any future reduction in the size of the Scottish Parliament would be subject to consultation with the Scottish Parliament. What happens if the Scottish Parliament says no? What happens if the Scottish Parliament says, "We do not want the size of the Parliament reduced—we want to retain 129 Members"? If Westminster consults and the Scottish Parliament says no, what does Westminster do then? Will it send the tanks up to surround Holyrood to demand that 20 Members get out, or else? We are getting ourselves into a ridiculous situation. I, too, campaigned for a yes, yes vote in the referendum. My right hon. Friend may well remember that, along with a certain Mr. Phil Gallie—late of this House—I acted as the warm-up act for a big Scottish Television programme involving my right hon. Friend the Secretary of State and the leaders of the Liberal Democrats and the Scottish National party taking on the Tories, my hon. Friend the Member for Linlithgow (Mr. Dalyell) and the vice-chairman of Rangers. It was a tremendous debate with hundreds of members of the public present. Nobody referred to any possibility that the size of the Parliament might be reduced in future. I never came across a single incident during the campaign in which that issue was shown the light of day. No one was aware during the referendum campaign that there was the potential for the Scottish Parliament to be reduced in size by Act of the Westminster Parliament. We must be honest and state that that is the case, and not try to hide behind the referendum result as if it were an endorsement of the Westminster Parliament being able to reduce the size of the Scottish Parliament. It certainly was not, and I know that my right hon. Friend would not pretend that that issue had anything to do with the result of 11 September.

Lynda Clark (Labour, Edinburgh Pentlands)

I may be hallucinating, but my recollection is that it was headline news in some of the Scottish papers that such a reduction might be a consequence of the White Paper. Perhaps my hon. Friend did not read the papers at that time.

John McAllion (Labour, Dundee East)

I certainly do not read the same papers as my hon. and learned Friend does, and I did not see that reference. I am making a basic point which none of my right hon. or hon. Friends could deny: the Scottish people who voted yes, yes on 11 September did not do so on the basis that they wanted to see the size of the Scottish Parliament reduced by the Westminster Parliament. Anyone who argues that they did is not arguing in the real world. I believe that the Westminster Parliament should not be imposing change on Scotland by giving effect to the doctrine of Westminster sovereignty or supremacy. Devolution in the form proposed inside the Scottish Constitutional Convention is opposed to the doctrine of Westminster sovereignty. My hon. Friends and I signed the foundation document for that convention, the Claim of Right for Scotland, which asserted the sovereignty of the Scottish people, setting that against the concept of parliamentary sovereignty, which this Parliament favours. We all signed up to it and stood by it. Having said that we think that the Scottish people are sovereign, we should not allow the Westminster Parliament to use its sovereignty to impose a change in the Scottish Parliament without any reference to the Scottish people or their Parliament. What will be the response of my hon. Friends if the Scottish Parliament says no? What will be the response of the United Kingdom Cabinet if Scotland says that it does not want its Parliament to be reduced in size? Will we overrule Scotland's objections or will we seek to impose Westminster's will on Scotland? 4.45 pm My right hon. Friend the Secretary of State says that constitutional matters are a reserved area and therefore outwith the remit of the Scottish Parliament. The logic of that position is to say that that Parliament, like local government in Scotland, is a creature of statute —that it is what Westminster says it is and is not what Westminster says it is not. Again, I do not remember any Labour politician arguing that in Scotland in the past 10 years. They are arguing it here tonight, but they have not done so before and it is not an argument by which we should stand. My hon. Friends understand that Westminster sovereignty does not in any case apply in the real world. Suppose that the Scottish Parliament decided to hold a referendum on independence and found the money within its budget. Even though that is a reserved matter, so it would not constitutionally be allowed to do so, how would anyone stop it? It cannot be stopped, so in reality it will be in sovereign control of its own affairs. The sooner we recognise that and stop trying to impose Westminster's will on the Scottish Parliament, the better we will get on with that Parliament.

Lynda Clark (Labour, Edinburgh Pentlands)

I have been following my hon. Friend's tortuous logic, and it occurs to me that he would presumably say that the Scottish Parliament could take on defence or foreign affairs on its own say-so. Would that be correct according to his logic?

John McAllion (Labour, Dundee East)

I think that it is the position of the Labour party. If the Scottish people ever elected a sufficient majority of Scottish National party members to a Scottish Parliament, the SNP would hold a referendum and, if the people then said yes to independence, Westminster could do nothing about it. That is a reality and everyone accepts it, even the Conservatives. It may be tortuous logic to my hon. and learned Friend, but it certainly is not to the people of Scotland. We are also told that it is important that we match the constituencies of Westminster Members of Parliament with those of Members of the Scottish Parliament. Why? The European constituencies do not match and nor do the local government constituencies—there are regular changes in their sizes. Also, the list MSPs have nothing to do with the Westminster constituencies, so why is it only the directly elected Members of the Scottish Parliament who have to be linked to those constituencies? The elections will be held in different years and will involve different individuals. The candidates who stand in the two elections will be different, so I do not understand why the constituencies cannot be different. That does not present any problems for me. We are also told that the linkage between the size of the Scottish Parliament and the size of Scottish seats at Westminster will strengthen the Union because of the common boundaries. I think that it will have the opposite effect. It gives the impression that the Westminster Parliament is interfering in Scottish affairs—that it will bully Scotland into changes that it does not want. That will give succour to those people who want to present Westminster as constantly interfering with Scotland and who want the Westminster Parliament out of Scottish affairs altogether. My right hon. Friend the Secretary of State says that the minds of the voters are confused. They will not be confused if Westminster forces a change in the Scottish Parliament that it does not want: the message will be clear, and it will be the wrong message—for the Labour party in particular. Finally, we are talking not merely about a 20 per cent. reduction as a result of the changes that the Government are trying to force through tonight, but about a further 20 per cent. reduction that will take place thereafter because of the Jenkins proposals, which will also affect Scotland. The size of the Scottish Parliament will be constantly changing, and that is bound to lead to tensions between Members of the Scottish Parliament. I cannot think of any politician who would voluntarily fall on his sword because the number of seats was being reduced. There will be bitter fights not only between sitting Members of the Scottish Parliament who want to hold on to their seats, but between those wanting to be on the list or to be higher on the list. There will be constant crises and revolutions in the parties.

Tam Dalyell (Labour, Linlithgow)

Will not that bitterness start on the first day of the Parliament? My hon. Friend knows well my attitude to the whole scheme, but it is unfair on individuals that they will have to start with this recipe for bitterness.

John McAllion (Labour, Dundee East)

My hon. Friend is absolutely right. No one knows exactly how the number of constituencies will be reduced, but we can expect Glasgow and Edinburgh to lose seats. All the Members of the Scottish Parliament who are elected to represent constituencies in those cities will know that they will have to fight one another to hold on to their seats. I know that some people will be retiring—such as my right hon. Friend the Secretary of State, who is to lead the Labour party in the Scottish Parliament—but other candidates will be young. They will have a lifetime in politics ahead of them and will not want to lose their seats within four or eight years of being elected to the Scottish Parliament.

Lynda Clark (Labour, Edinburgh Pentlands)

My hon. Friend's point, which he makes with passion, is perhaps at the root of the argument. As a Member representing an Edinburgh seat, I believe that one cannot expect a job for life in Westminster or in the Scottish Parliament.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

A Rifkind gain.

Lynda Clark (Labour, Edinburgh Pentlands)

Perhaps at some other time. It is important that democratic change is possible. We cannot set up the Parliament with the argument that it will be terribly sad if—

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

Order. The hon. and learned Lady will remember on whom she is intervening.

Lynda Clark (Labour, Edinburgh Pentlands)

I apologise, Mr. Deputy Speaker. I got carried away.

John McAllion (Labour, Dundee East)

My hon. and learned Friend is reasonably new to parliamentary politics. Of course none of us can expect to have a seat for life, but most of us will try to have a seat for life. If she looks around her, she will see an awful lot of hon. Members who have been here a long time and intend to stay for a long time—they will fight to the death to retain their right to be the Member of Parliament for whatever constituency they come from. We know from experience that the panel system, which may have sounded like a good idea on paper, has led to bitter recriminations not only within the Labour party— although perhaps particularly the Labour party—but within other parties. There is ill feeling and bitterness, dividing party member from party member. The Government's proposals are a recipe for future bitterness in all the political parties. I object to the fact that the measure is being imposed through Westminster sovereignty. If 129 Members of the Scottish Parliament say no, what will happen to the Government's proposals? Will Westminster assert its right, because the constitution is a reserved matter, to force the change down the Scottish Parliament's throat? I certainly would not support that, and I doubt whether many people in Scotland would do so.

Liam Fox (Conservative, Woodspring)

It has been obvious in the debate that both those who welcome devolution with open arms and those who are sceptical about it think that the Government's proposals are bad. Will the hon. Gentleman speculate on why his party leadership is clinging to the proposals so desperately?

John McAllion (Labour, Dundee East)

I would rather speculate on why the hon. Gentleman, who is very sceptical about devolution, thinks that the proposals are bad. He defeats his own argument. I am talking about a matter of principle. Some people believe in principle that the Scottish Parliament should be subservient to Westminster; they believe that authority, supremacy and sovereignty rightly rest in Westminster. Those people are entitled to believe that, but I am not one of them. I passionately believe that the idea behind devolution is that sovereignty should be shared between the different democratic institutions in the United Kingdom. That sharing of sovereignty means that the Scottish Parliament and the boundary commission should decide on future changes in constituency sizes. Indeed, I am not convinced that they will not reduce the size of constituencies anyway, and I would love the number of Westminster Members of Parliament to be drastically reduced. As hon. Members know well, ordinary Back Benchers get to speak only once or twice a year, or perhaps every three months—unless the debate is about an issue such as Scottish devolution, on which no one else wants to speak. There are too many Members of Parliament. The House of Commons could easily do its work with about 200 or 300 Members, although that is another argument, and I am well behind with my hon. Friends already. I appeal to my right hon. and hon. Friends: if they persist with this course of action, they will only bring this Parliament into conflict with the Scottish Parliament and the Scottish people. That is in no one's interest, least of all the Labour party's. We should not be trying to push through a measure that will have that effect.

Alex Salmond (Scottish National Party, Banff and Buchan)

In his usual engaging way, the hon. Member for Dundee, East (Mr. McAllion) said that the public would probably agree with him in preferring a Parliament with fewer Members. I suspect that the popularity or otherwise of such a move would depend on which ones we got rid of. Those on both sides of the argument have asserted that the case to which they are opposed would jeopardise the essential integrity of the United Kingdom. I feel as though I have to act as an umpire and decide which is the true Unionist case. If I am to act in that capacity, I will have to blow for no side. Neither argument will determine the fate of the United Kingdom, which I believe is already determined. Neither argument will save the United Kingdom, so let us consider them both on their merits. The Secretary of State said that he did not think that the integrity of the United Kingdom would turn on numbers in the Scottish Parliament, so why is there such fierce resistance to what is, remarkably for the House of Lords, a reasonable amendment? I have been a Member of Parliament for more than 10 years, and I certainly would not have to take my shoes off to count the number of reasonable amendments that I have seen from the House of Lords. Perhaps this commonsense amendment should be considered according to commonsense criteria. It was suggested that the Parliament's efficiency might be improved if the number of Members were reduced, but proportionality would certainly be jeopardised. When the hon. and learned Member for Orkney and Shetland (Mr. Wallace) argued that proportionality would be compromised by reducing the number of Members, I saw some Labour mathematicians shaking their heads, but it is true that, the lower the number, the more difficult it is to use a top-up to bring about a proportionate parliament. Even the figure of 129 does not guarantee a proportionate Parliament, although it guarantees one that is more proportionate than under first past the post. The Minister's expression seems to offer an endorsement of what I am saying. The lower the number, the more difficult it is to get proportionality. If proportionality is a key argument behind the figure of 129, it should be a key argument not for a static position but for having no fewer than 129 Members. The Secretary of State told us that he thought that coterminosity—I think—was crucial, and that it was a point of principle, connecting the Westminster and Scottish Parliaments; but that is not in the Bill. There are separate Members for Orkney and for Shetland in the Bill, but there is only one hon. and learned Member for Orkney and Shetland in the House of Commons: more than enough, some of his colleagues might say. There is no coterminosity now. It has already been mentioned that European and local government boundaries have often not been perfectly aligned with parliamentary boundaries, so the idea that people in Scotland will be fashing themselves about trying to work it all out and will be hopelessly confused if the Westminster and Scottish Parliament boundaries are not exactly parallel is absolutely farcical. People are entirely able to find their MSPs, their MEPs and their list MSPs in the new structure, without that being adduced as a serious argument in defence of an indefensible position. I do not for a second believe that deciding whether to allow a separate boundary commission to determine the optimum number of Members for the Scottish Parliament would make the essential difference between an independent and an a devolved Parliament, but it is one criterion by which to judge the difference between a devolved Parliament and what is in effect a super-council. There are few, if any, examples of a legislative body— which is the definition of a Parliament—anywhere in the world allowing another legislative body to set the number of members that that Parliament should have. The idea that one can judge the appropriate number of MSPs in Edinburgh on the basis of the possible reduction in the number of Members of the Westminster Parliament to reflect the population balance of the United Kingdom, and the possible further reduction if the Jenkins commission has its way, is absolutely farcical. There is no argument for allowing other people, on other criteria and with other motivations, to set the appropriate number of Members for the Scottish Parliament. 5 pm The debate is about not the integrity of the United Kingdom, but about a commonsense amendment that should be accepted. However, running through the debate is what the hon. Member for Falkirk, West (Mr. Canavan)—in a robust interview on Radio Scotland this morning —described as the control-freak tendency. Substantial suggestions have been made, partly sourced from the attitude of the Minister of State to the amendments at earlier stages, that the hon. Gentleman does not support the Government's position. The hon. and learned Member for Orkney and Shetland has suggested that even the Scottish Office does not support the Government's position. The control-freak tendency is affecting a number of issues at the moment. The Government appear to say, "Have a Welsh Assembly, as long as we can decide who might lead it. Have a mayor for London, as long as we can exclude one of the more popular contenders. Have devolution for BBC Scotland, as long as it is not allowed to have a Scottish six o'clock news. Have a Scottish Parliament, but Westminster will still retain the absolute right to determine the number of its members." The background to the debate is that the Government have suddenly realised that the consequences of the policies they have been pursuing are not as they intended. They are trying to draw back under centralised control some of the ability of the Scottish Parliament, the Welsh Assembly, the London mayor and the BBC to respond to the implications of the Government's proposals. That is not a commonsense approach and it is much later than the Government think for the implications of their policies. They are defending the indefensible in rejecting a commonsense amendment from the Lords and it will not secure the fate of the United Kingdom. In fact, it will accelerate the strong suspicion in Scotland that centralised control from the Labour party should be rejected next May.

