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Lord Hogg of Cumbernauld: Can my noble friend explain to us what happened in the House of Commons?

Lord Sewel: My understanding of what happened in the House of Commons is quite simple. It was a whipped vote. I understand that a couple of individual Members of the House of Commons made use of the opportunity to speak to the Chief Whip in terms of conscience. But there is all the difference in the world between an individual decision based on conscience and a general free vote. There was not a general free vote in the House of Commons. Let me make that clear.

Lord Hogg of Cumbernauld: Can my noble friend say whether those individuals were office holders, Ministers of the Crown, Whips or what?

Lord Sewel: I am not aware of the full identity of those who voted. However, my noble friend--my very special noble friend--Lord Hogg of Cumbernauld is aware, as am I, by a reading of the public prints that two Whips made use of that facility. I recognise that straight away.

Lord Mackay of Ardbrecknish: I thank the Minister for giving way. Can he confirm that at col. 1110 of Commons Hansard on 31st March 1998 in the Division list on this subject in another place Mr. Dennis Canavan voted against the Government, as did Mr. Thomas McAvoy and Mr. John McFall, all of whom are Whips? Can the Minister give me any indication of the last time Whips voted against a whipped vote?

Lord Sewel: I have tried to explain the position in the House of Commons as far as I understand it. Unlike the noble Lord, Lord Mackay of Ardbrecknish, and others, I have never been a Member of the other place. I can only say it was the position, as I understand it, that it was a whipped vote. A number of individuals indicated to the Chief Whip that they thought this was a matter of conscience and therefore acted on that basis. That did not erode the Whip. It was an individual decision by those Members.

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Lord Howie of Troon: Like my noble friend Lord Hogg of Cumbernauld, I was a Whip, although in the somewhat distant past. In those days it was quite unknown for a Whip to have a conscience, let alone to vote and be recorded with one. My noble friend is on the hook. I hope he can get off it somehow.

Lord Sewel: I shall try to get off the hook in the way those in the Whips' Office at the other end of the building have got off the hook. Salvation must be just round the corner.

Lord Mackay of Ardbrecknish: Perhaps I can be the Minister's saviour in this regard. Will he make it clear that any of his Back Benchers who has a conscience in this matter is free to vote against the Whip?

Lord Sewel: As I have indicated before, those Members in the House of Commons who believed that this impinged upon their conscience saw the Chief Whip before the vote was taken and explained the matter to him. It is open to any Member of this House, to any of my colleagues, to do likewise with the Chief Whip and the Chief Whip will then make a decision. I would have thought that nobody would have expected any other procedure to obtain.

Noble Lords: Oh!

Lord Sewel: I appreciate that there is a degree of humour and hilarity in our proceedings, particularly as we deal with this specific issue. I come back to the point that Members of the Committee have addressed these issues in a profound and serious way. I hope your Lordships will allow me to reply on the substantive issues in a similar mode.

The argument has been advanced by those in support of the amendment that the two broad topics of health and criminal justice have been devolved; as abortion fits both of those topic heads, then abortion should be devolved. I perfectly well accept that in general we have adopted the approach that health and criminal justice should be devolved matters. However, they have not been devolved totally. This is not the single example of an exception. There are other examples where the advantages of the UK approach have been thought to outweigh the benefit of devolution. For example, in the criminal field we have reserved the matter of the misuse of drugs and legislation covering firearms. Both of those topics are reserved.

Lord Thomas of Gresford: Have the Government reserved the question of capital punishment?

Lord Sewel: No. I am pointing out that there is not an absolute application of the general approach. There are specific areas in which it is believed that the benefits of the UK approach outweigh the benefits of devolution. I referred in the criminal field to the misuse of drugs and firearms provisions. In the medical field, we have reserved the regulation of the health professions, medicines, embryology, surrogacy and genetics. We

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recognise that in some areas a case for going against the general approach can be argued and that powers should not be devolved in those areas.

I believe that it was the noble Lord, Lord Steel of Aikwood, who said that in such circumstances the onus is on the Government to make the case. That is perfectly fair. We have a general approach and if we cannot find that there is a strong argument for the exception, the general approach must hold. That is the philosophy that we have tried to maintain and to argue throughout our debates on this Bill, and particularly with regard to Schedule 5.

What are we faced with in the particular? We are faced with the situation which my noble friend Lady Gould of Potternewton identified. The application of the general principle would create an unacceptable disparity in its implementation. The practice would be such as to undermine the benefits to be gained by the application of the general rule. Indeed, if there were the opportunity for different legislative provisions to apply either side of the Border--I agree with a number of noble Lords in that I am by no means confident in speculating about whether Scotland would then become more or less liberal than England--the problem of cross-Border trade would then become inevitable. I believe that the public and Members of this Committee would find such an outcome unacceptable, deeply distasteful and deeply distressing. It is to avoid that--to avoid the practical outcome of the application of the sound general principle--that in this case the Government believe that we should depart from the principle and treat this as an excepted matter.

Lord Alton of Liverpool: I am grateful to the Minister for giving way, but does he accept that within the European Community there are many varying laws in many countries? We need consider only the upper time limits as an example. On average, the EC upper time limits are between 12 and 14 weeks, compared with 24 weeks in the United Kingdom. That leads to a trade. Indeed, women from over 100 countries come to the United Kingdom because of our open-ended abortion laws which have led to 5 million abortions in the past, 30 years. Does not the Minister accept that there is already such a trade and that it comes to England because of the way in which our laws are framed?

Lord Sewel: I am concerned to ensure that we do not increase a practice that I find distasteful and unacceptable. It is as simple as that.

Lord Rowallan: I am sorry to interrupt the Minister because I know that he is trying to get into the flow of his answer. I should be grateful, however, if he could explain to me why he thinks that we should reserve abortion as a topic whereas the questions of euthanasia and of taking away the right to medicines, which are different ways of killing or destroying, are to be treated differently. I do not understand the Minister's thinking on that difference. Surely what is right for one must be right for all the other such questions.

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10.15 p.m.

Lord Sewel: There is no separate body of law on euthanasia. That matter is covered by the general criminal law. As the criminal law generally is devolved so this matter is appropriately devolved. There is not a Scottish or English euthanasia Act and that difference does not obtain.

Lord Mackay of Drumadoon: When the Minister responded to my noble friend's intervention did he take into account the Lord Chancellor's consultation paper Who Decides? That document raises very succinctly the question of whether or not there should be legislation in this field. If the Lord Chancellor is thinking along these lines--the Minister will be aware that there is a report outstanding by the Scottish Law Commission in this general area--is the response a full answer to this question? Whatever the law is at the moment, it is possible that there will be statute law in the future. Therefore, the clear issue that is raised is whether it is competent for the Scottish parliament to legislate in this area as well as the very difficult area of abortion.

Lord Sewel: If at some future stage there is a separate body of law on euthanasia whether or not that should be devolved will be decided by the parliaments. As the noble and learned Lord is aware, we have already had the debate on the mechanism by which reserved and devolved matters move backwards and forwards. But the Bill is silent on euthanasia because there is no separate body of law relating to it.

Lord Rowallan: Surely, we cannot have a situation in which we decide on specific Acts. A view must be taken on the whole moral principle. One cannot make up one's mind whether or not in relation to a particular Act a matter is to be reserved.

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