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Lord Renton: I am most doubtful about these two amendments. The word "when" indicates that various events to be mentioned later are inevitable, but not all of them are inevitable. They may never occur. One may occur during the poll at a general election while the first minister is in office. Frankly, in this context, "when" and "if" are virtually synonymous and I do not see the need for the change.

As for adding to the Bill references to the first minister being in hospital for mental reasons, or becoming subject to a guardianship order, or having a curator bonis appointed, they are sad events and if any of them occurred the first minister would inevitably be required to resign. I believe that it is over-zealous of us to try to write it into the Bill.

Lord Sewel: Clearly, my efforts at defending the Government's position on the last but one amendment have been recognised and rewarded and I am left with the job of dealing with the mad first minister!

As regards Amendment No. 255G, I am at a loss to understand how the substitution of "if" with "when" leads to any greater precision. I am tempted to the view that if we explore that at any great length we might finish up falling under the auspices of Amendment No. 255H. I shall not detain the Committee any longer on that business. I do not understand the argument that in this context "when" is of greater precision than "if". I do not see that at all. Furthermore, I do not believe that the Government need to accept Amendment No. 255H, which we consider inappropriate and unnecessary, partly for the reasons which the noble Lord, Lord Renton adduced.

The noble Earl argued that there is no provision in the Bill to take account of the incapacity of the first minister. That is not the case on a proper reading of the Bill. I suggest that the Bill makes more than adequate provision to deal with cases where the first minister is unable to act. For example, if at any time it appeared to

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the presiding officer that the first minister was unable to act for whatever reason, including mental illness, it would be open to him, under Clause 42(4) to designate an MSP to exercise the function of the first minister. That provision is sufficiently wide to enable the presiding officer to deal appropriately with every eventuality.

Should it become clear that the first minister's inability to carry out his function was not merely temporary, we should expect the first minister to resign, as the noble Lord, Lord Renton, indicated. But should he not resign and should it be a particularly grave mental illness, the Scottish parliament could effectively remove him and his executive through a vote of no confidence, which would have the effect of bringing about the resignation virtually automatically. In turn, that would lead to the appointment of a new first minister. That would be a fairly drastic turn of events but it would operate in a way which would allow as much dignity as possible to be maintained with the need for effectiveness. Therefore, I do not believe that these amendments are necessary and on that basis, I ask the noble Earl to withdraw the amendment.

The Earl of Mar and Kellie: I do not wish to continue the argument about "if" and "when" except to say that I believe that "when" sounds more definite.

With regard to Amendment No. 255H, we have now established that the presiding officer may have to relieve the first minister of his command. That is always tricky because if you are wrong, you are guilty of whatever is the political equivalent of mutiny by relieving someone of his command when he did not deserve it. I shall say no more. I continue to hope that the Government will think further about the issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 255H not moved.]

Clause 43 agreed to.

Clause 44 [Ministers]:

Lord Mackay of Ardbrecknish moved Amendment No. 255J:

Page 20, line 4, leave out (", with the approval of Her Majesty,").

The noble Lord said: Perhaps I can offer the noble Lord, Lord Sewel, and the noble Earl, Lord Mar and Kellie, some advice on "if" and "when". If we think about finishing this Bill, it sometimes becomes not a matter of "when" but "if" we finish the Bill.

This group of amendments deals with the appointment of Ministers and junior Ministers in Clauses 44 and 46 respectively. The amendments address the same points in both clauses. If I pair the amendments, that may be the quickest way in which to probe and ask the Minister for his advice on a number of matters.

First, I deal with Amendments Nos. 255J and 255T. Both amendments deal with the words,

    "with the approval of Her Majesty".

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Let us take just one of the clauses because they are mirror images of each other. Those words are in the very first line of Clause 44. When I became a member of the Privy Council and when I was elevated to the House of Lords, I was aware that Her Majesty's hand was somewhere in the background. When I became a junior Minister at the Scottish Office and even a Minister of State at the Department of Social Security, I was not aware of the approval of Her Majesty being sought or being granted. Therefore, I wonder whether we have similar arrangements here at Westminster other than for the great offices of Secretaries of State who, I know, must trot up to Buckingham Palace when they leave and take up office. I just wonder how that approval will be sought and how it will be indicated.

