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Lord Renton: Having listened very carefully to what the noble Lord has said, I wonder whether he can clarify his argument by giving us a single example of any devolved or regional government anywhere in the world in which a minister of the central government was also a minister of the devolved or regional government. Is there the slightest precedent anywhere?

Lord Sewel: If my memory serves me correctly, there have been cases in the French regions where people-- I do not know whether the term "minister" is used, but I believe so--where ministers have been used while serving as ministers in the central government. I am not absolutely certain on that, and I shall try to make that clear and shall write to the noble Lord.

Lord Renton: With the greatest respect, in France, which I heard the noble Lord mention, the only example that one can find is not really this example. There has been more than one case of a Prime Minister of France having been the mayor of one of the cities, but that is quite different.

Lord Mackay of Ardbrecknish: My noble friend Lord Renton is right. The only merit in the noble and learned Lord's answer is that he at least tried to cover the total inadequacy of the answer with some amusement and in that way hoped to divert the Committee's attention from the total vacuum at the centre of the ministerial argument.

I think that the Minister failed to convince any Member of the Committee. I suspect that he even failed to convince himself. My noble and learned friend Lord Mackay of Drumadoon said that in 25 years I should probably have to be called from the grave. I thought that that was rather unkind, especially with the excellent example of my noble friend Lord Renton who at this deep hour of the night, at long past 85 years, is still here and asking penetrating questions. Frankly, on this amendment my noble friend may agree that he did not have to be very penetrating to get through the Government's guard.

That was perhaps the Minister's poorest argument. When he awakens in the morning he might reflect on his worst argument in the Bill. I suspect that this is it. If he and his officials cannot conjure up a better argument than that, they had better bring forward an amendment of their own at Report stage to ensure that we cannot have this double ministerial office. If they do not do so, I shall return to the matter at a time of day when I might have a better chance of winning. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 255DA not moved.]

Clause 41 agreed to.

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Clause 42 [The First Minister]:

Lord Mackay of Drumadoon moved Amendment No. 255E:


Page 19, line 15, at end insert ("or persons").

The noble and learned Lord said: Amendments Nos. 255E and 255F are two small amendments to Clause 42. They deal with the situation where there is a vacancy in the office of first minister. Subsection (4) provides that in such situations the functions exercisable by him shall be exercisable by a person designated by the presiding officer.

Such a situation could arise after the parliament had been dissolved and voters and potential members were awaiting the next general election. It could arise where parliament for whatever reason had failed to agree on a first minister and an extraordinary general election required to be called. In circumstances far less remote than those we have been discussing, it might be desirable to have more than one person involved in the discharge of the first minister's duties. For example, if the only way in which an administration could be formed were by some form of coalition, the presiding officer might take the view that it would be sensible to involve members of political parties who were standing for election to the parliament as the persons who should discharge these functions.

I hope that this will be accepted as a constructive suggestion. I beg to move.

Lord Hardie: I accept that the intention underlying the amendment is constructive but I regret to say that I do not think that the amendments are appropriate.

With Amendment No. 255E, the noble and learned Lord is attempting to provide that the presiding officer is able to appoint more than one person to carry out the role of the first minister.

The provisions in Clause 42 are intended to ensure that there is always someone able to perform the functions of the first minister and act as head of the administration. In practice, it is expected that each first minister will hold office until replaced by a successor. But there could be circumstances where the post falls vacant, for example on the death of a first minister, or where the first minister is unable to act temporarily. In that situation the presiding officer is authorised to designate someone.

However, it is a single office and we think that it would be inappropriate to enable more than one person to be designated to perform the duties of that office. If more than one person were designated, two or more people would come within the category of first minister; and how would it be decided who would do what in these circumstances?

With Amendment No. 255F the noble Lords would introduce yet more inappropriate words into the Bill. It is already quite clear that the person designated to act as first minister would be doing so in the capacity of a caretaker. It is not necessary to require the presiding officer to specify how long such arrangements will be in place, nor, on purely practical grounds, would it be reasonable to require him to do so. In the case of illness

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it would not be known how long the first minister might be incapacitated, and accordingly it would not be appropriate to fix a determinate period.

With that explanation I urge the noble and learned Lord to withdraw the amendment.

Lord Mackay of Drumadoon: I am disappointed that my suggestion has not been accepted, but it is clearly not a matter of any great importance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 255F not moved.

Clause 42 agreed to.

Clause 43 [Choice of the First Minister]:

The Earl of Mar and Kellie moved Amendment No. 255G:


Page 19, line 24, leave out ("If") and insert ("When").

The noble Earl said: In speaking to this amendment I speak also to Amendment No. 255H. Amendment No. 255G is a drafting amendment. Its purpose is to sharpen up the language of the opening sentence of Clause 43, which deals with the choice of the first minister.

I contend that the word "when" is more appropriate than "if". The first sentence in Clause 43(1) gives the wrong impression. It is not a case of "if" in regard to the choice of a first minister after a general election, a death in office or some other event; it is a case of when one of these events has occurred.

Apart from the insertion of one other condition, that of mental ill health as in Amendment No. 255H, there are no other opportunities for a first minister to be chosen. The word "when" is therefore correct, that is, unless a first minister does not have to be chosen. I do not believe that that is an option open to the Scottish parliament.

The more substantive amendment, Amendment No. 255H, introduces a further example of when a first minister would have to be chosen. The amendment describes the situation where a first minister will stand down because of admission to hospital under the Mental Health (Scotland) Act 1984 or in the event of him or her becoming subject to a guardianship order or having a curator bonis appointed to supervise his or her affairs. These would clearly be very sad occurrences, but they could happen, for example after a bad road accident in which the injuries sustained rendered the first minister permanently and legally incapable.

There are two points to raise in this connection. The Mental Health Act 1983, an English Act, is not only a reserve matter within the Bill but the reservation ties members of the Scottish parliament and the presiding officer into Section 141 of that Act. How can this be? The Mental Health Act 1983 does not extend to Scotland. Surely a reservation should be made introducing an amendment to the Mental Health (Scotland) Act 1984. I hope that on Report the Government bring forward a suitable amendment to deal with that.

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My second point relates to the urgent need for a Scottish Bill to modernise and overhaul the legislation relating to incapable adults. I believe that this should feature in the first session of the Scottish parliament--it is that important. When that incapable adults' legislation is passed by the Scottish parliament, it will be necessary to approach the Westminster Parliament to update Section 141 of the Mental Health Act 1983.

I believe that this issue is in need of amendment and further thought. How can this English Act run with any credibility in Scotland? I beg to move.

The Earl of Balfour: Although it would be extremely tragic, the first minister could have an accident. Provision was made in the Government of Wales Bill in case the first minister became incapable of doing his job properly. I was under the impression that the noble Lord, Lord Williams of Mostyn, intended to make a similar provision in the Scotland Bill.

It would be tragic, but it could happen. Will the Minister consider that point, because the Scotland Bill makes no such provision?


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