HC Deb 12 May 1998 vol 312 cc255-62
Mr. Dewar

I beg to move amendment No. 130, in page 14, line 6, at end insert 'or confer or remove functions exercisable otherwise than in or as regards Scotland'.

Mr. Deputy Speaker

With this, it will be convenient to discuss the following amendments: Government amendments Nos. 131, 132, 223 to 229 and 256.

No. 110, in clause 29, page 15, line 4, at end insert— '(3A) If two thirds or more of the members of the Scottish Parliament vote for a motion requesting modification of Schedule 5, such modification shall be considered by a joint committee consisting of members of the Scottish Parliament and the Parliament of the United Kingdom for appropriate action by both Parliaments.'. Government amendments Nos. 258, 203, 234 and 243 to 245.

Mr. Dewar

I approach this group of amendments with some trepidation, as though tiptoeing into a minefield. I realise that there is no more desperate risk and hazard than the ill-informed question of someone who only half understands the matter. Before anyone takes offence, I should say that, in the past 20-odd years, I have been in that position myself so many times that I know to just what extent the occasional potshot can have a remarkable random success. Moreover, I see before me formidable exponents in the art-such as the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) and the hon. Member for Beaconsfield (Mr. Grieve), who is an apprentice but learning depressingly fast. There is always, of course, the possibility of a very cheerful foray into the wilderness by the hon. Member for New Forest, West (Mr. Swayne). It is quite a characterful cast.

In the hope of choking enthusiasm, I should say that most of the amendments in this group are extremely technical and totally without political interest—there is a claim. Although the amendments are grouped under the heading "legislative competence", which is immensely tempting, they are not quite as meaty as that sounds. Nevertheless, on the basis that we still have 20 minutes to go in this debate, perhaps I should start by very pedantically and carefully speaking to Government amendment No. 130.

I should stress—it is important to do so—that the intention of Government amendment No. 130, which will amend clause 28, is to make it outwith the Parliament's competence to confer or remove functions exercisable otherwise than in or as regards Scotland. As hon. Members will instantly realise, the amendment ties in with the Bill's general approach to defining devolved executive competence, whereby devolved functions are to be exercisable only in or as regards Scotland. I think that that is all we need say about amendment No. 130.

Mr. Ancram

indicated assent.

Mr. Dewar

I am glad, and grateful, to see that the right hon. Member for Devizes (Mr. Ancram) agrees with that.

We move on to Government amendment Nos. 131, 132, 203, 223 to 227 and 243, which modify the approach taken in schedule 4 to defining the provisions of the Bill itself that are not protected from modification by the Scottish Parliament. The amendments also extend the schedule to protect from modification by the Scottish Parliament the way in which the Human Rights Bill and the European Communities Act 1972 give effect to the key aspects of the European convention on human rights and European Community law in the law of the United Kingdom.

I should stress that those are technical amendments and do not represent any change of policy. Specifically, they do not affect the powers and responsibilities of the Scottish Parliament and Ministers to observe and implement EC law in relation to devolved matters. Neither will they affect the competence of the Scottish Parliament to legislate on the types of rights and freedoms that are covered by the European convention.

My right hon. and hon. Friends and I have tabled amendments to the reservation of constitutional matters in schedule 5—which is a matter that we will deal with later, and may give rise to some quite interesting debate. However, again, it is very much a re-arrangement in the interests of clarity rather than a change of direction or of policy. Among other things, the amendments will make it clear that the Union between Scotland and the rest of the United Kingdom is a reserved matter—which is common ground between all hon. Members. Although there are those who wish to change that constitution, I think that they will realise that this Bill is not the vehicle for so doing.

Mr. Ancram

I hope that I am not pre-empting our debate on the issue, but the Secretary of State mentioned the Union of the United Kingdom being a reserved matter. Does that mean that a referendum on the Union also will be a reserved matter and not available to the Scottish Parliament?

