Scotland Bill

HL Deb 21 July 1998 vol 592 cc768-800

5.56 p.m.

The Parliamentary Under-Secretary of State, Scottish Office (Lord Sewel)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Sewel.)

Lord Mackay of Ardbrecknish

My Lords, before your Lordships agree to move into Committee, I feel obliged to make similar remarks to those I made on the last Committee day. In the words of F. E. Smith, your Lordships will have taken cognisance of the position of the hands of the clock. They will see that the hands of the clock are not in the position one would expect them to be at the beginning of a Committee day on an important Bill.

It is almost six o'clock. One would normally expect to start this Bill today shortly after three o'clock. It would be bad enough, but something one could put up with, if this had been the first day on which we had made a late start; but it is not. In fact, we are marginally better today, starting at three or four minutes to six than last Tuesday when we did not begin until ten past six. On Thursday we did not begin until five minutes past seven. For three out of the four days we have had truncated Committee days.

As I said last Thursday, we agreed—I stated quite clearly at Second Reading that I had every hope and expectation of it—that we would clear the Committee stage of this Bill before the Recess with something like eight Committee days. This is now the fourth Committee day and we have had only one complete day. I make no complaint about Statements. They are an inevitable part of the parliamentary process; we are used to that. However, it is the other business, albeit agreed through the usual channels, that the Government need to squeeze into the programme which is causing this important Bill to start at such a late hour, and therefore for important issues to be discussed late into the night.

It is not satisfactory. Before we agree to go into Committee, I wish to log again the fact that we are now well behind any undertaking I made at Second Reading to complete the Committee stage of the Bill in eight days or before the Recess. I hope that the Government will take some account of this when discussing the pattern of future business for the Bill.

6 p.m.

Lord Kirkhill

My Lords, before the noble Lord sits down, I should like to make one point. Harking back to the earlier stages of our proceedings this afternoon, has the noble Lord talked to some of his very voluble colleagues on the Benches on which he sits?

Lord Mackay of Ardbrecknish

My Lords, the noble Lord refers to earlier stages of our proceedings this afternoon. I thought perhaps he was meaning previous stages of this Bill. I have not talked to them, but my noble friends are fully entitled to make the points they wish to make on important government business; and, frankly, whatever time today's business took we would still have an erosion of the fourth day in Committee on this Bill.

Lord Kirkhill

My Lords, I think that excessive volubility is to be deplored if there is now a complaint about the time factor.

Lord Sewel

My Lords, the alleged difficulties that we find ourselves in are a consequence of the weight of business to an extent and perhaps to a stringing out of business beyond the time that is absolutely necessary. However, I understand that these matters and the programme have been discussed between the usual channels, and I do not think there is cause for the type of comment made by the noble Lord, Lord Mackay of Ardbrecknish. If I could make just one plea, is it this: it is still possible for us to make progress expeditiously.

Lord Hughes

My Lords, does my noble friend still expect to complete the Committee stage this month, without unacceptably long sittings?

Lord Sewel

My Lords, that is a matter for the Chief Whip—who happens, by perfect happenstance, to arrive in the Chamber at this very moment. I have an answer ready if he does not.

Lord Hughes

My Lords, could I ask my noble friend whether he has heard my question, and will he be able to answer it?

Lord Carter

My Lords, I did not hear the question but I am prepared to answer it.

Lord Hughes

My Lords, I asked my noble friend whether he still expects to complete the Committee stage of this Bill this month without unacceptably late sittings.

Lord Carter

My Lords, it is fair to say that it will be quite difficult. I have not heard what has gone on, but I can guess. I am sure that the noble Lord, Lord Mackay of Ardbrecknish, has made a point about the late start on the Scotland Bill today and the progress, or lack of it, that might be made. I can only repeat the answer that I gave on the last occasion when he raised this point. I sympathise with him. But I hope he understands the problems that I face with the Northern Ireland Bill, to which I have had to give priority because it has to receive Royal Assent, as part of the peace process, before the Summer Recess. There was at one stage a discussion as to whether we should continue the Scotland Bill during the first week of August, and it was agreed through the usual channels that this would not be the case and that we would not sit in the first week of August for reasons which I know the noble Lord understands.

I can only suggest that we make the best progress that we can today. I understand the problem; of course I do. I have been in Opposition for enough years to understand that some years a big Bill comes along and it is started late in the evening. I hope the House will understand the problem that I face with Northern Ireland legislation and the landmines legislation, all of which has been agreed through the usual channels and between the parties. This legislation, it has been agreed, must be completed by the Summer Recess. We have had to fit in a major Bill around this one. I apologise and I suggest that we now continue with the Committee stage and make all the progress that we can. As always, the usual channels will be in constant touch over the progress of the Bill.

Lord Mackie of Benshie

My Lords, may I ask the noble Lord whether it is true that there has been a great change of heart in this House? It used to rise in August so as to prepare for the grouse season. Has this now been changed for fishery?

Noble Lords

Ah!

Lord Carter

My Lords, the noble Lord perhaps has some information that I do not have. It is interesting to remember that in an equivalent Session during 1979 there was a government who had similarly come into office after a long period in Opposition and during that summer they actually sat until 8th August. We have decided that we will rise on 31st July, for reasons which the House understands, and we are coming back on 5th October.

I apologise again for the problem and I suggest that the best thing we can do, now that we know the reason for it, is to make all the progress that we can on the Bill. Let us see where we shall be next week. We have the rest of today; we have Thursday; we have next Monday, next Tuesday and next Thursday; and with the brevity and succinctness of which I know the noble Lord, Lord Mackay of Ardbrecknish, is a past master, aided by the noble and learned Lord, Lord Mackay of Drumadoon, I am sure that we will finish the Committee stage.

On Question, Motion agreed to.

House in Committee accordingly.

The DEPUTY CHAIRMAN OF COMMITTEES (Lord Lyell) in the Chair.]

Clause 23 [Power to call for witnesses and documents]:

[Amendment No. 135 had been withdrawn from the Marshalled List.]

Lord Mackay of Drumadoon moved Amendment No. 136:

Page 11, line 33, at end insert—

("( ) The power in subsection (1) is not exercisable in relation to a Minister of the Crown").

The noble and learned Lord said: For the sake of making progress, this amendment is linked with Amendment No. 137. It raises a very short but important point as to whether in any circumstances the Scottish parliament, or one of its committees, should have the power to require a Minister of the Crown to attend upon the parliament's proceedings for the purposes of giving evidence or producing documents in his custody or under his control.

It is obvious from the clause as drafted that the right to summon Ministers of the Crown to appear before the parliament or to produce documents is not an unqualified power. It is restricted by the provisions of subsection (4). Nevertheless, it is there and so in certain circumstances it could be used. I believe it would not be appropriate for the Scottish parliament to have such a power. No doubt from time to time the parliament or one of its committees may feel that its deliberations would be assisted if Ministers of the Crown were to attend and be willing to answer questions. That would apply not only in respect of those Ministers whom it has power to require to attend, but it would also apply to other Ministers whose attendance would be precluded as a matter of requirement by the way subsection (4) is framed.

The willing attendance of Ministers of the Crown to assist the parliament is a very different matter from their being required to attend in a situation where they do not wish to do so. I believe that the existence of the power and its use would be very unhelpful towards maintaining good relations between the United Kingdom Government on the one hand and the Scottish parliament and the Scottish executive on the other hand.

Obviously, this parliament can require Ministers of the Crown to attend and, if they are required to do so, to turn up at a suitably convenient time—sometimes somewhat prompter than might be the case if it were a matter of their own choosing. However, so far as the courts of the land are concerned there can be little doubt that if a party wishes a Member of Parliament or a Minister of the Crown to attend they do not have the right to summon them before the court in the way that they can summon other members of the public.

That is the situation that I believe should apply in the Scottish parliament. By all means invite them to attend and also make it clear why you wish them to attend, but do not insist on having in this clause an absolute right to do so because, far from fostering good relations, it could well lead to unnecessary tension between the Executive of the United Kingdom Government and the new institutions being set up in Scotland. I beg to move.

Lord Fraser of Carmyllie

This matter relates primarily to the situation of a Minister of the Crown, and particular provision is made for someone who remains a Minister of the Crown. The issue which seems to me still to require clarification is that of someone who has been a Minister of the Crown and has dealt with matters covered by this clause but where that person is no longer a Minister but a Member of the House of Commons. In such circumstances, am I to understand that for the purposes of hearing evidence the Scottish parliament could not require that individual to attend but would be able to require him to attend so long as he remained a Minister of the Crown? If I have understood that position correctly, it does seem to me to be a rather curious anomaly. Clearly the House of Commons must be taken as being on notice that one of its Members might be required to attend. They have already dealt with this provision. Given the change of Ministers that there may be, perhaps as soon as the end of this week, those no longer in office might have evidence which a Scottish parliament considered appropriate for its deliberations. I should be grateful if the Minister would clarify that matter.

Baroness Carnegy of Lour

I support the amendment. I believe that enabling the Scottish parliament to ask United Kingdom Ministers, who are answerable to the electorate through a different set of elected representatives, to submit to questions, whether on small or large issues, merely because their responsibilities overlap in affecting devolved matters is asking for trouble and confrontation. This Parliament and the Government have an enormous responsibility to reduce the areas which invite confrontation, provided that the parliament works as is intended.

