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Lord Sempill: I strongly support this amendment, although I do that with some trepidation in the face of three noble Baronesses who obviously feel very strongly that the Government should not accept the amendment. I take on board their points of view.

However, I should like to bring us back to the whole issue of devolution and the Scotland Bill. Those points have obviously been raised by other Members of the Committee this evening. There are three clear issues in this debate: the first pertains to the legal aspects of abortion; the second to the health aspects; and the final one to the morals/ethics of abortion. I am sure that all Members of the Committee will agree that this Bill has stated clearly that both legal and health issues pertaining to Scotland will be devolved to Scotland.

That leaves us with only the third issue, which is the contentious issue; namely, the moral or ethical situation with regard to devolving this issue to Scotland. We should cast our minds back to this hour on Tuesday of last week, when we discussed another amendment. Unfortunately, many Members of the Committee were not present at that time. On that amendment the noble Lord, Lord Sewel, said:

Therefore, two of the issues are devolved matters.

I conclude by supporting the noble Lords, Lord Steel and Lord Alton. The ethical and moral issues must be put to this House on a free vote. I do not believe that the other two issues are up for discussion. The Bill states clearly that those matters are to be devolved to the Scottish parliament. Having said that, I repeat my support for the noble Lord, Lord Steel.

Lord Mackie of Benshie: I have grave doubts about the position of my noble friend Lord Steel. Those doubts are occasioned by one thing only; that is, the fact that the noble Lord, Lord Alton, supports the amendment. I have a strong feeling that he is adopting the Napoleonic approach of striking at the weakest link. He believes that

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if he can get a small unit, he can concentrate the forces of reaction in Scotland and have an effect on a small unit.

I assure the noble Baronesses opposite that the noble Lord does not have a chance. The Scottish people will resist his blandishments and they will vote with good sense as they believe. I support my noble friend Lord Steel.

The Earl of Balfour: There is one subject which we should seriously take into consideration; that is, that a person's circumstances in life, whether relatively well-off or poor, must never make a distinction in law.

I am satisfied in my own mind, after many years of research, that the abortion laws which we have at present in this country are correct and should stay that way. My concern is that if for argument's sake--let us say for the moment--Scotland decided to make it much more difficult to obtain an abortion, and changed the law to that effect, then wealthy people will cross the border to another country and have their abortions, but the poor people could not do that. That is one of the things that scares me. It is on that ground--namely, that there must never be a distinction--that I would rather stick with the Government of the United Kingdom.

Perhaps I may give the Committee one other example where I have felt for many years that the law can be extremely unfair. I have in mind planning laws. The Town and Country Planning Acts seem to allow one owner of a site to get away with putting up a building which any other person would not be allowed to do. Indeed, I have a good Scottish example for the Committee--the St. James's centre in Edinburgh. It is totally out of keeping with Princes Street, George Street or Queen Street. That is where the law has gone wrong. Therefore, as regards abortion in this Bill, I believe that it should remain a UK function. I shall support the Government tonight on that point.

Baroness Linklater of Butterstone: I rise to express my support for my noble friend Lord Steel on this most passionately, although in many respects I share the attitudes and beliefs of noble Baronesses opposite. It seems to me that the Government are being extraordinarily inconsistent in two particular respects. First, they are being inconsistent in what they choose to devolve and what they choose to reserve. They are apparently happy to devolve euthanasia while wishing to reserve abortion. There is a whole range of medical and health matters which the Government are happy to devolve, while they wish to retain a matter like abortion. That is totally illogical.

Secondly, the Government have said consistently throughout--and this was reiterated by the noble Lord, Lord Semphill--that on as many matters as possible the Scottish parliament, which is represented as a mature parliament, should be allowed to make decisions for itself. My noble friend Lord Steel has already shown how first class the health record and the standards of medical practice are in Scotland. I am a member of the Church of Scotland. I believe passionately in the sanctity of life, but I also believe in a woman's right to choose. That is what women believe in. However, I

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notice that there are not so many women on this side of the Committee rising to make the case. Indeed, the decisions which are made concerning abortion are invariably agonising, painful, difficult and never taken casually or lightly.

