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Lord Hardie: My Lords, in speaking to this amendment I shall speak also to Amendments Nos. 146B, 146C and 146E. These repeat amendments were tabled at Committee. I do not wish to repeat the detail of the debate which we had then. There would of course be attractions in provisions which enabled compliance by the Scottish ministers with international obligations to be enforced through the courts. But, as I explained previously, the domestic courts do not generally take cognisance of international obligations. That is why we have the limited powers of intervention in Clauses 33 and 54 for those international obligations which do not form part of our domestic law.

As noble Lords are aware, the Government regard these powers as essential back-stops; they are there as powers of last resort. One of the checks and balances on their use is the fact that the Secretary of State's use of the powers would be subject to judicial review. The question in the case of Clause 54(1) and (2) would be whether he had reasonable grounds for his belief that action is incompatible with an international obligation, or necessary to ensure compliance, or whether he otherwise acted unreasonably in making the order.

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As my noble friend explained earlier in connection with Amendment No. 146D, the order made by the Secretary of State must state his reasons for making it. It would be for the courts to judge whether that or any other evidence indicates that he has behaved unreasonably in making the order. They may well want to consider the nature of the international obligation concerned, but they would not be being asked to make a judgment about the compatibility of action by the Scottish ministers with the obligation.

Turning to Amendment No. 146C, I find it hard to see that a significant distinction of principle can be made between such a power for the Secretary of State to direct the Scottish executive to take action and that in Clause 54(2) which allows him to step in and take the action himself. It still seems to us that the second approach is more consistent with the devolution of responsibility to the Scottish ministers. I would argue also that it would be more conducive to agreement.

While we are considering Clause 54, I should take the opportunity to put on record my response to a point which the noble and learned Lord, Lord Fraser of Carmyllie, raised in correspondence with me during the Recess. The point was whether Clause 54(1) and (2) would enable the Secretary of State to direct the Lord Advocate to take, or not to take, action in his role in relation to prosecutions and fatal accident inquiries.

As noble Lords will be aware, the Bill contains a number of provisions which are designed to maintain the independence of the Lord Advocate as the public prosecutor and head of the system of deaths investigation in Scotland. In particular, Clause 45(2) provides that any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person.

There is no express provision about the relationship between this clause and Clause 54. However, it is certainly not the intention behind Clause 54 to compromise the independence of the Lord Advocate in either of those roles. Indeed, we do not consider that it could ever be appropriate for the Secretary of State to use his powers of intervention in that way.

I trust that your Lordships will agree that in the light of those explanations, the powers of the Secretary of State under Clause 54 are entirely appropriate.

Amendment No. 146E seeks to protect members of the executive from being subject to orders for specific performance. I would remind your Lordships that Scottish ministers will be part of the Crown and will be protected by the provisions of the Crown Proceedings Act 1947, which at present ensures that the Crown cannot be subject to such orders. Instead, all that the courts can do is to issue a declarator. Therefore, in our view, the amendment is not necessary.

Lord Mackay of Drumadoon: My Lords, inevitably, perhaps, when we return to issues which were debated before, the views expressed on previous occasions no more persuade one side than they do the other. I take the point about Amendment No. 146E, but as regards the other amendments, I seek to test the opinion of the House.

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11.27 p.m.

On Question, Whether the said amendment (No. 146A) shall be agreed to?

Their Lordships divided: Contents, 21; Not-Contents, 69.

Division No. 4

CONTENTS

Annaly, L.
Attlee, E.
Blatch, B.
Byford, B.
Chesham, L.
Courtown, E. [Teller.]
Cranborne, V.
Dixon-Smith, L.
Ellenborough, L.
Fraser of Carmyllie, L.
Henley, L.
HolmPatrick, L.
Kingsland, L.
Kintore, E.
Mackay of Ardbrecknish, L.
Mackay of Drumadoon, L.
Montrose, D.
Northesk, E.
Rowallan, L.
Selkirk of Douglas, L.
Strathclyde, L. [Teller.]

NOT-CONTENTS

Acton, L.
Ahmed, L.
Alli, L.
Amos, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Burlison, L.
Carlisle, E.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Chandos, V.
Clarke of Hampstead, L.
Cocks of Hartcliffe, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Donoughue, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Gordon of Strathblane, L.
Goudie, B.
Graham of Edmonton, L.
Grenfell, L.
Hardie, L.
Hardy of Wath, L.
Harris of Haringey, L.
Hogg of Cumbernauld, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Islwyn, L.
Jay of Paddington, B. [Lord Privy Seal.]
Judd, L.
Kennedy of The Shaws, B.
Lockwood, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller.]
Mackenzie of Framwellgate, L.
Mackie of Benshie, L.
Mar and Kellie, E.
Monkswell, L.
Monson, L.
Nicol, B.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Puttnam, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Sawyer, L.
Sewel, L.
Simon, V.
Smith of Gilmorehill, B.
Steel of Aikwood, L.
Symons of Vernham Dean, B.
Thurso, V.
Tomlinson, L.
Tordoff, L.
Turner of Camden, B.
Uddin, B.
Whitty, L.
Winston, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

28 Oct 1998 : Column 2045

11.35 p.m.