I see from the notes on clauses that Ministers of the Crown include Treasury Ministers. One can imagine a Chancellor of the Exchequer of a Conservative government being summoned before the Scottish parliament, which is perhaps Labour or SNP dominated, to be questioned about why the grant from Westminster is so small and results in Scottish income tax being raised by 3p. in the pound. According to my reading of the Bill, that could happen. Could the Prime Minister be summoned to be questioned about the Government's policies, vis-à-vis the policies of the Scottish parliament and how they conflict?

On reading the Bill, it appears that the policies which have evolved from the thinking of the civil servants in the Scottish Office have not been adequately tested for their political effect by the Government or by the House of Commons. I can understand people's belief before the Bill came to Parliament that this part would work well. But the political effect is likely to be fairly catastrophic for the good working of the Scottish parliament and Westminster together. I believe that the Government should consider the amendment because it is very important.

Baroness Linklater of Butterstone

We do not follow the argument that the provision in the Bill will create further tension or difficulties. If a Minister of the Crown outside Scotland has functions or responsibilities relating to devolved matters concerning Scotland, the Scottish parliament should have the power to require him to attend. It is a simple question of accountability. There is no reason why anyone—particularly someone of importance as regards Scottish matters—should not be accountable. We believe that the Bill is rightly specific on that and we oppose the amendment.

Baroness Carnegy of Lour

Does the noble Baroness consider that the Chancellor of the Exchequer is accountable to the people of Scotland through their elected members to the Scottish parliament or to the Westminster Parliament? How can she use that argument?

Lord Mackie of Benshie

The noble Baroness has made her point. I do not wish to offend the dignity of the Chancellor of the Exchequer or anyone else, but I point out that when a Minister does not want to answer questions the answers are most vital and necessary.

6.15 p.m.

The Lord Advocate (Lord Hardie)

The amendments raise the issue of the circumstances in which a Minister of the Crown may be summoned before parliament. As I explained earlier, under the Bill as drafted, those who are responsible only for reserved matters cannot be summoned in connection with those matters, although they can of course be invited to attend and to submit documents. The noble and learned Lord, Lord Mackay of Drumadoon, thought that that was appropriate if they wished to attend in response to an invitation. For UK Ministers and civil servants, we have in particular had to be careful to avoid what might be described as "double accountability". We absolutely accept that Ministers of the Crown exercising functions in reserved areas will be using resources voted by the United Kingdom Parliament and should be accountable to it, and to it alone, and not to the Scottish parliament.

We have also ensured that where it is provided in, say, an executive devolution order under Clause 59 that the Scottish Ministers must be consulted or their agreement sought about the exercise of a function by a UK Minister which concerns a reserved matter, that in itself provides no basis for summoning UK Ministers and their civil servants before the Scottish parliament. Similarly, they will not be summonable in relation to a function which they share with Scottish Ministers by virtue of Clauses 52, 53 or 59. For those functions they will be rightly accountable to Westminster.

Bearing in mind the principles underlying these provisions, I have to say that the amendments tabled by the noble and learned Lord go further in restricting the power of summons in relation to Ministers of the Crown than we think is justified. They would prevent the parliament from being able to call Ministers of the Crown to give evidence to the Scottish parliament in any circumstances. In particular, they would prevent a Minister of the Crown from being summoned where he exercises a function in relation to devolved matters concerning Scotland instead of the Scottish Ministers. In reply to the point raised by the noble Baroness, Lady Carnegy, that would apply to the Chancellor of the Exchequer.

There will continue to be what are known as "cross border public authorities". These bodies will have responsibilities for devolved matters in Scotland as well as matters elsewhere. Examples include the British Tourist Authority. Appropriate arrangements for their control and accountability will be made under Clauses 83 and 84. In some cases concerning those bodies, it will be appropriate for ministerial functions in relation to devolved matters concerning Scotland to be exercisable by UK Ministers. For example, it may not make practical sense for a ministerial power of direction, say of the form of accounts, to be split between the Scottish and UK Ministers. Rather, it might be more appropriately exercised by a UK Minister after consultation with the Scottish Ministers. In that case, it makes perfect sense for the Scottish parliament to be able to summon UK Ministers.

Another example of circumstances where it would be appropriate for a UK Minister to be subject to summons would be where he exercises a function in relation to a devolved matter in Scotland instead of a Scottish Minister by virtue of an Order in Council under Clause 98. For example, it could be administratively more convenient for a UK department to conduct certain statistical surveys for the whole of the UK. In that situation, it would be appropriate that the UK Minister ought to be capable of being summoned to the Scottish parliament.

If the amendments proposed by the noble and learned Lord were to be accepted, the parliament would not be able to fulfil properly its role in holding Ministers to account for their functions in relation to devolved matters. I hope the noble and learned Lord will agree that that would be an undesirable outcome.

Finally, I should perhaps mention that the matter was raised in another place. The Opposition Front Bench spokesman, Mr. Jenkin, welcomed government amendments to Clause 23 precisely in order to clarify the issue we are now discussing. Mr. Jenkin offered the view that the Government had "responsibly addressed" the issue of double accountability, which he explained had prompted the Opposition to put down in that place amendments similar to those we are now considering. There appears to be a change of heart on the part of the Opposition.

I hope that with that explanation, the noble and learned Lord will withdraw his amendment.

Lord Fraser of Carmyllie

Before the noble and learned Lord sits down, I addressed a specific matter in relation to former Ministers. In drawing together Clause 23, I believe that there must be some risk of that. I am not saying that it is necessarily a bad thing that such a Minister, if he has evidence to give, should not be summoned before the Scottish parliament. However, as it impinges upon the privileges of this Parliament, I believe that the issue should be spelt out clearly in the legislation.

Lord Hardie

I apologise to the noble and learned Lord. Indeed, I meant to deal with that position. Clause 23(1) allows the parliament to require any person to attend to give evidence or produce documents relating to any matter mentioned in subsection (2). There is no exemption for former Ministers, but the question is whether such an individual would have much information of relevance to the parliament. There would also be an issue of parliamentary privilege of a Member of Parliament whose first priority must be to the House of Commons. In practice, it is anticipated that the parliament in that situation would proceed by invitation.

Lord Fraser of Carmyllie

I am sorry to press this, but I do think that the matter of parliamentary privilege is most important. The practical way that the noble and learned Lord has spelt out is indeed what I would guess would be the way that the two parliaments would satisfactorily resolve matters. However, it is possibly a matter of keen conflict. We cannot allow proceedings and our debates to go forward on the basis that relations between this Westminster Parliament and the Scottish parliament will always be amicable. I am sure that the entire membership of this Chamber would wish that to be the case, but it might not always be so. Therefore, it seems to me that we must clarify the matter.

Lord Mackay of Drumadoon

I am slightly amused by the way that the noble and learned Lord has relied on the wise words of my honourable friend Mr. Jenkin in another place. Bearing in mind the way that his colleagues normally regard what Mr. Jenkin and others say and how they are criticised up hill and down dale for not understanding the Bill, it is mildly amusing that the noble and learned Lord should now seek to turn Mr. Jenkin against me.

The intervention by the noble Baroness, Lady Linklater of Butterstone, illustrated the purpose which lies behind the amendment. She said that it was a simple question of accountability. If it is supposed that Ministers of the Crown will be accountable to the Scottish parliament, then I perceive that there will be serious difficulty in the years ahead. If Ministers of the Crown do not wish to answer a question, they will, as the noble Lord, Lord Mackie of Benshie, said, theoretically be open to prosecution in a Scottish court under the provisions of the next clause.

We are discussing an important matter. Having raised it tonight, I had hoped that a more constructive response would be more forthcoming. However, the noble and learned Lord gave a number of explanations as to why he considered such a power was necessary. Therefore, rather than put the matter to a Division this evening, I intend to read most carefully what he said. As presently advised, I believe that it will be necessary to revisit the matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 137 not moved.]

The Deputy Chairman of Committees (Lord Lyell)

I should inform Members of the Committee that if Amendment No. 137A is agreed to, I shall not be able to call Amendment No. 138.

The Earl of Mar and Kellie moved Amendment No. 137A:

Page 12, line 9, leave out ("which exercises the judicial power of the State").

The noble Earl said: This amendment deals with the Scottish parliament's powers to summon witnesses and documents. The amendment seeks to clarify which judges and which tribunal members are exempted from such a summons. The Bill refers to judges and tribunal members who exercise, the judicial power of the State". That is rather imprecise. What is the extent of that exemption? Will it extend to members of a children's panel or, for example, to the members of the Scottish Solicitors' Discipline Tribunal?. It is worth pointing out that the latter have to forfeit any fines to the Crown, much to the disappointment of aggrieved clients.

Beyond that, does it extend to judges of the European Court of Justice, of the European Court of Human Rights or indeed of the International Court of Justice? It would be helpful to understand the exact extent of this exemption. I beg to move.

Baroness Carnegy of Lour

This is an amendment in which I know the Law Society of Scotland is interested. Consequently, we shall all be interested to hear the Minister's reply.