9.45 pm
Mr. Dewar

It is clear that constitutional change—the political bones of the parliamentary system and any alteration to that system—is a reserved matter. That would obviously include any change or any preparations for change. I have made that clear in I do not know how many exchanges with the hon. Member for Banff and Buchan (Mr. Salmond) over the years. I have always said to him, and he has always accepted, that it seems that the best way for him of trying to progress his cause—the reason for his party's existence being that he wishes to take Scotland out of the United Kingdom—is by persuading the electorate in Scotland that they should vote for such a change. It is clear that he cannot find a vehicle for doing that in the machinery laid down in this legislation.

Mr. Ancram

I have listened very carefully to the Secretary of State's lengthy explanation. In very simple terms, does that mean that a referendum on Scotland's future in the United Kingdom is within the competence of the Scottish Parliament?

Mr. Dewar

If one assumes that that is a way of changing the constitution, no, it is not in the power of the Scottish Parliament to change the constitutional arrangements. Scotland will of course have a right to enter into any debate about these matters in the United Kingdom Parliament, and there will be Scottish representatives to do so. That is as it should be. They will be expected to play a very full and proper part in debates in the United Kingdom Parliament on behalf of their constituents.

Mr. Grieve

rose—

Mr. Salmond

rose—

Mr. Dewar

I will take the intervention of the hon. Member for Beaconsfield, the successor to Disraeli.

Mr. Grieve

In the right hon. Gentleman's answer to my right hon. Friend the Member for Devizes (Mr. Ancram), I detected a certain tendency to shy away from the specific question. Clearly, a referendum in itself would not be a constitutional change but a mechanism of consultation. Would the holding of a referendum be within the competence of the Scottish Parliament? I think that that is the nub of my right hon. Friend's question.

Mr. Dewar

A referendum that purported to pave the way for something that was ultra vires is itself ultra vires. That is a view that I take, and one to which I will hold. But, as I said, the sovereignty of the Scottish people, which is often prayed in aid, is still there in the sense that, if they vote for a point of view, for change, and mean that they want that change by their vote, any elected politician in this country must very carefully take that into account. I do not believe that they will vote for that change, or that there is enthusiasm or a wish for that change. We shall no doubt argue about, debate and analyse that many, many times.

Mr. Salmond

The Secretary of State will recall among our many exchanges the one on 4 June last year while debating these matters, when he told me in no uncertain terms that the way in which to progress the issue, if I were ever in a position to do so, was to put the question on independence to the Scottish people in a single-question referendum. I take it that he is not retreating from those wise words.

Mr. Dewar

I am not going to bandy texts. I am always rather touched by the exactitude with which the hon. Gentleman treasures almost every word that I have uttered on this issue, and in the House. I sometimes wonder whether his bedroom walls are papered with such quotations. He will recall that I have consistently argued that the way in which he progresses his cause, to use that term again, is by trying—I believe in vain—to persuade people to vote for candidates who are committed to his point of view. At the moment, he has three colleagues—is that right? It is a modest total.

Mr. Salmond

Five.

Mr. Dewar

Oh, five.

Mr. Salmond

That is worrying.

Mr. Dewar

If there is anything worrying, it is the ease with which some of us forget some of his colleagues. I accept that it might be my fault. I am not going to pursue that point. In his own political flock, the hon. Gentleman is quite a dominant figure, as has often been said. I accept that he is probably travelling hopefully these days. We shall have to see what the people decide when votes for elected representatives go into ballot boxes. I am sad to see that we have only 12 minutes to go.

Mr. Dalyell

My right hon. Friend's charm, wit and verbal facility disguise that there has been no answer to a fundamental question. Can the Scottish Parliament of itself initiate a referendum on independence?

Mr. Dewar

I thought that I had answered that in reply to the hon. Member for Beaconsfield, who looked pleased with my answer because he felt that he had pinned me down. I saw him taking his slightly aggressively green biro pen to note my words. I accept that this is a serious matter. It is my view that matters relating to reserved matters are also reserved. It would not be competent for the Scottish Parliament to spend money on such a matter in those circumstances. The hon. Member for Banff and Buchan may dispute that, but we can return to this argument on another occasion.

Mr. Salmond

Will the Secretary of State give way?

Mr. Dewar

No, because I will be criticised for not covering the amendments, and I will be sorry if that happens. If the hon. Gentleman would haud his wheesht, we can come back to the matter.

