POWER TO MAKE PROVISION CONSEQUENTIAL ON ACTS OF THE SCOTTISH PARLIAMENT. (Hansard, 16 November 1998)

§ Mr. McLeish
I beg to move, That this House agrees with the Lords in the said amendment.

§ Mr. Deputy Speaker
With this, it will be convenient to discuss Lords amendments Nos. 140 to 146, 152, 157, 158, 160 to 169, 174 to 179, 184 and 286, Lords amendment No. 286, and amendment (a) thereto.

§ Mr. McLeish
I am reluctant to say that the amendments are technical, but we do have a technical amendment to Lords amendment No. 286.
This large group of amendments deals with various powers under the Bill to make subordinate legislation. Among our aims is to clarify the scope of the power to split ministerial functions under clause 97.
We also aim to split quantitative obligations under clause 97. The amendments provide that, where the power in clause 97 is used to split a European Community or international obligation which is expressed in quantitative terms so that part of it can be transferred to Scottish Ministers, the order will not be made unless they have been consulted.
The amendments in the group also ensure that the Secretary of State' s powers of intervention in clause 54 can be used to ensure that the Scottish Ministers' share of a quantitative obligation is met.
The general provisions about subordinate legislation have been redrafted to make them easier to use and to take on board recommendations of the Delegated Powers Scrutiny Committee in another place that subordinate 656 legislation under the Bill which amends primary legislation should be subject to affirmative resolution procedure.
The amendments also deal with the transfer of property to Scottish Ministers, the Lord Advocate and the Scottish parliamentary corporate body.
Finally, the amendments deal with the making of provision consequential on Acts of the Scottish Parliament.

§ Dr. Fox
The Minister will be pleased to hear that I accept that most of the amendments in the group are purely technical. However, I shall probe him on one or two areas—not least on Lords amendment No. 146, which is fairly substantial.
My questions mainly concern the quantitative relationship. We could all think of many areas where such a relationship might apply. In such areas, the working relationship between the Westminster Government and the Scottish Parliament—the Scottish Executive—will be extraordinarily important.
By what mechanism will consultation take place? Given that international obligations are involved, and given that quantitative distribution is involved—say environmental examples, such as on carbon dioxide emissions, where Scotland would be expected to play its part in fulfilling Britain's international obligations—how will the process work in practice? Is this to be among the areas where there will be a concordat? Will the matter be set down on paper? Shall we know in advance how it will work? Or will it simply be left to good will?
The Minister says that no Westminster Government would give a quantitative responsibility on an international obligation to the Scottish Parliament without consultation. I believe that it is legitimate to ask what that consultation will consist of. Will it be a full written and clearly delineated consultation exercise, according to a procedure about which we shall know in advance? Or will there simply be a telephone call to say, "By the way, we have agreed that that is what it's going to be; now you have been consulted. That's it. Thank you very much"? There is a world of different between those two extremes.

§ Mr. Thomas McAvoy (Comptroller of Her Majesty's Household)
How could you suggest such a thing?

§ Dr. Fox
When the hon. Gentleman has spent as long in government as the Conservatives did, he will know how such a situation can come about—although I hope, for the benefit of the rest of us, that he does not gain that experience.
What will the proposals mean? They make a difference. Earlier in the Bill's passage we said that, where there is potential for conflict between Westminster and the Scottish Parliament, we must consider what would happen in a worst-case scenario. I am not being flippant. A conflict might arise if the form of the consultation process had not been set out far enough in advance and we did not know the mechanisms according to which it would occur.
All I want is for the Minister to tell us the Government's thinking. The Secretary of State said that we must consider the worst-case scenario—that is what I 657 am asking the Minister to do. What would happen if a Westminster Government were putting on to a Scottish Parliament what the Scottish Parliament thought was a disproportionate element of a quantitative international obligation? There does not seem to be a mechanism for resolving disputes. Subsection (4) of amendment No. 146 contains the words Scottish Ministers have been consulted", but we know no more about that. The Minister should tell us what that means.
6.30 pm
Amendments Nos. 160 to 169 represent a substantial rewriting of the Bill. We would argue that as a result of work done in another place, there has been a significant improvement in the Bill, compared with the original drafting that came to this House. However, as there has been such substantial rewriting and so many new points have been added, one wonders why that was not in the original Bill presented to the House.
Furthermore, given that substantial rewriting was required for a Bill that received an enormous amount of drafting time, and given that it was done in the Chamber to which those on the Government Front Bench are instinctively hostile, does not that reinforce the case for a revising Chamber? If ever there was such a case, it is made by these 10 amendments. The Government considered that there were so many flaws in the structure of their flagship legislation that they had to go back to the drawing board and draft it again.
It is surely legitimate for us to ask what would happen if this were a piece of Scottish Parliament legislation and there were no revising Chamber. What would the Government do then? In the new, improved form of this section of the Bill, hon. Members on both sides of the House have much to be grateful to the other place for. Without that revising Chamber, what would we have done?