I trust the Scottish medical establishment in the way that it carries out its practices. What I hear from the other side of the Committee is a fear of what might happen; in other words, the fear that perhaps everything will become a little more reactionary. Like my noble friend Lord Mackie, I do not share those fears. Moreover, I believe that we are more likely to be a beacon of good practice to which the rest of the country can turn for examples. For that reason, I urge the Committee to support my noble friend Lord Steel in his amendment.

Baroness Carnegy of Lour: I should like to follow the noble Baroness on a slightly different tack. I do not know whether noble Lords or noble Baronesses have had anything to do with the local medical research ethics committees which exist all over the country. Indeed, we have them locally in Scotland, and I was chairman of one of them for a spell. It was a very interesting experience. We did not actually deal with embryology and assisted pregnancy issues, but we dealt with all other medical research ethic issues, many of which were closely related to the safety of women who were pregnant or who might be pregnant, and with research of different kinds. This matter is closely related to such issues. It is absolutely crucial that those decisions are taken locally. They are, of course, decisions of universities and health boards. That is a demonstration of the way these things are best done locally.

There is no question in my mind that if Scots women want to stand shoulder to shoulder with women in the rest of the United Kingdom, they will jolly well do so. They are not so chicken hearted that they will give into pressure if these great issues arise. The more local the decision-making, the better. There is a good deal to be said for what the noble Lord, Lord Steel, has recommended.

9.45 p.m.

Lord Desai: We are creating a devolved Scottish parliament; we are not creating separate citizenships across the United Kingdom. After a great struggle, and thanks to the noble Lord, Lord Steel, women in the United Kingdom have won their right as citizens of the United Kingdom to choose as regards abortion. I think this right cannot be compromised by single citizenship. Whether the Scottish parliament is more liberal or less liberal is not the point; any difference will lead to imbalance and misery. That is why I think we should oppose the amendment that is proposed.

Lord Monson: Before the noble Lord, Lord Desai, sits down, is he aware that not all citizens of the United Kingdom have a right to abortion? Those in Northern Ireland do not.

Lord Desai: Perhaps things will change soon.

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Lord Mackay of Ardbrecknish: We have had an interesting debate. A number of amendments are grouped with the amendment of the noble Lord, Lord Steel of Aikwood, which stand in my name. Amendment No. 215 is rather different from the others. I am not entirely sure how I allowed it to be grouped with the others. It is a simple amendment and is typical of the kind of probing we have been engaged in on this Bill, which is about devolution. I shall return to that in a minute. Some of the newcomers to the Committee stage ought to have attended the earlier debates to understand the principles behind devolution and the referendum which the Government won fairly resoundingly in Scotland last September.

Amendment No. 215 concerns welfare food. Section 5 on welfare food refers to,

    "Schemes made by regulations under section 13 of the Social Security Act 1988 (schemes for distribution of welfare foods)".

That matter is to be reserved. I find it hard to understand how something which clearly must be delivered at local level is not to be devolved. I hope that the Minister will explain why this issue has to be reserved and cannot be a responsibility of the Scottish parliament.

I now turn to the amendment in the name of the noble Lord, Lord Steel, my rather wider amendment which seeks to remove the whole of the head on health and medicines, Sections 1 to 4, and my amendment which specifically seeks to prevent xenotransplantation from being a reserved matter. My other amendment is concerned with euthanasia and related matters which it appears will be devolved to the Scottish parliament.

My noble friend Lord Sempill tried quite successfully to explain to the noble Baronesses who are new to our debate the key arguments on devolution. We welcome the noble Baronesses to the debate, although it would have been interesting to hear their views on other issues. This is not just a question of whether one is for or against abortion. This is a discussion about a serious, grown-up Scottish parliament which will be asked to take serious decisions.

The noble Lord, Lord Sewel, has tried on a number of occasions to explain why the Government have decided that some detailed matters have to be reserved and some have to be devolved. He has done it on the basis of what might be termed the wider field. He has taken as his starting point: if the wider field is a devolved field, and if other matters which may be reserved but are minor fall into the wider devolved field, then that is a reason for devolving them, and vice versa.

In this particular case there is no such argument. Both the main heads that lead to the law on this matter are devolved. Health matters are devolved, and there is a clear argument that if we are to have devolved government they should be devolved. Nobody disagrees with that proposition. The criminal law in Scotland is being devolved; the Scottish parliament is to pass primary legislation. Those are the two fields within which abortion legislation falls: it is a health matter, and it is a legal matter. Both of those wider fields are devolved. I cannot therefore for the life of me understand why abortion is not also a devolved matter.

