§ Mr. McLeishI beg to move amendment No. 129, in page 11, line 7, leave out 'statutory'.
Mr. Deputy SpeakerWith this, it will be convenient to discuss the following amendments: Government amendments Nos. 137 to 145, 159, 183 to 186, 259, 262, 263 and 198 to 201.
Government new clause 19—Agreed re-distribution of transferred functions.
Government amendments Nos. 204, 205, 207, 215, 218 and 221.
§ Mr. McLeishWith the tolerance and forbearance of the House, we shall proceed.
This is a group of technical amendments to the clauses that are concerned with the transfer of ministerial functions to the Scottish Ministers. It will clarify which functions will transfer down under clause 49. It will clarify the functions that will transfer, including those conferred by prerogative instruments such as royal charters. It will also clarify how the functions of United Kingdom Ministers can be split so as to enable the split functions to transfer under clause 49, and will insert a new clause permitting functions to be transferred from Scottish to United Kingdom Ministers by agreement—for example, in relation to schedule 5—if there is any modification required following discussions. That, in essence, is what new clause 19 seeks to do.
The intent of the amendments is fairly straightforward, and, with the agreement of the House, I shall go through the details as quickly as I can. I refer first to Government amendments Nos. 139, 159, 183, 198, 259, 204, 205 and 218.
Government amendment No. 139 modifies clause 49—which is intended to transfer to the Scottish Ministers those ministerial functions that relate to devolved matters—so that it is clear that it transfers functions that are conferred by prerogative instruments, such as royal charters. Government amendments Nos. 159, 183 and 259 make related amendments to clauses 83, 96 and 100. Government amendment No. 198 amends clause 104 so that the appropriate references to the Ministers of the Crown in prerogative instruments shall be read as 246 references to the Scottish Ministers. In a sense, it is a tidying-up amendment. Government amendments Nos. 204, 205 and 218 provide a definition of prerogative instrument.
Government amendments Nos. 138, 140 to 142, 144, 199 to 201 and 215 are centred around Government amendments Nos. 138 and 140 to 142 to clauses 49 and 50. Their essential purpose is to make it clear that executive functions will transfer if it would be within the Parliament's competence to pass laws enabling a Scottish Minister to exercise the relevant function. Government amendments Nos. 144, 199 to 201 and 215 make consequential technical amendments.
Government amendment No. 143 amends clause 52, which sets out those powers in relation to devolved matters that, despite devolution, are to be exercisable by Ministers of the Crown as well as by the Scottish Ministers. The amendment adds a reference to ministerial powers conferred by Orders in Council implementing United Nations sanctions. That will enable appropriate arrangements to be made for the continuation of licensing of trade in goods and services under such orders.
In most cases, it would make sense for the United Kingdom Government to continue to administer a unified regime of licensing covering both reserved and devolved matters. This amendment will enable that to happen by agreement. Future sanctions orders are not covered: they can make their own provision as to who exercises any licensing functions. I trust that the House will agree that this amendment is necessary as a practical solution to the continued administration of UN sanctions as part of our international obligations.
Government amendment No. 137 inserts a definition of "statutory function" into clause 48. Government amendments Nos. 207 and 221 make consequential changes to clauses 111 and 112. Government amendment No. 145 alters clause 59 so that all forms of ministerial function, not just those conferred by statute, can be executively devolved or modified by Orders in Council under that clause.
That will bring what is possible by executive devolution into line with the intended effect of clause 49 in transferring ministerial functions that relate to devolved matters to the Scottish Ministers. Government amendment No. 129 makes a consequential amendment to clause 23, so that Parliament's power of summons applies in relation to matters that are the subject of non-statutory executively devolved functions as well as statutory ones.
Government amendments Nos. 184, 185 and 186 are technical amendments to the order-making powers in clause 97. Government amendments Nos. 184 and 185 make it clear that such subordinate legislation under that clause can split ministerial functions so that they are exercisable separately within devolved competence for the purpose of facilitating their transfer to the Scottish Ministers. At present, the clause merely mentions the splitting of functions so that they are separately exercisable in, or as regards, Scotland. Government amendment No. 186 deletes clause 97(3), which would be redundant as a result of the proposed amendments to clause 84.
New clause 19, together with Government amendments Nos. 262 and 263, enables Her Majesty by Order in Council-subject to affirmative procedure in both Parliaments-to provide for functions exercisable by the 247 Scottish Ministers to be exercisable instead by a Minister of the Crown or concurrently with a Minister of the Crown, or by a Minister of the Crown only following consultation or agreement with the Scottish Ministers. The power would ensure that appropriate arrangements could be made for the transfer of functions to the UK Government in consequence of an extension of the list of reserved matters by an Order in Council under clause 29, or of an agreement to vary the functions that were exercisable by the Scottish Ministers under executive devolution.
