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Baroness Carnegy of Lour: My Lords, I was one of the lay people who felt very strongly on this issue. The Government held their position so strongly right up to the vote and after saying that this House was wrong about the matter. That view was very mistaken. I believe that the people of Scotland will have cause to be very grateful to this House for bringing this matter so strongly to the Government's attention. The amendment changes somewhat the amendment tabled by this House, but for the better. I am extremely grateful to the Government for this notable U-turn.

Lord Mackay of Drumadoon: My Lords, since this Bill was first debated in your Lordships' House the important role the judiciary will play in implementing the Government's devolution settlement has been stressed on more than one occasion. Therefore, it is a matter of some surprise--I suspect also to a number of noble Lords it will be a matter of some regret--that at this very late stage there remains any dispute at all as to how the Bill may best provide for the appointment and removal of judges.

These ought to be non-political issues and yet, very late in the day, we are faced with a very welcome change of heart, as my noble friend Lady Carnegy of

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Lour has just said, on the part of the Government. The problem is that these amendments were tabled in another place recently. That left virtually very little time for those involved to digest them. More importantly, they have left no time at all for us to consult. When the amendments were debated in the other place recently, the Secretary of State said that it is not always wise to leap to a conclusion either way during the final few days of a Bill's passage through Parliament. Yet some noble Lords may take the view that that is precisely what is being expected today in more than one respect.

When the amendments standing in the name of the noble and learned Lord, Lord McCluskey, my own name and that of my noble friends Lord Mackay of Ardbrecknish and the noble and learned Lord, Lord Fraser of Carmyllie, were moved I made it clear that I was open to any suggestions to improve the composition of the tribunal and its role proposed in the amendment put forward and carried by your Lordships' House at Report stage. As the noble and learned Lord the Lord Advocate has made clear, that was also the position of the noble and learned Lord, Lord McCluskey.

Therefore, I have to record a note of disappointment that the Government did not find it possible to consult with the Opposition about the detail of these amendments before they were tabled. It was quite clearly indicated by the noble and learned Lord the Lord Advocate that there was consultation with the court and rightly so. But he will recall that at the very end of Third Reading when I raised this subject after the noble and learned Lord had made a statement, he said that amendments were to be tabled on the following day in the other place. Clearly, by that stage the practicalities of any proper consultation had passed.

As regards the details of the amendments, I would have preferred that the provision in (7D) set out at the foot of page 2 of the amendments should have been restricted to making provision by an Act of the Scottish parliament. I have some anxiety about that being made possible through subordinate legislation. As noble Lords will be aware, I am concerned that there are to be two forms of procedure for the removal of judges in Scotland whereas there is to be only one form of appointment. All Court of Session judges, the chairman of the Scottish Land Court, sheriff principals and sheriffs will have to deal with devolution issues. One suspects that in the early years of devolution it will be the lower sheriff courts where the bulk of the issues will first arise, however many ultimately reach the Judicial Committee. Therefore, it would have been helpful to have had the opportunity to comment on these amendments before they were tabled.

However, in the absence of the noble and learned Lord, Lord McCluskey, and some of his judicial colleagues, I suspect that I would be unable to persuade your Lordships to offer any further resistance. That would be inappropriate because the Government have moved a long way to meet the anxieties expressed at an early stage about Clause 89 of the Bill, as originally

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drafted. Therefore, I join with my noble friend Lady Carnegy of Lour in welcoming what has happened at this late stage.

Lord Clyde: My Lords, I am sorry that certain of my noble and learned colleagues who took a greater part in this debate than I are not here to express their views about it. Speaking for myself, I offer mild congratulations to the Government on producing a formula which appears to be a not unreasonable compromise between the views expressed. I am sorry that there is no time scale for the appointment of the body, but as I have every confidence that it will never have to meet and will never have problems to resolve--such is the confidence that I have in the Scottish judiciary--I am content with the formula as it stands.

Lord Hardie: My Lords, I am grateful to the noble and learned Lord, Lord Clyde, and to the noble Baroness, Lady Carnegy, for their support for this amendment. I say to the noble and learned Lord that there may be transitional provisions brought in by order to cover the unlikely eventuality of there being an immediate need for the provision. Thereafter the Scottish parliament will deal with the matter.