Lord Hope of Craighead

I am bound to say that I also think that the phrase to which the amendment draws attention is in need of clarification. In addition to the reasons given by the noble Earl, the word "tribunal" is used elsewhere in the Bill. It appears in a number of places in Schedule 6, where a court or tribunal is required to deal with matters in particular ways should devolution issues arise. I can see the point to which the words are being directed. It may be that a distinction is being drawn between private tribunals—and I am thinking in particular of arbitration tribunals—and public tribunals. It is possible that there is a better way to define the kind of tribunal to which the provision refers; for example, by reference to the definition in the Tribunals and Inquiries Act 1971.

However, the point arises as to whether the word in that context is intended to have the same meaning in Schedule 6. It will be of great interest to those who sit on any kind of tribunal to know whether they are obliged to fulfil the duty imposed upon them under Schedule 6 to deal with devolution issues in the manner which is there set out. I support the suggestion that the phrase is in need of clarification. I do so not in any way to be obstructive, but simply in order to ensure that everyone can understand what the Bill seeks to do.

Lord Mackay of Drumadoon

I rise to express my support for the noble Earl's amendment, which raises the same issue as that contained in Amendment No. 138. When the Minister replies, it would be most helpful if he could us some examples of tribunals which exercise the judicial power of the state and of others which exercise a power of the state that is not judicial. That is where I have some difficulty. It would be of considerable assistance to know whether there are certain criteria by which one would work out which tribunals fall within the term which is used in Clause 23(6)(c).

Lord Hardie

As the noble and learned Lord, Lord Hope of Craighead, anticipated, the question of tribunals which exercise the judicial power of the state is distinct from private tribunals such as arbitrations. However, they may also be distinct from certain administrative tribunals which do not exercise the judicial functions of the state. That is the distinction which is sought to be drawn in this provision.

Perhaps I may advise Members of the Committee that there is a precedent for this phrase. In particular, there is reference to tribunals exercising the judicial power of the state in the Contempt of Court Act 1981 and in the Deregulation and Contracting Out Act 1994. That is where the phrase has been borrowed from by parliamentary draftsmen.

In answer to some of the points made by the noble Earl, Lord Mar and Kellie, I should point out that the European Court of Justice, the European Court of Human Rights and children's panels would all be tribunals exercising the judicial functions of the state. The issue of children's panels was specifically raised in another place. It was explained then that they would be included in the category of tribunals exercising a judicial function of the state. As I have already said—and I take here the point raised by the noble and learned Lord, Lord Mackay of Drumadoon—tribunals not exercising the judicial function of the state would, for example, be private arbitrations in relation to a commercial contract, or certain administrative tribunals which did not have a judicial function.

Subsection (6)(b) makes it clear that a "judge of any court" cannot be summoned. As I have said, this would include a judge of the European Court of Justice or the European Court of Human Rights. As regards administrative tribunals which exercise judicial functions of the state, I have in mind such tribunals as social security appeal tribunals, immigration appeal tribunals or industrial tribunals. They are also tribunals exercising judicial functions of the state. With that explanation I hope that the noble Earl will feel able to withdraw his amendment.

6.30 p.m.

Lord Hope of Craighead

Before the noble and learned Lord sits down, I raised an issue about Schedule 6. I appreciate that is not the matter we are discussing now, and it may not be a matter which can be dealt with immediately, but I would be grateful if the point I raised could be attended to because of the possible doubt about a difference in meaning in the two contexts.

Lord Hardie

I apologise to the noble and learned Lord. I would prefer to reflect upon that and come back to it when we discuss Schedule 6, or I may write to the noble and learned Lord on that matter before then.

The Earl of Mar and Kellie

This is a probing amendment. I believe that we have made some progress. We may return to it later. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 138 not moved.]

The Earl of Balfour moved Amendment No. 139:

Page 12, line 21, at end insert—

("( ) A notice required by subsection (8) to be given to a person shall be given at least two weeks before the day on which the proceedings are to take place, or by which the documents are to be produced, unless he waives that requirement.").

The noble Earl said: This amendment seeks to give a witness some time in which to get his papers together. It could be some time since the problem arose, but I feel that a witness must be given some warning. I have suggested that he should be given two weeks in which to get himself together before he appears in any court or before any inquiry. I beg to move.

The Earl of Mar and Kellie

We on these Benches have some sympathy with the noble Earl's amendment but we are concerned as to whether a two-week time delay would be helpful in the event of a witness being required to give evidence during an emerging crisis.

Lord Monson

I, too, have some sympathy with what the noble Earl has said. If someone from Cornwall, Carmarthen or Carrickfergus is summoned to Edinburgh to appear before the Scottish parliament to give evidence, will his travel and accommodation expenses be paid?

Lord Hardie

I would certainly expect that to be the case. That is the normal situation with the citation of any witness to any court. I appreciate that the Scottish parliament will not be a court, but I do not see why it should be exempt from those normal rules. As regards the amendment, I, too, have considerable sympathy with the noble Earl's point. We have no argument whatever with the proposition that the parliament should exercise its powers in a responsible way and that appropriate notice should normally be given. However, I do not accept the amendment for the reason given by the noble Earl, Lord Mar and Kellie. There may be circumstances where there is particular urgency or expediency to require the witness to attend and produce documents much earlier than within two weeks. For that reason it is not appropriate to lay down a period of two weeks' notice in every case.

Clause 24(3) states that there would be a general defence of reasonable excuse. Therefore if a particularly short period of notice was given to a witness to appear or to produce a document, he would have the defence that he could not comply for a good reason. I am reminded that Clause 25(4) makes specific provision to allow the parliament to pay expenses of witnesses, as it chooses. Therefore the point raised by the noble Lord, Lord Monson, appears to be covered by that.

Baroness Carnegy of Lour

I hope I have understood all this correctly. If a Minister of the Crown is required to appear before the Scottish parliament, and in the event he is required to be in his own Parliament at Westminster, who wins?

Lord Hardie

In that situation I am sure that the Minister of the Crown would be able to claim parliamentary privilege here and would not be required to attend. However, I anticipate that normal channels would operate and that the Minister of the Crown would advise the Scottish parliament of the difficulty and an alternative date would be set.

The Earl of Balfour

I have considered Clause 24(3) but that concerns an offence that has been committed. That is rather different from what we were dealing with under Clause 23. I want to make certain that a witness has some time in which to produce documents. I rather hoped that the final phrase of my amendment, unless he waives that requirement might have covered that. Perhaps the noble and learned Lord the Lord Advocate will consider this between now and Report as I feel that a witness should not be expected simply to turn up in court the next day with all his papers. From a practical point of view that is not an easy thing to do. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon moved Amendment No. 139A:

Page 12, line 32, at end insert (", or in a court exercising jurisdiction of the United Kingdom in which the person resides or works").

The noble and learned Lord said: I apologise for not speaking to this amendment earlier. However, I wish to move it and I believe it is competent for me to do so. Even if it were not, I am sure the noble and learned Lord would be willing to address the issue which it raises. The amendment seeks to provide a level playing field for witnesses who are summoned from England, Wales or Northern Ireland to appear before the Scottish parliament, or one of its committees, to give evidence. Clause 23(10) provides that, A person is not obliged under this section to answer any question or produce any document which he would be entitled to refuse to answer or produce in proceedings in a court in Scotland". The purpose of the amendment is to add to that subsection the following words, or in a court exercising jurisdiction of the United Kingdom in which the person resides or works". The fact of the matter is that many will live and work in England and a few will live and work in Wales and Northern Ireland. If such persons were entitled to refuse to answer questions in any proceedings—whether civil or criminal proceedings—in the courts of England, Wales and Northern Ireland, they should be accorded the same privilege of being entitled to refuse to answer as is accorded to people who live and work in Scotland and who may be answerable to the courts there. The policy seems entirely valid. The Government recognise in the Bill that the interests of justice require that in certain circumstances witnesses summoned to the parliament should not be required to answer questions. I seek to apply that provision uniformly throughout the United Kingdom. I beg to move.

Lord Fraser of Carmyllie

I support my noble and learned friend's amendment, but with this restriction. I do not know why he requires that it should be only, in a court exercising jurisdiction of the United Kingdom in which the person resides or works". It would seem to me more appropriate if the amendment stopped at "United Kingdom". Perhaps I may explain my point.

I take as an example a particularly vile Scotsman who lives and works in Scotland but travels to a place in the north of England and purchases for the purposes of distribution north of the Border particularly vile child pornography. It is not difficult to think that in those circumstances a Scottish parliament, faced with such a scourge, would decide to examine the issue in order to determine where such pornography was purchased and how it was distributed. One of the first questions that the parliament would wish to ask such an individual would be: where did you get it; from whom did you purchase it? In such circumstances he might also be committing, or solely committing, an offence in England. I can think of other examples where an individual would be committing an offence only in England, and where he would be entitled in those circumstances not to answer the question.