Tam Dalyell (Labour, Linlithgow)

I understand that 129 separate offices are to be built for the Members of the Scottish Parliament. That takes us to 2001. If my calculations are right, the next elections will be in 2003, so some offices will receive only two years' use. Will not that be a matter for ribaldry and what will be the effect on the construction of the building?

Robert Syms (Conservative, Poole)

I shall make only a brief contribution. I listened carefully to the Secretary of State's arguments about coterminous boundaries, but they would have more force if we had 72 Members of this House and 72 Members elected on the first-past-the-post boundaries for the Scottish Parliament, without a list. Accountability would be muddied by the list Members in a ward, especially if it had several Members from different political parties. That would cause tremendous confusion. The argument for coterminous boundaries for Westminster and the Scottish Parliament is marginal, given that the waters have already been muddied by the list system. Boundaries have diverged in several instances. At the moment, Members of the European Parliament are elected for constituencies that include six or seven Westminster constituencies, but because the cycle of elections for the European Parliament and Westminster does not match, parliamentary boundary reviews have meant that Members of the European Parliament have represented constituencies with slightly different borders to the constituencies of those elected to this House. The world has not collapsed because that has happened. We have heard many examples of local government boundaries that are not coterminous and of councillors with wards that span more than one parliamentary constituency. The slightly bizarre proposals for London suggest that boroughs should be linked. In August, the Local Government Commission suggested splitting the City of London from Westminster, so that the City of London joined Tower Hamlets and Barking, and Westminster joined with western boroughs. There is substantial inconsistency in the Government's position. I would have more sympathy with the argument that the integrity and coterminosity of parliamentary boundaries are important if it were applied consistently across the Government's constitutional programme. My hon. Friend the Member for Woodspring (Dr. Fox) made the significant point that, with any constitutional change, it is important to have stability and some sort of settlement. To start with a proposal involving a drop from 129 Members is a recipe for instability. I agree with my hon. Friend the Member for Buckingham (Mr. Bercow) that it will feed resentment that the institution has been designed for a certain number, right or wrong, but that the number will start to be reduced soon after it is set up. That resentment will be used by those who wish to break up the United Kingdom to fan the flames of disunity. If we are going to get it right, why not get it right from the beginning? Why set off with 129 and then reduce the number? I do not wish to fan the flames of division in the United Kingdom, but my hon. Friend the Member for Woodspring made a good point. We have to test the proposals against the worst case, not the best. This proposal will cause argument, disunity and difficulty, and I therefore support my hon. Friend.

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

Mr. Michael Clapham—I am sorry, Mr. Michael Connarty.

Michael Connarty (Labour, Falkirk East)

I take that as a compliment Mr. Deputy Speaker, because I think very highly of my hon. Friend the Member for Barnsley, West and Penistone (Mr. Clapham) and the work that he has done for the miners. I should have thought that, since you and I spent some time together on a Commonwealth Parliamentary Association trip a while ago, you might recognise me. Oddly, I found myself agreeing with the tenor of the remarks of the leader of the Scottish National party—that the Union and the future of devolution will not be affected by anything that we do on this matter. When compared with what devolution is really about the question of how many Members there should be is a case of how many angels can dance on the head of a pin. I was worried that the hon. and learned Member for Orkney and Shetland (Mr. Wallace) got so passionate. Is this really about numbers or only about the number of Liberal Democrats who might get in if there are 129 Members or more? Because of his past contributions, I had thought that it was usually quality rather than quantity that counted with the Liberal Democrats. This seemed to be a quantity argument. I respect the principles of my hon. Friend the Member for Dundee, East (Mr. McAllion). I recognise nationalist principles when I hear them, and his was one of the best nationalist speeches that I have heard in this House. I do not think much of the quality of the ones that come from the official Scottish National party.

Jim Wallace (Liberal Democrat, Orkney and Shetland)

In some respects, my argument was about numbers—not only the number of Liberal Democrats but of Labour, Conservative and Scottish National party Members. It is about the principle of proportionality. On the referendum campaign, I am sure that the hon. Gentleman agrees that selling the case for proportionality was one of the key things that allowed every part of Scotland to deliver a yes vote to the principle of devolution. Diluting that proportionality, more than anything that could be said about the White Paper, could undermine the good faith of those of us who fought for the yes campaign.

Michael Connarty (Labour, Falkirk East)

I will deal with proportionality later because 1 do not think that the Bill is a closed door on that. The words of the Secretary of State—tomorrow's Hansard will confirm it—show that it is not a closed door. There is a mechanism for looking at the number of Scottish Members of this House and the number in the Scottish Parliament. The important thing is that the people of Scotland do not want to focus on what the Parliament will be. The worry of people outside is that they regard us as debating what we see as our fiefdom, our little Chamber, our sets of offices and our fancy potato or upturned boat or whatever it is that Members will meet in. People are beginning to worry that we have forgotten why we set out on this trail so many years ago. It was to do something for the Scottish people, not for the politicians of Scotland.

Eleanor Laing (Conservative, Epping Forest)

I understand what the hon. Gentleman is saying about the people of Scotland being worried. Does he consider that 23,000 people in Falkirk, West might be extremely worried that their democratic will has been totally ignored by the small committee of new Labour that has decided to ignore the fact that, for 24 years, they have elected the hon. Member for Falkirk, West (Mr. Canavan) to be their Member of Parliament? Those 23,000 people are now being told that the hon. Gentleman is not fit to be a Member of Parliament. Of course, I am not suggesting that he is not.

Dennis Canavan (Labour, Falkirk West)

Is the hon. Lady trying to give me the kiss of death?

Michael Connarty (Labour, Falkirk East)

I was about to say something similar. Until this evening, the star of my hon. Friend the Member for Falkirk, West was buoyant, but I think it has just been shot out of the sky by that intervention. I am sure that the matter to which the hon. Member for Epping Forest (Mrs. Laing) refers will be resolved in the fulness of time and we shall discover whether the people of Falkirk, West want to choose their current Member of the UK Parliament or some other person. I leave it to them and I respect the electorate's wishes. I just hope that the people who turned out to vote for me—who number slightly more than 23,000—will turn out and vote for whichever Labour candidate is picked to stand for the Falkirk, East seat in the Scottish Parliament. Principle is important, but people should know that we are now looking at what we are going to do for them and what is the overall logic. The logic of partnership that comes out of having coterminous, or as near coterminous as possible, constituencies is extremely important. I know that there are exceptions, but it was disingenuous of the hon. Member for Banff and Buchan (Mr. Salmond) to use two constituencies in the islands to show that that exception means that there is no logic on the mainland in having coterminous constituencies. I look forward to working with a Member of the Scottish Parliament for a coterminous constituency. We have all tried to build links with local government bodies and it is normal for groups of Members of Parliament from various areas to meet frequently in this place —the Glasgow group of Members of Parliament, for example. With my hon. Friend the Member for Falkirk, West, I have worked with Falkirk council. Coterminosity of focus is important and it is something that the ordinary public will regard as being logical.

Desmond Swayne (Conservative, New Forest West)

Will the hon. Gentleman give way?

Michael Connarty (Labour, Falkirk East)

I shall in a moment. The ordinary public would like to think that the service that we deliver to them, the way in which we deliver it and the way in which hon. Members have coterminous responsibilities is all done for their sake, but I believe that the people of Scotland will see the argument in which we are engaged as one between politicians who are trying to look after themselves. I hope that the principle of proportionality, which was mentioned earlier, will be addressed in the numbers that come out of this Parliament and that that will be done in such a way as not to damage fundamentally that proportionality. As a supporter of the Labour campaign for electoral reform, I think that that is a good move forward, but we must not disregard the public's desire to be represented in a way that makes logical sense to them. The public are not confused, but they are unhappy. They already manage to find their way to the right door or doors to get their problems solved, but it would be better if we did not make their path more complicated just because we have other agendas, whether getting more members of our party into the Scottish Parliament, or having a larger number of MSPs just for the sake of it. A dialogue is possible, as my right hon. Friend the Secretary of State said.

Alex Salmond (Scottish National Party, Banff and Buchan)

Will the hon. Gentleman give way?

Michael Connarty (Labour, Falkirk East)

No, the hon. Member for New Forest, West (Mr. Swayne) asked to intervene first. I would argue that, if we can simplify the process of engagement with the public and the role we carry out, that will be welcome. Coterminous constituencies are part of that logic.

Desmond Swayne (Conservative, New Forest West)

Although I accept that coterminosity is important, does the hon. Gentleman accept that it should be a matter for consideration by the Members of the Scottish Parliament? They should be included in the decision on such an important matter, but, at the moment, a fait accompli is being imposed on them, before they have even taken their seats.

Michael Connarty (Labour, Falkirk East)

We published the White Paper and we all got behind it; we got the people to support our proposals at the general election and in the referendum; and now we are carrying out what was proposed. In a sense, everything was set by that White Paper. I do not think that we should allow the Scottish National party, the Conservative party, or those who worry that the principle of sovereignty is more important than the delivery of service, as my hon. Friend the Member for Dundee, East seems to be arguing, to try to use the differences to their own advantage. I believe that we have reached a point where the Scottish Parliament will talk to the UK Parliament and the response to the UK boundary review will take into account its impact on the Scottish Parliament. If things do not happen like that, we will have missed a chance for co-operation, and it is co-operation that will make devolution work, whereas conflict will deliver what the hon. Member for Banff and Buchan wants—independence for Scotland.

Alex Salmond (Scottish National Party, Banff and Buchan)

Barring the party list, each elector will have one MSP and one Westminster Member of Parliament. The only possible confusion would be between the Members themselves. The hon. Gentleman has relationships with a Member of the European Parliament, who has relationships with another—let me rephrase that: he has an association with an MEP who has an association with seven other Members of Parliament. Does that MEP have any difficulty in having an association with eight different Westminster Members of Parliament whose constituencies fall within his constituency's boundary?

Michael Connarty (Labour, Falkirk East)

In reality, at any time and in any part of the country, most people have great difficulty in grasping what a Member of the European Parliament does and for whom he does it. The hon. Gentleman's argument is a weak one.

Liam Fox (Conservative, Woodspring)

Surely the point is that the Lords amendments do not prevent coterminosity; they give the Scottish Parliament the freedom to make up its own mind on the matter. It is the de-linkage that is the important point, because it allows the Scottish Parliament or the majority of Members of the Scottish Parliament to do whatever they think is best. What is wrong with that?

Michael Connarty (Labour, Falkirk East)

It is funny, but when the hon. Member for Woodspring (Dr. Fox) stands up and defends any part of devolution, the words "crocodile tears" spring to mind. I wonder why that is. We have only a short time, so I should like to move on. I am concerned—I believe that the people of Scotland are too—about how the new Parliament will interact with all the other parts of civic society that were mentioned by my hon. Friend the Member for Dundee, East. We are concerned not about the number of Members in the Parliament, but about what it will do, which will not depend on the numbers. Apart from the safeguards necessary for proportionality and dealing with democratic deficit, the Parliament's size is not important, unless it can be shown that the Parliament cannot function properly unless the numbers are changed. My right hon. Friend the Secretary of State said that he would listen to arguments on that point—

PRESIDING OFFICER

Henry McLeish (Labour, Central Fife)

I beg to move, That this House agrees with the Lords in the said amendment.