Government amendments Nos. 131 and 132 make a technical alteration to the way in which clause 28 introduces schedule 4, which reflects the way in which the schedule has been restructured by the other amendments. Government amendments Nos. 203 and 243 are purely drafting amendments. The amendment to schedule 7 deletes two lines which previously protected certain provisions in the European Communities Act 1972 from the general modifications made by clause 106. Amendment No. 203 re-enacts this as part of clause 106 itself.

Parliamentary counsel concluded that it is better drafting if the amendment is made by virtue of clause 106 rather than schedule 7. The policy remains unchanged. Why the Parliamentary Counsel came to this conclusion is not entirely clear to me. However, as they are men of skill—whose expertise has been effectively and creditably displayed in the drafting—I am glad to take their advice.

There are also some technical amendments to the way in which schedule 4 specifies provisions of the Scotland Bill and other enactments modified by it which are or are not protected from further modification by the Scottish Parliament. In particular, Government amendment No. 224 provides that the Scottish Parliament will be able to modify clause 22(7) which specifies the penalty for a breach of subsection (6) of that clause on Members' interests.

I have no doubt that there will be a good deal of interest—I cannot avoid the word—in Members' interests in the Scottish Parliament, as there has been in this House. It is a matter for increasing study and, sometimes, speculation. The amendments are consistent with the devolution of matters relating to the criminal law.

Mr. Heald

The Secretary of State referred to amendment No. 223 and, earlier, he said that the Union is a reserved matter. Under "Acts of Union" in schedule 4—if the amendment is agreed to—the passage will read: Articles 4 and 6 of the Union with Scotland Act 1706 and of the Union with England Act 1707 shall not be modified so far as they relate to freedom of trade. Does that mean that there are aspects of the Acts of Union which may be modified by the Scottish Parliament, and if so, what?

Mr. Dewar

This is a belt-and-braces provision which means exactly what it says. The amendments to schedule 4 entrench the provisions of the Acts of Union between England and Scotland which relate to freedom of trade. There might be a semi-respectable argument for saying that that is hardly necessary because the matter is reserved, as the hon. Member for North-East Hertfordshire (Mr. Heald) said. This is not a subject for contention, because there is one thing which unites everyone in the House; whatever final settlement is reached, it is clear that Scotland and England will always need access to each other's markets. Free trade will be a sine qua non. The amendment makes that clear.

Government amendment No. 227 provides that the Scottish Parliament can modify the Bill's provisions and sets out that Parliament's procedure on subordinate legislation made under the Bill that is subject to procedure in that Parliament. Again, that is consistent—a useful word in this context—with the Parliament having control over its own procedures. As the House will know, we intend to be as flexible as possible—and impose as little as possible restrictive legislation—on the Parliament's procedures and internal arrangements. We hope that the Scottish Parliament can, when the time comes, consider in an enlightened and sensible way the evolution of its own procedures. We do not assume that it will follow the procedures of the House of Commons. It may do so, as some of our rules are based on common sense and have evolved over many years, but it may find new approaches and procedures—we want to leave maximum flexibility for that.

Government amendment No. 227 also clarifies that the amendments made in schedule 7 to enactments within the devolved field that relate to the role of the Advocate General are to be protected from modification. Hon. Members will remember that the Advocate General is a new inhabitant of the Government—he will be the Law Officer responsible for advising the United Kingdom Administration on Scottish law.

Government amendments Nos. 228 and 229 extend the list of bodies and offices to which the Scottish Parliament can amend references in the Bill. Government amendment No. 234 is a technical amendment to simplify and clarify the provision in part III of schedule 5 that states how references to enactments in the schedule are to be interpreted. Those references are mostly to the subject matter of enactments, and are used as descriptions of reserved matters. As before, they are to be read as references to the enactments as they have effect on D-day—the day when the Parliament assumes its powers. However, for enactments that cease to have effect between enactment of the Scotland Bill and D-day, the references are to be read as references to the enactments as they had effect immediately before that time.

If I may hurry on, I shall refer the House to Government amendments Nos. 256 and 258. Clause 29 provides for the list of reserved matters in schedule 5 to be varied by Orders in Council, subject to affirmative resolution at both Westminster and Holyrood. The amendments would enable the consequences of such changes to be provided for.