There are two ways to approach this matter. It could be approached in the fashion proposed by my noble and learned friend Lord Mackay, by adding the reference that he is able to decline to answer the question if able to do so in any court in the United Kingdom. An alternative route would be to say that any answer he gave before the Scottish parliament was not admissible in a court of law in any other part of the United Kingdom. The preferable course would be not to restrict this provision merely to Scottish courts but to extend it throughout the United Kingdom. That would be a more appropriate way to arrange matters.

Lord Hardie

The thinking behind this provision was that we considered it right that the parliament meeting in Scotland and making laws for Scotland should, in requiring someone to give evidence, recognise the same rights of refusal as are available to a person in the Scottish courts under Scottish law. To take the example given by the noble and learned Lord, Lord Fraser of Carmyllie, if the individual appeared in a Scottish court and was asked the question there, an issue would arise as to whether he had to answer it. We do not see that the rules should differ in any way in relation to the proceedings of the Scottish parliament. Accordingly, we are not minded to accept the amendment.

Lord Fraser of Carmyllie

Before the noble and learned Lord sits down, I shall go away and refine my examples. I can think of a number of instances where I can see, legitimately, the Scottish parliament wishing to investigate a matter that it regards as a social evil, or some broader matter where the only criminal activity identified takes place south of the Border. As I understand the matter, under the Bill as presently drafted if the criminal offence were committed in Scotland, he would not have to answer that question. It would be a matter on which he was entitled to refuse to answer in Scotland.

It would seem more appropriate that if he has the right to refuse to answer that question in any court in the United Kingdom, he should be entitled to refuse to answer it before that part of the Scottish parliament that wishes to ask him questions. If the noble and learned Lord wants me to go away and refine my examples, I have little doubt that, without too much fertility of imagination, I shall manage that.

Lord Mackay of Drumadoon

While my noble and learned friend is refining his examples, I think I should take away the amendment and refine the drafting. Clearly, certain words were left out, as will be obvious to more than one noble Lord.

I did not feel that the noble and learned Lord the Lord Advocate gave a full answer. I hope that while my noble and learned friend and I are reflecting so, too, will the Government. This seems a perfectly innocuous suggestion. Time and again Ministers have said that they are prepared to look constructively at ideas which do not in any way attack the integrity of the Bill. This seems a very good example. I hope that when we return to the matter on Report, it may be possible to reach agreement on all sides. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 agreed to.

Clause 24 agreed to.

Clause 25 [Witnesses and documents: general]:

6.45 p.m.

Lord Mackay of Drumadoon moved Amendment No. 140:

Page 13, line 22, after ("oath") insert ("or affirmation").

The noble and learned Lord said: This is a small amendment which seeks to make it clear that a person taking the oath in terms of Clause 25 can either take the oath or affirm.

I fully accept that under Section 5(4) of the Oaths Act 1978 the definition of "oath" includes "affirmation". Therefore, as a matter of law this amendment could no doubt be said to be unnecessary. I nevertheless believe that it would be sensible to make it clear on the face of the Bill that, when the question of administering an oath arises, it can be either an oath or an affirmation. Lest I need support for that constructive suggestion, I point to the provisions of Clause 20 of the Government of Wales Bill, where that is made clear. Subsection (2) states: The oath shall be taken (or the affirmation made) before a person appointed by the Assembly". What is good enough for members of the Welsh assembly would seem sensible for members of the Scottish parliament. I beg to move.

Baroness Carnegy of Lour

Wales apart, in this case it is very important that the Bill should be clear to ordinary people. One can be fined up to £5,000 for refusing to take the oath. It would be terrible if there were a misunderstanding because someone did not know that he could affirm, perhaps because he had not read the 1978 Act. That is a point on which the noble and learned Lord should be flexible.

Lord Hardie

As the noble and learned Lord, Lord Mackay of Drumadoon, explained, it is unnecessary to have a reference to "affirmation" in terms of the Oaths Act 1978. The Government of Wales Bill deals with a different type of assembly. But for the Scottish legislation, we have taken to heart the suggestions of noble Lords opposite that we should not put in unnecessary provisions.

Lord Mackay of Drumadoon

If the noble and learned Lord the Lord Advocate expects me to believe that, not having heard that very cogent argument from myself and the noble and learned Lord, Lord Simon of Glaisdale, on the first day of Committee, he has another think coming.

I regret once again that a small suggestion which would make clear to the people of Scotland the procedure to be followed is rejected out of hand. I cannot see how it makes any difference whether one is a member of the assembly in Wales or the parliament in Scotland as regards this small matter. One begins to gain the impression that on even the smallest of details this Government, who claim to be a listening Government, are not paying any attention whatever to what is said in this Chamber. There are more important matters than this on which to divide the Committee. However, it is a matter of regret that I have not received a more constructive response on such a small issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

[Amendment No. 141 not moved.]

Clause 26 [Participation of the Scottish Law Officers]:

Lord Mackay of Drumadoon moved Amendment No. 142:

Page 14, line 8, at end insert—

("(4) Any decision by the Lord Advocate or the Solicitor General for Scotland to decline to answer a question or produce a document under subsection (3) shall not be reviewable by any court.").

The noble and learned Lord said: This is a small but important amendment to Clause 26, which deals with the participation of what are described as "the Scottish Law Officers" in the deliberations of the Scottish parliament and provides in subsection (3) that: The Lord Advocate or the Solicitor General for Scotland may, in any proceedings of the Parliament, decline to answer any question or produce any document relating to the operation of the system of criminal prosecution in any particular case if he considers that answering the question or producing the document—

1. (a) might prejudice criminal proceedings in that case, or
2. (b) would otherwise be contrary to the public interest".

What is set out in subsection (3) accords with what I understand to be the current practice which successive Lords Advocate have adopted in this Parliament, whether they have been Members of your Lordships' House or Members of another place, when they have been asked to respond to questions about individual criminal cases or the operation of the criminal prosecution system. The practice that has been adopted is reflected in the standing orders of another place and in the remit which has been given to the Parliamentary Commissioner for Administration. Therefore, I warmly welcome what I find in subsection (3) of Clause 26, which would apply whether or not the Lord Advocate is to be devolved, an issue which we shall address some days hence.

The protection which that subsection provides is linked to other protections which the Lord Advocate enjoys in his role as an independent public prosecutor. The courts in Scotland, and in particular the High Court of Justiciary, have over the years consistently declined to inquire into or to review any decision by the Lord Advocate, or one of his Advocate Deputes acting in his name, or by the procurator fiscal as to whether an individual accused should be prosecuted, the charges upon which a prosecution is brought or the charges on which a restricted plea of guilty has been accepted by the Crown.

Linked with that has been a refusal on the part of the court to expect the Lord Advocate to give reasons for his decision, a stance which has been widely welcomed in many quarters for protecting the interests of potential accused, the accused themselves, the victims of crime and witnesses, whether or not they are cited to give evidence in court. It is also welcomed because it protects the confidentiality of the criminal investigations carried out by the police force and the Lord Advocate's consideration of the evidence which has been placed before him by the police and other criminal investigation agencies such as Customs and Excise and others.

It was established during the debates on the Human Rights Bill that under certain limited circumstances, contrary to the practice which I have described, decisions of the Lord Advocate will be reviewable against convention rights. I believe that to have been a significant change in the practice of the criminal law in Scotland, but it is not necessary to revisit that issue today. I accept that it may happen in occasional cases, and I accept that, when it does, the Lord Advocate may have to give reasons for his decision, and indeed may be required by the court to do so to enable the court to address the issue as to whether or not the convention rights of an individual have been infringed. They could, of course, be the convention rights of an accused person or those of his alleged victim.

It nevertheless seems appropriate to try to keep the role of the courts in this matter as tightly controlled as possible. That is the purpose behind the amendment. I have little doubt that the provisions set out in subsection (3) will be strictly administered by the presiding officer and his deputies. I have little doubt that they will be respected by the members of the Scottish parliament who seek to question the Lord Advocate or the Solicitor-General for Scotland. But in many instances those questions which are asked will have originated from constituents of the members of the parliament. Indeed, with regional members, they need not even be constituents. Whether they be alleged victims or accused persons, they will go to a member of the parliament and ask for the matter to be raised. If the Lord Advocate or the Solicitor-General decides, for perfectly valid reasons, not to answer the question, while the member of parliament may accept that, the victim or the accused may not.

I have a concern that, faced with a refusal in the open court of parliament by the Lord Advocate to answer the question, the disgruntled victim or accused may then go off to the courts. The purpose of the amendment is to cut off that route and to protect, as far as humanly possible, the independent role of the public prosector in Scotland which subsection (3) has been drafted to protect. It is a small amendment, but I believe it is an important one. I beg to move.

Lord Hardie

The amendment raises an important point, on which we have been interested to hear the views of the noble and learned Lord, Lord Mackay of Drumadoon. Clearly there is a delicate balance to be struck between the independence of the Lord Advocate in exercising his prosecution function, an independence which both the courts and Parliament recognise, and his political accountability. As the noble and learned Lord observed, Clause 26 is one of a number of provisions in the Bill which safeguard the independence of the Lord Advocate and the Solicitor-General. However, the Lord Advocate will be politically accountable to the parliament.