§ Mr. Douglas Hogg (Sleaford and North Hykeham)With regard to the Order in Council referred to in new clause 19, can the Minister tell the House whether it is to be made by the affirmative or the negative procedure?
§ Mr. McLeishI am sorry that the right hon. and learned Gentleman missed my point; perhaps it was not distinct. The Order in Council will be subject to affirmative procedure in both Parliaments.
§ Mr. McLeishIn both Parliaments. We are seeking to improve the Bill by adding these technical amendments, which make the splitting of responsibilities clear. We must do that by agreement. If the power is required, it will be subject to affirmative procedure in both Houses, which is appropriate in the circumstances that I have outlined. It could also be used to enable UK Ministers to exercise certain functions on a UK-wide basis—for example, in the collection of certain statistics.
These technical amendments are necessary to make adequate provision for the transfer and exercise of executive functions. The Bill is a major constitutional measure, and the amendments are intended to improve it. As a courtesy to hon. Members, I will be happy to furnish them with further details of each of the amendments, if that is required.
§ Mr. HealdIn respect of amendment No. 159, which extends the requirements on cross-border public authorities concerning the laying of reports by including bodies that might be required to lay reports before this place under prerogative instrument, would the BBC, as a body under royal charter, be required to lay a report before the Scottish Parliament?
§ Mr. McLeishThat particular amendment and clause would not have that effect, but we have arranged that the report of the BBC nationally will be placed before the Scottish Parliament. That has been done by agreement, in the context of the cross-border debates that we have had. That is a reserved function, which is covered by other parts of the Bill.
§ Dr. FoxDuring our consideration of the Bill, we have often accused various groups of tabling amendments for various reasons, but clearly the Government did not table this group of amendments to try to steal the headlines from the Foreign Secretary. It is not the most politically contentious group of amendments that we have considered.
I am grateful to the civil servants who spoke to us in advance about the need to table a large number of amendments, but we must ask why there are so many. 248 I seek clarification from the Minister on one or two points, so that those mere mortals among us who do not have law degrees and those outside who pay attention to such matters can have the answers in plainer English.
Amendment No. 138 removes the words
in or as regards Scotlandand replaces them with the words "within devolved competence". Why has that change been made? What is the difference? Is it simply drafting, or is a different meaning brought in by the change?With reference to amendment No. 141, what is the difference between clause 50(2) as it exists in the Bill, and subsections (2)(a) and (b) in the amendment? Again, there seems to be a slight difference that may not be accounted for by drafting.
Can the Minister tell us what amendment No. 142 means in practice? The words
or purporting to be made by a member of the Scottish Executive is to be read, so far as possible, so as to be within the powers conferred by virtue of this Actin clause 50 are to be replaced by the wordsconfirmed or approved, or purporting to be made, confirmed or approved".It would be helpful to the House to know what that change means. I have read the amendment four or five times, and I am none the wiser, so I shall be pleased if he can help us.On amendment No. 143, the Minister spoke of the need for measures to give effect to Security Council decisions, but how does that square with the reservation for foreign policy in schedule 5? If such a foreign policy decision is entirely reserved to the Westminster Parliament, why is the provision needed? If a particular aspect of foreign policy requires the agreement of the Scottish Parliament, what will happen if the Scottish Parliament does not agree? What will happen to Britain's international obligations?
The Secretary of State told us, I think on Second Reading, that the reason for reserving foreign affairs to Westminster was that we could not afford a split in the responsibility; we could not afford ever to have a situation where the Scottish Parliament did not want to accept international responsibility. What would happen with regard to a Security Council order? If the Scottish Parliament decides that it does not like what the Westminster Government are going along with in terms of sanctions, would not that be a breach of our international obligations, and is that not incompatible with the worst case scenario that the Secretary of State set out at the beginning of the Bill's passage?
§ Mr. CollinsMy hon. Friend is being a little ungenerous. He should know that, in this Government, even the Foreign Office does not follow British foreign policy.
§ Dr. FoxI shall not be drawn into the debate on the Foreign Office. It has had enough damage done to it for one day. A little kindness would be in order at this time of the evening.