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It is harder to understand when one examines the new section that I have tabled on euthanasia. It is not just a question of euthanasia, which is somebody deliberately and in full possession of his or her faculties saying that at a certain stage he or she would like a doctor to hasten their death, but also the difficult issues of the withholding or refusal of medical treatment and healthcare to people who can no longer make those judgments for themselves; for example, in the case of a youngster possibly caught in a motorbike accident and totally comatose, whether or not it is right to switch off the life support systems, whether the parents are capable of making such decisions. I cannot think of any more life or death matters than these, and they are to be devolved to the Scottish parliament. If they are to be devolved, why not abortion? Conversely, if not abortion, then why not the matters that I have included in my new Section 6 on euthanasia. The three noble Baronesses who spoke so eloquently on this subject will have to do some defending to explain the illogicality in their position.

We have been told that we cannot have different laws north and south of the Border, and I shall turn to that issue. It has already been pointed out that we have different laws between the north of Ireland and the rest of the UK. I look forward to seeing the noble Baronesses, Lady Gould, Lady Kennedy and Lady Young--two of whom seem to have departed the scene--table an amendment to the Northern Ireland Bill when it reaches this place stating that abortion should be reserved to the United Kingdom Parliament. We need some logic and consistency in this matter.

Scotland is a different country. It has different laws, which it has vigorously defended for over 300 years. It has a different moral background. The Church of Scotland is a nationwide church and is part and parcel of the fabric of Scottish society. In addition, it has the Roman Catholic Church. It is different from England, where, in addition to the Roman Catholic denomination, the Christian religion is represented by the Church of England and the Methodists. Scotland has a different moral tradition, which I believe is every bit as good as that in England and Wales. I say to the three noble Baronesses, who I gather do not currently live in Scotland, although two come from Scotland, that we are perfectly capable of arriving at proper moral judgments on these issues. Frankly, if it helps the noble Baronesses, if I have to decide between the former Leader of the Liberal Party and his former Chief Whip, I shall decide more readily with the former Leader of the Liberal Party on this issue. These are matters which we in Scotland ought to be able to decide for ourselves.

The last time this matter was debated in this Chamber was on 4th May 1978. The position then was that the government wanted abortion devolved. It was quite straightforward. The noble Lord, Lord Kirkhill, who was the government Minister at the time, made a speech defending the position that it should be devolved. I wish to quote a few of his remarks. They are as pertinent today as they were when he spoke. The noble Lord turned to the arguments against devolving,

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    "first to the undesirability of having different legal provisions on either side of the Border, and, secondly to the prospect of an undesirable cross-Border traffic of those seeking easier abortions".

He went on to say:

    "In the Government's view, this is what legislative devolution is all about. It would surely be a nonsense to exclude from devolution a field of law just because it raises a number of difficult issues.

    "It would, in my view, be insulting to suggest that the elected representatives of Scotland would not be responsible enough to deal with these issues and that they would fail to give proper weight to the feelings of the people of Scotland".--[Official Report, 4/5/78; col. 481.]

I have to say, in response to one of my noble friends who wanted the opposite done, that I think the noble Lord, Lord Kirkhill, was right on that day. The Scottish parliament will be well aware of the problems of cross-border traffic, if it has significantly different laws. Why should it not be allowed--I use the word "allowed" intentionally--to make those decisions? I have been accused on a number of occasions from the Government Benches of wanting to tie the Scottish parliament to Westminster. I am turning the tables on the Government now. On this issue, they do want to. The reason they want to is because it is a difficult issue. I shall come to good proof of the fact that it is difficult in a moment.

I do not believe necessarily that Scotland would--as the noble Baronesses seemed to fear--go headlong down a road led by the noble Lord, Lord Alton. I believe that the opposite is the case because the Church of Scotland is firmly on the side portrayed by the noble Lord, Lord Steel, on the abortion issue. I find that I am in unusual company. I received a letter from Cardinal Winning. Some noble Lords will be interested to hear that it ended, "with every good wish". The cardinal does not normally give me every good wish after I have crossed swords with him on a certain issue. However, on this matter I believe that if he wants to lobby the Scottish parliament in favour of stricter abortion, he ought to be able to do so. Conversely, I believe that the majority of the people of Scotland who would want to lobby the other way have every right to do so.