I agree with the noble and learned Lord, Lord Mackay of Drumadoon, that this is not a political issue. It is with regret that some may have interpreted his speech as political. The reason is that he is operating under a misunderstanding as to what the Government originally intended. Unfortunately, that misunderstanding was reflected in the media.

It is my fault if I did not make clear the position at an earlier stage. It has always been the Government's intention to put in place procedures. The sole issue was whether the matter should be left to the First Minister and the parliament in discussions with the Lord President, or whether it should be on the face of the Bill. We listened to that debate and we have come forward with this amendment.

As regards consultation, the senior judge, the Lord President--that is the noble and learned Lord, Lord Rodger of Earlsferry--was consulted before the amendment was tabled. With great respect, I believe it to be important that we carry the judiciary with us on such a matter. It is not a political matter and in those circumstances it is not necessary to discuss it with noble Lords opposite.

On Question, Motion agreed to.

6.30 p.m.

LORDS AMENDMENT

215

Schedule 1, page 57, line 5, after ("constituencies") insert ("of the Scottish Parliament").


The Commons disagreed to this amendment for the following reason--
215A

Because the constituencies and regions for the purpose of elections to the Scottish Parliament should be a matter for Parliament.

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MOTION MOVED ON CONSIDERATION OF COMMONS REASON

215B

That this House do insist on their Amendment No. 215, to which the Commons have disagreed for their reason numbered 215A.

Viscount Thurso: My Lords, I beg to move that the House do insist on their Amendment No. 215 to which the Commons have disagreed for their reason numbered 215A. For the convenience of your Lordships, I shall speak also to Amendments Nos. 216 to 220.

It is with a very heavy heart and considerable sorrow that I find myself here at the eleventh hour in the passage of this Bill asking your Lordships to insist on our amendment. I look back to the Second Reading of the Bill during what seemed a balmy summer and to the unalloyed joy I felt that the measure--that is, home rule for Scotland for which my forebears fought--should at last be coming to pass through the Scotland Bill. I now find it sad and extremely ironic that it is I who should be here to move the Motion.

I do not ask your Lordships to take this course lightly or without having thought about it considerably. I have indeed given great thought to the possible consequences. I am asking my noble friends and noble Lords from all sides of the House to support the Motion because I believe that the danger to the possible success--nay, the probable success; the almost certain success--of devolution by not accepting the amendment is far greater and graver than the danger to this Bill at this time.

I am aware that the arguments have been well rehearsed in your Lordships' House and in another place on a number of occasions. I wish to touch on them again. My first argument concerns the Scottish Constitutional Convention. It proposed 129 members of the Scottish parliament. That model was accepted both by the Liberal Democrats and the Labour Party and we both fought the election on that basis. We both had a manifesto commitment to that model and together we obtained an overwhelming mandate from the Scottish people.

However, the constitutional convention's proposal was already a compromise. The Liberal Democrats always favoured 145 as the number; it is the number advocated by the campaign for the Scottish parliament. I am indebted to members of that campaign for reminding me of that fact and for their considerable support since I indicated that I wished to insist.

Although we have always accepted that there should be a reduction in the number of Scottish Members to the Westminster Parliament as a logical consequence of devolution, the Labour Party at the time of the election did not accept that. Rather they came to the view at a much later date and when in office. It was only at that very late stage that Labour proposed a reduction in the number of Westminster MPs and simultaneously insisted that Scotland and Westminster constituencies should have coterminous borders. I believe that that is the only issue on which we disagree.

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Since Second Reading we have warned that we regard this as an extremely serious breach of the constitutional convention. At Second Reading, my noble friend Lord Steel of Aikwood made it quite plain that we regarded the issue as the most important in the Bill.

My second argument concerns the relationships between the various regions of Scotland. The constitutional convention argued long and hard about developing a system which sought as far as possible to satisfy the divergent views of the different Scottish regions. By and large, the model it proposed has successfully done that. There is real concern, particularly in the Highlands, that the supposed domination by Westminster will merely be replaced by a domination by Edinburgh. There is an equally valid concern in the central belt that hoards of tartan clad Highlanders will come down to dominate the Scottish parliament. The model put forward by the constitutional convention satisfies with delicacy the requirements of those two conflicting thoughts.