How will new clause 19 work? The Minister has outlined to us tonight three mechanisms by which an Order in Council may be made. It may be made 249
by a Minister of the Crown instead of by the member of the Scottish Executive … by a Minister of the Crown concurrently with the member of the Scottish Executive, or … by a Minister of the Crown only with the agreement of, or after consultation with, a member of the Scottish Executive.Exactly who will be in charge of initiating which process is taken forward? At what level of Government will that decision be made? That seems crucial in maintaining the political balance between Westminster and the Scottish Parliament, and maintaining the authority of Ministers of the Crown in relation to Ministers in the Scottish Executive. If that is not made clear at this point, there is plenty of room for misinterpretation later, for mischief making and for unnecessary tension.The Government have tabled new clause 19 as a means of clarifying one or two of the problems which they identified in the drafting of the Bill earlier. But new clause 19, lacking any specific indication of who will initiate the process, who will be responsible for it and who will oversee it, seems to lead toward ever greater confusion.
The House would be grateful to the Minister if he could give us a far more detailed explanation of exactly how the mechanisms that will bring new clause 19 into play will work in practice. That is not clear from the amendments that have been tabled.
§ Mr. DalyellAt an earlier stage in the Bill, I raised the question of a Scottish Parliament and Lockerbie. The hon. Member for Banff and Buchan (Mr. Salmond) acidly commented that at last I had found a reason for supporting the Scottish Parliament. With that introduction, I come to amendment No. 143 to clause 52, which states:
any Order in Council under section 1 of the United Nations Act 1946 (measures to give effect to Security Council decisions)".My hon. Friend the Minister may recollect that, the night before he brought in the Bill, there was an Adjournment debate on Lockerbie. I think that he is fully cognisant of the problem, but, in terms of amendment No. 143, would Lockerbie, and all that goes with it, be the responsibility of the United Kingdom Parliament or the Parliament in Edinburgh?
§ Mr. HoggI want to follow on from the questions put by my hon. Friend the Member for Woodspring (Dr. Fox) on new clause 19. In particular, I am concerned with subsection (1)(a). I should be extremely grateful if the Minister could explain a little more clearly how that will work. It at least raises the possibility of a quite serious democratic deficit.
As I understand new clause 19(1)(a), an Order in Council may provide for a Minister of the Crown to exercise any devolved functions performed by a member of the Scottish Executive. First, will the Order in Council, under the affirmative procedure, be discussed in the Scottish Parliament and the Westminster Parliament, or in only one Parliament? An Order in Council in respect of a Minister of the Crown should be dealt with only at Westminster, not in the Scottish Parliament. I would welcome clarification of that matter.
Secondly, and differently, as I understand new clause 19(1)(a), the power under the Order in Council could be general and continuing—not specific to the performance of an individual function, but enabling a Minister of the 250 Crown to perform for an extended period the functions usually performed by a member of the Scottish Executive. I would also welcome clarification of that matter.
Lastly and most seriously, assuming that an Order in Council is made empowering a Minister of the Crown to perform the functions usually performed by a member of the Scottish Executive, the Minister of the Crown would not be accountable to the Scottish Parliament, and could give no account for his or her doings to it. Indeed, it is bizarre to suppose that a Minister of the Crown could give an account in this place, because we are, by reason of other measures, precluded from examining devolved business.
If a Minister of the Crown were given powers under new clause 19(1)(a) in respect of business usually transacted by members of the Scottish Executive, to whom would he be accountable? Not to the Scottish Parliament, because he would not be available to it. Would he be accountable to us? We will have no authority over what happens in Scotland, however, so I strongly suspect that new clause 19(1)(a) will create a serious democratic deficit. I very much look forward to hearing what the Minister has to tell us.
§ Mr. McLeishI shall deal with new clause 19 first, and try a further explanation. We are devising a structure that will allow Scottish Executive Ministers and Ministers of the Crown at Westminster to deal with devolved and reserved competencies in an orderly fashion. I make that clear to provide context for last question asked by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg).
New clause 19 will enable the transfer, with the agreement of both Parliaments, of functions exercisable by Scottish Ministers—
§ Mr. McLeishWith respect, the right hon. and learned Gentleman asked for answers. I intend to give them.
§ Mr. McLeishWith the greatest respect, and accepting the right hon. and learned Gentleman's experience in the House, allow me to go through the points he made. I am keen to do so, because he asked a specific question about agreement in both Parliaments. We are talking about functions being handed down—[Interruption.] Would the right hon. and learned Gentleman care to listen?
We are dealing with a simple process concerning reserved and devolved functions and Orders in Council, on which there must be agreement. Schedule 5 deals with reserved competencies. There can be adjustments, but they must be agreed by both Houses.