Henry McLeish (Labour, Central Fife)

This group of amendments focuses on issues concerned with the internal workings of the Parliament. I commend them all to the House. The amendments are partly concerned with the relationship between the Parliament and the courts. We have adjusted the boundary between them to make it clear that the Parliament and those in it should be able to go about their legitimate day-to-day business without the courts being used as a means of interfering with their activities. I shall say more about that in a moment. We have also recast somewhat the provisions in the Bill dealing with the regulation of Members' conduct, to give the Parliament greater flexibility. A further set of amendments clarifies various matters associated with the Scottish parliamentary corporate body—the SPCB. Other amendments in the group recast the provisions relating to witnesses, mainly to reflect changes in the description of legislative competence—a theme to which we shall return in a later group. Another set of amendments makes additional provision in respect of the position of political parties in the Parliament. I draw to the attention of the House the amendments made as the result of our further consideration of the boundary between the Parliament and the courts. Amendments Nos. 2, 49, 50, 51 and 231 were welcomed on all sides in another place. At the heart of this package is the new clause inserted by amendment No. 49, which will restrict the remedies which may be granted against the Parliament. We judge that it would be wise to ensure that no court may make an order for suspension, interdict, reduction or specific performance, or another like order. That provides a broad protection against attempts to manipulate the business of the Parliament via the courts. We do not think that we can put the Parliament completely above the courts. For that reason, we have left open to the courts the option of making a declarator. It will, of course, be for the Parliament itself to decide how it should react to any declarator. The Parliament would not be liable for contempt of court if it merely decided to take no action to give effect to a declarator. Rather, it will essentially be a political decision for the Parliament to decide how to react in such cases. We believe that the Parliament will wish to be seen to uphold the law and in most cases would expect it to comply with any court judgment, in particular any that directly affected the civil rights of individuals—for example, a judgment concerning the legitimacy of the withdrawal of rights and privileges of an MSP.

Nigel Evans (Conservative, Ribble Valley)

I heard what the Minister said about the amendments being welcomed in another place, but can he tell us how the relationship between Members of the Scottish Parliaments and the courts, as defined by amendment No. 49, differs from the position in this place? Are there major differences?

Henry McLeish (Labour, Central Fife)

That is a fair question. Unlike Westminster, the Scottish Parliament will not enjoy the wide but ill-defined privileges accorded by article 9 of the Bill of Rights and through that, Parliament's historic position. We do not believe that we can justify conferring such wide-ranging protection on the Scottish Parliament. However—this is the nub of the matter—the Bill as originally drafted provided only limited privileges for the Parliament, principally in respect of defamation and contempt of court, leaving it exposed to possible attempts to interfere with its day-to-day business via the courts and to question the validity of its proceedings in certain circumstances. We are taking forward the issues that were raised in the Lords, as a result of which there will be significant differences between Holyrood and Westminster. The provisions strike the right balance for a body that must be both free to go about the business of law-making while not being above the law. We have also taken the opportunity in the new clause to prevent actions being pursued by the back door, against individuals associated with the Parliament. We have tabled amendments Nos. 2 and 231 to ensure that the validity of acts of the Presiding Officer or the SPCB cannot be questioned because of some defect in their appointment and, in particular, any defect in any parliamentary proceedings that must be followed before the relevant appointment. Amendments Nos. 50 and 51 clarify the scope of protection provided to the Parliament in relation to contempt of court, by clarifying that, in order to enjoy the protection conferred by the Bill, reports of proceedings must be fair, accurate and made in good faith. Amendments Nos. 5 to 14 and 232 deal with Members' conduct. The Government want to ensure that the Parliament puts in place a framework to regulate its Members' interests. Paragraph 9.8 of the White Paper indeed made it clear that there would be "minimum requirements" in respect of, among other things, rules about Members' pecuniary interests. Amendments Nos. 5 to 14 ensure that the Parliament is under a duty to make provision for the regulation of its Members' interests. The Parliament will have to make provision for a register of interests that is published and publicly available, and for its Members to register their financial interests and to declare such interests before taking part in any proceedings of the Parliament relating to that matter. The Parliament will also be required to make provision prohibiting paid advocacy. Previously, the Parliament was to be required to make provision for that in its standing orders. We looked carefully at that provision and considered that it could restrict what the Parliament could do. For example, the Parliament may want to make provision for a code of conduct for MSPs, which could go beyond what MSPs did in the proceedings of the Parliament. That would be outwith the scope of Standing Orders. The amendments give the Parliament the flexibility to address such situations. Moreover, Members of another place expressed concern that provisions relating to criminal offences would be defined in Standing Orders, rather than in legislation. We felt that that was a fair point and the amendments address that concern. They provide that the Parliament must make provision by or under an Act of the Scottish Parliament—ASP. That is not to say that Standing Orders cannot be used at all in the context of provisions about Members' interests. It is anticipated that the core provisions would be in an ASP or subordinate legislation under it, but there is no reason why certain procedural matters, for example, could not be left to Standing Orders. The provisions are intended to ensure that all MSPs work in a properly regulated framework that ensures propriety in the conduct of the Parliament's business.

Nigel Evans (Conservative, Ribble Valley)

We welcome the provisions of amendment Nos. 5 to 14 in clause 22. It is right that the Bill should contain provision for a register of Members' interests, to ensure that the Scottish Parliament gets as fair a wind as possible. Is the register to be enforced in a similar way to that at Westminster, or will separate provision be made?

Henry McLeish (Labour, Central Fife)

We shall use similar enforcement procedures to those at Westminster, but build further on them. A new Parliament provides an excellent opportunity to go much further with a code of conduct and its enforcement than exists at Westminster. I can reassure the hon. Gentleman of our intention. The consultative steering group, which I chair and in which there is all-party involvement, is examining the details necessary to flesh that out. A report will be sent to the Secretary of State in December. The key issue tonight is to ensure that that important provision is written into the Bill, so that we have the strength of the Bill behind us initially, and the Parliament is able to legislate in the future. Standing Orders and the work of my committee will ensure that the code of conduct is first class and subject to the strictest enforcement procedures. Amendment No. 232 makes it clear that the power of the Parliament to withdraw the rights and privileges of an MSP is not restricted to those cases where an MSP is also being excluded. There may be cases where the Parliament takes the view that the limited withdrawal of rights or privileges may be a sensible sanction to deal with certain sorts of misconduct, but that exclusion would be excessive. The amendment also makes it clear that this is an area with which Standing Orders can properly deal. Amendments No. 15 to 22 deal with witnesses. I should explain that the ground on which clauses 23 and 24, which also deal with witnesses, were originally built has moved considerably since the clause was first drafted—for example, because of the amendments concerning the legislative competence of the Parliament that were made in another place. In redrafting the clause to take account of those changes, we have tried to state, in ordinary language, what the Parliament may require someone to give evidence about, while preserving the general position as to the Parliament's powers in the clause as it originally stood. The key alteration is that we propose to replace references to "devolved matters" and other matters in relation to which functions are exercisable by Scottish Ministers by a reference to giving evidence or producing documents concerning any subject for which any member of the Scottish Executive has general responsibility. We think that it makes sense to use, so far as possible, language that can be given its ordinary meaning, rather than tying the provision to the complexities of "matters", "relating to" and so on. In the House, payment to political parties is recognised as the Short money provision. Amendments Nos. 130, 233 and 234 deal with matters concerning political parties. Amendment No. 130 confers a power on Her Majesty by Order in Council to make provision for the SPCB—the corporate body—to make payments to any Opposition political party represented by MSPs in the Scottish Parliament in order to assist those MSPs in performing their parliamentary duties. That money is an expense of the SPCB and would come out of the Scottish Consolidated Fund. It is intended that that should enable provision to be made for payments to Opposition parties in the Scottish Parliament equivalent to the so-called Short money that is provided to Opposition parties in this Parliament. That accords with the recommendation of Lord Neill's committee on the funding of political parties. It is envisaged that such money paid will be applied by the parties to obtain research and support facilities for Opposition Front-Bench spokesmen and women, assistance in the Opposition Whips office and other staff for the leaders of the Opposition parties. The amendment provides a way of providing some funding for Opposition parties in the Scottish Parliament until—this is an important point—such time as the Neill recommendations are considered fully by the Government and put on the statute book.

Tam Dalyell (Labour, Linlithgow)

On a factual point, have all those requirements been made clear to Mr. Miralles the architect? In particular, what will he be told about the change in the number of Members of the Scottish Parliament? These are not frivolous matters and should be addressed now.

Henry McLeish (Labour, Central Fife)

All the considerations that are being discussed in the House and in the consultative steering group are recognised by the designers of the Parliament building, so they will be taken fully into account. As to my hon. Friend's remarks about "potential empty offices", the Parliament building will suit its purpose and provide the best deal for the taxpayers. If there are changes in the future, I have no doubt that the accommodation will be utilised properly. I correct my hon. Friend's reference to a "separate office": I think that the impression was created of a separate building for each MSP. That will certainly not be the case. The temporary Parliament on The Mound will be very tight, but there will be ample space for MSPs in the Miralles building. However, the space will not be over-generous.

Nigel Evans (Conservative, Ribble Valley)

We recognise that there is a need for Short money—especially now that we are in opposition. It is a recognition of the money and support that is made available to Governments. An equivalent amount of money is necessary for the Opposition to ensure the proper working of democracy. Amendment No. 130 is extremely vague. The Minister said that it will provide equivalent Short money. Does he mean that the existing Westminster formula will be replicated in the Scottish Parliament or does he envisage other provisions governing the allocation of Short money?

Henry McLeish (Labour, Central Fife)

I shall respond to the implication of that question: the allocation to the Scottish Parliament will certainly be no more generous, as a proportion of expenditure, than the allocation to Westminster. However, the real answer is that the matter is still being discussed. We have attempted to replicate what occurs at present. It is important to remember that it is assistance for the Opposition. It is possible that Conservative Members will participate in the Scottish Parliament, something that will add a new dimension to Scottish politics. Amendment No. 233 responds to a point raised during debates in another place and provides that Standing Orders will be required to make provision that the Presiding Officer and deputies do not represent the same political party. When the Presiding Officer represents a political party, at least one of his deputies will have to represent another party or be an independent. We think that it is reasonable to provide that small safeguard against domination of those key offices by a single party. The Government of Wales Act 1998 already includes a similar provision. Amendment No. 234 is a technical amendment that ensures that references to political parties in the Scotland Bill are consistent. I think that these are good amendments, and I commend them to the House.

Donald Gorrie (Liberal Democrat, Edinburgh West)

I seek some clarification from the Minister regarding amendment No. 130. The money is clearly intended to help the Opposition parties but, according to subsection (3), it could also help parties that are "members of the Scottish Executive or junior Scottish Ministers". I assume that the amendment is meant to address the possibility of coalition government. I seek some clarification on that point as an Administration might involve one, two, three or even four parties—if there were some sort of rainbow coalition. Parties co-operating in that sort of Government would still need the apparatus of Whips, research staff and so on in order to clarify their position. Does amendment No. 130 take account of that situation? Have I understood subsection (3) correctly?

Henry McLeish (Labour, Central Fife)

That interpretation is largely correct. In the context of the Scottish Parliament—which will introduce proportionality for the first time—there may be coalition government. Therefore, we would not have a Government and a defined Opposition as we do in this place. We are considering the question of Short money and its being reasonably well and effectively dispersed. We must also consider the new nature of the Scottish Parliament under the new political structure. Therefore, the amendment provides some flexibility in relation to that point.

ACTS OF THE SCOTTISH PARLIAMENT

Henry McLeish (Labour, Central Fife)

I beg to move, That this House agrees with the Lords in the said amendment.

Henry McLeish (Labour, Central Fife)

This group of amendments consists, for the most part, of Government amendments to the clauses concerned with the legislative competence of the Scottish Parliament and related matters. However, we will ask the House to disagree with amendments Nos. 32, 33 and 34, and have tabled an amendment in lieu of amendment No. 34 deleting clauses 31(1) and 31(2). With permission, I shall deal with those matters first. Amendments Nos. 31 to 34 relate to the Presiding Officer veto. The amendment in lieu of amendment No. 34 addresses what will happen if the Presiding Officer decides that a Bill is not within the legislative competence of Parliament. Members of the other place were concerned that the Bill, as originally drafted, would mean that it was possible for the Presiding Officer to come into conflict with Parliament by allowing him to be overruled by it if he decided that a Bill was outwith the competence of Parliament. We appreciate the arguments as to why Parliament should not be brought into conflict with its Presiding Officer and so undermine his or her authority. We accept that those arguments have some force, although we believe that the concerns were overstated in the other place. However, the amendment made in another place by the Opposition would put the Presiding Officer in a very difficult position. It would mean that the Presiding Officer would have an unchallengeable power to decide on questions of legislative competence. We think that that is an uncomfortable and undesirable position for him or her to be in, and we think that it would be an anomaly to leave the provision in the Bill. It would prevent Parliament from being able to consider a Bill that contained a provision that was outwith the legislative competence of Parliament, even if that provision could be readily deleted or amended during the Bill's passage. Such inflexibility is inappropriate. We think that it is important that Parliament has the benefit of the Presiding Officer's views as to the competence of a Bill. We have provided that the Presiding Officer should make a statement as to the vires of a Bill. Parliament will no doubt want to pay particular heed to its Presiding Officer's views, and we think that our measure avoids the direct tension that we agree an explicit power to overrule the Presiding Officer might create. It sets up a structure that is far less confrontational and that allows room for Parliament to be advised about competence as it considers any Bill. We think that it gives the right result over all and allows disputes to be resolved in their proper place. The Bill provides a mechanism that allows for the resolution of disputes over the vires of the Bill. If the Presiding Officer were left with the power of veto in this area, it would mean that the courts, and ultimately the Judicial Committee, could not have any role in reaching a view on questions of vires raised by any proposed Bill.