There are some circumstances in which it will be right and proper for the Lord Advocate to answer questions and give information about particular cases. I would cite as a precedent the former Lord Advocate, the noble and learned Lord, Lord Mackay of Clashfern, who explained to this House in 1982 the reasons why a case had not been prosecuted. That case became known as the Glasgow rape case.

However, it is also right that the Lord Advocate and the Solicitor-General should be given a discretion to decline to answer questions or to produce documents relating to the operation of the system of criminal prosecution in a particular case if he considers that it might prejudice criminal proceedings in that case or would otherwise be contrary to the public interest to disclose the information. It should clearly be within the discretion of the Lord Advocate and the Solicitor-General to decide when to decline to answer a question or to produce a document on these grounds.

The noble and learned Lord raises a very interesting point. It is an aspect of the wider question as to the extent to which anything said or done in Parliament should be the subject of judicial proceedings and also of the wider question, to which the noble and learned Lord, Lord Hope of Craighead, referred in previous proceedings, in relation to the question of interim interdict.

I agree that this is a matter which needs careful reflection. I can assure noble Lords that the Government are considering the matter at present. We shall look carefully at the point raised by the noble and learned Lord to see whether any amendment to the Bill is needed which is consistent with what is in the Bill. I hope that the noble and learned Lord will accept that we are a listening government. With that explanation, I trust that the noble and learned Lord will withdraw his amendment.

7 p.m.

Lord Fraser of Carmyllie

I was hoping that the noble and learned Lord would give a much more robust answer and indicate that in no circumstances whatever might the decision of the Lord Advocate and Solicitor-General be reviewable in a court of law. But I can understand his caution.

I am sure that my noble and learned friend and the Committee are grateful to the Minister for indicating that this matter will be reflected upon further by the Government. However, the one aspect of it that I hope will be clearly within the focus of their reflection is the difficult point raised by my noble and learned friend in relation to human rights legislation. As we are all grappling to understand what will be the potential extent of the right to have decisions by the Lord Advocate and Solicitor-General reviewed in courts, perhaps I can put the noble and learned Lord on notice that when we return to this matter, we will expect a specific answer on that issue.

Lord Mackay of Drumadoon

I wish my advocacy was always as effective. I am genuinely grateful to the noble and learned Lord for a constructive response. This is an important issue. It is a question of balance. I believe that at the present time the balance is not quite right. However, I am reassured that the matter will be looked at again and on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 agreed to.

Clause 27 [Acts of the Scottish Parliament]:

Lord Mackay of Drumadoon moved Amendment No. 143:

Page 14, line 24, leave out ("section") and insert ("Act").

The noble and learned Lord said: In moving Amendment No. 143, I shall speak also to Amendments Nos. 145 and 146. I understand that the noble Lord, Lord Steel of Aikwood, wishes to add Amendment No. 144 to the grouping and I have no objection to that.

Amendment No. 143 is a small drafting amendment to Clause 27(7) and its terms are self-explanatory. It seeks to delete the word "section" and substitute the word "Act" to make clear that nothing in the proposed Act, not just in the proposed section, affects the power of the United Kingdom Parliament to make laws for Scotland.

Amendment No. 145 is again a small drafting amendment and seeks to add, at the end of line 25 of subsection (7), the words, which may not be amended or repealed by the Scottish Parliament". In other words, it is proposed that the Bill, when it becomes an Act, makes it clear to all those who read it—not just lawyers, but also laymen—that this Parliament retains the right to make laws for Scotland which it can entrench in the sense that they are laws which cannot be amended or repealed by the Scottish parliament.

That may have some practical implications. I do not in any way wish to embarrass the noble Lord, Lord Sewel, by reminding him of the fact that this Chamber and another place have been engaged in a form of ping-pong over the past few weeks. It is not impossible to imagine that a few years down the line another form of ping-pong might emerge, though it may not be quite as fast a game as the one played in this Palace, where one stroke is played in one Chamber one day and the return stroke in the other Chamber the next day.

It is not impossible to imagine, even on the question of student fees, legislation emerging from the Scottish parliament which is unacceptable to a British government, it being in conflict with certain laws passed here. And who knows what may happen thereafter? That is a constitutional possibility. The second amendment would make clear to those who read Clause 27(7) that there can be no doubt that the final say will rest with this Parliament.

In Amendment No. 146 I set forth three additional subsections to be added to Clause 27; that is, subsections (8), (9) and (10). These are also self-explanatory. The new subsection (8) is based on provisions that one finds in the Human Rights Bill and is to the effect that, So far as it is possible to do so, Acts of the Scottish Parliament and any instruments made under an Act of the Scottish Parliament must be read and given effect in a way which is compatible with Convention Rights".

The new subsection (9) will state that, So far as it is possible to do so, Acts of the Scottish Parliament and any instruments made under an Act of the Scottish Parliament must be read and given effect in a way which is compatible with primary legislation enacted by Parliament".

For the same reason one finds the provision in the Human Rights Bill, it is a wish to resolve any conflicts between constructions which are compatible with convention rights and those that are not by favouring the former in preference to the latter. It seems to be sensible to have a similar rule for resolving conflicts between the construction of Acts of the Scottish parliament on the one hand and primary legislation passed by this Parliament on the other in a way which would avoid recourse to courts where that can be prevented.

It is a reasonable presumption that, when the Scottish parliament is up and running, it will enact legislation which is in conformity with the existing body of statute law which, in the first years at least, will have been enacted entirely by this Parliament. It must be the presumption that unless it explicitly decides to repeal legislation passed by this Parliament as a matter of policy, it does not intend to do so by implication. That is what the new subsection (9) seeks to achieve.

The new subsection (10) is again relatively self-explanatory. It provides that, In the event that it is not possible to read and give effect to an Act of the Scottish Parliament or an instrument made under an Act of the Scottish Parliament in a way which is compatible with an Act of Parliament, then the provision of the Act of Parliament shall prevail". I believe that they will be useful additions to Clause 27. I beg to move.

Lord Renton

I wish to support my noble and learned friend with regard to these three amendments. We have now reached the three most important clauses of the Bill—I am glad to see the noble Lord, Lord Sewel, nodding in agreement—which define the legislative powers of the Scottish parliament. The detail is vast—around 30 pages of the Bill are involved—and is largely contained in Schedules 4 and 5.

As a background to the amendment moved by my noble and learned friend, I draw attention to Clause 27(7). That is to be welcomed because it makes it abundantly clear that the Parliament of the United Kingdom is to remain sovereign in legislative matters. In order to put that beyond doubt, we should accept the amendment which seeks to replace the word "section" by the word "Act" as proposed by my noble and learned friend.

As my noble and learned friend says, Amendment No. 145 is simply a drafting amendment. But Amendment No. 146 is fundamental for the removal of doubt. In England and Wales, as well as in Scotland, there will no doubt be controversy from time to time when it may be alleged that a conflict exists between the national law and the European Convention on Human Rights. It is right therefore that we should include the new subsection (8) in order to remove any such doubt. The new subsection (9) and the new subsection (10) are essential in order to clarify the matter. These three clauses are necessarily very complicated. It is right that Amendment No. 146 should be there in order to clarify matters.

Lord Kirkhill

I wish to support Amendment No. 146 and in particular subsection (8) which is contained within it. I should explain why I give my support. The position in the meantime, at least until 1st November, is that in Strasbourg there is a part-time commission and a part-time court. The countries which at present incorporate the European Convention on Human Rights are, in terms of their constitutional courts, fairly relaxed about the ultimate decision-making which occurs. They are fairly relaxed because at the moment the commission weeds out a good many of the complaints laid before it and the part-time court. Subsequently, because the court is part-time, it takes an inordinate length of time to reach a conclusion. The part-time commission and the part-time court will cease and a new full-time court will come into being. Clearly, it will form into chambers and so on, and there will be an element of vetting. Nevertheless, the decision-making process will speed up enormously. This country, having now incorporated the European Convention on Human Rights into its domestic law, will be faced with quick decision-making, or fairly quick decision-making, and will be asked for reasonably quick implementation. For that reason alone, it would seem to be sensible to accept Amendment No. 146.

Lord Hope of Craighead

I share the views of the noble Lord, Lord Kirkhill. However, there is a provision in Clause 28—subsection (8)—which, it might be said, has precisely the same effect as subsection (8) of the amendment. No doubt the Minister will make that observation in due course.

The reason for my intervention is to put in a plea that the various rules which the court is being asked to apply in construing legislation both in this Bill and in the Human Rights Bill be cast in the same terms. There is also a provision in similar terms in the Human Rights Bill. When I last saw it, it was not in identical terms. It would be helpful if the same terminology were to be used.

Subsection (9) of the amendment raises a point which might be worth considering. The width of the subsection is such as to give rise to the possibility that this Parliament might legislate on a matter such as education for England and Wales in a way that was not compatible with legislation which the Scottish parliament might wish to enact for Scotland. If the amendment is directed to primary legislation enacted by Parliament relating to Scotland, the possibility of collision could arise and may need to be addressed. However, as the clause is phrased at the moment, it seems so wide as to be likely to give rise to great difficulty about the powers of the Scottish parliament.

7.15 p.m.

