HC Deb 04 March 1998 vol 307 cc1135-40
Dr. Liam Fox (Woodspring)

I beg to move amendment No. 461, in page 38, leave out lines 32 to 35.

The Chairman of Ways and Means (Sir Alan Haselhurst)

With this, it will be convenient to discuss the following amendments: No. 463, in page 39, line 7, at end add 'and it has been passed by an affirmative resolution of both Houses of Parliament'. No. 428, in clause 85, page 39, line 31, leave out 'has' and insert 'and such other persons or bodies as the Parliament may determine have'. No. 462, page 39, line 31, at end add 'and it has been passed by an affirmative resolution of both Houses of Parliament'.

Dr. Fox

In his long and winding winding-up speech, the Secretary of State referred to the cross-border public bodies specification paper made available to hon. Members a couple of days ago, a paper whose naive optimism shines through. It talks about the Government envisaging that the Scottish Parliament will want to continue these arrangements. It is very optimistic, to the extent that one would have to have powers well in excess of those of Mystic Meg to be able to predict anything of the sort.

8.15 pm

Clauses 83 to 85 give power to the part of the White Paper that deals with the statutory right to consultation. I want to know from the Minister what one or two of the terms in this part mean, which is why we have tabled these probing amendments.

I should like the Minister to give us the plain person's plain English guide to what "subordinate" actually means in clause 84 and how it relates to other clauses, especially clause 101(8). Everything seems to hinge on there being agreement. Clause 84(1)(a) is most extraordinary. It refers to enabling powers to be exercised or requiring duties to be performed by the Scottish Ministers instead of by a Minister of the Crown, or by the one or by the other, or by both jointly or by either with the agreement of or after consultation with the other". Thus the provisions in paragraph (a) gradually become watered down. They remind me of what a friend of mine said after a particularly bad night. She said that she was never going to drink again;, well, not during the day; well, not in the morning, except for white wine—before she had a bloody Mary before breakfast. Paragraph (a) waters down the provision, but amendment No. 461 would delete that paragraph.

I am looking forward to hearing what the Minister has to say. Can subordinate legislation make provision in relation to a cross-border public body by agreement or after consultation? Does "after consultation" mean that even if no agreement is reached, it can all go ahead anyway? Does it mean that under subordinate legislation the Parliament can do exactly what it wants?

Amendment No. 462 deals with perhaps the most interesting aspect of the matter. We want to ensure that there will be sufficient scrutiny by the House, so we wish the Bill to state that no subordinate legislation shall be made under the clause unless the cross-border public body concerned has been consulted and an affirmative resolution has been passed by both Houses. That would give the House sufficient power to protect the future of the cross-border bodies and would prevent the ping-pong and recipe for friction that are all too apparent in the clause.

I especially look forward to the Minister defining exactly what "subordinate" means in the clause so that, as the Secretary of State said at the outset, we can avoid the worst-case scenario in which we get into utterly unnecessary scraps about the future of these bodies once the Parliament is up and running.

Mr. Dalyell

Clause 84(3) requires the cross-border body concerned to be consulted before subordinate legislation is made to adapt it under the clause. What form is this consultation going to take?

Mr. McLeish

Before speaking specifically to the amendments, I should like to take up and deal with the points made by the hon. Member for Woodspring (Dr. Fox). First, the notes on clauses contain an explanation of the various subsections. Secondly, we anticipate coming back on Report with some technical amendments that will clarify and simplify some of the issues raised. Thirdly, in an attempt to be courteous and helpful, I will send a letter to the hon. Gentleman about the raft of clauses that deal with subordinate legislation, giving an insight into how they are constructed and hang together and what the impact will be on, for example, consultation. I hope that that is helpful.

Dr. Fox

Apart from writing to me, will the Minister make the letter available to all parties, and will he ensure that copies are available in the Library for the benefit of all right hon. and hon. Members?

Mr. McLeish

I apologise for that oversight. Copies will be sent to the spokespersons of the parties and to right hon. and hon. Members who have attended our proceedings and taken an active interest in them.