There is another argument for returning this provision to the Commons, if that is what we do. I refer to the amazing performance in the House of Commons when the matter was discussed there. I know, having been a Member of the other place, that some Members there feel strongly about the issue and would not agree with their colleagues. In some ways, I cannot agree with the noble Lord, Lord Alton, about the way the Labour Party approaches the matter.

Many Members of the Labour Party from Scotland have consistently voted against the position held by the noble Lord, Lord Steel of Aikwood. I have little doubt that many of those would have preferred to vote to send the issue to the Scottish parliament, but they were whipped into the Government Lobbies. After they had emerged from the Government Lobbies and studied the Division list, they noticed that the honourable Member, Dennis Canavan, was not in the Government Lobby. That is a normal position for Dennis at the moment; he is carrying the torch of true old Labour in Scotland on a number of issues. In the case of students, for example, he happens to be right. What intrigued him more than

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anything else was that two Government Whips were in the anti-Government Lobby. When people said: "It was a whipped vote. Why were two Government Whips in the anti-Government Lobby?", the reply was: "Well, it was not a whipped vote, it was a free vote, but we did not bother to tell you, we only told the Whips". That is deviousness of a high order. If it is not true, I would be interested to know what is the truth. There are a few Labour MPs from Scotland who think it is true and believe that they were whipped into the Government Lobby and were not given a free vote. I suspect that they ought to be given a free vote.

The important point on the issue is what we want a Scottish parliament to do, and how much trust--that is the point--we should put in it. Those who have parachuted into our debate for a few minutes do not know what the flavour of the debates has been, the flavour of the Government's case, especially when it comes to attacking the Conservative Party, which has historically been in favour of one United Kingdom. The noble Baronesses, Lady Gould, Lady Kennedy and Lady Young, are taking up the traditional position of the Conservative Party on the issue that we do far better to have things decided on a UK basis. However, I must tell them that even the Conservative Party has left that ground because the election results determined that and then the referendum clearly spoke for the people of Scotland. They wanted a devolved parliament with responsibilities. Those responsibilities cannot be picked and chosen depending on whether one believes they will go one way or the other when it comes to the issue.

I leave the Committee with the words of none other than the noble Lord, Lord Sewel, on 21st July last. He was responding to my noble and learned friend Lord Mackay of Drumadoon and said:

    "The noble and learned Lord expressed fears about legislation being enacted in Scotland which would not be passed at Westminster"--

shades of this evening--

    "But that is one reason why we are establishing a Scottish parliament, so that it can actually develop Scottish solutions to Scottish problems, not following Westminster all the time and not being bound by how Westminster wishes to legislate. Again, that is the underlying philosophy and basis of the devolved settlement".--[Official Report, 21/7/98; col. 789.]

I repeat to the Minister,

    "the underlying philosophy and basis of the devolved settlement".

I beg to move.

10 p.m.

Lord Sewel: I join the noble Lord, Lord Mackay of Ardbrecknish, in recognising not only the interest and value, but also the quality of this debate.

I fully recognise that there are strongly held views on the matter of whether or not abortion should be devolved. I realise also that there are strongly and sincerely held views on the issue of which way legislation on abortion should go. But as many Members of the Committee observed--some at the end of their speeches which dealt with the merits of abortion but nevertheless got there in the end--tonight we are not debating the rights or wrongs of abortion. We are not even debating whether, if it was devolved to a Scottish

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parliament, legislation would move in the direction of tightening up the grounds for abortion or making abortion more liberal. We are debating the perhaps narrower but crucially important point of whether it shall be devolved. In other words, we are debating the issue of the competence--the vires--of the Scottish parliament.

I have been asked on a number of occasions by the noble Lords, Lord Alton of Liverpool, Lord Sanderson of Bowden, and others to clarify whether or not those of us on the government side have a free vote. I make it absolutely clear that, for the Government, this vote is whipped for the basic and simple reason that we are not dealing with the merits of abortion; we are dealing with the competence and vires of the Scottish parliament. On that issue it is not appropriate to have a free vote. It would be appropriate to have a free vote if we were dealing with the merits of abortion.

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