Liam Fox (Conservative, Woodspring)

Will the Minister clarify at the outset of the debate the role of the Presiding Officer in deciding whether a Bill goes ahead for Royal Assent?

Henry McLeish (Labour, Central Fife)

If I may be allowed to continue, I hope that I can address that issue in the scheme of things. We think that it is preferable in some instances to allow a Bill to be introduced so that Parliament may consider the issue that it raises. It may itself decide that something is ultra vires and reject the Bill at an early stage or it may amend the offending provisions. If there is still concern at the end of the process, the Law Officers can refer the matter to the Judicial Committee of the Privy Council. It is much better that those issues can be considered by the Parliament and, if necessary, by the Judicial Committee than simply providing that the Bill cannot be introduced if the Presiding Officer thinks that it is outwith Parliament's competence. I anticipate that Opposition Members may draw parallels with procedures in this place. However, none of them really holds. What we propose is not the same as asking Madam Speaker to decide that a Bill is a Finance Bill and so should not be considered in another place, for example. As I have explained, we are considering specifically devolution issues. Provision is made in the Bill to ensure that the courts have an opportunity to determine issues of legislative competence. That will ensure that the boundaries of the Parliament's competence are properly mapped and that a consistent body of law emerges. If we do not remove the veto that is now in the Bill, we risk the interpretation of one office holder dictating the limits of the settlement in areas where the law may be uncertain and subtle. That does not strengthen the position of the Presiding Officer. Instead, it pitches the Presiding Officer into the heart of the political situation at any one time, with no means of escape. I take up the point made by the Opposition constitutional affairs spokesman, the hon. Member for Woodspring (Dr. Fox). It may be useful to recap the scheme of legislative competence within the Parliament. First, the Minister makes a statement on his view that the Bill introduced by the Scottish Executive is within the legislative competence of the Parliament. That will be straightforward enough, based on advice. The Presiding Officer then makes a statement on the vires of the Bill. Parliament can decide to proceed in the knowledge of the Presiding Officer's views. The Bill can be corrected or amended during passage through the Parliament if part of it is decided to be ultra vires. If it remains ultra vires, the Law Officers can refer it to the Judicial Committee for a ruling. The Bill cannot be submitted for Royal Assent if it is ultra vires in the view of the JCPC. The Government's proposals allow the Parliament the flexibility to deal with those matters in a mature, responsible but highly structured way. It is important that there are checks and balances. I think that that takes away the problem for the Presiding Officer and fits the Presiding Officer's role neatly into the structure of the Parliament's activities. Other amendments in the group relate to schedule 4 and clause 28. They are designed to clarify the way in which the Bill defines the legislative competence of the Scottish Parliament. They also amend the powers of intervention of the Secretary of State so that they are available when legislation of the Scottish Parliament makes modifications to the law as it applies to reserved matters which have an adverse effect on the operation of law. Given the time scale involved for right hon. and hon. Members, I propose that we make those complex changes, remembering that we are taking out the amendment from the other place and substituting in lieu positive amendments to resolve the Presiding Officer's position. Obviously, I hope that that is acceptable to the House.

Liam Fox (Conservative, Woodspring)

This is an extremely important debate in our proceedings. When we saw the Government amendment on Third Reading, we realised that it is not exactly the debate that we thought we would have. I go back, as I did when we considered the first set of amendments, to what the Secretary of State said at the outset. The right hon. Gentleman said on Second Reading that we would consider events against the worst possible scenario, not the best. He said that we would examine the potential for division and try to ensure that that was removed so that the devolutionary settlement could not be used to drive a wedge between the people of Scotland and the rest of the people of the United Kingdom. That has remained our position. I worry that the Government have done the opposite of what they originally intended. Originally, the Bill provided for a double-lock mechanism which would prevent the Scottish Parliament from passing legislation that was outwith its competence. In the original Bill, as the Minister correctly said, the Presiding Officer could deem a Bill to be outwith the legislative competence of the Parliament and prevent it from proceeding in the Parliament. Although Parliament could vote to overrule that decision, the Presiding Officer could refuse to present the Bill for Royal Assent. That part of the lock at least seems to remain intact. In the other place, the Bill was amended to remove the right of the Parliament to overrule the Presiding Officer. We agreed with that provision on the grounds that it weakened the authority of the Presiding Officer and provided a platform for those who sought to use the Parliament to advance the cause of separation by proposing legislation that would clearly be outwith the Parliament's competence. I take the Minister's point about protecting the Presiding Officer's position. It is a fair point, but it has to be weighed against the possibility of the Parliament's being used to carry forward a legislative process that it knows it cannot take to Royal Assent. I ask the Minister to consider carefully the potential danger that that would introduce. What is open to those who want to take forward legislation that they know is outwith the Parliament's competence and use that Parliament as something quite different from what the Minister intends, which is a legislative body? What if we have an Administration in Scotland that wants to have a Bill for a referendum on Scottish separation or a Bill to ban nuclear weapons and power stations from Scotland? That would be possible under what the Minister proposes, because such Bills could be taken through the Parliament. Although they might not receive Royal Assent because of the second part of the lock, they could take up a great deal of time. That would provide a useful platform for those who wanted to propagate such views. That is not what the Government set out to provide on Second Reading or during subsequent stages. Indeed, it is not what they argued in the other place. However, an entirely different animal is emerging, and it is strange that we get it so late in our proceedings. With all due respect to the Minister, I must say that, in trying to protect the position of the Presiding Officer, he has moved far too far in the other direction and is creating a dangerous situation which I do not believe that the Government wanted to see. It could not be further from the position that was outlined in the original draft of the Bill. I expect that the hon. Member for Banff and Buchan (Mr. Salmond) will support the Government's change more than he supported the provisions in the original Bill, which worries me a great deal.

Alex Salmond (Scottish National Party, Banff and Buchan)

Does the hon. Gentleman not feel or understand that the formulation put forward by the Lords, and supported by him this evening, would make the Presiding Officer's post essentially a political one? The Parliament's very first debate would effectively capture the Presiding Officer's post. It would become a sort of presidential role vis-a-vis the Parliament. Under the hon. Gentleman's formulation, those arguments would be put through the person of the Presiding Officer. The hon. Gentleman must understand that political arguments will take place. There is no legislative way in which to remove political arguments from a Parliament. It would be beneficial if political arguments were pursued on the basis of argument, and not through the person of the Presiding Officer.

Liam Fox (Conservative, Woodspring)

There were the two mechanisms in the original draft of the Bill. There was the right of the Parliament to override what the Presiding Officer was doing. We find now that we are faced with something completely different. I am not entirely unsympathetic to the argument that the hon. Gentleman advances, but it is up to those in the Scottish Parliament to choose the Presiding Officer. It is essentially and unavoidably a political decision, and obviously that would be taken into account. We have now lost the double lock. The Minister shakes his head; if he can answer my question, I shall be glad to hear what he has to say. I believe that we could be providing a platform for a series of Bills that could never become law because they would be beyond the legislative competence of the Parliament. None the less, they could be taking up parliamentary time. Is the Minister able to confirm that that is not so? If he can confirm that, that would be a major consolation to Opposition Members. However, I doubt that he will be able to do that.

Henry McLeish (Labour, Central Fife)

A sensible perspective must be applied to the debate. We are talking essentially about the role of the Presiding Officer and trying to clarify his or her role in the Parliament, which is a very important one. I think that the hon. Member for Banff and Buchan (Mr. Salmond) raises the spectre, if we pursue part of the discussion, of a very political Presiding Officer. That is the last thing that anyone wants. That is not the function of a Presiding Officer. Certainly, the Presiding Officer will still have a role, as advocated by those on the Opposition Front Bench, in considering the question of vires. I can reassure the House that it is not the Government's intention in any way to dilute the strength of the legislative competence process within the Parliament. Indeed, if hon. Members look at the steps that I have already outlined—involving the Minister, the Presiding Officer, the Law Officers, the Judicial Committee, the Royal Assent and the Secretary of State being able to intervene if the matter that is dealt with impinges on reserved matters at Westminster —this is a serious process. I am sorry that this is such a long response, but is the hon. Gentleman suggesting that the 129 MSPs will be less responsible than we are, and less responsible than councillors operating in every council chamber throughout the United Kingdom? This is a serious business. Not only do we have a serious issue, but it is backed up by a substantial, intense process. However, tonight, we are clarifying the role of the Presiding Officer.

Liam Fox (Conservative, Woodspring)

I hope that the Minister will take it in the way that it is meant when I say that I do not doubt for a moment his sincerity, but that is an example of the most breathtaking naivety that we have seen since the beginning of the Bill's passage. If we are working against the worst case scenario, what if there is a majority in the Scottish Parliament composed of nationalists, separatists and their allies, and what if they want to use the Scottish Parliament, as has always been the fear in this House, for their legitimate ends, as they see it—to drive a wedge between the people of Scotland and the people of the United Kingdom? The Government are now providing them with an easier mechanism than they had before. This is the vehicle that they would like to have. That will make it easier for Bills to be introduced—potentially by a nationalist working majority—that, under the previous formulation of the Bill, would not have been within the competence of the Scottish Parliament and therefore could not have been introduced. The amendments are a watering down of the safeguards that we believed we had been given by the Government during the earlier stages of the Bill. They have made the worst case scenario far more likely. They have been bending backwards to satisfy nationalist opinion. It is being done under the guise of protecting the Presiding Officer's position. Perhaps it is even done genuinely in the belief that the Government are protecting the Presiding Officer's rights, but the effect is to provide a vehicle for those who want to use the Scottish Parliament as a platform for division.

Henry McLeish (Labour, Central Fife)

With the greatest courtesy, because I always try to pick my words carefully, let me say that that was arrant nonsense. Let us be careful about mixing political issues, in reference to the hon. Member for Banff and Buchan, and the technical legislative competence issue with which we are dealing this evening. The point is simply this. We have a strengthened position because we are clarifying the role of the Presiding Officer. In the previous—

Liam Fox (Conservative, Woodspring)

I am not at all convinced by the argument and, as this goes on, I am becoming more and more disturbed by the fact that the Government have failed to grasp the danger that is presented to them. I hope that this provision will be looked at again in another place, because a major flaw in the Government's plans is coming through.

Henry McLeish (Labour, Central Fife)

Will the hon. Gentleman give way?

Liam Fox (Conservative, Woodspring)

I give way, with your permission, Mr. Deputy Speaker.

Henry McLeish (Labour, Central Fife)

In the other place, this concern was not raised in the specific way that is being discussed this evening. The amendments are about the role of the Presiding Officer. Let me repeat the position very briefly. It was indeed strengthened because we have a series of steps, checks and balances. Does the hon. Gentleman suggest that MSPs will sit day in, day out to discuss legislation that is not within their competence? I cannot accept that as a notion, but, of course, a set of steps is included in the Bill that will ensure that that simply does not happen. The hon. Gentleman should be reassured by that. I caution him against using words such as "dangerous" and "naive", because this has been a well-worked-out process and, at the fag end of the discussions in Parliament, we hear those statements being made.

Liam Fox (Conservative, Woodspring)

It is such a well-worked-out process that we had 180-odd groups of amendments in the other place to put right the defects in the Bill. I accept that the Minister's intentions are entirely honourable, but I think that the Government have got this wrong. I simply do not believe that a nationalist majority in a Scottish Parliament would not use everything possible to try to drive a wedge between themselves and this Parliament in Westminster. If they believed that they could take through a series of Bills that they knew would not have legislative competence and could not possibly go for Royal Assent, but advanced their commitment and their campaign for separatism, they would do it. It amazes me that any Labour politician could still be willing to take a risk on what the nationalists might be willing to do were they to get a strong foothold in a Scottish Parliament. This is a recipe for division. It removes the safeguards that we had. Why do the Government not believe that it would be better to prevent such ultra vires legislation from being aired in the first place, instead of having it messily blocked at the end of its legislative passage? What we had during the earlier stage of the Bill was a lock; what we now have is guidance. That may be to the benefit of the Presiding Officer standing. I do not have a particularly strong position on that one way or another, but I know that it increases the danger of a Scottish Parliament dwelling on legislation that elements of the Scottish Parliament may wish to put forward for political ends, but they know could not receive Royal Assent because it is outwith legislative competence. That is made easier by this process, not harder.

Henry McLeish (Labour, Central Fife)

Again, with the greatest courtesy, I am trying to rescue the hon. Gentleman from the political ferment that he is trying to generate around him. The original provisions would have allowed the Parliament to decide to overthrow the Presiding Officer and continue to debate a Bill that was outwith its legislative competence, so he cannot make this great stramash and create a situation that never existed. What we are talking about—I return to it again—is clarifying the role of the Presiding Officer, and then the whole system of checks and balances is still in place. It makes it simpler. It makes it clearer, but the central issue is this: the hon. Gentleman must not confuse political concerns about any political party with a Bill procedure that is designed to achieve the objective of having ultra vires issues dealt with at every step of the process.