In the same vein, Amendments Nos. 255M and 255W relate to Clause 44(3)(a) and Clause 46(4)(a) respectively and deal with the words,

    "shall hold office at Her Majesty's pleasure".

But what exactly does that mean in practical terms? Amendments Nos. 255L and 255V deal respectively with subsection(2) of Clause 44 and subsection (3) of Clause 46 which say:

    "The First Minister shall not seek Her Majesty's approval for any appointment ... without the agreement of the Parliament".

I wonder what the latter words--

    "without the agreement of the Parliament"--

actually mean. In other words, how is that to be achieved? Is there to be a vote on every appointment of a Minister or a junior Minister? That would be rather unusual. In this Parliament, if the Prime Minister appoints people and he has the approval of the House of Commons, everyone else follows in his wake, so to speak. If that were not the case, we would be having quite a few votes over the next few days given all the changes that have recently taken place. Indeed, we might be voting to keep some of the people who have gone and also voting to get rid of some of them who have not gone.

Amendments Nos. 255N and 255X seek to introduce some new words to the two clauses. For example, subsection (3)(c) of Clause 44 currently says that a Minister,

    "may at any time resign and shall do so if the Parliament resolves that the Scottish Executive no longer enjoys the confidence of the Parliament".

I understand that if the whole executive does not enjoy the confidence. But what if that applies to one Minister? My amendment would make the paragraph say that a Minister,

    "may at any time resign and shall do so if the Parliament resolves that either he or the Scottish Executive no longer enjoys the confidence of the Parliament".

It would deal with the situation where the parliament loses confidence in an individual Minister. I do not believe that this Chamber has ever become involved in such matters, but, in the other place, there is a Motion to reduce a Minister's salary, which is a vote of no confidence in that particular Minister.

Finally, I turn to Amendments Nos. 255K and 255U which deal with the number of Ministers to be appointed. In Clause 44, I suggest that we should have

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up to six Ministers, and in Clause 46 I suggest that we should have up to six junior Ministers. That makes a total of 12. Currently--at least this morning--there were six Ministers in all in the Scottish Office. I am not sure whether that total has been kept because my recollection is that there were only five Ministers in the Scottish Office before the last election. I suspect that the Government needed another one because of this Bill, so I make no complaint in that respect. It means that six Ministers are doing this work. Therefore, I think that I am being pretty generous when I limit the number of Ministers in the Scottish executive doing, by and large, the same work, to 12. In fact, I am being more than generous, but I am trying to look after the interests of the noble Lord, Lord Sewel, who, if he manages to get to the Scottish parliament and if his party manages to win, may want a ministerial job. So the more Ministers I create the better his chances will be, although I am not entirely sure that the noble Lord is terribly appreciative of my efforts on his behalf.

However, seriously speaking, I believe that up to 12 Ministers is sufficient. I should like to know how many Ministers the Government envisage. On the face of it, they will probably tell me that I ought to leave this to the good sense of the parliament. But, as I have not been allowed to leave much to the good sense of the parliament this evening, I do not think that that argument will do. As I said, I should like some indication of how many Ministers the Government envisage in this respect. I beg to move.


Lord Renton: I wish to refer only to Amendment No. 255J, which proposes to leave out the words,

    "with the approval of Her Majesty".

Those words raise a rather important constitutional matter. The constitution is, to some extent, flexible and, to some extent, obscure. However, as far as we know, the broad principle, or perhaps I should say, the usual practice is that Her Majesty acts only on the advice of the Prime Minister and is normally required to accept that advice.

It is suggested in this amendment that the first minister of the Scottish executive should seek the approval of Her Majesty before other members of the executive are appointed. That introduces a new constitutional concept. One wonders, is the Queen expected to obtain the advice of the Prime Minister before giving that approval? How do the Government envisage that? We really must get it right. Our constitution is something for which we should have great respect. We should not alter any broad principle of it unless there are strong reasons for doing so. Where Her Majesty is concerned, I should have thought that we needed to have Her Majesty's approval before doing so.

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