Government amendment No. 256 and the first part of Government amendment No. 258 transfer the provision that enables a clause 29 order to modify enactments and other documents from clause 29 to clause 100, where such provisions are generally set out. I do not think that I should labour these points. The amendments tidy up the Bill's drafting in what I hope hon. Members will feel are helpful ways.

Government amendment No. 244 is a purely technical amendment to ensure that references to an Act of Parliament in section 2 of the European Communities Act 1972 are read as references to Acts of the Scottish Parliament in appropriate cases. Government amendment No. 245 amends section 3(4) of the European Communities Act 1972, which deals with Community instruments in the custody of a Government Department that may be used as evidence in legal proceedings. That extends the scope of the section to include any part of the Scottish Administration.

I apologise to the hon. Member for North-East Hertfordshire, who I think is preparing to speak, for having left him only two or three minutes in which to make what may be complex points. I thought that it was only polite to try to deal with some of the points that were being put to me and—even though it was a rather hurried Cook's tour—to survey the range of amendments in the group.

Mr. Heald

We are all pleased to recognise that the right hon. Gentleman has made a colourful picture from what might otherwise be dull material. I want first to ask him about schedule 4 as amended. Government amendment No. 223 lists various provisions that may not be modified, including—as it will be—the Scotland Act itself. However, amendment No. 227 states that the Scottish Parliament may modify section 100, under which a Scottish Minister may exercise his powers by statutory instrument, and section 101(3), which provides for the affirmative procedure.

Is the Secretary of State satisfied that consistency can be achieved between the measures passed here and those passed by the Scottish Parliament? If the documents are not of the same form and character, difficulties may arise.

Clause 101(5) says that a recommendation for an Order in council for Scotland can be made only after the matter has been through the House on the affirmative resolution procedure. What are the minimum criteria to be applied for such a recommendation to Her Majesty to have proper force and legitimacy? Clearly, we are working on the basis of a set of parameters and safeguards for subordinate legislation, to ensure that we know exactly how the powers are to be exercised. If there are to be modifications, are there any limits within which that is to happen, and does Parliament have any say in how it might be achieved?

10 pm

What is the interaction between the European Communities Act 1972 and the Consolidated Fund as regards the Scottish functions referred to in Government amendment No. 203? The Secretary of State may be able to explain why the provisions of clause 106(2) and (3) do not apply; as time is short, a letter would be satisfactory.

Can the Secretary of State confirm that both Westminster and Edinburgh would have to pass an order under Government amendment No. 258 and that the procedure would always allow for adequate debate on such orders in both legislatures, given that reserved powers are concerned? What is the interaction between the amendment, providing as it will for a two-way street with Orders in Council, and clause 27(7)? Does the power of this Parliament remain undiminished, and if so, how?

Mr. Dewar

In the very short time available, I cannot properly answer all those questions. The hon. Gentleman will recall that Government amendment No. 227 provides that the Scottish Parliament can modify the Bill's provisions and sets out the procedures in relation to subordinate legislation made under the Bill, which will be subject to the procedures of that Parliament. It is a narrow point. The Bill contains some prescriptive clauses about procedures. If the Scottish Parliament wants to modify them, it is important that there should be a way of doing so. It is not a major point that should concern the hon. Gentleman.

Mr. Heald

I asked about consistency.

Mr. Dewar

I am advised that it will be possible to have consistency, and indeed I have used the word several times. The best thing that I can say to the hon. Gentleman is that I am so advised.

On the consolidated fund and the European Communities Act 1972, I shall unashamedly accept the hon. Gentleman's invitation to write to him. Indeed, I shall tell him a secret: I suspect that someone else will have to compose a suitable letter, but—

It being five and a half hours after the commencement of proceedings on consideration of the Bill, MR. DEPUTY SPEAKER, pursuant to the Order [13 January] and the Resolution [this day], put forthwith the Question already proposed from the Chair.

Amendment agreed to.

MR. DEPUTY SPEAKER then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

Amendments made: No. 131, in page 14, leave out line 7 and insert— '(b) it modifies an enactment in breach of the restrictions in Schedule 4'. No. 132, in page 14, leave out line 14.—[Mr. Dewar.]

Forward to