Liam Fox (Conservative, Woodspring)

The role of the Presiding Officer fundamentally changes through this alteration in the Bill because, previously, there was the ability at the beginning of the legislative process to say, "The Bill is outwith the legislative competence of the Parliament and cannot go further"—at least that was the position after the Bill was amended in the other place. What the Government now propose is that the process can be stopped only at the Royal Assent stage. That brings a whole new political complexion.

Henry McLeish (Labour, Central Fife)

Will the hon. Gentleman give way?

Liam Fox (Conservative, Woodspring)

I will give way in a minute. The Minister tries to draw a line between the politics of the Parliament and the procedure of the Parliament. I think that he is in grave danger of not understanding the danger that is left open here. I hope that he will think again. I will leave it to him to sum up. This major change has come very late on in the passage of the Bill. It seems to be a minor change, but it could fundamentally alter the way in which legislation is taken through the Scottish Parliament. I caution the Government. They are making a grave error. They need to think about this matter again before someone takes advantage of a situation that they did not really intend and leaves us with the most dreadful consequences, which all of us fear just may be possible.

Alex Salmond (Scottish National Party, Banff and Buchan)

The hon. Member for Woodspring (Dr. Fox) is confusing two different things. He seems to believe that we can formulate a series of Standing Orders or procedural mechanisms to block political will. Not even his great heroine, Lady Thatcher, believed that. I may be doing her a slight injustice in trying to paraphrase her autobiography "The Downing Street Years", but it ran something like this: "Scotland is an ancient nation. If the Scots were ever to determine on independence, no English politician, certainly not me, would gainsay the process." The quotation may not be exactly right, but it is certainly proximate. What the hon. Member for Woodspring seems to be saying is that, if people in Scotland determined on independence—or put a nationalist majority in the Scottish Parliament—his procedural mechanism, the blocking mechanism through the persona of the Presiding Officer, would be the ace card to defend the Union. If he actually believes that and if, first, he wants to hold out against the democratic mandate of the Scottish people and, secondly, he believes that the way to frustrate that is by a procedural blocking mechanism, he has a great deal to learn about political reality and real politics. He also has something to learn about democracy. I may not ever say this again, but I prefer Lady Thatcher's view on those matters and on the democratic mandate to the view now espoused by Conservative Front Benchers. I thought that, under new Conservatism and the listening to the people exercise, the days of telling Scotland what it could and could not do were meant to be over. I thought that, under new Conservatism, elements of democracy were being introduced to the party's internal procedures and, by extension, it would recognise the will and democratic view of the people. In the last 10 to 15 minutes, that whole principle has been turned on its head. We are now back to the days of "nanny knows best"—going even further than the great nanny herself, Lady Thatcher, in her autobiography. I caution the hon. Member for Woodspring. First, he should accept democratic procedures and the democratic will of the people. Secondly, he should not believe that it is possible to devise a procedural mechanism to frustrate open and democratic political debate.

Dominic Grieve (Conservative, Beaconsfield)

Without subscribing to the apocalyptic view of a challenge by the Scottish Parliament that goes directly against the sovereignty of this Parliament, I have some concern about the way in which the Bill, as it is now intended to stand, will operate. As the Minister rightly said, let us forget about challenges where the Scottish Parliament decides to be bloody minded and pass legislation that it knows perfectly well it does not have the necessary vires to implement. Ultimately, that would take us to the situation in Ireland in 1918, where groups of Members of Parliament detached themselves and claimed that they had sovereignty. It is an apocalyptic view and not something that I hope will happen.

Desmond Swayne (Conservative, New Forest West)

Does my hon. Friend accept that, earlier this evening, that point of view was put by the hon. Member for Dundee, East (Mr. McAllion)?

Dominic Grieve (Conservative, Beaconsfield)

An apocalypse may happen. I take the view that, if we get to that pass—we debated this matter at great length during other stages of the Bill—it will emerge whatever the procedural mechanisms are. To that extent, I do not think that there is much that we can do to prevent it. My main concern is about ensuring smooth government. That implies—the Minister accepted it—that there will be areas where the precise borderline of the competence of the Scottish Parliament may be in doubt, even if there is good will on all sides. In those circumstances, prudence dictates that there should be some mechanism by which legislation, before it is introduced in the Scottish Parliament, can be subject to scrutiny. I take the Minister's point about not placing on the Presiding Officer a burden that might politicise his position, to the prejudice of his standing and reputation for impartiality within the Parliament. That problem could be cured if there were some mechanism for reference to the courts at an earlier stage. For example, if the Presiding Officer were concerned that a piece of legislation appeared to be ultra vires, he should be able to obtain the court's opinion. We do not have that mechanism. There is a danger that people will be encouraged to believe that the Scottish Parliament has a competence to implement legislation, and then subsequently be disappointed because it does not. It is not a question of making political points about independence or what is within the scope of the Scottish Parliament; it is a matter of day-to-day realities.

Alex Salmond (Scottish National Party, Banff and Buchan)

The hon. Gentleman is making a speech that is much more sensible than the one made from the Opposition Front Bench. Perhaps there should be a reshuffle. Was not the Conservative party's previous position that devolution made independence inevitable? "Inevitable" was the word used. Therefore, does that not make the Opposition's anxiety even more difficult to understand? Or is it something else from the previous Parliament that the Conservative party wants us to forget?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman knows that I was not in the previous Parliament. He also knows from my speeches in earlier debates that, although I want to preserve the Union and have serious reservations about whether devolution will work, I want to try to make it work. I am a Unionist, so any suggestion that I make is in the spirit of trying to make the system work. I hope that, even at this 11th hour and 59th minute, the Minister will consider my suggestion. Ultimately, the judiciary will have the final say on the legislative competence of both this House and the Scottish Parliament; so, unless there is a mechanism by which prior reference on a matter of serious doubt can be made before legislation is introduced, people are likely to be disappointed. Also, time is likely to be expended and prove fruitless.

Donald Gorrie (Liberal Democrat, Edinburgh West)

There are three positions on this issue. There are the first thoughts of the Government as included in the original Bill: that the Speaker of the Scottish Parliament could say that a Bill was not for discussion, but the Parliament could then vote to overrule that. The second position is that taken by the House of Lords: that the Speaker could make such a ruling and the Parliament could not overrule him. The third is the Government's second thought: scrub the whole issue. That is an intelligent second thought. Earlier, in the debate on a previous amendment, I was greatly encouraged when, almost for the first time in a debate on Scotland, we had some intelligent Conservative speeches and interventions. I am afraid that, since then, the Opposition Front Bench has reverted to the old gramophone record. It is not realistic to expect a Parliament not to debate something that it wants to debate.

John Hayes (Conservative, South Holland and The Deepings)

Throughout time and across the globe, democratic bodies have had limits on their competence and, therefore, limits on the matters that they may rightly consider. It is a nonsense to confuse procedure and politics, as the hon. Gentleman must know from his experience in local government. There are limits to debate based on competence. That is not an unreasonable practice in a sound democracy.

Donald Gorrie (Liberal Democrat, Edinburgh West)

I do not agree with the hon. Gentleman. My experience of democratic bodies is that they debate all sorts of things. A council can debate whether nuclear weapons are a bad thing, or that Iraq is a bad place. It knows that it has no power over those matters, but it can debate them.

Lynda Clark (Labour, Edinburgh Pentlands)

The hon. Gentleman may be confusing debate and legislation. There is obviously a big difference between debate that does not lead to legislation and debate that does. Perhaps the hon. Gentleman would consider that.

Donald Gorrie (Liberal Democrat, Edinburgh West)

The hon. and learned Lady anticipates my argument. I am not totally stupid, although I say it myself. We will not stop a body debating. The Conservative argument is that it is wicked for a putative Scottish Parliament with a putative majority for independence to discuss a Bill about independence. My point is that it can discuss a motion saying that it would be very nice if Scotland were independent. Everyone agrees that that would be intra vires. If it were a Bill, it could be ultra vires. We cannot stop the Scottish Parliament discussing whatever it wants to debate. The Government's second thought is sensible because to set the Parliament against the Speaker would be a bad thing. One of the important aspects of the Westminster Parliament is that, if Madam Speaker tells me to sit down, I do so and there is no messing about. If I had just previously in the Scottish Parliament voted to overrule a Speaker's ruling, that would diminish the power of the Speaker and might cause trouble in Parliament.

Liam Fox (Conservative, Woodspring)

Self-evidently, a Parliament can debate anything that it wants to debate. The hon. and learned Member for Edinburgh, Pentlands (Dr. Clark) was correct to say that there is a difference between a subject that the Parliament might debate and subjects on which it might legislate. We are talking now about the Parliament's legislative competence. What would be the point of the Parliament embarking on the process of legislating on a subject in which it knows that it has no competence, and to create legislation that it knows, ultimately, cannot receive Royal Assent?

Donald Gorrie (Liberal Democrat, Edinburgh West)

The hon. Gentleman answers his own question. If the Parliament has any brains, it will not go down that path. It is ridiculous to contend that the Union will somehow be destroyed if the Scottish Parliament considers a Bill that is ultimately said to be out of its powers, whereas, as everyone agrees, it is within the Parliament's powers and causes no problem for it to debate and pass motions on the very same issues. It is ridiculous to make such a distinction. If the Parliament wants to discuss an issue, it will discuss it. If the Parliament knows very well that a Bill will never be passed because it is ultra vires, it would only bring itself into public disrepute by continuing to try to pass it. Even if I were elected to the Parliament and were stupid, there would be 128 other people with more brains than me, who would not do such daft things.

Liam Fox (Conservative, Woodspring)

That is the precise worry. If I were a separatist, I would want to pursue a legislative path that would bring the Parliament into conflict with Westminster, thereby creating as much of a public fuss as possible. That is the exact recipe that nationalists seek, and it is exactly what the Government are proposing. There is a huge difference between debate and legislation, which is why we are trying, in schedule 5, to limit the Parliament's legislative competence. The Government's proposals make it more likely that the provisions could be abused by those who want only greater division.

Donald Gorrie (Liberal Democrat, Edinburgh West)

The hon. Gentleman has lived for some time in the Conservative party and therefore sees life as one huge conspiracy, but I do not see things in that way. The Parliament will be responsive to public opinion. It is ridiculous to suggest that Members of the Scottish Parliament would deliberately waste lots of people's time voting on matters on which they cannot legitimately vote. They will be allowed to debate and air issues, get their headlines in newspapers and their soundbites on television because of motions and other absolutely legal means.

Eleanor Laing (Conservative, Epping Forest)

Does the hon. Gentleman accept that, procedurally, there is a big difference between a debate or a motion designed to air views on a subject and introducing a Bill—which is what Conservative Members have been talking about? The Parliament's procedure on introducing Bills is the matter that could drive a wedge between the Bill's provisions and the will of the future Scottish Parliament

Donald Gorrie (Liberal Democrat, Edinburgh West)

I do not accept any of that. Politicians want their soundbites, their appearances on television and their headlines in newspapers, and they will get them regardless of whether they are debating a motion or a Bill. If Members of the Scottish Parliament introduce ultra vires Bills that everyone knows will not be allowed to reach fruition, they will only subject themselves and their party to ridicule, which they will not want to do. The entire basis of Conservative Members' argument is therefore absurd, and shows their party's total divorce from reality.

John Hayes (Conservative, South Holland and The Deepings)

Will the hon. Gentleman give way?

Donald Gorrie (Liberal Democrat, Edinburgh West)

No; I have gone on long enough, as have all the objections.

Desmond Swayne (Conservative, New Forest West)

Having had some optimism over the summer months, I am now filled with the forebodings that filled me in our previous debate on the Bill. The entire matter seems now to have the potential for going off the rails. Despite the common ground that was established in the previous debate on both sides of the House—with the possible exception of those on the Treasury Bench, and one or two other Labour Members—the gulf between us seems to have re-opened. I shall take the risk of being accused of playing the same old gramophone record by saying that it all boils down to an issue that, time and again, we hammered out in the Bill's Committee stage: the issue of good will, and the Bill's reliance on it.

Desmond Swayne (Conservative, New Forest West)

The hon. Member for Edinburgh, West (Mr. Gorrie) has drawn attention to the need for good sense. Conservative Members are not persuaded that good will will be enough. We want to maintain the Lords amendments as they are—as they would ensure that the procedures will act to prevent such problems from arising, rather than having to rely on good will.

John Hayes (Conservative, South Holland and The Deepings)

I am grateful to my hon. and gallant Friend for giving way. On the matter of precedents of ultra vires in local and other authorities, does he agree that, contrary to the comments of the hon. Member for Edinburgh, West (Mr. Gorrie), most democratic institutions are limited in what they can pass into legislation—for want of a better term? As the hon. Gentleman said, one may have a debate on any matter. However, as the hon. and learned Member for Edinburgh, Pentlands (Dr. Clark) said, legislating is a very different matter. The problem with the Government's proposals is that they create the potential for debate not on broad matters of academic importance but on legislation. That is the key to the matter.