The amendments relate to important considerations dealing with subordinate legislation. In the context of amendments Nos. 461, 463, 428 and 462, clauses 84 and 85 are essential elements of the provision which the Bill makes to implement the proposals in the White Paper for dealing with those public bodies that are concerned with both devolved and reserved matters. These are the cross-border public bodies that we have been talking about.

Amendment No. 461 would delete an essential part of clause 84—that which enables ministerial powers and duties to be exercised in a way appropriate to the body concerned, either by transferring them to the Scottish Ministers or providing that they will be exercised jointly, after consultation or with agreement. The amendment would entrench the position under clause 83 whereby the functions are exercisable only by a Minister of the Crown, albeit with a requirement to have consulted the Scottish Minister in certain cases. For some bodies, that position might be appropriate, but for many it is only right that the Scottish Ministers should exercise appropriate control.

It would, for example, make sense that a Scottish Minister should alone be able to exercise a power of direction in relation to devolved matters in or as regards Scotland. The bodies are, after all, concerned with devolved matters for which the Scottish Executive will be accountable. Of course, if we fail to make provision for a fair and equitable reallocation of powers in the way provided for by clause 84, it will make it all the more likely that the Scottish Parliament will decide to legislate to set up a separate body. It seems to be far more sensible and efficient instead to create the conditions under which cross-border bodies can continue to serve both United Kingdom and Scottish Ministers.

I hope that in the light of that explanation the hon. Gentleman will agree that his amendment would introduce an undesirable rigidity into the arrangements that can be made for enabling these public bodies to continue to operate on a cross-border basis, and that he will withdraw the amendment.

Dr. Fox

Subsection (1)(a) reads: either with the agreement of or after consultation with the other". Does "after consultation" mean that if no agreement is reached, powers can still be taken under subordinate legislation to go ahead, even if one side or party is unwilling that that should be so?

Mr. McLeish

We intend to have consultation and, we hope, agreement. We are talking of cross-border public bodies as defined in the relevant clauses. We hope that agreement will always be the result. If not, the procedures that are provided by the Bill in the light of failure to agree would be set in motion. Such procedures are contained in other clauses. It is important to recognise that we are talking about subordinate legislation in both houses. We are talking also about agreement with the principal parties concerned. If we talk about a cross-border public body, we talk also about reserved and devolved matters involving the same body. Therefore, the responsibilities of Holyrood and those of Westminster would proceed on the basis that I have outlined.

Amendments Nos. 463 and 462 are similar in effect. They would require subordinate legislation under clauses 84 and 85 to be subject to affirmative resolution of both Houses of Parliament. First, I should assure the hon. Gentleman that I fully share his concern that there should be adequate scrutiny of any subordinate legislation that is made under clauses 84 and 85. However, I contend that amendments Nos. 482 and 483 would be unnecessarily restrictive. As for clause 101, any order made under clause 84 must be laid both in this Parliament and in the Scottish Parliament. In terms of clause 102, these powers are open powers, which means, among other things, that the order may be subject to affirmative or negative procedure.

In practice, we think that the subject matter of these orders will often not require debate. It is surely not being suggested that, for example, where the order is concerned only with a power to certify the accounts of a particular body, it should be subject to affirmative procedure. We certainly do not think that it would be appropriate to make every such order subject to affirmative procedure, as amendment No. 463 would do.

Again, we are talking about flexibility and considering the specific issue that will be the subject of subordinate legislation. I think that flowing from that would be a decision taken by both Houses on the procedures to be adopted. In the light of what I have said, I ask the hon. Gentleman not to press amendments Nos. 482 and 483.

I move on to amendment No. 428. We are putting in place provisions to enable public bodies to continue to operate on a cross-border basis, but we must take account of the fact, that where matters are not reserved, the Scottish Parliament will be able to legislate to provide that such a body should no longer exercise its functions in relation to devolved matters in or as regards Scotland. Most probably, this would be in the context of a decision to set up separate Scottish arrangements. Clause 85 enables the practical consequences of such a decision to be dealt with, by enabling the transfer of appropriate property.