Lord Sewel

I think it is better that we have a separate debate on Amendments Nos. 143, 145 and 146 and then have another debate on Amendment No. 144. Amendment No. 144 heads off in a totally different direction.

It was said that Amendment No. 145 is a relatively minor amendment—almost a drafting amendment. I do not share that view. Amendment No. 145, as it is written, strikes at the very heart of the devolved settlement. Let me make it clear at the outset that I consider that to be a major issue of principle in the legislation.

The Government cannot accept any of the amendments, although there may be some opportunity on Amendment No. 146 at least to seek the views of the parliamentary draftsman on the points that were made by the noble and learned Lord, Lord Hope of Craighead. Amendment No. 143 proposes an entirely unnecessary amendment to Clause 27(7). Clause 27 makes it clear that the parliament will be able to pass laws. Subsection (7) of that clause then goes on also to make it clear that the power thus conferred does not affect the powers of this Parliament to make laws for Scotland. There is therefore no need at all for any further clarificatory provision.

As I said, I consider Amendment No. 145 to be of significant importance because it would strike at the heart of the Scottish parliament's ability to enact legislation. The amendment would appear to be intended to prevent the parliament from amending or repealing legislation passed at Westminster even where that legislation relates to devolved matters. This would effectively undermine the devolution settlement itself. The Scottish parliament must have the competence to amend legislation passed at Westminster in respect of devolved matters and to the extent permitted by Schedules 4 and 5 in relation to reserved matters. If not, then I cannot see how devolution can work.

After all, we are creating a devolved parliament. We have to give it the competence to get on with the job of legislating in its appropriate areas. The Scottish parliament will be able to develop and build on the foundation of legislation already established at Westminster. In a way, that is its legislative inheritance. It should also be able to develop and adapt any future legislation which may, for good reason, be enacted by this Parliament.

Accepting the noble and learned Lord's amendment would fix any legislation enacted at Westminster in aspic. It would remain constant, unmoveable, unmodifiable, unamendable and unchangeable. It could not be changed by the Scottish parliament even if circumstances changed and consequential amendments were needed. Is the noble and learned Lord saying that the parliament should have no power to amend existing legislation on, for example, planning, housing or education because they are covered by legislation enacted at Westminster? That is what I meant when I said that the amendment as presently drafted strikes at the very heart of the devolved settlement.

The whole point about devolution is that this Parliament is entrusting the Scottish parliament to make laws for Scotland in respect of the devolved matters. That is the proposal which was endorsed by the Scottish people in the referendum and that has been the basis of this legislation. If there are disagreements about what matters the parliament should be able to legislate on, those should be addressed in the context of amendments to Schedules 4 and 5 to the Bill, not by legislating for a blanket ban on the parliament's legislative competence.

The noble and learned Lord expressed fears about legislation being enacted in Scotland which would not be passed at Westminster. But that is one reason why we are establishing a Scottish parliament, so that it can actually develop Scottish solutions to Scottish problems, not following Westminster all the time and not being bound by how Westminster wishes to legislate. Again, that is the underlying philosophy and basis of the devolved settlement.

The noble and learned Lord suggested that we could end up in a situation where legislation was constantly being subjected to the ping-pong approach, constantly being amended by each parliament because they could not agree on the right way forward.

Lord Mackay of Drumadoon

I am grateful to the Minister for giving way. I am not offering any criticism but he has completely misunderstood the purpose of Amendment No. 145. I have no intention of pressing it to a Division today. But I shall have to look carefully at what he has said because the explanation he has given for rejecting the amendment flies in the face of provisions set out in Schedule 4 as it is currently framed and as it is shortly proposed to be amended in terms of a government amendment.

I give the example of student fees. If a Scottish parliament were to enact legislation that it was illegal to charge students from England more in fees than students from Scotland for studying the same course, and if that conflicted with the wishes of the British Government as to the manner in which they funded English students attending universities throughout the United Kingdom—which I understand is one of the reasons lying behind the Government's attitude in recent weeks—is the Minister saying that, as a matter of constitutional theory, it would be impossible for this Parliament to enact legislation which had the legal effect of overruling the Act of the Scottish parliament making it illegal to charge English students more than Scottish students? If the Minister is saying that, I do not understand how that can be consistent with the supremacy of this Parliament, which I do not understand to be infringed in any way by the constitutional settlement which the Government have brought forward, which I fully accept has been overwhelmingly endorsed by the Scottish parliament, and which I accept in putting forward my Amendment No. 145.

It might be helpful if the Minister addressed that practical example. He has clearly misunderstood my amendment. I want to make it quite clear that I do not understand the answer which he has given because the amendment recognises that this Parliament would retain the right to make laws for Scotland which may not be amended or repealed by the Scottish parliament. That does not mean that every Act passed by this Parliament falls into that category or indeed that any Act it might pass in the future fell into that category. All it recognises is the right to entrench certain provisions, which is one of the matters addressed in Schedule 4, and rightly so.

Lord Mackie of Benshie

We, too, completely misunderstood the amendment. If it is being said that it is a drafting amendment, it appears to us to strike at the very root of the Bill.

Lord Sewel

Perhaps I may read out what the effect of the noble and learned Lord's amendment would be. Clause 27(7) would read: This Act does not affect the power of the Parliament of the United Kingdom to make laws for Scotland, which may not be amended or repealed by the Scottish parliament". To me that seems to create what has been described in the phrase used earlier in this Committee: namely, a degree of ambiguity that legislation passed by this House on devolved matters relating to Scotland could not be amended or changed by the Scottish parliament. That is the danger that the noble and learned Lord is getting into.

As regards the general point he made about the ping-pong problem, Clause 27 makes it clear that the devolution of legislative competence to the Scottish parliament does not affect the ability of Westminster to legislate for Scotland even in relation to devolved matters. Indeed, as paragraph 4.4 of the White Paper explained, we envisage that there could be instances where it would be more convenient for legislation on devolved matters to be passed by the United Kingdom Parliament. However, as happened in Northern Ireland earlier in the century, we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish parliament.

If problems do arise the solution is for the Scottish executive and the United Kingdom Government to resolve the matter through political dialogue. That is what differences between mature parliaments and executives will be concerned with. That is what happens in other political systems. I cannot believe that it is beyond our wit to develop such a convention. That is much more suitable than through the business of legislative ping-pong or tennis. If this Parliament thought the situation had got to a stage of total impasse, it would be possible to look again at the Bill and enact primary legislation affecting the reserved matters. That is the ultimate route. There should be mature political dialogue to resolve a difference, which is better than legislative tennis. If an impasse results there is the ultimate fallback position of looking at Schedule 5 and changing the devolved powers.

Turning to Amendment No. 146, we fully agree with the intention behind the new Section 27(8). It is clearly right to ensure that the courts should, in cases of doubt, tend towards a stricter interpretation of the effect of Acts of the Scottish parliament, thus reducing the scope for practical problems in consequence of the declaration of an apparently valid ASP as ultra vires. But the new subsection is simply unnecessary, as it would duplicate provision already made by Clause 28(8) and (2). Read together, these require that a provision of an Act of the Scottish parliament is to be construed so far as possible as within legislative competence and therefore as being compatible with the incorporated European convention rights.

I refer to the point made by my noble friend Lord Kirkhill, who is in his place. Government Amendment No. 164, to which we shall come later, seeks to adjust the wording of Clause 28(8) to make its meaning absolutely clear. As I said, I accept the point made by the noble and learned Lord that there may well be an opportunity to make absolute consistency in phrasing. We shall discuss that point with the parliamentary draftsman.

The new subsections, Clause 27(9) and (10), are in fact in a different category. The devolution proposals which the Scottish people endorsed last year were for a parliament able to make primary legislation by providing for Holyrood legislation to be read as being compatible with Westminster legislation or if that were not possible, for the latter to prevail. These new subsections would subvert that policy by rendering the Scottish parliament unable to make distinctive primary legislation except where there was no existing Westminster enactment. I believe that that would be a clear nonsense. In those circumstances I ask the noble and learned Lord to withdraw his amendment.

Lord Mackay of Drumadoon

I was interested to hear what the Minister had to say about political dialogue being the way to resolve disputes between the new Scottish institutions, the Westminster Parliament and the United Kingdom Government. That approach will be very welcome when we come to consider in due course the provisions of Clauses 33 and 54.

As I indicated when I intervened as the Minister was replying, I do not intend to divide the Committee on these amendments at this stage. However, I repeat what I said earlier. The way in which the Minister began to respond, particularly to Amendment No. 145, failed to acknowledge what I understand to be an inevitable consequence of the supremacy of parliament, that not only will it be competent to enact legislation relating to devolved matters in the future, but that it may be appropriate in rare cases to make it clear that this further legislation cannot be amended by the Scottish parliament. Perhaps we could develop this argument later when we discuss the ability of the Scottish parliament to amend the provisions of Clause 89.