Desmond Swayne (Conservative, New Forest West)

I agree with my hon. Friend—although I should correct him on his nomenclature in referring to me. His comments seemed to be absolutely elementary.

John Hayes (Conservative, South Holland and The Deepings)

On a point of order, Mr. Deputy Speaker. The nomenclature that I used was "hon. and gallant Friend". I believe that my hon. Friend is a serving member of the forces. Was I incorrect in that?

Desmond Swayne (Conservative, New Forest West)

Although I wish that I did hold a gallantry award, the sad fact is that I do not, Mr. Deputy Speaker. I share the views of my hon. Friend the Member for Beaconsfield (Mr. Grieve) and believe that there was much sense in what he said. Unfortunately, we are not considering a Bill or an amendment establishing the type of structure that he favoured. We are offered the Bill with either the Lords or the Government amendments, and I tell the House that I prefer the Lords amendments. Let us just consider the possibilities. Let us suppose that daft or stupid—as the hon. Member for Edinburgh, West suggested—Members of the Scottish Parliament, whatever their motivations, introduced Bills in the Parliament to ban nuclear weapons on Scottish soil, for example, or to provide more generous social security provision in Scotland. Both measures might be very popular, and proceeding on them in the Parliament might offer great scope for making political capital. However, doing so would be ultra vires. I think that it would be much better to have that inevitable political argument and battle at the outset. Everyone agrees that we cannot keep politics out of the matter and that the Parliament will discuss what it will discuss regardless of the rules. Nevertheless, it is better to have the battle at the outset, as the Lords amendment would provide, than to let the matter run its course and to have the battle at the end. Although a battle at the outset would politicise the position of the Presiding Officer, it would be better to let his office take the strain and be politicised. The effect of letting him take the heat of taking the decision will be to give the impression that the Scottish Parliament has limited itself in consideration of the topic. To do it the other way round, and to let a measure proceed through the Parliament until it is finally ruled ultra vires, would give the very different impression that Westminster had thwarted the will of Holyrood, rather than that Holyrood had limited itself according to the law. That is a key difference and it is preserved by the Lords amendments. We should agree with the Lords in that.

Liam Fox (Conservative, Woodspring)

To put it in a nutshell, does my hon. Friend agree that it makes nonsense of schedule 5 and the division between reserved and devolved powers for the Parliament to follow a legislative process that cannot be completed because it is beyond the legislative competence of the Parliament? Does that not make a mockery of what we have been doing over the past months?

Desmond Swayne (Conservative, New Forest West)

My hon. Friend is exactly right. It would be a monumental waste of the Parliament's time to go down that route. The hon. Member for Edinburgh, West was quite right to say that it is an outrageous proposal that would bring the Parliament into disrepute. However, if the Parliament were debating populist measures, I am not sure whether public opinion would move in exactly that way. I agree entirely that the waste or exploitation of the Parliament's time in that way should be ruled out by the procedures at the outset, in accordance with the terms of the legislation of vires and ultra vires that we have spent days and weeks discussing.

Robert Syms (Conservative, Poole)

We all know that, when private Members' Bills are introduced in the House, public expectations go up. We receive lots of letters as if the measure were about to become law, although as legislators we know that it will not. Is there not a great risk that, if the Scottish Parliament introduces legislation in areas where it does not have competence, that will have the same effect of building up a great deal of public support for something that cannot possibly be achieved?

Desmond Swayne (Conservative, New Forest West)

There is certainly that danger. The build-up of public support, far from bringing the Scottish Parliament into disrepute as the hon. Member for Edinburgh, West suggests, will have the effect of bringing this Parliament into disrepute. That is why it is so important to put procedures in place so that the vires is ruled at the start of the procedure and not at the end of it. That is particularly important. Labour Members have repeatedly drawn attention to the fact that the Scottish Parliament will discuss what it will discuss. That is true in debate, but it must not be allowed to pertain to legislation being put through the Scottish Parliament. If it did, it would make utter nonsense of the schedules that we have considered and all our debates on what should be devolved and what should not.

Eleanor Laing (Conservative, Epping Forest)

I entirely agree with my hon. Friend the Member for New Forest, West (Mr. Swayne) who has most eloquently expressed the crux of the argument. If the Government's motion to disagree with the Lords amendment is carried, it will make nonsense of all the hours that we have spent discussing schedule 5 of the Bill and the Bill itself. It will have been a complete waste of time discussing which matters should be devolved to the Scottish Parliament and which should be retained by Westminster. The hon. Member for Banff and Buchan (Mr. Salmond) argued very strongly—I will allow him to correct me if I am wrong—that the Scottish Parliament should have the power to vary the matters over which it has competence. If it is up to the Parliament to decide which Bills are introduced, if it is up to the politicians to decide on the popular matter for discussion of the day, and if it is up to the MSPs at the time to decide whether that matter can be discussed or legislated on, he is effectively saying that schedule 5 is incompetent, that it might as well not exist and that we might as well not have spent many days discussing it.

Donald Gorrie (Liberal Democrat, Edinburgh West)

May I draw the hon. Lady's attention to the rest of clause 31 which it is not proposed to remove? It sets out all the blocks affecting any legislation going through the Scottish Parliament. Her remarks amount to hyperbole that bears no relation whatever to the facts.

Eleanor Laing (Conservative, Epping Forest)

The hon. Gentleman is correct in referring me to clause 31, but I disagree with his interpretation. Under clause 31 all that would happen is that, after a Bill had completed all its stages in the Scottish Parliament, a decision could then be taken that the Parliament did not have competence over that subject and therefore could not pass the Bill. That is precisely what will make a nonsense of the proceedings of the Scottish Parliament.

Alex Salmond (Scottish National Party, Banff and Buchan)

If the hon. Lady is so concerned that she has wasted her time on schedule 5, why did she and her party not object to the clause that says that, notwithstanding everything else, the Westminster Parliament can always overrule the Scottish Parliament whether or not it has legislative competence? Why did she not concern herself with that clause?

Eleanor Laing (Conservative, Epping Forest)

Would it surprise the hon. Gentleman to know that I consider that the most important clause in the Bill? It is vital that that clause be observed because the Scottish Parliament will derive its power from Westminster, just as it derives its power from the Bill which will be passed by this Parliament.

Alex Salmond (Scottish National Party, Banff and Buchan)

The hon. Lady is saying that, notwithstanding her previous argument about the importance of schedule 5 and working out where she thinks the Scottish Parliament should have legislative competence, she would reserve her right to interfere with the Parliament even in matters where it had legislative competence. Is that her position?

Eleanor Laing (Conservative, Epping Forest)

The hon. Gentleman is making my argument for me extremely well. The crux of the argument is that the matter that we are discussing will serve only to drive a wedge between the Scottish Parliament and the Westminster Parliament. I appreciate—so must the Minister—that the hon. Gentleman wants to do exactly that. It is the hon. Gentleman's political agenda because he wants a separate Scotland. If the legislation that we are discussing results in the Westminster Parliament and the Scottish Parliament coming head to head in an irresolvable argument about the competencies of the two Parliaments, it will be more likely that the people of Scotland will become disenchanted with devolution.

Alex Salmond (Scottish National Party, Banff and Buchan)

The hon. Lady has put her finger on the fact that I support an independent Scotland. However, she is having difficulty in understanding that I do not deceive myself into believing that a procedural mechanism one way or the other will be the subject on which independence is either successful or unsuccessful. It is about politics, not procedure. Does the hon. Lady give me that?

Eleanor Laing (Conservative, Epping Forest)

No indeed, I do not. I see exactly what the hon. Gentleman is saying about procedure. Of course it is not the procedure but the way in which it is used. The hon. Member for Edinburgh, West (Mr. Gorrie) spoke about MSPs being stupid. I think that was the word he used—[Interruption.] I do not wish to misquote the hon. Gentleman but he is not correcting me. He was suggesting that some people may not understand procedure. If I may pay a compliment to the hon. Member for Banff and Buchan—I have already become unpopular by paying a compliment to the hon. Member for Falkirk, West (Mr. Canavan), and I like to keep these things balanced—he is an extremely competent political operator and he knows exactly how he will be able to use the very procedure that we are now discussing. Of course democracy is not protected by mere rules. It depends on how people use the rules. The hon. Gentleman knows how to use the rules to his political advantage and I do not want him to gain that political advantage.

John Hayes (Conservative, South Holland and The Deepings)

Is not the compliment that my hon. Friend has paid to the hon. Member for Banff and Buchan (Mr. Salmond) tempered by the fact that his problem with the ultimate sovereignty of this Parliament is that he had hoped that the Scottish Parliament would be a federal Parliament—and probably still hopes that? It will be a devolved Parliament, and in a unitary constitution—

Eleanor Laing (Conservative, Epping Forest)

I appreciate the basic point that my hon. Friend was making. The important fact about the Scottish Parliament is that it will derive its power from this Parliament and the Bill that is being passed through this Parliament.

Nigel Evans (Conservative, Ribble Valley)

Does my hon. Friend agree that we have already had a fine example this evening of action that the Scottish Parliament may take that would be out of its competence—the issue of the number of Members of the Scottish Parliament? The Scottish Parliament might introduce a Bill to ensure that there were more MSPs than had been allowed by the Bill, with representation equal to Westminster's. Under the Government's proposal, the Scottish Parliament would be able to debate the issue and only at the end of the process, after the vote had been taken, would the process be stopped. That is a great danger to the proper working of the Scottish Parliament.

Eleanor Laing (Conservative, Epping Forest)

My hon. Friend is right. It would also be a great waste of time for the Scottish Parliament. I am concerned about how Scottish taxpayers must feel when they hear about what the Scottish Parliament will do, how many members there will be and how the number will be changed —starting with 129 but then going down to just over 100 because we do not really need 129. Scottish taxpayers must be worried about what the Scottish Parliament will do and what the many highly paid civil servants will do.

Eleanor Laing (Conservative, Epping Forest)

I shall adhere strictly to the amendments. If we agree with the Government this evening, we might as well not have had schedule 5. All the rules that have been laid down at great length by the House and our parliamentary process will have been for nothing. The hon. Member for Banff and Buchan and his colleagues will be only too happy to continue to drive the wedge that he has spoken of this evening between the Scottish Parliament and the Westminster Parliament. That will doubtless be the effect if the hon. Gentleman has his way. I shall not embarrass him by repeating my compliment that he is a clever political operator.

Robert Syms (Conservative, Poole)

My hon. Friend is making a persuasive case. The hon. Member for Banff and Buchan (Mr. Salmond) talked about procedural mechanisms. Are not constitutional arguments all about procedural mechanisms?

Eleanor Laing (Conservative, Epping Forest)

I agree that procedural mechanisms are an important part of the political process. If we do not have well laid out procedural mechanisms—this is what the amendment is about—it will not be clear what is intra vires and what is ultra vires. That is one of the most important rules of constitutional law. If we do not have clear rules, there will be constant squabbles about what the Parliament can do. Only lawyers will benefit from that situation, because they will earn large fees for deciding the arguments. I declare an interest because I am a lawyer and I have no objection to lawyers earning large fees, but taxpayers should be protected from that.

John Bercow (Conservative, Buckingham)

My hon. Friend is developing a powerful case. I am not a lawyer—I say that as a matter of pride. I recognise that my hon. Friend cannot penetrate the mindset of Ministers, but does she think that the Government can have any credible reason for wanting to create a situation that would allow the Scottish National party to whip up anti-English hysteria?

Eleanor Laing (Conservative, Epping Forest)

rose—

Eleanor Laing (Conservative, Epping Forest)

I conclude from your advice, Mr. Deputy Speaker, that I have made my point and I am happy to rest my case.

Henry McLeish (Labour, Central Fife)

I apologise for the long interventions early on. This has developed into a nearly interesting filibuster. I had hoped from previous debates that the Conservative Opposition were recovering and rehabilitating themselves in the aftermath of defeat in May 1997, but they have gone back to their bad old ways and their tired old arguments tonight. I had high hopes for the hon. Member for Epping Forest (Mrs. Laing) after her Front-Bench appearance in Committee. The Conservatives cannot distinguish between hysteria surrounding the political interpretation of what is happening in Scotland and the cool, measured view required to look at the legislative process and the issue of competency. The role of the Presiding Officer—the Speaker of the Scottish Parliament—is at issue. The suggestion of the other place would give the Presiding Officer unchallengeable power to decide on questions of competence. That would escalate his involvement, giving him a role described by the hon. Member for Banff and Buchan (Mr. Salmond) as essentially political. That is not the role of Madam Speaker and her deputies in this House and it should not be the role of the Presiding Officer and the deputies in the Holyrood Parliament. We have tabled considered amendments that would remove the potential for conflict in Holyrood. The Presiding Officer would be allowed to state a case about vires, but the case would be part of a structured set of checks and balances on legislative competence. I hope that the Conservatives will take cognisance of what is happening in Scotland. There is no prospect of the scenario that they have come up with being part of the Holyrood scene.

Tam Dalyell (Labour, Linlithgow)

Could we be clear whether there has been recruitment of Clerks for the Presiding Officer? I gather that Mr. David Millar has been recruited. What is the position of the expert help that any Presiding Officer would need? That ought to be in place before the elections.