251 The next issue is where the Order in Council would be dealt with. First, there must be concurrent agreement on an Order in Council straddling reserved and devolved powers. Secondly, some Orders in Council will be dealt with entirely by the Scottish Parliament, because they relate to devolved competencies. Finally, Orders in Council relating to reserved matters are dealt with at Westminster. The position is not as complex as hon. Members are trying to make out. We are trying to give the clauses in the Bill some structure and to refine them so that there is little doubt, confusion and ambiguity about how orders will be dealt with as the process of devolution unfolds.
§ Dr. FoxSubsection (1) of new clause 19 states:
Her Majesty may by Order in Council provide for any functions exercisable by a member of the Scottish Executive to be exercisable—(a) by a Minister of the Crown instead of by the member of the Scottish Executive".Subsection (2) states that, where an order is made under subsection (1)(a), it may beexercisable by the Minister of the Crown free from any such requirementto consult. How is that different from what my right hon. and learned Friend suggested, which was that the new clause creates a democratic deficit as a means of bypassing the mechanism that the Minister has just outlined?
§ Mr. McLeishThere is no case for any democratic deficit. The new clause is intended to help and to simplify the procedures involved.
§ Mr. McLeishThe hon. Gentleman shakes his head. I assure him that that is the purpose of the new clause. We have no intention of bypassing any particular process. The Bill is designed so that the Westminster Government and the Scottish Executive will have simple processes that will be tried and understood. That is essential for devolution to work.
§ Mr. HoggLet us assume that an Order in Council is made that grants the Minister of the Crown some authority under the Order in Council. Does the Minister concede that the Minister of the Crown cannot be accountable to the Scottish Parliament? To whom is the Minister of the Crown accountable for the exercise of the powers conferred on him under the Order in Council?
§ Mr. McLeishThere will be a permanent transfer of Executive powers, and he will be responsible to Westminster. That is the terminology of the Bill, and it is straightforward.
§ Mr. GrieveI appreciate the Minister's comments. Looked at in one way, what he says must be correct. However, in view of the discussion that we have had about the limits on the powers of the Secretary of State for Scotland—I assume that he would be exercising these powers—and the ability of the House to question it, if that unlikely turn of events were to happen, would it not be 252 impossible under the Standing Orders of the House, as they would then be, for us to question him about these matters?
§ Mr. McLeishThe hon. Gentleman said that the matter could be looked at from another perspective. I am explaining the issue from the perspective of the Bill. There may be a number of ways of looking at it, but this is a simple process. We are not trying to blur accountability: we are trying to make accountability transparent.
The Westminster Parliament and Westminster Government and the Scottish Parliament and Scottish Executive will want that transparency. No interest would be served by building into the Bill clauses or amendments that do not have clear demarcations of accountability.
Amendment No. 143 deals with issues involving United Nations sanctions. The Scottish Parliament will not be responsible for Foreign Office competence, which is a reserved matter. However, it will be involved in the implementation of international obligations, including those under the United Nations Act 1946. The Scottish Parliament would have competence in implementing UN sanctions on goods and services, including agricultural goods and services, and the Bill contains provisions that will enable it to deal with that matter straightforwardly and simply. Clearly, the Scottish Parliament would not have competence in implementing arms sanctions. Legislative competence for foreign affairs lies with Westminster.
§ Dr. FoxAgain I am grateful to the Minister for his generosity in giving way. How does the example differ from European rules, which are also part of international treaty obligations and on which the Scottish Parliament will have no discretion on implementation?
§ Mr. McLeishWe must implement both, because that is part of the arrangement and we have dealt with that issue. The sanctions issue is not unnecessarily complex. As the Bill stands, the implementation of international obligations such as those imposed by UN sanctions would be within legislative competence in so far as they relate to matters that are not reserved. Therefore, in the context of devolved matters, it would be within the competence of the Scottish Parliament to set up its own regime for implementing UN sanctions.
The United Kingdom currently implements UN sanctions by means of Orders in Council that are made by the Queen under the 1946 Act. Under the Bill, the power would not be separately exercisable in or in regard to Scotland, so provisions in such orders covering devolved matters in or in regard to Scotland would not be subject to a procedure at Holyrood. It is made quite clear that important considerations on international obligations have a Scottish Executive dimension that could be utilised if necessary.