My third argument is a practical one regarding the working of the parliament. If in the beginning we need 129 members to make the Scottish parliament work, how can it continue to work when four years later its membership is reduced substantially to about 108? For example, if a government is to be elected on a 45/55 split of the vote, which is quite probable, with a membership of 108 the governing party will have 64 MSPs and the opposition 44. Out of those 64 must come the Scottish ministers, the assistant Scottish ministers, the private parliamentary secretaries, the chairmen of the committees and so forth. With pre-legislative scrutiny and all the work required for proper scrutiny in a unicameral system, will there really be enough people?

Those are my three main arguments, but I remind the House of three other arguments which are no less important. The noble Lord, Lord Rowallan, speaking on Report, drew attention to the fact that we are in the process of constructing a building designed and equipped for 129 MSPs. What a silly waste if four years later the number is reduced to 108 with a potential further reduction.

During the same debate, my noble friend Lord Mackie of Benshie queried the morale of those elected on the first occasion to the Scottish parliament. Who will be the unlucky 20-odd and who will be the lucky 108? The noble Lord, Lord Sewel, responded, not flippantly but a little ungraciously, by saying that we should not legislate for the Scottish parliament on the basis of the morale of a few Scottish MPs. I disagree. It is extremely important that if this new exercise in democracy is to be successful we attract and encourage the very best people in Scotland to stand and, it is hoped, to be elected for the parliament. With that Sword of Damocles hanging over them, is it an encouragement for the best people to enter parliament? The point on morale made by my noble friend is one of substance which the Government should regard seriously.

Finally, my noble friend Lady Linklater made a very valid point about the requirement to have diversity in the Scottish parliament--to have ethnic minorities and

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a broad selection of women. She made the point very eloquently that the more you reduce the numbers, the less likelihood there is of having in the parliament a broad reflection of all shades which exist in Scotland.

There is a further argument which I deployed. If devolution works, I see no reason why further reserved powers should not move to Scotland. In that case, it is quite logical to suppose, with a successful devolution working well, that one might say that Scotland does not need to be represented by quite so many MPs at Westminster. It is perfectly logical to argue that Scotland should have less representation. If that were to take place, then automatically, because of that linkage, down goes the Scottish parliament again.

However, I am extremely glad that I read the Official Report of another place because there I saw one point which had escaped me. If the Jenkins proposals were to come into being, which must be regarded as a possibility, if not perhaps by everybody as a probability, it is probable that the number of Scottish constituency members would drop to 48. On the basis of 48 constituency members, that gives a total Scottish parliament of 85 members. The Government may argue that there is absolutely no difference between 129 and 108, although I suspect that most accountants would argue with them about that. However, if they are looking at a potential reduction from 129 to 85--some 44 MSPs--that really is substantial and of consequence. That follows, as day follows night, if these amendments are not accepted and the Jenkins proposals come into being.

What arguments have the Government put against that? There are two, the first of which is that coterminous borders are vital to avoid confusion. I shall turn to the Official Report of another place. The Secretary of State for Scotland, responding to your Lordships' amendments said:


    "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 ... By contrast ... 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".--[Official Report, Commons, 11/11/98; col. 380.]
Earlier he said:


    "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".--[Official Report, Commons, 11/11/98; col. 378.]

Put another way, the Government are saying that the Scots are too stupid to be able to cope with anything other than coterminous boundaries. I simply do not believe that. The Scots are some of the wisest voters in the United Kingdom. They have taken tactical voting to heart. There are Liberals who vote for the SNP to prevent another candidate getting in. Conservatives may vote Liberal to keep out a Labour candidate or Liberals may vote Labour to keep out somebody else. The Scots are extremely wily and they have manipulated the system more astutely than has been done in any other part of the United Kingdom. Therefore, to suggest that

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those canny Scots cannot work out where the boundaries are, is an argument which is as riddled with holes as a colander.

The practical building blocks of constituencies are local government wards. There is no difficulty in arranging those wards so as to create constituencies for Scotland which allow the numbers to be maintained at the proper level for Scotland and the numbers required for Westminster. There really is no argument there.

The other argument which I have heard--and it is the only other argument which the Government have put forward--is that the provisions were contained in the White Paper. As far as I am aware, there was no opportunity for Parliament, and certainly not your Lordships' House, to debate the White Paper. I stand corrected. There was. I cannot remember whether I took part in that debate.


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