Henry McLeish (Labour, Central Fife)

The work of the expert panel on procedure is part of the consultative steering group. A lot of detailed work has been done on the points that have been made. An initial appointment has been made. I take my hon. Friend's point seriously. We want to ensure that all the relevant advice will be available after 6 May next year, when the Parliament starts. I assure my hon. Friend that that will be in place; it is a major part of our current considerations. I want the Conservative party cooly to examine what is proposed for Holyrood. First, the Bill is about reserved competencies for Westminster and devolved competencies, so already a decision has been made on what we should be making laws on in Scotland and what should be kept in this place. Secondly, within the consultative steering group—which contains a Conservative representative—we have agreed to have pre-legislative scrutiny, which does not exist in Westminster. I challenge the Opposition to consider a situation where all that is incompetent because it is ultra vires. Let us return to the real world—just for a small amount of time, because concentration can be difficult. Let us imagine that we have the devolved responsibilities, which we take seriously, and pre-legislative scrutiny before a Bill even arrives in Holyrood. We will then have a situation where a Minister with responsibility for education or for local government comes before the House and says that the proposed legislation is within the competence of the Parliament. The Presiding Officer will then make a statement at Holyrood on the vires of the Bill. At every step, is it conceivable that the Parliament—subject to the scrutiny of the press and the public—can be breaking laws day in, day out in terms of legislative competence? That is an absurd proposition from the Conservatives. After the Presiding Officer's statement, the Parliament can decide to proceed in the knowledge of the Presiding Officer's views. However, the Bill could then be amended and the offending part that was not within vires could be taken out. If it remains ultra vires, the Law Officers can refer it to the Judicial Committee of the Privy Council. The Bill cannot go for Royal Assent if it is ultra vires in the view of the JCPC. There can be no more structured set of procedures in any Parliament in the world. It is sensible because it will he a serious Parliament with enormous law-making potential, and it will be responsible for £15 billion. The Opposition must confront reality and start to trust the people. Are we suggesting that the Members of the Scottish Parliament elected by the Scottish people on 6 May next cannot be trusted to make laws that are within the competence of the Parliament? That is the absurdity of the Opposition's approach tonight. They are going back to their old ways and, frankly, it does their perception in Scotland no good at all.

Liam Fox (Conservative, Woodspring)

The Minister says that we are proposing an absurd set of conditions. It is, truly, an absurd set of conditions if we are dealing with rational politicians who want to make the Parliament work. However, if we are dealing with a Parliament in which the majority of politicians do not want it to work because they have an alternative political agenda which is quite different from that of the mainstream Unionist parties represented in this House, that is a problem. In the first draft of the Bill, we had a double-lock—a lock right at the outset where there was, through the Presiding Officer, the ability to stop a Bill. However, that does not exist now—either through the Presiding Officer or anyone else. Why have the Government taken that out of the equation?

Henry McLeish (Labour, Central Fife)

To coin a phrase, "Game, set and match". The hon. Gentleman has shown the Opposition's fear of what the newly elected group of 129 Members of the Scottish Parliament will do in the new Parliament. I have painstakingly gone through the procedures to provide the checks. The Opposition are simply not listening because they do not want to listen. They have put forward a set of absurdities.

Stephen Day (Conservative, Cheadle)

The Minister said that the Opposition did not believe that the Scottish Parliament—or the individual Members, once elected—would be competent to carry out its duties on behalf of the people of Scotland. I do not believe that that is in any way the case. Surely the question is whether the Government were competent in their proposals for the powers of the Parliament, because when the matter was put before the Scottish people, no details as to what the powers and the definition of the Parliament would be were given. In other words, any question of lack of competence rests on the shoulders of the Government of whom the Minister is a part.

Henry McLeish (Labour, Central Fife)

We have had 185 hours of debate in this Chamber and the other place on the Bill. Before that, a number of us became familiar with the White Paper, which was well discussed in Scotland and set out the powers and competencies of the Scottish Parliament. The Scottish people signed up for that in a referendum with two ballots. The hon. Gentleman's proposition is not tenable—he is attempting to find a gold nugget in a complex area. Tonight, we have set out genuinely and honestly what is happening with the Bill. There is a thorough set of procedures which the Opposition cannot distort and undermine by confusing politics with practicalities. I do not believe that their case stands up and I believe that what we have is robust and will be taken seriously by Scots in the Parliament. I believe that we will have good law making in Holyrood.

SCRUTINY OF BILLS BY THE PRESIDING OFFICER.

THE SCOTTISH EXECUTIVE

Henry McLeish (Labour, Central Fife)

I beg to move, That this House agrees with the Lords in the said amendment.

Henry McLeish (Labour, Central Fife)

This large group of technical amendments deals with a wide range of matters, including prohibition of dual mandates, the resignation of the Lord Advocate, the validity of Acts of Scottish Ministers, consultation requirements under clause 51, the sharing of powers under clause 52, interaction with the Human Rights Act 1998, the transfer of property, agency arrangements, the definition of "the Crown" and official secrets. I urge the House to accept the amendments; we will, of course, oppose any attempt to disagree with amendment No. 298. I understand that Opposition Members are interested in amendment No. 53, which prevents members of the Scottish Executive—which, for the purposes of the clause, includes junior Scottish Ministers—from holding office in the UK Government. The amendment provides that a person holding ministerial office, as defined in section 2 of the House of Commons Disqualification Act 1975 may not be appointed as a member of the Scottish Executive and that, if a member of the Scottish Executive is appointed to ministerial office, he shall cease to hold office as a member of the Scottish Executive. It also makes it clear that the term "member of the Scottish Executive" in this context includes a junior Scottish Minister. I also understand that Opposition Members are concerned about amendment No. 298, which provides that members of the Scottish Executive and junior Scottish Ministers are Crown servants for the purposes of the Official Secrets Act 1989. It is important that the House appreciates what that does and does not mean. The Official Secrets Act does not always get a good press, but it plays a useful role in enabling the exchange of information within Government, which is why we tabled the amendment. Amendment No. 298 will ensure that Scottish Ministers are put in exactly the same position as Ministers in the UK Government. It will also put them in the same position as their staff, who will of course be civil servants and, as such, Crown servants for the purposes of the 1989 Act without the need for any amendment. That is all that the proposal is about—it will mean that Scottish Ministers will be able to receive and, if necessary, disclose information covered by the 1989 Act while also being subject to the offences created by the Act. The Government consider that the amendment is necessary so that Scottish Ministers can carry out their duties to the full. It will mean that there is no anomaly in the position of Ministers as against their civil servants in respect of access to information. We would rightly be criticised if we bequeathed that anomaly to our successors. I hope that hon. Members will recognise that and support the amendment.

Nigel Evans (Conservative, Ribble Valley)

As the Minister said, the amendments are wide ranging and largely technical, but my primary concern is amendment No. 53, which deals with the dual mandate. We have been asking for such a measure for some time and we believe that the amendment is straightforward and sensible. It recognises that, if devolution is to mean anything, there must be a clear break between those who hold office at Westminster and those who are part of the Executive in the Scottish Parliament. Devolution will mean nothing if the Scottish Executive regularly have to sing to the tune of the Westminster Cabinet. We know that the Government are still suffering from their control-freak tendencies in every other matter—we saw examples of it only this weekend—but at least they have recognised the stupidity of allowing a two-jobbing politician to have a face, let alone feet, in both camps. That politician's voice would be, by its very nature, the voice of the Westminster Government. A Minister who held positions at Westminster and in the Scottish Executive would necessarily be bound by collective Cabinet responsibility and by what Downing street said. Will the Minister say whether he believes that a politician can serve two masters? If someone cannot be a Minister both in Scotland and at Westminster, why do the Government believe that someone can be part of the Executive in Wales but also part of the United Kingdom Government? Indeed, someone can be both First Secretary in Wales and Secretary of State for Wales. If the measure in the amendment is right for Scotland, why is it not right for Wales? If a person can serve two masters in Wales, why have the Government tabled this amendment to the Scotland Bill? The people of Wales and of Scotland will be interested to hear the answer to that question.

Richard Shepherd (Conservative, Aldridge-Brownhills)

I speak to the motion, which I tabled with my hon. Friend the Member for Rochford and Southend, East (Sir T. Taylor), to disagree with Lords amendment No. 298. The Minister has claimed that the Bill is carefully thought through and balanced and that it was constructed as a whole. It was always intended that the Government of Wales Act 1998 should impose on Assembly Members the Official Secrets Act 1989. The measure was wide ranging and subject to some discussion. The House agreed to an amendment of which I did not approve. As regards this Bill, however, amendment No. 298 was parachuted into the House of Lords. The measure did not appear in statements to the Scottish people and was not discussed by the Scottish Constitutional Convention or—as it was not originally in the Bill—by the House of Commons. Moreover, there was almost no discussion in the House of Lords of the propositions underlying such an important concept. Indeed, those who spoke welcomed or even acclaimed the measure. We all too often accept the conventional way of doing business. For certain classes of information, the Official Secrets Act makes what we regard as matters of confidentiality the subject of a criminal offence in respect of Government servants and Ministers of the Crown. Other than the Minister's explanation today, no one has said why that is necessary. We are not suggesting that the security of the state— of our island Government or even of Scotland-is at issue, because that is a reserved matter for this House. No one has advanced any argument why it is necessary to impose the criminal law on Members of the Scottish Parliament, as a precondition of election. I want to test the proposition, because it seems strangely contradictory to the thrust of the Government's intentions on freedom of information, of which I am all in favour. We hear talk of the new politics of openness and the new dispensation in Scotland, yet the Official Secrets Act is being imposed without reasoned thought. Why is it necessary? Is it because a Minister may be too candid with the Parliament or because the Scottish people are not sufficiently grown up to participate in the debates that form public policy on non-reserved matters? To take a very sensitive issue, if someone were to come into possession of a piece of information about Dounreay that could touch deeply, or even lethally, the lives of UK citizens resident in Scotland, disclosure would be a criminal offence. How can we have a fully informed, proper public debate without the availability of, and access to, information? The Government agree with me, to the extent that they published one of the most extraordinary White Papers that the country has ever seen: "Your Right to Know". The Prime Minister, no less, wrote a foreword saying how important it was. The original draft of the Bill was in that spirit, inasmuch as it did not extend the use of the Official Secrets Act by what I will argue is the very wicked device of including it here rather than amending the primary legislation. Why was it necessary to introduce a provision that has at no stage of the process been drawn to the attention of the Scottish people, in the name of whom the Government claim authority for the legislation? We have not heard any reasoned arguments. The Minister has merely said that matters of confidentiality require a criminal offence, but that is not borne out when we consider the scope, authority and ability of the Scottish Parliament to make law on matters that do not touch on the security of the state. We may prevent proper consideration, with a full, mature adult population participating in public policy. How can we make informed judgments without a flow of information? I believe our system of government—our constitution and the ways of its workings—to be profoundly good, but one of its sins is that it has for most of this century been dependent on the most extraordinary tool of repression of freedom of discussion: our legacy of section 2 of the Official Secrets Acts 1911 and 1920. That is what is at issue. The new politics that the Labour party espoused so bravely on day one seems to have withered on the vine, as we still have no freedom of information Bill, despite many promises. I thought that, in that open climate, Scotland would be relieved of something that inhibits informed public debate. It is often said that Governments do not mind freedom of expression, because by and large our prejudices are simply not informed, but that they fear equality of information, because that allows people to argue on an equal basis about the right course of action. I believe that the measure is wholly inappropriate, as does my hon. Friend the Member for Rochford and Southend, East. Unfortunately, he could not be here today, but he asked me, as we are both true-born Scots, to express that view on his behalf.

Henry McLeish (Labour, Central Fife)

I acknowledge the expertise and interest of the hon. Member for Aldridge-Brownhills (Mr. Shepherd) in these matters. My arguments are not so sophisticated. We want consistency, so that our access to the Official Secrets Act is consistent with that of Westminster Ministers. I believe that that is right. That is my core point, although I acknowledge that there is a wider argument about why others might construe that as stifling proper dialogue with the public and as preventing what I believe that the hon. Gentleman described as a mature debate in Government. As the hon. Gentleman said, we are a Government who believe in freedom of information, even if we have not got as far as he would like. I hope that the new Scottish Parliament will enter into that spirit and, more important, participate in the development of freedom of information.

John Home Robertson (Labour, East Lothian)

Both my hon. Friend the Minister and I have an interest in these matters, because we both hope to be elected to the Scottish Parliament. I am worried by the point that the hon. Member for Aldridge-Brownhills (Mr. Shepherd) made: he painted a scenario in which, if I were to table a question to my hon. Friend in the Scottish Parliament, he could be prosecuted for giving me an answer. That is a terrifying thought. It would be useful if my hon. Friend could clarify the point, because I am sure that that is not the intention.

Henry McLeish (Labour, Central Fife)

In my judgment, the system works for the Westminster Parliament. We want to take that set of conditions and apply it at Holyrood. Because of a wider range of issues with which he is concerned, the hon. Member for Aldridge-Brownhills does not think that we should do that. I have argued simply from the premise of consistency. Scottish Ministers may become aware of matters covered by the Official Secrets Act. Making such Ministers Crown servants gives them the protection of section 7 of that Act, which can be invoked if the disclosure is made in accordance with their official duties. I believe that our proposal is simple and straightforward, providing consistency and good government and giving us the necessary basis for debate on some sensitive issues.