[Amendments Nos. 146B to 146E not moved.]

Clause 60 [Scottish Consolidated Fund]:

Lord Dixon-Smith moved Amendment No. 147:


Page 26, line 9, at end insert--
("( ) When making payments under subsection (2), the Secretary of State shall, in order to determine the relationship between the annual total of payments made into the Scottish Consolidated Fund

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and the annual total of payments made in England to provide the equivalent services, have regard to the Revenue Support Grant formula in force for the time being to determine Government funding for individual local authorities in England.").

The noble Lord said: My Lords, when the House debated Clause 60 I was in company with a number of other noble Lords who had some concerns about this particular clause and the future of the funding of the Scottish parliament and how it was to be dealt with by the English Parliament. The Minister can feel quite pleased that his advocacy has clearly persuaded everybody else that the debate is not worth continuing, but I regret to say that nothing that he said at Committee stage has eliminated my concern.

It is worth reminding ourselves of what we are talking about. We are not talking about the Barnett formula, which is a method for distributing increases or decreases in government expenditure to Scotland. It is as simple as that. But it is worth reminding ourselves of one point and that is that the noble Lord, Lord Barnett, when he introduced that formula, was of the view that over time it would lead to expenditure in Scotland converging with expenditure in England.

The noble Lord, Lord Lang of Monkton, showed why that has not happened. He is a former Secretary of State for Scotland. He quite clearly indicated the success of a series of former Secretaries of State in their negotiations both in Cabinet and with the Treasury on behalf of Scotland. As a result of their work expenditure in Scotland continued to diverge from the average for the United Kingdom. In fact, the divergence is widening.

That leaves me with a question in the back of my mind as to what the Scottish block is and what is to happen to it in future. Is it to be the block as we see it today, simply uprated for inflation? If it is not to be that, how are changes to it to be arrived at? The Bill is singularly quiet on the subject. It is simply not satisfactory that this matter should be set in stone. For instance, how are we to deal with the consequences of either demographic or economic change, particularly, as has been mooted by my noble friend Lord Mackay of Ardbrecknish on the Front Bench, as there is a possibility of there not being a Secretary of State for Scotland?

In Clause 60 the Bill states that the Secretary of State will, from time to time, make payments to the Scottish Consolidated Fund. Presumably, if there is not a Secretary of State for Scotland the mechanism which will be on the face of the Bill will be invalid. There is then no mechanism to make payments. In his response I hope that the Minister will address that particular point.

But more than that, if there is a possibility that the Bill works in that way, does it place a constraint on the Prime Minister if, at some future point, he decides that the office of Secretary of State for Scotland is no longer appropriate and that the work can be passed on by a Minister of State, but he is constrained by the financial mechanism on the face of the Bill? We have heard so much caution from Government Ministers about getting things on the face of the Bill that might tie them down in the future.

28 Oct 1998 : Column 2047

We need to be much more open about this. For a Government who profess openness there is a singular lack of information. I cannot call it opacity because there is nothing to be opaque about: there is simply nothing. I do not find that satisfactory.

In Committee I proposed a fairly simple rudimentary formula which might have dealt with the way in which the Scottish grant might be calculated in the future. In rejecting it, the Minister made a perfectly valid point about the particular problem of the morbidity of the Scottish population. I defer to his expert knowledge of that. It is not something that I have taken to heart, although I have now taken to heart what the noble Lord said. So, I have looked for a more appropriate mechanism. More importantly, it is one that is already in use and accepted and approved by government--although I suppose it is only true to say that it is cordially disliked by those to whom it is applied. The revenue support grant formulae which are used to distribute government funds to local authorities are cordially disliked by all local authorities. That cordial dislike probably means that the formulae are fair!

When I asked to see the distribution formulae, I was offered a book well over an inch thick. I did not think it appropriate to introduce that at this hour so I have left it behind. However, as the Minister referred to morbidity, it is perhaps worth mentioning the sorts of factor that are involved in the revenue support grant calculations because the RSG bears closely on the demography of an area, taking into account the number of over-75s, pensioners and the disabled, as well as ethnic background, housing type and the number of single-parent families and educationally handicapped--and so on and so forth. It also covers matters such as miles of road, sparsity, drainage problems and sea defences. It is a widely used formula--and one that could usefully be used not to set the exact sum of the Scottish block but to determine the relationship between expenditure in Scotland and in England.

We shall have a big problem in this area in the future unless something is put on the face of the Bill. Governments in the future will have great difficulty in explaining how they are going to adjust the Scottish block--either to the other place where it will be of particular concern or to the Scottish parliament or to both. I suspect that it will be to both. It is in an attempt to reduce that problem that I have tabled this amendment. I beg to move.


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