I listened with interest to what the Minister said about subsections (9) and (10) which Amendment No. 146 seeks to insert. There remains, in my mind at least, some concern about how a court will resolve differences between an Act of this Parliament and an Act of the Scottish parliament dealing with similar issues, but not exactly the same point. I can envisage problems of construction as to the way in which such matters are resolved in relation to convention rights under subsection (8). There should be some scope for seeking to guide the courts as to the way in which this Parliament wishes them to approach the problems on which subsections (9) and (10) focus. Although the noble and learned Lord, Lord Hope, was slightly critical of the drafting of subsection (9), which I seek to add by way of Amendment No. 146, I understood him to support the general principle that it would be preferable to set out on the face of the Bill how the legislation of the new parliament is to be construed.

We have had a useful debate. I suspect that noble Lords on all sides will read with interest what has been said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.30 p.m.

Lord Steel of Aikwood moved Amendment No. 144:

Page 14, line 25, at end insert ("in relation to reserved matters").

The noble Lord said: In moving Amendment No. 144, I should like first to point out that Clause 27 as a whole was never discussed in the other place because of the way in which the timetable Motion fell, and it is therefore right that we should pay closer attention to its provisions. Curiously enough, however, it so happens that there was a Division in the other place on an amendment identical to Amendment No. 144, but without any discussion. That strikes me as peculiar, but it was the way in which the timetable Motion fell.

Subsequent clauses which we shall reach—presumably after a welcome break—deal with the correct limits which the Bill seeks to set down on the powers of the Scottish parliament. In other words, a whole series of clauses and schedules defines what the parliament may not do and where it may not trespass on the responsibilities of Westminster.

My amendment seeks, at the end of line 25 on page 14, to set a similar limit on what Westminster may not do within Scotland. It seems peculiar to leave subsection (7) to read: This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland", without making it clear that in future, once the Scottish parliament comes into being, we do not expect the Westminster Parliament to make laws for Scotland except in those matters which will be set out as "reserved matters" in this Bill. My amendment seeks to set out that boundary more clearly.

As the Minister said, various mechanisms are set out in the Bill to deal with disputes over the rights of the Scottish parliament and of the Westminster Parliament in future. It is inevitable that there will be some such disputes. However, what I do not understand, and the question that I should like to ask the Government, is: if we do not pass my amendment, what is to stop the Westminster Parliament attempting to legislate on precisely the same ground as the Scottish parliament which we are now setting up? I do not want to go into the example of student fees, which is admittedly cross-border and complicated, so perhaps I may take another example at random. Let us suppose that the Scottish parliament took it into its head to decide that, for various good reasons, there should be a tax on caravans in Scotland. That would be within its competence. Are we then saying that the Westminster Parliament could suddenly, a few months later, say, "There shall not be a tax on caravans in Scotland"? That is a recipe for continued ping-pong of a new variety, using Hadrian's Wall as the net. That does not seem to be a sustainable and arguable position.

My final point is that we are dealing here with the theology of sovereignty. This is where I disagree with the noble Lord, Lord Renton. I must remind the Committee that the whole of this legislation is based on the findings of the Scottish Constitutional Convention and that its work was in turn based on the Claim of Right, which sought to assert yet again in Scotland that the people of Scotland are sovereign. That is a completely different concept from that of the sovereignty of parliament in England and Wales. Although we cannot create two sovereignties in any devolved structure, nonetheless we want the Bill to reflect as far as possible the spirit of the Claim of Right which made it clear that the Scottish parliament, when it comes into being, should be sovereign in relation to internal matters in Scotland. To leave what I see as a loophole (by which Westminster could at any time override the legislation of the Scottish parliament) is a mistake. I believe that adding the words, in relation to reserved matters", is the correct solution to this dilemma. I beg to move.

Lord Gordon of Strathblane

Before the noble Lord sits down, I wonder whether he would consider rephrasing his amendment to take account of the point to which the Minister referred; namely, paragraph 4.4. of the White Paper which states that there may be instances, such as international obligations, which touch on devolved as well as reserved matters, and it may therefore be convenient for Westminster to legislate for both. If we could narrow Westminster's power to those areas, we might be satisfied on all sides.

Lord Steel of Aikwood

My quick answer to the noble Lord is that I am, as he knows, an eminently reasonable man and I would, of course, be willing to adjust the amendment in that respect. There is no desire on my part to have the Scottish parliament coming into conflict with international obligations in a way that muddies the waters here at Westminster.

Lord Renton

I wish to assure the noble Lord, Lord Steel of Aikwood, that there is no real conflict between us. We have reached a rather extraordinary position. The noble Lord was wise to move his amendment because, obviously under Clause 27, the Scottish parliament is given various powers which will be defined in an adverse and negative way by deciding what matters are reserved and what matters are not. It would frequently be confusing and chaotic if the Scottish parliament legislated in one way and the Parliament of the United Kingdom legislated in a different and conflicting way. To the extent that the noble Lord's amendment would resolve that matter, it deserves serious consideration.

Baroness Carnegy of Lour

Except that this amendment seems to conflict with what the Minister said earlier to the noble Lord, Lord Gordon! It seems to me that something has to happen to subsection (7) or people will simply read it as it is, as did my noble friend Lord Lang at Second Reading in his speech which contained much anxiety about the parliament. My noble friend read out those provisions and they struck me as comprising an extraordinary statement by which ordinary people, if they read it just as it is, will be most surprised.

The sovereignty of Westminster has been maintained by devolving matters to the Scottish parliament. Westminster has devolved that power. It has kept sovereignty. To an extent, the people of Scotland can see that they have regained an element of sovereignty in that matters have been devolved. Perhaps the people of Scotland will pick up on that point. It certainly does not match the Claim of Right in any way. It can be put to the people of Scotland that matters have been devolved to them for them to decide.

However, it turns out that matters may not have been devolved because some matters may be dealt with by both parliaments. The Minister is living in fairyland—he is a politician and I am sure that he knows that—if he thinks that two parliaments of different political persuasions will settle any conflict on such matters by mature discussion. That is not the way that the political world works. The Government must deal with this in some way. I do not know what the answer is but they must do something.

Lord Fraser of Carmyllie

I am not in the least surprised that there was a Division on this matter in another place. This apparently inconsequential amendment reveals a fault line between the Government and other participants in the constitutional convention that is incapable of being reconciled. The sooner that is understood the better and we can reach a proper understanding of what is being put forward in this legislation and its limitations.

If one turns to subsection (7) one finds an unbroken line going all the way back to Professor Dicey and all those who followed his constitutional tradition. This Parliament is reserving to itself the right to make laws about anything and everything in Scotland. It retains the totality of the sovereignty that it presently enjoys. It is saying in an Act of the Westminster Parliament that it will allow these matters to be dealt with in a devolved fashion and it can at any time and in any place alter that. This Bill does not provide a set of entrenched constitutional changes that cannot be changed by Westminster. I do not know whether the Government are particularly pleased by this observation, but I happen to believe that they are right to approach the matter in such a fashion. But it demonstrates the fundamental difference that has arisen in this case.

The noble Lord, Lord Steel, has said repeatedly in this Chamber and elsewhere that in Scotland there is a significantly different basis of sovereignty. To say that sovereignty is vested in the people is rather crackpot constitutional theory. Where else in the United Kingdom is sovereignty ultimately vested other than in the people? Sovereignty is expressed in what happens in the House of Commons and in this Chamber. Sometimes I have very considerable sympathy for the observations of the very great Lord President Cooper in McCormack v. HE Advocate which have been used as a mother-lode for every curious constitutional argument that I have ever heard deployed in relation to Scotland.

I suggest to the Government that they make absolutely clear that Clause 27(7) is the central piece of this legislation that spells out clearly the relationship between the Westminster Parliament and the Scottish parliament. The sooner that is clearly understood the sooner we can set about examining very carefully these most important provisions in the Bill and determine whether the line that the Government have drawn between what is to be devolved and what is to be reserved is appropriately drawn. There may be circumstances in which it is more desirable—this may surprise some noble Lords—to move some matters that are presently reserved to the Scottish parliament and to draw back other powers. We must reach an understanding as to what is at issue rather than engage at great length in the constitutional basis of the establishment of the Scottish parliament.

7.45 p.m.

Lord Hope of Craighead

This was a point to which I attempted to draw attention in my speech at Second Reading. There is a great deal of force in the points that have been raised by the noble and learned Lord, Lord Fraser of Carmyllie. The basic principle as I understand it is that the Parliament at Westminster cannot abandon its own sovereignty. One may even say that subsection (7) is unnecessary because it simply states the obvious. It is absolutely fundamental to the whole arrangement that the Parliament at Westminster can take away what it gives at any time. That must be the basis on which the arrangements for devolution proceed.

Lord Desai

We should make clear that we are intending to devolve power, not create a federation. That is the crucial distinction. Perhaps I may refer again to the constitutional reform debates on India in this Parliament. The Government of India Act 1919 created what was called provincial dyarchy. Some subjects were reserved and some subjects were devolved. What is being proposed is that on devolved subjects the Scottish parliament can legislate but it cannot do so on reserved subjects. However, Westminster can legislate on all subjects. That is the principle of sovereignty. Whatever the Scottish convention may or may not have done, it did not win sovereignty in a battle. There is no war. We are devolving power within the context of Westminster, and therefore Westminster cannot give up any of that power.

Lord Mackie of Benshie

We accept that this Parliament is sovereign, but if it passes an Act devolving power to Scotland it can remove that power only by another Act. This Parliament cannot play games with powers that it has already devolved.