Norman Godman (Labour, Greenock and Inverclyde)

I have great respect for the hon. Member for Aldridge-Brownhills (Mr. Shepherd) and his expertise in these matters, but I think that he is being too alarmist. Will my hon. Friend the Minister confirm that Back-Bench Committees in the Edinburgh Parliament will have the right of access to material when they cross-examine Ministers on policy and other matters?

Henry McLeish (Labour, Central Fife)

In the spirit of my original explanation, that will be the case. We are talking about a Parliament that will make real laws and scrutinise the Executive on real live issues. We should not create a pretence that the Scottish Parliament will be any less stringent or intense in scrutiny than we are at Westminster. We should keep matters in perspective. There is nothing terribly sinister in what we are attempting to do at Holyrood in comparison with what happens at Westminster. My speaking notes could fill volumes of Hansard, but I would rather provide the hon. Member for Aldridge-Brownhills with a detailed written response in which I can set out the full background. I have tried to cover the substance of his point this evening.

Liam Fox (Conservative, Woodspring)

I am not sure whether the Minister intends to return to amendment No. 53. In case he does not, I should not let the moment pass. He has told us about the change that is being made, but why did the Government choose to include in the Bill the provision that a Minister of the Crown cannot serve in the Scottish Executive?

Henry McLeish (Labour, Central Fife)

I was going to return to that point, but I wanted first briefly to respond to the hon. Member for Aldridge-Brownhills. The hon. Member for Woodspring (Dr. Fox) has raised what might be called the Welsh factor, although this is a Scottish debate. There is no mystery in why we have acted as we have. We are dealing with the devolution of primary legislation to Scotland, and we simply cannot have Ministers who are both members of the Scottish Executive and Ministers of the Crown at Westminster. The Welsh Assembly will be responsible not for primary legislation, but for subordinate legislation, and that distinction is important. Once the Holyrood Parliament is set up, the Scottish Executive and Members of the Scottish Parliament will get on immediately with their business. In Wales, I expect there to be a considerable amount of liaison during the first few months of the Assembly. I do not want to stray on to Welsh business, but it may be that Ministers at Westminster may also populate the Welsh Assembly in some capacity.

Tam Dalyell (Labour, Linlithgow)

The Minister says that the Scottish Parliament must get on quickly with its business. If there are to be Committees, they must be serviced, and they must be serviced by skilled people. What arrangements have been made to provide skilled assistance? The skills required are somewhat rare, as the activity is a specialist one. Has the provision been thought through?

Henry McLeish (Labour, Central Fife)

There has been an enormous amount of discussion about that point. We are setting up a Parliament and specialist Committees, which will, for the first time, combine legislative and scrutinising functions, and we know the level of expertise required. Work is being done with the consultative steering group, and we are recruiting staff. I shall write to my hon. Friend to detail what has been done to tackle his specific point.

Nigel Evans (Conservative, Ribble Valley)

I have no doubt that the Scottish Parliament will want to get on with business, as will the Welsh Assembly. The amendment is right, and we wanted it all along. If devolution is to mean anything, it is inconceivable that a Minister in the Scottish Parliament could also be a Minister at Westminster. Collective responsibility means that that could not work, as devolution would not function properly. Does the Minister, for the sake of consistency, accept the principle of amendment No. 53, which is that to have a two-jobbing Minister at Westminster and at either the Scottish Parliament or the Welsh Assembly simply would not work?

Henry McLeish (Labour, Central Fife)

The final stages of the Scotland Bill are no forum for discussion of the Welsh Assembly. We are responding to the situation in Scotland. The amendment is straightforward, and it is important. It would not be wise for me to comment on other Bills, or on an Assembly with which I have no involvement.

Norman Godman (Labour, Greenock and Inverclyde)

My question is prompted by the question of my hon. Friend the Member for Linlithgow Mr. Dalyell). Specialist advisers are important, and provision must be addressed. As one who will not sit in the Scottish Parliament, may I say that many new Members will have none of the experience of cross-examining Ministers that most Members at Westminster gain through the Select Committee system? I hope that some attention will be given to the guidance of new MSPs.

Henry McLeish (Labour, Central Fife)

The new Parliament will contain a smattering of experience, but my hon. Friend has a point. We will embark on training relating to the nuts and bolts of Parliament and the whys and wherefores of Committee work. The consultative steering group has set up expert panels on technology, procedures and the media, and some of the most distinguished people in the country serve on those panels. We have not simply waited for the Parliament to be established. We have made a serious attempt to build up to the point at which Members who are elected can get quickly on to business and have the expertise at their disposal to do so properly and effectively.

Richard Shepherd (Conservative, Aldridge-Brownhills)

I want to clarify one point. To whom will a civil servant in Scotland owe his or her first duty of allegiance? Will it be to the Secretary of State, who sits in the Westminster Parliament?

Henry McLeish (Labour, Central Fife)

The civil service is a unified service, but the first call on civil servants in Scotland will be from the First Minister.

Richard Shepherd (Conservative, Aldridge-Brownhills)

indicated dissent.

Henry McLeish (Labour, Central Fife)

If I misunderstood the hon. Gentleman's question, I apologise.

Richard Shepherd (Conservative, Aldridge-Brownhills)

With whom does a civil servant's first duty lie? The Minister says that the first duty in Scotland is to the Scottish Minister. However, Crown civil servants within a unified service clearly owe a duty to the Crown at present, through the Secretary of State for Scotland, in the United Kingdom Parliament. Who will be their master?

Henry McLeish (Labour, Central Fife)

Clearly, the civil service will remain a unified service, but civil servants working in Scotland will work through the First Minister to the Crown. They will swear allegiance in the same way as Ministers at Westminster. The process is not complex.

APPOINTMENT AND REMOVAL OF JUDGES

Donald Dewar (Labour, Glasgow Anniesland)

I beg to move, That this House agrees with the Lords in the said amendment.

Donald Dewar (Labour, Glasgow Anniesland)

I ask the House to agree to Lords amendments Nos. 125 to 127, but to disagree to amendments Nos. 128 and 129, to which there are amendments in lieu. Amendment No. 125 has been much discussed at various times. It is odd that it has caused so much excitement. One would get the impression that we were in the habit of knocking down judges as if they were ninepins. In fact, I know of no attempt, at least in modern times, to remove a judge from office in Scotland. There have been occasional cases of resignation as a result of difficulties or special circumstances, but no attempt has been made to force out a judge. I do not expect that it will be a common occurrence in future, either. Indeed, so uncommon is the occurrence that, in drafting the Bill, the matter emerged as a gap in the law of Scotland. There is no provision for sacking a judge in Scotland; no one thought it necessary to have such a provision because no one had ever wanted to do such a thing. Perhaps that is a tremendous tribute to the quality of our judges; I say that in an even tone. There is a distinction between judges and their more fallible brethren on the shrieval bench because there is machinery for the removal of a sheriff. In my long memory, which is now very long, I can think of two occasions on which that machinery was implemented. On both occasions, for very different reasons, the gentleman concerned left the bench. For judges, the matter has not come up and it has never been felt that there was a great need to deal with the issue. If it has caused much trouble, it is a rod that we made for our own back by trying to fill the gap in the interests of completeness. I stress that, while I regard it as important that we get it right, I regard it as likely to remain—I hope that no one misunderstands me—a somewhat academic exercise. The Bill was amended in another place to provide for a tribunal composed exclusively of senior judges, with membership restricted to Lords of Appeal in Ordinary and holders of high judicial office who were either Members of another place or Privy Councillors. It was proposed that those persons should be given the task of reporting the case for removing a judge and so acting, to use a term of art, as gatekeeper to the whole process. That was suggested because it was felt that the proposition in the Bill was not entirely satisfactory. The Bill simply proposed that a judge could be removed on a vote of the Scottish Parliament with a two-thirds majority, not of those voting but of the entire Parliament. That was meant to be an important safeguard, because it would be unlikely, particularly given the voting system that we have introduced, that one could succeed in removing a judge without putting together a coalition that covered several parties.

Tam Dalyell (Labour, Linlithgow)

Has the Secretary of State consulted the Lord President of the Court of Session and the Lord Justice Clerk about safeguards? It would be of great importance if they have said that they are satisfied with the safeguards. What is their attitude?

Donald Dewar (Labour, Glasgow Anniesland)

Before the amendments were tabled, there was discussion with the Lord President, Lord Rodger, and I understand that he was satisfied with our proposals, as the Opposition appeared to be when we outlined our intentions on Third Reading in another place. We are well equipped with support in this instance. I found some of the arguments prayed in aid of the amendments moved in another place a little excitable. I say that with respect to a close personal friend of mine for whose intellectual capacity I have great respect. I refer to Lord McCluskey who, to put it in lay language, got the bit between the teeth to some effect. I was entertained to discover that the proposal for removal on a two thirds majority of the Parliament was a constitutional monstrosity … the greatest threat to the independence of the Scottish judiciary since the eighteenth century", and a threat to democracy itself. I felt quite important because I did not realise that I was a constitutional Genghis Khan, dealing death and destruction all around. I was pleased to discover that Lord McCluskey rightly emphasised having everyone equal before the law and said magisterially—or, indeed, judicially, in manner at least—that that principle applies to Donald Dewar, the Earl of Elgin, and the Governor of the Bank of Scotland. That was odd company in which to find myself. I mock Lord McCluskey gently because I have great respect for him and realise that he had a genuine concern. Some of the arguments pushed the boat out a little far. He said: if the judges are not independent, if they can be sacked by the Government when the Government doesn't like the way they are deciding cases, the courts quickly degenerate into becoming tools of the executive, and democracy is dealt a fatal blow. I hope to reassure him that, whatever the nuances of the argument, and however the balance should fall, no one who has been engaged in it imagined that we would be dealing with a situation where the Government would sack someone because they did not like the way in which that person was deciding cases. Of course, that would be a very serious matter indeed. I do not think that that would have arisen, but he is entitled to say that we must deal with the worst case scenario and that if we are to fill this lacuna in the law, we should do it adequately and with care. I am happy to endorse that.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The Government's amendment (c) states: Provision shall be made for a tribunal". It is not clear whether such provision will be made ad hoc in response to a particular issue arising in respect of a particular judge or whether it is general. Will such provision be made soon so that it is in existence to deal with circumstances as they may arise?

Donald Dewar (Labour, Glasgow Anniesland)

Our proposition is that we should broadly follow the procedure for removal of a sheriff. There should be a gatekeeper.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Perhaps the fault is mine for not putting my point sufficiently clearly. I do not understand whether the provision will be made only if a particular case arises or whether it will be made generally so that it is always available to deal with circumstances that may never arise.

Donald Dewar (Labour, Glasgow Anniesland)

That is an interesting point on which I shall no doubt get some advice. My view is that it will only arise when there is a need. I presume that the tribunal will not be a standing body. If it is, I might apply for the secretary's job, which I hope would carry suitable remuneration while being lightly worked. It would be the last sinecure, going back to Lord McCluskey's 18th century.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am pleased to make provision for the Secretary of State's retirement and future employment but I think that we are dealing with rules for the composition of a tribunal rather than setting up a tribunal. I am seeking to discover, so far unsuccessfully, whether the tribunal and rules will be set up to deal with a particular case or whether, early in the lifetime of the Parliament, general provision will be made to deal with a case that may or may not arise.

Donald Dewar (Labour, Glasgow Anniesland)

May I say with beguiling honesty that I understood the right hon. and learned Gentleman's point perfectly but did not know the answer to it. I have been rescued from that predicament and I understand that the intention is that a tribunal can be set up as cases arise. It is not necessary to set up a standing body because we anticipate that it would be used rarely, if at all. There is no need to have it in permanent limbo, waiting for a client who never comes.

Dominic Grieve (Conservative, Beaconsfield)

In the amendment from the other place, the tribunal's form and structure are clear because they are defined. The Government's amendment is more nebulous and leaves much more room for interpretation. It is on that point that the Opposition seek clarification because the tribunal's composition is crucial.

Donald Dewar (Labour, Glasgow Anniesland)

On that point, I have to disagree with the hon. Gentleman. As we are running towards the end of the Bill, I should say that I am delighted to see him yet again in his place. As an expatriate, he has stayed the pace remarkably well and given me much entertainment in recent months—and not many Conservatives do that.

Liam Fox (Conservative, Woodspring)

Will the right hon. Gentleman give way?

Donald Dewar (Labour, Glasgow Anniesland)

No—let me answer the hon. Member for Beaconsfield (Mr. Grieve), because he has raised a serious point. We intend to stipulate the qualifications of the chairman, but we are not attempting to stipulate the entire membership of the panel—the individual members who may be called to their posts many years hence. Clearly, I assume that the panel will carry credibility, comprising people of expertise and standing—the sort of people who can offer genuine advice about a difficulty that has arisen in respect of judges of the Court of Session and the chairman of the Scottish Land Court, who has the same status as a judge. I do not think that we should try, in an ad hoc body, to stipulate a curriculum vitae that must be met, or a definition that has to be honoured. To allow a degree of flexibility makes sense.

The rest of the debate is in Hansard.