§ Mr. Dalyell
I realise that we are short of time, but my curiosity overcomes me. Do hon. Members on the Conservative Front Bench want a revising Chamber?

§ Dr. Fox
In all the previous stages of the Bill we have recognised that the lack of any revision mechanism would be a serious deficit in the procedures of the Scottish Parliament. The hon. Gentleman will know that in the other place we tabled amendments to try to introduce time lags in the Bill as a substitute for a separate revising Chamber, so that those who had doubts about the contents of and procedures in a Bill would have time to make representations. That, of course, has disappeared.
The Minister speaks of the improved drafting of the Bill and the amendments that the Government tabled. The Government could not have done that under the procedures in their own Bill. The irony is not lost on us. Let us hope that the deficiencies do not cause poor legislation to be introduced in the Scottish Parliament.

§ Mr. Desmond Swayne (New Forest, West)
I agree with my hon. Friend about the desirability of the revising Chamber and the way in which that is highlighted by the 658 amendment. No doubt the Minister would reply that the deficiency is made up for by extensive reliance on pre-legislative scrutiny, but that depends heavily on the public and on public and professional bodies doing their work. That is a largely uncharted course and unproven—but I digress.
My question is simple, and it arises from reading the Bill with an untrained mind—certainly not a legal mind. Is it the purpose of the amendment to bring about a formal consultation of Scottish Ministers in matters where the United Kingdom Government will deal with our international obligations?

§ Mr. Hayes
Will my hon. Friend add to that the implications of the amendment for the relationship between Scottish Ministers and the new constitutional arrangements? We spend a great deal of time speaking about the relationship between this place and the new Parliament, but I am interested in what my hon. Friend and the Minister believe the amendment suggests for the relationship between Scottish Ministers and the new Parliament. Does the amendment affect other aspects of the Bill; and can that be explained during this evening's proceedings?

§ Mr. Swayne
My hon. Friend anticipates me. I intended to ask the Minister for his views. It is inevitable and desirable that the Scottish Executive should be consulted and its views sought and understood. However, this House will rightly continue to contain a large number of Scottish Members of Parliament, who remain in this place to scrutinise Government activities in those spheres. To what extent does consulting the Scottish Executive have implications for their role in this House?

§ Mr. James Wallace (Orkney and Shetland)
I refer to amendment No. 286, which inserts a new schedule in the Bill and sets out certain types of procedure for subordinate legislation. That is a welcome step forward for clarification, but on even a brief reading we find that if paragraph 3 applies, instead of Type F procedure, Type A procedure shall apply, and so on. For further Bills, would flow charts meet statutory requirements? I welcome the efforts that have been made to simplify the legislation, but flow charts might be the ultimate in simplification.

§ Mr. McLeish
They might lead me to understand the measure more than I do, which could be a hindrance in some circumstances.
I shall deal first with amendment No. 146, then with subordinate legislation and the new schedule in amendment No. 286. Amendment No. 146 amends clause 97 in two ways. First, in the new subsections (4) and (5), it provides that, where the clause 97 power is used to split a European Community or international obligation that is expressed in quantitative terms so that part of it can be transferred to Scottish Office Ministers, the order will not be made unless they have been consulted. That is important. Secondly, new subsection (6) will ensure that the Secretary of State's powers of intervention under clause 54 can be used to ensure that the Scottish Ministers' share of a quantitative international obligation is met.
Examples of international obligations and obligations under European Community law that will fall within the scope of these amendments are likely to include EC 659 quotas for livestock subsidies, and the United Kingdom's obligations under the Kyoto protocol on climate change and related Community law to achieve certain targets for the reduction of greenhouse gas emissions.
All parts of the UK will be required to meet a fair proportion of such obligations, not least to ensure that unfair burdens are not placed upon business in one area compared to another. Where it is possible for the Scottish Ministers to contribute to the achievement of the obligation through the exercise of their powers, it is obviously right that they should be apportioned a share of the obligation. An order under clause 97 will enable that to be done. The order will be made by a Minister of the United Kingdom Government or by Her Majesty in Council on the advice of such a Minister, and will be subject to procedure at Westminster only.
The amendment sets out the procedure to be pursued. Consultation will be required, but it would be impossible to define at this stage what that will mean. A framework will be defined for such consultation. The final order will be processed in this House.