Lord Kingsland

The noble and learned Lord, Lord Hope of Craighead, is absolutely right. The sovereignty of Westminster is inalienable even by Westminster. The question raised by Clause 27(7) is whether we need to say it. We had precisely the same problem with Stormont in 1921. Save for one occasion, which ended almost in political farce, there has been no attempt by Westminster to interfere with the powers devolved to Stormont. Indeed, there has been a rule in another place that matters dealt with by Stormont are not touched upon if they fall within the powers not reserved. Since it is implied in our constitution that Westminster will have the power, if necessary, to pass any enactment it likes in Scotland, whether or not it is contained as a reserve power in this Bill, there is absolutely no necessity to rub it in. Therefore, I believe that Clause 27(7) is otiose.

Lord Graham of Edmonton

Sock it to them!

Lord Sewel

I do not believe that it is a matter of socking it to anybody at this stage. This has been an important and valuable debate. The Government's defence of Clause 27(7) is that they believe it is an essential constitutional statement of the nature of the devolved settlement. That is the whole business of devolution as opposed to other forms of constitutional settlements. If we do not recognise that from the start we go down the very seductive path that the noble Lord, Lord Steel of Aikwood, invites us to tread and come close to, if not actually to arrive at, a destination called federalism. That is not what this Bill is about. This is designed to put in place a devolved settlement which was the product of the constitutional convention which the noble Lord, Lord Steel, served with distinction. That was put before the people of Scotland in the White Paper and it was endorsed by them.

It was never our intention to create a federal settlement. I understand that that may be the long-term objective of noble Lords on the Liberal Democrat Benches but that is not what this Bill is about. This Bill is about the establishment of a stable and secure devolved settlement within the Union. On that basis sovereignty rests with this Parliament. There is no escape from that and no attempt to duck it. We make that point explicit in the Bill in Clause 27(7). There is no possibility of having any form of dual sovereignty. That is not a concept that is capable of any rigorous scrutiny.

It is strange that in arguing for this particular type of arrangement the noble Lord, Lord Steel, asks the Committee to take on a very old fashioned and (if I may use the word) conservative definition of federalism. It is a very early United States model based on a layer-cake form of dual federalism. As we know, US federalism has changed from that rigid separation between the federal government and the government of the states. That was found not to be a workable basis upon which a modern government can exist. It has evolved over time. We do not propose federalism; we propose devolution.

To take up another point, the solution is simple. It is before us in what this Parliament—I say this to the noble Baroness, Lady Carnegy—achieved following the Government of Ireland Act. Basically the conventions were established that this Parliament would not become involved in those matters which had been devolved to Stormont. That is the way in which we properly and rightly deal with and solve those issues.

Lord Molyneaux of Killead

Perhaps the Minister will give way for a moment because he has tempted me to comment. The fault did not lie in the structures of the devolution to Stormont. The Stormont departments worked well. They delivered an excellent service to the people who elected them; for example, in the field of agriculture we had the computerisation of animal health which saved us from BSE and so forth. It worked well in education and health and many of the fields which are now being considered for devolution to Scotland.

I am not certain that Members of this place or the other place fully realise how their powers will be curbed. A noble Lord on the Front Bench some weeks ago, when asked whether Scottish Peers and presumably Scottish Members of Parliament would be able to ask Questions about matters which had been devolved to the parliament, to my amazement assured us that of course they would be able to ask Questions. I am sorry to have to disillusion him. The Table Office would have something to say about that. When I came here in 1970 I was not permitted to table Questions on anything other than defence, foreign policy, and an obscure section relating to imperial pensions.

When Stormont was abolished that all came back into our lap for two years until the Faulkner government were put in place. I remember innocently going down to the Table Office with three or four Questions relating to different departments and being told, nicely but firmly by the young clerk, "I am sorry, sir, but you cannot have any jurisdiction or say on that".

It was said that if there were a conflict between Parliament here and the parliament in Scotland, it could be resolved by political dialogue. I am sorry to say that when it came to an internal dispute within Stormont (it had nothing to do with devolution or administration) and Northern Ireland on nationality—"To which nation do you want to belong?"—that was where Stormont became unstuck. The dialogue which ensued lasted for about 11 days, at the end of which this sovereign Parliament abolished the subordinate parliament.

Lord Sewel

I am grateful to the noble Lord for that intervention. It makes out the case for having Clause 27(7) in the Bill, in that it makes explicit the relationship and nature of devolution. It is only fair and proper that we do that.

On the point of resolving conflicts by political dialogue, that is the way in which I envisaged conflicts being resolved. As I said, if matters reach a pass on great issues of principle in which there is no way to reach an adjustment, the opportunity exists for this Parliament to decide that it will revisit the whole issue of the devolved settlement and promote primary legislation. I say that in a purely theoretical way. I do not see that as a basis of practical politics in the foreseeable future.

Lord Stewartby

Before the Minister sits down perhaps I may ask him a simple question arising from the explanation that he has just given us. Clause 27(7) states: This section does not affect the power of the Parliament of the United Kingdom". Does that mean that this Act, as it will be, does not affect the power of Parliament? Because Clause 28(7) provides: An Act of the Scottish Parliament may modify a provision made by or under an Act of Parliament". There may well be other places in the Bill where a similar clarification is needed.

Lord Sewel

I do not think that that is necessary. With Clause 27 and subsequent clauses we are dealing with the basis of the parliament's legislative competence. That clause covers the whole legislative process.

To sum up, we are setting about a devolved settlement—nothing more, nothing less. It is not the first step on the road to some other settlement, whether that be independence or federalism. It is a self-contained settlement, based on the principles of devolution. Essential to that is the recognition that sovereignty remains with the UK Parliament. The UK Parliament retains the ability to legislate on all matters, but it devolves the power to legislate, other than on reserved matters, to the Scottish parliament. The way forward with disputes is one that is not unknown to this country's political history.

Baroness Carnegy of Lour

I do not want to hold things up, but the Minister mentioned the White Paper. I am worried about the Government's integrity in dealing with the people of Scotland on this. Where in the White Paper was it made plain to the people of Scotland that this Westminster Parliament can make laws on any subject, whether devolved or not? Where does it say that?

Lord Sewel

I am at a total loss. The White Paper was about devolution. The constitutional nature of devolution is as I have set it out. I do not believe that anyone will disagree with that, in all honesty. That is the difference between devolution and federalism. If the noble Baroness wishes to argue the case for federalism she is at liberty to do so, but that is not the case we put before the people of Scotland.

Baroness Carnegy of Lour

My question is about what the people of Scotland think they voted for. Does the Minister—

Lord Sewel

I answered that question.

Baroness Carnegy of Lour

Does the Minister believe that the people of Scotland think that devolution means that the Westminster Parliament can still legislate on all subjects, whether or not they are devolved? Is that made plain in the White Paper?

Lord Sewel

I am happy to be of assistance to the noble Baroness. Perhaps I may refer her to paragraph 4.2 on page 12 of the White Paper which reads: The United Kingdom Parliament is and will remain sovereign in all matters".

Lord Steel of Aikwood

We have had an interesting little debate on this issue, and I am glad that I tabled Amendment No. 144. I assure the Minister, and other Members of the Committee, that, whatever the aspirations of this party to seek a federal structure, we recognise the difference between federalism and devolution. There is no argument between us that in the end what this Parliament at Westminster gives, this Parliament at Westminster can take away. That is not in dispute. My noble friend Lord Mackie of Benshie was correct when he said that if at some future point—we hope that it never happens—this Parliament decided to undo the whole of the legislation, it could do so. That is clear, and it was clear in the section of the White Paper that the Minister read out.

What is not acceptable is the idea that could be read into Clause 27(7) as drafted: that notwithstanding the devolution settlement, the Westminster Parliament can meddle whenever it feels like it in internal Scottish matters. The noble Lord, Lord Molyneaux, did us a service by pointing out that some Minister—I know not who—indicated recently that questions would be allowed in the Westminster Parliament on devolved matters.

That surely cannot be. I take what the Minister said about the convention to be correct: that once the Scottish parliament is under way, in future the convention will be that neither House of the Westminster Parliament deals with legislation or Questions to Ministers on those matters that have been devolved. That is what the Minister told us. That is what the convention should be. That being so, I think that subsection (7) as drafted is unwise. The noble Lord, Lord Kingsland, may have hit on the right compromise by suggesting that the subsection should be removed from the Bill.

As do other noble Lords, I wish to reflect further on the matter. I do not press my amendment further at this stage. However, I indicate to the Government that we remain profoundly unhappy at what appears to be an open invitation on the face of the Bill for Westminster to intervene in devolved matters. I understand that that is not what the Government intend; but I would rather see some reference to the convention about which the noble Lord, Lord Molyneaux, spoke as regards Northern Ireland. Perhaps at Report stage, we can find some mutually agreeable words which establish what the convention will be without what I regard as the rather offensive statement in subsection (7). I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Farrington of Ribbleton

My Lords, I beg to move that the House be resumed. In moving the Motion, perhaps I may suggest that the Committee stage begins again at not before nine o'clock.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.