§ Dr. FoxAm I correct in saying that the Scottish Parliament will be responsible for implementing the Scottish practical side of any UN resolution that is agreed by the United Kingdom? Am I also correct in thinking that if, under new clause 19, the Scottish Parliament, for reasons known to itself, chooses not to implement that 253 resolution, it could be implemented by Order in Council by a UK Minister without having to consult a member of the Scottish Executive? Is that a clear representation of the position?
§ Mr. McLeishYes, but with an addition. Amendment No. 143 adds existing UN sanction orders that have been made under the United Nations Act 1946 to the list of enactments in clause 52, so that UK Ministers can continue to exercise powers under such orders involving the licensing of certain activities on a UK-wide basis, although some of those activities do not relate to reserved matters. The Bill provides that the implementation of international obligations is devolved in relation to devolved matters. That is straightforward.
Clauses 33 and 54 provide a power of intervention for the UK Government to ensure that such obligations can be met. However, amendment No.143 recognises that it will make some sense for sanctions to be administered on a UK basis, and it allows for that. Hopefully, that helps the process.
§ Mr. DalyellI asked about Lockerbie.
§ Mr. McLeishAs my hon. Friend rose to his feet, I was about to say that I would deal with the matter that he raised.
The Lockerbie issue was also raised in Committee. The current prosecuting authority functions will transfer from the UK Government to the Scottish Executive. In terms of the Scottish judiciary, the powers of Scottish Law Officers and the Scottish Office will be transferred. My hon. Friend will appreciate, because he has had it from various sources, that the international aspects of the matter will continue to be matters for the Foreign and Commonwealth Office. In a sense, that is a continuation of the current position, with the addition of the Scottish Parliament.
The Lord Advocate will retain his responsibilities for criminal prosecutions and death investigations. The Scottish Parliament will have legislative competence on criminal law and investigations, but the UK Government will take the lead in international relations in line with the reservation of that matter in the Bill.
§ Mr. DalyellThe matter is not quite as esoteric as it is made out. It is a practical issue. I listened carefully to the Minister. Two Governments will be responsible, and they may not agree on the question of a trial taking place in a third country. To put it mildly, there will be a difference of opinion. I might welcome that, but it is a problem.
§ Mr. McLeishAgain, the first part of my hon. Friend's intervention is correct. We are going to have a Scottish Executive and a Westminster Government, but the current functions that we exercise in Scotland will be transferred. I should like to think that, as part of the discussions that we have had this evening and of the wider agreement, we will continue to work closely. It is devolution of 254 responsibility within the UK. It is not creating two separate states, where communication and exchanging information might be that more complex.
I turn to the points made by the Conservative Front-Bench spokesman, the hon. Member for Woodspring (Dr. Fox), at the start of the debate. The change is part of a technical change to the definition of the executive competence of Scottish Ministers. Amendment No. 138 makes it clear that the Scottish Parliament could not confer functions that are not exercisable in or as regards Scotland. Clause 49 as amended will ensure that only functions that are transferred could be conferred by an Act of the Scottish Parliament.
In relation to the further points of clarification required on amendments Nos. 141, 142 and 143, the hon. Member for Woodspring is right in his assertion that those are narrow, technical amendments that do not change the substance of the Bill's previous intent.
§ Mr. McLeishI am giving way.
§ Mr. HoggI acknowledged it, too.
There is a point that troubles me about new clause 19. I should like to take the Minister of State back. He has said that a Minister of the Crown can, under an Order in Council, exercise functions of the sort that are normally performed by the Scottish Executive. Where come the funds that underpin the performance of the functions? From what vote will that money come? Will the Minister of the Crown be authorised to spend English money in respect of a Scottish function? What is the authority for that?
§ Mr. McLeishThere are two points. Let me reiterate that, if it is an Executive function within the UK Government, the Minister of the Crown is responsible to the UK Government and to Parliament. This is reserved business.
The right hon. and learned Gentleman is talking about a Minister of the Crown. To reiterate the point I made, if it is a devolved matter, it is entirely a matter for the Scottish Executive. The question was posed to me: what, then, would the resource element of that function be? Clearly, that would vary, depending on which Government 255 function or Department was involved. I have no doubt that that will not provide any extra burden, because we are talking about a process that occurs at present and will continue, but in a different guise with the two Parliaments.
I have given some clarification. With that, I commend the amendments.
Amendment agreed to.
Amendment made: No. 41, in page 11, line 28, leave out from 'functions' to end of line 30 and insert—
'( ) a judge of any court, or( ) a member of any tribunal which exercises the judicial power of the State, in connection with the discharge by him of his functions as such![Mr. McFall.]