§ Dr. Fox
I am less reassured than I was at the beginning. This is an area where there could be litigation over devolution. We need certain information in this debate, not least the minimum definition of consultation that satisfies the legality of the Bill. The Minister says that there will be some form of consultation, but what will that mean? When the matter goes to court, as it surely will, what is the Government's legal advice on what constitutes minimum acceptable consultation under the terms of this part of the Bill?

§ Mr. McLeish
It is absurd to suggest that we can clarify and define that this evening. The changes that we are suggesting should be set against a background of important European and international obligations. It makes sense that a process should be established that will deal with quantitative obligations. That is the first major point. Obviously the Government will continue to work within the context of the Scotland Act, which I hope the measure will become after this week, and that of the Scottish Office. Our purpose will be to work out specifically what will be involved in consultation. I do not think that it would be appropriate this evening to try to speculate on what, in the Opposition's eyes, inadequacy would be.

§ Mr. Grieve
I appreciate that what consultation may or may not be is a difficult thing to define. However, it would be helpful if the Minister spelt out the reality of who calls the shots. United Kingdom Ministers will decide, after having consulted, how the quotas will be allocated, and that is the end of the matter. I am sure that he will confirm that to the House.

§ Mr. McLeish
First, we accept that there is a serious attempt by the Westminster Parliament to discuss obligations with the Holyrood Parliament. However, we have discussed before European Community and international obligations and the need for the Holyrood Parliament to be consistent in its application of these obligations. We are talking about a further situation where we have not qualitative but quantitative considerations. It seems elementary and straightforward that if there is a process of consultation to be defined, it will clearly flow, 660 as a framework, from the amendment that we shall agree this evening and from the Bill when it is enacted and becomes law.

§ Mr. Letwin
I must ask the Minister to answer the question that my hon. Friend the Member for Beaconsfield (Mr. Grieve) put in an earlier intervention. Would United Kingdom Ministers, following consultation, lay down what the quotas are to be, and that would be the end of the matter?

§ Mr. McLeish
That is not what we have said. As for international obligations, Scotland will be able to go much further on the basis of the devolution settlement than Scottish Office Ministers can now. We are saying that we must take international obligations very seriously. Scotland is obliged to implement these obligations. That is not to say that Scotland will want to do something else.
First, we are talking of obligations that have been placed on the United Kingdom, so there must be a process to deal with them. That is elementary. Secondly, if that process is to work, there must be a basis upon which we consult. That is put into the Bill by the technical amendment that we are considering. If a debating point is being made, it will not wash. We know that international obligations are vital and we are ensuring that when we consider quotas, in respect of the environment or anything else, there will be proper discussions between the two Executives in proceeding to implement international obligations. I think that it is very straightforward.

§ Mr. Dalyell
I hardly expect Ministers to endorse the perspicacity of its choice of individual to do it, but the fact is that Heriot-Watt decided, wisely or unwisely, to ask me to give the Lothian lecture on Friday on the subject of devolution, science and technology and the environment. The Government Whip gives a wry smile but that is the position that I am in.
I am asking for some guidance. Am I wrong in thinking that at the end of the day these delicate questions of quotas—not only fish but carbon dioxide emissions—depend on what the Government must call good sense and good will, and that there is no legal framework on which to allocate responsibilities? We must all hope that the good will is to be found. Is there anything other than good will for deciding these matters?

§ Mr. McLeish
That is just not true. The 190 hours that we have spent dealing with the Bill have been about creating a legal framework that will enable us to debate and discuss issues and process and implement decisions that are applicable both to Westminster, if that be necessary, and Holyrood. I can reassure my hon. Friend. I shall write to him with the full back-up of the framework with which we are dealing. It is right to say—I shall make what I hope is the final point—that written into the Bill is consultation in respect of European and international obligations. From that will flow the framework that will make that consultation work.

