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The Earl of Mar and Kellie: My Lords, these amendments are tempting because their proposer, the noble and learned Lord, is usually correct in seeking to delete unnecessary words. On the face of it the two subsections seem to be unnecessary. I recall my initial surprise at finding them in the Bill at all. They seem to clarify a matter which I did not think was in doubt but now, recognising that the Scottish parliament will be a creature of statute and possibly subject to judicial review in some form, I feel that their inclusion in the Bill will be helpful. Without these words there could be doubt and opportunities for mischief-making by people who oppose the existence of the Scottish parliament. Their deletion would allow such opportunities for a judicial process rather than securing the successful launch of the Scottish parliament. Indeed, their deletion today could send an unhelpful signal to mischief-makers. Therefore, I believe that these tempting amendments should not be supported.

4 p.m.

Lord Brightman: My Lords, I strongly support this amendment. How can it seriously be contended that the legislative assembly of a country can be brought temporarily to a standstill because a member has died or chosen to resign? It is bad policy to build unnecessary clauses into a Bill for the avoidance of untenable doubts. If we do not get rid of this dead wood parliamentary drafting will become ossified. If we carry this matter further, I hope that your Lordships will support the crusade to get rid of this totally unnecessary subsection.

Lord Mackay of Drumadoon: My Lords, I rise to support this amendment. I wish to make it clear that,

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although my name is not on the amendment, that does not in any way signify a lack of support for the idea. I am told that my name is on the amendment. That shows that I support it subconsciously as well as consciously.

The idea in the amendment was raised, first, in the Government of Wales Bill, when the noble and learned Lord, Lord Simon of Glaisdale sought--without any success--to persuade the Minister's Welsh colleagues of the validity of his argument. As the noble and learned Lord rightly said, the physical size of public general statutes increases year-by-year. They creep along my bookcase in a horizontal direction just as my neighbour's Leylandii hedge creeps upwards year-by-year. It is a major problem. When one looks at the statute and tries to identify the relevant subsections, there are occasions when the verbiage gets in the way.

When this matter was last debated, I drew attention to the provisions of Clause 8(4) and argument upon which the noble and learned Lords, Lord Simon of Glaisdale and Lord Brightman, have also commented. It is quite inconceivable that this argument could be advanced. I have the benefit of a copy of the letter which the noble and learned Lord the Lord-Advocate sent to the noble and learned Lord, Lord Simon of Glaisdale, and I remain unpersuaded that this is a serious question. It is a small matter on which to take a stand, but there is no doubt that this is a suitable opportunity to take a stand. I wish the noble and learned Lord the Lord Advocate to be aware that if the noble and learned Lord, Lord Simon, presses the matter to a Division, we on these Benches will support him.

The Lord Advocate (Lord Hardie): My Lords, having heard the very able speech by the noble and learned Lord, Lord Simon of Glaisdale, I was tempted to concede the amendment. However, I should advise your Lordships that, in the light of the debate in Committee, we have looked very closely and carefully at Clause 1(4), and, as my letter to the noble and learned Lord, Lord Simon of Glaisdale, outlined, we remain of the view that it would be better to retain this subsection.

Indeed, the concerns frequently expressed at various points during the Committee stage, from all sides of the Committee, that proceedings of the parliament might be too vulnerable to legal challenge, reinforces our view that Clause 1(4) and Clause 16(5) offer wise protections and should stand.

Before going further, I should confirm that, as the noble and learned Lord, Lord Simon of Glaisdale, has properly understood, it is our position that the Scottish parliament will be an unincorporated association created by statute. I should like to correct something that I said in the earlier debate. It was my understanding that the Westminster Parliament was a corporation sole. I am afraid that that understanding was incorrect, as I indicated in my letter, and I believe that the Westminster Parliament is not a body corporate in any form. As I mentioned in my letter to the noble and learned Lord, I regret if any of my comments in Committee were misleading in any material way.

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The issue raised by the noble and learned Lord, Lord Simon, in these amendments is undoubtedly important. I share the view that the statute should not be cluttered up with unnecessary provisions. These amendments raise the issue of the necessity of the provisions in question. They are essentially simple provisions which are concerned with the balance of risk. However small we may perceive the risk to be of an argument along the lines being advanced, if the judgment is wrong the consequences would be very serious for the operation of the parliament. I am sure that the sensible path is to retain this provision. The essential point is that if we omit these provisions now we will increase--as the noble Earl, Lord Mar and Kellie, said--the scope for mischief and the scope for such arguments.

As I suggested in my letter to the noble and learned Lord, Lord Simon, we think that the relevant question is: what constitutes the body of persons which is capable of taking a vote on a matter within the parliament? The parliament will be an unincorporated association of persons which is to be defined in statute as having a specified number of members. If the association is defined by a particular membership and the membership is not complete, that raises the question of whether or not there is then a validly constituted association in existence.

Lord Simon of Glaisdale: My Lords, will the noble and learned Lord address that argument in relation to the House of Commons, which is also a specified number?

Lord Hardie: My Lords, I was intending to do that. With the leave of the House, I shall deal with that in due course.

If the association is not defined in this way, there is no such association capable of taking a vote on any matter and questions of majorities or minorities become irrelevant. For that reason I am not persuaded that it is necessarily the case that the provisions of Clause 1(4) do no more than confer a protection on the parliament which would be recognised at common law.

Turning to the point which the noble and learned Lord, Lord Simon, raised a few minutes ago--the comparison with Westminster and the House of Commons--I do not consider that comparisons with Westminster in this connection are apt. Westminster, the House of Commons, is not a creature of statute, whereas, what we are talking about here--

Lord Simon of Glaisdale: My Lords, I am obliged to the noble and learned Lord for his patience. Would the noble and learned Lord care to consider then various other parliaments in former dependencies which have been set up by statute?

Lord Hardie: My Lords, the question of other parliaments in other dependencies may not be a fair comparison. The question here is that this Parliament is currently establishing through this Bill--which we hope eventually will become an Act--a creature of statute: namely, the Scottish parliament which will derive its powers from the Bill we are enacting. In other words,

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the Scottish parliament will be a statutory body. If one looks at other such statutory bodies which this Parliament at Westminster has created, one finds similar provisions.

My letter to the noble and learned Lord gave some examples in recent years of different statutory bodies. In addition, Section 1 of the Government of Wales Act contains a similar provision. There was a similar provision in Section 18(6) of the Government of Ireland Act 1920. A reasonable comparison might well be local government because local authorities are statutory bodies which are carrying out functions, albeit at a lower level than the Scottish parliament will. Paragraph 9 of Schedule 7 to the Local Government (Scotland) Act 1973 has a similar provision. That provision was not repealed when local government re-organisation recently took place. I have quoted a sample of statutory bodies from recent times but I am advised that they are dotted through history and that similar provisions exist.

Against that background, if this provision were omitted from the Scotland Bill, it could be argued that Parliament intended a different situation to prevail regarding the Scottish parliament. I am sure your Lordships would accept that that would lead to an unsatisfactory situation. I take the point that the effect of Clause 8(4) would be that the parliament was frustrated during this three-month period pending an election. Although that would appear to result in an absurd and totally unacceptable situation, nevertheless, in view of the other examples where statutory bodies have had a specific provision inserted into their legislation enabling them to continue, albeit that there is a vacancy, on balance--I hope I have explained to your Lordships that this is a question of balance--we consider that this provision ought to remain in the Bill. In those circumstances, I invite the noble and learned Lord to withdraw his amendment.

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