Again, it is all about flexibility being built into the future. The current settlement on cross-border public bodies could change. The proposed facility will allow both Parliaments closely to examine the distribution of the powers and responsibilities and allow sensible decisions to be made in the light of what is happening around the bodies concerned.

The clause imposes a requirement for the body concerned to be consulted before an order is made, and that is absolutely right. Amendment No. 428 would, in addition, require prior consultation with other persons to be determined by the Scottish Parliament. Presumably the hon. Gentleman would want the United Kingdom Parliament to have a similar role. However, in the Government's view such additional requirements are unnecessary. As I have said, the procedure for subordinate legislation under the clause requires agreement between the UK Government and the Scottish Executive, and orders will be laid before both Parliaments. That surely will be enough to ensure that all those with a legitimate interests will be aware of what is proposed. I cannot see the point of the additional mechanism that would be imposed by the amendment.

In the light of those comments, I hope that the hon. Gentleman will agree that amendment No. 428 is unnecessary and that he will not press it.

Mr. Dalyell

What is my hon. Friend's answer to my question on subsection (3)?

Mr. McLeish

I have answered the point. The question is about subordinate legislation, and we are talking about a process where subordinate legislation will be processed by both Houses. It is clearly the position that no action can be taken until the cross-border public body has been consulted on the changes that are envisaged. The process will ensure consultation between the body and the Parliament. It allows for discussions, if necessary, between the Scottish Executive and Westminster Ministers, and from there would flow the appropriate legislation to enact that which was being suggested. It will be a comprehensive process of consultation. Again, this is reflected in other parts of the Bill, and the Committee will remember our discussions on various other procedures affecting the change from Westminster to Holyrood.

Dr. Fox

I find myself somewhat disconcerted and almost speechless given the Minister's new-found flexibility. In almost his opening sentence, he agreed with the Opposition that the current descriptions and explanations of "subordinate" are virtually incomprehensible as they are written. We are glad to be told by the Minister that the Government will require to bring technical amendments before the House of Commons so that the provisions can become understandable. That information is gratefully received by those of us who are not lawyers, who thought that we simply could not understand the Bill.

I welcome the Minister's plan to write to all Members who have taken an interest in these matters, to set out explanations of how the Government will proceed. That having been said, I have reservations about references to subordinate legislation remaining in the Bill, but on this occasion we shall give the Minister the benefit of the doubt. I look forward to his explanations. No doubt we can return to these matters at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr. Dalyell

I know that you will rule me out, Sir Alan, if what I am about to say is out of order. I tell my hon. Friend the Minister immediately that I do not expect a full answer.

With all this laying of orders it would seem to be assumed that there will be available to the Scottish Parliament the expertise that we often take for granted of the Clerks of the House of Commons. I do not know whether this is the right moment to ask the question, but are there proposals for seconding members of the expert Clerks Department? We are talking of refined expertise. Certainly, 20 years ago there was a good deal of controversy about this. I do not know the answer to the question. If my hon. Friend says, "I shall give you the answer but not on clause 84", I would take that as acceptable.

In parenthesis, there is the question of transferring the expertise of a Fees Office. I shall not stray out of order but I am wondering about these practical matters.

Mr. McLeish

I am tempted to say that the transfer of the Fees Office or some equivalent might rank higher in the priorities of some hon. Members. I should like to give my hon. Friend this simple reassurance. We are establishing a serious Parliament in Edinburgh. Through our civil servants, we receive some of the best advice available and we have set up a committee of the consultative steering group to look at technical procedures. My hon. Friend can be absolutely assured that we intend to provide a professional operation at Holyrood from day one, which means that we will need to look at all the issues he mentioned. I have no reason to doubt that expert advice will be available in Edinburgh at the appropriate time. We have it available in this House and it will be available in Holyrood.

Question put and agreed to.

Clause 84 ordered to stand part of the Bill.

Forward to