§ Dr. Fox
I am grateful to the Minister for giving way once again. We agree that there must be a mechanism for dealing with quotas. We also agree that there has to be consultation. However, in the event of disagreement, who makes the final decision about the allocation of quotas within the United Kingdom? On whom will that legal responsibility and power actually fall?

§ Mr. McLeish
To repeat a point made earlier, I said that such matters would be dealt with in this House after due consultation.
The fact that is missing from Opposition arguments is that we need to have a fixed and agreed position on international and European Community obligations. That means, rightly so, the necessity for dialogue and consultation. Is it too radical to suggest that the Opposition might see that as sensible and straightforward? I repeat again that a framework is outlined in the Bill that will take us forward on these issues. There is nothing terribly surprising before us. However, the Opposition always want to try to recreate a bit of interest about matters that have been discussed during various stages in the other place and in this place. There is nothing dramatic before us this evening. We simply have a consultation process built into an existing clause.

§ Mr. Grieve
Just when one felt that the debate on the Bill was coming gently to its end, it is interesting how matters are reawakened and we return to the central principles and the difficulties in the operation of this proposed legislation. The Minister says that we are failing to understand the spirit behind the proposed legislation but I understand that spirit very well. I understand also its limitations. It is—[Interruption.] Does the Minister want me to give way to him?

§ Mr. McLeish
No, I am just breathing.

§ Mr. Grieve
If we consider the way in which the proposed legislation will operate in practice, it will be a fertile area for dispute. What is said to be consultation is all part of the happy-clappy inclusiveness which the Government serve up to us. Everybody can be happy, clappy and inclusive as long as everyone agrees with the decision that the Government will make.
I fail to see how the consultation process, as it is added in by the amendment, will serve any purpose if it is spelt out statutorily if, ultimately, Ministers in Whitehall will have to take the final decision—under considerable pressure, one may suspect, from the electorate south of the border as much as that north of the border. The debate has served to bring that out.
I am worried not that the Minister has presented the amendment and asked us to approve it but by the slightly mealy-mouthed way in which he tries to avoid spelling out the truth behind the amendment. All these things get dressed up. Instead of telling the House, "This is the position, there is a consultation mechanism but at the end of the day Whitehall Ministers will have to decide how allocations are implemented fairly on a United Kingdom basis", the process is dressed up. At the end of the day it is suggested that by the mechanism that has been put before us those north of the border will have an input on a statutory basis into the way in which the formulae are arrived at. That is not correct.

§ Mr. Hayes
I am hesitant to interrupt my hon. Friend's Anglo-Catholic sermon. Perhaps the Minister can deal with the issue best by adopting the course that we have asked him to follow when discussing previous groups of amendments and using illustrations. We look for some tangible and practical illustrations of how the process 662 would work in practice. In my judgment it is all very well to talk about technical amendments but unless we translate them into practicalities, it is rather hard for us to make judgments about them.

§ Mr. Grieve
I am grateful to my hon. Friend. I am not sure about the Anglo-Catholicism of my speech—it may be Anglo-Scottish for all I know. As I have often said to the Minister, I hope that the legislation works. However, it is incumbent on the Opposition to point out areas in which it may prove to be deficient.

§ Mr. Syms
The Minister alluded to the proposed subsection (5) under amendment No. 146, which says: defined by reference to a quantity (whether expressed as an amount, proportion or ratio or otherwise)". That leaves a lot of room for misunderstanding. Will this matter be set out in a concordat between the Scottish Executive and the Government so that people know the ground rules in respect of areas of policy, or will it be an ad hoc arrangement—

§ Mr. McLeish
indicated dissent.

§ Mr. Syms
The Minister shakes his head. That is very important because there might be differences over consultation, not only over what people should be consulted about but over what weight should be given to respective consultations.
The Bill seems to be moving towards some kind of formula whereby people would know where they stand on these issues. I welcome that because it diminishes the potential for disputes. It would be extremely helpful if the Minister would reassure us that that matter will be negotiated between the Scottish Assembly and the Government.

§ Mr. McLeish
I can give the hon. Member for Poole (Mr. Syms) total reassurance on an extremely well made point.